and at that facility they were able to receive a kosher guy and were able to meet at least weekly with other jewish prisoners for prayer however in two thousand and fourteen they were notified by david leavell the director of religious services for the department of corrections that if they wanted to continue their kosher diet they would have to accept a move to another facility where there would be a new kosher kitchen open they accepted the move because they wanted to continue their life as observant jews what they were not told of course is that the facility to which they were being transferred wabash valley correctional facility did not have any opportunity for congregate worship or meetings for jews because the facility did not have a volunteer to supervise had not been able to find a volunteer and had been looking for some time mr camp and mr wondering did not know this but of course m and he had control over the transfer he could have delayed it until such time as services and study were available but he did up and there was no need to transfer to prisoners at this time because even after they were transferred some prisoners continue to receive kosher diets at the old facility or those prisoners who were retained in the first cell or to be there for any particular reason or their disciplinary problems or medical problems something that kept them there that's exactly right i think they were retained somewhere in segregation somewhere in a mental health unit one i'm not sure of one was not transferred to december the point is that the department and mr leave all knew that if there were good reasons to keep the prisoners in place they could be kept in place he did not keep them in place so in april of two thousand and fourteen mr camp and mr woodrum were faced with the in congress situation of being transferred to need for security soley because of their religious the only to find out when they got there that the most basic need the ability to meet with fellow coreligionists was simply not available and it was not until january of two thousand and fifteen that traditional jewish services began act t the transfer of the prisoners violate their first amendment rights mr liebeler it's not entitled to qualified immunity and the district court should be reversed mr liebeler violated their rights because he failed to stop or delay the transfer that was made solely to serve religious needs even though he knew religious needs could not be met and even though he knew that there was no immediacy to the transfer under turner of course the first amendment rights of prisoners can be overcome if the actions of the correctional officials are reasonably related to legitimate feel logical reason this standard is not met here mr liebeler argues of going through  return or that the transfer in april two thousand and fourteen had a rational connection to the desire to abrogate all the prisoners in one or few institutions for kosher diets to save money however the cost saving for these two prisoners was either minimal or nonexistent kosher meals continue to be served to some prisoners in the original institution thereby indicating that if there was a reason to keep prisoners they certainly could be kept there without destroying any goal of the d o c and most importantly the ultimate goal here was not just to save money it was to save money while honoring the religious needs if that's the goal it makes absolutely no sense to transfer them to a prison where mr lieberman knew those needs could not be met there were no alternative themes to exercise the right congress in congress were shipped in study and once they got to the new facility allowing them to remain in the old facility would have had no impact whatsoever on guards orse or put other prisoners i would have had a minimal impact at best i'm resources we're talking to prisoners and the deals were either not very much more expensive three dollars more expensive or the evidence that we assess brought in after and i apologize was brought in after our footnote to is that the reality was it did not cost that the o c anything but it at best a minimal cost and finally the ready and obvious alternative to move which was to keep them in place until services and study were available and the fact that this ready alternative was there demonstrates that the move in april was an exaggerated respon did not prevent the transfer even though he knew the religious lives he would be profoundly injured given all the circumstances the decision to allow them to be moved was irrational and arbitrary and therefore violate point the absence of lee religious leader is what caused this truly bill to suffer his first amendment rights but i mean the harm here is that because there was no religious leader in the new institution at that point the o c policy wise you could not meet in fact in december of two thousand and four the record shows the policy changed so now prisoners are allowed to meet without an onsite volunteer but at that point without that volunteer and mr liebeler was aware there would be not there was no and without that volunteer mr liebeler knew that those two prisoners were not going to be able to meet at all with other choose between april in january to april and january january is when the first traditional jewish service began there was a service in december of two thousand and fourteen which turned out to be led by a messianic jewish minister which was not a traditional jewish service which is not what a traditional jewish service and i appreciate even that was eight months but what is it they're trying to make an effort maybe he just didn't get enough advance notice of the valley clearly that's kind of remote yes i don't know really and into good jewish services th get somebody to blow this value but apparently it was well i think i don't think he knew darn well he was going to be able to get anybody but he's going to transfer him anyway well i think the evidence demonstrates that he knew that whi preexisting jewish population so a few prisoners had not been able to find a volunteer despite looking for quite some time is what the the wording of his deposition was and that at the time of the move that was still not available he could kept those two prisoners at minimal burden where they were in pendleton but he chose to allow them to leave where they did not know of course but when they arrived they found out they could not have congress worship or or study wh kitchens i am not sure i and i don't know if the record reflects that i think part of it might be the actual physical plant of the veil ability to add the with a kosher kitchen is actually a separate kitchen with an existing kitchen that is is a sealed off gated off so maybe there wasn't room i do not know i do know the evidence shows i believe there were many more jews at pendleton than there were at wabash rally but be that as it may we're not criticizing the move prisoners of court generally cannot criticize their move but they can