Full opinion text
MEMORANDUM OPINION AND ORDER LAWRENCE L. PIERSOL, District Judge. 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 Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. §§ 2000ce-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 motion 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 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 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 130, and in paragraphs 6, 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: sueeah, 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. 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. 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.CivP. 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.3d 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 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, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). See Cutter v. Wilkinson, 544 U.S. 709, 714-15, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005) (setting forth the history of the enactment of RFRA and RLUIPA). RLUIPA is similar to, but not identical to, RFRA. See id. at 715-16,125 S.Ct. 2113. 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 superi- or. See Choate v. Lockhart, 7 F.3d 1370, 1376 (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.’ ” Ripson v. Alles, 21 F.3d 805, 809 (8th Cir.1994) (quoting Clay v. Conlee, 815 F.2d 1164, 1170 (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.’ ” Id. 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 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 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (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 § 1983, it is clear that all Defendants acted under color of state law. See id. at 49-50, 108 S.Ct. 2250 (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 531, 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, 105 S.Ct. 3099, 87 L.Ed.2d 114 (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 Constitution, Article in, 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 § 1983. 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.3d 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 not erect a barrier against suits to impose ‘individual and personal liability’ on state officials under § 1983.” Hafer v. Melo, 502 U.S. 21, 30-31, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) (quoting Scheuer v. Rhodes, 416 U.S. 232, 238, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). State officials sued in their individual capacities may assert personal immunity defenses such as qualified immunity. See Hafer, 502 U.S. at 25, 112 S.Ct. 358. 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. C. 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 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 or that the government’s actions are in some way affecting interstate commerce. See 42 U.S.C. § 2000cc-l(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 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. § 2000ec-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.3d 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 addressed in Murphy, and Eleventh Amendment immunity was not discussed. 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)); El-Tabech v. Clarke, 2007 WL 1487148, at *3 (D.Neb. May 18, 2007) (noting prisoner plaintiffs sought monetary relief for alleged RLUI-PA 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 “officials] of an entity” under 42 U.S.C. § 200Occ — 5(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 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.3d 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 1325, 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 1237, 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 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 F.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 U.S.C. § 2000cc-5(4)(A)(ii-iii); see Agrawal v. Briley, 2006 WL 3523750, at *9-13 (N.D.Ill.Dec.6, 2006); Marsh v. Granholm, 2006 WL 2439760, at * 10-11 (W.D.Mich. Aug.22, 2006). The district court in Agrawal, concluded that “[i]f 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 district courts have allowed individual capacity suits for money damages under RLUIPA following the same rationale. See Marsh, 2006 WL 2439760, at *10-11 (following the decision in Daker v. Ferrero, 2006 WL 346440 (N.D.Ga. Feb.13, 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 § 2000cc-5(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)(iii) 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.” Id. at 1272-73. Prior to the Eleventh Circuit’s decision in Smith, 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 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. 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 or 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, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999) (quoting Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (internal quotation marks omitted)). Stated in another way, “ ‘an abrogation of Eleventh Amendment immunity by Congress must be expressed in unmistakably clear language.’ ” Id. (quoting Welch v. Texas Dep’t Of Highways and Pub. Transp. 483 U.S. 468, 478 & n. 8, 107 S.Ct. 2941, 97 L.Ed.2d 389 (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 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 & n. 12. In Smith, the Eleventh Circuit stated that in Benning v. Georgia, 391 F.3d 1299, 1305 (11th 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). 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, “[b]y 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, 518 U.S. 187, 196, 116 S.Ct. 2092, 135 L.Ed.2d 486 (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. 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 RLUI-PA “falls short of the unequivocal textual expression necessary to waive State immunity from suits for damages.”); Toler 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 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.”); Bilal 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] § 1983 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, 107 S.Ct. 2941, 97 L.Ed.2d 389 (1987). The Court agrees with the Fourth Circuit’s observation that, “general participation in a federal program or the receipt of federal funds is insufficient to waive sovereign immunity.” Madison, 474 F.3d at 130 (citing Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 246-47, 105 S.Ct. 3142, 87 L.Ed.2d 171 (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-1(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, 116 S.Ct. 2092, because that broad term is susceptible to more than one interpretation. In some 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 compensate-ry damages where a statutory cross-reference explicitly authorizes them). However, another plausible reading is that “appropriate relief’ covers equitable relief but not damages, given Congress’s awareness of the importance of sovereign immunity and its silence in the statute on the subject of damages. We cannot find an unambiguous waiver in language this open-ended and equivocal. Webman v. Federal Bureau of Prisons, 441 F.3d 1022, 1026 (D.C.Cir.2006). Although Webman involved the United States’ sovereign immunity, Congress must use the same type of unequivocal language if it intends to impose waiver of a State’s sovereign immunity as a condition for accepting federal funds. The Supreme Court equated federal sovereign immunity to State’s sovereign immunity in discussing the unequivocal language Congress must use if it intends that States must waive their immunity if they take certain actions: [I]n the context of federal sovereign immunity — obviously the closest analogy to [state sovereign immunity] — it is well established that waivers are not implied. See, e.g., United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969) (describing the “settled propositio[n]” that the United States’ waiver of sovereign immunity “cannot be implied but must be unequivocally expressed”). We see no reason why the rule should be different with respect to state sovereign immunity. College Sav. Bank, 527 U.S. at 682, 119 S.Ct. 2219. The Court finds Congress did not unambiguously require a State to waive its Eleventh Amendment immunity for monetary damages under RLUIPA by accepting federal prison funds. Like the Webman court found as to RFRA, “appropriate relief’ might include the recovery of monetary damages, but an equally plausible interpretation is that it refers solely to equitable relief. 441 F.3d at 1026. Accordingly, the Court agrees with the Fourth Circuit in Madison, 474 F.3d at 131, and the Northern District of Illinois in Agrawal, 2006 WL 3523750, at *9, to the extent that they found a State’s Eleventh Amendment immunity to an official capacity claim for monetary damages is not waived by unmistakably clear language in the text of RLUIPA. That a State’s Eleventh Amendment immunity is not waived by the text of RLUIPA, however, does not end the inquiry. Sisney contends the Civil Rights Remedies Equalization Act of 1986 (“the Equalization Act”), 42 U.S.C. § 2000d-7, contains the required unequivocal waiver of state sovereign immunity. That statute provides in relevant 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 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 Federal statute prohibiting discrimination by recipients of Federal financial assistance. 42 U.S.C. § 2000d-7(a)(1). The Fourth Circuit examined the potential applicability of the Equalization Act to RLUIPA. Finding that RLUIPA is not like the statutes expressly listed in the Equalization Act, the Fourth Circuit held, “it is not clear that RLUIPA is a ‘Federal statute prohibiting discrimination’ and ambiguity again defeats plaintiffs claim that Virginia, by accepting federal funds, knowingly consented for damages actions to be brought against it.” Madison, 474 F.3d at 133. The Court does not find the rationale in Madison, supra, persuasive on this issue. RLUIPA was enacted, in part, to prohibit discrimination by prison officials against prisoners who desire to exercise their religious beliefs. The Seventh Circuit observed 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 v. Verhagen, 348 F.3d 601, 607 (7th Cir.2003) (quoting Mayweathers v. Newland, 314 F.3d 1062, 1066-67 (9th Cir.2002)). The right to exercise one’s religion is clearly a fundamental freedom and Congress found that prison officials were discriminating against prisoners who sought to exercise their religious beliefs. Accordingly, the Court finds that RLUIPA is a “Federal statute prohibiting discrimination by recipients of Federal financial assistance”, and the Court agrees with Sisney that South Dakota’s sovereign immunity for monetary damages on official capacity claims under RLUIPA is waived under the Equalization Act by its acceptance of federal prison funding. 