Petition for Writ of Certiorari — Sisney v. Reisch

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Supreme ( us.

09-821 JAN 8- 2010

No. _

OFFICE OF THE CLERK

In the

Supreme Court of the United States

CHARLES E. SISNEY, Petitioner,

TIM REISCH, ET AL., Respondents,

AND

UNITED STATES OF AMERICA, Intervenor.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

PETITION FoR A WRIT OF CERTIORARI

Richard L. Johnson Kathryn M. Davis

300 North Dakota Avenue Counsel of Record

Suite 406 Peter R. Afrasiabi

Sioux Falls, SD 57104 c/o CHAPMAN UNIVERSITY

Telephone: (605) 338-2626 SCHOOL OF LAW

APPELLATE LITIGATION CLINIC

One University Drive

Orange, CA 92866

Telephone: (714) 628-2504

QUESTIONS PRESENTED

Section 3 of the Religious Land Use and

Institutionalized Persons Act (RLUIPA), 42 U.S.C. §

2000cc-1, prohibits state governments from imposing

substantial burdens on prisoners’ rights of free

religious exercise, even if such burdens result from a

rule of general applicability. Section 3 of RLUIPA was

enacted pursuant to the Spending Clause, U.S. CONST.

art. I, § 8, cl. 1, and RLUIPA creates an express

private cause of action to “obtain appropriate relief

against a government.” 42 U.S.C. § 2000cc-2. In

imposing that condition, Congress expressly defined

the term “government” to include the states, state

agencies and instrumentalities and state officials. 42

U.S.C. § 2000cc-5(4)(A)(i),Gi). The Fourth, Fifth,

Eighth and Eleventh Circuits have concluded that by

accepting federal correctional funds, states consent to

federal court jurisdiction for at least some form of

relief. The difficult and divisive question is whether

RLUIPA’s express cause of action for appropriate

relief effectuates a waiver of the states’ Eleventh

Amendment immunity against suits for monetary

damages arising under Section 3.

The Civil Rights Remedies Equalization Act

(CRREA), 42 U.S.C. § 2000d-7, expressly provides that

states shall not be immune under the Eleventh

Amendment from suits in federal court for violations of

four enumerated antidiscrimination statutes, as well as

the “provisions of any other Federal statute prohibiting

discrimination by recipients of Federal financial

assistance.” 42 U.S.C. § 2000d-7(a)(1). This Court has

observed that CRREA, which expressly provides for

remedies both at law and in equity, 42 U.S.C. § 2000d-

7(aX(2), is an unambiguous waiver of the states’ Eleventh

Amendment immunity.

The questions presented are:

1. Whether RLUIPA’s express cause of

action coupled with CRREA’s explicit waiver language

is sufficient to permit monetary awards against states.

Put differently, do RLUIPA and CRREA furnish clear

notice that states accepting federal funds could be

subjected to private damages or, instead, as the Kighth

Circuit held, is Congress constitutionally required to

expressly and unequivocally impose liability for

damages in the text of its Spending Clause legislation?

2. Whether CRREA’s unambiguous waiver

of Eleventh Amendment immunity extends to

government-imposed substantial burdens on religious

exercise pursuant to Section 3 of RLUIPA or, instead,

as the Eighth Circuit held, is CRREA limited to

provisions that expressly and unequivocally reference

the term “discrimination” in the statutory text?

3. Whether this Court’s requirement that a

waiver of federal sovereign immunity expressly and

unambiguously extend to include monetary damages

applies with equal force to determine whether a state

federal funding recipient has knowingly and voluntarily

waived its Eleventh Amendment immunity in the face

of settled law and clearly expressed conditions?

4. Whether the Eleventh Amendment

requires Congress to expressly specify each and every

form of discrimination in Spending Clause legislation in

order to effectuate a waiver pursuant to CRREA?

111

LIST OF PARTIES

Petitioner is Charles E. Sisney, an inmate at the

South Dakota State Penitentiary.

Respondents, in their individual and officia!

capacities, are Tim Reisch, Secretary of Corrections for

South Dakota; Douglas L. Weber, Chief Warden for the

Department of Corrections of South Dakota; Dennis

Block, Associate Warden for the South Dakota State

Penitentiary; Jennifer Wagner a/k/a Jennifer Lane,

Cultural Activities Coordinator for the South Dakota

State Penitentiary; and, Daryl Slykhuis, Interim

Warden for the South Dakota State Penitentiary.

Intervenor is the United States of America.

James Dean Van Wyhe, an appellee in the

circuit court proceedings, is not a petitioner here.

OPINIONS BELOW

JURISDICTION

TABLE OF CONTENTS

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED..........::cccsseesesseees

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STATEMENT OF THE CASE,Q.u0.w.... cece ceceeeeesseeeeeee

REASONS FOR GRANTING THE WRIT

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ITT.

CONCLUSION

THERE IS A DIRECT AND

IRRECONCILABLE CONFLICT

AMONG THE CIRCUITS ON

WHETHER RLUIPA

CONSTITUTIONALLY

EFFECTUATES A WAIVER OF

ELEVENTH AMENDMENT

IMMUNITY FROM MONETARY

IIE sriiscisssesuindinsvnctensienninaneiapaibiasninslbetebinin

THE EIGHTH CIRCUIT'S DECISION

CONTRAVENES BARNES AND

FRANKLIN, AND OTHER

DECISIONS OF THIS COURT....................

THE EIGHTH CIRCUIT

CONTRAVENES THIS COURT'S

DECISIONS GOVERNING FREE

EXERCISE AND DISCRIMINATION,

AND OTHER CIRCUIT COURT

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PETITIONER’S APPENDIX

COURT OF APPEALS’ OPINION...... Pet. App. la

DISTRICT COURT'S OPINION...... ..Pet. App. 41a

TABLE OF AUTHORITIES

Page(s)

CASES

Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy,

is eseseusnebisbonninniel 30

Atascadero State Hosp. v. Scanlon,

| TER eee 29

Barbour v. Washington Metro. Area Transit Auth.,

Be AL, UII, BIE Pacocssissscesnsscssesssecsecoszccssces 33

Barnes v. Gorman,

I inane aradeenicenanansanenninin passim

Benning v. Georgia,

391 F.3d 1299 (11th Cir, 2004)............eceeseesees 22, 25, 38

Cardinal v. Metrish,

564 F.3d 794 (6th Cir. 2009)..........cccscsscessceseeseceeees 21, 26

Charles v. Verhagen,

BES Fe SOE CIE Cir, BOOB) .....ccrrcrrcescccscecccscccsceneee 13, 38

Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah,

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City of Boerne v. Flores,

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Cruz v. Beto,

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Cutter v. Wilkinson,

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Cutter v. Wilkinson,

i IID cissscsnninrerssrsconncscenssnscessesesasiinece passim

Vil

TABLE OF AUTHORITIES (continued)

Page(s)

Davis v, Monree County Ba. of Educ.,

Ey Tae SU ITI sisi ccseieistieeseinetesinatesisininnceninndadeniaineaten 32, 39

Employment Div., Dep’t of Human Resources of Or. v.

Smith,

rE TINIE, ET ATID cicoecnumscchesisniinipbedtnennucsedeikesurassennanasae

Franklin v. Gwinnett County Pub. Sch.,

ets tte aD sccosatinsinissisniiianithentatabeseiiansaeinenntons passim

Garrett v. Univ. of Ala. at Birmingham Bd. of Trs.,

344 F.3d 1288 (11th Cir. 2008).................ccsccsscscsescseeeees 25

Gomez-Perez v. Potter,

ces eas ME ls ie NE GPE wcinensscccnsciscossccsssaccncsons 38

Griggs v. Duke Power Co.,

fT an eee ne RRC 38

Jackson v. Birmingham Bd. of. Educ.,

I i ac len esc abialeonnuaes 38

Koger v. Bryan,

Be Fe PL PERE GU, IOI seccinscnnsccsencicsosessosetesanccecsones 37

Lane v. Pena,

laa passim

Lovelace v. Lee,

Oe re Fe ee Gai SUED cecenevecsenscnnecscocesonsoonnnctanenies 37

Madison v. Virginia,

AT4 FB 118 (GEN Cir. BOOG),..ccccccccccccscccccccccccccccceee passim

Mayfield v. Texas Dep't of Crim. Just.,

529 F.3d 599 (5th Cir. 2008) .............. ART OS 37

Vill

TABLE OF AUTHORITIES (continued)

Page(s)

Mayweathers v. Newland,

314 F.2d 1062 (9th Cit. 2002) ..........c.cccssssscsssssseseees 13, 38

Pennhurst State Sch. & Hosp. v. Halderman,

acetal sesseeDDy BL, BB, BD

Ricci v. DeStefano,

eg Ey is Be COD wecececscececcecenencsensscnesense 36

Shea v. County of Rockland,

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Sherbert v. Verner,

ns scaenpeseunnsnnenl 36

Smith v. Allen,

502 F.8d 1255 (11th Cir. 2007) .........scccccssrsserscsees passim

Sossamon v. Texas,

560 F.3d 316 (5th Cir. 2009)..................c-cscsseeeeee 21, 25, 26

Sullivan v. Little Hunting Park, Inc.,

Truth v. Kent Sch. Dist.,

542 F.3d 684 (Sth Cir. 2008) ........cccccsscoscrssccesscsceseccseees 37

Turner v. Safley,

I ic cetsstiictabane 34, 37

United States v. Nordic Village,

ian onacanesiesannbaneniennesian 22, 26

Warsoldier v. Woodford,

SES Fe See CG CAL. BO0D) crccccccccccccovceccssoncccesvosoresesces 37

Webman v. Fed. Bureau of Prisons,

Be re ee eG i icneriecsesinssencsscscsesscesccnsnsees 23

TABLE OF AUTHORITIES (continued)

Page(s)

STATUTES

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CONSTITUTIONAL PROVISIONS

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OPINIONS BELOW

The court of appeals’ opinion is reported at 581

F.3d 689. Pet. App. la. The district court’s opinion is

reported at 533 F. Supp. 2d 952. Pet. App. 4ia.

JURISDICTION

The court of appeals’ judgment was entered on

September 10, 2009. On December 1, 2009, Justice

Samuel A. Alito extended the time to file the petition

for writ of certiorari until January 8, 2010. This Court

has jurisdiction pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

@ Constitutional Provisions

The Eleventh Amendment to the United States

Constitution provides:

The Judicial power of the United States

shall not be construed to extend to any

suit in law or equity, commenced or

prosecuted against one of the United

States by Citizens of another State, or by

Citizens or Subjects of any Foreign State.

U.S. CONST. amend. XI.

The Spending Clause in Article I of the United

States Constitution provides, in part: “The Congress

shall have the Power To .. . provide for the common

Defence and general Welfare of the United States.”

U.S. Const. art. I, § 8, cl. 1.

II. Statutory Provisions

Section 3 of the Religious Land Use and

Institutionalized Person Act (RLUIPA), 42 U.S.C. §

2000cc-1, titled “Protection of religious exercise of

institutionalized persons” provides:

(a) General rule

No government shall impose a substantial

burden on the religious exercise of a

person residing in or confined to an

institution, as defined in section 1997 of

this title, even if the burden results from

a rule of general applicability, unless the

government demonstrates that.

imposition of the burden on that person—

(1) is in furtherance of a compelling

governmental interest; and

(2) is the least restrictive means of

furthering that compelling

governmental interest.

(b) Scope of application

This section applies in any case in

which—

(1) the substantial burden is

imposed in a program or activity

that receives Federal financial

assistance. . . .

‘ee * *

Section 4 of RLUIPA, 42 U.S.C. § 2000cc-2,

titled “Judicial relief’ provides, in part:

(a) Cause of action

A person may assert a violation of this

chapter as a claim or defense in a judicial

proceeding and obtain appropriate relief

against a government. Standing to assert

a claim or defense under this section shall

be governed by the general rules of

standing under article III of the

Constitution.

**e ee &

Section 8 of RLUIPA, 42 U.S.C. § 2000cc-5,

titled “Definitions” provides, in part:

(4) Government

The term “government”

(A) means—

(i) a State, county,

municipality, or other

governmental! entity

created under the authority

of a State;

(ii) any branch, department,

agency, instrumentality, or

official of an entity listed in

clause (i); and

(iii) any other person acting

under color of State law. ...

x“ ee

The Civil Rights Remedies Equalization Act

(CRREA), 42 U.S.C. § 2000d-7, provides, in part:

(a) General provision

(1) A State shall not be immune

under the Eleventh Amendment of

the Constitution of the United

States from suit in Federal court

for a violation of section 504 of the

Rehabilitation Act of 19738 [29

U.S.C.A. § 794], title IX of the

Education Amendments of 1972

[20 U.S.C.A. §§ 1681 et seq.], the

Age Discrimination Act of 1975 [42

U.S.C.A. §§ 6101 et seq.], title VI

of the Civil Rights Act of 1964 [42

U.S.C.A. §§ 2000d et seq.], or the

provisions of any other Federal

statute prohibiting discrimination

by recipients of Federal financial

assistance.

(2) In a suit against a State for a

violation of a statute referred to in

paragraph (1), remedies (including

remedies both at law and in

equity) are available for such a

violation to the same extent as

such remedies are available for

such a violation in the suit against

any public or private entity other

than a State.

see 6

STATEMENT OF THE CASE

Factual Background

Enacted in September 2000 for the express

purpose of protecting religious liberty, the Religious

Land Use and Institutionalized Persons Act of 2000

(RLUIPA), 42 U.S.C. §§ 2000cc to 2000cc-5, represents

“the latest of long-running congressional efforts to

accord religious exercise heightened protection from

government-imposed burdens.” Cutter v. Wilkinson,

544 U.S. 709, 714 (2005). By its terms, RLUIPA

broadly protects fundamental rights of free religious

exercise to the greatest extent the Constitution allows,

and categorically prohibits the imposition of

government-imposed substantial burdens on religious

liberty. 42 U.S.C. § 2000cc-3(g), § 2000cc-1(a)(1)-(2).

The only exception to RLUIPA’s expansive protective

reach is when the government demonstrates that the

burden it has imposed furthers a_ compelling

governmental interest, and does so by the least

restrictive means. 42 U.S.C. § 2000cc-1(a)(1)-(2).

Section 3 of RLUIPA protects fundamental

rights of religious exercise of institutionalized persons:

“No government shall impose a substantial burden on

the religious exercise of a person residing in or

confined to an institution, ... even if the burden results

from a rule of general applicability,” unless the

government proves that the burden furthers a

“compelling governmental interest” and does so by the

least restrictive means.” 42 U.S.C. § 2000cc-1(a)(1)-(2).

By its terms, Section 3 of RLUIPA applies with

equal force to prohibit substantially burdensome

discrimination and disparate treatment, as well as

government-imposed substantial burdens resulting

from rules of general applicability. Jd. Substantial

burdens on the religious exercise of institutionalized

persons must therefore withstand the most rigorous of

scrutiny, even if they result from facially neutral rules.

As this Court has recognized, Section 3 governs

state-run institutions “in which the government exerts

a degree of control unparalleled in civilian society and

severely disabling to private religious exercise.”

Cutter, 544 U.S. at 720-21; 146 Cong. Rec. S7774, S7775

(“Institutionalized residents’ right to practice their

faith is at the mercy of those running the institution.”)

RLUIPA thus “alleviates exceptional government-

created burdens on private religious exercise” and

protects persons who, “unable freely to attend to their

religious needs” are “dependent on the government’s

permission and accommodation for exercise of their

religion.” Cutter, 544 U.S. at 720-21.

Enacted pursuant to the Spending Clause, U.S.

Const. art. I, § 8, cl. 1, and in response to this Court’s

decision in City of Boerne v. Flores, 521 U.S. 507, 532-

36 (1997), Section 3 prohibits the imposition of a

substantial burden on religious exercise by the

government “in a program or activity that receives

Federal assistance.” 42 U.S.C. § 2000cc-1(b)(1).

RLUIPA provides a broad, express private right of

action to enforce its substantive protections, and “to

obtain appropriate relief against a government.” 42

U.S.C. § 2000cc-2(a). The term “government” is

broadly defined to include:

(i) a State, county, municipality or other

governmental entity created under the

authority of a State;

(ii) any branch, department, agency,

instrumentality, or official of an entity

listed in clause (i); and

(ii) any other person acting under State law.

Id. § 2000cc-5(4)(A).

RLUIPA expressly contemplates that private

enforcement actions may be brought in federal court.

42 U.S.C. § 2000cc-2(a) (standing to bring private cause

of action governed by article III of the Constitution);

Id. § 2000cc-2(c) (restricting full faith and credit for

adjudication of some claims in non-federal forum).

Since RLUIPA’s enactment, institutionalized

persons across the country have invoked Section 3 in

private enforcement actions, seeking redress for

government-imposed burdens on their fundamental

rights of free exercise. Several circuit courts of

appeals have construed RLUIPA’s broadly-crafted,

express remedial provision, and the constitutional

scope of RLUIPA’s substantive protections. Every

circuit court to have considered the question has

concluded that Section 3 constitutes a valid exercise of

Congress’ Spending Clause power, and several circuits

have determined that, by voluntarily accepting federal

correctional funds in light of RLUIPA’s clearly

expressed conditions, the states have consented to

federal jurisdiction for at least some form of relief.

The difficult and divisive question has been

whether RLUIPA’s express cause of action for

appropriate relief against the states is sufficiently clear

to effectuate a knowing waiver of Eleventh

Amendment immunity from monetary damages. On

this fundamental question of constitutional and federal

law, the circuit courts are deeply and profoundly split,

on both the answer and doctrinal approach. The

Fourth, Fifth, Sixth, Seventh and Eighth Circuits have

declined to find consent absent an express textual

waiver of immunity that unambiguously extends to

monetary damages. The Eleventh Circuit, employing

traditional rules ‘of construction derived from this

Court’s Spending Clause jurisprudence, has _ not

required an explicit reference to money damages,

instead finding knowing consent to all appropriate

remedies based on the voluntary acceptance of federal

funds in the face of RLUIPA’s broad provision for

private enforcement and settled presumptions of law.