however criticize a move that is in violation of their free exercise rights which is exactly what this was and mr someone in his position even though this fact pattern you cannot find in report cases mr liebeler should have no reason he should have known that the rights here with the inviolate and the right here that is being violated by clearly established is the right of a prisoner not to have their sincere religious exercise seriously burned absent a legitimate you know logical yes this is precisely how the right is defined for qualified immunity purposes by who is in charge of religious programming for the department of correction in charge of the religious lives of these prisoners would have thought that you can take these two prisoners take them away from one facility soley so their religious lives can continue because we think that this is a situation where the law is clear and where his actions are reckless as best i understand how difficult it is from litigation from running a prison i understand this to legal as a difficult job he and i have had many interactions he's a very a pleasant man with a difficult job but but here of course he made a profound mistake and  could have easily avoided a clear first and a violation merely by letting these two prisoners stay until he was sure their religious lives could be maintained he failed to do that and he is therefore a libel for damages you said there  d you said there was no significant and substantial but there were a number of other jewish people at pendleton different mood and i believe there were there were a number and i don't need their for ext reasons besides the regime i think the record shows there were two prisoners who were in i believe segregation there was one prison or a mental health unit and there was another prisoner a fourth prisoner was moved in december there were some prisoners who were not receiving a kosher diet who gave up their kosher diet who stayed and therefore gave up their kosher diet and were allowed to continue their congress services mr camp mr watering were not obviously didn't know they were being forced to go up there concord services they wanted to pursue jewish law to the extent possible therefore they wanted to go somewhere where they could get continue their kosher diet and have services and study the latter was not possible because of weevils actions who were the i don't want to call them volunteers but were they just ok with moving thinking they're going to get that yes and they were they were volunteers i mr liebeler sent a letter to them a notice to them saying either you agree to stay but you have to give up the kosher diet which was the prepackaged t v dinner for lunch and dinner or we're going to move you to this new kosher kitchen and they said well we'll move because we want to continue our lives as jews and that was what was taken from that guy their diet of course but they did lose the profoundly important ability to have conquered prayer whose fault is it have you have found any case where the transfer to a facility that provides through right of the group to worship when it's a there's an outside clear clergy unavailable to the leader training and mates this case factually would really break new ground right i mean there's i can't find any case i don't think you and yes yes as as i as i admit readily for qualified immunity purposes there is no case that as i say factually the same but that's not the end of the qualified immunity else is obviously the qualified immunity analysis says even if there are cases factually on all fours what a reasonable person their position no the right was firmly established and i well he wouldn't he would know it from a prior case he would certainly know that he does not have the right to arbitrarily denied person's religious they moved that there was not a volunteer he knew that they had been trying for some time he knew that they had not been able to obtain that backs all in the record of what he knew and he and we also know that he had said look let's keep these two prisoners there at pendleton until without falling tears there or he could have gone to the person in charge of transfer and said you know could you transfer them to there were four kosher kitchens open at least one of the other institutions maybe others already had services in place they reflect whether they were weakly absolved yes the record reflects that both plaintiffs attended at least weekly i think mr woodring indicated sometimes he would have a visit so he would not go but their attendance was basically always there and they always had not just services but study as well thank you morning honor thank you may please the court david levels and title the qualified immunity for three reasons first existing case law affirmatively signal to mr legal that there was no constitutional impediment transferring jewish prisoners to wash valley correctional facilities second the plaintiffs define clearly established law it way too high a level of generality contrary to the supreme court's jurisprudence on the matter and third implementation of the kosher kitchen program which involved moving nearly all jewish offenders receiving kosher meals to a facility with a kosher kitchen satisfy the turner alone standard now for thirty years this court has held that prohibiting group worship at a facility due to the absence of a qualified outside volunteer does not violate the free exercise rights of offenders this is the vs horn case in the johnson bay vs lange case along with several non presidential decisions over the last few years the reasons are because you don't wan to place offenders and perceived positions of authority you also don't want a thunderous who may not be knowledgeable on religious doctrine and dogma fighting it out  over disagreements you also don't want to funders using the group worship as a facade for fomenting conspiracy or gangs the deal c has had at the department corrections had such a policy and this is why the services weren't available now the plaintiffs want to say they're not complaining about the lack of service as it was bash valley visit district court point out that really is what they're complaining about even if you look at it from the perspective of the transfer though a reasonable fishel mr liebeler position would be faced with the none of another line of authority and that's the supreme court's decision starting in meacham vs final which holds that there is no liberty interest and generally no right to remain in a particular prison now there are two exceptions to that the bin acknowledge one if you are being transferred from your facility to a super then you have the liberty interests to the circuits have held including the circuit they cannot be transferred to a higher security facility in retaliation for constitutionally protected and most of the time this occurs when a prisoner has been transferred because he submit screamed and says or complains about misconduct of guards the plane of sight a