claims but his bus tour is his free exercise claims this case turns on a factual dispute torres was removed from the religious meals program because he did not pick up some meals from the mess hall i just start where your client is incarcerated at this point is he no longer it windy our understanding from a different attorney of his who spoken to his sister is that he in fact has been removed from the r m you part of the motion about moodiness was our fear that that might happen and i haven't spoken directly with him but that is our understanding is that has he has been  he even in the same facility at this point you know the answer our understanding is that because the orem use it wendy our understanding is that he is at a different facility i don't i don't think he's he's seeking medical parole which suggests to me that he's not otherwise getting out anytime soon gave it to the extent that these are injunctive claims he's in a different facility and you're not disputing that looks like this would not be properly for us at this point i don't i don't have enough it is in fact it were definitively established in the record that he were in a different facility and not subject to the same policies it would certainly seem appropriate but i don't have enough factual information to be confident that that's that that's true but it was a record reflect i'm sorry and you finished your answer no the record reflect why when he was in the r m years he has sought kosher meals and kosher celebrations during religious holidays so for several weeks a year but not every meal i think that his religious practices may have changed in the interim but for the period under dispute he was seeking every meal to be a religious meal and the factual dispute here is why was he kicked out of the program he was it's not disputed he was kicked out of the program because he failed to pick up meals he says factually that's because his disability meant on occasion he was unable to pick up those meals defendants say no that the reason he didn't pick up the meals was he was defiant or the mess hall was averse if you didn't feel like eating and there's clearly in our opinion a factual dispute the record whether his disability has multiple failed kidney transplants spontaneous hip fractures fatigue nausea on the days following the dialysis or the reason he failed to up meals and if there's a dispute a fact in the record summary judgment was inappropriate we can see that if in fact the record definitively showed that he just didn't feel like eating that he wouldn't be entitled to any of his claims defendants implicitly concede that if you could show that the reason he didn't pick up those meals was because of his disability rather than any willful noncompliance that that his claims would be viable and there's a factual dispute about which of those versions is true the legal standard also requires that the defendants demonstrate that their actual contemporaneous motivation had a reasonable relationship to legitimate penal logical needs under the st amendment compelling governmental interest least restrictive means under our loop and the disability claims even stronger their contemporaneous motivation was you have not submitted medical documentation to us to prove that you can't pick up those meals therefore you lose and they refuse to investigate why because he couldn't submit medical documentation proving that he couldn't pick up those meals they wouldn't documentation was to the contrary the hospital doctor said said you should be going that that you have or you have a good reason for not for taking your meals in years on the days of dialysis treatment but you don't have a good medical reason other days and furthermore it's it's from eight months earlier while mr torres was rapidly deteriorating at that point eight months he had not been in the r m you his spontaneous hip fracture occurred down the line a statement from eight months earlier does not resolve his condition eight months later nd as i mentioned under sullivan dean the question is what was the actual contemporaneous motivation not whether they could have relied on that eight month earlier opinion there's nothing in the record suggesting that's what actually motivate d their decision and finally and perhaps most fundamentally what that statement from eight months earlier said is tory as you've requested a seven day feed and sell order so every single one of your meal should go to your cell i don't think that's a good idea because you should generally exercise is good for you should generally go to the mess hall and he did the question here is whether on occasion when he was unable in rare circumstances the day following diallo because of  nausea weakness on those rare occasions when he couldn't go to the mess hall should he therefore be kicked out of the program in the th seems broader than the his then his misconduct if you want to faith that requires him to to have certain dietary needs i mean that's your point is that yes he was not eating anything else occasional meals he was so weak he didn't eat anything and there is the tenets are contesting the legitimacy of his interest of his faith and his interest in those meals the question is because he missed an occasional meal should he be kicked out of the program and the fact that eight months earlier with no reliance on that statement that he shouldn't get every single meal sent to a cell doesn't resolve the question of what happens if he misses an occasional meal because of his disability without any fault of his whether he should be kicked out of the program just cantankerous says not to go and pick up his mail it's open to defendants to prove a trial that that the mess hall was aversive or he was randomly cantankerous and didn't want to eat i don't think that's very convincing but it certainly is not established in summary judgment the only thing they have is their statement and in fact their declaration for the they said our policy still is if you want to be excused from picking up a meal submit medical documentation proving that you can't pick up a meal and the existence of this statement from the doctor