The Eighth Circuit, here, rejected the Eleventh

Circuit’s approach, concluding that nothing short of an

unequivocal expression of elimination of immunity from

private damages in the statutory text could effectuate

waiver. The court further refused to find waiver under

the Civil Rights Remedies Equalization Act (CRREA),

42 U.S.C. § 2000d-7(a), concluding that absent an express

textual reference to “discrimination,” Section 3 was not a

federal statute prohibiting discrimination by recipients

of federal funds within the scope of that Act. In so

finding, the Eighth Circuit solidified a direct and

irreconcilable circuit split, and departed from this

Court’s jurisprudence in profoundly consequential ways.

Petitioner Charles Sisney (Sisney) is an inmate

at the South Dakota State Penitentiary, where he is

confined for life and practices the Jewish faith. Sisney

brought this action against South Dakota prison

officials in their individual and official capacities

asserting claims of governmental interference with his

rights of free religious exercise under RLUIPA and

the Constitution.! Pet. App. 48a46a. Sisney invoked

Section 3 of RLUIPA, challenging the prison officials’

repeated denials of his requests for religious

accommodation on the basis that the unjustified denials

substantially burdened his fundamental rights of free

religious exercise. Over a period of years, Sisney made

several formal requests, which were denied.

Of relevance here, Sisney sought to celebrate

the seven-day Jewish festival of Sukkot, in accordance

with the dictates of his faith, by taking his meals

outdoors in a succah booth. Pet. App. 82a-88a. Sisney

did not have a succah booth, and he did not ask the

prison to acquire one. Rather, inmates at another

South Dakota prison donated a small booth for Sisney

and other Jewish inmates to use.2 Pet. App. 82a.

—_—

Sisney also claimed retaliation and constitutional

violations, which are not at issue here. Pet. App. 38a-39a.

2 A succah is a three-sided covered booth, in which

individuals who practice Judaism eat their meals during Sukkot, a

religious festival of thanksgiving commemorating the temporary

shelter of the Jews during their wandering in the wilderness. Pet.

App. 33a, 82a.

Sisney requested to use the booth during the

week of Sukkot in 2003, but his request was denied.

Pet. App. 82a-83a.

In 2004, Sisney renewed his request, and again

asked to celebrate Sukkot by taking his lunch meals

outdoors in the succah for seven days. Pet. App. 88a.

The prison refused on grounds of security, and that

prison policy prohibits the transfer of property

between inmates. Pet. App. 83a-85a. In denying

Sisney’s request, the associate warden compared the

succah to the prison’s Native American sweatlodge,

which is maintained in the recreation yard and used

year-round by hundreds of Native American inmates.

According to the warden, the succah posed a security

risk, in part, because inmates are shielded from view

and, unlike the sweatlodge (a fully-enclosed, permanent

structure), the succah is temporary and can be easily

destroyed. Pet. App. 84a. In lieu of allowing the

succah, the prison granted the Jewish inmates 30

minutes during each day of Sukkot to gather in the

Phone Room to recite blessings. Pet. App. 85a.

Sisney also requested to celebrate in the succah

during the week of Sukkot in 2005, and again in 2006.

Pet. App. 85a. Both requests were denied.

Independently, Sisney sought additional time to

gather with other Jewish inmates for group Torah,

Kabalistic and Hebrew language studies. Pet. App.

9la-92a. Sisney requested more time for his religious

studies because, he asserted, the regularly scheduled

twice-weekly services were inadequate because they

were dedicated to worship, and left no time for group

study of religious texts. Pet. App. 9la. Sisney’s

request noted that other religious groups were allowed

significantly more time for weekly services, including 6

periods per week for Native Americans, 10 periods per

week for Catholics and 8 periods per week for

Christians. Pet. App. 91a. When the associate warden

denied Sisney’s request, he did so by stating: “You

have ample time during Shabbat Service to study

Torah.” Pet. App. 92a.

Finally, Sisney sought to use and possess a tape

player so that he could study Hebrew in his cell.? Pet.

App. 97a-98a. Sisney’s request was denied on the basis

that no inmates of any faith are permitted to possess

tape players in their cells. /d.

Sisney engaged the prison grievance process,

and informed prison policymakers about the

discriminatory and burdensome treatment Sisney

believed he received. Pet. App. 50a. Sisney’s requests

for administrative remedy were denied, and no formal

action was taken to ensure his religious rights were not

unlawfully restricted. Pet. App. 50a-5la.

In response, Sisney brought this action in the

United States District Court for the District of South

Dakota challenging the denials as discriminatory and

substantially burdensome in violation of RLUIPA, and

seeking injunctive and monetary relief. Pet. App. 46a.

IT. District Court’s Opinion

The prison officials sought summary judgment

asserting qualified immunity and _ Eleventh

3 Sisney advanced other RLUIPA challenges, which are not

at issue here. Pet. App. 89a-102a.

Amendment immunity, and_ challenging the

constitutionality of RLUIPA on various grounds. Pet.

App. 42a-43a. The United States intervened for the

purpose of opposing the constitutional challenge. The

district court denied summary judgment, upholding the

constitutionality of RLUIPA as a valid exercise of

Congress’ Spending Clause power, and rejecting the

balance of the officials’ constitutional claims.‘ Pet.

App. 102a-112a. The court granted summary judgment

on the individual capacity claims, finding that RLUIPA

was enacted pursuant to the Spending Clause; thus,

Congress was precluded from subjecting non-recipients

of federal funds to private liability. Pet. App. 58a-61a.

On the Eleventh Amendment question, the

district court denied sur~ary judgment, concluding

that RLUIPA’s remedial provision for Na

relief” expressly permits recovery of monetary

damages and, that by accepting federal correctional

funds, South Dakota waived its immunity from suits for

monetary damages under CRREA. Pet. App. 57a-58a.

In a comprehensive and detailed opinion, the

district court examined this Court’s Spending Clause

jurisprudence and considered the split in authority

between the Fourth and Eleventh Circuits on the

question whether the text of RLUIPA’s private right

of action is sufficiently clear to effectuate a waiver of

Eleventh Amendment immunity from suits for

damages. The court weighed the Fourth Circuit’s

approach, and agreed that mere participation in a

federal funding program is insufficient to waive

4 The district court upheld RLUIPA against other

constitutional challenges not relevant here. Pet. App. 112a

immunity. Pet. App. 64a-66a. The court concluded that

RLUIPA’s reference to “appropriate relief’ failed to

unambiguously require waiver of Eleventh

Amendment immunity for monetary damages as a

condition of accepting funds. Pet. App. 67a-70a.

Finding the absence of an unequivocal waiver in

the text of RLUIPA was not dispositive on the

question of immunity, the district court considered

whether RLUIPA falls within the scope of CRREA -a

statute, which explicitly declares that a State shall not

be immune under the Eleventh Amendment from suits

for violations of a federal statute prohibiting

discrimination by federal funding recipients. In

rejecting the Fourth Circuit’s strict construction

requiring an express’ textual reference’ to

“discrimination,” the district court found RLUIPA was

a statute prohibiting discrimination by federal funding

recipients under CRREA. Pet. App. 70a-72a.

Recognizing that “(t]he right to exercise one’s

religion is clearly a fundamental freedom,” and

observing that Congress found “prison officials were

discriminating against prisoners who sought to

exercise their religious beliefs,” the district court

concluded that RLUIPA: was enacted, in part, “to

prohibit discrimination by prison officials against

prisoners who desire to exercise their religious

beliefs.” Pet. App. 7la. In so finding, the court

invoked the Seventh Circuit’s observation that:

“RLUIPA follows in the footsteps of a long-standing

tradition of federal legislation that seeks to eradicate

discrimination and is ‘designed to guard against unfair

bias and infringement of fundamental freedoms.” Pet.

App. 7la (quoting Charles v. Verhagen, 348 F.3d 601,

607 (7th Cir. 2003) (quoting Mayweathers v. Newland,

314 F.2d 1062, 1066-67 (9th Cir. 2002)). Thus, according

to the court, South Dakota waived its immunity from

monetary damages under CRREA by accepting federal

funds. Pet. App. 72a.

Turning to the scope of the waiver, the district

court examined whether RLUIPA authorizes

monetary damages. Acknowledging that the Fourth

and District of Columbia Circuits have recognized that

RLUIPA could be read to extend to damages, the

court agreed with the Eleventh Circuit’s decision in

Smith v. Allen, 502 F.3d 1255, 1270 (11th Cir. 2007),

that in light of the presumption this Court accords such

remedial language, RLUIPA’s express right of action

“to obtain appropriate relief against a government” is

broad enough to encompass the right to recover

monetary damages for statutory violations. Pet. App.

72a-78a. In so doing, the court adopted the Eleventh

Circuit’s reasoning that in using the broad, general

language of “appropriate relief’ in RLUIPA, Congress

was aware of the “presumption in favor of making all

appropriate remedies available to the prevailing

party,” established by this Court in Franklin v.

Gwinnett County Pub. Sch., 03 U.S. 60, 73 (1992), and

its progeny. Pet. App. 73a (citing Smith, 602 F.3d at

1270-71). Congress could have, but chose not to, limit

remedies to injunctive relief. In light of the Frank/in

presumption, and absent an expressed contrary intent,

the court concluded that RLUIPA encompasses claims

for monetary relief. Pet. App. 73a.

The court further concluded that even if

RLUIPA lacked an express, broad remedial provision,

this Court’s decision in Barnes v. Gorman, 536 U.S. 181,

187 (2002), authorizes recovery of compensatory

damages. According the district court, RLUIPA was

| ‘

enacted under Congress’ Spending Clause power and,

in discussing the permissible scope of remedies for

which funding recipients may be held liable in

Spending Clause legislation, this Court observed:

A funding recipient is generally on notice

that it is subject to those remedies

traditionally available in suits for breach

of contract. Thus we have held that

under Title [X, which contains no express

remedies, a recipient of federal funds is

nevertheless subject to suit for

compensatory damages and injunction,

forms of relief traditionally available in

suits for breach of contract.

Pet. App. 73a-74a (quoting Barnes, 536 U.S. at 187).

Following Barnes, the district court concluded

that where Congress did not expressly preclude

monetary damages in RLUIPA, South Dakota was on

notice that it is subject to that remedy “because an

award of compensatory damages is a form of relief

traditionally available in suits for breach of contract.”

Pet. App. 74a.

Turning to the merits of the RLUIPA claims,

the court denied summary judgment in relevant part,

finding Sisney demonstrated a substantial burden on

his free exercise rights regarding the prison officials’

denial of his requests to celebrate Sukkot in the succah,

engage in group religious text studies, and use a tape

player in his cell for Hebrew language studies. Pet.

App. 85a-98a. In rejecting the prison officials’

proffered justifications, the district court questioned

the neutrality of the stated interest and noted evidence

of unequal treatment. Pet. App. 86a-88a (questioning

legitimacy of security concerns asserted as grounds for

denying succah where Native American sweatlodge

posed similar, or greater threat); id. 92a-94a (factual

issues where non-Jewish religions were provided more

worship time than Jewish inmates, and were allocated

separate time for group religious text studies).

Regarding the tape player, the court rejected

the contention that the facially neutral policy justified

the denial because RLUIPA prohibits substantial

burdens on religious exercise, even if they result from

rules of general applicability. Pet. App. 97a-98a.

III. Eighth Circuit’s Opinion

The Eighth Circuit affirmed the district court’s

conclusion that RLUIPA is a constitutional exercise of

Congress’ Spending Clause power, but reversed the

denial of summary judgment on Eleventh Amendment

grounds. Pet. App. 22a-30a. The United States

intervened to support RLUIPA’s constitutionality.

In finding Section 3 constitutional, the Eighth

Circuit determined that a state pnson receiving funds

under RLUIPA does so on two conditions: (1) that

prison officials not impose a substantial burden on an

inmate’s free exercise unless the burden is justified by a

compelling state interest achieved through the least

restrictive means, and (2) that the state must submit to

judicial proceedings for “appropriate relief’ to enforce

RLUIPA. Pet. App. 16a. In so concluding, the Eighth

Circuit found that RLUIPA unambiguously conditions

federal funds on the states’ consent to provide

heightened religious protection to inmates, and to submit.

to private enforcement actions. Pet. App. 17a-19a.

Recognizing Congress’ interest in protecting inmates’

religious exercise and power under the Spending Clause

provide greater protection for religious exercise beyond

what the Constitution requires, the Eighth Circuit

joined the Fourth, Fifth, Sixth, Seventh, Ninth and

Eleventh Circuits in upholding the constitutionality of

RLUIPA. Pet. App. 22a-23a.

In considering the Eleventh Amendment

challenge, the Eighth Circuit expressly acknowledged

Congress’ power under the Spending Clause to condition

federal funds on the states’ waiver of sovereiyn

immunity, and again recognized that, in RLUIPA,

Congress conditioned the acceptance of funds on the

states’ consent to “appropriate relief.” Pet. App. 23a

25a. In so finding, the court reiterated that RLUIPA

expressly creates a private right of action “for at least

some form of relief” (Pet. App. 25a (quoting Madison v.

Virginia, 474 F.3d 118, 130 (4th Cir. 2006)), and that the

phrase “appropriate relicf,” is “broad enough to include

both injunctive relief and compensatory damages.” /d.

But while these conditions are suff..cntly clear to

overcome a Spending Clause challenge, the court

required that such language must also “unambiguously

extend|] to monetary claims” in order to effectuate a

waiver of Eleventh Amendment immunity. Pet. App.

25a. In adopting this rule, the Fighth Circuit relied on

Lane v. Pena, 518 U.S. 187, 192 (1996), a case in which

this Court, construing the sufficiency of Congress’

abrogation of the federal government’s sovercign

immunity stated: “Io sustain a claim that the

Government is liable for awards of monetary damages,

the waiver of sovereign immunity must extend

unambiguously to such monetary claims.” Jd The

Eighth Circuit did not purport to consider Barnes, or

this Court’s related Spending Clause jurisprudence.

Instead, the court relied exclusively on Lane — a

decision, which did not involve Spending Clause power

or the states’ knowing consent to statutory conditions,

and which the Eighth Circuit categorically characterized

as “reject{ing] any idea that sovereign immunity could

be waived by anything other than the ‘unequivocal

expression of elimination of sovereign immunity .. . in

statutory text.”” Pet. App. 26a-27a (quoting Lane, 518

US. at 192 (internal citations omitted). Thus, according

to the Eighth Circuit, notwithstanding that a state has

voluntarily consented to ‘adhere to RLUIPA’s

heightened substantive requirements and to submit to

private enforcement actions for appropriate relief, which

could include compensatory damages, (and

notwithstanding that such conditions are constitutionally

imposed), absent an unequivocal express textual

reference to monetary damages, that state’s consent

extends solely to injunctive relief.

In so finding, the Eighth Circuit acknowledged a

direct conflict among the circuit courts of appeals, which

has now become deeply entrenched, with the Fifth,

Sixth, Seventh and Eighth Circuits following the Fourth

Circuit’s decision in Madison v. Virginia, 474 F.3d at 130,

which, like the Eighth Circuit here, imported this

Court’s rule in Lane governing statutory abrogation of

the federal government’s sovereign immunity to

conclude that RLUIPA’s “appropriate relief’ language

“falls short of the unequivocal textual expression

necessary to waive the State immunity from suits for

damages.” Pet. App. 25a-26a (quoting Madison, 474

F.3d at 130 and citing circuit cases).

In further solidifying the circuit split, the Eighth

Circuit categorically rejected the Eleventh Circuit’s

decision in Smith v. Allen, 502 F.3d at 1271, which held

“that, absent an intent to the contrary, the phrase

‘appropriate relief in RLUIPA encompasses monetary

as well as injunctive relief,” and its concomitant reliance

on this Court’s decision in Franklin, 503 U.S. 60. Pet.

App. 26a. The Eighth Circuit acknowledged Frankiin’s

articulation of a presumption in favor of making a//

appropriate remedies available when Congress employs

broad remedial language in a Spending Clause statute,

but refused to extend that rule to the remedial language

in RLUIPA. According to the Eighth Circuit, Franklin

does not apply because it did not involve the question of

state sovereign immunity, and this Court had no

occasion to squarely consider whether statutory

language at issue was specific enough to effectuate a

knowing waiver. Pet. App. 26a-27a.

The Eighth Circuit, again following Madison,

applied the same rationale to conclude that Section 3 of

RLUIPA is not a “Federal statute prohibiting

discrimination by recipients of Federal financial

assistance” within the meaning of CRREA. Pet. App.

28a. Requiring an express textual reference to the word

“discrimination,” the court found that Section 3 does not

“unambiguously prohibit discrimination — it prohibits

substantial burdens on religious exercise, without regard

to discriminatory intent.” Jd. The court noted that

Section 2 of RLUIPA, in contrast to Section 3, expressly

prohibits discrimination and unequal treatment, and that

all the civil rights statutes enumerated in CRREA (Title

IX, Title VI, the Age Discrimination Act and the

Rehabilitation Act) reference discrimination as well.

Again, without considering Barnes or the clear notice

requirement applicable to Spending Clause legislation,

and without construing the substantive text of Section 3

and its strict scrutiny standard, the Eighth Circuit

concluded that “[aJbsent an unequivocal textual

indication that CRREA applies to Section 3,” CRREA

does not “effectuate a knowing waiver of sovereign

immunity from money damages on those claims.” Pet.

App. 29a-30a.

On the merits of the RLUIPA claims, the court of

appeals affirmed the district court’s denial of summary

judgment, finding that Sisney established that the denial

of his request to use a succah — “‘a mandatory part of the

Sukkot Festival’ and essential to the practice of

[Sisney’s] Jewish faith” imposed a substantial burden on

his religious exercise under RLUIPA. Pet. App. 33a-

34a. The court of appeals reversed summary judgment

on the two surviving claims for injunctive relief and

remanded for judgment in favor of the prison officials.

Pet. App. 34a-37a.

REASONS FOR GRANTING THE WRIT

I THERE IS A DIRECT AND

IRRECONCILABLE CONFLICT AMONG

THE CIRCUITS ON WHETHER RLUIPA

CONSTITUTIONALLY EFFECTUATES A

WAIVER OF ELEVENTH AMENDMENT

IMMUNITY FROM MONETARY DAMAGES

The Eighth Circuit’s sweeping conclusion that

Congress cannot constitutionally exercise its Spending

Clause power to condition federal funds on consent to

suits for monetary damages absent anything other than

an unequivocal expression of elimination of immunity

from damages solidifies an _ intractable and

irreconcilable conflict among the circuit courts of

appeals, which only this Court can resolve. In limiting

the scope of RLUIPA’s remedial provision, the Eighth

Circuit acknowledged the deeply entrenched split

among the circuits on this critical question, with the

Fourth, Fifth, Sixth and Seventh Circuits holding that

RLUIPA does not effectuate a waiver of immunity

against suits for monetary damages, and the Eleventh

Circuit holding that RLUIPA does effectuate a waiver.