case from the eighth circuit and this is the closest they have or get to finding something remotely on point where an offender was a member of a church run by the area and brotherhood was transferred and he alleged at the very early stage that he was transferred because the believed in this area and that some religion in that case the eighth circuit held that he had stated a retaliation claim because he had been moved to be punished for his exercise of religion but that is not what has occurred in this case the plaintiffs were not punished the moves were not to punish the prisoners the moves were part of this overall plan to reduce the cost of providing kosher with a bunch of lower security facilities peppered throughout the state now the criteria for selecting the still these are listed in the record docket forty eight besh one page seventeen and  falk pointed out a large part of this was physical plant you had to have the space to have another kitchen they also wanted strong aramark staff so air marks a food provider you want and there are special procedures to follow to ensure that the key remains cocksure and so that was that the department also wanted to make sure that there were varying security levels so that you would have some place for level one level to level three level four on pendleton my understanding pendleton was not chosen because pendleton although it's not as old as the state prison is a very old facility and just does not have the space to add another kitchen i think that the big point and we highlighted this in our brief the plaintiff's position creates quite an anomaly under the plaintiff's view the jewish offenders who were at was actually prior to the transfer who were wanting services but couldn't get them because there were no outside volunteer available have no free exercise claim because hoodie versus horn and johnson vaporises lane say that that does not violate the first amendment head camp and would ring remained at pendleton and for some reason the lubavitch rabbis were unable to visit there and the qualified offenders let's say got released on to parole and there was no one to lead services and services had to stop while they were pendleton they would not have a first amendment claim again under had beepers as on it's only because they were transferred from pendleton at a time when service is wrong going to pendleton to walk ash valley where services weren't going on at that time despite the repeated efforts of legal to get services out there it's only because of the transfer that they would be entitled to any relief or that there's a constitutional violation in first place but a reasonable fishel in has cited in his brief a number of decisions from around the country from various circuit courts suggesting that it can but reading cases like  plaintiffs have identified no controlling case holding that a transfer from a system facility with religious services to a facility without those particular services so that the offender can maintain a religious diet violates the free exercise  i also think this brings into issue a third line of cases from this court and that are they that includes the cases like thompson versus home which really talk about the importance of religious diet so this court has repeatedly said that if inmate wants a religious diet for religious reasons you better have a really good reason not to give it to him the and most of those cases deal  officials have been found liable so here we've got a situation where mr lee will knowing that it's important to maintain a diet for offenders but also knowing that the department wants to centralize cost to centralize food production and reduce costs he has to figure out what to do do i take away the meals or do i move into a facility that has a kosher kitchen so they can maintain the meals so movements really well to size some of them to the facility to maintain the meals trying prior this the existing precedent already there the court really does not have to reach the threshold question of whether there was a constitutional violation i don't think turner and alone need to be applied here but if they are i food prior to the kitchen plan prepackaged pusher meals cost about four times that of regular meals so there are cost considerations now i do want to make one point of clarification mr falk introduced for the first time on appeal this contract from the public public records and we address that in our brief but i was a little i guess in the dark when when i wrote the brief i thought that the prepackaged meals under that contract were still more than the coach  meals to the kosher kitchens i recently learned that that's not the case right now all kosher meals whether they're kosher kitchen or prepackaged cost the same but i don't think that alters the analysis for several reasons first the whole point of that contract is that the production for the lion's share of kosher meals are going to be done through a kosher kitchen and in exchange aramark has bumped up its cost for all meals kosher included but it is agreed to eat the cost the higher cost of the prepackaged kosher meals but that's contingent on them having fewer prepackaged kosher meals second mr lee is the only evidence in the records that mr liebeler was not aware of this aspect of the contract mr liebeler does not oversee the contract under miss levy view it was providing the prepackaged kosher meals still was four times as expensive as the regular in kosher food production and we were talking about qualified immunity especially we have to look at facts from the defendant's point of view i think the last thing i want to address on the turner loan standard is that  the plaintiffs say weighing in their favor is the fact that they did not have any alternative means of exercising group or ship they they cite a case from the tenth circuit i think called peer hyde because of certain policies and the supreme court found that alternatives did exist because they were still able to have a religious diet they were able to have private worship and they were able to have religious materials i think the record have one thing you are i think in alone the supreme court noted that the most of the prisoners there were able to participate in other religious observances of their faith and i think being denied absolutely the ability to congregate for congress worship and study i denied mr cantor mr watering to go with him to engage in religious observances and i would just say in conclusion that contrary to what is being argued i do not think that mr liebeler facing on certain legal train g he was aware and should have been aware that under turner he could not deny the sincere religious exercise unless there was a legion appeal logical reason there was absolutely no reason to move these two prisoners in april the move could have waited other prisoners moved and waited only twenty prisoners in all were moved into parole not all of them were jewish so this was not an immediacy to the move they