this case touches on the fundamental relationships not only between the individual and the divine but between the individual in the state as between the individual and religion our jerusalem pardon do you think maybe if you exercise of their religion is free and this means that it is a matter of mr greer's subjective sincerely held religious belief in his kosher diet it's important in this case that this is not disputed so this threshold question has been met as between the citizen in the state st and the facial determination by the prison chaplain as to what is or is not kosher is in and of itself a substantial burden on mr religious exercise of his kosher diet is really can i ask you because there is two separate iterations of what the chaplain said one is that crackers that iced tea are not kosher and then the nd iteration is that that those were not within the prepackaged kosher meals that were supplied to inmates that opted for the kosher diet which the rationale and it seemed to me it changed if you look at the record carefully i think chaplain drawbridge initially said that he consumed a non prepackaged kosher meal and what mr greer said was that no he was actually preparing a meal for somebody who was speaking at the veterans banquet but so that that what mr what the chaplain observed in terms of him preparing that plate was for another individual so that was what the chaplain st said was that he observed him preparing that separate plate and then it some point i'm not sure where but when mr greer said that he only consumed crackers and iced tea that became the nd rationale if you will for claiming that he violated the terms of the religious diet agreement because mr greer put forward the crackers and iced tea is this is what i ate because he was watching the or the tape he didn't see the drawbridge didn't actually see what he put in his mouth right that's my understanding your honor and so greer says i had crackers and iced tea but you know that's my view that's kosher and so that's where you end up with this business indication in any were that iced tea is not kosher my understanding is that a minimum iced tea is considered part of which means that it's neutral it's not a violation you know for every one is kosher some do some that is correct your honor but it is also my understanding that if it has the use symbol from the orthodox union that that is considered kosher and ultimately though i think what you need and fulfillment of your religious belief is how you begin to distort that discussion in other words you know if the drawbars said ok well i'll take everything that is a you on it and then and then then greer said well you know as i sincerely hold my belief it doesn't have to have a you then who is going to make that determination i would make two points about that your honor the st would be that if we if this court in its wisdom holds that the determination by the chaplain in the st instance of what user is not kosher is in an of itself a violation of both the free exercise clause in rule lupa then we get rid of that question in other words if a chaplain is not deciding what violates the religious diet then that issue is removed and also the secondary issue if it's a wrongful determination do we need  process that question is removed if if the court determines that it's appropriate for the chaplain to make that determination of what is or is not kosher then we get to the question of due process and it seems to me what you're asking your honor would come up in that instance and that would be mr greer is opportunity at that point to tell the chaplain look the crackers had you with the circle symbol that means it's kosher and so therefore you can't consider that a violation and what and what clearly established law do you have that suggests in this rule entitled to due process in this context i believe that if you look at  st of all the law is clearly established in the circuit i think if you start with burn your id and do a hub see that if there is a substantial burden if there is a sincerely held religious belief in substantial burden it wasn't a temporary suspension and as far as i recall he didn't get it period that's true but in the case different in this case one could argue that you know if you're looking at clearly established law you're looking at  said there can be a presumption that the longer that goes on the more of a substantial burden that becomes and he used were suggestion and i started this colloquy with the question clearly established law suggestion does not equal clearly establish it simply said in that case that the district court didn't evaluate the procedural due process claim and sent it back to the district court as i understood it could i ask you about the nd report and recommendation there it's in me to be a viable question here a fair firm waiver on and i want to understand why there isn't a serious firm waiver problem as it relates to that your client at for opportunities to object to that report and recommendation even the last motion to object was filed late and then he didn't object at all and and so we're out of that you get a sort of interest in just it's for us to not find that he's waived any claim relative to the nd reported recommendation my st answer to that would question about one hundred and seventy three dollars i think it would be fair for this court to say that the firm waiver rule applies but i also think it would be fair for this court to say that this is an interest where the interest this is a case where the interests of justice require review why i think st of all is a matter of free exercise which is a matter of critical public importance and although mr greer did not object i think his reasons were compelling for the reason that he couldn't which were the he was being transferred from prison to prison along the way he was not getting his legal materials and i think if the court takes a fair look at the record it's pretty clear when mr greer had the opportunity to get to a computer and to type of those five requests for an extension of time why wasn't he able to at least hand right an objection to the reporting recommendation i can't answer that because i'm not mr grier on her all i can say is that i believe his feeling was that the the amount of case law that he needed to recite was complex enough that he didn't feel comfortable without having those materials to reference and he did more than that denethor all the judicial notice two days before the deadline he also filed objections other objections to our nars that were pending i mean the record shows him doing a lot of stuff during that period of time in which he was seeking the four extensions inciting case law and doing those things  to i do believe he was objecting your honor i'm not so certain that he was actually citing case law while i think it money it's perhaps but ok go back and check maybe we even if you're correct and i'm not disputing that you are not i guess the difference between citing case law and what laws clearly established look i've been doing this a long time and it's hard for me to keep some of these cases straight so i think it was simply a matter of mr greer wanting to be accurate with the court in terms of what he was citing to in the case law so that's number one and that's different from simply responding off the top of his head so to speak in terms of the other issues that were going on so i guess the distinction i would make between responding to normal matters in the litigation is different from responding to the complex legal analysis the analysis the qualified immunity requires but to th point i would just like to briefly make my point about one hundred and thirteen dollars so at a minimum i think there's no dispute he objected to that and since he appealed the final judgment that the ruling in docket