in this matter now before i get to a rendition of the facts i think there are some important words that may come up today and that were brought up throughout the briefing that might require some definitions such as ignorance lack of knowledge education or something i've learned ever since law school and cited many times in many courts around the country is never a defense insulting the word that the district court used as it related to napoleon's practice of his religious freedoms it was insulting to his religious freedoms the conduct that occurred insulting us to treat with insolence indignity or contempt and also to affect us that's all well and good manners and your position is not really what we're here to deal with certainly our what's one thing is isolated versus widespread a question of fact are a lot isolated person versus widespread your honor certainly is a question of fact  supreme court got this case would it would it would consider the the difference with the difference in those terms for applying it's the standard what it would consider the ultimate question factor ought i believe it would consider the ultimate question in this particular matter a question of fact your view and your view whether whether it was isolated versus widespread as for of for and i would your reader decide yes for what case would support that well your honor in terms of what cases support it i think if you say the answer is fine if that's true or against me but they're wrong fine no your honor i don't believe i but i don't believe it's that cut and dry there are many cases that have decided an isolated incident and they were cited by the district court for instance in the johnson bay versus indiana department of them address whether it's the ultimate question is fact or mob specifically and i don't know of one that did i don't believe that they did they did your honor what i was attempting to get at was the fact that in those cases they constantly referred to as isolated in what i truly believe it means one or singular incident those particular cases the district court cited talked about one meal being done right one time incident occurring not something that we have in this particular case while here we have four incidents i think would you agree would you agree with that that there's four that are that are at issue here we have four cases or four situations that were me especially in light of the fact that in each of those cases the president tried to remedy the situation right afterwards respect the respect for your honor and i understand what the what you're trying to say judge however i think we go back to the factual vs legal question in that situation we have a factual determination and one of the cases that you're talking about the ham in beans the complaint was there was no sign there was no distinction  that there may have been contamination and while he might not have eaten it i don't believe the record indicated whether he was actually served or anything else in substitute of that is he and should he be punished for exercising his rights and does the do the athletes have the responsibility to ensure his it ference to his or her file and the flip question is is is should these these folks that have been sued be held responsible they administer their job responsibilities we are talking about the exercising of a constitutional right that ability to exercise your right here and to your faith but isn't the standard different in prison than it would be any other contacts i mean i know not positive about this you can tell me if i'm wrong but that's why we require a substantial burden for prison types crimes and that right absolutely your hon seems to me that if this is not a substantial burden it's hard to understand what would it's not a substantial burden it would be hard to understand what would be would not be whatever i mean i've got it all backwards but the point is is this is this is pretty isolated and so and so i can't think of a case where there wouldn't be liability if an inmate were sort of cork i guess my point that's a better way of and it's your answer may sound like your your position is qualified immunity doesn't apply to these claims that's a real that's a real heroic assertion your honour's i mean you said oh they're responsible in damages if they serve pork once they are and they're entitled qualified immunity and if this if what you're arguing is not clearly established well and let me back up i don't believe i've made the assertion that if they committed the conduct one time that they were numbered any number of times well any number of times gets us to the point where in fact it's no longer isolated it is and it is widespread and certainly they're qualified immunity should not apply or that search on the side that well i shouldn't have the opportunity if i saluted versus widespread is the distinction that's relevant to qualified immunity that's an issue of law for the court it prospectively on i would just have done i mean that that's not debatable there may be something for the jury your appeal on on the what it was twelve b six and are you asking for what what really if damages are not available in your client what's left of the case why i'm not certain the damages wouldn't necessarily be available to my client told you what what my thinking is on that that qualified immunity looks like a slam dunk with a circuit qualified immunity precedent if i'm if that proves to be true what's left of the case immunity applies and judge going back to your question as it relates to the isolation or whether it's a substantial burden or not this court in his view long has made it very clear that muslims in the consumption of pork in any form is not permitted by them and that they're not allowed to come into contact with them that it's forbidden it is that much of a tenant of their religious beliefs and this  recognized that that is in fact the end hearing to someone's faith the substantial burden that is being placed on the pollie and effectively is well in other words to eat you may in fact be putting at risk faith if that respectfully i don't disagree with that in concept but what's the