may proceed thank you your honor it may please the court the arkansas department of correction provides inmates with a variety of nutritious meal plans this case process was available to him eight mohammad and it had to be exhausted as a matter of law second there is no substantial burden and third the a d c must further its compelling interest and cost efficient food service in a way that remains neutral among religions so first the court should not even reach the merits of this case because the grievance process was available to mohamed and it had to be exhausted as a matter of law mohamad has argued that his request under the religious diet policy to the chaplain was sufficient all by itself to exhaust his administrative remedies but this claim ignores the law which requires exhaustion of all available remedies it ignores the plain terms of the grievance policy itself that ignores the undisputed trial testimony as well as muhammad's own practice of raising dietary issues through the grievance process so first under the supreme court's ross be like opinion in mate must quote err on the side of exhaustion unquote when there is some question about an administrative process now here there was nothing at all unclear about the eighty c's exhaustion requirements but even if there had been as a matter of law muhammad still had to use the grievance process when his request under the religious dot policy was denied it would you respond to the earth meant that it was a dead end given that he had already been to his request under eight hundred thirteen argument is directly at odds with the supreme court's holding in boothby turner and i would point the court to footnote six of booth where the supreme court specifically holds that and make must exhaust irrespective of the forms of relief sought and offered through administrative avenues the plaintiff in booth had made the claim that he was excused from exhausting because he wanted relief in the form of monetary damages and there was no way that the prison was going to give him  monetary damages unless he followed lawsuit but the court ruled that he still had to exhaust administrative remedies before filing suit even though his requested relief was not attainable through the grievance process mr muhamm unwilling to provide any real life to agree to mates and that's just not the case here there's also the case laws are not that if the institution i understand what the complaint is even if it isn't very artful because these are supposed to be in for even if it isn't artfully drafted that they least know what the complaint is it can address them then you've exhausted you did was the complaint understand that that was what he was really complaining about and said we're we're only going to give you a vegetarian diet i mean regardless of where the use the right words that they understand what he was house complaining about mohammad that they did not understand him to be making that claim either what about to do the claim or the complaint that he submitted to the chaplain did that cover the but it does appear that at one point mr mohammad did see he did make a request for a vegetarian meal that allowed him to eat fish products and the response was that from the chaplain that the chaplain is not authorized to provide this kind of diet now at that point there's there's plentiful evidence in a record that at that point mr muhammad needed to go to the grievance process he needed to follow a grievance he needed to exhaust that grievance in order to exhaust well but the  submitting grievances to the chaplain that was part of that was one recognized option of the grievance process wasn't it no your honor it was not this was there was testimony that there was a there was a category of grievances that the chaplain was authorized to to handle that's that's not correct your honor but the reason your honor is asking the question is there were or two policies that are relevant here one was the religious policy under which the chaplain was authorized to provide certain accommodations if an inmate wished to for an accommodation that the chaplain was not authorized to provide under that religious diet policy then the evidence below was that he needed to follow a grievance the chaplain is not with authority to make decisions with respect to grievances and that would have had to have that his request would have had to have gone through the  vegetarian hole diet is not sufficient he would have had to have gone through the steps in an informal agreements a formal grievance and then follow an appeal to the deputy director  and if had he done all those things then mr mohamed would have adequately exhausted the grievance process but he did not and so mr muhammad never  because under booth under the supreme court's booth precedents so long as there is the possibility of song relayed through the administrative agency example for provided him with any fish that the prison kitchen happen to have on hand that day if he needed a fish portion could have ensured that nothing prevented him from purchasing a long mate from the commissary if there were any a is hypothetical at this point i will say that a t c has they do see does seek to accommodate and make whenever possible whenever it's fair to the inmate population when  it's consistent with the security and management needs of the unit and whenever i mean whenever it can remain neutral among religio via twenty eight j letter and we followed a response that case seem to read hobby lobby and hold in a very expansive way and in fact when you when you look at the opinion closely you can see that it bases its holding on what the supreme court did not say in an holt and hobby lobby so so in brief in holt the inmate was faced with severe disciplinary punishment the phrase risk of serious disciplinary action that was a penalty if he exercised his his his  court said the court did not indicate that pressures of that severity represented the floor for finding a substantial burden so jones base its reading of the holton hobby lobby on