factor three whether his protective conduct motivated the retaliatory action that factor is also conceded at least as to just been detected so we're here now focused on to figure out if this is a factor of three or a factor two question but it seems to me that the warden what's unusual about this case is that it was then respond to complaints about prison condition and what unusual trying to figure out whether that's retaliation or whether there are circumstances in which our response is merely responding to a complaint although maybe not in the way that the prisoner wanted the warden to respond and i'm thinking about what might happen in the next case depending on how we decide this case so how do we know it is true that it is established in the record i agree that the warden did that in response to the the plaintiff's complaint how do we know that it's retaliatory is there any evidence that the warden knew that the conditions were going to be worse in the prison to which he was transferred well i think to answer your question and i agree that that is a very important question in this case and i do agree that there could be circumstances where moving someone for example if someone wanted a kosher kitchen moving them to a facility where there was a kosher kitchen no problem right but i think we have to take a step back here and look at the history of these parties relationship do you understand why there was a acrimony between the warden and the plaintiffs i do understand that but i guess you know it still has to be that this action was retaliate choice or maybe the way to think about it is that it had to be clearly established from the perspective of the warden that what he was doing would deter someone of ordinary from this because that would mean it was retaliatory but i mean imagine this let's say that the prisoner is complaining about conditions in h so what the prisoner wants is for the warden to remedy those conditions in his cell say the toilets not functioning or they're bugs or something like that instead the warden who is very annoyed with this prisoner decides not to do that he's responding and there's no doubt let's say that the warden finds this guy to be an irritant he puts him in a different cell and unbeknown to the warden this fellow is right next to someone who is very loud and wales and screams all night long and now the prisoner finds himself in a worse situation because he can't sleep at night is that retaliate henri i mean that the warden was annoyed by the prisoner the warden didn't respond to the complaints in the way the prisoner wanted he moved him instead of regressing the situation in the cell but the warden didn't know that the situation was going to be worse how does that play out as you think about the framework well it's a good question and i think  lives in the sense that if we have a holding here that a transfer between sort of the same level of conditions in and of itself which i think is the budget position that they're urging can never be you nuff then you could have a scenario where someone has lived somewhere for twenty five years they have friends they have a job and maybe from a objective in prison yes exactly perhaps that there's no suggestion that the situation in the lateral transfer is objective lee worse in terms of housing or anything else but that they have human connections you know they have a life there and while they may not have a property interest in that you still can't just move someone because they have engaged in protected conduct and also here we have the situation where the justification that's been offered on its face is protection will in light of the complaining that the prisoner has asserted so he's saying that there's inadequate medical treatment and the justification in this litigation after thirty days to respond in iraq to tory's is well we wanted him to move in a more modern facility well the medical care is provided by a single provider across the d l c so there is ample reason to suspect that that justification just has no  definition of retaliatory to get revenge to some extent the definition of what it means to retaliate but what if it's in another framework where d would a comb trying to lead up to but there were other reasons a lot of gripes about the prison and maybe you could say we're trying to get him out of there where he has all these problems no one is your favorite home you know that's where you are but you have friends and he probably had a constituency because he apparently went to couple yes he's a very capable advocate and i think that was part of the problem that defendants the techie had with mr allman is that and you see it even in the record and some of the e mail traffic that it is issued wasn't that mr holman was complaining it was that he was a successful and effective would others so now they say well this goes an educator and somebody and you need to be somewhere else because he has too many contacts in this prison where he's disrupting the management of the prison well i think that there is a constitutional right to advocate and access the court even as a jailhouse lawyer so to speak reasons st the defendants did not violate any clearly established constitutional right and nd home and did not suffer a deprivation turn to my st qualified immunity applies because not of this court nor the supreme court have ever hel that says if it's retaliated tory then qualified immunity doesn't apply because opposite is our notice that they can't retaliate and it is a broader definition of qualified immunity than maybe some others but if that's the case and the warden it doesn't matter what form the retaliation took if the warden was retaliating presumably he's not entitled to qualified immunity under babcock i think that that statement assumes so that all the elements of a retaliation claim have been met and that there