like reserve three minutes of my time for a bottle as the court knows is a case about a prisoner mr garcia who spent two and a half months in solitary confinement and also was denied the benefit of routine sort of convenience  program that was made available to preach prisoners similar situated to him this record improperly granted summary judgment on three separate claims first set of claims relating to senior prison officials who investigated there was also a trial and a jury verdict with respect to certain junior prison officials and with respect to those prison officials the claimant to the argument position they were taking on appeal is that the jury's verdict was not substantiated by substantial evidence and the so basis that we were articulating on appeal is that the evidence was legally insufficient because the government's defense was that the policy was a legitimate s religion a correctional goal when in fact the policy under discourse for us and did not serve to make rational goal there was no evidence the records suggested either generally or with respect to mr garcia specifically for those reasons and all sort of to go through stewart and chance right correct where was their evidence that they could make of the decision to place him in ads and so i thought perhaps what the jury found is that they couldn't have been liable for retaliation because they didn't make the decision to put him in ad segue if first of all the record has to be sort of construed as a whole and there was evidence in the record that they submitted declarations and memorandum to lieutenant lives who ultimately did make that decision and so they were sort of initiating the decision making process and where the where the where the but if they couldn't make the decision themselves then can we affirm the jury verdict on the idea that they weren't the relevant  excessive force well they're not the ones deciding between you that he would attack the policy is not sufficiently justified for pinney a logical reasons these guys in the cell block are making that decision are they the policy they purport to apply and which will get to because i'm not sure it's all illogical as as is alleged but they're not the guys who get to decide well the prison system shouldn't have a policy or this prison shouldn't have a policy of sending people who have made complaints of excessive force elsewhere but there was nothing in there in their submissions that justified the exercise of policy on those facts and there was i would dispute the characterization that they're not the ones that were initiated the process by which they knocked over the first domino that's right but but the policy you're talking about is not up to the guy in the cellblock the op it is up to the guy in the cell block to  invoke the policy making for that where right so they invoke the policy so they started the process of invoking the policy so couldn't the jury just say we're not going to blame these guys for this it would have to be someone else i don't think the policy was there was no evidence at trial that level of detail with respect to the various hierarchies of who is responsible for implementing the policy was there any evidence for your client that the prison did not in fact have a practice of that this is their practice you can attack that is not being sufficiently grounded in good pinny a logical practice and so forth but if it's the practice then one of the guy in the cell block how is he responsible for the decision if he says there's been a complaint of excessive force what happens after that seems to be out of that person's hands and judge friedman's question is we try to figure out what the jury verdict is based on given the nature mean any reasonable basis for the jury to reach that verdict it gets up held and i can't see why that isn't a plausible reason why the jury says these low level guys they're not making the decision that hurt your client so we're not going to hold them accountable for it had no ability to sort of talk about the policy or indicate that there's a fourth there was no evidence that the practice wasn't a practice why should anybody think the guy on the cell block has that call mean if there was no evidence for example and i understand your client's difficulties in presenting the case pro se and so forth but unless you can say look george smith over in so block see complained of excessive force and he wasn't removed to add if it's an if if it appears to be that this is the prison's practice it is hard for me to see how the jury can decide well we're going to blame the guys in the cell blocks for that practice sued to the policy maker you see the warden at that point right not the low level guy well everybody up and down the team is responsible for implementing the policy and ensuring that there is a legitimate political purpose for the adverse purpose know what what's so logical about it you've got somebody who's complained of excessive force you want to leave in the same place with the same jailers who were responsible for the alleged excessive force that's so that i think it's at the heart of what the governor is basically saying by saying tomorrow and some others are cases and here's what i would say on that point the difference here there is there was no evidence whatsoever sort of in the record that the policy as a general matter serves any political purpose the only i think i just articulated it i mean from the perspective of the prison you've got a real downside if you leave the person who's made this complaint in exactly the same circumstances you're inviting the world or heard afterwards or the possibility of abuse by the same people that are subject to the complaint the possibility of the prisoner will contend that there was further  i mean the argument kind of writes itself i complained and they left me exactly where i was making me vulnerable and tainting any investigation thereafter i mean for me it makes enormous sense may not be the best policy but the logic of an action is not a hard one to if i can figure that out why does there need to be evidence saying that was the thought process of the person that did it and you have to demonstrate that it didn't serve appealing a logical purpose and what evidence was there that the didn't and so that's what's required in the morrow and then in the summer if we flip to some of the present context right the the the presumptions reverse and so they favor mr garcia and in that context the the fact that this policy was instituted but there was no specific reasons with respect to mr garcia actually helps him because it justifies the inference of this pretextual the use of the policy to retaliate against him for his grievances in the absence of any reasons for why mr garcia specifically either caused or or his actions resulted in safety or security concerns that gives rise to inference that i can figure him out and tell me what's wrong about the logic i just offered up and i think maybe if i couldn't distinguish sort of the the set two uses of the policy i think it's important so first the policy with respect to the to our view is that the policy is wrong is both does not serve a rational basis arbitrator