                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
      ___________

      No. 08-1409
      ___________

                                        *
James Dean Van Wyhe,                    *
                                        *
             Appellee,                  *
                                        *
      v.                                *
                                        *
Tim Reisch; Douglas          Weber;     *
Jennifer Wagner,                        *
                                        *
             Appellants.                *

      __________
                                                Appeals from the United States
      No. 08-1413                               District Court for the
      __________                                District of South Dakota.



Charles E. Sisney,                      *
                                        *
             Appellee,                  *
                                        *
      v.                                *          [PUBLISHED]
                                        *
Tim Reisch, in both his individual      *
and official capacities as Secretary    *
of Corrections for South Dakota;        *
Douglas L. Weber, in both his           *
individual and official capacities as   *
Chief Warden for the Department         *
of Corrections of South Dakota;         *
Dennis Block, in both his individual      *
and official capacities as Associate      *
Warden for the South Dakota State         *
Penitentiary; Jennifer Wagner, in         *
both her individual and official          *
capacities as Cultural Activities         *
Coordinator for the South Dakota          *
State Penitentiary, also known as         *
Jennifer Lane; Daryl Slykhuis,            *
Interim Warden of the South               *
Dakota State Penitentiary, in his         *
individual and official capacity,         *
                                          *
          Appellants.                     *
_____________                             *
                                          *
United States of America,                 *
                                          *
      Intervenor below - Appellee.        *

                                 ________________

                            Submitted: November 13, 2008
                               Filed: September 10, 2009
                               ________________

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

                                         -2-
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 v. Reisch, 536
F. Supp. 2d 1110 (D.S.D. 2008); Sisney v. Reisch, 533 F. Supp. 2d 952 (D.S.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.

                                          I.
                                   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 Weber, 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; Daryl 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

                                           -3-
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 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 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.

                                          -4-
       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 immediately
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.

       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 Prison Litigation
Reform Act of 1995 (PLRA), 42 U.S.C. § 1997e(e). Injunctive relief was also held to

                                          -5-
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 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 prison 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,

                                          -6-
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.

       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.

                                          II.
                                     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, 593-94 (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 summary judgment was based on disputes
over the sufficiency of the evidence, that is, "which facts a party may, or may not, be

                                            -7-
able to prove at trial," Johnson v. Jones, 515 U.S. 304, 313 (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 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:




                                           -8-
            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.

42 U.S.C. § 2000cc-1(a) (1)-(2) ("Section 3"). Section 3 of RLUIPA protects inmate
religious exercise1 in this manner "when the substantial burden is imposed in a program
or activity2 that receives Federal financial assistance." Id. § 2000cc-1(b)(1).3 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 persuasion on every other element of the claim. Id. § 2000cc-2(b).


       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.
       2
        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. § 2000cc-1(b)(2), but because the undisputed facts of this case do not
affect commerce, this appeal reaches only RLUIPA's federal funding underpinnings.


                                           -9-
                          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 (11th Cir.
2004); Charles v. Verhagen, 348 F.3d 601, 606-11 (7th Cir. 2003); Mayweathers v.
Newland, 314 F.3d 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.3d
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.

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


                                         -10-
       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 participation is the result of a knowing and informed choice, (3) 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-1(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 opposite is shaped by Congress" in the first instance. Dole, 483 U.S. at 208
(internal marks omitted). Congress has determined that encouraging greater protection
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

                                           -11-
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 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 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.


                                           -12-
       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
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
institution's 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,

                                           -13-
494 U.S. 872, 890 (1990), "explicitly left [the question of whether to provide]
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
immunity under Section 504 of the Rehabilitation Act. 345 F.3d 593, 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. "[H]ard choices

                                          -14-
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
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 (considering


       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. Fl. Prepaid Postsecondary 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,

                                          -15-
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., 503 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., 503 U.S. at 34
(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


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.

                                          -16-
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. 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 all 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, 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.,

                                         -17-
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 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.5 Congress understands how


       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.3d 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 welfare. As such, this statement is not authoritative in

                                          -18-
to create a 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
equal 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 133. Absent an unequivocal textual indication that CRREA
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 RLUIPA Claims


determining the scope of the state's waiver of immunity.

                                          -19-
       We next consider the surviving official-capacity RLUIPA claims.6 No claims
survive 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, 755-56 (8th Cir. 2004) (noting we have
"jurisdiction to decide closely related issues of 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


       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
individual 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.

                                           -20-
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 F.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 832-33 (acknowledging that we apply the
definition of substantial burden set forth 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 Succah: 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.7 (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 exercise was "substantially burdened,"


       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.

                                            -21-
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 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

                                            -22-
an inmate was permitted three hours of group worship time, the denial of one extra
hour per week did not 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 religious exercise, but the
inmate does bear the burden of establishing a substantial 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.

       c. The Tape Player: The prison officials denied Sisney's request to have and use
a tape player in his cell for religious language 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

                                         -23-
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 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). "The violation lies in the intent to impede access to the courts."

                                          -24-
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 conclusions 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 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.
                         ______________________________




                                          -25-