evidence here that this was a pattern of misconduct rather than just a series of potentially negligent  lingering issue that the parties don't create but i could not find a single free exercise case particularly present that said that negligence was enough not one and i don't know if you've been able to find one not that says negligence in and of itself is enough what i would be standing for your honor is that you can't always use the negligence defense over and over and over again is there a duty and responsibility that is placed on the apple e for ensuring individuals to be able to exercise their faith and what i mean by that is making sure that the food that is being served does not in fact have those contaminants in it i see that my time is up and perhaps i'll get rebuttal thank you will present officials assert that his rights were not substantially broaden that the summary judgment was properly granted in that the decision of the district court should be affirmed on appeal at issue in this case and what constitutes step we would assert is a legal issue and it's a difficult line to sometimes draw up between where becomes a legal question and where might be a factual individual's right to practice their or their religious rights would be if they think there was no different provided to their religious requests at all for example if they are a prison officials just said hey you get what you get in this case there was some planning and some preparation iowa has a system whereby they provide a cloak free diet and when there is pluck there is notice an advance and so i think th the type of case where it's not just he was out there on his own but there were efforts made not to burden him to borrow that phrase and so i think what we're looking at this the burden  substantial burden i think the true blood would be a substantial burden would be if nothing were done at all in this case steps were taken to satisfy the religious concerns of  of the the offender in this case what about the the opposing counsel whack a mole like me which is oh yeah we fixed that one but then another one pops up and fix that one another one pops up i understand and it's some point i guess could it cross the line where if the guy's name was screwed up three times a day for forty six months yeah it might cross that line here we have the four instances over the period of six months or so and i think what's probably most different incidences and one i think they have and show that it was in fact on the menu and placed on the menu and notified i don't know why he got the train or didn't get the message that hey this is a pro product vent it seemed like he didn't in the factual record is a little little hazy but on one of them i don't think he ate it because he suspected it and so that that course of conduct over a period of to comply with this diet when they didn't have compliance they took steps to remedy yet they didn't order that certain brand of toaster pastry anymore or didn't serve in the shredded wheat and then were left with that the two isolated incidents where  could have bad in it i think that would have bet a valid defense and i think and that's always the question that when when those that are shoes raise the brief when is enough enough and you know what the grounds to be raised because we raised responding at superior grievances we could have thrown and qualified immunity but i think at some point qualified immunity says hey the fellows that will establish an we didn't know i think we know in this case we're trying to do the right thing and so i think maybe that the reason or the rationale right were both concerned with doing the right thing and just saying that now we don't have to pay a bill and the fact that you know the right thing is evidenced by the the two lines and we have those same issues and dietary things dietary issues in prison it's difficult on an energy day i mean it it there's a lot going on a lot of different requests for different types of food from specialty foods and sort of being a large number of population a large number of males is is difficult but here there's no evidence of anything but negligence that i can see no no and i think that that's what what i would say happened when we went we looked at what what we do in response to the grievances and that's rhyme particularly you know the evidence is good we did something about it we said gee what did we do wrong as opposed to you know too bad we called the manufacturer of the toaster pastry and they said well would ninety five percent sure it was beef gelatin not talked out and but we don't know and we said that's not good enough and so we took steps to alleviate those concerns and so i don't think there's a number of bad acts that crosses that kind of crosses the line i don't think it's an american issue and i don't think it's a proof say we served him a non conforming item it's constitutional violation i think it's just a question of law as the court determined in a variety of contacts was it a substantial burden you absent time i give you a minute of i think we understand the case but you may think we don't i would i would shudder to say that your honor your honor just briefly and i appreciate the court's indulgence in giving me a little bit of time i certainly respect the court's comments related to negligence i want to reiterate though we do get to a point where the upside did it again can't be allowed that's effectively what has occurred in this case if we just continue to make the same mistakes even if it's a different type of food we're making the same mistakes over and over and over again which then results in the deprivation of my clients right to it here to his religious faith and in fact one of the most important parts of his religious faith and that's making sure that he's not handling or ingesting pork in any way shape or form we live in a technology in information era the information is not hard to derive it's not hard to find  the substantial burden being placed on the polian is that he is being served food that he has requested that he not take as i see my time is up i appreciate the courts and dalton's thank you counsel