only reason i say probably is because the court did enter in order of a briefing schedule contemplating consideration of both applications but i would have to concede that if this had been reached in other argued well perhaps you did something wrong with the order but i didn't see anywhere in the record where it was contested you know in terms of a motion to reconsider or for that matter appealed separately or is it was not your honor it was not in fact  focus of bad issue is whether the case outcome effect of the material change in the legal relationship between the parties to the point here is that between the plaintiffs in that fund that that was sanctioned by the something in this case you have to remember judge hoover specifically where do you want her to mark numb this case judge you have to look at this case where this judge ruled that there were as many as five independent bases for of the factors you're talking about the fact that such who were said you know what he said about the us and this thing doesn't count i didn't i never saw the agreement so you can't be prevailing party and it seems like that's the threshold that we're dealing with but i think judge cougar incorporated the entirety of the circumstances involved in this case this woman's claim that she was subjected to an amendment violation was thrown at her core there was no decision but it to her that her  show that there was a material change in the relationship between the parties this was essentially a private distribute that was subject to a private so my dear friend of mine here is the first in this case where you have a was no abuse in his discretion or in his reasoning to determine that mrs rock was not the prevailing parties yeah she did i do well i just think she's case from the second circuit's roberson case where the district judge also really didn't really know too much about what the handcuffed and arrested on a public street that's that was the essence of this case was this woman's house to tional rights violated by this officers arrest and judge who were found that there was ample evidence to support a summary judgment decision the court not with the understanding of the parties and say action by those who are scheduled in order of briefing on the issue of whether she's entitled to fees or resubmit judge who were exercises discretion properly to argue that this performance notice it was evidence of a municipal policy to encourage the use of force take down regardless of who the suspect was any motivating factor behind officer rock behaving the way he did on the date of the subject event but that doesn't that does not present any kind of fact that there was adequate training that officer brock never had a excessive force case against him not even a claim much less a sustained claim and dothan twenty eight years of service  is not a policy maker and it's well settled that a single wrongful action by a non policymaker is not sufficient to establish municipal wide ability so in oklahoma city versus total the court found that proof of a single incident of unconstitutional activity is not sufficient to impose liability under a moon now when the municipal actor does not have a policy making authority exactly what we have here the plaintiff council or should have known that this performance notice that he's arguing as evidence against ocean city is not going to  reasonable for him to bring that up as an argument ok it made me miserable but it's not going to be good for not competent evidence against ocean city so what did the point of have against ocean city absolutely nothing but a free discovery god save for the letter had an opportunity to review the law and realize that the only thing better he had was this performance notice now had been advanced against ocean city for municipal liability and there never was any evidence of me to supply politike not in the complaint and not in not in any of the discovery that was forthcoming