good morning your honor and may it please the court william mera on behalf of plaintiff appellant james maybin i would like to reserve three minutes for a bottle of the district court erred when it granted summary judgment in favor of the defendant mr troy failon in this prison or first amendment retaliation case the district court did not dispute and indeed its opinion is best read to implicitly concede that if the traditional summary judgment standard were applied in this case summary judgment in favor of the defendant would be inappropriate to district court nevertheless in folk v eight circuit and eleven circuits checkmate doctrine to hold that mr first moment retaliation case was categorically foreclosed because there was a finding of misconduct and some evidence to support that find i submit that the checkmate doctrine has no basis in the text of the first amendment would you say i'm not sure i care for the name of this so called doctrine but if we put that aside what would you say about maybe this is what the second circuit does but let's just say there were no more material disputed fact about whether someone had violated prison rules in that setting seems to make some some sense to me the idea that it's weird to have a retaliation claim when you everyone agrees you did violate prison rules is that ok you can say yes and then say it doesn't apply here but would that be an ok doctrine i don't think so your honor i think that you don't even agree with what the second circuit is doing i think that the question would be even if the misconduct was based  officials cannot use a proper and neutral procedure in retaliation for a prisoner's exercise of his constitutional right now one thing that you know ren does this you get yourself out from under the state of mind causation increased by just saying it doesn't matter right there something they were allowed to punish they punished it we're not going to every time there's a punish a person prominent we're not going to lawsuit about their motives that would be a stunning development in prison systems right  and i want to make clear that i'm not resisting the proposition that proof of misconduct assuming for example either preclusion applies or a fact finder in federal court finds in the first template there's disciplinary complaint is quote probative and potent summary judgment evidence it's just not an absolute bar and i think the reason that it cannot be an absolute bar is because what you have is you will unfairly tempt prison officials to essentially in a robe themselves immunity by finding the person guilty of misconduct so very well might be judge sutton in a particular case that mr may be for example could never the promise of what i'm saying is there's no dispute that it happened the form violated the prison rules for what i think then for example we would look to judge ambrose hypothetical that begins his concurrence in the third circuit case watson that that hypothetical is a case where the prison official goes up to the prisoner and says you violated this prison rule but and i would not punish you but for the fact that you filed a grievance yes against my body the previous day and so that's a case where i think when your you say no absolute rule what you're really saying is the never be summary judgment will always be a jury trial potent evidence would act does that mean they'll always be a jury trial every single time s with the discipline imposed on them for violating prison walls i don't think that's so your honor i understand i see the sand on the slippery slope you just say short of not going to so i think there are a number of screens i think this is a similar argument that was raised in the crawford own case of the supreme court and with what the supreme court said there was i think two points said first of all there's a number of screens that will filter out if you think about the denominator as prisoner tally issue claims here for example you case i think this case is a particularly good example about why the checkmate doctrine is categorical cannot be the law because as you point out judge clay there's nothing here to do to defeat the fact that there's a genuine issue of material sure about whether the district court had one unified holding or two distinct holdings in all of the cases that i've seen that the checkmate doctrine has not been understood is a doctrine that is triggered only once you first conclude that the prison  findings at the prison hearing have to close in fact and so for that reason i have i believe that the best reading of the district court's holding is that it essentially had two holdings first preclusion and then setting aside that could the checkmate doctrine be the law because all of these cases apply radel mean to interrupt you so you would your argument would be you disagree with the court's preclusion holding and you don't think we should  that the traditional summary judgment standard applies here the mere fact that there is a finding of misconduct in some evidence to support that does not as a categorical rule establish i guess you would say  summary judgment the mount healthy defense and that's not to say judge sutton that in a particular to case and perhaps the majority of let's shift the conversation to what is the protected conduct here so he wanted a portion of food that that's not free speech right when we agreed that this was not a free speech i think i think it's really a shame it's against what right has to be retaliation against constitutionally protected conduct so we're going to say it was free speech because he asked for more food that access to the courts i think would be the right to petition for redress of grievances i think i think if every time this is what i'm just really struggling with this case every time in a prison you complain ask for something you want more of and then someone retaliates will call it retaliation that's always constitutional retaliation i mean doesn't louis worse case he say there has to be some limit on this so i think that i think this is protected time and the first thing i want to say before addressing that directly is you don't have to make any walk here about what is protected conduct i don't think that my friend on the other side is adequately preserved that argument but even if you want to reach the question i think that there's no dispute that if they can be no dispute that if you had written down a written grievance claiming that the prison food policy was not being followed or that either he specifically or prisoners generally were being shorted food i think there's no dispute under this court's cases that there's a but that's what would happen here so what we would need then to develop is some distinction i think between oral grievances why not just have a de minimus rule that says we're not going to say every time a dispute between an inmate and a guard develops because someone verbal lease says i'd like more food there just has to be a dominican succession otherwise everything's retaliation claim as long as you've said nothing and i think it was are in a prison for i think if you i think if you want to a narrower rule what i would suggest is what the second circuit has said in pierson and with the third circuit has said in math which were essentially the same posture as this and oral complaint where the prisons policies  complain i mean let's even the word complaint is a bit of an exaggeration i'd like more food that's that's what he said great that he said according to you he said politely it wasn't even a complaint he said politely i'd like some starvation to bring illegitimate losing weight that's not enough record that's on the record but i don't think that that's his burden i think if the if the prison is violating its policies and i think the court can take additional notice of some of the articles and then i cite in the brief that this is a very live public policy debate about you know the food service at these prisons and so i think particularly where you have a prison policy as you do here where the prison is actually requiring him t orally if all he had done was said nothing and then sat down and write his grievance under paragraph g two of the prisons grievance policy which is cited in my reply brief his grievance would have been did not and i understand that the or