illumination in the absence of a legitimate pino logical interest violates the eighth amendment's protections against cruel and unusual punishment in twenty fourteen in an earlier iteration of this case this court held that to be legitimate a logical interest must apply to the prisoner being so subjected specifically the trial court below ignored this court's ruling when it found the state articulate a legitimate pino logical interests despite making no findings that those interests applied to my client specifically therefore this case is on all fours with kenan and this court should find that my client was harmed and is entitled to deco tory and injunctive relief first of all we believe that at this court as this court noted in up in the earlier granting one that there is a legitimate question as to whether or not pino article interests are even an appropriate consideration in conditions of confinement claims  court ruled in two thousand and five in johnson versus california that it is not appropriate to consider legitimate been a logical interest when examining the conditions of confinement and a simple example demonstrates why everyone can agree that there is legitimate pino logical interest in preventing pit prisoners from attempting escape but that would not justify a prison from reenacting a scene from stephen king's misery or alex haley's roots and removing the foot of a prisoner even if he or she had made multiple escape attempts quite simply a penal logical interest that requires violation of the eighth amendment is per se illegitimate and it is our argument that subjecting a prisoner to constant illumination at the levels utilized at the airway heights correctional center the appendix to your sample or to your reply brief where the levels of illumination are so much lower than they are at this at this point at this jail i do not believe that that the pro bono trial counsel introduce that evidence your honor now so that was not in front of yours i do not believe it was specifically in front of judge peterson although i will note that the state's expert himself testified that the appropriate foot candle level would be between three and six point five foot candles which is what is used in e r as an intensive care units for monitoring critical care patients at this time at the time my client was subject to the lighting and indeed even today the current levels of  airway heights are in excess of even what the state's own expert suggested was the appropriate level of lighting monitoring ok and who and what it was and exactly at head level seven point something at currently it is between seven point one and seven point six foot candles at the time that my client was a place in the s m u that gave rise to this particular case it was between ten and twelve point four foot candles the wiley do of course having had a trial and we have these factual findings and i'd like to ask you about two of those let me since we're talking about the lighting level the court found that rap had  he she credited the prison expert in saying rap when it's not was focusing on the wrong measurements and therefore now we get into this battle of the x words so from your perspective where does somewhere between twenty and one hundred thirty three percent less than what they are currently utilizing it airway heights if we assume that my client is not a critical care patients in the e r which he is not then the appropriate level lighting the state's own expert is three foot candles which is far below the seven point one to seven point six foot candles being utilized here so in the battle of the experts i think the state should be held to their own experts testimony at the very least and furthermore the state's own actions here which they claim moot my client's case indicate that the ten point that the ten to twelve point four foot candles was far in excess of even what the prison guards needed because one would assume that the state did not choose to utilize an energy saving measure that would make it impossible for them to perform their legitimate pina logical interests to do with the district court factual finding that mr granting actually suffer no harm as a result of this and that is headaches were coming from some othe sleep deprivation and there is no evidence in the record that my client has ever suffered from sleep deprivation when outside the s m u secondly the logic of the district court would preclude the idea that anybody with a preexisting condition can have that preexisting condition exacerbated by the actions of a prison official to uphold that would actually create a circuit split with a decision issued by the eighth circuit just two weeks ago in washington versus denny decided on aug thirteenth they published decision in which they upheld a jury trials finding that an asthmatic placed in this in a cell with a smoker who's asthma was exacerbated could receive compensatory damages from the prison and its officials this would also fly in the face how does that that makes total sense to me but it doesn't answer this question well we just believe it was clear error for the for the trial court to determine that somebody with a preexisting condition cannot be harmed by conditions that exacerbate that condition she simply said that because even though the trial court judge found as a matter of fact that because my client suffered migraine headaches the sunday before trial it was impossible that being subjected to the lighting levels in the s m u caused the headaches of which he was complaining and my argument is that is simply not the case an asthmatic may get to suffer an asthma attack because he's exposed to a smoking cellmate or because of a high pollen count in the air or because of smoke coming  british columbia has been happening here giving seattle the worst air quality in the world the last week the fact that the smoke and the pollen can cause an asthmatic attack from an xterm all source does not mean that housing that asthmatic with a known smoking judgement that my client's rights were violated and then remand the case back to the district court to