drawing all inferences in my client's favor you'll see that my client spent four months the pealing to every available prison authority to get a koran and a catalog from which to order  may have had to wait to receive a catalog if none were available on that day so according to the defendants themselves there's it's unclear whether catalogs were or weren't available and of course you can't issue summary judgment when that kind of issue still remains open but that's just one piece of evidence on the catalogs there are other pieces of evidence about their own availability for example i think it was the sergeant who in his affidavit said garner may have had to wait for a catalog if none were available in addition no one told garner at the time that a copy was unavailable which is an awfully strange thing to happen if indeed there weren't any around  i believe the other question was about the koran and whether those were available to my knowledge the prison officials have never contested that qur'an is were indeed available in the chapel library all they've said is that my client didn't make a written request for a koran but of course that's a material factual dispute right there my client says in an affidavit that he did meet such a written request and that's precisely the sort of thing that counsel that difficulty i have lived as claim across the board is that it's a claim for damages yes this is not a claim for injunctive relief against a policy that either discriminates against muslims or substantially interferes with their religious exercise under the first amendment this is a claim for damages against specific prison officials three officers the warden and the grievance counsellor i guess there's one more the chaplain in the case and there just isn't any evidence of intentional interference with your client's religious exercise the whole debate about whether catalogs were or were not available on whether they should have certain patched one together during this period of several months and he was in segregation and without his religious items that he needed for his personal worship it all adds up to what the district court characterized as negligence essentially people were dropping the ball all over the place that might be a failure of accommodation claim that that's not actually what we've got is a claim for damages for intentional interference with religious exercise or intentional discrimination and there is no evidence of that here that they were there was just a lot of you know inattentive if that's if i mean going with the issue of intentional burdening  foliage and then turned to discrimination and i'm talking about intentional interference let's accept that there was a substantial burden here and there needs to be evidence under the case law to hold them liable for damages that they intentionally interfered i would dispute that  first amendment requires accommodation of prisoners where failure to provide the accommodation would create a substantial burden less there's a good people logical justification for failing to provide that now we accept that we have to show that the imposition of the burden or the denial of the accommodation was knowing as opposed to be negligent there's lots of evidence of knowing denial of an accommodation here the most obvious is that the accommodation  just is not present here the law is not clearly established out that i clearly established that they can't intentionally interfere or intentionally obstruct his religious exercise and it's clearly established they can't intentionally discriminate a combination areas very fuzzy i respectfully disagree this court is bound by the supreme court's decision in alone against robots which said that there is such a duty of accommodation that case continues to be cited by the supreme court it's never been overruled  questioned by the supreme court in addition this court's decision in not i think was thompson against hold says there is a beauty of accommodation in that case prison in fact the very same prison that's involved in this case failed to provide ramadan meals for four prisoners who wanted to break his fast and the court said that denial of an accommodation violated its clearly established rights back in when he thirteen so i respectfully disagree with th that this is not clearly a stop thomas thompson excuse me also requires intent general intent with we think that's equivalent intent to deny his religious  denied in response to those requests now the sheer numerosity of those requests is pretty strong indication that it's not just negligence i mean if someone keeps telling you ten times i need extra practice my religion and you repeatedly ignore that or point them to someone else and don't follow up even though he keeps telling you my request hasn't been fulfilled i agree one inference the jury could draw is someone just dropped the ball but another inference a jury could draw is that this was deliberate or at least a knowing denial of an accommodation but that's as far as knowledge is concerned i want to turn also to discrimination a jury could certainly think it's not a coincidence that at least two muslim prisoners didn't receive catalogs wrong while christian prisoners at around the same time and around the same area got bibles and cattle it was that that's an institutional failure  that those affidavit says true if there's nothing to type a specific defendants here are two acts of discrimination that's not i respectfully disagree on that too there are at least two things i can think of th the segregation unit so they would have been the ones responsible for handing out cotton was so we know that those two people were the ones who would have denied garner and the other muslim prisoner a catalog but would have granted to christian prisoners couple similarly the chaplain the very same chaplain in this case is the one who handed out bibles to those christian prisoners but didn't give a koran to mr gardner so there is evidence that they are declarations the decorations that these other inmates to not talk about whether they request made the request in writing as apparently as required and they don't talk about who was to supply them with their religious items and we just don't have any link to these particular defendants i would respect disagree with that characterization to get first of all the declarations to say that it was chaplain who gave them the religious texts in response to written requests or all requests that is unclear but garner did make a written request he has sworn to that in his declaration as for the provision of the catalogs it's true that the prisoners don't say who provided them the catalogues in their affidavits but the unit manager speculations so indicates that it would have been good morning may it please the court my name is abigail potts and represent the state defendants in this appeal as we've already talked about this morning there are two claims here there's a religious interference claim under the first amendment and there is a equal protection the fourteenth amendment relating to religious discrimination both of these claims fail because all garner does is present questions he does not establish claims and what garner fails to realize  isn't it sufficient to survive summary judgment on equal protection grounds that there is evidence that the