what the supreme court did not say there is nothing access to a large number of files he is as the inmates say prison rich and so he was on the other end of the spectrum from an indigent and mate now as far as the burden  hobby lobby it's hard to tell because the court did not provide us with with that detailed financial analysis but i will say that mr muhammad's the bird on mr muhammad is not substantial given his  substantial access to his deposit sixty four hundred dollars worth of deposits he spent twenty four hundred dollars in the commissary thousand dollars on electronics he had plenty of money to spend on how long thank you your honor may please the court on jess ask you here on behalf of mr muhammad two things before i jump into what i think is most on the court's mind listening to c s argument and reading the briefs one forgets that the burden to prove the affirmative defense of exhaustion is on a t c not on the prison inmate mr muhammad and when there is a failure to come forward with evidence at trial including the correspondence to the chaplain where mr muhammad testified he requested meet when there's a failure to come forward with evidence at trial the party with the burden of proof loses which is what judge baker properly found here on the administrative exhaustion that's just one of the many problems that a d c has with the exhaustion argument now i want to get directly into this substantial burden issue because i've been thinking about that a lot judge across and jones versus carter is very similar to this case even the illinois prison system evolution of kosher meals prepackaged with meat going to non meat kosher diet is exactly parallel to what we have in this case and the inmate there just as my client did said hall all diet for me means a lot of meat with my diet and after a trial the in may one it's very similar to this case and the substantial burden analysis there does call into question the patel standard there's no question about it and i think that it's the issue there is what is the religious exercise and is there a wealth component to the religious exercise in other words if we have someone who is rich and my client is not i'll address that also but if we have bernie made off before he has to give his money back in the arkansas prison system and he can buy as much canned tuna as he can eat from the commissary is his religious exercise still substantially burdened and i think it's important that patel talked about that in that sort in that sense but hope to not burwell did not now burwell talked about substantial penalty that's the government coersion side of the equation in other words what is the government doing to compel or cole worse someone to act in a way that violates sincerely held religious beliefs  hold is the same thing if you grow a beard you violate our policy we punish you that's the government coersion side of this the equation what jones versus carter raises and what holt raises is is  there a wealth index for the exercise of religious liberty under our lupa and i think under the first amendment and i don't think there is jones versus carr very clearly says the supreme court did not say there was and so i think that's where we're headed now i've don't know where that ends up in terms of adjudicating cases this case should be  affirmed based on the facts that we have that i'll get into but in terms of whether there is an all encompassing standard that can be written at this point in the development of the law on what is a substantial burden under our lupa as it is  g i don't think we have that and i think jones very importantly raises that question i think the day also from the fifth circuit in two thousand and twelve raises the question now that was a summary judgment case not a case after trial the way we have here as for whether four grievances number one was salami and bologna contain pork that's the pork and that one was grieving that one was exhausted according to the findings of the court we have numbers two and three which say i want to  requires meat prepared according to my religion they were not exhausted according to the trial court's findings of fact number four was i have discovered the love and figgins cases jewish in mates got kosher meals i want the same accommodation now those are the grievances the state pretends that there's a divide between the grievance process d thirteen eighty three religious diet request process and there's not a divide and on those three requests to the chaplain my client said i want  and the chaplain wrote back saying that to terri and no meat in all caps or you may not have fish with your vegetarian meal so at the end of course of those your exhaustion are dependent upon us finding that the or one process for them to know that's what the state's process of and that's what the state's argument is the exhaustion of remedies is a convenience for the state it's up to the state to decide whether to have one and if so of the grievance process no it is part of the exhaustion of administrative remedies under p o are a which may be what the court's point is the the law requires exhaustion of available remedies the law does not require exhaustion of grievances which is the way the state wants to play it when the state set up thirteen eighty three and said if you have a religious dietary accommodation can't he then file a grievance under twelve sixteen the question is whether he's required to and the state's twelve sixteen grievance policy does not say that he is at the district court made specific findings of fact on that and they are absolutely true thirteen eighty three is written it's in the record it does not specify an appeal it does not specify a grievance on top of the religious dietary request and the function of administrative remedies is to let the prison system know hey i've got this request can you help me before i go to court and the prison system here had every opportunity to respond it had every opportunity to know what the request was and it just didn't do what it should have done