presented to them and failed to afford him the leniency the ninth circuit usually requires with respect to produce a inmates now as a result mr england presents three very narrow arguments to the panel the first is whether an inmate is entitled to a religious diet that does lacto diet is heavy in lactose and it certainly may satisfy the whole dietary requirement but mr england is lactose intolerant and so he's essentially allergic to the lactose heavy meal and there is evidence in the record presented mr  sworn testimony that he was actually forced to seek repeated medical treatment in order to continue eating the lactose heavy me i mean let me start again because i want to go through the facts if i can of course as i understand  your client was incarcerated in the nevada correctional center i guess i believe so when did he get incarcerated the records are clear on that point or are well that's why i was asking you he didn't even have to request a special when did he get into the center how long was he there before even requested a meal my understanding that mr england was a repeated guest of the state of nevada for a number of years but that's the thing that worried me just a little bit so absolutely and that's  i think the issue was to how long it took mr england to request a meal goes to the sincerity of his religious beliefs so i think it absolutely does so we can get there but i just want to make sure about that then on june the twelfth  granted for a while but then it was taken away and he was told he had to do a regimen diet right correct when did he have to do the vegetarian diet he had to do the vegetarian diet between the time he was removed from the coach i don't want to general idea when is it that he was told he had to eat the vegetarian diet so i believe that's not in the record is that he was removed from the program in he was removed from the m r e diet yes but when in july twenty second two thousand and eleven he had a meeting with prison lie twenty second two thousand what july twenty second two thousand and eleven and i'm right and then the n d o sikh instituted  common fare diet and in two thousand and twelve right yes and the common fare diet was available to everyone and there were no religious dietary needs which weren't accommodated by the common fare diet but that was they instituted the common fare diet and that was in two thousand and twelve the beginning of two thousand and twelve he was approved for that diet and then he says i don't want it anymore yes and so he was a so the best time we can say he has any problem is from july twenty second two thousand and eleven to june twenty first two thousand and twelve right i believe that he was granted admittance to the common fare or religious diet i was on february yes and so i am so then he requested to be removed in june may or june yes well june twenty first is what i got from your brief ok ok so the best we got is then if there's any problem whatsoever it's from july twenty second to june twenty first of the next year yes or argue with that because i can i can be concerned that i should need this and i shouldn't eat that but i'm looking for something in this record that says he couldn't have even that so i there is nothing i can i agree with you that on appeal he has chosen to narrow his claims to the period that we discuss between the summer of two thousand and eleven and early to mid two thousand and sold the best is that yes ok so tell me why have you not waived this argument why is your client not waived it so all of these facts and issues were presented to the court below well just a minute there was a present taishan of some of this right at first when the complaint was dismissed but after that it doesn't come back until now so if you have reviewed the briefing below i think you'll understand why i've reviewed that we had a motion to dismiss one time where he had all this stuff to say but since then we haven't seen anything about it so why isn't it waived was so he when i looked at the first amended complaint we're not talking about the same thing we've got here so i think mr england raise all of these issues i'll be it in a haphazard fashion before the courts below well with the not i'm trying to do is see if he has and waived it and i want to do your best effort to suggest the ad and so mr england  moving for a junction and then in the primary injunction is the only place he ever talks about it and it was denied yes and i believe that he also submitted some evidence to the court in his reply brief to his own motion for s indicating to the court that he sought medical treatment and was granted medical treatment by prison officials for the lactose intolerant so i don't believe this issue was waived i just believe that he chose to focus on the broader got a good you got a good case to give me to suggest it wasn't waived when the only time the court ever looked about it was in the preliminary injunction which was the first thing we ever talked about in the case and it didn't come back again i don't have a case because the defendant the factors i use in determining whether he should not have her he should have got it or he shouldn't have got it what am i looking at are not looking at the turner balancing test so is assuming that we have established a sincere religious belief that was burdened by the physical discomfort he was suffering in the need for medical treatment we then turn to the turner factors ok as that's assuming that we have a sincere i haven't talked about sincere if i go through the turn of balancing test how do you win i think it's easy for us to win as a threshold matter turner requires that there's a content neutral regulation the radio was a content neutral regulation well regulation the only thing you've got it best if we look at the turner factors as long as we're looking at the turner factors it seems to me that that who they give this how much they give this is certainly a rational can can take connection between the state interest in the prison regulations they had too much going out they couldn't afford it all they couldn't get through it all and they gave your client as best they could which was the vegetarian diet and all of the only thing i got against a vegetarian diet in the whole record is that he was lactose intolerant so turner has four factors i know i just i'm concentrating on the first so the first is that there's a rational connection between the policy and a penal objective cost control may certainly be a penal objective this permissible under turner a man who is that the cost control according to the state was required because white supremacists in you nazi groups had infiltrated the kosher real program and causing cost to explode there's no rational connection between the goal of removing white supremacist from a kosher meal program by banning exclusively african american members of the nation of islam so in that venn diagram this lactose intolerant argument that he had he had a choice between being pious or going hungry is that it was never made below it appears nowhere in the complaint it's not in his opposition to a motion for summary judgment it's not in his opposition to the magistrate judges report and recommendation he didn't make the argument below because it makes no sense the kosher meal has dairy and it kosher does not mean no dairy kosher means no milk and meat but it has plenty of dairy eggplant parmesan is a kosher classic it just wasn't brought up below and no it's been reformulate on appeal now supposing he had made the argument there's no proof to raise a genuine issue of material fact first look at look at what's missing i mean if he if he has essentially a medical problem so severe that he can't eat surely