christian inmates in segregation received some bibles and the muslim inmates were denied catalogs and koran was no setting aside whether prison is required to accommodate their religious needs to the extent of providing access to religious  books isn't it clear that prison officials may not constitutionally provide them to members of one religion such as christians here and not to members of another such as the muslim prisoners well getting to your question on the standard summary judgment standard i think that is kind of what this case can be characterized as even as the nonmoving and garner has to do more than raise questions in issues he needs to to establish his claims to the extent that he needs to provide enough evidence that if true could lead a judge to rule in his favor and that's what he does not do and cannot do on this record as you pointed out he does s garner is counsel that's a very good job of trying to manufacture evidence of intent but when it comes down to it is that his affidavit simply do not present any evidence of intent that even if taken as true could lead a judge to find in his favor so what we have here is we have a we have a religious interference claim that basically fails because the state states does not have a constitutional duty to make vendor catalog available at all times and i think that's what this really comes down to this there is no of right there make it a good thing you know i think we're passing each other in the night they have they're making them available to one religion well there's no evidence available to the other religion we have a little bit of evidence in the record that there's been a disparate impact possibly in terms of some christian inmates have gotten catalog but what there is no evidence of is that there was an intent to treat different religions differently and i think these two claims kind of get blurred and we can start going more into it the  this wouldn't even be circumstantial evidence if all the christians are getting catalogs none of the muslims are getting catalogs i think it depends again we have to figure out which claim we're addressing if we're addressing the the the religious interference or  combination claim we need to keep in mind that the first amendment's requirements are to remove the obstacles so that he can practice his religion we have done that by allowing qur'an and religious property items in his possession and giving him several opportunities several different avenues of acquiring those both property items he could get them through the mail from the from his his family members he could you know we talk about this and i don't want to go into too much l every sponsibility to hand out these things equally well next kind of gives us a parting the free exercise claim isn't the problem here that the defends seem to have impeded access to the koran by providing two paths to obtaining it through the catalogue or through the chaplain and then you know we're at s judgment if refusing to acknowledge his requests through those sources i affirm of the fully representing that those within the first amendment claim and there is simply not enough evidence in the record to to establish a claim of intent to to interfere with mr garner's religious practice differently than other inmates and at summary judgment it is true that we have to take as true the non movement's facts here but even doing that he cannot create a claim only creates this question if he does not create a claim showing intentional interference here what we have is we what we do know from the record is that mr garner had had items being shipped to him from his mother in law from these same catalogs during his time in segregation and we also have in the record evidence that mr garner had had was in communication with an inmate to two cells down then had a catalog and he never asked that that inmate for the product of or for a qur'an and opposing counsel will say that that was our obligation that wasn't his obligation to find a different means but that is simply inaccurate under the first amendment the state of wisconsin allows inmates to present possess all sorts of religious property and they also have to have multiple avenues from which you can get that property the fact that there was there was obviously someone dropped the ball on some communications in this taking is true mr garner's statements even though there are no record of these multiple multiple requests taking that is true yes someone dropped the ball there was negligence negligence here this is not a constitutional claim though and that is the state's position is that the under the first amendment we do not have an obligation to to ensure say that he has enough money and in his account to buy a current so so what we see is mr garner trying to elevate this to a constitutional claim and it just can't be done on this record and then we get into discrimination and we and really the essence of why mr gardner loses on his discrimination claim again relates to intent there is not any evidence in the record to show an intent to treat these two religions differently all we have his evidence of a disparate result or a different result we don't have evidence of intent and the affidavits that mr garner provides are so sparse and so  lacking in detail that we don't know if the proper procedures were followed we don't know if if say there were simply more more bibles available for distribution all of the religious materials in the chapel  donated so there's such a lack of detail here that we don't have any idea if mr garner was actually similes similarly situated to the end other inmates of the other affiance from which he provides evidence so that's really the crux here we have these two claims both of them fail and and the district court properly granted some are judgment because under the first amendment we really it really comes down to the fact that that that he has only shown negligence and under the fourteenth amendment there is simply he's only shown and very limited lately a disparate effect or a different outcome but he does not actually show any intent to discriminate based  on his religion and i guess just to kind of conclude here i want to mention that on appeal gunner does a very good job of trying to manufacture evidence of intent and he does so by claiming that that a jury could find intends based on the institution's continued violations of its own power but that is an overly simplistic mischaracterization of of the record because what we see here if we look at the record is just because catalogues are allowed as a privilege to an inmate does not mean that they're entitled to them and so so even though  thank you the state at that the prison officials have come forward with a few different explanations for what they have described as the disparate impact between christians and muslims prisoners but what's telling here is  every single one of those explanations raises the disputed issue material fact we're catalogs unavailable well we've just shown that there is a disputed issue about whether they were unavailable did garner follow proper procedure in making the request well garner has produced testimony that he did so the very fact that they haven't come forward with an explanation for this disparate impact as they describe it that can survive summary judgment is by itself