eat months before not relied on not contemporaneous not up to date staying sitting you shouldn't get every single meal since yourself even assuming that that is a legitimate judgment it doesn't mean that you should be kicked out of the program on the days that you can get there either or that on the rare occasions when you can't get there and he in advance send him that particular meal to a cell or at the very least don't kick him out of the program say we're not going to send you a meal sometimes you'll go hungry but when you can get to the mess hall you can eat in compliance with your fa didn't you move to really argue the motion when you concluded that there was some legitimacy to his a d n a and lupul claims to the school as opposed to just submitting the brief in characterizing the motion panel more time she's very kind and most of the time good morning your honor sir i'll begin with an update as of this summer mr torres was moved to the five points correctional facility use of that's a completely different facility and claims for an jumped of relief therefore be that could be verified publicly just by going on the docks website as to the claims for damages removing mr torres for failing to comply with the attendance rule was not a st amendment violation mr torrens concedes that the attendance rules serves a legitimate government purpose and that in certain circumstances removal would be an appropriate consequence because violating the tenants rule signals an inmate's indifference his dispute is far narrower which is that there's he claims that there is an issue of fact as to whether he articulated a viable medical excuse and the record shows that there is no such issue of fact your hon although torres is claiming that he was medically unable to attend meals during in the context of the litigation there is zero evidence that he raised this excuse contemporaneously either the skipping of meals or the temporary removal from the religious meals program of the numerous defendants that he named there are only two that could even conceivably have involvement with these events that would have been food service in minutes straight or kelly smith and her boss susan schumacher and from their perspective having no contemporaneous articulation of excuse they were perfectly reasonable to simply look at an inmate who is skipping meals they don't know why and they could infer that he wasn't that he was among these inmates who were demonstrating indifference two weeks after the removal happens is when he st brings these so called medical problems to attention not of the food service staff but to prison grievance officials and they quite understandably lacking medical expertise or institutional knowledge on the ins and outs of the food service program inquire of the food service administrator as that's the investigation and the food service and ministry to say that even though he's articulating a claim a medical excuse he hasn't substantiated it with any documentation well mr to es is claiming right now that we should have done a further investigation and perhaps by referring this to medical staff he ignores the fact that the grievance program is not the vehicle by which to seek medical attention as the central office review committee torres on it's on page ninety eight of the appendix if he has medical concerns he always has an opportunity to pursue the sick call process at any time he wants he can pursue sick call so to the extent he's raising this broad based claim that we violate the st amendment by not accommodating disabled inmates the record shows otherwise in fact mr torres his own case shows otherwise on three days per week when we were giving him dialysis we were not only excusing him from attending meals but delivering meals for him the feed in cell order that applied for three days and  other four represents a medical judgment that on those other four days he is medically able to attend meals and if mr torrens felt otherwise he certainly had every opportunity to take that up with medical officials now we don't argue that the denial of the feet in cell order was contemporaneously consulted when he grieved the denial of kosher meals but it certainly is relevant to the st amendment claim because that's what at it what at issue here this is a medical indifference claim and for st amendment purposes it shows that we are paying attention to inmates medical needs and accommodating them mr torres argues that we should go a step further and allow inmates such as himself to be excused from any kind of consequence if in their own subjective opinion they don't feel up to attending meals on a particular day that they can just notify staff and either they won't incur consequences or the meals will be delivered to them and we agree that while mr torres has articulated of viable religious belief that religious belief does not entitle him to eat meals why does is why do or why or says religious why are religious convictions impaired and not just his dietary needs impaired just don't feed him well as he doesn't go if he doesn't go to the most holiday that the doctors see not commitment to being kosher yes your honor the department can reasonably infer that if a person has asked for kosher meals and they're no longer picking up those kosher meals meals that are made specially for them i understand that you may have a concern with regard to waste and so therefore you may make an argument that there may be some palffy imposed because of the ways it's involved but this is a thirty day suspension and i haven't heard you argue that this is pensions commensurate with the way suits involved i'm not picking up a meal for two or three days well your honor that's not an argument that torres has made either he hasn't said that the length of the spent the suspension was excessive he says he shouldn't have been removed from the programme at all the reason that he was advised to take it up with i didn't show up to pick up my meal would you take me off the diet in all likelihood no your honor by in that circumstance you would have a medical order that you eat you interpret it that i just don't not interested in having