42 U.S.C. § 2000d-7(a)(1). Having concluded the State is not immune from monetary damages by operation of the Eleventh Amendment, the next question becomes whether RLUIPA itself allows for the recovery of monetary damages. The remedies’ provision in RLUIPA allows an inmate to “obtain appropriate relief against a government.” 42 U.S.C. § 2000ec-2(a). For Congress to authorize the recovery of monetary damages in a statute, it is not required to use the same unequivocal language necessary for a finding of waiver of Eleventh Amendment immunity. The Eleventh Circuit examined in depth the issue of whether RLUIPA authorizes an award of monetary damages, and concluded that the use of the phrase “appropriate relief’ in RLUIPA, 42 U.S.C. § 2000ec(a), “is broad enough to eneom-pass the right to monetary damages in the event a plaintiff establishes a violation of the statute. Congress expressed no intent to the contrary within RLUIPA, even though it could have, by, for example, explicitly limiting the remedies set forth in § 2000cc(a) to injunctive relief only.” Smith, 502 F.3d at 1269-71. The Smith court assumed 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 the Supreme Court in Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 73, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992), and its progeny. Smith, 502 F.3d at 1270-71. Accordingly, the Eleventh Circuit stated “[i]n light of that presumption, we conclude that, absent an intent to the contrary, the phrase ‘appropriate relief in RLUIPA encompasses monetary as well as injunctive relief.” Id. at 1271. The Fourth and District of Columbia Circuits also recognized that the phrase “appropriate relief’ could be interpreted to include an award of monetary damages. See Madison, 474 F.3d at 131-32 (finding that the phrase “appropriate relief’ could be interpreted in different ways and that it “might be read to include damages[.]”); Webman, 441 F.3d at 1026 (finding that the phrase “appropriate relief’ is “susceptible to more than one interpretation” and that in some contexts it could include monetary damages). Despite the Court’s disagreement with the Eleventh Circuit on the question of sovereign immunity, the Court does agree with the Eleventh Circuit’s decision that the phrase “appropriate relief’ in RLUIPA encompasses the recovery of monetary damages. See Smith, 502 F.3d at 1269-71. Even if RLUIPA did not contain the remedies provision allowing an inmate to “obtain appropriate relief against a government”, the Supreme Court’s decision in Barnes v. Gorman, 536 U.S. 181, 187, 122 S.Ct. 2097, 153 L.Ed.2d 230 (2002), provides authority for the Court’s holding that RLUIPA authorizes the recovery of compensatory damages. RLUIPA was enacted under Congress’ Spending power and in discussing Spending Clause legislation, the Supreme Court held that: “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.” Barnes, 536 U.S. at 187, 122 S.Ct. 2097. Congress did not preclude an award of monetary damages under RLUIPA, which is Spending Clause legislation, and pursuant to Barnes, the State of South Dakota would have been 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. For the reasons set forth above, the Court concludes the State of South Dakota’s Eleventh Amendment immunity is waived under the Equalization Act, 42 U.S.C. § 2000d-7(a), due to its acceptance of federal prison funds, and that RLUIPA allows the potential for recovery of monetary damages against the State on his official capacity RLUIPA claims. 3. Monetary damages are limited under the PLRA The Prisoner Litigation Reform Act of 1995 (“PLRA”), 42 U.S.C. § 1997e(e), states: “No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.” Id. Some courts that have held monetary relief is authorized by RLUIPA, also find such damages are limited by the PLRA to the extent the prisoner plaintiff has not made a showing of physical injury in addition to mental or emotional injury. See Smith, 502 F.3d at 1269-71 (collecting cases). RLUIPA addresses the application of the PLRA: “Nothing in this chapter shall be construed to amend or repeal the Prison Litigation Reform Act of 1995 (including provisions of law amended by that Act).” 