Compare Cardinal v. Metrish, 564 F.3d 794 (6th Cir.

2009), Sossamon v. Texas, 560 F.3d 316 (5th Cir. 2009),

and Madison, 474 F.3d 118, with Smith, 502 F.3d 1255.5

5 Petitions for writ of certiorari are pending in two of these

cases — Sassamon v. Texas, Docket No. 08-1438, and Cardinal v.

Metrish, Docket No. 09-109. This Court invited briefing from the

Solicitor General to express the United States’ views in both cases.

In Madison, 474 F.3d at 129-32, the Fourth Circuit

construed RLUIPA to create an express private right of

action to obtain appropriate relief against the

government, including states, and determined that

because Virginia had clear notice of this condition, “(bly

voluntarily accepting federal correctional funds, it

consented to federal jurisdiction for at least some form of

relief.” Jd. at 130 (citing Benning v. Georgia, 391 F.3d

1299, 1306 (1ith Cir. 2004) (“[State] was on clear notice

that by accepting federal funds for its prisons, [it] waived

its immunity from suit under RLUIPA.”)). According to

the Fourth Circuit, however, that RLUIPA

unambiguously conditions federal funds on consent to

suit in federal court is insufficient to waive full immunity

absent an express textual reference to monetary relief.

The Fourth Circuit did not purport to consider

this Court’s decisional law governing Congress’ power to

effectuate a waiver a Eleventh Amendment immunity

from suit through clearly noticed conditions in Spending

Clause legislation, and it failed to expressly consider this

Court’s decisions in Franklin and Barnes. Instead,

relying exclusively on the rules that apply when

Congress waives the federal government’s sovereign

immunity, the Fourth Circuit required an unequivocal

textual waiver that extends unambiguously to monetary

claims. See id. at 131-82 (citing Zane, 518 U.S. at 192

(“To sustain a claim that the Government is liable for

awards of monetary damages, the waiver of sovereign

immunity must extend unambiguously to such monetary

claims.”); United States v. Nordic Village, 503 U.S. 30, 34

(1992) (refusing to imply waiver of federal immunity

from money damages absent an “unequivocal

expression” in text where statute could be read either to

include, or preclude damages); Webman v. Fed. Bureau

of Prisons, 441 F.3d 1022, 1026 (D.C. Cir. 2006) (finding

“appropriate relief’ provision of RFRA insufficient to

waive federal immunity from damages suits because the

“broad term” might include damages, or, plausibly,

might not)). The court concluded that because

“appropriate relief’ is susceptible of more than one

interpretation, it failed to constitute an unequivocal

textual waiver of immunity extending unambiguously to

money damages.§ Jd. at 132.

In Smith, 502 F.3d at 1269-71, the Eleventh

Circuit, noting the division of authority took an entirely

different approach and reached the opposite conclusion.

Following the rule in Frank/m, 503 U.S. at 68-69, that

absent express congressional intent to the contrary,

federal courts should presume the availability of a//

appropriate remedies, the Eleventh Circuit found

RLUIPA’s “appropriate relief’ provision broad enough

to encompass monetary damages and effectuate waiver.

The question presented in Franklin was whether the

6 Madison’s reliance on Shea v. County of Rockland, 810

F.2d 27, 29-30 (2d Cir. 1987) for the proposition that “appropriate

relief’ ordinarily includes injunctive and equitable relief,

contravenes the presumptions accorded by Franklin and Barnes,

and it could be misleading. The provision at issue in Shea

referenced “appropriate relief’ exclusively in terms of injunction

and reinstatement. In contrast, RLUIPA broadly authorizes,

without express or implied limitation, the private right to obtain

“appropriate relief’ against the states. The only limitations run

against the United States, whose remedies are expressly limited

to declaratory and injunctive relief. 42 U.S.C. § 2000cc-2(f).

implied right of action under Title 1X of the Education

Amendments of 1972, 20 U.S.C. § 1681 et seq., supported

a claim for monetary damages in light of the

longstanding rule that absent clear direction to the

contrary by Congress, federal courts have the power to

award any appropriate relief in a cognizable cause of

action brought pursuant to a federal statute. In finding a

right to damages, this Court noted the traditional rule

that “if a right of action exists to enforce a federal right

and Congress is silent on the question of remedies, a

federal court may order any appropriate relief.”

Franklin, 503 U.S. at 69.

Of particular significance in Franklin (although

not noted in Smith), was the fact that Congress enacted

CRREA (which expressly waived Eleventh Amendment

immunity from suits arising under Title IX) after this

Court implied a private right of action, but Congress

failed to expressiy limit the available remedies. Having

failed in the face of an implied right of action to abrogate

the traditional presumption in favor of any appropriate

relief, this Court presumed that Congress enacted

CRREA with the traditional presumption in mind.’

Franklin, 503 U.S. at 72-73; id. at 78 (Scalia, J.,

concurring) (stating CRREA was an “implicit

acknowledgement that damages are available.”).

Following Franklin, the Eleventh Circuit thus

presumed Congress was aware of the traditional

presumption when, in enacting RLUIPA, Congress

7 Notably, while CRREA references “remedies both at law

and in equity,” it does not unequivocally, or even expressly,

reference compensatory damages. 42 U.S.C. § 2000d-7(a)(2).

expressed no intent to limit the remedies for statutory

violations and, instead, employed broad language

authorizing private enforcement actions with the right to

obtain “appropriate relief.” Smith, 502 F.3d at 1270-71;

id. at 1276 n.12; see also Benning, 391 F.3d at 1305-06

(noting RLUIPA expressly defines “government” to

include states and state agencies; thus, “Georgia was on

clear notice that by accepting federal funds for its

prisons, Georgia waived its immunity from suit under

RLUIPA.”); id. at 1806 (quoting Garrett v. Univ. of Ala.

at Birmingham Bd. of Trs., 344 F.3d 1288, 1293 (11th Cir.

2003) (“Where Congress has unambiguously conditioned

the receipt of federal funds on a waiver of immunity, .. .

a state can [not] continue to accept federal funds without

knowingly waiving its immunity.”)).

In Sossamon, 560 F.3d 316, the Fifth Circuit,

noting the split in authority, sided with the Fourth

Circuit and concluded that “RLUIPA is clear enough to

create a right for damages on the cause-of-action

analysis, but, not clear enough to do so in a manner that

abrogates state sovereign immunity from suits for

monetary relief.” Jd. at 331. In finding that RLUIPA

was unclear regarding the scome of states’ liability for

violations, the Fifth Circuit adopted the rule in Madison

that waiver must textually and unambiguously extend to

monetary claims. In rejecting the Eleventh Circuit’s

rule, the Fifth Circuit summarily concluded that the

Franklin presumption “disappear[s}’ in the face of an

ambiguous provision involving immunity: “We may not

presume the [traditional rule] when we ask whether a

state knowingly waived its immunity from damages

when damages are not expressly provided.” Id. at 331.

The Fifth Circuit cited no decision from this Court, or

any other, limiting the scope and reach of F’ranklin.

In Cardinal, 564 F.3d 794, the Sixth Circuit,

noting the lack of consensus among the circuit courts,

surveyed the holdings of Madison, Smith and Sossamon

and ultimately sided with the Fourth Circuit to require

an “unequivocal expression” of liability for damages. Jd.

at 799-801. Invoking Lane and Nordic Village, the Sixth

Circuit required an unequivocal expression of waiver

against suits for monetary damages. In declining to

follow Frankiin, the Sixth Circuit stated: “The Supreme

Court has recognized that Franklin is not per se

applicable to all claims against a State, but only to claims

in which a State has expressly waived its sovereign

immunity.” Jd. at 800-01 (citing Lane, 518 US. at 196-

97). But Lane created no such rule as against states in

the Eleventh Amendment context, and it did not purport

to limit Franklin in cases where Congress creates an

express right of action to enforce a federal statute. See

id, at 197-98. Lane did not involve state defendants, or a

challenge to the scope of appropriate remedies. In

considering when the federal government expressly

consents to damages in a federal statute, Lane held:

“Where a cause of action is authorized against the

federal government, the available remedies are not those

that are ‘appropriate,’ but only those for which sovereign

immunity has been expressly waived.” Jd. at 196-97.

In Nelson, 570 F.3d 868, the Seventh Circuit,

noting the division of authority, sided with the Fourth

and Fifth Circuits. Turning Franklin on its head, the

Seventh Circuit agreed that by employing the phrase

“appropriate relief,” Congress necessarily foreclosed any

argument that RLUIPA waives immunity from

damages, and that the F’rank/in presumption simply does

not apply in the Eleventh Amendment context. The

Seventh Circuit summarily concluded: “damages must

be ‘expressly provided’ in the statute in order for a court

to find that a state has waived immunity to such suits.”

Id. at 884 (quoting Sossamon, 560 F.3d at 331). In

importing the express waiver requirement, the Seventh

Circuit, like its predecessors, failed to consider Barnes,

or this Court’s Spending Clause jurisprudence.

This Court should not tolerate a split among the

circuit courts on such a critical issue as the Eleventh

Amendment - particularly, where, as here, the

enforcement of a federal civil rights statute involving

fundamental rights of religious freedom is at issue.

The Eighth Circuit, here, in adopting Madison,

rejecting Smith and Franklin, and importing Lane to

create a categorical rule that Congress cannot effectuate

a waiver of monetary relief in Spending Clause

legislation absent an express unequivocal reference to

damages solidifies an entrenched and intractable conflict

among the circuit courts of appeals. This split in circuit

authority reflects profoundly disparate approaches on

the fundamental question of state sovereignty, and the

intersection between the Eleventh Amendment and

Congress’ Spending Clause power. The conflict is

irreconcilable, and cannot be _ resolved’ without

intervention by this Court. Uniformity and clarity on

the question of immunity are critical, particularly, given

RLUIPA’s long history and Congress’ repeated

attempts to constitutionally effectuate RLUIPA’s

intended purpose to broadly protect religious liberty.

The Eighth Circuit’s categorical rule requiring

express waivers for damages substantially limits the

scope of RLUIPA’s private right of enforcement and

potentially implicates all remedial Spending Clause

legislation that seeks to condition federal funding on

consent to private suits. This Court has not required

that Congress expressly reference monetary relief when

conditioning federal funds, nor expressed that a textual

reference to damages is necessary to secure states’

voluntary and knowing consent to suit. This Court has

not imported Lane to limit Congress’ Spending Clause

power vis-a-vis the states, or to alter its Eleventh

Amendment jurisprudence. -Nor has it repudiated

Franklin when construing the scope of the states’

consent to suit in Spending Clause programs. Yet,

circuit courts continue to adopt Madison and its progeny

without independent scrutiny or reservation.

The Eighth Circuit’s rule precludes damages for

any violation of RLUIPA, whether it arises under

Section 2 or Section 3, and regardless of whether an

intentional discriminatory violation of RLUIPA has been

established. If, too, individual capacity suits are indeed

foreclosed by the Spending Clause, institutionalized

persons subjected to discriminatory deprivations of

religious liberty, whose right to practice their faith is at

the mercy of the state, have no meaningful recourse

against state officials who, undeterred until the eleventh

hour, unilaterally render an inmate’s action moot.

Five circuits have acknowledged the division in

authority on this critical question, and this Court should

not tolerate continuing disparity and uncertainty. This

petition joins two others pending before the Court, each

seeking resolution on this important federal question.

This Court should heal the breach, and clarify whether

Congress is constitutionally required to expressly

reference damages in effectuating a waiver pursuant to

the Spending Clause, so that the lower federal courts

and, if necessary, Congress, can respond accordingly.

1. THE EIGHTH CIRCUITS DECISION

CONTRAVENES BARNES AND FRANKLIN,

AND OTHER DECISIONS OF THIS COURT

In requiring an unequivocal express textual

reference to monetary damages, the Eighth Circuit

directly contravened Barnes v. Gorman, 536 U.S. 181

(2002), and other decisions of this Court. It is true that a

state does not automatically waive its immunity merely

by accepting federal funds. But it is equally true that a

state’s acceptance of federal financial assistance in the

face of a condition clearly expressed by Congress may

give rise to a waiver of Eleventh Amendment immunity,

even in the absence of any express statement of waiver

by the state or its legislature. See Atascadero State

Hosp. v. Scanlon, 473 U.S. 234, 247 (1985).

This Court has long recognized Congress’ power

to impose conditions on states when it legislates

pursuant to the Spending Clause and, that unlike

legislation enacted under the Fourteenth Amendment,

Spending Clause legislation is much in the nature of a

contract. Pennhurst State Sch. & Hosp. v. Halderman,

451 U.S. 1, 17 (1981). “The legitimacy of Congress’

power to legislate under the spending power thus rests

on whether the State voluntarily and knowingly accepts”

the contract’s terms. Jd. When Congress imposes a

condition it must, of course, do so unambiguously. Jd.

The question in determining whether Congress

has unambiguously conditioned federal funds is whether

the statute “furnishes clear notice regarding the liability

at issue.” Arlington Cent. Sch. Dist. Bd. of Educ. v.

Murphy, 548 U.S. 291, 296 (2006). While states cannot

consent to conditions for which they are unaware or

unable to ascertain, liability will attach if, the state

official engaged in the funding process “would clearly

understand” the scope of the state’s obligations.’ Jd.

Still, this Court has routinely applied a contract-

law analogy in defining the scope of conduct for which

state funding recipients may be liable for monetary

awards, and in finding a damages remedy for private

enforcement actions under Spending Clause legislation.

See, e.g., Barnes, 536 U.S. at 186 (“We have repeatedly

characterized [Title VI] and other Spending Clause

legislation as ‘much in the nature of a contract: in return

8 This notice requirement, which applies where states

voluntarily participate in federal funding programs, requires

Congress to “manifest{] a clear intent to condition participation in

the programs funded under the [statute] on a State’s consent to

waive its constitutional immunity.” Atascadero, 473 U.S. at 247.

This is distinct from the “unequivocal expression” of an

“unmistakable congressional purpose” this Court requires when

Congress abrogates immunity of non-consenting states under the

Fourteenth Amendment, jd. at 239, 242-47, and from the test this

Court applies when states voluntarily through constitutional or

statutory provisions waive their immunity by “‘the most express

language or by such overwhelming implications from the text as

[will] leave no room for any other reasonable construction,” /d. at

239-40 (quoting Edelman v. Jordan, 415 U.S. 651, 673 (1974)).

for federal funds, the [recipients] agree to comply with

federally imposed conditions.” (quoting Pennhurst, 451

U.S. at 17)). The touchstone is notice: funding recipients

must have clear notice that they could be held liable.

In Barnes, this Court considered the general rule

stated in Franklin that “absent clear direction to the

contrary by Congress, the federal courts have the power

to award any appropriate relief” for violation of a federal

right, and F’anklin’s finding of a private damages

remedy. 536 U.S. at 184 (quoting Franklin, 503 U.S. at

70-71). Applying the contract-law analogy to determine

the proper scope of that remedy, this Court held that a

remedy is appropriate relief under Frank/in, “only if the

funding recipient is on notice that, by accepting federal!

funding, it exposes itself to liability of that nature.” /d.

at 187 (emphasis in original). The Court stated:

A funding recipient is generally on notice

that it is subject... to those remedies

traditionally available in suits for breach

of contract. ‘Thus we have held that

under Title IX, which contains no express

remedies, a recipient of federal funds is

nevertheless subject to suit for

compensatory damages, and injunction,

forms of relief traditionally available in

suits for breach of contract.

/d. (citations omitted) (emphasis added).

Here, the Eighth Circuit recognized that

RLUIPA unambiguously conditions federal funds on the

state’s consent to provide heightened religious

protection to inmates, and to submit to private

enforcement actions in federal court, and that the phrase

“appropriate relief,” is “broad enough to include both

injunctive relief and compensatory damages.” Pet. App.

25a. Based on this construction, and under #arnes,

Franklin and Pennhurst, a state has adequate notice that

it could be liable for damages for, af /east, an intentional

violation of RLUIPA. See, e.g., Davis v. Monroe County

Bd. of Educ., 526 U.S. 629, 642 (1999) (“Pennhurst does

not bar a private damages action under Title IX where

the funding recipient engages in intentional conduct that

violates the clear terms of the statute.”). In requiring an

express textual reference to monetary damages, the

Eighth Circuit contravened this Court’s Spending

Clause jurisprudence.

ii. THE EIGHTH CIRCUIT CONTRAVENES

THIS COURT’S DECISIONS GOVERNING

FREE EXERCISE AND DISCRIMINATION,

AND OTHER CIRCUIT COURT DECISIONS

CRREA provides, in part:

A State shall not be immune under the

Eleventh Amendment of the Constitution

of the United States from suit in Federal

court for a violation of section 504 of the

Rehabilitation Act of 1973, title IX of the

9 Lane, 518 U.S. 187, does not mandate otherwise. That case

involved an express statutory waiver of /federa/ sovereign

immunity and did not purport to repudiate Pennhurst, Franklin or

Atascadero in the Eleventh Amendment context. Zane did not

involve a challenge to the scope of a private remedy - rather, this

Court refused to find waiver because the respondent (an executive

agency) was not a “Federal provider of financial assistance” within

the meaning of the Rehabilitation Act. Jd. at 195.

Education Amendments of 1972, the Age

Discrimination Act of 1975, title VI of the

Civil Rights Act of 1964, or the provisions

of any other Federa/ statute prohibiting

discrimination by recipients of Federal

financial assistance.

42 U.S.C. § 2000d-7(a)(1) (emphasis added).

Every circuit that has considered the question

has held that CRREA “unambiguously conditions a state

agency’s acceptance of federal funds on its waiver of

Eleventh Amendment immunity.” Barbour v.

Washington Metro. Area Transit Auth., 374 F.3d 1161,

1164 & n.1 (D.C. Cir. 2004). This Court, too, albeit in

dictum, has concluded the same. Lane, 518 U.S. at 200.