capricious and that if you're going to use the policy you have to provide specific evidence that's but in the context of the summary judgment decisions the cases are clear so there's brewster says yes and and jones that say that the policy that resorts to generalize policies not sufficient any reason for me to think that this is not pea logically motivated well in the concept of summary judgment he's clear that has to be specific but in the context of the still not about substance right so that the policy is a logical it's punishing the victim so the first thing out of the prisoner's mouth is excessive force and then he's thrown into solitary confinement for in this case first forty five days and then another sixty days and the idea that it doesn't fact that we had the case involving l a county deputies are not from l a so it probably wouldn't hit your radar screen but we're dealing with the possibility of sheriff's deputies they've been sentenced to serve time they are still out on bail pending appeal but you read about law enforcement officers going to jail when they wind up being in protective custody and administrative segregation because it is not safe for them to be in the general population i'm not saying that's your client but that's what prisons one of the things prisons use ad saying for now they also use it for punishment and i understand that argument but if you've got somebody who's complained of excessive force it would seem to be incumbent upon the prison to get that person out of the circumstances where he claims he suffered the excessive force so what's illogical about what they did in theory it with the right evidence in the record why did why was that evidentiary im i'm not sure why you prove up in each case the wisdom of each policy they just say this is our practice there's no evidence the practice wasn't followed and you know i've i'm taking your time just to have a brief time for a bottle what's what's what's not right about that because david what we're doing here today is a very fine post hoc rationalization for what we think or what evidence either way was there with regard to the logic or the reasoning behind the practice there was not and that's why it was  whittles down this case to two issues the denial of the motion for judgment on the pleadings and decisions made summary judgment this court should affirm the denial of the rule fifty motion for judgment as a matter of law because first off it wasn't appropriately briefed in the opening brief but even if it had been looking at the further excerpts the record mr garcia did not specify the law and evidence that entitled him to judgment as a matter of law and even if he had adequately preserved that judgment as a matter of law was still inappropriate because it can only be granted if no reasonable juror could find for the nonmoving party and here in garcia's case in chief he testified his brother testified and in make real testify that they all testify for each other court but he also presented the evidence from sergeant vasquez sergeant wally tens of  after chance and introduce their reports into evidence and leave hands of all as a declaration in support of summary judgment all of these showed the actions they took and why they took them instructed his officers to document it lieutenants of allah says that you can be placed in the midst of segregation only if you're a lieutenant or higher officer chance describe the actions that they took when they him against the wall to try to calm him down and deescalate the situation and so all of this was before the jury and the jury decided that defendants didn't retaliate reasonable jury could make that decision and that's why i will fifty what would be the basis of the reasonable decision by the jury so the jury was able to observe the demeanor of the officers they were able to decide whether or not they believed that the reasons that they documented things were because they have an obligation to document those things and not because they were trying to retaliate for a group of peel that mr garcia and his brother had submitted at some other time so i mean is it basically that they are enforcing a policy that and have a choice about is that what you're saying well they were required to document as far as the policy goes if we're talking about section three three three five and docket  to five supplemental excerpts of record two you're right that the decision maker must be at the level of lieutenant or above these officers had the obligation to report what they saw and then it is lieutenant alliance who made the decision to place mr garcia an administrative segregation these low level officers don't have that ability they don't have that authority but they are required to document what they see and that's what they did so in my view that's enough for you to weigh in on the j model issue but i'd like to ask about the summary judgment issues yes so he has a retaliation claim that he was quite a solitary confinement because he made a complaint against the officers and he's arguing that some of our case law jones and rhodes say that you need to give an individualized reason why this policy makes sense in this case i think he's arguing although he didn't actually said as much today as in the briefs that putting someone and it in ads doesn't keep them from the officers it may keep them from other prisoners but it doesn't keep them from the officers who maybe are the ones who are going to beat him up more can you address that why is this a rational thing to put someone  worse for him now do you deny that it was worse for him in some way i guess you do you do deny that so you're not you're saying that forget all this it's not even an adverse action that could ever deter someone from from making a complaint to be put in this different housing i think  turner versus safley sense that placement and segregation is one thing that inmates can expect from time to time it's not a serious separate ation of the liberty interest but that's in the due process context understand that he didn't want to be an administrative segregation so someone reasonably wouldn't want to be somewhere can't that be something that would deter someone from protected activity i mean is it reasonable for him to not want to be there  it's not reasonable for him not to where there are no differences in conditions between the two because your honor he submitted a grievance on july no ok we'll talk about that but i just want to know what are the differences in conditions in the housing he seems to be saying this is much worse for him now you seem to be denying that but i'd like to know what are the differences in being in this odd sag compared to where he was before well i think the only thing in the record that it says is he wasn't able to house with its brother when he was in administrative segregation but i don't think the record reflects that he was in worse conditions on the reintegrated mixed exercise your group b for safety concerns versus the facility eighty three yard and i think that it's  summary judgment we need only prove one element is missing from this case and we did not focus on the adverse action element we did focus