one  is before the court and because mr greer specifically objected to the rule luke claimed there which the district court dismissed i think even if the court doesn't reach the qualified immunity questions because they feel that it was a matter of firm waiver in the interests of justice do not require review that the rule lupa claim for the religious police so the claim on its face and also the real hoop a claim for th sixty seven was the company vince they read that too broadly to knock out too much of count one and because there's little question that count one was properly exhausted under agreement some are fifty five and fifty what is or isn't kosher on its face and nd of all the determination that was wrongful which requires due process and so you're saying a facial challenge is relates to appendix c attachments i say a facial challenge as a relates to the janet dowling was the warden at the facility kelly curry was the food services manager felicia harris was the law librarian kathy milburgh was the case manager mike rogers was the housing unit manager that motion and then your summary judgment motion with regard to the they gave rise to the nd report and recommendation has no reference to qualified immunity or clear violation of clearly established law miles or grange on exhaustion of course we can affirm but if we disagree you are you conceding that we cannot affirm alternative grounds based on qualified immunity with regard to the nd or in our  can if the district judge lets you do something we're not going to be there to stop you know it by my question is what we can do or cannot do and my question is are you conceding that we cannot affirm an alternative gro there's that the chaplain was not able to make these certain decisions that he didn't make any did remove the mr greer from the religious diet for a one hundred and twenty days there was an affidavit signed by drawbridge that said that he is he does oversee and mates and he does make the determination of whether or not they should be removed from those diets based on their failed compliance with attachments the well he did he didn't think you can do that but i mean what is our abdulla see case that means what he thinks he can do that or not the law doesn't seem to go in his favor doesn't well there's nothing that says that he can't actually what is the case you will pull the language if you want to pull out the language and it's pretty clear in that case that you can't have people making determinations for what what is ok here we go contrary to the tenets arguments however the issue is not whether the lack of a whole lot of diet that includes meat such substantially burdens of religious exercise of any muslim practitioner but whether it's substantially burdens mr i'll do a hot seat own exercise this is zero he held really which means that you know the chap can't decide oh well you know i'm an expert on what's kosher and you know because you want to eat kosher i don't agree with your definition of kosher so you know get it why is a legal what you know if you can't make that decision it's the o c policy that if  inmates do not adhere to attachments the which has never been overturned that's unconstitutional that they can be removed from those diets for a short period of time that leads to a different question do you contemplate that in that grievance i guess it's one  shown unconstitutional and to the contrary in this district and in the western district of oklahoma specifically they have found that for a short period of time you can take an inmate of the kosher guy or it's a short period of time is still given three meals a day seven days a week we can religious beliefs he's also available to go to the commissary and purchase items that are kosher i don't think that cuts it in when you talk about a western district of oklahoma case are you talking about repeat review that the reed case that happened to be overturned know at this point the law is not clearly established of what the actual number would be to take away a kosher meal or any other kind of religious mail from an inmate and make that a constitutional violation and in this case nobody has actually said one hundred and twenty dollars days is too much the court said it might be too much but never made the determination that it is too much and so that the law here is not and fifty five with word of the nature of the complaint says quote on march th two thousand and fourteen evening meal i was removed from my religious kosher diet in direct violation of my constitutional rights say the failure to specify one issue in the grievance appeal and said that that was just incorrect interpretation of the o c policy and so my question is very specific is the scope of this grievance sufficient to cover his relief in free exercise rights not whether there was regard to a some internal procedural defect because you lost that issue  looking at four thousand and fifty five and i'm sorry i just don't see the words due process maybe overlooking that i read it too to bring up his th amendment rights because he was taken it off and he didn't get a chance and what he what he actually said in there is he wanted to be able to explain to the o officials why he should be taken out because of his own personal beliefs and to me that's read to be a th amendment issue and not a st amendment or really a claim and in those claims he actually says that he signed attachment c under duress and that he should you know it is a substantial burden on his right to practice religion which i do agree with so they were two separate issues that he tried to grieve and he knew that th request to staff would say that that it is a burden on his right to practice as free religion by having to sign attachments see the nature of the complaint and and judge back records not the only one who if there's something there is missing it the nature of the point so as not being about what you're just saying it's constitutional right you took away my meals in violation my constitutional right mosher meal person a person needs st amendment i i don't think that's reasonable is it but i but he did go on to say because he didn't get a chance to explain what is right and what is wrong and that defendant drawbridge is the one that made the decision to take him on so and i think judge a good one even did allowed to explain to the o c officials what he actually believes is kosher whether that be ice tea and crackers or any other items that he would like to enjoy that is that are not given to him by b o c who has a list of these items that are kosher compliant and without them being on that list v o c has no way of knowing whether ice tea is made kosher or these crackers were made kosher and so  so it it's not about just drinking iced tea and eating crackers it's more about t o c having this list and being able to work off this list and the inmates also have this list so if they want to eat something that's not kosher and not on the diet then it's not then it is ok for d o c to enforce their policy will suppose that is kosher and they will give me a chance to explain it does that not bother anybody well this food was brought in from an outside source and so there is no way to determine you have a supermarket belief people don't have money to go buy stuff like that doing that inmates yeah some of them do is what some of them do have the money to buy those things but the thing is he did he didn't ask kosher depending on how it is prepared and where it is prepared you know if it's prepared with other foods it may not be kosher if it's prepared and has other things that it like to eat like the ice tea bags may not be see much on the video about how iced tea was made there's nothing about how the ice tea was made just that it was brought in by an outside vendor and not by ideas and therefore not on d o c's