Patterned after longstanding federal anti-

discrimination legislation enacted pursuant to the

Spending Clause, RLUIPA, by its plain terms, is a

“Federal statute prohibiting discrimination by recipients

of Federal financial assistance.” 42 U.S.C. § 2000d-7(a).

In requiring that Section 3 contain an express

reference to the term “discrimination” as a condition of

finding a clear statement of waiver, the Eighth Circuit

contravened this Court’s decisions construing the Free

Exercise Clause, antidiscrimination law and RLUIPA.

This Court has recognized that Section 3 of

RLUIPA prohibits discrimination by prison officials

against prisoners on the basis of their religion, and that

RLUIPA affords even greater protections to

institutionalized persons than what the Constitution

requires. Cutter v. Wilkinson, 544 U.S. 709, 714 (2005)

(“RLUIPA is the latest of long-running congressional

efforts to accord religious exercise heightened

protection from government-imposed burdens”).

RLUIPA protects the religious liberty of those

confined to state-run institutions in which, as this

Court observed: “the government exerts a degree of

contro] unparalleled in civilian society and severely

disabling to private religious exercise.” Jd. at 720-21

(RLUIPA “alleviates exceptional government-created

burdens on private religious exercise” and protects

persons who, “unable freely to attend to their religious

needs” are “dependent on the government’s permission

and accommodation for exercise of their religion.”).

In hearings spanning three years, Congress

documented that “frivolous or arbitrary” barriers

impeded the religious exercise of institutionalized

persons. See 146 Cong. Ree. S7774, 87775 (2000) Goint

statement of Sen. Hatch and Sen. Kennedy on

RLUIPA) (“Whether from indifference, ignorance,

bigotry, or lack of resources, some institutions restrict

religious liberty in egregious and unnecessary ways.”);

Cutter, 544 U.S. at 716 & n.5 (reciting instances of

nationwide disparate treatment by state prison officials

of inmates on the basis of their religion).

Thus, “[t]o secure redress for inmates who

encountered undue barriers to their religious

observances, Congress carried over from [the Religious

Restoration Freedom Act] the ‘compelling

governmental interest’/least restrictive means’

standard.” Cutter, 544 U.S. at 716-17. In so doing,

Congress through RLUIPA mandated a more

searching standard of review for free exercise burdens

than the Constitution itself affords. Cf Turner v.

Safley, 482 U.S. 78, 89 (1987) (prison rules of general

applicability upheld against free exercise challenge if

reasonably related to legitimate penological interest).

Indeed, the entire purpose of RLUIPA was to

provide heightened protection against government-

imposed burdens on free religious exercise, and to

require the government to satisfy strict scrutiny to

justify such burdens — regardless of whether they result

from intentional discrimination or facially neutral rules

of general applicability. See generally Cutter, 544 U.S.

at 714-17 (discussing Employment Div., Dep’t of Human

Resources of Or. v. Smith, 494 U.S. 872, 878-87 (1990),

42 U.S.C. § 2000bb et seg., and City of Boerne v.

Flores, 521 U.S. 507, 532-36 (1997)); see also 42 U.S.C. §

2000bb(a)(2) (“laws ‘neutral’ toward religion may

burden religious exercise as surely as laws intended to

interfere with religious exercise.”); id. § 2000bb(b)(1)

(restoring pre-Smith compelling interest test and “to

guarantee its application in all cases where free

exercise of religion is substantially burdened”).!°

By its terms, Section 3 categorically prohibits the

imposition of substantial burdens on religious exercise:

No government shall impose a substantial

burden on the religious exercise of a

person residing in or confined to an

institution, as defined in section 1997 of

[title 42], even if the burden results from

10 While no longer applicable against the states, the

substantive provisions in 42 U.S.C. § 2000bb-1 mirror those in

Section 3 and were incorporated therein. Cutter, 544 U.S. at 717.

a rule of general applicability, un\ess the

government demonstrates that

imposition of the burden on that person—

(1) is in furtherance of a compelling

governmental interest; and

(2) is the least restrictive means of

furthering that compelling

governmental interest.

42 U.S.C. § 2000cc-1(a)(1),(2) (emphasis added).

By its terms, Section 3 bans a// substantial

burdens, whether they result from intentional

discrimination or general rules of applicability. The

only exception to this broad prohibition applies when

strict scrutiny is satisfied. That Section 2 expressly

references discrimination does not narrow the

categorical scope of Section 3. Indeed, it reinforces the

plain fact that Section 3 bans all burdens, whether

discriminatory in purpose, or in effect.

In recognizing that RLUIPA provides

heightened protection, this Court has_ implicitly

acknowledged what the plain text of Section 3 makes

clear — namely, that the Free Exercise Clause is a

constitutional floor, not a ceiling. See Cutter, 544 U.S.

at 714. To be sure, the Constitution unequivocally

prohibits intentional government-imposed discrimination

on the basis of religion or religious exercise. See Church

of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508

U.S. 520, 531-84, 542-48, 546 (1993); Sherbert v. Verner,

374 U.S. 398, 402-06 (1963); Cruz v. Beto, 405 U.S. 319,

322 (1972). And, in requiring all government-imposed

substantial burdens to withstand strict scrutiny,

Congress plainly raised the constitutional floor to treat

any burden on the fundamental right of free exercise as

discrimination. See, e.g., Church of the Lukumi Babalu,

508 U.S. at 546; Smith, 494 U.S. at 885-86 & n.3.

Circuit courts, too, recognize that RLUIPA

provides greater protection than the Constitution

requires, and that Section 3 prohibits, at /east,

discrimination. See Lovelace v. Lee, 472 F.3d 174, 185-

88, 194-95 (4th Cir. 2006); Warsoldier v. Woodford, 418

F.3d 989, 994-97 (9th Cir. 2005); see also Truth v. Kent

Sch. Dist., 542 F.3d 634, 646 (9th Cir. 2008); Koger v.

Bryan, 523 F.3d 789, 796 (7th Cir. 2008); but see

Madison, 474 F.3d at 185 («0 CRREA waiver where no

express ban on discrimination). Even under 7urner’s

deferential standard, neutrality is constitutionally

required. Turner, 482 U.S. at 90-91; Mayfield v. Texas

Dep't of Crim. Just., 529 F.3d 599, 610 (5th Cir. 2008).

The Eighth Circuit’s decision further conflicts

with the Sixth, Seventh and Ninth Circuits, which, in

upholding RLUIPA as a constitutional exercise of

Congress’ Spending Clause power, expressly

characterize RLUIPA as antidiscrimination legislation.

The Ninth Circuit held:

The First Amendment, by prohibiting laws

that proscribe the free exercise of religion,

demonstrates the great value placed on

protecting religious worship from

impermissible government intrusion. By

ensuring that governments do not act to

burden the exercise of religion in

institutions, RLUIPA is clearly in line

with this positive constitutional value.

Moreover, by fostering non-discrimination,

RLUIPA follows a long tradition of federal

legislation designed to guard against unfair

bias and infringement on fundamental

freedoms.

Mayweathers v. Newland, 314 F.3d 1062, 1066-67 (9th

Cir. 2002) (citing Titles VI, VII, IX) (emphasis added).

Following the Ninth, the Seventh Circuit

observed that Titles VI and VII of the Civil Rights Act

of 1964 “protect against numerous forms of

discrimination,” and that Title IX sought to “eliminate

gender inequities in education,’ and _ ultimately

concluded that in RLUIPA, “Congress has an interest in

allocating federal funds to institutions that do not engage

in discriminatory behavior or in conduct that infringes

impermissibly upon individual liberties.” Charles v.

Verhagen, 348 F.3d 601, 607-09 (7th Cir. 2003); accord

Cutter v. Wilkinson, 423 F.3d 579, 587 (6th Cir. 2005);

Benning, 391 F.3d at 1306-07.

Finally, this Court has’ recognized that

discrimination manifests in many forms, even if only in

effect. See Ricci v. DeStefano, __ US. _, 129 S. Ct.

2658, 2672-75 (2009); Griggs v. Duke Power Co., 401 US.

492A, 432 (1971). This Court has not required Congress to

use magic words in analogous antidiscrimination

statutes, or to specify every form of discrimination a

statute prohibits, before states will be charged with clear

notice of potential liability. See Jackson v. Birmingham

Bd. of. Educ., 544 U.S. 167, 171-84 (2005); id. at 173-75

(“discrimination” covers a wide range of intentional

unequal treatment; thus, retaliation is discrimination

because person is “subjected to differential treatment”);

Davis, 526 U.S. at 635-45, 649-51 (sexual harassment is

discrimination under Title IX and satisfies Pennhurs?).

In so doing, this Court has rejected overly

formalistic constructions and has looked instead to the

plain meaning of a statute’s broad prohibition. See

Gomez-Perez v. Potter, _ U.S. __, 128 S. Ct. 1931, 1935-

39 (2008) (finding broad antidiscrimination ban plainly

included retaliation, and relying on Sullivan v. Little

Hunting Park, Inc., 396 U.S. 229 (1969) (finding cause of

action for retaliation based on plain meaning of 42 U.S.C.

§ 1982, despite absence of term “discrimination”)).

In requiring an express' reference to

“discrimination,” the Eighth Circuit imposed a higher

burden than clear notice requires and created an

anomalous and uncertain rule. RLUIPA’s broad

proscription plainly includes intentional infringement of

religious freedom. If the antidiscrimination purpose of

RLUIPA is sufficiently clear to support a constitutional

exercis® of Congress’ power, then it should be

sufficiently clear to constitute a statute prohibiting

discrimination by federal funding recipients. If it is not,

then this Court should resolve this important question

for Congress, the lower courts and the states to follow.

CONCLUSION

For the reasons set forth above, the petition for

a writ of certiorari should be granted.

Dated: January 8, 2010

Respectfully submitted,

Richard L. Johnson Kathryn M. Davis

300 North Dakota Avenue Counsel/ of Record

Suite 406 Peter R. Afrasiabi

Sioux Falls, SD 57104 c/o CHAPMAN UNIVERSITY

Telephone: (605) 338-2626 SCHOOL OF LAW

APPELLATE LITIGATION CLINIC

One University Drive

Orange, CA 92866

Telephone: (714) 628-2504

APPENDIX

Pet. App. la

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 08-1409

James Dean Van Wyhe,

Appellee,

Tim Reisch; Douglas Weber;

Jennifer Wagner,

i i i i i ee ee ee ee ee es

Appellants.

Appeals from

No. 08-1413 the United |

States District

Court, for the

District of

South Dakota

[PUBLISHED|}

Charles E. Sisney, :

Appellee, .

Vv +

Tim Reizeech, in both his

Pet. App. 2a

Individual ang official

capacities as ecreary

of Vorrestion ror © Soy

pas ota; D ugias | 4 wep er,

in} poth his 4 eitieg as Chi p

officia capactt ies as Chie

Warden for the fepatpment

of Corrections of South

Dakota; Dennis Block, in

both his in ividual and

ficial capacities as

ssociate Warden for the

outh Dakota tate

Penitentia Jennifer

Wagner, in both her

Individual and official

Keli acities as Cultural

iyities oordinator for

he South Dakota State

Penit ntiary, also known as

Jennifer Lane; Dar

Slykhuis, Interim Warden of

the South Da ota State

Penitentiary, in his

ndividual and official

yapacity,

Appellants.

United States of America,

** ne 2eesrtzstse#eseseeseeteeeeemUcP et eRe RRR HReHReORCERrCU RR Fe HHS SE CS CUS

Intervenor below

Appellee

Submitted: November 13, 2008

Filed: September 10, 2009

Pet. App. 3a

Before MURPHY, HANSEN, and RILEY, Circuit

Judges.

HANSEN, Circuit Judge.

James Dean Van Wyhe and Charles E.

Sisney, prisoners at the South Dakota State

Penitentiary (“SDSP”), each brought a _ suit

against South Dakota prison officials, asserting

various claims of interference with their free

exercise of religion under the First Amendment

and Section 3 of the Religious Land Use and

Institutionalized Persons Act of 2000 (RLUIPA),

114 Stat. 804, 42 U.S.C. § 2000cc-1(a)(1)-(2). Sisney

added two claims of retaliation. The prison

officials bring this interlocutory appeal of the

district court’s summary judgment rulings. See

Van Wyhe vy. Reisch, 536 F.. Supp. 2d 1110 (D.S. D.

2008); Sisney v. Reisch, 533 F. Supp. 2d 952

(D.8.D. 2008). They challenge the

constitutionality of RLUIPA, the district court’s

conclusion that the state waived its Eleventh

Amendment sovereign immunity from suit for

monetary damages, the denial of summary

judgment on the RLUIPA and First Amendment

claims, and the denial of qualified immunity and

summary judgment on the retaliation claims. The

United States intervenes in this appeal for the

purpose of arguing that RLUIPA is constitutional.

We affirm in part, reverse in part, and dismiss

some claims for lack of interlocutory jurisdiction.

Pet. App. 4a

A. Sisney’s Claims

sisney, a SDSP inmate who practices the

Jewish faith, brought suit pursuant to 42 U.S.C. §

1983 and RLUIPA for the violation of his free

exercise of religion rights, naming as defendants

Tim Reisch, Secretary of the South Dakota

Department of Corrections (“DOC”); Douglas

»ber, Chief Warden for the DOC; Dennis Block,

Associate Warden for the SDSP; Jennifer Wagner,

Cultural Activities Coordinator for the SDSP;

Doug Loen, Policy Analyst for the SDSP; Dary!

Slykhuis, Interim Warden of the SDSP; and others

(collectively, “the prison officials”). Sisney

claimed that the prison officials violated his right

to the free exercise of religion under RLUIPA and

the First Amendment by denying (among other

things not relevant to this appeal) his request to

possess and use a succah, his request to have a

tape player in his cell to study the Hebrew

language, and his request for additional group

religious and language study time

Sisney asserted that his religion requires

him to celebrate the week-long Jewish festival of

Sukkot by eating meals outside in a succah and

reciting a special benediction before sundown. A

succah is a three-sided booth or tent constructed

of a tarp and metal poles. The succah is not a

permanent structure, and it is large enough to

accommodate only one person at a time. Sisney’s

Pet. App. 5a

project application suggested that if he is not

allowed to eat meals in the succah, he could

alternatively eat meals as normal, as long as he

is provided extra time for the recitation of the

special benediction, but he asserted that he

included this suggested accommodation only

because he had been told that his request for a

succah would be denied. The group of Jewish

prisoners at SDSP did not possess a succah, but

Jewish inmates at South Dakota’s low- to medium-

security prison tried to donate one to the SDSP

Jewish inmates. The prison officials denied

Sisney’s request for a succah on the grounds that

prison policy prohibits inmate-to-inmate transfer

of property and that the succah presents a safety

and security concern. Instead, they permitted

Sisney the extra time each evening during the

festival to recite the benediction.

The prison officials denied Sisney’s request

for additional group meeting time to study the

Torah, Kabbalah, and the Hebrew language. The

Jewish group is permitted three hours of group

meeting and service time per week in addition to

group worship on special religious holidays. Prior

to 2000, the group met for 90 minutes per week,

but in response to Sisney’s request for additional

group time for Torah study and prayer, the time

was increased to three hours. The prison officials

stated that Sisney’s new application did not

explain why the group now needed yet more time

for the same activities. Sisney is allowed to study

Pet. App. 6a

on his own in his free time.

- Additionally, the prison officials denied

Sisney’s request to have a tape player in his cell to

aid in his study of the Hebrew language. Sisney

does not currently have access to any Hebrew

language tapes but claims that he needs the tape

player because the group meeting times provided

are insufficient to facilitate his language studies.

The prison does not allow any inmate to have a

tape player in a cell because it is a safety and

security concern. Sisney has access to a tape

player during the weekly group meeting times,

and he may practice Hebrew in his cell without the

tape player.

Sisney also claimed that, in retaliation for

filing this suit, Interim Warden Slykhuis denied

immediate delivery to Sisney of The Jailhouse

Lawyer’s Handbook, a publication that arrived as

unsolicited mail from the Center for Constitutional

Rights. Sisney claimed that Warden Slykhuis

knew of this lawsuit and refused to immeuiately

deliver the handbook without asking Sisney if he

had ordered it. Sisney asserted that the same

handbook was immediately delivered to other

inmates, that prison policy did not require the

immediate rejection of the entire correspondence,

and that he later received the handbook. Warden

Slykhuis asserted that he acted reasonably

pursuant to a prison operational memorandum.

Pet. App. 7a

Sisney claimed that Cultural Activities

Coordinator Wagner retaliated against him by

engaging in a pattern of religious discrimination

and harassment and by interfering with his

relationship with the Aleph Institute, an

organization that was providing him materials

helpful to the practice of his religion. According

to Sisney, Wagner had inquired as to why the

Aleph Institute was assisting Sisney, who was not

born of a Jewish mother, and that this inquiry

caused the Aleph Institute to stop sending him

materials. Wagner said she repeatedly contacted

the Aleph Institute asking for free educational

materials, food, and other items for Sisney and the

other members of the Jewish group, but Aleph has

refused to aid Sisney because it does not deem him

to be Jewish under Jewish law.

In a lengthy opinion, the district court

concluded that RLUIPA is constitutional under

the Spending Clause and permits only official-

capacity suits. The district court concluded that

the state had waived its Eleventh Amendment

sovereign immunity from suit for monetary

damages by accepting federal funds under the

terms of RLUIPA and the Civil Rights Remedies

Equalization Act of 1986 (CRREA), 42 U.S.C. §

2000d-7, and therefore, the court denied sovereign

immunity from monetary damages on the official-

capacity RLUIPA claims. But, the district court

noted that any monetary relief necessarily would

be limited to nominal damages as required by the

Pet. App. 8a

Prison Litigation Reform Act of 1995 (PLRA), 42

U.S.C. § 1997e(e). Injunctive relief was also held

to be available on the RLUIPA and the First

Amendment official-capacity claims. On the

merits of those claims, the district court granted

summary judgment on some claims and denied

summary judgment on others. Specifically, the

court held that Sisney had demonstrated a

substantial burden on his free exercise rights

regarding the denial of a succah, the denial of

additional group religious study time, and the

denial of a tape player, but the court concluded

that material questions of fact remained on

whether Sisney’s beliefs were sincere and whether

the denial of these requests was the least

restrictive means of furthering the _ state’s

compelling interests.