was deprivation but there's no deprivation this case and also that it's taking a look a lot way too broad a level of generality and under that theory as earlier any transfer decision whatsoever would be actionable so a transfer from a maximum security facility to a minimum security facility would be actionable and then the case is decided before the supreme court has repeatedly held that a rule to general at the unlawfulness of the official conduct does not follow immediately from the conclusion that the rule has been for me established ok so your your position then is that the relevant inquiry from the perspective of qualified immunity is whether it is clearly established that a particular action counts the something that's in the circuit the transfer to a much more obvious harsher environment the council cannot be right what if the warden says you know listen you thank complaining a lot and i'm tired of it so i'm going to give order the cafeteria to serve you the exact same thing to eat every single day three days three meals a day and there's no case on point establishing that changing someone's diet in that manner is retaliatory you're saying that he would still be entitled to qualified immunity i think that would be a closer case here it would be clear to someone in the defense position that their conduct was unlawful because even if we look at the other circuit the th circuit says the exact opposite that a purely lateral transfer definition of retaliatory or is it that someone in the warden's position would not precede such a transfer as something that would deter a person of ordinary fairness from exercising his st and then that right i mean tell me why you think that fail a week he has a roommate so he has less privacy and that witness is more violent as we turn to the law library and the cell me although those may have been less convenient or less favorable those are restrictions are minor compared to the cases where the transfer was found to be sufficient or actionable i don't know is there any evidence in the record that the warden knew that he was going to have a roommate or less access to the prison library or that the prison was more violent there's absolutely no evidence in the record that the warden knew the argument is not based on personal knowledge in the district court is that if we noted that that would be inadmissible evidence and  apparently the defense couldn't have known because as homicide only twenty five percent of incidents of violence are actually reported so as far as the violence also there's nothing in the record comparing the two different facilities so we have evidence about why bash valley but we have nothing about pendleton and if we look at the record if we look at the data that helmets provided those statistics those offenses are only from two thousand and seventeen they're not from two thousand and fifteen when he was actually transferred and it was his burden to establish just a few qualified immunity and if we look at the list of offenses it's not that violent if we look at one hundred and twenty one dollars through one  fact some prisoners may prefer to have a cell mate because it provides some protection or some prisoners may not care about the library at all and at the end of the day prisoners may be required to tolerate more than an average citizen before an action taken against them is considered to be adverse they're not required to be knowingly put in segregation or knowingly be put in danger or for looking at their cases knowingly being transferred from a psychiatric you know where they can't accommodate his needs to the general population of a nother unit that doesn't even have a psychiatric unit they're not required to tolerate that but they may be required to have a roommate a salmi thing may be required to have only four hours of law library time a week and they may be required to witness the level offenses and if this court finds for some reason qualified immunity doesn't apply because there was a deprivation and this cour double inadmissible double hearsay and as far as the supervisors was born he was not put on knowledge of st amendment activity because the e mail chain only talks about the other offender it doesn't talk about would be insufficient to create a genuine issue of material fact and just briefly to address some of the arguments raise for the st time in their apply brief this case is not similar to take us in opposing counsel compares that to pick us in where he was transferred from a unit in the facility so he was transferred from the general population to a different unit and in that unit he was secretary to from the general prison population and that's not what we have here there is no evidence to suggest that holman doesn't go to meals or creation time doesn't have access to can't go to his job and it's just not similar to  ten and as far as that argument we have also for the present it also for the st time in their apply brief that comparing this case to cigars al and in that case the transfer prevented the prisoner's lawyer from reviewing his legal documents and defendants knew that by transferring him there he would not be able to meet with his attorney to discuss his appeal that's not what we have in this case here holman still could go to the library he still could access the law material if there's no evidence and you can check out the i would just like to point this court to the decision in haiti and specifically what this court said in that case quote if a prisoner is transferred for exercising his right of access to the courts or for assisting others in exercising their right of access to the courts he has a claim under section one thousand nine hundred and eighty three period  stop that's what this court said as to the deprivations i think counsel suggested that mr holman doesn't have a right to a certain amount of library