all right go right ahead thank you and good morning may have pleased the court my name is nicholas emanuel representing the appellant charles clegg but what's notable about this case on th ese facts summary judgment would have been inappropriate under any circumstances but it was certainly inappropriate here where the plane was operating under is that the waterfront are there any other that's the sum total of what we call the remaining claims you thank you thank you and beginning with that first amendment retaliation claim retaliation in response to grievances and indeed the filing of the instant lawsuit i think it's important to point out with respect to the retaliation claim that in a retaliation claim such as it would be the rare case indeed any of the defendants at mit retaliatory moat said well the motivation for this transfer was because we wanted to retaliate what's the circumstantial evidence of the improper motive and so precisely the so so these cases are often proved by circumstantial evidence which we have here we have conflicting accounts conflicting reasons for the transfer what's interesting about that because that's the type of circumstantial evidence that can often  used even to sufficient evidence to support a verdict in favor of the point if a trial but here those conflicting accounts actually came up during the course of the litigation itself so you're down to eight minutes there's proximity in time ok are the kind of circumstantial evidence please proximity in time conflicting accounts for the reason for the transfer so you're referring to the comment about you'll see your wait and see that comment no you're out of the conflict second time around that the reason for the transfer was because of specific misconduct committed at the library job so she award and young is the only one who takes that unequivocal position and that differs from his first declaration which is found just later in the record the pertinent pages are one sixty four to one sixty five that's a little confusing right because in the second declaration would take that position but he actually attributes it's to woodring right submitted the second time around it's sort of difficult to track it all the way down it's almost a game of telephone as as to finding who is the actor who is the decision maker that made this decision it's very difficult to pin down if not if not impossible in the cure is anybody ever take responsibility for it if we drill down because i look my answer is no your honor i mean that was not apparent to me and that's certainly something i was looking for in this record saying ok who's the decision maker and then what evidence do we have to to rebut that notion or whatever but but we don't see that here and that's problem number one with moving for summary judgment is no one stepping up and simply saying unequivocally here's the reason here's the non retaliates or reason the legitimate p logical interest in the language we're using here for the transfer nobody really does it so that's a problem that maybe that's just what judge burton said which is that they just don't remember necessarily and that's fine your honor but that they may not be entitled to summary  work and specifically no matters so he just said that both times he did say that both times he didn't mention it the first time but if one reads all of the declarations or in the case of the first time around it's both declarations in other parts of the declaration that it's this about a year policy it was only eleven months but the key point your honor is that a fair and just a fair reading of the declarations and indeed here point is entitled to every inference in his favor but even just a  but in this instance right not just generally yes and as i think we have to your honor and and plaintiff attribute specific retaliatory motives and the response to that if you will from the individual defendants is essentially a  if one reads the first young declaration it certainly appears again on a fair reading that the reason he's given you know that's the point we're after is what's the reason for the transfer and he stayed in the reason is because the ward has a policy not to have an inmate work out a job for much longer and to the extent that it could be construed that he's saying the first time around it was because of misconduct you know why we have to ask ourselves why are we straining to construe these declarations in favor of the defendants when in fact we should be doing the opposite in this posture i'd like to address the amendment claim bring them to really quickly if there are if there are any questions i just point to the evidence on the record of the severe  minutes when you come up but but castro didn't assign the jobs he was going to do right well except for castro was required to clear now i mean within the food service she didn't indicate what he was going to do in the food service and i don't see anything in the record that you can address when you come back anything in the record that would have made it inevitable that by transferring him to food service he was going to be in a position that exacerbated his back condition but i think the answer to that is that at the same time the clearance for food service was given there was a sedentary only work restriction i think right so ultimately if the other prison he wound up folding napkins in the food service and i don't think that's relevant because there's no evidence in the in the record of what his physical condition is at the again when you come back there's evidence in the record that he asserts that he did that that wiping tables regarding dependent soup that's different than attributing to castro knowledge that he was going to have to bend and stoop if you if you got a bunch of food service i understand time in two thousand and eight when plaintiff worked in the education department in the law library the warden mentioned to me the education staff expressed some concerns about plaintiff being suspected of working on specific legal matters when he was supposed to be working as an inmate law library clerk who helps all inmates with retrieval of law materials as i was familiar with the wardens general philosophy that an inmate should not be at any one job too long and as it was determined that plaintiff had been at his current job for about a year i passed on these concerns to plaintiff's unit team so in the course of the litigation i handle it below the magistrate judge in her report the recommendation found crucially that in analyzing this declaration and  evidence was quote too vague conclusory and meager so given the opportunity to file further evidence which is permitted with respect to reports and recommendations as the court knows under twenty eight u s c section six thirty six additional declarations produced and the key language from them and i'll just reference them so the court can look back at them or from the declarations of austin at s c r one zero five two one zero six paragraphs eight to nine kirk at s c r one thirty two a paragraph declaration i ink wired as to the reason for my removal from education from mr calderon who is his unit manager and quote he said that it was ordered of him as a security concern what's that what's a security concern that sounds like a completely different thing a policy against someone like mr claggett doing legal work for someone else is that there's a risk of a serious dispute arising if an inmate provides bad legal advice to another inmate that when you're reading and we understand it's just that it's not here i mean that's