it please the court just garcia no c in hall law school center for social justice on behalf of plaintiff appellant tama k brandon in a moment my co counsel allison thompson will address the retaliation issue first i will address the denial of brandon religious meals it is not disputed that brandon did not receive any religiously appropriate meals from the time period of march second two thousand and twelve to september twenty seventh two thousand and twelve were resulting in at least seven months of his honor and in addition brandon didn't has come in his verified complaint and in the record below multiple times that he was routinely and continuously denied his religiously appropriate meals including the entire holy month of ramadan which the district court the magistrate judge failed to recognize below when stating what specific instances total to that ten religious meal so there's a lot of debate and confusion in the record as to when the kitchen question your honor even if this court were to find that it was only ten meals on the record that would still be a substantial burden looking at this court's precedent in cases such as ford and  even one meal is sufficient to rise to the level of a substantial we were to agree with you that ten is sufficiently a burden and we're to find that in this case it was more it might be wise for us to say that a please the court my name is allison thomas and i also represent appellant brandon in addition to brandon's free exercise claim he also filed a viable retaliation claim that shows how defendants retaliated against him for filing an increasing number of grievances first very briefly the first two elements of a retaliation claim are not in dispute here brandon engaged in protective conduct by filing it least forty one grievances and he satisfied the second element by alleging three different forms of adverse action that were sufficient to chill an inmate of ordinary firmness what is in dispute is the third element whether brandon has sufficiently shown a causal connection between his protected conduct to filing grieving and the defendant's adverse action which included intentionally placing pork into his meals improperly removing him from his medical diet for seemingly pretextual reasons and intentionally exposing him to assault from another inmate and there's two ways that this cause all connection is proven however looking to his entire period of incarceration these grievances aren't even only distributed there is a certain period of time beginning in early october of two thousand and twelve where the grievances spike reaching an absolute peak for example of the period of october tenth through seventeen brandon filed six grievances in that seven day period and it's where his grievances begin to reach a maximum that these adverse actions begin to be honor mr brennan continued to grieve because his grievances remained unaddressed he continued to receive mails meals that did not comport with his religious diet or his medical diet and some of the grievances were in fact a bow the fact that none of the previous grievances had even gone addressed and certainly mr brandon did file many grievances and this seemingly annoyed the staff of clinton county jail who began to retaliate against him for engaging in this conduct this can be seen on october fifteenth brandin threaten to escalate his grievances to the next level when he asked for the contact information for outside attorneys and th honor the second way is through direct showing of retaliatory animists which in this record is evidence through statements made by employees of clinton county jail against brenda and these statements are details on pages twelve through thirteen of brandon supplemental response memorandum outlaw but just to highlight a few on one occasion tkinter told brandon you can starve for all i care since you want to nit pick and complain about everything you'll get what we give you additionally clancy had told brandon that if he grieved another try she would lock his ass up and send him to solitary confinement and finally on christmas after brandon who at this point it is undisputed that the entire staff knows he is a muslim brandon was served pork in the form of ham and when he grieved that someone asked brandon where's your holiday spirit the temporal proximity in addition to these direct statements showing complained officer plays laughed at him and said come on brendan you know you had that coming further again demonstrating that officer blaze sent brandon on that task knowing full well what was going  the statements from correction officer blaze demonstrates that he knew something was going to happen maybe he didn't precisely know it would be this inmate spitting on brandon but he sent brandon to collect that knowing something was going to happen thank you thank appeal boils down to is what is and what does not suffice to defeat a motion for summary judgment what plaintiff has done and what plaintiff has not done and more particularly whether plaintiff has damaged demonstrated through evidence inadmissible form the existence of a genuine dispute of material fact to defeat defend its motion for summary judgment at the outset i think it's important to no demonstrate what is fact through admissible evidence what about the sixty three meals and that is that a fact is not a fact it is not a fact not because it's based upon something that has not been established through admissible denied was given pork during this