it please the court the district court committed at least two reversible errors first by failing to honor its own instructions to mr lambert has to how he could oppose summary judgment and second by failing to consider the specific items of discovery that he sought in rule fifty six after motion after the first air the district court led mr lamberth to believe that he could respond to a summary judgment motion and avoid waiver by doing one of two things either by filing a brief in opposition to summary judgment or by filing a rule fifty six after motion nothing in the district court's instructions to mr lambert suggested that he could or was required to do both simultaneously when mr lamberth filed the rule fifty six motion group of six after motion following the district court's instructions precisely the district court nevertheless treated him as having waived opposition to summary judgment ignored his alternative request for thirty days in which to file an opposition based on evidence already in the record and entered final judgment in favor of defendant's counsel it looked to me like a good fifty six f motion would have sufficed a bad one wouldn't and i could not see why the things  additional time for justified i was certainly not to be extended making it an abuse of discretion to deny its fifty six f motion act could you tell me exactly what it was that lamberth i want to justify the fifty six death motion or alternatively say what it was that lamberth would have submitted in opposition if only he'd known that he had to submit in opposition certainly your honor although with respect to the argument that the district court contravene the fair notice requirement i would submit that that inquiry is not necessary and under this court's and bank authority and ran vs roland that reversed it would be automatic as to our the second failing even to consider two of the three items of discovery that were sought and that that justifies reversal without regard for the merits of the discovery subjecting he's objecting to the prison policy that restricts male between inmates yes and he says i want the union the cop guards union contract right why given the guards union contract and why the way the case while he gets the guards union contract the union contract  impetus for the policy that he's challenging is not the security interest and i don't even see how you can draw a distinction if you have so many guards and so many inmates then the problem the prisoner ministration faces is how do you provide security regarding so many inmates with so many guards and saying that the motivation is to limit the workload of the guards is saying exactly the same thing as the motivation is to provide adequate security involving so many inmates well i think it's a different sort of security interest than what the defendants are starting on appeal in the district court the security interest that they're asserting is that there is a gang problem in california prisons and that presumably allowing letters to be sent from inmates at one institution to another may somehow exacerbate that problem because of the contents of the letter that's a different security interest than asserting that labor related workload considerations require this correspondence i don't understand that it seems to me like the same one in order to allow the letters to be sent but protect against crimes that are ad generated by the letter somebody has to read the letters an individual can only read so much and so much time so if your number of guards is limited your ability to read the letters decode them figure out what these people are talking about is limited well first of all i would submit that what mr lambert is arguing is not necessarily that there should be prison resources allocated to read every letter and not that every inmate should be entitled to send letters but rather the should there should be individualized consideration of an inmate circumstances to determine whether or not that particular inmate should be allowed to correspond with inmates in other institutions that's it's labor intensive doesn't make any difference though because even if you're correct that this was created by some kind of a labor believe that in and of itself doesn't sever the common sense connection to use our convoluted case law language between the regulation and the security purpose well it doesn't necessarily sever the common sense connection between the regulation and a security purpose but i think that the fact that the defendants would have inconsistent rationales severs the commonsense connection between the regulation and the purpose actually asserted on appeal whether there is a widget in a common sense connection between the regulation and these labor related security concerns is something that the defendants have never argued and has not been briefed in addition i would also add that mr lambert is seeking two other items of discovery that  also have precluded summary judgment one would be operational policies at other institutions and the other on his information regarding the history of rules violations at high desert state prison prior that an act of the current policy your evidence that the labor dispute and regulation that you don't like well because the union agreement itself was not produced there is no conclusive evidence there is a memorandum in the record suggesting that a policy was enacted at high desert state prison and others for determining prisoners eligibility to communicate with other inmates and that that procedural policy was motivated by labor allayed considerations i think that a rule fifty six f motion that at least raises the possible  inference that the union agreement would be relevant evidence the district the district court i would emphasize did not even consider this ground this ground in the rule fifty six f motion and at that failure to exercise discretion simply ignoring prisons in california i don't know your honor and the that your question goes precisely to the need to discover correspondence policies and other institutions whether it was the only reason given when when the warden formed formulated this policy the was there any any record to indicate why his person was different in all of the prison and i believe the warden just the sort asserted the security considerations that high desert generally but i'm not aware of any particular considerations unique to that prison that would not be present at other california institutions and i believe that that goes to the reasonableness of the policy and to whether it's an exaggerated response and again for that reason the discovery requests that mr lambert sought and was precluded from obtaining prior to th premature entry of summary judgment may well have precluded summary judgment in this case with the fifty six whatever judge gets when he asks himself two questions is there any reason why the party making the fifty six motion couldn't have gotten this in a timely way and isn't important enough to further delay the proceedings and it seems like the answers to both questions here would be no i respectfully disagree on are first of all i don't believe that the district court did ask itself that question because i believe that it ignored several items of pending discovery second of all mr lamberth on i believe april sixteenth you know ignored i mean a judge i don't have to talk about everything that he thinks about he can read the papers and make decisions adverse to