weekends but prison officials made a series of decisions that burden that religion that cannot satisfy the least restrictive means test under our luba they decided to implement lock downs in order to save money every week and that those lockdowns one place they decided that inmates could go to visiting and each of those weekends at lock downs were in place they decided that group religion would not be allowed they clearly made choices here including the villain the decision to allow visiting and the decision to allow inmates to transition from eating in their cells to going to get their food in groups of seventeen and congress has said that religion matters in this context but there's no evidence that they took it seriously here why not allow inmates to schedule their what evidence is there that this policy is continuing so that the defendant said that the lockdown stopped in july two thousand and eleven but mr rogers testified in october twenty eighth well that the lockdowns continued in that under the plan he seemed to seemed to be aware of the plan in that deposition testimony i succeed he admitted that he was not sure why those lockdowns continued he just knew that they were still taking place and there is no evidence in the record in this record that the defendants have committed that the lockdown would continue with no end day in sight and mr rogers deposition testimony more than a year after they said that the lockdown stopped that the lock downs continued that would be evidence that the lockdowns have not ceased there's no commitment by the defendants in the record that they would not use costs in the future to to refrain from restricting religious services could you point me to the precise language in his deposition research they're continuing yes that's what you are sixty here six zero yes i'm sorry no that's that's the one day in advance rule that's s c r one sixty nine to seventy at the very bottom of page s c r one sixty nine after he said that the lockdown had stopped he was asked has there been any rolling walk down since july first two thousand and eleven and he answered that is a hard question to answer i said why is that i said because i know that even though information can say that it is for one particular reason it's not always for that particular reason so we've had lockdown for different reasons and i have no idea why that's a pretty slender reed upon which to bas conclusion that we continue to have rolling lockdowns because we're trying to save money that's right the only evidence that the defendants cite to say that the lock downs have stopped is this very same testimony two questions earlier he said the lockdown stopped two questions later he said they had continued and he did know why if there were some if there were any decision to actually stop the lock down you would expect to see some evidence other than mr rogers to deposition testimony that the defendants have to be committed to not allow cost of cost savings to restrict religious services you know the bottom of page s c r one seventy question do you have any information that indicates that any of the lock downs after july one to the motion to dismiss that lockdown started in august twenty ten now they say i don't know about the july two thousand and eleven also relevant to this problem is exactly what you're challenging because whether what you're challenging continues depends on what you're challenging so if for example there were some other lockdowns continuing which i see says he doesn't know the reason for an order certainly security lockdowns but were lockdowns and one doesn't know why they are not exactly covered by the challenge of that right if other lockdowns may have a different compelling government interest associated with them so here you can see the difference in the government's interest when you look at their affidavits concerning the three candy lock downs and the rolling lock downs when it came to the three ten day lock downs they said and i don't have gone missing whether it was scissors or a dental tool because i don't was missing they couldn't allow inmates to go to the chapel allowing inmates to go to the chapel would contaminated the search would have extended the length of the lock downs and would have precluded other inmates from going to medical or library it would have affected other inmates programs that said the testimony that they put forth as to the ten day lockdown asked for the lockdown all they said was i considered whether group worship was possible and because leaving inmates unsupervised creates the possibility of inmate on inmate violence group worship was not possible that sort of formalistic response cannot satisfy the rigorous and exacting standard of you review under our luva there has to be some evidence that they seriously consider some alternative and here that alternative is obvious in the record that they created in their motion for summary judgment because when mr rogers testified i d r sixty there was a rule that inmates had to schedule their services one day in and yes so if the lock downs occurred on one day he couldn't schedule his services for the following day so when the lock downs were every other day he could have attended services as often as never and the evidence in this record only demonstrates three times that mr rogers was actually allowed to attend services that would be made may twenty ninth and november twenty seven and two thousand and ten and that's s t r se to seventy six there's no other evidence of the record indicating mr rogers ever got to attend any other religious services and to the extent that they say the lockdowns the forty lockdowns only occurred once every four days mr rogers testified that even when there