As to the § 1983 First Amendment claims

against prison officials in their individual

capacities, the district court granted qualified

immunity. On the retaliation claims, the district

court denied summary judgment, finding material

questions of fact existing on the issue of the intent

to retaliate.

B. Van Wyhe’s Claims

Van Wyhe is also an inmate at the SDSP. In

relevant part, he brought suit against several

South Dakota prison officials claiming that they

violated his free exercise of religion rights under

Pet. App. 9a

RLUIPA and the First Amendment by

implementing a prison policy, SDDOC Policy

1.5.F.2, which was in effect when his suit was filed.

Pursuant to this policy, prison officials deprived

Van Wyhe of kosher meals for a period of time as a

sanction for violating the prisor rules governing

religious diets. Effective February 14, 2007, this

policy was changed, eliminating the sanction of

removal from the religious diet program for a

prison rules violation. Van Wyhe is currently

receiving a kosher diet. He sought monetary,

injunctive, and declaratory relief based upon the

policy as it existed prior to February 14, 2007, but

he did not challenge the amended policy.

In ruling on the prison officials’ motion for

summary judgment, the district court relied on the

legal conclusions made in Sisney’s case regarding

sovereign immunity, the availability of monetary

damages under RLUIPA as limited by the PLRA,

and the constitutionality of RLUIPA. Because the

policy changed as of February 14, 2007, the

district court concluded that Van Wyhe was not

entitled to injunctive or declaratory relief

regarding the original version of the policy but

permitted the official-capacity RLUIPA claim for

monetary damages to proceed against the officials

involved in enforcing the original Policy-secretary

Reisch, Warden Weber, and Cultural Activities

Coordinator Wagner. The district court granted

qualified immunity on the § 1983 First

Amendment individual capacity claims.

Pet. App. 10a

In these consolidated interlocutory appeals,

the prison officials appeal the district court’s

denials of summary judgment. We are also called

upon to consider the constitutionality of RLUIPA,

as well as the availability of monetary damages

against the state government under RLUIPA.

Il.

A. Jurisdiction

Ordinarily, we lack jurisdiction over an

interlocutory appeal challenging the denial of

summary judgment, but an immediate appeal

is appropriate where summary judgment is

denied on the grounds of sovereign immunity

or qualified immunity, because immunity “‘is

effectively lost if a case is erroneously

permitted to go to trial.’” Pearson v.

Callahan, 129 S. Ct. 808, 815 (2009) (quoting

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985));

see also Monroe v. Ark. State Univ., 495 F.3d

591, 5938-94 (8th Cir. 2007). However,

immediate appeal is appropriate only “‘to the

extent that it turns on an issue of law.’”

Powell v. Johnson, 405 F.3d 652, 654 (8th Cir.

2005) (quoting Mitchell, 472 U.S. at 530). Our

limited ability to reach the merits of the

underlying dispute extends only to legal issues

that are “inextricably intertwined” with the

district court’s denial of immunity, Swint v.

Chambers County Comm’n, 514 U.S. 35, 51

(1995), and not to claims where the denial of

Pet. App. lla

summary judgment was based on disputes over

the sufficiency of the evidence, that is, “which

facts a party may, or may not, be able to prove

at trial,” Johnson v. Jones, 515 U.S. 304, 3138.

(1995). The district court’s determination that

the summary judgment record raises a genuine

issue of fact as to a government official’s

involvement in the alleged constitutional

violation is not a final decision subject to

immediate appeal. Id.

We conclude that we have jurisdiction to

consider the legal issues of whether Section 3

of RLUIPA is constitutional under Congress’s

Spending Clause authority and whether the

state waived its Eleventh Amendment

immunity from monetary damages. by

accepting federal funds under RLUIPA,

because the issues are intertwined with the

district court’s denial of sovereign immunity.

We have jurisdiction to consider the merits of

the RLUIPA and First Amendment claims

regarding the succah, the tape player, the

additional group time, and the retaliation

claims only to the extent that they turn on

issues of law, which we will address separately

below.

We apply de novo review to the district

court’s denial of summary judgment on the

grounds of sovereign and qualified immunity,

considering the evidence and all reasonable

Pet. App. l2a

inferences from the evidence in the light most

favorable to the nonmoving parties. McLean

v. Gordon, 548 F.3d 613, 616 (8th Cir. 2008).

We take as true those facts asserted by Sisney

and Van Wyhe “that are properly supported

by the record.” Monroe, 495 F.3d at 594.

“Summary judgment is appropriate where

‘there is no genuine issue as to any material

fact and ... the movant[s are] entitled to

judgment as a matter of law.’” McLean, 548

F.3d at 616 (quoting Fed. R. Civ. P. 56(c)

(ellipsis in original)).

B. RLUIPA

We begin with the language of the

statute, which provides prison inmates the

following protection:

No government shall impose a

substantial burden on the religious exercise of

a person residing in or confined to an

institution, ... even if the burden results

from a rule of general applicability, unless the

government demonstrates that imposition of

the burden on that person-

(1) is in furtherance of a compelling

governmental interest; and

(2) is the least restrictive means of

furthering that compelling governmental

interest.

Pet. App. l38a

42 U.S.C. § 2000cc-1(a) (1)-(2) (“Section 3”).

Section 3 of RLUIPA protects inmate

religious exercise! in this manner “when the

substantial burden is imposed in a program or

activity? that receives Federal financial

assistance.” Id. § 2000cc-1(b)(1).2 RLUIPA

defines the term “religious exercise” as

“including the exercise of religion, whether or

not compelled by, or central to, a system of

religious belief.” Id. § 2000cc-5(7)(A).

RLUIPA explicitly provides for a cause

of action to enforce the heightened free

exercise right it creates. Id. § 2000cc-2(a)-(g)

(“Section 4”) (stating a person may assert a

RLUIPA violation as “a claim or defense in a

judicial proceeding and obtain appropriate

relief against a government”). In such a suit,

if the institutionalized person “produces prima

facie evidence to support a claim,” by showing

that the government practice substantially

burdens the person’s exercise of religion, then

the government bears the burden of

1 RLUIPA also contains a separate protection of

land use as religious exercise in Section 2, but that

provision is not implicated by this appeal.

Z The parties do not dispute that RLUIPA

applies to South Dakota’s prisons.

3 The statute also purports to apply to a

substantial burden that affects commerce, id. $

2000cce-1(b)(2), but because the undisputed facts of

this case do not affect commerce, this appeal reaches

only RLUIPA’s federal funding underpinnings.

Pet. App. l4a

persuasion on every other element of the

claim. Id. § 2000cc-2(b).

1. Constitutionality of RLUIPA

The prison officials challenge the district

court’s conclusion that Section 3 of RLUIPA is

a constitutional exercise of Congress’s

Spending Clause authority. For the reasons

that follow, consistent with the reasons set

forth by every other circuit court of appeals to

address the question, we conclude that Section

3 of RLUIPA is a constitutional exercise of

legislative authority under the Spending

Clause. See Madison v. Virginia, 474 F.3d 118,

124 (4th Cir. 2006); Cutter v. Wilkinson, 423

F.3d 579, 584-90 (6th Cir. 2005); Benning v.

Georgia, 391 F.3d 1299, 1305-08 (llth Cir.

2004); Charles v. Verhagen, 348 F.3d 601, 606-

11 (7th Cir. 2003); Mayweathers v. Newland,

314 F.8d 1062, 1066-70 (9th Cir. 2002), cert.

denied, 540 U.S. 815 (2003); see also Sossamon

v. Texas, 560 F.3d 316, 328-29 (5th Cir. 2009)

(concluding that RLUIPA “was _ passed

pursuant to the Spending Clause”); Smith v.

Allen, 502 F.8d 1255, 1270, 1274 n.9 (11th Cir.

2007) (agreeing that RLUIPA “hinges on

Congress’ Spending Power”). We adopt the

reasoning set forth in those cases with little to

add, addressing only the specific arguments

raised by the prison officials.

Pet. App. 15a

Under the Spending Clause, Congress

has the power, among other things, to provide

for the “general Welfare of the United

States.” U.S. Const. art. I, § 8, cl. 1. This

provides Congress with incidental authority to

“attach conditions on the receipt of federal

funds, and [Congress] has_ repeatedly

employed the power to further broad policy

objectives by conditioning receipt of federal

money[] upon compliance by the recipient with

federal statutory and administrative

directives.” South Dakota v. Dole, 483 U.S.

203, 206 (1987) (internal marks omitted).

Thus, consistent with the Spending Clause,

Congress may use conditional grants of federal

funds to achieve objectives that are not within

the scope of Article I, id., such as requiring a

state to waive its “sovereign immunity as a

condition for receiving federal funds, even

though Congress could not order the waiver

directly,” Jim C. v. United States, 235 F.3d

1079, 1081 (8th Cir. 2000) (en bane), cert.

denied, 533 U.S. 949 (2001).

Determining whether legislation is a

permissible use of Congress’s spending power

requires a consideration of several limiting

factors as set forth by the Supreme Court in

Dole: (1) the legislation must be in pursuit of

the general welfare, (2) conditions on the

state’s receipt of federal funds must be set out

unambiguously SO that the state’s

Pet. App. l6a

participation is the result of a knowing and

informed choice, (8) conditions on federal

funds must be related to the federal interest

in particular national projects or programs, (4)

conditions must not be prohibited by other

constitutional provisions, and finally, (5) the

circumstances must not be so coercive that

“pressure turns into compulsion.” 483 U.S. at

207-11 (internal marks omitted).

Under the terms of RLUIPA, a state

prison that receives federal funding does so on

two conditions: (1) that the prison officials

not impose a substantial burden on an inmate’s

religious exercise unless that burden is

justified by a compelling government interest

and is the least restrictive means of furthering

that compelling interest, 42 U.S.C. § 2000cc-

l(a); and (2) that the state must submit to

judicial proceedings for “appropriate relief” to

enforce RLUIPA, id. § 2000cc-2(a).

The first Dole factor, which requires

that the legislation must be in pursuit of the

general welfare, is satisfied by RLUIPA’s

protection of an inmate’s religious exercise.

The state prison officials argue that RLUIPA

interferes with prison administration and

improperly encroaches on a_ purely local

concern-the operation of state correctional

facilities. We respectfully disagree. As a

general matter, “the concept of welfare or the

Pet. App. 17a

opposite is shaped by Congress” in the first

instance. Dole, 483 U.S. at 208 (internal

marks omitted). Congress has determined

that encouraging greater’ protecticn of

religious worship within prisons promotes the

general welfare, and we find it to be beyond

serious dispute that this protection furthers

society’s larger goal of rehabilitating inmates

as well as simply respecting’ individual

religious worship. Purely local matters of

prison administration are not jeopardized

because RLUIPA permits even substantial

burdens on religious exercise to be imposed

when the state uses the least restrictive

means of pursuing its compelling government

interests. RLUIPA allows courts to give “due

deference” to the expertise of prison officials

in achieving the compelling government

interests involved in prison operations, and

“Congress did not intend to overly burden

prison operations” but to provide heightened

religious protection “without undermining the

security, discipline, and order of those

institutions.” Murphy v. Mo. Dep’t of Corr.,

372 F.3d 979, 987-88 (8th Cir.), cert. denied,

543 U.S. 991 (2004). RLUIPA respects the

compelling local concerns while enhancing the

general welfare.

Second, the statutory language of

RLUIPA is sufficiently clear to satisfy Dole’s

second factor-that the conditions on_ the

Pet. App. 18a

receipt of federal funds be set _ forth

unambiguously. Section 3 and Section 4 of

RLUIPA together plainly condition the state’s

receipt of federal funds on the requirement

that the state provide RLUIPA’s heightened

religious protection to inmates and that the

state submit to a cause of action to enforce

that right. The prison officials argue that

RLUIPA does not clearly indicate that by

accepting federal funding for prisons, the

state is required to provide an inmate with

kosher meals or a succah, but this level of

specificity is not required. RLUIPA provides

a pliable standard, permitting prison officials

the freedom to make judgment calls by

granting the states “wide latitude in applying

its provisions, but this flexibility does not

make the conditions of RLUIPA opaque.”

Benning, 391 F.3d at 1306. The circuit courts

of appeals agree that setting forth every

conceivable variation in the statute is neither

feasible nor required and that RLUIPA

appropriately provides the state “the freedom

to tailor compliance according to its particular

penological interests and _ circumstances.”

Charles, 348 F.3d at 608 (relying on Pennhurst

State Sch. & Hosp. v, Halderman, 451 U.S. 1,

24-25 (1981)). See also Benning, 391 F.3d at

1306; Mayweathers, 314 F.3d at 1067. As

always, the devil is in the details, but

Congress has deemed the prison officials to be

best suited to deal with those details on a

case-by- case basis in their ordinary prison

Pet. App. 19a

operations. We conclude that RLUIPA sets

forth the general right to heightened

protection of religious exercise with sufficient

clarity, and unambiguously conditions the

state’s acceptance of federal funding on its

agreement to enforce that protection.

The third Dole factor is satisfied because

the condition on which the state receives the

federal funding, that is, protecting inmates’

religious exercise against substantial burdens

that are not justified by compelling state

interests, is reasonably related to the funding

of‘prison programs. See Cutter, 423 F.3d at

586 (stating Dole “suggests that a condition

on federal funding is constitutional so long

as it is reasonably calculated to address the

federal interest” (internal marks omitted)).

“Both the protection of the religious exercise

of prisoners and their rehabilitation are

rational goals of Congress, and those goals are

related to the use of federal funds for state

prisons.” Benning, 391 F.3d at 1308. The

prison officials’ assertion otherwise is simply

without merit.

The fourth Dole factor requires a

consideration of whether other constitutional

provisions prohibit these particular conditions

on federal funding. The prison officials argue

that RLUIPA violates the doctrine of the

separation of powers because the statute

Pet. App. 20a

improperly overturns the more deferential

constitutional standard set forth by the

Supreme Court for evaluating prisoners’ free

exercise of religion claims, see Turner v.

Safley, 482 U.S. 78, 89 (1987) (holding that

prison regulations must be reasonably related

to legitimate penological interests’ to

withstand a constitutional challenge), and

improperly substitutes a standard of strict

scrutiny. We disagree. RLUIPA does not

attempt to change the standard of review for

First Amendment claims, but it “‘establishe[s]

a statutory free exercise claim encompassing a

higher standard of review than that which

applies to constitutional free exercise claims.’”

See Gladson v. Iowa Dep’t of Corr., 551 F.3d

825, 832 (8th Cir. 2009) (quoting Murphy, 372

F.3d at 987). Context remains important. The

application of this statutory compelling

interest standard “does not ‘elevate

accommodation of religious observances

over an institutions need to maintain order

and safety.’” Fegans v. Norris, 537 F.3d 897,

902 (8th Cir. 2008) (quoting Cutter v.

Wilkinson, 544 U.S. 709, 722 (2005)). Instead,

RLUIPA appropriately views the

constitutional standard as a floor, not a

ceiling, and provides additional statutory

protection for religious worship in a particular

context. See Mayweathers, 314 F.3d at 1070

(stating the Court in Employment Div. v.

Smith,494 U.S. 872, 890 (1990), “explicitly left

[the question of whether to _ provide]

Pet. App. 2la

heightened legislative protection for religious

worship to the political branches”).

Congress’s policy decision to provide this

heightened protection is well within

Congress’s appropriate legislative role.

“Nothing in the Spending Clause . . .forecloses

Congress from placing conditions on federal

funds that reach beyond what the Constitution

requires.” Madison, 474 F.3d at 127.

Finally, the state prison officials assert

that the amount of federal funding provided to

the state prison renders the statutory

conditions unconstitutionally coercive. We

agree with the district court’s conclusion that,

although the federal funding amount involved

here is not insubstantial, it does not render

the statute unconstitutionally coercive in light

of our prior case law. In Jim C., we rejected a

Spending Clause challenge in which the

state argued that Section 504 of the

Rehabilitation Act of 1973, 29 U.S.C. § 974,

was unconstitutionally coercive. 235 F.3d at

1082. We concluded that the state’s potential

loss of $250 million dollars in federal funding,

which amounted to 100% of the state’s federal

education funding and approximately 12% of

the state’s annual education budget, “would be

politically painful” but was not impermissibly

coercive. Id. We found no reason to deviate

from that authority in Doe v. Nebraska,

involving a challenge to the state’s waiver of

Pet. App. 22a

immunity under’ Section 504 of _ the

Rehabilitation Act. 345 F.3d 598, 599 (8th Cir.

2003). Relying on Jim C., we held that there

was no coercion, even though the state would

potentially lose approximately $557 million

per year and the federal funding totaled 60%

of the state agency’s operating budget. Id.

Here, South Dakota received over $64

million from federal funding over the period

from 2001 through 2006, amounting to between

9.5% and 17.35% of the DOC’s annual budget

during those years. Our prior cases lead us to

conclude that this is not so great an amount as

to render the statute unduly coercive. While a

potential loss of 100% of the federal funding

for state prisons would indeed be painful, the

statute is intended as an inducement, and the

final choice is left to each state. “[Hlard

choices do not alone amount to coercion.”

Madison, 474 F.3d at 128. “If a State’s

citizens view federal policy as sufficiently

contrary to local interests, they may elect to

decline a federal grant.’” Jim C., 235 F.3d at

1082 (quoting New York v. United States, 505

U.S. 144, 168 (1992)). We conclude that “the

Spending Clause allows Congress to present

States with this sort of choice,” id., and that

RLUIPA is not unduly coercive.

We therefore affirm the district court’s

conclusion that RLUIPA is constitutional

Pet. App. 23a

under the Spending Clause. Because of this

conclusion and the fact that this case presents

no facts implicating any connection to

commerce, we decline to address the state

prison officials’ arguments regarding the

constitutionality of RLUIPA under the

Commerce Clause.

2. Eleventh Amendment Immunity under

RLUIPA

The prison officials challenge the district

court’s conclusion that RLUIPA, coupled with

the explicit language of CRREA, permits

monetary damage claims against the state

subject to the limitations imposed by the

PLRA. Our conclusion above that RLUIPA is

sufficiently clear to be a valid exercise of

Spending Clause power does not foreclose our

consideration of whether RLUIPA is

sufficiently clear to effectuate a knowing

waiver of the state’s Eleventh Amendment

sovereign immunity from a suit for monetary

damages.4 See Sossamon, 560 F.3d at 330-331

4 The Supreme Court has' recognized two

circumstances in which an individual may bring suit in

federal court against a state. First, Congress may

abrogate a state’s sovereign immunity through

legislation enacted pursuant to its Section 5

enforcement power of the Fourteenth Amendment,

which was “enacted after the Eleventh Amendment

and specifically designed to alter the federal-state

balance.” Coll. Sav. Bank v. FJ]. Prepaid Postsecondary

Pet. App. 24a

(considering the issue of sovereign immunity

separately from the Dole factors); Madison,

474 F.3d at 129 (same).

There can be no constructive waiver of

sovereign immunity, and we “indulge every

reasonable presumption against waiver.” Coll.

