prerequisite or considering it let's assume for the moment that their argument is much more expansive do you concede that the st time that this grooming policy argument appears is in the complaint reading the complaint and addressed the complaint in the decisions neither one specifically interpreted his claims as including an impossible choice argument is that correct i think a judge tiger's opinion is a little bit unfair on th resources available to run the bar in the present to practice the religion in comparison with other religion that prison and so that goes not only to religion and women but also goes to religious services they go to religious elderly mr complete in this case asserted two senses claims that are before this court on appeal one violation of his right to freely exercise his religious beliefs and to intentional discrimination in violation of the equal on appeal was not raised below nd even if mr burke had asserted a challenge to the grooming policy based on an impossible choice theory before the district court that claim would now be moot and rd the district court correctly concluded that the claims mr berg did raise failed as a matter of law on the evidence presented to begin with the free exercise claims both the briefing and counsel argument this morning made clear that the nature of these claims has shifted dramatically from what was before the district court throughout the proceedings below mr verver pleadings consistently identified three ways in which he was allegedly not able to freely exercise his religious beliefs one group services to religious items and three holiday meals those are the issues that the department addressed in a summary judgment papers and those are the issues that the district court addressed and its opinion all the grievances that mr burke submitted and then appealed which are in the record as counsel noted he chose certain of those grievances to attach it to comply to his complaint and to pursue in his federal court litigation and agreed in the middle  in the district court is that right that's correct your honor because i think it's helpful to look at the complaint the way that my friend on the other side did this morning and we can start at the very beginning which is j eight eleven this is the form that mr berger filed to initiate his lawsuit the complaint form and he clearly lays out separate claims and his religious exercise according to the defendant's violated my rights to process foreign religious services service items and religious holy dany else he's not challenging the grooming policy he's not challenging the violators housing unit he's asking for access to three different identities three different things and for the reasons we've explained and i'm happy to discuss with the court this morning nothing about those items that he's requesting impose a substantial burden on his free exercise of religion as a council knows the the point of the co pay standard is to discern the intent of the litigants and looking at this pleading is the best way to do that  honor when you read through the pleadings consistently mr burke is asking about services items and meals that's the argument that the department addressed and it's a summary judgment papers and that's the argument that both both of the district the district court opinion considered the timing here is also important your honor because the impossible choice theory the council now relies on it whether they knew at the time and what's not not something that would have been for ng to the district court or to the department because it was being litigated in the greenville case at exactly the same time when you look at the way the procedural history of these cases wind up green  that the most important thing here and to to remember that the special forces into which we construe per se pleadings which of course the department doesn't challenge here but but it does have a limit and the limit is to discern the intent of what a litigant was challenging and so to see that there that it was sprinkled throughout your enough i think it does the appropriate lens to look look at that through is what he was asking for and he was asking for policies operating procedure but then he knows that the reason he's complaining about it is because it immunize an asset to group services items and deals and so when you when you read through the complaint those are the things he's asking for and so i think that's the most helpful lens instead of are there enough reference and here or there i think it's also helpful on that same note your honor that this is not a complaint where it's not clear what he's challenging or what he's seeking or it where it's ambiguous and he invokes several different provisions and several different claims in the district court have to figure out what he's challenging the department brief summary judgment twice and the district court wrote two opinions and your honor to say now that the  complaint adequately raised this claim and i think it would be fair to say that in that apartment in the district court just missed it and so i think that that's a helpful understanding of what was and wasn't raised in terms of everyone was looking at the pleading and trying to figure out if figure out what it said challenged the claims on that would be moot and so we would urge the court to at least agree with us on the news and argument and send it back on a limited basis but again we we don't concede that we think it's not reason and we don't think it adopted an entirely new department white house see that involves rigorous procedures and it's not something that can change overnight i think that's the st important fact on the news analysis the nd is that you to the department changing a bit of policy and i think that's going to be very important facts for the voluntary station analysis and other important fact is that the department in this briefing and before th that is our position your honor but i think there's i think there's more i think there are at least two other reasons that we can be assured that standard isn't met here the st is that if you look at the history of the grooming policy d it is consistently become more lenient and allowed more hairstyles an offender conduct not less it's not becoming more restrictive and that i think that history is important and that history is important against the backdrop of the evolving legal landscape would raise questions at least under real lupa i think that's another that that potentially adverse president weighs in favor of the department here and weigh that against a finding that there is any reason to believe the department is inclined to just flip a switch and  go back to the old policy particularly in light of the fact that the mr burke has not just been transferred out of the violators housing unit just him and might be alleged to try to evade liability on this one litigation the whole unit has been been shut down and abolished and so it's not this isn't like one of those cases where it's easy enough to to change something to try to wait out of a lawsuit and then be able to go back overnight so those just aren't the under that are in the grooming standards violators housing unit shall be transferred out to a suitable institution the same as you brought up the green your case and i know your st argument is  do that or a man does appropriate to litigate that question below in the way that greenhouse did so those we are not prepared to take a position on and i'm not here because it wasn't presented hill was you know its own fact in the district court in greenville reminded for for further evaluation and so we think that would be the appropriate course here if the court were to find that the agreement policy challenge had been raised claims as applied to the the religious services items and holiday meals the district court properly found that mr burkett failed to show that these defendants impose a substantial burden on his faith the undisputed evidence show the defendants are not in fact denying mr burke access to the items that he identified instead he didn't submit the proper requests and comply with the proper policies and i think it's important to note your honour's that this is this is items that are available and if you look at j two hundred and seventy nine you can see where a new item in the native american drowning was added it has been dated it was added and so the idea that that mr berkeley just getting stonewalled at every turn is inconsistent with the that those policies are meant to to balance these goals and to make sure that the doctor and facilitating maids religious practice will also balancing these other important important considerations and so the question here is whether service and form and the docs response is there's there's no hearing because all you need to do is enroll and there's an enrollment form there was an open enrollment period provided every quarter where you could change your enrollment  or take yourself off of the list and it's easy to understand your honour's why in the context of the unique institutional context of a prison that the prison officials would need to know who was signed up to go to which services and that that asking  to complete the form is not a not a substantial burden and no point has mr berger either presented evidence or point in time and that he didn't submit the proper form i think that it's important to note what what he's evidence that mr burke did ever submit that and so you know well it can be we understand the frustration in terms of trying to comply with these policies but the evidence on the record shows that it was clear what mr burke was needed to do to access these things and that there's no evidence that he did and on that record evidence that there is no finding of a substantial burden on these claims turning to the equal protection piece of comply with the grooming policy and i think it's better understood as i know that i mean on this list of religions that are approved to me that in no way excludes or exams rastafarians or any other religion from the otherwise generally