a l anymore because in that case that would be based not on your own preferences as an inmate but on a medical judgment that you require those meals whereas religious beliefs can change based not on your preferences and as an indication that you no kosher even though i mean there's no indication that he picked up a different kind of meal i mean i would get it would make sense to me if you if you said do you not really and that's what those other cases where people are selling their kosher meals or trading their kosher meals for other people's kind not kosher meals but this isn't about the legitimacy of the genuineness of his faith this is about his failure to attend and somehow his failure to pick up a that there's no indication that he substitute something else is somehow undercuts his legitimacy of his faith your honor of the premise of your question is attacking the validity of the attendance rule itself something anything i'm asking you questions representing the state of new york yes your characterize what i'm doing just answer my question so your honor that would bring me to my secondary point which is qualified immunity so even if even if this court were to disagree that the state is is not acting appropriately by applying its intended as an indicator of sincerity i wanted to hear from you was what what is the connection  meal program it means that he has meals made its preciously for him because that in manged has as declared a part of my religious scruples want to be part of my religious scruples call upon me to pick up these  doesn't pick up meals that that is an indicator that they don't want those meals tell us how many meals do you have to miss before you're suspended for thirty days that's not in the record your honor and the problem with this case is argue your honor that we don't need to justify the basis behind the attendance role because torsen self hasn't put that rule at issue he's conceding that it serves a legitimate p and a logical purpose and as i understand him to be arguing arguing that it's not really we didn't act reasonably related because he had advanced medical excuse where and if the evidence is showing that he didn't invent some medical excuse your argument is we don't have to reach this question question that's correct you are at the very least prison and ministry there is acting in the position as the defendants here could have reasonably applied to these rules rules that are not often under attack and determined  temporary removal whereby he can reapply and easily be readmitted simply by going back to the prison chaplain and confirming yes i still want kosher meals that that is an appropriate consequence  dispute that it is a substantial burden on religious rights but we would say that there's there's no law saying that that's not a reasonable consequence here for violating the rule and that's not something that this court needs to get because torres argument is not that the length of the suspension that that fifteen days as opposed to thirty days would be appropriate the alternative that he's proposing is not a shorter suspension but no suspension at all to simply let him get his meals whether or not he attends them now i understand my time is up if i could very briefly just address the eighty eight claims and clarify defendant's position on that so defendant had made a motion to strike that motion is before the court because torres has has moved for this court to consider the claims we would no longer argue that they're outside the scope of the appeal everything is before the court but we would still urge the court not to take those issues up because of the fact that their own preserved torres is arguing that the district court had failed to could strew his claims liberally and that as a consequence he had raised all along however the fact that he didn't raise that argument in his objections to the report and recommendation signals either that he himself had not understood that he was raising those claims or that he such as to the law library including that suggesting strongly through the extremely charitable lens proper to a pro se inmate not an educated inmate he was objecting about his e t a claims such as to the law library the district courts resolution of his religious meals claims is remains is dismissed so if that's adequate for the district court then for the charitable lens which mr torres should be pleading should be viewed that's we believe strong far more than strong enough to preserve those claims as to the question of whether he raised the disability claims in his complaint the th claim on page forty overtly connects disability to politician for my disability and in particular including i want to be fed in cell for the days after i get dialysis because i'm light headed and nausea nauseous at times particularly five complications other complications from dialysis so he was plainly intending to raise the a d a s and reasonable accommodation to his religious meals again for the th claim which was time barred but reading the rest of his in the plate he was intending to raise those claims his grievance on eighty three dollars in eighty four dollars from several months earlier was he was making a disability related claim and in fact it is appropriate through the grievance process to say you suspended me for religious meals i can't get them because i didn't pick up the meals i would like to be reinstated to the program he was fighting that at least through july so for those several months could have gone to the jewish chaplain and found that he was genuine in his beliefs absolutely but the mechanism he was using to say the reason you've kicked me out of the program is i can't pick up those meals because i'm disabled and they refused to investigate they knew full well the reason why he was failing to pick up those meals they knew months before we believe that a fair inference reading records best possible light is they knew at the time they certainly knew when he filed the grievance and through july when it was finally resolved they said if you do not have medical documentation proving you can't pick up those meals that's why we're denying