42 U.S.C. § 2000cc-2(e). By this provision, Congress clearly anticipated the PLRA would apply to RLUIPA claims. In the present case, Sisney has not alleged he suffered any physical injury as a result of Defendants’ actions in this case. Accordingly, Sisney is limited to recovery of nominal damages on his official capacity RLUIPA claims. See Royal v. Kautzky, 375 F.3d 720, 724 (8th Cir.2004) (holding that an inmate may recover an award of nominal damages under the PLRA despite the lack of a physical injury). The PLRA further restricts a prevailing prisoner plaintiff to “an award of attorney fees for 150 percent of the damages award.” Royal, 375 F.3d at 725 (citing 42 U.S.C. § 1997e(d)(2)). “[O]ne dollar is recognized as an appropriate value for nominal damages.” Corpus v. Bennett, 430 F.3d 912, 916 (8th Cir.2005). Accordingly, if Sisney recovers $1.00 for nominal damages he will be restricted to recovering $1.50 for his attorney fees. See id. In view of the Congressional allowance of substantial attorney fees in other civil cases where nominal or limited damages are awarded, it could be that $1.50 in attorney fees is an unintended consequence. Punitive damages are also sought on the RLUIPA claims. Even if punitive damages were available on the official capacity RLUIPA claims, which the Court is not deciding in this action, the Court finds no evidentiary basis for an award of punitive damages in this case as there is no evidence in this record that Defendants’ actions were “ ‘motivated by evil motive or intent, or ... involve[d] reckless or callous indifference to the federally protected rights’ ” of Sisney. Id. at 724 (quoting Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983)). D. Motion to Strike For various reasons Defendants moved to strike Sisney’s Affidavit and attachments, Doe. 247, that were filed in support of his resistance to Defendants’ summary judgment motion. The Eighth Circuit explained that in ruling on a summary judgment motion, “[w]e consider only admissible evidence and disregard portions of various affidavits and depositions that were made without personal knowledge, consisted of hearsay, or purported to state legal conclusions as facts.” Murphy, 372 F.3d at 982. Certain portions of Sisney’s Affidavit and attachments contain statements made without personal knowledge, consist of hearsay and purport to state legal conclusions as facts. Rather than strike Sisney’s Affidavit and attachments from the record, however, the Court will disregard those portions that are not admissible evidence. Accordingly, Defendants’ motion to strike will be denied. E. Merits of RLUIPA Claims “By enacting RLUIPA, Congress established a statutory free exercise claim encompassing a higher standard of review than that which applies to constitutional free exercise claims.” Murphy, 372 F.3d at 986. The applicable statute provides: 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). A threshold matter Sisney is required to establish, is that there is a substantial burden on his ability to exercise his religion. See 42 U.S.C. § 2000cc-2(b). In 2004, the Eighth Cir-euit held that to meet this threshold showing, the government policy or actions: must “significantly inhibit or constrain conduct or expression that manifests some central tenet of a [person’s] individual [religious] beliefs; 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.” Murphy, 372 F.3d at 988 (quoting Weir v. Nix, 114 F.3d 817, 820 (8th Cir.1997)). Thus, the Eighth Circuit directed that courts determine whether the conduct or expression constrained by prison officials was a “central tenet” of or “fundamental” to the prisoner’s religion. In Cutter, however, the Supreme Court explained that, “RLUIPA bars inquiry into whether a particular belief or practice is ‘central’ to a prisoner’s religion.” 544 U.S. at 725 & n. 13, 125 S.Ct. 2113 (citing 42 U.S.C. § 2000cc-5(7)(A)). In determining that courts are not to look to the centrality of the belief or practice, the Supreme Court cited the provision in RLUIPA that defines “religious exercise” to “include any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A). Accordingly, in determining whether any of the Defendants’ policies or actions imposed a substantial burden on Sisney’s exercise of his religion, the Court will follow the Supreme Court’s direction in Cutter, supra, and will not question whether the particular belief or practice Sisney seeks to express or do is central to the exercise of his religion. That does not mean that just any claimed belief or practice will go without examination. Sisney contends several governmental policies and actions have imposed a substantial burden on his ability to exercise his religion, which will each be examined below to determine whether Sisney has met the threshold showing and, if so, the Court will determine whether there is any genuine issue of material fact remaining for trial on whether Defendants have met their burden of persuasion under RLUI-PA. Defendants contend that Sisney’s professed religious beliefs are not sincerely held, and the Court finds based upon all the evidence in this case that there is a genuine issue of material fact remaining for trial on the sincerity of Sisney’s religious beliefs. 