Sav. Bank, 527 U.S. at 682 (internal marks

omitted). The Supreme Court, construing the

federal government’s waiver of sovereign

immunity, has stated that “[t]o sustain a claim

that the Government is liable for awards of

monetary damages, the waiver of sovereign

immunity must extend unambiguously to such

monetary claims.” Lane v. Pena, 518 U.S. 187,

192 (1996) citing United States v. Nordic

Village, Inc., 5038 U.S. 30, 34 (1992)).

Additionally, waivers are to be “construed

strictly in favor of the sovereign and not

enlarged beyond what the language requires.”

See Nordic Village, Inc., 508 U.S. at 34

Educ. Expense Bd,, 527 U.S. 666, 670 (1999). “Second,

a State may waive its sovereign immunity by

consenting to. suit.” Id. (emphasis supplied.)

RLUIPA, as an exercise of Congress’s Spending

Clause power, “is therefore not an attempt by

Congress to abrogate [the state’s] sovereign

immunity, but to goad [the state] to waive its

sovereign immunity by accepting federal funds

conditioned on accepting liability.” Sossamon, 560

F.3d at 329. The two distinct methods should not be

confused. One requires only action by the Congress;

the other requires knowing action by the state.

Pet. App. 25a

(internal marks and citations omitted).

RLUIPA conditions the state’s

acceptance of federal funds, in part, on its

consent to suit for “appropriate relief.” 42

U.S.C. § 2000cc-2(a). As we concluded above,

this phrase plainly creates a private cause of

action against the state “for at least some

form of relief.” Madison, 474 F.3d at 130. The

phrase, “appropriate relief,” is broad enough

to include both injunctive’ relief and

compensatory damages, but the question is

whether the language unambiguously extends

to monetary claims. There is a split of circuit

authority on this issue. In Madison v.

Virginia, the Fourth Circuit held that in the

sovereign immunity waiver context, the

“appropriate relief” language “falls short of

the unequivocal textual expression necessary

to waive the State immunity from suits for

damages.” Id. See also Sossamon, 560 F.3d at

331 (holding “RLUIPA is clear enough to

create a right for damages on the cause- of-

action analysis, but not clear enough to do so

in a manner that abrogates state sovereign

immunity from suits for monetary relief”);

Cardinal v. Metrish, 564 F.3d 794, 801 (6th

Cir. 2009) (“RLUIPA does not contain a clear

indication that Congress unambiguously

conditioned receipt of federal prison funds on

a state’s consent to suit for money damages.”);

Nelson v. Miller, 570 F.3d 868, 884 (7th Cir.

Pet. App. 26a

2009) (statutory reference to “‘appropriate

relief’. . . does not provide the ‘unequivocal

textual expression’ necessary to effect”

waiver of state sovereign immunity for money

damages). Accord Webman v. Fed. Bureau of

Prisons, 441 F.3d 1022, 1025-26 (D.C. Cir.

2006) (construing the identical language in

RFRA as not conveying an unambiguous

waiver of sovereign immunity from money

damages).

In contrast, the Eleventh Circuit

concluded in Smith v. Allen “that, absent an

intent to the contrary, the phrase ‘appropriate

relief’ in RLUIPA encompasses monetary as

well as injunctive relief.” 502 F.3d at 1271. In

reaching this conclusion, the court relied on

Franklin v. Gwinnett County Pub. Schs., 503

U.S. 60 (1992), which = articulates a

presumption in favor of making a// appropriate

remedies available when Congress uses broad

language in crafting remedies. See Smith, 502

F.3d at 1270. In Franklin, however, the

Supreme Court was dealing with an implied

cause of action for intentional discrimination

and had no occasion to discuss whether any

statutory language was specific enough to

effectuate a knowing waiver of state sovereign

immunity by its acceptance of the federal

benefit. Franklin did not involve a question of

state sovereign immunity. Cardinal, 564 F.3d

at 800-801. In a case decided after Franklin,

Pet. App. 27a

the Supreme Court itself rejected any idea

that sovereign immunity could be waived by

anything other than the “unequivocal

expression of elimination of sovereign

immunity ... in statutory text.” Lane, 518

U.S. at 192 (internal marks omitted). For

these reasons, we decline to follow the

analysis set forth by the Eleventh Circuit in

Smith. We agree, instead, with the analysis of

the Fourth, Fifth, Sixth, and Seventh Circuits

that RLUIPA’s “appropriate relief” language

does not unambiguously encompass monetary

damages so as to effect a waiver of sovereign

immunity from suit for monetary claims under

Section 3 by acceptance of the federal money.

See, e.g., Madison, 474 F.3d at 131 (quoting

Lane, 518 U.S. at 196, for the proposition that

“Congress is, of course free to condition funds

upon a waiver of ‘sovereign immunity against

liability without waiving [a State’s] immunity

from monetary damages awards’” (alteration

in original)).

The district court reached this same

conclusion but then reasoned that, although

RLUIPA does not waive sovereign immunity

from monetary damages, the waiver is

nevertheless accomplished by the

unambiguous language of CRREA. The prison

officials argue that this conclusion is in error.

CRREA explicitly provides that a state does

not retain its Eleventh Amendment immunity

Pet. App. 28a

with regard to the violation of certain named

civil rights statutes (namely, the

Rehabilitation Act, Title IX, the Age

Discrimination Act, and Title VI of the Civil

Rights Act), or “the provisions of any other

Federal statute prohibiting discrimination by

recipients of Federal financial assistance.” 42

U.S.C. § 2000d-7(a)(1). The district court

concluded that, although RLUIPA is not listed

specifically in CRREA, RLUIPA is within its

catch-all phrase as a _ federal statute

“prohibiting discrimination,” id., and thus,

CRREA’s’ explicit waiver of sovereign

immunity applies equally to RLUIPA. We

respectfully disagree with that analysis.

The institutionalized persons section of

RLUIPA at issue in this suit (Section 3), does

not unambiguously prohibit discrimination-it

prohibits substantial burdens on religious

exercise, without regard to discriminatory

intent. Congress understands how to create a

5 The district court cited the Seventh Circuit’s

statement that “RLUIPA follows in the footsteps of a

long-standing tradition of federal legislation that

seeks to eradicate discrimination and is ‘designed to

guard against unfair bias and infringement on

fundamental freedoms.’” Charles, 348 F.8d at 607

(quoting Mayweathers, 314 F.3d at 1067). Context

demonstrates, however, that this statement was not

made within a textual analysis of the scope of

appropriate relief under RLUIPA but in the distinct

and different discussion of whether RLUIPA is valid

Spending Clause legislation in pursuit of the general

Pet. App. 29a

federal statute prohibiting discrimination, and

it did so within RLUIPA’s separate section

(Section 2) dealing with land use regulations.

Section 2 of RLUIPA prohibits

“discrimination” against religious institutions

“on the basis of religion” with regard to land

use regulations and prohibits land use

regulations that treat a religious institution

“on less than equal terms with a nonreligious

assembly or institution.” 42 U.S.C. §

2000cc(b)(1), (2). Similar language,

prohibiting discrimination or requiring equa!

treatment, is conspicuously omitted from the

RLUIPA protections afforded to

institutionalized persons under Section 3. It

is appropriate to consider these sections

independently of one another. See Cutter, 544

U.S. at 715 n.3 (declining to address the land

use section of RLUIPA, and independently

considering the constitutional validity of the

institutionalized persons section under the

Establishment Clause).

The antidiscrimination statutes listed in

CRREA all explicitly prohibit discrimination,

and the institutionalized persons section of

RLUIPA does not fit neatly within that genre.

See Madison, 474 F.3d at 1383. Absent an

unequivocal textual indication that CRREA

welfare. As such, this statement is not authoritative

in determining the scope of the state’s waiver of

immunity.

Pet. App. 30a

applies to Section 3 institutionalized-person

RLUIPA claims, we will not rely on CRREA

to effectuate a knowing waiver of sovereign

immunity from money damages on those

claims.

Because the state did not waive its

immunity from suit for monetary damages by

accepting federal funds on the conditions set

forth in the institutionalized persons section

of RLUIPA (Section 3), we reverse the

district court’s denial of summary judgment to

the prison officials in Van Wyhe’s suit, and

remand for entry of judgment in favor of Tim

Reisch, Douglas Weber, and Jennifer Wagner

on the RLUIPA official- capacity claims.

Similarly, this conclusion requires the entry of

summary judgment in favor of the prison

officials on Sisney’s official-capacity RLUIPA

claims for money damages against Tim Reisch,

Douglas Weber, Dennis Block, and Jennifer

Wagner.

3. Surviving KLUIPA Claims

We next consider the surviving official

capacity RLUIPA claims.® No claims survive

6 The district court concluded that RLUIPA does

not permit suit against state officials in their

individual capacity because the Spending Clause

authority by which RLUIPA was enacted will not

support an action against an official in his or her

Pet. App. 3la

in Van Wyhe’s suit. In Sisney’s suit, three

claims for injunctive relief survive the denial

of the succah, the denial of additional group

religious study time, and the denial of a tape

player in his cell. On each of these, the

district court found questions of material fact

existing on the issue of whether the prison

officials had used the least restrictive means

of achieving the compelling governmental

interests. As already noted, our jurisdiction

in this interlocutory appeal extends only to

the extent the denial of summary judgment

turns on an issue of law and not disputes of

fact. To make out a prima facie RLUIPA

claim against a state official, an inmate “must

‘show, as a threshold matter, that there is a

substantial burden on his ability to exercise

his religion.’” Singson v. Norris, 553 F.3d 660,

662 (8th Cir. 2009) (quoting Murphy, 372 F.3d

at 988). Absent this showing, the state retains

its sovereign immunity. The district court did

not identify any material questions of fact in

dispute on this threshold issue. We therefore

have interlocutory jurisdiction to consider this

threshold legal issue on each claim, construing

the facts in the light most favorable to Sisney.

See Prescott v. Little Six, Inc., 387 F.3d 753,

765-56 (8th Cir. 2004) (noting we have

“jurisdiction to decide closely related issues of

individua: capacity. See Kinman v, Omaha Pub, Sch.

Dist., 171 F.3d 607, 610-11 (8th Cir. 1999) That

conclusion is not at issue in this appeal

Pet. App. 32a

law, i.e., claims that are inextricably

intertwined with or necessary to ensure

meaningful review of the sovereign immunity

issue” (internal marks omitted)), cert. denied,

544 U.S. 1032 (2005).

RLUIPA “defines ‘religious exercise’ to

include ‘any exercise of religion, whether or

not compelled by, or central to, a system of

religious belief.’” Cutter, 544 U.S. at 715

(quoting § 2000cc-5(7)(A)). We have held,

largely consistent with our First Amendment

cases, that to demonstrate a_ substantial

burden on the exercise of religion, a

government policy or action ““must

significantly inhibit or constrain [religious]

conduct or [religious] expression .. .; must

meaningfully curtail a person’s ability to

express adherence to his or her faith; or must

deny a person reasonable opportunities to

engage in those activities that are

fundamental to a person’s religion.’” Patel v.

U. S. Bureau of Prisons, 515 F.3d 807, 813 &

n.7 (8th Cir. 2008) (quoting Murphy, 372 I'.3d

at 988). We alter this definition somewhat in

the RLUIPA context, mindful that RLUIPA’s

broad protection of “religious exercise”

extends even to religious practices that are

not “compelled by, or central to” a certain

belief system. Id. at 813 n.7; see Gladson, 551

F.3d at 882-33 (acknowledging that we apply

the definition of substantial burden set forth

Pet. App. 33a

in Murphy and as subsequently clarified by the

Supreme Court in Cutter, 544 U.S. at 725 n.13,

to “bar[{] inquiry into whether a particular

belief or practice is ‘central’ to a prisoner’s

religion”).

a. The Suceah: The officials argue that

Sisney failed to make a sufficient threshold

showing of a substantial burden because he

submitted only his own conclusory statement

as evidence. In response to the summary

judgment motion, Sisney explained the

religious significance of the succah (or tent),

and he described it as being “a mandatory part

of the Sukkot Festival” and essential to the

practice of his Jewish faith.? (Appellants’

App. at 807.) This assertion is not devoid of

the necessary factual allegations—the succah is

an expression of Sisney’s faith during this

religious festival and this expression of his

faith is significantly inhibited, constrained, or

altered by the denial of his request to use the

succah during the Festival of Sukkot. Sisney

provided some explanation of his faith and the

religious exercise at issue. He did not rest on

a conclusory allegation that his religious

7 Sukkot is “a Jewish religious festival of

thanksgiving celebrated originally as an autumn

harvest festival that is commemorative of the

temporary shelters of the Jews during their

wandering in the wilderness.” Webster’s Third New

International Dictionary 2287 (1986). It is also called

the Feast of Booths and the Feast of Tabernacles. Id.

Pet. App. 34a

exercise was “substantially burdened,” but

there is evidence from which such a conclusion

could be drawn. Whether Sisney can establish

the truth or sincerity of this belief is a matter

to be decided at trial, but we cannot say that

his evidence is insufficient as a matter of law

to withstand summary judgment. See Murphy,

372 F.3d at 988 (relying on the inmate’s

assertions to reverse a grant of summary

judgment). The district court did not err as a

matter of law by concluding that Sisney met

his threshold burden with regard to the succah

request. We lack jurisdiction to consider

further issues on which the district court

found material questions of fact.

b. Group Study Time: The prison

officials argue that Sisney did not meet the

threshold showing of a substantial burden on

his religious exercise with regard to his

request for additional weekly meeting time for

Torah, Kabbala, and Hebrew language studies.

The three-hour group worship and study time

currently allotted resulted from Sisney’s prior

application for an additional 90 minutes each

week to study the Torah. Now, Sisney asserts

that the three hours currently provided is

inadequate for group religious study because

the time is consumed with Jewish worship

services and Torah studies, leaving not enough

time to study the Hebrew language. Sisney

states that while Torah study is foremost and

Pet. App. 35a

cannot be exchanged for the Hebrew study, his

religion considers learning Hebrew to be a

“mikvah,” or “good deed.” (Appellants’ App.

at 117.)

The prison must permit a reasonable

opportunity for an inmate to engage in

religious activities but need not provide

unlimited opportunities. In Gladson, Wiccan

inmates argued that a three-hour limitation on

their celebration of a religious. holiday

substantially burdened their religious exercise

under RLUIPA. 551 F.3d at 834. We held

that the inmates “failed to offer any evidence”

that three hours for their religious holiday

celebration “significantly inhibits or

constrains their conduct or _ expression;

meaningfully curtails their ability to express

adherence to their faith; or denies them

reasonable opportunities to engage in those

activities that are fundamental to _ their

religion.” Id. Additionally, we have held in

the First Amendment context that, where an

inmate was permitted three hours of group

worship time, the denial of one extra hour per

week did nut substantially burden the inmate’s

religious exercise: “three hours of group

worship per week provided [the inmate] with a

reasonable opportunity to exercise’ his

religious freedom.” Wier v. Nix, 114 F.3d 817,

821 (8th Cir. 1997). We do not demand

doctrinal justification to support the desired

Pet. App. 36a

religious exercise, but the inmate does hear

the burden of establishing a suwstantial

burden on a religious exercise. Gladson, 551

F.3d 833.

The record does not support a conclusion

that Sisney’s religious exercise of group study

has been substantially burdened. He is

permitted three hours of group study and

worship time with other Jewish inmates and is

additionally permitted to study the language

and the religion individually in his cell. His

explanation that the time is “inadequate” does

not indicate how the denial of extra group

study time significantly inhibits or curtails

his religious expression or deprives him of

a meaningful opportunity to engage in his

religious activities. We do not question his

assertion that learning to speak Hebrew is a

“good deed” that will make his religious

exercise more meaningful, but he has not

asserted facts from which a juror could

conclude that the denial of additional group

time to study the language places a

substantial burden on his religious exercise.

The prison officials (Weber, Block, and

Wagner) are therefore entitled to summary

judgment on this claim.

ec. The Tape Player: The prison officials

denied Sisney’s request to have and use a

tape player in his cell for religious language

Pet. App. 37a

studies. Although Sisney’s religion deems it

a “good deed” to speak Hebrew, he does not

assert that the tape player itself is a religious

item or that having one in his cell is the only

way he can learn the language necessary to

his religious conduct. The record indicates

that Sisney has reasonable access to a tape

player during the group meeting times

(though he has no tapes) and that he is

permitted to study the language in his cell

with books. RLUIPA does not require the

prison to permit an inmate to possess every

tangential item of property that could aid the

inmate’s religious exercise or _ learning.

Depriving Sisney of a tape player in his cell

does not significantly inhibit his religious

expression, meaningfully curtail his ability to

adhere to his faith, or deprive him of a

reasonable opportunity to engage in that

religious activity. Sisney has not set forth

sufficient evidence to demonstrate that his

religious exercise is substantially burdened

by the denial of a tape player in his cell, and

accordingly, the prison officials (Weber, Block

and Wagner) are entitled to summary

judgment on this claim.

C. First Amendment Free Exercise

Where an inmate has not put forth

sufficient evidence under RLUIPA to

demonstrate a substantial burden on his

Pet. App. 38a

religious exercise, his claim fails under the

Free Exercise Clause of the First Amendment

as well. See Patel, 515 F.3d at 813. Thus, for

the reasons stated above, the prison officials

are also entitled to summary judgment on

Sisney’s official-capacity First Amendment

claims for extra group study time and for a

tape player in his cell.

As to the request for a succah, the

district court appropriately considered this

claim under the First Amendment standard

set forth in Turner, 482 U.S. at 89-90. and

found material questions of fact in dispute.

For this reason, we lack jurisdiction in this

interlocutory appeal to consider this issue

further.

