c suicide he transferred mister brooks and voluntarily granted him the movement pass he had been requesting they then argue to the district court that mister brooks his case was moot but the defendant's behavior did not move the case because voluntary rights i raised that point because i think we have the interesting problem here of things happening while the briefing has not been updated and that that point i don't know if it was never reached i know it was  mister brooks asked for a system wide injective relief or that would apply to other disabled prisoners or was the real remedy only direct time i'm going to yield the rest of my time to her we'll turn to ms robbins may please the court my name is asia robbins and i will be addressing the merits of the title to issue your honor summary judgment with an appropriately granted on the question of  whether diapers are reasonable accommodation for mister brooks because a reasonable jury could very well decide that diapers do not provide meaningful access to miss work his meals especially in light of an alternative easy to administer and effective accommodation the specially in this case where title two by the courts own precedent and robertson versus last in a county sheriff's department requires not just physical access under the reason women determination of the a b a but meaningful access and not itself is also a question meal and during one particularly dire three month period in direct contrast to say i think i need to work yes your honor i still want to work with three or four month period or i wan dinar absolute numbers for comparable periods of three or four months yes your honor during one comparable three month period when this or brooks operate only diapers of an accommodation the record reveals that mister brooks would have been able to access nearly one hundred percent more and then you can tell me during the during the state says there are one hundred and forty nine missed meals when he has passed what percentage of meals are that he was able to access a little bit you'll be able to access nearly i think it was fifty five to sixty percent of his meals when he had the past as opposed to only being able to access thirty six percent of his meals to twenty percent of his meals when he did not have the pastor on  honor i think it might be useful to spend the remainder of my time explaining x clearing up a point of confusion between us and opposing counsel opposing counsel admits on page seven of their answer brief in page fifty three that if mister brooks is just allowed the time to use the restroom before he goes into to get one of his meals then he has a thirty minute window when he will not suffer a flare up and so the problem the reason that mister brooks requests the movement passed in this instance  believe he was also in a dry cell there's no there's no record citation for this unfortunately we we learned this from an interview with him and and we were reticent to cite it in our briefing however i do feel like it is a printed point of law for you for this court well it's important to fact is important in this case because what you've now said is the past is tied to when he can use them the bathroom and also when he can access meals yes your hon opposing counsel argument st and i'd like to start with voluntary cessation in fact mister brooks in the lower court never argued or briefed voluntary for the station and this is the exact reason why arguments as to exceptions to m a should be considered for the st time on appeal he raised that argument below we could have presented evidence on that issue in a very straightforward way to have the opportunity to brief before the court heard the case on the merits wanted so in that hearing is when we address that issue and that the court allowed supplemental briefing upon request on the issue of this 's he's he said is that the he can be moved or i mean i don't understand how if he raises generally the fact that this can be  that the c d c acted basically in a way to deprive the court of jurisdiction that was never argue no evidence was presented on it with respect to capable of repetition i understand he argues that he could be transferred at any time but under honor there's absolutely no evidence of that in the record and what we're doing is reviewing the court's order on a motion for summary judgment and what we need to look at is the undisputed facts presented to the court at that level and there's no evidence that anything has been actually resumed their conduct that's what you're  arguing that can be true if you defies the definition of the concept the concept requires that he established a reasonable possibility that the conduct will resume again in the future and he has not done that and there's no evidence in the record that supports that although we have here the bare fact that he has been transferred he went from fremont to sterling your honor he has been that's correct in seven years time he has been transferred want and again that's additional evidence to show that what he's implying could occur is extremely remote hypothetical possibility  sentences for his securities fraud convictions iran and i don't recall the exact number but it's a lot of years d so if you just assume that he's transfer the maximum every seven years is it that's a lot of different places for him to visit theoretically but again theoretically isn't the standard for capable of repetition you know i think you're going to help me on this you keep saying you cannot do it resolved but there is d a risk that it could yes there is a risk that it could but that doesn't mean to make out mind test if i could move on to the system wide argument which was also addressed by a counsel during their argument and they've indicated that mister brooks has been challenging a system my policy and what i'd like to focus on is the policy at issue the parties are in agreement that m brooks has been requesting a movement pass and that movement passes are governed by administrators regulation three hundred dollars dash fifty five dollars and that's included in the as an attachment to a motion for summary judgment i think it's important to emphasize that the system wide test regarding movement requires a point of challenge a policy that generally applies in a uniform fashion throughout the system and what i'd like to point to court to is to set administrative regulation regarding passes it relates to offender movement in general which includes passes and specifically states that it is to be applied and implemented in a facility specific way and that's based on the fact that under statute c b o t facilities have a number of that belong to the medical coordinator those are two different reasons you get what was the security difference as to this prisoner or why freemont during the period when he had to pass in during the substantial downtime when he did not have a vast what was your idea of sure i'm happy to discuss that i'm glad you brought  we diabetics were not the diabetics were as george would your honor two things if i may st of all we're dealing with two different levels of facilities fremont correctional facility in sterling correctional facility addresses security concerns but also they relate to the fact that the medline pass that he had briefly in two thousand and twelve is specifically created for individuals who have a medical need and need to take a medication with me no it's not a the taking medication that he has to have the past there is no evidence in the record that i can answer that based on the evidence in the record so the indicated that you don't need to be taking medication to get the past or not it doesn't there are there's no evidence in the record one way or the other what his medical situation or medications are right now a given the past struggling is that an individual decision by an officer based on mister brooks a statement of the motions hearing your honor it appears to be so yes it does russell have jurisdiction over sterling the record does not establish that your honor no she had jurisdiction or over a certain regional facilities including fremont but that's not close to d for no no there are several hours apart your honor disputes the fact that when he had a positive male attendance was not significantly improved i would ask the court to look at that data it's attached as an exhibit to our client support summary judgment and shows correct so he's missing an average of fifteen meals a month in two thousand and twelve to three months he has the past then after that he goes to an average of he stays in the fifty's for several more months there's a brief uptick between october and december  and then it goes back down again again when we get to march of two thousand and thirteen which is less than a year later he's only in the thing eight months he's only missing nine mills in april so i the data itself is extremely telling as to mister brooks neal access because it wasn't meals again you are the only brief uptick with a three month period between october and december of twenty just just asked my question my question is if i look at any three month period there's  k why don't we have a fact question here for the jury reasonable most i mean there's obviously that you're you're opposing counsel disagrees with that interpretation we're we're here on summary judgment  also admitted that he in fact suffers from uncontrolled incontinence so he had conceded the fact he had tried to argue which was that they were categorically and reasonable as are you are you taking his statement out of context no you're talking about his own situation or what was the questions posed to him you know if you have this type of condition which you have is it helpful to have these diapers and he just has s and he's all are people it seems to help them i don't see that as a concession of his position in this case your honor and i believe the statement referring to he said later what i'm referring to are the three separate statements he made in the trial at the trial court level as as an opposing counsel recognized mister brooks was shortly thereafter put on he myra which did manage some of the some of the affects of his disability especially the pain however soon as this court ruled in his favor and remanded to the district court for resume trial of the city of c basically transferred mister brooks and then granted him if the accommodation that he wanted which is enough to create a genuine issue of material undergarments would be a reasonable approach for incontinent prisoners why why doesn't that concession effectively establish established reasonable accommodation here your honor if because able to if he has time to use the restroom for meal times have a thirty minute window window where he will reasonably not have a flare up if mister brooks is just allowed to use the bathroom before going to meal times he will not he will not have suffered from  continence that's why the diapers are an unreasonable combination and i would like to point out that we also during miss laurens is that argument found the wreckage site for the dry cell sterling its volume seven