defendants should prevail both on the merits analysis of the qualified immunity equation as well as the clearly established seed what w whether those facts are sufficient to make out the an and actionable claim against your clients that that question is open on this appeal and i think that's exactly what did say that and and there's actually a petition for rehearing filed because we believe that there is a point in that applies there as well as here that there has to be a certain level of evidence which generates a factual issue and that that up until that point it is purely a legal question on the merits prong of the qualified immunity analysis so would you mind telling us  pretrial detainee without adequate procedural due process and the second is whether there is was retaliation against the plaintiff for exercising his first amendment rights and with respect to be the established that the facts of the case as found by the magistrate and adopted by the district court was a clearly established that the actions taken by the defendants amounted to punishment without procedural due process and retaliation in response to exercise of first amendment rights that you see the actions referred to god knows how many actions as which the district court does find there are some disputes even that articulation of the question doesn't help me understand what the beagle issues are in this case this case is a far cry from the easier cases where you just have an issue of law and you have some soup or and then you look at whether it's clearly established this case would require us specific actions that they took in the context of this case would have done so and yes there were a lot of actions there were a lot of things that happened so it's not an easy case you can say  let me ask just in practical terms i take it that the real problem here is sort of the physical configuration of the building that pod a is used for the more basis virtually every time they move within the two point zero number one that is correct when they're entering going from a less secure area to a more secure area and it's also true within that security area when they're moved from one place to another and i believe this easily solve this case by just putting it someplace else well i mean if resources were learned that lesson the building could be reconfigured but but the record doesn't contain i guess is that the best know of so i would be sitting here saying things that maybe i know that don't have a basis in the record but remember the question under turner versus safley is whether the response is reasonable and rationally related to a legitimate governmental purpose which in this rule of the court is not to tell the prison administrator is how to run the jail prison administrators are generally accorded wide ranging deference in the decisions that they make about the safe and secure operation of the jail the fact that there maybe could have been some other alternative which would have been better doesn't mean that what they've done is in violation it's a jab by individual inmates who say that given the artifacts of the building and that as soon as they're here with administrative segregation they are subject to this street and i know the law uses the term punish  let's just put that aside even if the maximum possible administratively handle would be far less than what they have to go through just being  administrative segregation that's what the cases one wonders why this is necessary but i come back to the answer i just gave let let's assume that it's not entirely necessary that only part of it is necessary that there could be some other alternative that was somewhat less restrictive when people deliberately impose these additional burdens on an mates in retaliation for the exercise of their first amendment rights that we have to take that it's true and you want us to find a regal question against that assumption which is clearly presented here i will agree that we have to accept at least the inference that there was retaliation as one of the reasons for the motivation but the record is undisputed with respect to the strip searches that every single person who moves within this pod is strip search effect what but that's beside the point if they're if if if we can't review the district court's conclusion that the evidence is sufficient here to make out a genuine issue as to retaliate then we have a situation we're the plaintiff is moved from one section of the jail to one o them and there is no question that effect the that movie is to subject him to much more onerous treatment whether that treatment is itself constitutionally adequate isn't the question his level of on of punishment his  circuit or an abundance of cases from other circuits it would have told each and every one of these individual defendants that based upon their involvement with this individual that what they were doing violated his constitutional right and you suggest that th more onerous punishment that would be ok but judge under the case law if you have an action that is partially retaliatory and partially for permissible purpose liability doesn't exist and so when you look at that with a qualified immunity overlay and we've cited those cases it in our brief how would these individuals know that if something was even partially retaliatory but partially for a permissible purpose and we that  undisputed there's an affidavit in the record shonagh wired's paragraph fifty three and it says every single person whether their ads say discipline or segregation or maximum security when they come into that unit and when they move to different areas of that unit a and i'm borrowing that in artfully from another area in the law but is partly for tally tour as a partly for permissible purpose then there's no liability thank you counsel thank you the summary judgment benefit of drawing all inferences and so forth in his favor i think we do we are left with the with the conclusion that a reasonable jury could find that this was your tights or conduct and that was in fact punishment and that of course is the overarching issue in this case is whether or not this being subjected to these orders conditions does constitute punishment and that's a very ho you are he says given all of that even if it's a form of punishment there is you know a logical purpose for it and may have been  that it's pretty obvious on the face of there are some strong inmates safety is that are being served here and that's all it should take to i don't think i'd like you immunity that's right and i don't think frankly the record does show that there are any well articulated people logical objectives for what was taking place mr goldberg right frankly ok why not why not yeah alleged violations that were taking place which i think are fairly minor it doesn't seem to make sense that one would need to immediately second gate the prisoner certainly without given being given p deprivation due process so so your  greater than would reasonably come out of charges that level but that's one of the additional one can use to determine whether or not what's taking place is punishment right that the the ultimate remedy given pales in comparison to what they've had to suffer through because of the need to add say that gives us some idea of what was in the minds of these jailers this happened on many many occasions they had to know that whatever inmate has a soap dish in his cell that he didn't pay for that likely the results once one gets a hearing on that is going to be a ten dollar fine to retrieve our cell you know having to stay in the cells not going to be twenty one days and that's say getting strip searched six times a day that gives us some idea of what the motivation here is no nation was retaliation a jury could easily find in any event i don't think there are any clearly stated legal purely legal issues in this case i think it all comes down to what was the motivation for being put in that second the first place was the motivation for being unilaterally classified as a maximum security prison or and the idea that well these strip searches take place for all these people so it shouldn't make any difference those other people have already been convicted those other people have already been found to have committed a discipline charge that requires as a remedy that they spent significant time