were four day lock downs they occurred every other day the me let me come back to this question as to whether or not the rolling lockdowns are continuing he says he has no evidence that they are continuing under that previous policy he says they're  lockdowns but he doesn't know why it strikes me that it's very hard for us under the circumstance to give injunctive relief because we don't know what they're doing and they don't when we don't know why they're doing it if that's so we're the only thing we have is the possibility of damages now there's no possibility of damages as i read the would case under our lupa there's maybe a possibility of damages under a straight first amendment claim although the first amendment will be less protective than our lupul would be what do we know about the possibility of damages under the first amendment so i have two responses for that first on the damages and then one case i want to say as to as to why the case cannot be considered based soley on the representation on appeal as to damages under the first amendment the defendant under the first women and under the turn attest there's a four part test to establish whether or not there's been a of the first amendment is what mr rogers said in his complaint and in his complaint he cited the inability to attend a week and services so looking at the complaint it's not about not being able to go every other day it's about not being able to go at all he didn't say he got to go sometime he said he didn't get to go at all and in his complaint he said that the reason was cost savings so he has a first amendment claim that it was of a violation of turner for the defendants to decide that they would not allow him to go to religious services at all in order what about qualified immunity it was it reaches that right it wasn't which and it clearly established law is that prison officials cannot completely cut off access to religious services and noted to save money indefinitely i do the policy changed and that the inmate had been awarded the accommodation requested this point found that that could not establish units because it's testimony fails to establish the pendency of a change in policy it's their burden to make it absolutely will continue as a last statement from the defendant's indicating whether the lockdowns was continues to be an aggressive policy suppose they came up with a declaration even here or if we rematches the district court and said the following  now we're not doing it whether we would do it under other economic circumstances depends on those economic circumstances but that policy is over because economic power centers are caught and if that motor not not moved because i'd be a classic another hurricane well worry about that and that leaves open the opportunity to really implement we implement the policy the minute that cost savings is a concern and the desire to cut costs is always a concern so the implications of the defendant's decision here applies to all prisoners because there's always an interest or reduce costs and to use that reduction in costs or strict religious services would render it to say that that is a compelling interest under lupul would render the compelling government interest test a knowledge which would be contrary to this question peeta decisions legitimate justification based on cost that is to say if someone says i'm entitled to have group religious services morning noon and night seven days a week and the president says well you really  aren't it would require so much staff and so much money we don't have it i think the point of losers on that so it's going to be fact dependent absolutely my concern is if you're asking for declaratory or injunctive relief it would be very helpful to know precisely what the imposition is is it rolling lockdowns every three weeks is it no lockdowns at all but you can only offer services on sunday at some point the case just isn't right if you're asking for declaratory relief or if you're asking for injunctive relief the harm is not sufficiently particularized and imminent to justify such relief that's a somewhat different question from whether it is moot it's a question is whether a sufficiently right for us to figure out what the real problem is based upon the facts in front of us we don't have they did but what would happen in the future that i mean that that's what judge fletcher is trying to get at another and we all know what happened but given that the circumstances are to have changed we don't know what's going to happen even if you think something's going to happen maybe the lockdowns have nazi that's not supported by the record it's not in the record that the lockdowns continued as recently as last month but we know that they have continued unfortunately it's not all you know that i think that this is why i started where i started with the question what are you for other reasons so all you're challenging is lockdowns triggered solely by cost concerns and what the character of those may be in the future i mean and to suppose they were once every three weeks that would be a different story arson so we can see interest even if we know that they haven't given up the authority to do this and that they might do it again we still don't know what the it the it is the cost base lockdowns and the last statement from the sentence on the record is that they would continue so that is sufficient to establish that minimum there's no evidence at this case that the that the harm to one could we have had that's the defendant but is there anything i mean if the plaintiff but is there anything that the government has said that the government has not the government's statement at the director's chair beano statement in two thousand