agreement is part of the grievance process but that's exactly where there has to be a de minimus exception otherwise every time you open your mouth in a way that complains you arguably as in this case have started the i'm a grievance process and that's i think you have to agree somewhat bizarre if you think about what goes on in a prison every day and i think that you don't have to reach that question because i think and i do want to reserve time as they forfeit it that's the point one because they forced into in this case back in october two thousand and fifteen at his misconduct hearing he said there sixty seven  misconduct in this distinction is is important for several reasons let me ask you this yes runners record clear as to why claims that he was entitled to more food than that he was given the line i mean that not only when he complained that he didn't get more food but he's complaining that they were sort of discriminating against him or against some people is that right i believe that's i believe the plaintiff plaintiff claims that he was being targeted for for for his for for to the amount of food whether or not he's getting the correct amount now the the line worker who was working the food line gave him what what was believed to be the correct amount and there was some dispute specifically targeted by other other prison officials there is no record of a of a history between mr fail and mr maybe and certainly what should he i mean we have to accept that he thinks he was getting less food than he wanted what should he have done differently he is entitled to peacefully ask for offer more food and i think he's required under the grievance process to orally ask correct correct though again what should he have done differently  that he peacefully asked according to his version of events right according to his version of events he doesn't get more food and so sam he's in from his perspective punished so again so he is he's entitled to ask for more but more food according to plan his version of events that's that's what he did now in this particular case what the plaintiff received was a constitutional violation and that is because a sanctions that accompany a minor misconduct are as as just one has as discussed there on the there they are de minimus and in this particular case plaintiff received seven days loss of privileges i don't think i was saying that for what it's worth i was saying there has to be a de minimus exception to this i did not say my name misconduct equals de minimus ok what's the case that establishes the point since it's not judge sutton anymore court has never held that such such misconduct as a minor is kind of sanctions are have any constitutional implications and that goes into the qualified immunity argument if i'm with judge clay on this point about the label doesn't mean anything to me what it is exactly that with the conditions that were imposed on him loss of privileges not lost a privilege as from spell it out it may not mean much to you but that's the whole point how much to write in a reasonable person loss of privileges loss of loss of privileges that a certain idea of loss visitation rights not being able to go out to the to the clear it clearly established that the if that minor misconduct and also the minor misconduct sanctions are have any in custody or significance now the now this court has recognized that major miss what does what does count what does count the this court has recognized that the first that major misconduct sanctions which include  increased in cost security classification meaning that in a bit individual be going into a more restrictive environment more strict of prison that this individual may lose may lose credit and section of a prison to a higher security section of a prison come of some of the things you're talking about so i mean that's why it's so on helpful to use the word major and minor it's helpful to do is talk about what they're actually doing to the you know is it solita is it not solitary if you go to solitary i'm going to guess that comes without visitation rights so that's a feature of solitary and yet it's a feature of something here the what's what solitary you do not but there is a there's other things on for example and solitary a prisoner does not go out to the lunch lines they had their food the food is brought to them but then the but i think here what we have is a map is a need to draw a line somewhere where minor misconduct or the same sions are are not the same degree as a we bound by the label that i guess the prison system itself puts all of minor and major are we supposed to look at the actual facts of the case  officer or whoever the decision maker was refused to look at the video or billions of them and the basis for his refusal was that the video didn't have audio with  the defendant demonstrates that he would have acted he would have imposed the same the same misconduct or even absent even absent the the plane and is not asking that the sort of broad precludes of effect that attends look peterson help us out you've just got a minute or two left a lot of things that happen in the district court one exactly what we're argued and that's fine sometimes that's a good idea for a judge but maybe this time it led to some overstatements maybe it is worth sending it back if we do send it back what should we say what should we do what should we set it up for the to the future to address the arguments that were raised below which is which is the the factors are under thaddeus x in a fight immunity and both of those i would say for the community is a purely legal matter which this court  would your answer to that last point if you address that in your opening argument the idea of forget whether it's major or minor we're not interested in those labels but the actual discipline he received what's the case that says that vs jewels a two thousand and four unpublished decision page twenty one of my reply brief i cite a number of published decisions that date ingram that hold for example hill actions that result in more restrictions and fewer privileges qualifies that level morris that's all they says that that's what the court says i think one thing that i want to point out on this adverse action point is this also was not raised below and my friend admit so i understand my friend now he's qualified immunity throughout she did not raise qualified immunity with respect to the adverse action issue he raised with respect to causation and arguably protected conduct but there was no argument before the district court that this does not qualify as an adverse action under ingram or any other case and so i don't think it's properly before this court if it were i think this certainly does qualify as an would do just start all over and let everyone make their arguments and i don't think the government should get a do over here your honor i think the government made the arguments that it wanted to make before the before the trial court just as this court will hold the prisoners to their waivers i think the same rule should apply to a well counsel litigant on the other side i think the district court looked at those arguments and implicitly rejected them and i don't i don't think there should be a second opportunity here and i think the grounds that the debate the trials that what you want will certainly there be a trial short but i think that the grounds that the district court ruled upon are purely legal grounds that are very fully before the court and i think is essentially what this appeal boils down to is the question whether assuming which i which i think you can assume here all of the requirements for the retaliation claim are satisfied and i understand my friend who essentially admitted he gave him protected conduct under his version of the facts and that causation is satisfied adverse action i think i've satisfied it but i think it's but i think it's waived anyway i mean it's a little it's perilous in my view to say we're all done and because if we decide that there wasn't a fork or two of the qualified immunity which i must say would surprise me i've never heard of a state forfeiting a qualified immunity argument in a qualified immunity case and just going to be a level job question of what they said and you could loose and that's been very well developed so