he had some obligation to provide some medical cooperation so where the medical records here for instance if you claim your point that he's making a claim of lactose intolerance but he doesn't bother to introduce any evidence other that's right but my first line of argument is that he didn't make the argument suppose he did raise the argument in his response to summary judgment and the motion the it was kind of in a motion was struck but not in opposition to this summary judgment he raised he said something in a in his motion for summary judgment which was which was struck we know what he was getting at there he is he was trying to copycat the chicago our case which is the furthest an inmate has got with this so he he says i'm just like the  gastrointestinal illness he copied and pasted that term gastrointestinal illness that's where he got it the problem for him is that the shoot the inmate in chicago was not arguing that he had a lactose intolerance  her just says it's one of the factors you look at right that's right that's the best we get out of chicago or if i give it every ten month that they make right so you are very different because the scenario in chicago that you have a kosher meal program and you have islamic inmates that want on to the program and so the question becomes how big of a deal is it for the prison to give this one islamic inmate or a few of them this meal this situation is different because all the muslim inmates who want to kosher meals were on the program they were the accommodation shop sought in chicago was already being granted and the question was the prison question was how can we given that the kosher meal program is unsustainable how do we accommodate everyone going forward so other than the meal you got anything to say about that yet one last point about that this is this case it is not the case here that the prison said there is this seven thousand percent spike in kosher meals and four years blows a hole in the budget is not the case i really want to emphasize is that the prison said look we're short on cash so we're just going to give the jewish inmates the fancy kosher meal and the islamic inmates you got it you're going to be vegetarian and you've got to deal with that that's not what happened here the reason is the only way to accommodate the jewish inmates was to give them the kosher meal vegetarian meals were not kosher so the only way to accommodate the jews which were by law required to do was to continue them on the old kosher until the common fare comes online islamic inmates by contrast could eat  vegetarian meal because it is a law now the prison did not say to mr england you're getting vegetarian live with it they said look we want to accommodate you we want to get you whole law meat we're working on it we're getting this common fare diet online it'll accommodate both jewish and muslim prisoners common fare is what they do in the bureau of prisons i believe and he was given vegetarian meals as a temporary thing during this interim between the old kosher and introduction the college fair so that's why there's no equal protection palm that's why this was fair and that's why what the prison did was the only thing it could have done to make sure everyone got religious diets that were healthy nutritious comply with religio dictates and within the prison budget i can move on to the non recognition of the nation of islam this argument also does not appear in this argument that as a refocus to narrow it as he says about the thrill it is not in the complaint not in the opposition to the motion for summary judgment not in the opposition to the report recommendation in any event the answer is the same every prison has a system by by which it recognises new claims religions nevada recognizes twenty eight religions now new religions are being added all the time you need to have a rational basis because you have to be careful about this you have to separate bonafide religions from political movements or prison gangs when something is recognised as a religion they get private meeting time you have to be careful about who gets that what happened here is that some inmates mr england among them said we want nation of islam to be recognised formally it's not clear when exactly they said that the prison said it great submit the paperwork it will go to the committee it'll be process like it is with every other religious group and at the end of the process the nation of islam was in fact recognised as a religion they got what they wanted the process was full but isn't it also a factor and it's what are making sure about that even paving backed two thousand and eleven when he may first makes any request at all though we don't know when he first went to the prison that they were allowed their own group worship even though not recognised as correct it's unrebutted that as early as two thousand and nine they were informally recognised they just weren't in the manual yet until they asked the process is there is there anything in the record i mean i saya general argument about denying certain religious rights and practices but i didn't find any hard given about what practices or what rights i don't i didn't find it is there then there and it's i tried to figure out what he was actually talking about he says that generally you know we're not allowed to practice nice of islam in the way we want which is sort of a you know i think maybe it had something to do with when they got their meals or the time that services started but i couldn't figure out what exactly they were talking about well it was hard for me to to apply the turner factors without knowing what it is they're talking about so i wondered if you could or maybe he never got to the argument but i would have ask him the same thing i don't know what he's talking about the only difference is there's a three hole that is get added to the emanuel that's the only difference between a nation of islam and traditional islam so that th confuse the effect of adding nation of islam to the manual the effect is that on the holy days you get one extra hour of chapel on those days so three extra hours in the year and i don't the recognition of the nation of islam incorporate their holy days what it means is that you get on those holy days you get an extra hour in the chair you know what holy days those are i do yeah david  mohamed so this is three hours not to diminish it is it but it's not the record no he didn't he didn't make this clear to the prisoner the judge that this was i mean i appreciate you know but i mean i tried to find out i could find yeah attorney general's office just raised a waiver argument that it never presented in this briefing and made a number of factual representations that it's never made before in the go well beyond the record with respect to the issue of how much  lactose is in the lactose heavy vegetarian meal it's a factual issue that goes to possibly the amount of damages that mr england suffered it's it's a factual issue that should be debated before the court below would not result in summary judgment either by the lower court or by this court with respect to there's some suggestion that mr england did not present evidence of his lactose intolerance mr reagan presented sworn testimony in an affidavit where it's at page two hundred one of the i understand but in what and what did he present there so i mean to me that the only time he ever presented anything that could give me any idea about what he's talking about was not in what we got in front of us now but was in along with that were not that i believe i'm as a bastard that yes ok well i'm trying to figure it out because that's where i'm looking at ok thank you thank you answering my question