you and it doesn't mean ignore your arguments it just means ruled against him well he certainly provided no written or oral basis for this court's review to show that he did consider the the requ obtaining the discovery he sent counsel for defendants a letter specifically outlining the discovery disputes ask counsel for the defendants to respond within thirty days instead within a couple of weeks of of that counsel for the defendants filed a summary judgment motion that first of all the district court did not consider the discovery requests second of all if it had it would have concluded that mr lamberth diligently pursued the available and i'll grant that it looked like the most routine sort of response to discovery they give you some of the stuff you ask for and on others they have various objections and then you make a motion to compel which is what mr lambert did and then the judge decides whether to delay proceedings mr lamberth made a motion to compel and the district court denied it did not rule on the motion to compel deny the fifty six f motion again without considering the specific items of discovery that he started and contrary to the procedure that the district court judge or to sniff the magistrate judge himself laid out at the beginning of the case majority did say that harmless error would be appropriate only in the most unusual case and the sort of harmless error that the majority was discussing inland was a procedural sort of harmless error is there evidence in the record that makes it clear that there was no procedural harm that the that the litigant knew what was required of him despite the fair notice warning there is no such evidence here in fact mr lamberth followed the district court's instructions to the letter and was penalized for that by being treated as having waived request for a continuance to address the three items of evidence that he thought first first was the union contract the problem with the this particular union contractor is twofold first the policy change and in that in that in our view that could be hardly be a pretext for this particular correspondence policy change listeners have modified first amendment rights prisoner have but excluded you say ill the prison where the correspondent or inmate bomb is located they also change their regulations to be consistent with high deserts they did so about a year later what was interesting and or insignificant about high desert was first of all it only became operational in one thousand nine hundred five so at the point of time that the policy was revised the prison had been in operation for only for years secondly in one nine hundred ninety nine to show that he has a reasonable could faith belief that this policy will advance institutional safety and security to the extent to which i and i'm confused by your questions is our excerpts of record and in that declaration he detailed the reasons the safety and security reasons that he had first that there are gang problems secondly that that in may communications can result to planning assaults and so how do you handle it when somebody comes along and says the work has misrepresented the real reasons that we're able to show that there is another reason that promoted this and it has nothing to do with security or safety well in this particular case that's the other that's the other problem with their argument on the  prisons security is just life it was saying earlier what happens if you have to have to put all of your correctional staff on reviewing inmate correspondence who's going to be out on the yard to keep the inmates from getting into mischief that's the problem that we have here we have a limited amount of resources and with and that's how we've answered the  question there were two other items that the plaintiff raised claiming that created a disputed fact that the judge should have considered the one was specifically addressed in the order denying the inmate rules violations themselves wouldn't have told anything because as i mentioned earlier high desert was had just gotten under way the prison itself it only had a four year history at the time as it has had come up and this was point is that the noticed that was given in this matter is the form notice used by all of the judges in the eastern district in sacramento and the substantially similar to the notice used by all of the district courts in fresno in the eastern district i believe that this notice satisfies the rand requirements it is an ordinary understandable with the courts option to treat not a favor and not office ition as a waiver of opposition in this particular case the district court did not treat  failure to file an opposition as a waiver the district court went on in its findings and recommendations to treat this matter on the merits and held that the correspondence policy was reasonably related to the institution's legitimate correctional goal of prison security unless there anymore questions the state w correspondence policy that's true the union contract does post date the policy by about three months but they're close enough in times that the union contract could conceivably refer to the policy enacted at high desert state prison just a few months earlier  frost don't we have to ask if the common sense connection is a severed by whatever it is you might be able to prove it if not you lose and it doesn't seem that it is as pointed out by the other side there's no mutual exclusivity between staffing and prison security to begin with i would submit that there may not be a such a mutual exclusivity it may be that staffing is a legitimate security concern but it's not the want to started on this record if even the one but if the one that's  well even if it is a labor problem that doesn't necessarily some of the commonsense connection between the regulation and the interest if it's a labor problem then that would show that the defendants are serving inconsistent or at least different security considerations versus labor considerations a different point in the litigation and that inconsistency goes to their credibility and goes to the common sense connection seems like you're raising it to too high a level of generality when you talk about labor problem that it was more specific problem the time that it takes guards to read letters have not something like  the guards don't like doing it but rather the time that it takes guards to read letters that's different from some other possible labor problems and in fact as i recall it's the identical labor problem that the supreme court considered turner versus saf ating the regulation based on a full trial record and based on that trial record it concluded that the regulation was promulgated for the sorts of security concerns related to gang violence as a put not the court did not speak specifically of labor considerations in addition the court and staff we noted that not all prisons i'm sorry excuse me that all prisons in missouri were subject to the same policy whereas here as judge ferguson has pointed out in questioning today there is there is at least an allegation that high desert state prison is unique among california prisons and using this policy i would submit that turner is distinguishable because of the full record that justice o'connor's opinion for the court carefully analyzed there and here the district court threw the two procedural errors that i pointed out precluded such  a record from being developed thank you counsel thank you