this might be did that it seem to me that even if you have a new plan right now there would still be a time period that we would have to address that would not be covered by  too much that even though i've never really heard i don't know how many people sent to mr thomas is having that as he needs kosher but he needs begin and he says that that's but based on his religion would have to be kosher begin so i mean have you had requests for that before  good preparation but it has meat he's asking for be good kosher yes so what what's out there is that would you know i mean we know that all right you know i looked to his sites and it looked like a district court with a little bit concerned i haven't really heard a kosher person ever request saying that it would be in the scriptures that they needed to be begun to but it seems to me that that would be challenging whatever his religious values are and that case by pretty much says you can't really you can't challenge that for those purposes so what made you think that another argument that he signed that document accepting a certain diet and so that people would have could have reasonably relied on that even though there was some talk about that but they wouldn't know that they were  accepted it but you didn't really make that argument and they didn't really make the duper burden argument i don't think i don't think any of us think that the department of corrections should be a  cafeteria and as far as that goes but we've got these cases that say if you have a sincerely held religious belief that you've got to comply with it and he puts out there even know and i don't think we can question whether he really thinks the bible says he has to be big or not i think we would probably have to get to the point began and kosher are his sincerely held beliefs if they get and kosher are not the same as common fare what why would a reasonable person in that position think that common fare comply really argue either you didn't develop the record that much on apparently there's an alternative says he can't afford it but apparently there is an alternative that you can argue well you had other ways to supplement that you would be able to do it but that's not really vetted out in the record even d though i don't think you make the best arguments and we're stuck with the arguments that you make retired really really really getting into the back room aren't there because they would be i mean he literally said nothing about or documents and why do you want to research your time and then we'll come back after lacks jurisdiction over this appeal and that's where i'd like to begin under johnson versus jones this court cannot resolve whether mr thomas is request for a vegetarian kosher diet based solely on sincerely held religious beliefs or some because going to trial and resolving those factual issues you give some then you say oh you are entitled to qualified immunity the purpose of qualified immunity is just go to trial so extreme your that's certainly true your honor when the defendants have framed their appeal around a purely legal question but here the defendants failed to concede the facts in thomas favor even though their qualified immunity defense depends entirely on this factual dispute over whether reasonable officers would have known that mr thomas had sincerely held religious belief or acquiring him to eat vegetarian and so under johnson your honor that the court routinely applied as applies johnson in situations like the one we have here where there is a fact to be a denial of qualified immunity and the defendants have failed to pose a purely legal question so for filed the court has applied johnson on at least three occasions occasions in unpublished decisions and i'm happy to provide the citation but i mention them not because there's anything new or novel in those unpublished cases but simply because it shows how routine it is to apply johnson and to your point your honor about the concerns about judicial efficiency john yeah i'm more interested in drawing lin here on terms of if there's one person in the whole united states that wants a big enclosure diet what do we you know i don't i don't think that the department of corrections is you know  sadly it's not meant to be a cafeteria you know people don't have the same rights but they do have certain rights of their religiously is so if he's the only person in the whole united states requested it begun kosher di a diet that included hello meat he had access to a whole lot of vegetarian diet but it upset his stomach and so even though that was a idiosyncratic request by the plaintiff there the court still held that the defendants were not entitled to summary judgment on the for his free exercise claim and and also the this court has recognizing the supreme court has recognized that it's not within the judicial religious beliefs need not be acceptable logical consistent or comprehensible to others in order to merit st amendment protection and i have the last about a minute of your audio i could not hear you could you from the supreme court's thomas vs review board which says that resolution of our free exercise issues as not depends on quote a judicial perception of a particular belief or practice religious beliefs need  acceptable logical consistent or comprehensible to others in order to merit st amendment protection and we also talked about how in any case here it's a disputed fact whether the request for vegetarian kosher diet whether it is central to thomas's religion and that's because he practices a scripture based form of judaism where he follows scripture where scripture and rabbinical teaching request without trying to figure out whether it's unduly burdensome when the state of nevada have a habit with the defendants have a problem to qualified immunity defense which is we didn't know we had to accommodate eight  because again the plaintiff there was requesting a diet that included meat even though he had access to a whole all vegetarian diet and that was because the whole all the terri diet upset his stomach interfering with his his that your honor i'm not sure that there's a there's a supreme court case that i can point you to about how idiosyncratic a religious belief might be except what i was quoting to you from thomas versus ruby to review board and that where a diet is religiously required because it's based on sincerely held religious beliefs and a prison denies that what the prison officials are doing are asking me that the inmate go hungry matter of switching from one established to another is that he wanted to go from hall to coast here you're talking about your client wanting a new guy doesn't exist does that make a difference in terms of whether clearly established diet in that case he was only able to access a kosher meal one meal a day and he was asking for three meals a day of kosher and so the diet did not exist that he was asking for but i'd also suggest that  turner test and the same is true here because although perhaps mr thomas with would like a entirely new vegetarian kosher diet with three different meals a day instead he's willing to settle for simple substitutions to the existing common fairy diet and that's at e r eighty five where he talks about requesting you know butter and jelly sandwiches and rice and beans as simple substitutions for days when the commentary diet includes need and that makes his situation very similar to the plaintiffs in actual men he was requesting a kosher diet and the defendants there had conceded that the two i mean you can't just you have to i don't know what you know i don't know how you make kosher vegetables i don't know how you make kosher get a better jelly but it's got to be kosher right that's right your honor it would be prepared in a calm and fair kitchen which is what what's provided by the st amendment free exercise clause but i think my opposing counsel mentioned on appeal is only the qualified immunity defense to count one which is mr thomas free exercise clams present below and did not even mention turner here to this court under our loop it's a higher standard they would need to provide a compelling interest and show that it was furthered by the least restrictive means and under either test defend participate in common fair if if we assume hypothetically that it was not conditional or at least that the defendant reasonably believed that thomas had conditionally upgrade the participate in the case and perhaps defendants would that work or perhaps reasonable officers would not be on notice then that that mr thomas was entitled to his religiously require diet although i think there is still significant evidence in the record suggesting that his requests are based on sincerely held religious beliefs even if you take away the condition that he rode  thunder certain circumstances but there's also a common sense you know that you don't have to cover in the cases every single one and so the common sense here is  ok so that would conclude argument thank you both for arguments in this matter this will stand submitted thank you