not argued here before you'll be very cognizant of this lighting system and when that yellow light comes on that means you've got two minutes to bring your argument to a close at that point and when the red light comes on we expect you to bring your argument to a i'm saying and that is they filed a complaint you didn't even answer the complaint you simply found a motion to dismiss on the basis of qualified immunity and the district court held that the complaint clearly established a constitutional violation that was lo and read in the complaint most favorable way to the plaintiff which we have to do it certainly seems to me that she did you did not ask the court for any kind well i know it does compress doesn't require that you do but it also is it your expense that you don't if we read the pleadings based on the standards that says that he has to provide the younger line facts to show the constitutional deprivation it is one thing if we were alleging a discharge there's no doubt that a discharge in every circumstance is going to be a constitutional deprivation if it is done in retaliation for a protected right but a transfer or simply is not our soldiers terminations the problem with determination your honor is he hasn't shown a constitutional right but he does because he ties it well enough in his own complaint to the original exercise of his right to speech your honor in the in february two thousand and twelve he was transferred allegedly because the pac supported sheriff kalends opponent thirteen months later without any facts of anything going on attending rallies anything at all indicating that he was involved in the political process at all well if you had if you had file a request for a more detailed statement of fact and made some kind of statement yourself in connection with a certain qualified immunity that may be the case but you didn't you are tied to that complaint heightened pleading requirement alone and that's what we did we have not filed an answer those are the exact facts in that particular case we filed a detailed motion to dismiss explaining in detail why it didn't meet the requirements to state an initial claim and why it did not negate qualified immunity he filed an amended pleading in response to that vague pleading that we have before us we filed an additional motion to dismiss on both grounds again they have not been corrected they were corrected in the first instance the purpose as the court knows of the rule is to flush these things out early and i know that there are the appeal these argument or excuse me the public argument is that well our heightened pleading standard in this circuit no longer applies given it all in one place to the contrary i think it all in twamley is trying to catch up to this court because what the court did what our court has done what this circuit has done is looked at the pleading requirements and in our cases said you have to do more than just put somebody on notice rule eight also police when it was discussing the pleading with respect to the sherman act look if he didn't say that there was a conspiracy he wouldn't have even met the notice require but what they focused on was that you had to have supporting facts to show the right of recovery and that's what we don't have here we don't have facts to show that the transfer was an adverse much of a threat to him or that could well your honor we think the facts will show that there was not an announcement and so look it's later but the point being is that this needs are facts that should be no we shouldn't be here making these arguments th support the sheriff he supported the sheriff's office of a candidate in the race and he was there after transferred from patrol not less prestigious i'm a nice room set around jail and i did rather be out catching criminals i guess well the case was it is clear that simply because he was moved from  prestigious position to one considered less prestigious isn't enough absent other objective facts but again one is the reasonable and that one attaches to a point in that instance i'm not sure that twamley agrees with us what your best case that says that instead of filing a motion for summary judgment merely after the complaint was filed and saying exactly what you said in your motion to dismiss that you can do what you did in a motion to dismiss as opposed to a motion for summary judgment meets it's clear to me that the statements that they made in the complaint would not stand summary judgment but what your your i'm not sure i understand the question if you had filed a motion for summary judgment asserting exactly what she found in your motion to dismiss they would have had to come back and respond with as opposed to the summary judgment stage on qualified immunity and qualified immunity with respect to the transfer i believe still enough in particular with respect to the discharge the problem with the discharge is the span of time and i've briefed the number of cases that i would have had to proceed really when you're saying certain supports the procedure lee i'm sorry well i would go back to progress and the case of supporting them that we should not have to be going through a motion for summary judgment in order to get the pleadings on which the claim is base fifteen years ago and explaining to the bar that this was the mechanism when you had qualified i mean in the rare reason that we did that is that is to give content and force to the doctrine of qualified immunity lay in the world was themselves we didn't make something up it was just a provisional rule that we were in and i i don't disagree with that but what what phrase did and  or the form of this recording or the alleged threat all we know was that there was a threat supposedly made by the sheriff to an employee what the threat was how it came about the circumstances we don't initially in the suit there became procedural issues in regards to the monella liability and the question about whether we're now a liability even exist because you're talking about an elected official in texas basically acting on behalf of the county so w see a summary judgment or something of that nature i think i'm not english i'm not saying they had to have just asked in his best guess what your best case it says no you cannot do this on a motion to dismiss really the basics of rule seven which was implemented to give some sort of legs to a definit to from the plane in short i mean also your complaint i don't think you can get up and then the clarity of your complain your complaint could have been much but of drachten in my opinion and i've been i've been told that sometimes i'm long winded but in this complaint i was a long winded i was short and to the point it's very plain or you were short but not necessarily to the recorded with respect to someone else and it takes a very liberal reading of your complaint to top it all to his first in the activity well i mean of course you know seven which the implementation of that initial table allows a defendant to really bring something to it sounds as if we're arguing there were already two different things here they're arguing that my response to a rule seven request was not sufficient