and ten was that the lock imony from mr rogers and right there on my point was my concern was that there was no i didn't see a declaration from any state official saying this was the policy that we had the economic concerns of the case was moot at that point and the are forty nine in the second paragraph halfway down so i would say the last sentence which is the lockdowns will continue to be implemented for safety security and the rolling lockdowns will also continue to be implemented at the direction of the director due to fiscal constraints and that is just statement of january sixth two thousand and eleven as well due to fiscal constraints so do we know that for constraints of continued their defendants offered no evidence in their summary judgment motion that those fiscal constraints have been lifted mr rogers offered an article that indicated that the state was subject to overcrowding and it was under severe financial provides no evidence at all right so it's problematic to say his testimony as proof that the lockdowns have ended if they really happened what i may be going to put the burden of proof on your client is seeking relief to shut up tell us to give us something upon which we can conclude dismissed at the motions isna stage with her specifically the first amendment free exercise claims and if the court wishes i can also address the outdoor exercise and access of the courts claims that were raised and mr rogers pro per brief but respect to our loop of what i understand from wood that damages are not available against someone under a loop of when sued in individual past that's correct your honor there's a possibility of suing in the official capacity although there would then be available a defense under the eleventh amendment structure you have not argued eleventh amendment in your briefed us or you ever argued eleventh amendment in defense of our damages well it was because the at the district court level director for being an warden your rebate were dismissed at the motion dismissed stage on allegations based on their lack of involvement in this case and  repay so the district court properly found that there was a legitimate be a logical interest in dismissing there was a legitimate pain a logical interest in the rolling lockdowns and therefore plaintiff cannot say to claim under turner versus safely specific allegations where those you have to take the complaint in the light most favorable to you to to him correct your honor first of all if you look at the complaint his allegations about the lock downs being every fourth day were  did not allege that the lockdown specifically interfere the rolling lock downs interfering with his chapel access he was talking about the security lockdown switch council concedes were a legitimate logical interest because there was the missing so he didn't say it is happening said because of the rolling blackouts he can go to listen services in his second amended complaint his complaint about his lack of chapel access was due the security lockdowns when he talked about that one fourth of his rights were restricted under the rolling lockdowns that was under the exercise of power even if the court wants him in part one fourth walk down to the religious exercise it wouldn't matter because the district court did not find that these rolling lockdowns were short term sporadic or occasional which is what the prison officials did try to argue in their motion isness the court rejected that argument and specifically differentiated this case from the canal case which found that the lock downs were short sporadic and occasional the district court did find that the lock downs that mr rogers complained about were more than short term sporadic and occasional and nonetheless still found that they were a legitimate pain a logical interest because of the shortages of staff there was just a court mixing up the security lockdown with the rolling lockdown it's i couldn't really tell it's possible it's somewhat hard to tell and i can binary in the district court but i think because the district court found that these were more than short term sporadic then it doesn't matter if they were mixing up or not because they did consider them a more longer term contract and rejected the prison officials argument in their motion to dismiss that you know the lock downs when they were searching when they had to search the prison for it was a dental instrument that makes sense right you can see you know the obvious pain a logical justification for the restaurant is not so clear when you talk about cost well i think this case is more about then cost it's about stafford auction plan well it's the same thing i think there is a slight difference your honor because here the prison wasn't trying to cut save money the money was already gone what they were implementing was a mandate that they had to reduce their staffing by three to five percent this  matter of we can save a few dollars if we do this well some somebody in a higher level decided we can save a few dollars and here's how we can save it right but when we're talking about stuff the courts the ninth circuit has found that staffing needs and ability supervise them but the manner i understand though those are the prisons faced with a three to five percent cut staff monies but then it's up to us the individual prison to decide how they're going to handle that right  occurs to me that maybe we're having something like every now and again maybe the united states park service will have its budget cut and the response from some of the bureaucratic politicians is well that means we're sorry your samedi is closed for the fourth of july weekend in other words they impose the consequence of the cut in such a way as to