disciplinary hearing well first of all your honor i was not a prison inmate retaliation case it was in a different context and second even if they're just your court was only required to evaluate whether some evidence supported that application of the present policy the district court didn't do that here because it took the evidence in a in a light against the nonmoving party mr watson and by concluding that the radio was broken when in fact gave my officers a hard time when you were arguing about fixing your radio and requesting agreements and you weren't quite you were polite and you know if the president had said i'm giving you a misconduct because of insolence that would be thing but that's not th because it was based on our territory model i'm saying that it wasn't an altered radio to begin with but resident no but i'm also saying that but if you lose the case if it was an altered radio i would say that the district  yeah that's the same decision defense is if you're if he's clearly guilty i mean we were we would point to the harder case you're right your honor but if he's clearly guilty of the misconduct no matter whether there was retaliatory motive involved this is the prison you know retaliation conduct contacts and we recognize that if they would've if he was guilty of this misconduct they would have made the same decision than the officers when we just don't have that situation here turning to temporal proximity which  concede that the misconduct issuance of the misconduct followed hard on the heels of their requests for a grievance one yet still challenge whether or not there is temporal proximity there we're talking about a period of adverse action it can have effects such as you know changing cell assignment restriction on privileges which are very important to the inmate population and it can also affect their ability for premier prerelease programs and know quite frankly that makes sense but that's not really but that's not really an issue here because the radio itself wasn't contraband and we would submit that you know with a loose radio antenna it's it is also not contraband piece of tape you can see through it you can see the antenna it's not it is exactly the same except something really was only one of my antennas broken totally destroyed and when i put it back together it was clear take distinction no i don't think that they need to define altered you know based on how loose it is i i would just submit to write can't be defined altered based on hey you prefer an object that doesn't belong on the radio when we take which of some concern because that might mean that if i just i'm going to take time out read a rep and that i can use even maybe maybe they can decide that but the real issue here your own is that the district court didn't make any inquiry into whether or not it was altered it said but it was broken which is clearly contrary to the summary judgment record and therefore it was altered and moved forward to consu laughs you know say the reports of the extension and then have two of them broken off and i would say that's broken and you know it would seem that the prison would have a legitimate interest in you know removing that broken off piece of radio antenna but that's not the situation we have here so this isn't really about dictating where the prison needs to draw the lines it's about dictating that the district court must make some inquiry into whether the inmate is actually guilty  totally unrelated to his protected conduct and said that there was a sizable quantum of evidence showing that he was clearly guilty of the present infractions and the same sort of analysis just didn't occur here the court move and you know there are also genuine issues of material fact that preclude the application of the of the defense here it's not entirely material to rather or not this indecision defense applies but whether officer klein broke the radio water which sort of is in the factual pattern of what happened here the point is you know he she allegedly broke this radio and then the prison compensated he officer kleiner allegedly broke the radio resolved as an extremely simple case regardless of which statement of facts one except as to the condition of the right it fits the definition of an altered was in whatever state it was an officer cried to the inspection on the morning edition going that way for over a year yes no one had any problem with it whatsoever like it wasn't clear in overt violation of any kind of contraband well i would suggest or on or that it it sounds like no one had considered or decided what was wrong with the radio is in fact the ruling account so i would suggest that for the purposes of the c m age fifteen having a radio with a loose and we can be antenna and a correct but we also have united states versus rand we have ohio versus rob and that and we have cases along those lines like hartman first more all of which say in felony cases involving  or searches that lead to balance the arrests that if in fact there's an adequate justification for a stop even if it's in fact actually because they want to develop evidence of a greater offense that the existence of probable cause for that stop or probable cause for that detention or seizure is an adequate basis to geesey am fifteenth a work it has to be a clear right overly inclusive type of line that they're in force and because what we're trying to do is is prophylactic rule for institutional security which they've been conceded in its ruling sense without giving away their particular case in this and this is they don't think there's anything wrong with the c am eight fifteen on a philosophical sense we all think that prisons can take take away items which because they've been broken or altered or changed in some fashion from their word miry use present the possibility for breaking prison rules that using them as tools are using them as weapons so we all understand that and in order for that thing to work well there there should it should essentially be permitted to be enforced in a somewhat over inclusive way anytime that there's something wrong with it any time and it's not in perfect shape potentially it's been it's been damaged potentially anything that's been done to  adequate to satisfy carter versus integrate and i think we have to say that and i think if it's not then we can't prevail on the some evidence standard because we're not allowed to use we're not allowed to use an allegation that the radio was in effect broken or disassembled by officer klein and that nothing for a year before had happened hate you gave the peoples more of a hard time and you weren't plate and therefore i'm going to write you up with misconduct and that to me seems like the type of issue that some trivial issue a fact that needs to be resolved by a jury and all too often we decide things or summary judgment for the purpose of clearing it back but this one needs to be worked out maybe he's right maybe he's wrong but on this discriminatory enforcement of a statute the ordinance is not just of side simply because the enforcement is otherwise valid let's assume for the moment being for some here was was otherwise valid but then you got this minor  thing which was going to be left that way you have to escalate because coots does upset with what's he's upset with wants to meet her in the morning and i don't know the answer but it's really not for me existence of a prime aphasia case well known and simply deal with the fact that if the radio was in this state assuming cook coots had a retaliatory motive and recall that the goose was not the one that that actually action clearly there was because you thought it was kind and then was it a causal link between the two and that's the one that you're suggesting doesn't exist and because of the clear testimony let's say for the purposes of your question that that all of the prime a facia case exists or the purposes of our retaliation claim but our our response here is in the nature of an affirmative defense and if it's one that's rooted in the philosophy of our wadded at times motive or and doesn't matter if the evidence is sufficient to demonstrate a problem with browser war because if it's read broadly enough to incorporate it's as discriminatory now if it's read broadly enough to incorporate any evil motive including a retaliatory motive then your opinion  rouser v horn under which we've been operating for fifteen years is wrong because it says that in fact we're godless of the evil motive or invidious motive or retaliatory motive if in fact and that's what carter person grading is right based on rather  if if if the cop didn't like you make sure you didn't jay walk you know if the cop doesn't like you don't have him don't don't spin on the sidewalk while he's watching because you've given him a stick to beat with you give him an excuse and he already doesn't like but ok let's assume that happened here why didn't contrite him up at nine thirty in the morning why did he wait at two thirty we don't know we simply don't know and that's part of the problem that we raised in respectfully my point would be that that retaliation is not a fight by the fact that it was an altered radio you're coming back and then hill says but maybe even if it was that may not be enough because let somebody sort out whether it was really retaliation or it was ok i had these types of cases a summary judgment deal with issues that i don't think i should be deciding where judges should decide i understand your position your honor and  t our position nevertheless must be that in cases even when in fact officers have acted out of retaliatory motive  intrusive aspect and yes at this for instance to conclude it's not an atypical depreciation of of rights which would justify the implication of in the issue then becomes whether or not watson's account of what he thought was not much wrong with his radio but nevertheless something wrong with his radio well that wasn't the way it was when you buy it new if his account of what was not much wrong with his radio constituted an alteration and i say it should because we should err on the side of of over enforcement legitimately in a logical interest and clearly retaliation is not reason legitimately related to the logical interests so you know there's some room to consider discriminatory retaliatory motive he had he was pro se before the district court he had somewhat limited discovery ability and he was still able to marshal these general issues of material fact that everything everyone pause here and sum simply saying broke him that it is against the tenet everyone fifty six that the evidence is to be taken in the light most favorable to the nonmoving party broken you know it semantics but it's different and loose and