when they didn't request it you know when we're just dealing with key issues about the pleading whether this is a plausible complaint you have a sad day here but you have a sheriff who marches in and tells are employed basically you're going to time you don't say anything about the exercise of first amendment rights and you go and you go through the the a sign of the demotion which is clear that's exercised his constitutional rights but presumably he was terminated presumably as a result of dissemination of record where sheriff kalen threatens yet another officer who has since been forced to resign that's hard just to connect that to his earlier activities some eleven twelve months earlier when one of the one of the reasons for the last limits was the fact that this terminations did not occur before this case was filed the curt afterwards  this case was already pending for some time before the terminations occurred and that's hence that's why that was added in there once determination did occur you can imagine that in the in the complaint here that after this complaint was filed then it was terminated then you based on the fact that this is just you know in the in the paragraphs there after we do talk about this charge and this is a first a member retaliation case either because of the free speech and or the right of association we think that we pled the facts sufficient enough to show that  this which is very similar issues you know looking at this something you said earlier don't say anything it's embarrassing and the only thing a bear sing i think i can say is that i'm not really sure what to say except that i think that this is a it is clear enough or at least relate for the pleading requirements in regards to political retaliation case while perhaps the choice of wording in regards to the discharge maybe could have been clearer but i think that part there would be no reason for me to add the fact that he was just charge of the wooden related to that and all nine does it require me to prove the subjective intent of an individual i you know i guess i could plead share failing did all this to be the indictive that he did this to forward to summary judgment or what have you i think one of the reasons why some are just going to be fathers i mean coming up with the evidence in regards to the being placed at the jail is not going to be a very hard burden i really don't talking about in regards to that was the time issue and while that may be good fodder for argument or for pets determination not not the transfer i'm sorry the transfer ok in the regards to the transfer you know i they did point out that there was not sufficient they also pointed out there  insufficient facts and other realms and that there were facts that the court a lot upon that were either immaterial and or really had nothing to do with the decision and i think their statements in that regard wrong as well i don't think there was any fact that for a lot of on it was out think it was necessary to delineate each and every reason why a change from somebody that was a twelve year veteran to jail administration would be necessary in the complaint in regards to a summ you know if we're truly if we're trying to look at this logically in a procedural fashion the first thing in order to to levy a sort of defense argument is to plead it well to show give me a case it says you cannot raise qualifying i mean a motion for summary judgment based on paul fight immunity this is just merely a motion to dismiss based on the pleadings and if you're looking at the pleading standards and you're trying to find out is this a plausible case for political retaliation by sheriff against his employers and the answer is yes  d if you take the facts of the case and you have a not so we know we're not talking about a case where there was a not so veiled threat we're talking about just a blatant threat of requests for support or bad things are going to happen to you and bad things did hope if they want to file a summary judgment or what have you or even the most at this myspace and puff i mean but this isn't really a motion to dismiss based on that immunity it was really no analysis by the district court in regards to the application of qualified there was really no application of that offered immunity in regards to the subjective intent element especially of share of caylee so i'm like i said i don't think that there's a case out there that's going to say that he can or cannot do that it seems to be typically done but we're not here for the purpose of determining a summary judgment motion we're here to determine the application of rule late and the implications of naipaul and to those extent this is a plausible case you do see the tension you know i i see a plethora of change in regards to the cases especially in regards to the we've got a long lot of cases from the other starting with gibson connelly we have senate bills called the pleading restoration act we have all kinds of things that are on the horizon but what i really see and i think that there's been too much drawn from a lot of these cases is that i don't really see too much of a change in regards to a ball in the application by or twamley is that what you have is is does the person have a claim that looking at the facts is plausible or is it something that's just entirely fabricated and just kind of goes out there and alleges conspiracies which was you know our failure to supervise without any kind of application what so all over and that's not this case but you know you have a judge in the northern and southern district of actually this was before my case is more about justice and from some form than monetary reparations but we know what the realistic thing will be at the end of the day before going on monetary reparations here i am not conceding that point i really argued qualified immunity a separate apart from just the pure pleadings and i think that at least in my applications i would probably treat it as a sort of a shelter response i would probably treat it from what i gather is that it would probably almost be come the form of the summary judgment you know i don't really think that you're going to be able to resolve anything in regards to the qualified immunity issue without going outside the record i mean really i mean that i made in my motion and in my brain was not subjective intent to shoot the argument was the lack of facts to showing actual knowledge not subjective intent the allegations  presuppose that sheriff kalen was looking for support just as any politician would i'd like the support of the pack the galley geisha is in the pleading suggest sheriff kalen did not know what the pack was going to do or had done because he was seeking support the they also allege further that the pac did not support reason for the action i think that our jurisprudence regarding first amendment retaliation kind of takes away that subjective intent because we have to determine whether or not it was objective lee reasonable in light of current law in determining whether or not qualified immunity would apply the the last point in really i think you made my argument as to amount of time going here in america statement