which is a look at the issue and had this aha moment that we had an trial when the director of the department of corrections was on the witness stand under oath and she said oh if he just wants fish that's not a problem not a problem of course the state doesn't like that when i keep throwing that fact up but the district court made a specific notation of that seventeen footnote five not a problem it is there any evidence of the record as to whether the quest to the chapel to go to the heart of the chaplain or does he if he denies it's a four does he tell suggest that the policy is probably written as a defensive measure you know we've got this safety valve over here and you can go wander off into that neighborhood if you want you're not going to get anywhere it does not require that the chaplain go up the up the line you will the way you would with sarbanes oxley reporting or something like that it does not require that the food service get involved in fact we have testimony from misc illan who testified in the kilburn love case one thousand years ago and also testified in this case that she doesn't get involved in these thirteen eighty three requests but i can't help the way the department chooses to craft its administrative remedies and it crafted an avenue here that leads straight to the chaplain the department did not approve the totality of the correspondence between my client and the chaplain we have in the record vegetarian means no meat no fish and  based on that the trial judge properly found that the district or the a d c did not carry its burden to prove exhaustion and you know there's no attack on that is clearly erroneous instead the argument is a legal question that we've got a bucket called grievance and that's the only thing that we have to consider under appeal are a the problem is p r appeal are a says administrative remedy and thirteen eighty three on its face and as twelve indicates a two thousand and twelve grievance process as i understand it the lawsuit started as i understand it with with the complaint or the allegation is that the the prison was not making available to him  meals that were all meals or compliant meals correct correct and then  and in response to that there was evidence that there are several different dietary plans that are offered by the prison that appeared to be compliant like vegetarian plans etc and then as i understand it this the allegation  the specific requirement of of the meat meat came up during the summary judgment process rott that's correct before i was appointed when my client was still pro se he managed to say wait a second i want to meet the whole all means meet now and the district judge permitted that we went to trial and at trial we are now in the phase of proof and c had every opportunity to prove its case that that claim was not exhausted in the district court heard all of the evidence presented and ruled against the the a t c and there's no claim that there was a clearly erroneous fact finding and so there was no issue about the klein being brought being raised to light in the in the proceeding and when we know and when we go i think all sins are urged on summary judgment when you get to trial you know then if you have a summary judgment issue you need to raise it as a fifty a motion at trial there was a fifty a motion that motion was a substantial burden and that's the one that runs headlong into jones versus carr there was no motion on administrative exhaustion but of course there could not be because that's the state's burden and the fifty a motion goes to the diff the inmates proof my client had to prove sincere belief and substantial burden of what was the what was the proof about the commissary usage by mr muhammad thank you because my client is not prison rich the a d c came with evidence of his bank account at trial ten dollars and fifty four cents as the court found fifty three cents for away from what the department considers to the indigency if indigency enters into the question of substantial burden that's what the facts are and that's the way the court decided the case i'm not sure that indigency does enter into substantial burden but in the past yes he had received six thousand dollars in the eleven years that he had been incarcerated and he had spent a lot of that money on batteries you know for his walkman or whatever device people have these days a lot of money on ramen noodles which were said to be  commissary list and then a trial the state shows up and says oh that's not even hall will my client thought that it was and then he also bought goods that clearly he admitted were not whole like little debbies it's the little debbie case that he bought for barter within the prison system not permitted it goes on all the time the district court made findings about that the state tried to play that as lack of sincerity this guy goes out and buys little debbies therefore he cannot be religiously some sincere in his will all die with meat that's a credibility issue state was heard fully in the district court made a finding of fact first words out of a b c s mouth were you can't make us spend money for religious exercise and our lupus says to the contrary in two thousand c c three  one minute three seconds thank you your honor i will just say that truck council did raise the issue at trial of mr muhammad not raising his the claim that he developed after filing a lawsuit that was discussed probably that is explicitly in the at the very beginning of the trial that perhaps in his opening statement ask to correspondence with the chaplain not being a record that's that's beside the point as far as the legal issue of exhaustion is concerned corresponds with the chaplain has nothing to do with the grievance process under the agreements policy which actually does state no less than three times the grievance policy states no less than three times inmates must fully exhaust the grievance procedure prior to filing a lawsuit exhaustion is required of following a lawsuit under the prison litigation reform act this is that