period and your honor that leads me to what i was about to say about a fundamental promise to defeat a summary judgment motion in the score it's been recognized repeatedly that self the fact that the kitchen did not know that he was above supports effect that if everybody was being fed or he would be being fed court to because if the kitchen didn't know then it's likely that it was that may speak to intent that may speak to other feelings but it certainly supports his statement his sworn statement that he got served for so i don't quite field otherwise it renders the whole process meaningless i don't quite understand what you ask him to do more to create a material question of fact he swears he swears that he was serve know that he wasn't supposed to be surrogate gotten pork why isn't that enough to establish as a fact that he was that he got served pork then of a question of whether of it was intentional or anything about what he consumed despite having made allegations as to perhaps four incidents in his complaint he suddenly had amnesia as to any incidents it's not even a single recollection of one incident where he was specifically served pork now come summary judgment time he suddenly has this miraculous recovery of memory in the complete preceded this deposition but what i'm getting to your honor is the fact that the his opposition to the summary judgment which is an entirely different document specifically whether or not it's inconsistent or directly contradictory it still does contradict his selective amnesia at the time when he says i don't really know and then he sees menus in isa's vista vista now you may believe it or not that's another matter but that's just what material questions that the jury are a fact finder may i understand your position your honor but it doesn't seem that it doesn't save him from the fact that he couldn't remember remember a single incident is a basis for cross examination at trial perhaps but he submitted sworn statements through his  here's to the extent that the grievance refers to a specific neil would be would be relevant on the factual question why i would submit that an open ended statement based upon saying i looked at it in a menu and i see sixty three meals and fashion without the development of any evidence through he had a number he's obviously experience as deck him is documented by his numerous doctor docket entries on the record he is experienced as well and he did serve various discovery demands he was perfectly capable of out of getting this testimony if he wanted to to support his basis but he did not do so instead he states and could clues or refashioned this is what happened think it bears mentioning right at the outset is that there is no evidence that the plaintiff was actually retaliated against he was not harmed he was not disciplined a review of the grievances shows that if he was provided with any non compliant meal it was either replaced or it was confirmed that whatever he subjectively believed to be a poor product was in fact not a pork product as the number of statements that could be construed as direct evidence of intent to retaliate is that on the record i don't believe so again this goes back to whether or not this is in evidence inadmissible for situations over bit about anything else where somebody claims what they were discriminated against and the basis of race in a completely different type of case but the cases we get all the time what we have is somebody summary judgment standard at the summary judgment judgment stage is a little different what might suffice at the pleading stage i'm talking about summary judgment i'm talking about summary judgment in a typical title seven discrimination case where we have somebody say that supervisor said this to meet which was a racial or ethnic or age discrimination knows well your honor i think it's the intent behind the affidavit this would open up pandora's box any time somebody raises an issue in support of a summary judgment motion i can manufacture any fact i want for the purpose of defeating that motion is that not correct of course that's rhetorical your honor i think that would set a dangerous precedent here i think that preceded it dangerous as it is has been so that it followed any number of times that we  made it i just may be reading the cases differently i'll have to go back and we you know it's possible that i am as well you know you were saying that there weren't adverse actions but they point to the somewhat dangerous and so why why isn't that is not sufficient for and i'm forever sanctions again your honor without sounding like a broken record here i think this all goes back to the fact this is a bare conclusory allegation there's been no meaningful development of evidence to support these allegations again if that could allow anyone to say anything to defeat a summary judgment without admissible il down some of those some of these facts your honor the dispute over the verified complaint that this court seems to be discussing with opposing counsel this court's precedent  the verified complaint is an affidavit for summary judgment purposes so your answer to be is yes he did blew that but he's got the verified complaint yes your honor and as to the qualified immunity discussed earlier with the burden of the ten meals the substantial burden has been clearly established as early as cases of forward make each and also holland that even a small number of meals can result in a substantial burden i think