1. Succah or Sukkot Booth One of Sisney’s primary claims is that he has not been allowed to use a succah or Sukkot Booth during the feast of Sukkot. A succah is a booth in which individuals practicing Judaism eat their meals during the one-week feast of Sukkot. Sisney does not own a succah, but one was donated to the Jewish inmates at the SDSP by some inmates at the Mike Durfee State Prison in Springfield, South Dakota, a separate South Dakota Department of Corrections (“SDDOC”) facility. The succah donated to the SDSP Jewish group has a metal frame, to which canvass is attached to make it a three-sided booth. Only one person can fit in the booth at any one time. In a Project Application filed on June 17, 2003, Sisney requested that the Jewish inmate's be allowed to erect a succah outdoors in the SDSP’s recreation yard and eat their meals in the succah. Alternatively, Sisney asked that the Jewish inmates eat their meals at the normal time and place but be given additional time at the end of the day to recite special prayers. Sisney states that he had already been told by Wagner that his request for a succah would be denied before he filed the Project Application, so he decided to include the alternate request to at least be given additional prayer time. (Sisney Affidavit, Doc. 247 ¶¶ 49, 64.) Sisney produced affidavits from two inmates who were confined in the Mike Dur-fee State Prison, during September 2002, who observed an inmate, Phillip Heftel, erect a succah. (Sisney Affidavit, Doc. 247, Ex. E.) Heftel, also an inmate who practices Judaism, entered into a settlement agreement with the SDDOC and its employees in February 2000, regarding several aspects of Heftel’s practice of the Jewish religion. Even if Sisney were found to be a third-party beneficiary of this agreement, use of a succah was not specifically discussed in the Settlement Agreement. Sisney’s request for use of a succah was denied by Defendant Block. But Sisney was granted additional time each evening to meet and recite special prayers during the feast of Sukkot. Sisney renewed his request to use a succah in his Project Application relating to High Holy Days for 2004. (Sisney Affidavit, Doc. 247, Ex. Y.) The Project Application requested a time to set up the Sukkot Booth and to consume the lunch meal in the succah for seven days. The request to erect a succah in the 2004 Projection Application was denied for the following reasons: SDSP Policy prohibits the inmate-to-inmate transfer of property. The Springfield inmates [at the Mike Durfee State Prison] may not give you a booth. We also examined the booth from Springfield and determined that its placement in the prison yard creates numerous safety, security and staffing problems. Such problems include, but are not limited to, the following: a. The booth constitutes a security threat because the poles could be used as weapons, or inmates in the booth are shielded from the view of officers that would conceal from view illicit and prohibited activities. Unlike the Native American Sweat-lodge, the Sukkah is intended to be temporary and can easily be torn apart and does not protect against all forms of weather. b. Staffing and logistics surrounding dining and recreation time makes it impossible to facilitate the request to eat meals in the yard; c. Policy prevents inmates from possessing food or eating meals in the yard; d. The booth is not large enough to accommodate all of the Jewish inmates; (Sisney Affidavit, Doc. 247, Ex. Y.) The response to the Project Application further states “[a]s an accommodation, the Jewish inmates are granted one half hour each day of Sukkot to recite the blessings over the four species every evening of Sukkot from 4:45 pm — 5:15 pm in the Phone Room.” (Id.) Sisney renewed his request to use a succah in 2005 and 2006, but he has not been allowed to erect and use a succah. (Id.) The evidence produced by Sisney satisfies his burden of showing, as a threshold matter, that the denial of a Sukkot Booth is a substantial burden on Sisney’s ability to exercise his religion. Sisney has produced “prima facie evidence to support a claim alleging ... a violation of [42 U.S.C. § ] 2000ec” as to the denial of a Sukkot Booth in the years 2004, 2005 and 2006. 42 U.S.C. § 2000cc-2(b). Accordingly, the burden of persuasion, as well as the burden to establish the absence of any genuine issue of material fact, shifts to Defendants on the issue of whether denial of the Sukkot Booth was the least restrictive means to further a compelling governmental interest. Defendants’ suggestion that Sisney’s Project Application “was essentially a request that the state provide [a Sukkah] to the inmates free of charge”, Doc. 216 at p. 17, is a red herring. Sisney has not suggested that the SDDOC provide him a Sukkot Booth at no charge. Rather, Sis-ney seeks to utilize the Sukkot Booth that was donated to him and other inmates practicing the Jewish faith. Defendants assert the denial of a Sukkot Booth was based on compelling concerns of institutional safety, order, and security. While the Court acknowledges the Defendants have a compelling interest in institutional security, “[n]evertheless, [they] must do more than merely assert a security concern.” Murphy, 372 F.3d at 988. The Eighth Circuit explained, “[a]lthough we give prison officials “wide latitude within which to make appropriate limitations’, they ‘must do more than offer conclusory statements and post hoc rationalizations for their conduct.’ ” Id. at 988-89 (quoting Hamilton v. Schriro, 74 F.3d 1545 (8th Cir.1996)). In the rejection of Sisney’s request to use the succah, Block compared the succah to the Native American sweat-lodge. Sisney contends a Sukkot Booth poses significantly less security risk than the Native American sweatlodge that is maintained in the recreation yard and used by hundreds of Native American inmates. Although the poles from the succah could be used as weapons if the canvass was removed from them, Sisney produced evidence that there are metal rakes, shovels and other tools in the sweatlodge that would provide a greater security risk because of their ease of accessibility to inmates. Moreover, the succah is used only seven days per year, but the sweatlodge is used by inmates year around. Allowing inmates to transfer property to other inmates is a security concern raised by Defendants in relation to the Sukkot Booth, because the booth Sisney desires to use was donated by other inmates. To eliminate the risk of inmates transferring contraband, SDSP officials may thoroughly examine the donated succah to ensure no contraband is concealed in it before allowing Sisney access to the booth. Another security concern asserted by Defendants is the inability to view the Jewish inmates at all times in the recreation yard. This reason is questionable given that inmates using the sweatlodge are fully concealed from SDSP officers with no correctional staff supervision in the sweatlodge. The succah has only three sides, allowing correctional staff to view the inmate sitting in the succah. In the denial of Sisney’s request to use the donated succah, Block states it is “impossible” to facilitate the request to eat meals in the yard during dining time. Sisney, however, did not request to eat meals in the recreation yard during dining time. Rather, he requested to eat meals in the succah during regular recreation time. Based upon the existing record and the discussion above, the Court finds there is a genuine issue of material fact remaining for trial on the issue of whether denial of a succah or Sukkot Booth in 2003 through 2006 was the least restrictive means of furthering SDDOC’s compelling governmental interests. Defendants Reisch, Weber, Block, and Wagner were involved in the denial of a succah to Sisney. Reisch was made personally aware of the denial of a succah by Sisney’s letters to him. Warden Weber was involved in denial of a succah because in his capacity as Warden of the SDSP he denied Sisney’s Request for Administrative Remedy to allow him to use a succah in the exercise of his religion. Block denied Sisney’s Project Applications to use a succah. Wagner was involved in the process of determining whether to allow Sisney to use a succah and is the SDSP official charged with carrying out her superiors’ denials of Sisney’s use of a succah. Accordingly, summary-judgment will be denied on the official capacity RLUIPA claims against Defendants Reisch, Weber, Block, and Wagner for denial of a Sukkot Booth to Sisney in 2003 to 2006. 2. Jewish Chapel and Additional Service Time In July 2003, Sisney submitted a Project Application requesting that one specific room with access to the Jewish group’s locker box be designated as the Jewish Chapel area, which would be the permanent place for the Jewish group to conduct their weekly services. .(Wagner Affidavit, Doc. 219, Ex. I.) He also asked for access to a TV/VCR as needed for services. He contends that lack of a permanent place to conduct the Jewish group’s weekly services substantially burdened the practice of his religion because he did not have access to required materials when needed during the services. Inmates are given five minutes prior to a service to obtain the items they need for the service and then they are not allowed access to the locker box after that time, until the last five minutes of the service to return items to the locker box. Having one designated room, wherein their locker box is stored, would allow the Jewish group access to the group’s worship items during the services. Defendants Block and Weber denied Sisney’s request for designating one room for the Jewish group to conduct services and for their locker box to be in the same room. (Wagner Affidavit, Doc. 219 at Ex. I.) The reason Defendant Block denied this request was that all of the SDSP’s rooms are available to all of the religious groups. (Id.) In his Administrative Remedy Response, Defendant Weber reiterated that all of the rooms are available to all inmate groups and that “[o]ther inmate groups that may use the room may tamper with your storage locker. At the present time, the storage locker is kept in a closet, in the phone room, whose door is constantly locked. You are asking for special treatment.” (Id.) In their brief, Defendants maintain that Sisney was requesting an “exclusive” room for th