craft an appropriate injunction to enforce that declaration to instruct the court they are too few to craft an injunction that would limit the amount of light in the s cells at age c c to a level that does not violate the eighth amendment and that's where those cases that we see where the other levels of light can come in handy and be useful to the trial court judge because if we rely on which  supreme court articulated in turn reverses safley the court also said that no two live that safeguards rights at the minimus cost to a valid interest may indicate a regulation is not reasonable and when the experience of every other court to examine foot candles to look at every other prison that uses constant lumination we're talking supermax facilities and the highest levels of security and they can get away with the between a tenth of a foot candle and at most i was able to find two point one foot candles to guard some of the most dangerous prisoners in the state and federal prison systems it seems to me that airway heights which is not a supermax facility can meet their needs there would you not penalize interests at similarly low levels of lighting what are we to do with the availability of sleep masks what what consequences does that have going forward well your honor i would argue that it has very little relevance for two reasons one this was not a policy change that was mandated by the state legislature or the executive to the governor they could cease providing sleep masks tomorrow secondly my client testified that sleep mask did not solve the problem they leave the light around him and to provide an anecdote i use a twelve dollars sleep mask and i have light leaks around the other side the underside into my eyes when i'm trying to sleep the fact that my client has a ninety nine cent sleep mask tells me that his going to get what i want with a dollar twenty four sounds well if the cost of the prison ninety nine says they then charge my client a dollar they're making a quarter profit on every one yes sure and additionally is when i would solve that problem if they were to supply them for free it would be better to supply them for free because it is cheaper than paying their lawyer that would certainly be the case you honor and we believe that you know as we are going the opening brief we do not believe it is appropriate to charge prisoners to exercise their constitutional rights but it's not the price that makes the sleep mask unfeasible with the fact that it can be taken away tomorrow there's in fact no guarantee that if you're taken out of your is unconstitutionally bright and remand for the creation of an injunction but a remained for a new trial would be acceptable my client is when you've also made an argument about individual izing lighting depending prisoner in there and you've talked about that in your brief this is the prisoner in there for so aside watch is the prisoner in there for violence and other prisoners is the prisoner in there as mr manning apparently was he was involved in a fight he complained he contends he was the victim and they're just trying to find out they're putting him in there as they find out how feasible is it for the prison facility the jail to sort these people out with respect to the second like why are they in there and therefore what level of elimination or do they leave new to lumination oh well it's quite feasible your honor because the record shows in order to subject in order to place a prisoner in the s m u in the first place the prison has to make has to fill out a form an administrative referral and that administrative referral has specific categories such as attacked a fellow inmate attacked a guard was discovered with contraband all of those in ninety i would i would venture to say  vast majority of cases in which a prisoner is being referred to the s m u the referral itself makes that individualized determination of would you commit pina logical interest because that's why we're sending you to the cell because you had contraband because you had a weapon because you attacked a guard or a fellow inmate it's only in those rare instances such as my client felt in failing here where he was put in protective custody for his benefit that you would really  say ok is that is said is that a sense where he maybe he shouldn't be subjected to constantly listening to what is that what the facts are harry was put in there but as i read the record it was put in there because somehow it is involved in a fight he refused to say what happened it's often the case for prisoners they won't say what happened when they're attacked for fear that they'll be subjected to retaliation later on but when he was put in there as i understand it the prison officials only knew that he was suffering from a warm to his no and he said i fell against the faucet which was a baloney story but of course they didn't know what the true story was correct but they said they clearly suspected that he had been the victim of an assault and and there was no evidence there was no indication that anyone at the prison believed he had self harm which would justify subjecting him to constant illumination they either knew that he was the victim of an accident as he had put forth or that he was the victim of a vicious and unprovoked assault or even a provoked to solve but he was the victim of an assault and they put him there to get him away from whoever attacked him while they could determine who it was who engaged in the fight would you like to reserve your remaining time i would your honor thank you good morning your honors and may please the court assistant attorney general tim foreigner on behalf of mr miller stout and mr fox after taking testimony for three days that included courtroom demonstrations the trial court correctly concluded the defendant did not violate mr granting eighth amendment rights this court giving the trial court's decision appropriate deference should affirm for two reasons first the district court correctly found that defendants were not deliberately indifferent to any serious risk of harm to mr granting and second the trial