where the texture that you filled in with representing to the court is that there is evidence in the record contemporaneous with the transfer that indicates that it's not based solely on a desire to shuffle people around to different positions are you suggesting that the security concerns that's referenced  catherine has to do with the misconduct that he allegedly engaged in when he was assigned to the law library is that the connection that you're drawing yes you're on does anybody in the record have an explanation as to why after a few months in foodservice he was then transferred back to education again because if the reason is misconduct they are i find it curious that he transfer right back there without the clarity explaining that and if that's the record then then those are the inference is that need to be drawn in his favor it's a can you address that gap in the evidence your honor i can't address the gap but but that you're on i think you're you're drawing too close a timeline the he was in food service from september fifth two thousand and eight in the is it s e r one forty six two march twelfth two thousand and nine that's that's six months we don't have any evidence as to why he went back whether he promised he wouldn't do that again whether they ever raise the issue with him specifically we don't know that's a here's the problem i have there's a lot of bits and pieces of evidence here and i think you're right there certainly evidence on the record think that comport with your client's view of the case but of course all the facts have to be construed in the light most favor i understand that but that was a strange place to be focusing because if the question is religion that in a logical gulzar i mean then you have to make an actual finding that he had done these things in our or that they really thought he had done these things in the education department and that's awfully fussy here as well no your honor because the record is clear that the testimony from the witnesses i'm sorry that the clarence was that even if an inmate law clerk was suspected of of the education of our well your honor there there there is evidence in the record that his supervisor someone who worked in the staff in the library witnessed him doing these actions and that it was reported suspicions on the record uncontroverted that he was in violation of the rules and that's why they moved him that would make it a different case but i can trace the reporting up the chain and who learned what from whom and it's all very very muddled austin reported it to his supervisor is is there a declaration from the supervisor saying that he had shared it with the warden the problem with this is that not everybody can recall exactly what had happened here and there was no formal write up there was no investigation so called arone whose unit manager did not specifically recall this but he referenced in his declaration the timeline and the entries that were made into the system so we have contemporaneous computer entries that were made and we know th person who likely would have made them he just said i don't remember doing this but we have the declarations of austin and kirk who were there who recalled that this was the situation and certainly we don't believe that the record stablish a genuine issue of fact with respect to the motive however since the magistrate judge in her report recommendation and the district judge and in approving it found that there was a genuine issue of fact we are focusing on legitimate political goal here we  certainly believe that there is not enough evidence in the record to tie that presumably particularly because the the timing of the transfer is only based on a connection to a stray comment you'll see which has no other basis for an explanation you'll see we're going to get you for doing this you know there's nothing further there so the entirety of the claim is based on that i only have thirty seconds if the court has questions about the eighth amendment claim i would be happy to address them otherwise if there are further ones about the first  the timing it was the same day as that you'll see comment it was done but the but there's no connection in the record from woodring or young having instructed calderon ordered him to do that that's where the evidence is lacking oh wait a minute wait a minute that can you just of the case as far as i'm concerned can you back up and tell me why isn't that significant i understand contested significant circumstantial evidence because i tend to read the declarations the way you read them counsel but when i put it all together particularly temporal connection of this comment you'll see that's the alleged comment why isn't that enough well woodring is the one who's alleged who said you'll see rhyme then we have a declaration from young saying at some point he reference to call her own that there was this issue going on so where's the connection between the you'll see and call drone or you'll see and young there is no there is no evidence so it's all speculation that this stray comment by woodring and this transfer occurred  necessarily suggests retaliatory motor the entirety of the case is based on this comment right the question was are you satisfied with yet the result of your grievance that was the betting issue right right and then  whether rational fact finder would see it would find this would find favor of the plaintiff the warden is responsible for signing off on every single claim that is made by an inmate so to suggest that the warden is going to get in a situation where it's been resolved is going to now determine on the record as a whole whether this one straight comment is sufficient to send this to a jury doesn't think it's not enough it's not ok thank you thank you that the dining service duties would be essentially non set in terri would involve but i think the question at this point that we need to ask is whether it's a fair inference from all the facts that he dining hall position would involve there and in order we've got to start weighing credibility in order to make a determine if there are legitimate pain a logical inference what if the declarations indicate and this is sort of how i read them that they're inconsistent only in the sense that they attribute different edges retaliates what if but i gather that for this purpose the question of whether he does the question of whether he actually did any of this things he  we need a sufficient factual basis otherwise we wouldn't we wouldn't have any well i mean i wouldn't have the support of reason was a lot of people are coming in to have a child if they did no further investigation is a legitimate pain a logical interest interest to transfer him because they thought suspected well conservative that he might be doing this if that were true i would concede that yes it's a legitimate people logical interest but on these facts i would point out that there is no record of misconduct and indeed the only record that we have a point this performance at the library is a favorable and satisfactory performance review so on these facts i don't think so you see if your theory is that the reasons in the declaration is that we can glean two or three different reasons that they're not legitimate you know logical but but but because different reasons for given that is another shit in your arsenal of circumstantial evidence to doubt that any of those reasons was the real one correct it creates a question of fact which is all we need at this point all right you're over your time but i want to thank you for