make it particularly visible and painful maybe as a way even for fighting the cuts so merely because we've got a cut and then a response doesn't mean that this was the right response given the requirement that some was allowance be made for religious services so the fact that somebody else cut it doesn't mean that the decision as to what the impact will be is beyond scrutiny and i'll address that question then i'd like ok well but i've got one more question i read in the complaint because you said that the complaint does not connect the staff cuts to the religious claim but really connects it only to the free exercise outdoor claim instead of free exercise of religion claim i'm just reading from page one hundred five reading from the complaint your being no should have known that such a drastic staff reductions would significantly alter plaintive and other inmates civil rights to normal religious services outdoor exercise and access to courts that that's quite the contrary of what you represented was in the complaint i see that allegation your honor three c which is still describing religious services yet cannot one each defendant use none necessary rolling back down a want lockdowns reduce the spending of state monies created by overcrowding the california prison system that's under the heading of religious now you're going to split time evenly what what do we think why don't we put the job just so your you can go comfortably go out to lunch together afterwards why don't we put seven minutes and thirty seconds on the clock thank you may please  it's a prison lock downs do happen we have race riots we have missing pools we have all sorts of things that require a lockdown but he is asked pacifically do you have any knowledge that there's a lockdown for any other reason for any role in lockdowns for budgets and he says judgment i was not the counsel of record at that time and i do not believe it was argued there was there any declaration any official policy statement there is no there's no it's your burden when you claim when there's a claim of voluntary secession if you're burden to demonstrate that the challenge activity is completely ceased correct i believe that's correct i believe that the fact that there has i believe that's correct i don't know that the record is adequate do i think this court should for me a question for the district court is and i think it is in  fairness i think it is i think if the district court finds that the lockdown has ceased and that there's no as the court pointed out that lock downs like this have to be evaluated if a lockdown is every three weeks it's different every other day i think it does have to be evaluated on a on a factual basis and i think if the department puts in evidence in the lower court that we haven't done this since july of two thousand and eleven and we don't have any plans to do it again in the near future and if we did we might look at it differently i think that's enough to make the argument ok i'm not sure the court is in is interested in hearing any of the other arguments i'm happy to address them i don't think there was a substantial burden on religion i think that was the plaintiff's burden to prove and he did not prove it the evidence in the record white house why didn't he prove it yes  i think the evidence in the record is that lock downs were every three or four days the rolling lockdowns they didn't land on weekends other than maybe once a month and i think that's a temporary cessation of of religious services i don't think that's a substantial burden under one circuit law look we see that as a matter of law for purposes of summary judgment i'm sorry and i didn't do so so what would happen is this is granted on summary judgment would have to say as a matter of law this record shows no violation of aruba was in this is significant an interference with his religious exercise i think it's a did noble review and i think if the court looks at the record th has not proven that there was a substantial burden well so far and if a temporary sensation is temporary if for example say there was a policy that says where owing to all our religious services for the protestant religion once a month or three times a month and that the fourth ok is that a temporary cessation i believe so i think not allowing protestant services once a month is not a substantial such temporary it's just a question of whether  substantial agreed agreed but i but i think the analysis under that under the statute is whether it is substantial and i think that that would not qualify as a substantial burden i think  court make that decision if somebody says look my religion demands that every sunday i go to religious services and if i don't call one sunday a month i am not to flame their religious duty and that's substantial now what do you do with that well i think you have to you have to exercise due deference to the administrators who have no milk i'm not looking wait a minute we're at a different stage now you're telling me that this is a substantial burn when i have to that yes all right so the question is how do we just side whether it's a substantial is the play injury plant of another inmate suffered worse are the inability to attend weekend saturday and sunday and protestant fellowship sunday morning prayer services saturday morning bible study classes what was developed in the record with respect to that allegation as i understand it was developed in a record was that testimony by that prison staff that the rolling lockdowns occurred every four days so there are four facilities on this prison and in order to spread the burden of not having enough staff facility a would be locked down one day then facility b facility c and facility d and