D. Retaliation

Interim Warden Slykhuis and Cultural

Activities Coordinator Wagner appeal the

district court’s denial of summary judgment

and qualified immunity on Sisney’s official-

capacity and individual-capacity retaliation

claims against them. We have held that

conduct that retaliates against the exercise of

a constitutionally protected right, such as

access to the courts, is actionable even if the

alleged retaliatory conduct does not itself rise

to the level of a constitutional violation. Cody

v. Weber, 256 F.3d 764, 771 (8th Cir. 2001).

Pet. App. 39a

“The violation lies in the intent to impede access

to the courts. Id. (internal marks omitted).

The district court concluded that genuine

issues of material fact exist on Sisney’s retaliation

claims. Slykhuis and Wagner do not argue that

Sisney’s right against retaliation is not clearly

established but that their conduct was reasonable

and justified, or did not occur as Sisney alleges.

On this, the district court found the existence of

material questions of fact. These arguments

present the type of factual disputes that “exceed[]

our limited scope of review” because they

generally concern “‘which facts a party may, or

may not, be able to prove at trial.’”” See Powell,

- 405 F.3d at 655 (quoting Johnson, 515 U.S. at 313).

Accordingly, we lack jurisdiction to consider them.

III.

We reverse the district court’s denial of

summary judgment on the official-capacity

RLUIPA claims for monetary damages of both

Van Wyhe and Sisney based on our conclusicns

that RLUIPA is constitutional and that the prison

officials are entitled to the protection of sovereign

immunity from monetary damages. We also

reverse the district court’s denial of summary

judgment on Sisney’s injunctive relief claims for a

tape player and extra group study time under

RLUIPA and the First Amendment Free Exercise

Clause. We remand for entry of judgment in favor

Pet. App. 40a

of the prison officials on those claims and for

further proceedings; we lack jurisdiction to

consider in this appeal Sisney’s claim for a succah

and his retaliation claims due to the existence of

genuine disputes of material fact.

Pet. App. 4la

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION

KEKEKRKKEKEKEKKEKAKEKKKAKEKKKEKEARKKKKKEKKKKKKEKEKKEKES

CHARLESE.SISNEY, * CIV 03-4260

Plaintiff, .

VS.

TIM REISCH, Secretary ~* MEMORANDUM

of Corrections for South ° OPINION AND

Dakota; DOUGLAS L. * ORDER

WEBER, Chief Warden *

for the Department of +

Corrections of South *

Dakota; DENNIS ‘

BLOCK, Associate "

Warden for the South 7

Dakota State :

Penitentiary;

JENNIFER WAGNER ~*

a/k/a Jennifer Lane, '

Cultural Activities ’

Coordinator forthe South *

Dakota State *

Penitentiary; DOUG *

LOEN, Policy *

Analyst for the South .

Dakota State

Pet. App. 42a

Penitentiary; DARYL

SLYKHUIS, Interim :

Warden of the South *

Dakota State *

Penitentiary; *

JOHN/JANE DOE *

STAFF

MEMBERS, AGENTS, .

EMPLOYEES AND/OR «x

OFFICERS OF THE *

SOUTH DAKOTA

STATE ?

PENETENTIARY F

AND/OR SOUTH

DAKOTA

DEPARTMENT OF “

CORRECTIONS; all .

Defendants sued in both *

their individual and *

official capacities, .

Defendants. ,

HR KK KK KEKE EEE EEE EEE KERR EEE EKER KEKE EEE CERES

Pending before the Court are

Defendants’ Motion to Strike, Doc. 272, and

Defendants’ Motion for Summary Judgment,

Doc. 214, on the grounds of qualified immunity

and the merits. In a_ separate brief,

Defendants also seek summary judgment on

any claims asserted under the Religious Land

Pet. App. 48a

Use and Institutionalized Persons Act of 2000

(“RLUIPA”), 42 U.S.C. $§ 2000cc-2000cc-5, on

the grounds that RLUIPA is unconstitutional.

The Court allowed the United States to

intervene for presentation of evidence and for

argument on the question of the

constitutionality of RLUIPA. The United

States filed a brief in opposition to the

Defendants’ constitutional challenge to

RLUIPA. After repeated continuances,

Plaintiff Charles Sisney, who was represented

by counsel, filed a brief regarding the

constitutionality of RLUIPA and a separate

brief addressing qualified immunity and the

merits. Defendants filed reply briefs. For the

reasons set forth below, the Court will grant

in part and deny in part Defendants’ summary

judgment based on qualified immunity and the

merits and will deny Defendants’ summary

judgment motion challenging the

constitutionality of RLUIPA. The Motion to

Strike will be denied.

I. BACKGROUND

The facts will be stated in the light most

favorable to Sisney, as the non-moving party

in these summary judgment proceedings.

Sisney is serving a life sentence at the South

Dakota State Penitentiary (“SDSP”). He has

been incarcerated at the SDSP since April 11,

1997. He was convicted of first-degree murder,

but he has no history of violence or assaultive

behavior while incarcerated in the SDSP. His

Pet. App. 44a

security classification is high/medium risk. He

now practices the Jewish faith and he brought

this action alleging various violations of his

religious freedom rights, right to equal

protection of the laws, retaliation and denial

of access to the courts. He began learning and

studying about Judaism before he was

incarcerated, but does not claim he was

practicing the Jewish faith before his

incarceration.

Defendant Tim Reisch is the Secretary

of the South Dakota Department of

Corrections (“DOC”). Reisch is the final

policy maker regarding DOC policies, rules

and regulations. Defendant Douglas Weber is

the Warden of the SDSP. Weber is the final

policy maker regarding Operational

Memoranda, which are the _ policies and

operational guidelines in place at the SDSP.

Defendant Daryl Slykhuis served as _ the

Interim Warden of the SDSP at the time of the

event alleged in Sisney’s Amended

Supplemental Complaint (Doc. 63). Defendant

Dennis Block is an Associate Warden at the

SDSP, and he is the official who approves or

disapproves inmates’ requests regarding

religious and cultural activities. Defendant

Jennifer Wagner, a/k/a Jennifer Lane, is the

Cultural Activities Coordinator for the SDSP.

She is the SDSP official that first reviews

inmates’ requests regarding religious and

cultural activities, which are submitted on a

Pet. App. 45a

form entitled “Project Application”. if

Wagner believes the Project Application

involves security issues, she brings the

application to the attention of Block for his

review. These Project Applications may also

be discussed at weekly meetings, which Block,

Weber and other senior SDSP officials attend.

Defendant Doug Loen is Legal Counsel! for the

DOC. His office is located at the SDSP. He is

responsible for drafting policies and

procedures under the direction, supervision

and control of the Secretary of Corrections

and the Wardens. Loen is not the final

policymaker on either DOC policies’ or

Operational Memoranda and he does not

possess supervisory authority over SDSP

correctional officers.

Sisney asserts various claims against

each of the Defendants. Several claims have

been dismissed from this action and the Court

ruled on Defendants’ Motion for Summary

Judgment on the grounds of failure to exhaust

administrative remedies. Two claims were

dismissed for failure to exhaust administrative

remedies, which were Sisney’s claims that

Defendants lied in internal state

investigations and that Defendants conspired

to conceal unlawful discrimination against

Sisney. (Doc. 212.) The claims remaining in

this action are set forth in Sisney’s Amended

Complaint (Doc. 60), excluding paragraphs

111-121, 126, 129 and 1380, and in paragraphs 6,

Pet. App. 46a

13-20, and 54-55 of the Amended Supplemental

Complaint II (Doc. 63). Sisney contends the

Defendants have violated the First

Amendment and RLUIPA by: (1) their refusal

to allow Sisney to erect and use a succah or

Sukkot Booth during the Festival of Sukkot;

(2) their refusal to establish a permanent

Jewish chapel; (3) their denial of additional

service time for group Torah, Kabalistic and

language studies; (4) their refusal to use the

Benevolence Fund to assist the Jewish group

in obtaining a Rabbi to visit the inmates; (5)

their interference with a visit by rabbinical

students; (6) their refusal to allow Sisney to

possess certain personal property for the

exercise of his religion; and (7) refusal of

Sisney’s request to review what he refers to

as the “Jewish curriculum” maintained by the

Cultural Activities Coordinator. The property

claims involve the following items: succah,

charity box, tape player, religious calendar,

herbs and oils, lightbulb diffuser, incense in

chapel, and tzit-tzit string. Retaliation claims

are asserted by Sisney against Wagner and

Slykhuis. Equal Protection claims are asserted

by Sisney for the refusal to allow Sisney to

erect a succah, for denial of kosher coffee, and

the denial of tzit-tzit string to repair Sisney’s

tzit-tzit shirt. Sisney also claims Defendants

Slykhuis and Loen denied him access to the

courts.

Pet. App. 47a

Defendants Reisch and Weber seek

summary judgment on the grounds that the

record does not show sufficient personal

involvement regarding Sisney’s claims, and, in

the alternative, their actions were

constitutional. All Defendants seek summary

judgment on the merits of Sisney’s claims, or,

in the alternative, they seek the protection of

qualified immunity. As to Sisney’s state-law

claims, Defendants contend the Court should

decline to consider them, but if the Court does

consider these claims Defendants urge the

Court to deny relief on all of the claims.

Sisney counters that Reisch and Weber

were personally aware of the claimed

violations of his rights and did nothing to

correct the other Defendants unconstitutional

actions. He wrote two letters to Reisch

explaining his complaints and he filed several

grievances with Weber addressing the claims

in this action. Sisney further contends

Defendants are not entitled to summary

judgment on the merits of his claims and that

they are not entitled to qualified immunity.

Sisney points out that his state-law claims

were dismissed by the Court. The Court

agrees there are no longer any state-law

claims in this action because all such claims,

stated in Sisney’s Amended Complaint, Doc.

60, were dismissed for failure to exhaust

administrative remedies. See Memorandum

Opinion and Order, Doc. 212.

Pet. App. 48a

II. DISCUSSION

In considering a motion for summary

judgment, the Court asks the question

whether the record, when viewed in the light

most-favorable to the non-moving party, shows

that there is no genuine issue as to any

material fact and that the moving party is

entitled to judgment as a matter of law.

FED.R.CIV.P. 56(c). “Once the motion for

summary judgment is made and supported, it

places an affirmative burden on the _ non-

moving party to go beyond the pleadings and

‘by affidavit or otherwise’ designate ‘specific

facts showing that there is a genuine issue for

trial’’ Commercial Union Ins. Co. v. Schmidt,

967 F.2d 270, 271 (8th Cir. 1992) (quoting

FED.R.CIV.P. 56(e)). Simply creating a

factual dispute cannot defeat a motion for

summary judgment; rather, there must be a

genuine dispute over those facts that could

actually affect the outcome of the lawsuit.

See, e.g., Ghane v. West, 148 F.3d 979, 981

(8th Cir. 1998). “A plaintiffs verified .. .

Complaint is the equivalent of an affidavit for

purposes of summary judgment, and a

complaint signed and dated as true under

penalty of perjury satisfies the requirements

of a verified complaint.” Roberson v. Hayti

Police Dep’t, 241 F.8d 992, 994-95 (8th Cir.

2001) (citations omitted). If the allegations in

the verified complaint consist of nothing more

than conclusory allegations, however, they are

insufficient to overcome a summary judgment

Pet. App. 49a

motion. See Roberson v. Bradshaw, 198 F.3d

645, 647 (8th Cir. 1999).

Sisney brings claims under both 42

U.S.C. § 1983 and RLUIPA. RLUIPA was

enacted in 2000 after the Supreme Court

declared the Religious Freedom Restoration

Act of 1993 (“RFRA”), 42 U.S.C. §§ 2000bb et

seq., unconstitutional as applied to states and

localities in City of Boerne v. Flores, 521 U.S.

507 (1997). See Cutter v. Wilkinson, 544 U.S.

709, 714-15 (2005) (setting forth the history of

the enactment of RFRA and RLUIPA).

RLUIPA is similar to, but not identical to,

RFRA. See id. at 715-16.

A. Supervisory Liability

Defendants Reisch and Weber contend

they were not directly or personally involved

in the actions or events Sisney challenges as

unlawful. The Court agrees with Defendants

Reisch and Weber’s argument that they cannot

be held liable on the theory of respondeat

superior. See Choate v. Lockhart, 7 F.3d

1370, 13876 (8th Cir. 1993). “In the section

1983 context, supervisor liability is limited.”

Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995).

‘““For a supervisor to be held liable for the

acts of a subordinate, something more must be

shown than merely the existence of the

supervisor-subordinate, relationship.’” Aipson

v. Alles, 21 F.3d 805, 809 (8th Cir. 1994)

(quoting Clay v. Conlee, 815 F.2d 1164, 1170

Pet. App. 50a

(8th Cir. 1987)). “‘The supervisor must know

about the conduct and facilitate it, approve it,

condone it, or turn a blind eye for fear of what

he might see.’” Jd.

Sisney does not, however, seek to hold

Reisch and Weber liable solely on a theory of

respondeat superior. Rather, Sisney alleges

these two Defendants were personally aware

of the alleged unlawful conduct by the other

Defendants and they did not take appropriate

action to end such conduct by _ their

subordinates. As to Reisch, Sisney is not

allowed to file grievances with Reisch, but

Sisney did write two letters to Reisch

explaining his allegations of discrimination

and restrictions on the exercise of his religion.

Although Reisch is expected to know the law,

Sisney included a copy of RLUIPA with the

letters sent to Reisch. After receiving

Sisney’s letters, Reisch contacted the SDSP

regarding Sisney’s concerns. Reisch states he

was satisfied after that contact that SDSP

staff were working to accommodate Sisney’s

requests and yet maintain institutional

security, safety and order. Reisch took no

further action to ensure that Sisney’s right to

exercise his’ religion was not being

substantially burdened.

Weber was made aware of all of Sisney’s

claims in this action through the prison

grievance system. Weber denied all of the

Requests for Administrative Remedy and was

Pet. App. 5la

the final administrative appeal Sisney could

pursue for his requests at issue in this

lawsuit. Unlike the prisoner plaintiff in Boyd,

Sisney has produced evidence to show that

both Reisch and Weber knew about Sisney’s

allegations of discrimination and

constitutional deprivations, and has produced

evidence to show that despite this knowledge

they condoned the denial of Sisney’s requests

at issue in this action, which he contends

imposed a substantial burden on the exercise

of his religion. See Boyd, 47 F.3d at 969

(granting summary judgment in favor of

prison supervisors because the _ inmate

plaintiff failed to “offer any proof that the two

supervisors knew about his condition, let alone

that they were deliberately indifferent to his

serious medical needs.”). In light of Weber

and Reisch’s alleged personal involvement and

knowledge regarding Sisney’s requests for

religious accommodation, they are not entitled

to summary judgment on the grounds that

Sisney is seeking to hold them liable solely in

their supervisory capacities.

B. Individual and official capacity claims

under § 1983

“To state a claim under § 1983, a

plaintiff must allege the violation of a right

secured by the Constitution and laws of the

United States, and must show that the alleged

deprivation was committed by a person acting

under color of state law.” West v. Atkins, 487

Pet. App. 52a

U.S. 42,48 (1988) (citations omitted). Sisney

has alleged several violations of the Free

Exercise Clause of the First Amendment and

the Equal Protection Clause of the Fourteenth

Amendment and has asserted claims for

retaliation and denial of access to the courts.

He has also raised an independent statutory

claim under RLUIPA, which is subject to a

different standard than his constitutional

claims regarding the exercise of his religion.

As to the constitutional claims under § 1988, it

is clear that all Defendants acted under color

of state law. See id. at 49-50 (stating

“generally, a public employee acts under color

of state law while acting in his official

capacity or while exercising his

responsibilities pursuant to state law.”).

All Defendants are sued in both their

individual and official capacities. All claims

for monetary damages against the Defendants

in their official capacities are claims against

the State of South Dakota. See Johnson v.

Outboard Marine Corp., 172 F.3d 581,535 (8th

Cir. 1999). Damages claims against the State

are barred by the Eleventh Amendment,

unless South Dakota consented to suit or

Congress abrogated its immunity. See

Kentucky v. Graham,473 U.S. 159, 169 (1985)

(absent waiver by the State of South Dakota

or valid override by Congress, “the Eleventh

Amendment bars a damages action against a

State in federal court”); South Dakota

Pet. App. 58a

Constitution, Article III, Section 27; SDCL §

3-22-17, (the State of South Dakota has not

waived its Eleventh Amendment immunity for

damages actions in federal court). South

Dakota has not consented to suit under 42

U.S.C. § 1983 and Congress has not abrogated

South Dakota’s Eleventh Amendment

immunity under § 1988. Accordingly, all

claims for monetary damages against the

Defendants in their official capacity under 42

U.S.C. § 1983 are barred. Claims for monetary

damages under RLUIPA are discussed below.

The only situation in which state

officials acting in their official capacities will

be considered “persons” for purposes of §

1983, and the Eleventh Amendment will not

bar the § 1983 claim, is where the plaintiff is

seeking prospective relief. See Murphy v.

Arkansas, 127 F.8d 750, 754 (8th Cir. 1997).

Sisney seeks prospective relief in this action.

Accordingly, the § 1983 official-capacity claims

on which Sisney seeks prospective relief are

not barred by the Eleventh Amendment.

Although the official-capacity § 1983

claims seeking monetary damages against the

Defendants are barred by the Eleventh

Amendment, “damages awards against

individual defendants in federal courts ‘are a

permissible remedy in some circumstances

notwithstanding the fact that they hold public

office.’ That is, the Eleventh Amendment does

Pet. App. 54a

not erect a barrier against suits to impose

‘individual and personal liability’ on state

officials under § 1983.” Hafer v. Melo, 502

U.S. 21, 30381 (1991) (quoting Scheuer v.

Rhodes, 416 U.S. 232, 238 (1974)). State

officials sued in their individual capacities

may assert personal immunity defenses such

as qualified immunity. See Hafer, 502 U.S. at

25. All Defendants are sued in their individual

capacity for monetary damages, including

compensatory, nominal and punitive damages.