court correctly concluded the lighting in the ask them you see is tailored to a clearly defined safety purpose and that there was no evidence that the purpose of be served by a lower level of lighting because of the how can you say that there was no evidence that that would be served a lower level of lighting when according to what we've just heard the state's own expert says you don't need this level of lighting that is just an incorrect characterization of mr apps testi appears at your seventy one mr rap gave mr lane excuse me the state's expert mr lane gave two comparative hours of three to six point five put candles of an average and a room that he was compared to the s m u he was using those as compared to ours it is uncontested that the estimate you lighting is five point nine foot can the average in that cell based on the measurements by mr rapp the plaintiff's expert now plaintiff's a trial deliberate indifference is a high legal standard because it is a factual question the factual finding that the district court made or he the district court made two factual findings that both defendants were not aware of any risks to mr granting and factual findings on things he talked to a supervisor who told him that the american correctional association had audited the prison and if yes and you had been cleared and he called the medical department and asked if they'd received any complaints from mr granting they told him they had not based and other harm which is false he says she says he suffered no harm as a result of that that strikes me as contrary to some of the evidence in the record well your honor there is evidence to support i think it's based on credibility is what i think the district court ultimately is and i think the sleep mask was ineffective because the way things that seeps through so taking those one of the time first of all well mr gunning had failed to mention is that there's actually windows to the outside world by which anyone can reading of light meter at the stand of twenty nine point seven foot put candles on the witness stand four times a wedding level in style and there were heights currently then mr mccallum put the towel over the light and that reduced it from twenty nine point seven foot candles two point nine foot candles so the idea that mr granting against testimony that the light somehow pounded through that towel was not credible and i think that what this report really reflects that mr mccallum then place around terms of whether he's telling the truth or not that may make a big difference in terms of whether he's telling the truth around had that big an effect that maybe so but it's true and around i think those are different words and refer to different sort of physical physical things that may be true are but i guess the other thing is that the district court had the actual state mask itself by which it could evaluate whether or not it was likely that mr granting that it was ineffective based on mr grant's testimony that it was essentially completely ineffective and based on those credibility findings i think the district court correctly concluded that mr brennan had failed to show he had caused the destiny lying and caused him any harm and i don't think the district court made a conclusion that just because he was in the s m u he suffered headaches outside of the usa knew that it was impossible for mr graham to show cause ition actually what she said was in her findings so that it undermined his claim of causation this argument about causation about  exacerbating mr gronings injuries was an argument that was made to the trial court and she rejected so i don't think the trial court misunderstood the end of the at the moment it may be cruel unusual punishment if something exacerbates an individual  individualized sensitivities so in your view she was saying that a preexisting condition somehow negates the possible cause is absolutely not here i think i mean this is the exact argument that they that they made to her a trial as i understood it and and so i think her finding is based on a lack of credibility mr granting and a lack of credibility of their expert who testified to a number of things that are just contrary to common sense including the idea that any lighting w testified using her definition of sleep deprivation which was not the isle of slayer in if sufficient sleep for seven to nine hours of night that was the standard that she was applying one night of sleep one night of sleep where you could not get seven hours of adequate sleep one of the arguments that counsel made that his client is concerned that down the road either he or others would be in this situation and the sleep mask would not be available that it's given after the fact provision if you will by the state what's your answer to that i mean it is now standard equipment  is in the record there is a memo from the secretary of the washington department of corrections to all facilities talking about the availability of sleep mask to all inmates additionally it's one contest that mr granting himself has a sleep mask so in order to accept the idea that he would be harmed on the road would be you have to accept the idea that he was placed back in the s m u for some reason and that staffs basically confiscate the sleep mask from him to conclude that he would have been available all he sent me ass of the issue that was presented to the trial court on remand by trial mr browning had conceded that the use of twenty four hour lighting in the ask them you itself servility an appeal logical interest in ensuring that prison staff could see the guards every thirty minutes during those checks but he did but the only thing he contested was the level of lighting in that so he'd called an expert that had never been to a prison or a jail other than yes and knew he didn't introduce any of the opinions that are being cited on appeal none of that information was before the trial court and she concluded correctly that based on that there was a lack a lack of evidence that there was any lower level of lighting that would serve the s m u purpose kenan did not