that's why they were rolling  lockdowns and the effect as i understand it because of the one day to fast requirement was that that that resulted in two days not being available for religious services i believe that that misstates the record to suggest was a one day in advance requirement the council has argued that the one day in advance had to be the day before that's not my understanding of what the record reflects it actually was that at least one day before so that it wasn't that you had to sign up the day before and therefore you're locked out so i think that's a misstatement of the record the other misstatement of the record like to point out is the fact that the seventeen members are allowed to go eat that is not what the record is in fact plainness deposition he says what we were allowed to do was walk down stairs in the housing unit and pick up our tray and take it back to our cell so i did want to just point that out for the for the clarity of the record and the other point i want to make is this concept that while they shouldn't have allowed visiting on weekends at some point the prison is entitled to make decisions about how staff is allocated and it's not entitled and it's not required to put religion above other significant interests of inmates well that's a question under the under under strict scrutiny essentially i think cutter this united states supreme court says that you shouldn't elevate religion above all other significant interests i think visiting deference being given to the experience and expertise of prison in jail administrators in the stablish a necessary regulations and procedures to maintain good order security and discipline consistent with consideration of cost and limited resources and cutter also states that should any requests for a religious accommodations become excessive impose unjustified burdens on other infants i learned this addresses the point you made which is whether if asked between staffing a visitor day and staffing a religion although for  legend i don't believe that that is necessarily true as as this does when it imposes unjustified burdens on other institutionalized persons certainly an argument that visiting can only occur on weekends that's when families can come see people that's when they're not working they travel long distances where people can do in cell worship i see my time is beyond where you sit down the want to address the you're  pretty you give me a say about the first amendment claim against your client which is a claim for damages well and we argued extensively in our brief that was that my client had a very very narrow overlap of time substantial burden my client implemented lockdowns for one security reason which i don't think is at issue here and merits question is if that's your argument as not that on the merits there was a substantial burden for first many purposes correct and if there was a compelling state interest which is security there aren't enough bodies to staff the prison my client doesn't control the budget she doesn't control any of that she simply says look i don't have enough people i've got to do this in the best way i can so i've done these rolling  lockdowns and that's why on this day facility b is closed the district court didn't address any claim for qualified immunity career i believe that's true i don't believe the district court got there because it found that that's not even a no that's not under spirited a job you know and you really be where the director and the ward and my client had nothing to do with the budget now but that was the question hold decided given the budget issues side what would happen during the early lockdowns well i believe the evidence is actually in my client's declaration that she filled out the program status report and submitted it to the warden for approval but what you've got here essentially is also three official capacity claims if an official capacity claim is in essence a claim against the state of california then it seems as if two of the three defendants are redundant damages then you have to look at the individualized defendant's role in it and as i as we pointed out in our brief our my client's individualized role was very narrow because she was transferred to a different institution well here it's continuous it's systematic and it's indefinite it is a difficult decision for the court to conclude some restriction and someone's religious belief is not substantial here the court would need to find that it's not significantly great if for example if someone in an orthodox jewish person required kosher meals three times a day and was denied those meals one time a day that would clearly be substantial and maybe baldwin the ninth circuit noted an inmate who had to for purposes of transportation only that was temporary but it was still substantial because his belief required him to maintain dreadlocks similarly here mr rogers religion calls for him to attend weekend religious services so don't restrict those services on a regular basis for more than a year to never plan ahead and create some type of accommodation is substantial especially where in addition where they decided to allow inmates to go to visiting visiting is subject to a rational basis test whereas religion is subject to a strict scrutiny tests to the extent they argue as they did in the affidavits about the three ten day lock downs allowing inmates to interact and congregate create a security issue then there has to be some explanation of why visiting was allowed when religion was not and the basis for dismissing your being a was a question by by your honour's that was certainly based on the three ten day lockdowns official court did say that there was no connection between mr rogers