Therefore, the Court will consider’ the

individual capacity § 1983 claims against the

Defendants, including their qualified immunity

defenses.

if Individual and official capacity claims

under RLUIPA

Sisney seeks to hold Defendants liable in

both their individual and official capacities

under RLUIPA. If the Court upholds the

constitutionality of RLUIPA, Defendants

contend it may only be constitutionally applied

to provide a narrow class of remedies, for a

narrow class of claims, against a narrow class

of defendants. Defendants contend that only

official capacity claims for prospective or

injunctive relief against the State or final

policymakers may be maintained under

RLUIPA, because prospective relief is not

available against them in their individual

capacities. Defendants’ position is that the

Eleventh Amendment bars claims for money

Pet. App. 55a

damages against the States or against State

officials sued in their official capacities, thus

limiting relief under RLUIPA to prospective

relief against Defendants in their official

capacities. Moreover, Defendants contend

Defendant Weber, as the final policy maker

regarding the policies at issue in this lawsuit,

is the only proper defendant to the RLUIPA

claims in this action. Finally, Defendants

contend the Court lacks jurisdiction over

Sisney’s RLUIPA claim because he has not

established that the government’s programs or

activities receive federal financial assistance

er that the government’s actions are in some

way affecting interstate commerce. See 42

U.S.C. § 2000cc-1(b).

Sisney asserts he can recover both

monetary damages and injunctive relief for

RLUIPA violations against Defendants in both

their official and individual capacities. He

contends monetary damages are allowed on

the official capacity RLUIPA claims because

the State of South Dakota’s Eleventh

Amendment immunity is waived pursuant to

the Civil Rights Remedies Equalization Act of

1986 (the “Equalization Act”), 42 U.S.C. §

2000d-7, and the text of RLUIPA permits the

recovery of monetary damages.

RLUIPA’s remedial provision states in

relevant part, “A person may assert a

violation of this chapter as a claim or defense

Pet. App. 56a

in a judicial proceeding and obtain appropriate

relief against a government.” 42 U.S.C. §

2000cc-2(a). The term “government” under

RLUIPA is defined as: “(I) a State, county,

municipality, or other governmental entity

created under the authority of a State; (ii) any

branch, department, agency, instrumentality,

or official of an entity listed in clause (I); and

(iii) any other person acting under color of

State law[.]” 42 U.S.C. § 2000cc-5(4). There is

a division of authority among the federal

courts of appeals and district courts regarding

whether RLUIPA authorizes an award of

monetary damages, in addition to equitable

relief; whether individual capacity suits for

monetary damages are allowed = under

RLUIPA; and whether official capacity suits

under RLUIPA for monetary damages are

barred by the Eleventh Amendment.

The Eighth Circuit has not decided any

of these issues. In Murphy v. Missouri Dep’t

of Corr., 372 F.8d 979 (8th Cir. 2004), the

Eighth Circuit reversed the District Court’s

grant of summary judgment to prison officials

on the plaintiff prisoner’s RLUIPA claims.

The prisoner in Murphy sought monetary

relief, see 372 F.3d at 982, but the panel did

not address the availability of such relief in

reversing the District Court. The issue of

individual versus official capacity claims was

not address in Murphy, and _ Eleventh

Amendment immunity was not discussed.

Pet. App. 57a

Some courts, including two district courts in

the Eighth Circuit, have allowed prisoner

claims for monetary damages under RLUIPA

to proceed, but did not explicitly decide the

question or discuss the split of authority on

whether RLUIPA authorizes such relief. See

Shabazz v. Norris, 2007 WL 2819517 (E.D.

Ark. Sept. 26, 2007) (allowing action for

recovery of monetary damages under RLUIPA

to proceed, but limiting relief to nominal

damages under 42 U.S.C. § 1997e(e)); LZ/-

Tabech v. Clarke, 2007 WL 1487148, at *3 (D.

Neb. May 18, 2007) (noting prisoner plaintiffs

sought monetary relief for alleged RLUIPA

violations, but not explicitly deciding whether

monetary relief is available under RLUIPA);

Smith v. Allen, 502 F.3d 1255, 1270 (11th Cir.

2007) (collecting cases where district courts

have “assumed that money damages are

available, without actually deciding the

question.”). Another district court within the

Eighth Circuit found the individual prison

officials were subject to suit under RLUIPA

because they were “official[s] of an entity”

under 42 U.S.C. § 2000cc5(4)(A)(ii), but it is

not clear whether the court found prison

officials were subject to a monetary damages

claim in both their individual and official

capacities. See Robinson v. Kempker, 2007

WL 1385700, at *5-6 (E.D. Mo. May 8, 2007).

There is a wide division of authority on all of

these issues among the circuit and district

courts. For the reasons set forth below, the

Pet. App. 58a

Court concludes that individual capacity

claims are not allowed under RLUIPA, that

South Dakota’s Eleventh Amendment

immunity does not bar claims for monetary

damages under RLUIPA on official capacity

claims, pursuant to the Equalization Act, and

the remedies provision in RLUIPA allowing a

recovery of “appropriate relief against a

government” includes the _ potential of

recovering monetary damages against the

State of South Dakota on the official capacity

claims.

1. Individual capacity claim for

monetary damages under RLUIPA

Several courts have held that individual

capacity claims are not permitted under

RLUIPA. See Smith, 502 F.8d at 1271-75

(discussing at length the issue of individual

capacity claims under RLUIPA and concluding

that “section 3 of RLUIPA - a provision that

derives from Congress’ Spending Power

cannot be construed as creating a private

action against individual defendants for

monetary damages.”); Daker v. Ferrero, 475 F.

Supp. 2d 1825, 1335-47 (N.D. Ga. 2007),

vacated in part on other grounds, 506

F .Supp.2d 1295 (N.D. Ga. 2007) (same); Boles

v. Neet, 402 F. Supp. 2d 1287, 1240 (D. Colo.

2005) (interpreting 42 U.S.C. § 2000cc-2(a) “to

permit cases against a governmental entity,

but not against an individual officer, except

perhaps in his or her official capacity.”) (citing

Pet. App. 59a

Hale O Kaula Church v. Maui Planning

Comm’n, 229 F. Supp. 2d 1056, 1067 (D. Haw.

2002) (“RLUIPA provides a cause of action

against ‘government’ and does not appear to

allow causes of action against individuals.”);

Guru Nanak Sikh Society of Yuba City v.

County of Sutter, 326 ¥. Supp. 2d 1128, 1136

(E.D. Cal. 2003) (finding that the term

“government” includes an official of the entity,

and therefore permits suit against the official

at least in his or her official capacity); Rowe v.

Davis, 373 F. Supp. 2d 822, 828 (N.D. Ind.

2005) (RLUIPA claim may proceed against

correctional officer or his successor on an

official capacity basis)).

Other courts have held _ individual

capacity claims are allowed under RLUIPA.

These courts have held that the definition of

“a government” under RLUIPA includes

individual government officials and “any other

person acting under color of State law.” 42

Briley, 2006 WL 3523750, at *9-13 (N.D. Ill.

Dec. 6, 2006); Marsh v. Granholm, 2006

WL2439760, at *10-11 (W.D. Mich. Aug. 22,

2006). The district court in Agrawal,

concluded that “[iJf RLUIPA authorized only

official-capacity claims, subsection (iii) would

have no purpose because subsection (ii)

already authorizes claims against government

‘officials.’ See 42 U.S.C. § 2000cc-5(4)(A)(ii).”

Agrawal, 2006 WL 3523750, at *11. Other

Pet. App. 60a

district courts have allowed individual

capacity suits for money damages’ under

RLUIPA following the same rationale. See

Marsh, 2006 WL2439760, at *10-11 (following

the decision in Daker v. Ferrero, 2006 WI,

346440 (N.D. Ga. Feb. 138, 2006), in holding

that while § 2000cc-2(a) “does not explicitly

permit individual capacity suits for money

damages, it does not explicitly preclude them

either.”); Orafan v. Goord, 2003 WL 21972735,

at *9 (N.D.N.Y. Aug. 11, 2003) (interpreting

the “plain language” of § 2000cc5(4)(A) to

contemplate individual liability).

The Eleventh Circuit, however, found a

flaw with the district court decisions finding

the inclusion of “any other person acting

under color of State law,” in § 2000cc-

5(4)(A)(ili) authorizes individual capacity suits

for money damages. See Smith, 502 F.3d at

1272-75. The flaw is that RLUIPA was

enacted pursuant to Congress’ Spending

Power under Article I of the Constitution and

“Congress cannot use its Spending Power to

subject a non-recipient of federal funds,

including a state official acting [in] his or her

individual capacity, to private liability for

monetary damages.” Jd. at 1272-73. Prior to

the Eleventh Circuit’s decision in SmitA,

supra, the district court in the Northern

District of Georgia examined this rationale in

detail in Daker, 475 F. Supp. 2d at 1335-42,

and likewise concluded Section 3 of RLUIPA

Pet. App. 6la

does not authorize money damages against

prison officials in their individual capacities.

Although the Eighth Circuit has not

addressed individual capacity liability under

RLUIPA, it held that because Title IX was

enacted under the Spending Clause, “Title IX

will not support an action against [a school

official] in her individual capacity.” Kinman v.

Omaha Pub. Sch. Dist., 171 F.3d 607, 610-11

(8th Cir. 1999). This is the same rationale

adopted by the Eleventh Circuit in Smith,

supra, and the Northern District of Georgia in

Daker, 475 F. Supp. 2d at 1335-42, for

rejecting individual capacity liability under

RLUIPA. Given the Eighth Circuit’s holding

in Kinman, the Court agrees with the

Eleventh Circuit’s decision in Smith, that,

“section 3 of RLUIPA - a provision that

derives from Congress’ Spending Power

cannot be construed as creating a private

action against individual defendants for

monetary damages.” 502 F.3d at 1275.8

8 Likewise, the Court agrees with the Eleventh

Circuit that despite the reference to Congress’

Commerce Clause Power in 42 U.S.C. § 2000cc-i(b),

RLUIPA “hinges on Congress’ Spending Power rather

than its Commerce Clause Power.” Smith, 502 F.3d at

1274 & n.9; see Daker, 475 F. Supp. 2d at 1342-47

(concluding that construing Section 3 of RLUIPA to

authorize money damages actions against prison

officials in their individual capacity based upon

Congress’ use of its power under the Commerce

Clause would raise “serious constitutional concerns.”).

Pet. App. 62a

2. Official capacity claim for monetary

damages and Eleventh Amendment

immunity under RLUIPA

In this section, the Court will address

the questions of whether the State of South

Dakota is entitled to Eleventh Amendment

immunity from monetary damages and, if not,

whether monetary damages are recoverable

under RLUIPA. The Supreme Court declared

that federal courts are to “‘find waiver [of

sovereign immunity] only where stated by the

most express language oor by ~ such

overwhelming implications from the text as

[will] leave no room for any other reasonable

construction.’” College Sav. Bank v. Florida

Prepaid Postsecondary Educ. Expense Bd.,

527 U.S. 666, 678 (1999) (quoting Edelman v.

Jordan, 415 U.S. 651, 673 (1974) (internal

quotation marks omitted)). Stated in another

way, ‘““an abrogation of Eleventh Amendment

immunity by Congress must be expressed in

unmistakably clear language.” Jd. (quoting

Welch v. Texas Dep’t of Highways and Pub.

Transp. 483 U.S. 468, 478 & n. 8 (1987)).

Similar to individual capacity claims,

there is a division of authority among federal

courts regarding whether the Eleventh

Amendment bars’ recovery of monetary

damages for official capacity claims under

RLUIPA. Two federal courts of appeal have

ruled on this issue, as well as several district

courts. The Eleventh Circuit held’ the

Pet. App. 68a

Eleventh Amendment does not bar a recovery

of monetary damages against a prison official

in his or her official capacity. See Smith, 502

F.3d at 1276 & n1l2. In Smith, the Eleventh

Circuit stated that in Benning v. Georgia, 391

F.3d 1299, 1305 (llth Cir. 2004), it “held that

section 3 of RLUIPA effectuated a clear

waiver of the state’s sovereign immunity

under the Eleventh Amendment[.]” In

Benning, without any significant analysis, the

Eleventh Circuit stated: “Congress

unambiguously required states to waive their

sovereign immunity from. suits filed by

prisoners to enforce RLUIPA” 391 F.3d at

1305. The Eleventh Circuit concluded in

Smith, that in light of this holding in Benning,

“the Eleventh Amendment will not shield the

state (and its agents) from an official capacity

action for damages under RLUIPA.” 502 F.3d

at 1276 & n.12.

At least one district court has agreed

with the Eleventh Circuit that the Eleventh

Amendment does not bar monetary damages

under RLUIPA against states and state

officials in their official capacities. See Price

v. Caruso, 451 F. Supp. 2d 889, 902 (E.D. Mich.

2006) (finding that Congress required States

to waive their sovereign immunity under

RLUIPA, including suits for money damages,

in exchange for accepting federal prison

funding).

Pet. App. 64a

Contrary to the Eleventh Circuit, the

Fourth Circuit held the Eleventh Amendment

immunity for official capacity claims for

monetary damages is not waived in RLUIPA.

See Madison v. Virginia, 474 F.3d 118, 130-33

(4th Cir. 2006). In Madison, the Fourth

Circuit cited the Eleventh Circuit’s decision in

Benning, and recognized that, “(bly

voluntarily accepting federal correctional

funds, [the State of Virginia] consented to

federal jurisdiction for at least some form of

relief.” Madison, 474 F.3d at 130 (citing

Benning, 391 F.3d at 1306). The Fourth

Circuit held, “{[t]hat RLUIPA unambiguously

conditions federal prison funds on a State’s

consent to suit, however, does not end our

inquiry. Congress is, of course, free to

condition funds upon a waiver of ‘sovereign

immunity against liability without waiving [a

State’s] immunity from monetary damages

awards.” Madison, 474 F.3d at 131 (quoting

Lane v. Pena, 618 U.S. 187, 196 (1996); see

Lovelace v. Lee, 472 F.3d 174, 193-94 (4th Cir.

2006) (following Madison, supra, and rejecting

claim for monetary damages against prison

official in his official capacity). The Fourth

Circuit concluded that “RLUIPA’s

‘appropriate relief against a government’

language falls short of the unequivocal textual

expression necessary to waive State immunity

from suits for damages.” Madison, 474 F.3d at

131.

Pet. App. 65a

Several district courts have held that

the Eleventh Amendment bars claims for

monetary damages against states and state

officials in their official capacity, including

two district courts in the Eighth Circuit. See

Toler v. Leopold, 2007 WL 2907889, at *1

(E.D. Mo. Oct. 1, 2007) (granting summary

judgment on prisoner’s RLUIPA claims for

monetary damages against the Missouri

Department of Corrections and following

Madison, 474 F.3d at 131, in finding the

“appropriate relief against a government”

provision in RLUIPA “falls short of the

unequivocal textual expression necessary to

waive State immunity from. suits for

damages.”); TVoler v. Leopold, 2007 WL

2238661, at *5 (E.D .Mo. Jul. 31, 2007) (same

and granting summary judgment to individual

prison officials on prisoner’s RLUIPA claims

for monetary damages against them in their

official capacities); Dean v. Blum, 2007 WL

2264615, at *7 (D. Neb. Aug. 6, 2007) (holding

that the Eleventh Amendment bars official

capacity claims for monetary damages under

RLUIPA, but not’ discussing whether

Nebraska consented to suit under RLUIPA);

Nelson v. Miller, 2007 WL 294276, at *9 (S.D.

Ill. Jan. 30, 2007) (finding that: (a) Congress

cannot abrogate a state’s Eleventh

Amendment immunity under RLUIPA,

because it was enacted pursuant to Congress’

Article I power; and (b) that Congress did not

unambiguously express its intent in RLUIPA

Pet. App. 66a

that a state must waive its sovereign

immunity as to suits for money damages if the

state accepts federal prison funds); Agrawal,

2006 WL 3523750, at *5-9 (disagreeing with

the Eleventh Circuit’s decision in Benning,

supra, and finding that RLUIPA does not

“demonstrate a clear intent to require a state

to waive its immunity in exchange for its

receipt of federal funds.”); Bila/ v. Lehman,

2006 WL 3626808, at *5 (W.D. Wash. Oct. 2,

2006) (recognizing that “a state’s immunity to

suits by private citizens is . . . subject to the

exception that a state may consent to suit,”

but finding Washington “has not expressly

waived its immunity in regard to [the

prisoner’s] § 19838 and RLUIPA claims.”).

The Court does not agree with the

Eleventh Circuit and the district court for the

Eastern District of Michigan that by entering

into a funding contract with the Federal

government by accepting federal prison funds

ipso facto waives the State’s Eleventh

Amendment immunity for monetary damages

under RLUIPA. Rather, Congress must use

“unmistakably clear language” to effect such a

waiver. Welch v. Texas Dep’t of Highways

and Pub. Transp., 483 U.S. 468, 478 & n.8

(1987). The Court agrees with the Fourth

Circuit’s observation that, “veneral

participation in a federal program or the

receipt of federal funds is insufficient to waive

sovereign immunity.” Madison, 474 F.3d at

Pet. App. 67a

130 (citing Atascadero State Hosp. v. Scanlon,

473 U.S. 234, 246-47 (1985)).

In addition to the above case law on

RLUIPA, analogous case law considering the

federal government’s sovereign immunity

under RFRA is_ instructive. Although

RLUIPA and RFRA are not identical, the

remedial provision allowing “appropriate

relief against a government” is the same in

both statutes. See 42 U.S.C. § 2000cc-2(a)

(RLUIPA provides: “A person may assert a

violation of this chapter as a claim or defense

in a judicial proceeding and obtain appropriate

relief against a government.”); and 42 U.S.C. §

2000bb-I(c) (RFRA provides: “A person whose

religious exercise has been burdened in

violation of this section may assert that

violation as a claim or defense in a judicial

proceeding and obtain appropriate relief

against a government.”). Examining this

remedial language, the District of Columbia

Circuit held the United States’ sovereign

immunity for monetary damages was not

waived in RFRA:

On its face, RFRA’s reference to

‘appropriate relief’ is not, the

“sort of unequivocal waiver that

our precedents demand,” Lane,

518 U.S. at 198, because that

broad term is susceptible to more

than one interpretation. In some

Pet. App. 68a

contexts, ‘appropriate relief’

might include damages. Cf West

v. Gibson, 527 U.S. 212, 222-23,

119 S. Ct. 1906, 144 L. Ed. 2d 196

(1999) (holding that Title VII’s

reference to “appropriate

remedies” contemplates

compensatory damages where a

statutory cross-reference

explicitly autho

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