establish that twenty four hour lighting in a prison with a penal logical and interest violates the amendment we know that because schapelle says that schapelle is a qualified immunity case but it says that keenan did not establish twenty four hour lighting that serves logic a logical interest by a white eighth amendment and if you go back and look at keenan there was no piano logical interest advanced here there is a clear pima logical interest that mr granting himself agreed with in terms of the twenty four hour lighting finally in terms of the standing issue i'll just briefly address that there were two i think problems with mr gronings standing trial first of all he had failed to show any injury or sufficient likelihood of being farmed being harmed in the future and that's even with the trial court concluding that he may be placed in the s m u again due to the changes in levels of lighting due to the provision of sleep masks there was no evidence that mr granting would be harmed in the same way if he was placed in the  the relief that they were requesting in the trial court was not and would not have given him any actual relief in the trial court what the new scope of the injunction that they sought was that in any future confinement of mr granting relief or not of that injunction would not provide mr granting any practical relief i just clarify one thing because there's different measurements as you know used for the lighting that sometimes get mixed a man i believe you referred to seventy one and or maybe it  was your colleague where the state says well it's somewhere between three and six point five and then you said that the five point nine fits within this standard and the five point nine foot candles that you're referring to is that the current level that's the average current level the average current level yes that and that's on your three forty is actually a grid prepared by plaintiff's expert when he visited us and you sell and made the comparison talks about the various levels of lighting in that cell as well as mr rapp point of sexpert testified at trial that the average we talked to it was five point nine and what was the readings from two thousand and ten from the electrician or we heights but he only took two readings so i don't think that those two were and what were those readings those readings were he took two readings with two different meters one was ten point nine with the demo sleeve and then one was twelve point four with the demo sleeve but those were just at one spot on the on the bed in the cell yeah well that is but and that's my recollection of what we knew from the first time around but obviously in the past they were higher because there's undisputed that the person has reduced the lighting level so when you say five point nine average now that's obviously lower than it was before how high it was before  i just heard you say let me make sure i understood you ash before we could just clarify that though because the testimony of seventy one which is that it's between three and six or six point five relates to which period that testimony and seventy one the three to six point five that's his compared or that's not referring to the average liking that there are first just his opinion about what a comparable level of whatever level would be in the health care very very let him right ok and i don't have a record citation but that's my recollection and well i can i can hear the way from your opposing counsel if that if he disagrees and just just to clarify you know you mentioned damages but at this point the damages claims have been dismissed or it's only  seventy one of the record for the for his expert's testimony about three foot candles the six point five foot candles in health care facilities in critical care facilities i would note that on page seventy two the very next sentence i'm not an expert on whether or not this should be similar to health care or critical care so the expert himself the claimed even the comparisons that he was making but even assuming that the five point nine general foot candles is the appropriate measure that's still nearly twice what the one of the measures offered by the state's expert is and that's for general health care the six point five is for critical care and again there is no evidence in this case that my client required that level of scrutiny and as this court held in granting one remained that in order to be legitimate a peano logical interest has to apply specifically to the prisoner in this case the trial court judge relied on testimony from the finn it miller stout and william stockwell that it was just general safety precautions those were the reasons mr miller stout testified repetitively that the reason you were sent to the s m u did not matter that testimony flies and in the face of the burden this court placed on the state and it was the it was what it was exactly what this trial court accepted despite this court's clear command i need to go back to something that continues to nag at me and that's the district court's conclusion  that your client has failed to prove any causation of harm to him based on the fact she doesn't believe him now so let me start and then i was given three reasons why you're opposing counsel as to why she could legitimately conclude that she wasn't going to believe him and number one was that he had a window in his cell so when he says i couldn't tell day from night that can't can't be right was infected and is there in the record that there was a window to the outside in his cell  towel because he also testified that he's not allowed to cover his entire face he's only allowed to cover resides because we cover his face the prison guards knock on the door and say hey i need to see your face ok and then the third is the light seepin all counsel on behalf of the court i know that it's always appreciated also by the attorney general it's easier for the briefing and for the argument so we appreciate your contribution to the pro bono program i also appreciate the state attorney general being here the case of granting vs maggie miller stout submit