on the because it seems like maybe you're asking us to affirm on a ground that there's no record really for us to use to affirm on that ground no your honor again only one element needs to be lacking an adverse action whether or not it's satisfied does not carry the day i don't understand you mean so there are five elements to retaliation defendants burden and summary judgment is to show a complete lack of evidence on any one of those five so whether or not it's an adverse action and that was just in response to your question your honor it was not something that we had argued in our brief it's not something w at the because of the legitimate people logical reason because of element in retaliation is but for analysis under lease versus maricopa county but for this group appeal with the officers have done what they did would be i c c institution possibly cation committee decided to retain him in administrative segregation and what the i c c had before it i think is important they had on july twenty seventh he submitted a grievance that says i've been subject to death threats they have pointed a rifle at me and told me we could kill you now and call it a suicide he claimed that officer is against the officers that i guess other prisoners right to get the officers he claims that a metal object was placed against the back of his head and it made him cry because he thought it was a gun and it turned out to be a flashlight he claimed that all of these officers work together in concert against him and that they roughed up him and his brother now the officer story is so how did putting him in ad segued protect from those officers so by removing him from the yard by removing him from where he claims that officers had brutalized him he's being protected and also allow i mean can those officers  there evidence of the record that those officers cannot guard the other part where he now is but whatever you're calling it this is saying it's not solitary confinement so whatever the bad side is that are those guards not allowed to go there is there evidence in the record that somehow this actually does protect them from those officers can you point me to something yes or there is evidence in the records where the officers have said where they are assigned to work and it's not in the sort of segregation and where is that in the record well that's what each of their each of their levels of testimony in addition to their summary judge into addition to their declarations in support of summary judgment but we also had these statements from officer saying he was belligerent he was aggressive and all we did is quote him against the wall and have him down so they've got the inmate story very alarming and the officer story which sounds kind of reasonable that means we've got to have an investigation and while that the situation is pending it is reasonable for the officers not the officers it is reasonable for the institution classification committee to retain him in administrative segregation he was not in administrative segregation clear through as was alleged in the reply brief he was released on september ninth but then he refuses something and he was placed  and his evidence on summary judgment included the c d c our policy that if you respond if you to celebrate you may receive a little violation report and be placed in segregated doesn't he also have evidence of the officers knew that he was not supposed to have that cell huff and they know the limitation on his housing i mean it was a pretty broad limitation he couldn't live a very many people and so at that point when they made the decision to retain him an ad saying after would seem to me i like him but there are lots of players and lots of fact it seemed to me they presumably were should have known that his initial refusal was justified based on the limitation that was in the record for him and yet he was still kept an ad saying for having refused an assignment where his refusal was justified by me the single hardest piece for me what's the justification for that so time is the one who decided to place the i mean so on page three sixty of the record i think a sworn statement from the plaintiff says during i c c hearing committee member newman made the following statement for the record i'm aware that he was repaired these housing restrictions i mean it's a pro se statement and it's a little incoherent but it seems like he's saying that this committee these officers he names newman but that this committee knew that he had this restriction isn't that at least enough to raise a factor three especially since in fact he was that he did have that restriction that maybe if women was one of the defendants but he's not but it doesn't matter if he's a defendant if he's in the room saying it right i mean that doesn't matter well and it is in this enough to make it at least unclear factually who knew what when so if you look at the excerpts of record fifty  see where the institutional classification committee acted to release him back to the sensitive needs yard some facility three and put him on the support waiting list that was where he was released but if you look at two forty nine you'll see that he claims that c p neuman who was a correctional counselor three knew about his housing restriction who was present at that meeting but there's no indication that newman shared that with the committee now what they do know  that in the in that three sixty plaintiff at least says that he believes that and i mean so we know he in fact had this housing research and we know that newman do we know the playing of says newman's of the meeting so maybe you're going to be able to prove neuman wasn't at the meeting and didn't say it but isn't that a fact dispute it no your honor what we have is records submitted by mr garcia indicating that the i c c knew that he had   repeated refusal of a housing assignment you will go to the ship now if it's a valid or fusilev makes no sense well but that's why even though they recommended sixty days in  administer segregation he was let out less than a month later because they had sorted things out and found him a place where he could be house safely with an inmate with his  we're concerned about is first and then speech and is first amendment speech being killed when there is no reasonable advancement of legitimate correctional goal and when you have that lens on what the government needed to do is to scene he's confined and so whatever worry or concern that he might have about her is there evidence in the record about the conditions of this confinement and whether these officers can still get to him and anything that we can learn about the conditions of where he actually was put i think the government is correct that the level of administer segregation there are various levels and he did not receive sort of what the what is known as the highest level but there is not as far as i'm aware evidence in the record  prison guard continue to have access to or not and the reason is simple the reason is because the government did not make any attempt to support with any specific evidence or general ovens generalized evidence it's that would say for example in the past we've had