all of the lawyers are participating remotely by phone that means that because phone connections are imperfect and sometimes sound in one direction makes it hard to hear sound in another that too many people may speak at once i will try to find circumstances where that's happening and ask everybody to be quiet until we can sort out what's going on this generally works well it just takes a bit of patience on behalf of everybody participates i will also attempt to let council know when the time for their rebuttal has arrived the declaration defendants are simply wrong the evidence mr bowman puts forth but she had sworn to in the record it's clearly admissible and a material dispute a fact that requires a the hearing i'm i'm asking this in particular about the april th grievance because i wonder whether there is any evidence in the record to refute your client yes your honor i don't concede that a paper hearing is necessary instead i would argue that defendants quote no evidence in the record whatsoever about the existence or as they would have a non existence of the nd grievance and that there's plenty of information in the record for court to decide the issue on and further that my client  pursuing until much later on they completely ignore the court scheduling order for the filing of dispositive motion faith on exhaustion instead it's got summary judgment question the tactical choices of her predecessor does not excuse the violation of the court's scheduling order the district court's ruling permits well really in or is the plaintiffs theory of an th amendment violation as to the remaining three defendants rooted in an allegation of a failure to  intervene yes your honor indeed it is but i like to remind you that the district court has already held that there is a trial issue of fact as to whether the defendants failed to intervene me are here because the after we're in an interesting situation because although as this court prescribed in tavi and at the district court scheduling  ok and you're into the st the st summary judgment motion if if that's right that that the th amendment claim is rooted in a failure to intervene how does the april th or for that matter the april th grievance put the jail  notice is that serious liability did the defendants on notice yes so firstly there's no dispute that the april th prevents quote the pleading that they had can get around the cruel and unusual treatment that my client was subjected to during the tactical shakedowns but i also believe that the st t unclear what would have been different had the defendants been named and had mr bowman gree their failure to intervene i'm not focusing so much on the you're emphasizing the failure not the failure you're you're emphasizing the lack of the specific identification of correctional officers in the april th grievance but the april th grievance to my eye doesn't talk about failure to intervene it looks like what mr  is trying to hold those that he sued responsible for is for the physical attack itself it doesn't it doesn't to my eye suggest that well you know and there were guards that stood around and they that was unacceptable they needed to intervene to protect me there's nothing like that in that grievance i believe there are several statements in the grievance that i get to the fact that this was and he also mentioned that several officers were dickering in wapping when he tripped over another in a split so i believe that all of those get at the issue of failure to intervene but regardless the standard one what has to be in a complaint is a matter of federal rules what has to be in a grievance is a matter of the prisons requirement does the prisoner say one way or the other whether a theory of the wrong has to be in a grievance i would agree with you that normally person regulation do govern but that's only when prisoners have been a made aware had been made aware of those regulations and i'm not asking whether the prisoners were aware of the regulations i'm asking what was in the regulations to the regulations say what has to be in a grievance and does that speaks to the issue that george plaintiff asserts that another grievance was filed on april thirty naming everyone complying with all the prisons rules this is a prison just ignore it is there any contrary evidence in the is counsel if there is no contrary evidence why doesn't that and any dispute about exhaustion i could imagine an affidavit saying we have searched our records there is no an for a declaration that complies with twenty eight c section some two points and the grievance here did not comply with that form and so it should not have been considered evidence on the judgment there's there's also some problems created not just in the form of that grievance but for the response but the grievance copy that was attached to the summary judgment response was miss the twenty eight team date and then when mr bowman tried to correct the grievance in the post judgment motion or correct his response it contained opportunity in summary judgment to put in an affidavit or a declaration saying we've never received a grievance dated april th we've never seen a document that in any way shape judgment right in other words more other words if your theory is we've never seen this we have concerns about its integrity and authenticity your client is in the best position of all the parties here to say look we've checked our records we've asked around we have no record whatsoever of an april th grievance none what's the row and you didn't do that let me ask you a question on a slightly different line because i think the i think the records pretty clear that there's no affidavit or declaration from you on that from your client on the exhaustion point is that is the requirement under federal rule of civil procedure six b one b with respect to extensions of time required to being implied with in your view or is it optional and it be excusable neglect standard yada old now and my question is more basic when a when a party seeks an extension of time or or a leave to file a nd summary judgment motion does the district court need to make the finding required by rule six b one b or is it or is that finding optional  do the rules contemplate that that specific requirement be complied with or do the rules make it optional i don't see a specific requirement that a pitcher judge shall and then the particular back to a judge whether that was in a good discretion the reason i say not and the reason i'm asking the question that way is because i actually think that that may be the only way that you can defend what happened in other words there's no there's nothing in the record where showing that the district court made a finding of excusable neglect we can there's no question the record explains why your client wanted to file a nd summary judgment motion but explaining why you wanted to do that is different than a finding of excusable neglect and so if the requirement in rule six b one b is just that a requirement i i'm not so sure how you can prevail but if it's optional you may have an argument yes and the federal accept that excuse which she did find she found that it was and it was an oversight by counsel but that was the reason why she was allowing the late motion  and district courts have wide discretion in their decisions particularly when there's no significant harm to the other side in moving that deadline and so far bowman has not identified after prejudice getting a trial is is not prejudice in that he was harmed from gathering information for his case or building his case the way he wanted to he had to address the exhaustion defense on the merits and and that's an affirmative defense and it's designed to be addressed before trial not winching trial is not actual prejudice he just had to confront the merits before he could then go on to trial i have a few seconds left but it's the court has enough for the question  understood mr goes mn to say that your client had not sworn to the april thirty grievance either by affidavit or an untested declaration and you say he has seven in the special kind up where he had sworn under oath to the and further the issue that judge carter raised regarding whether the nd grievance exhausted substantively as the failure to intervene was not with the gated below and that means that mr bowman had no appreciate your willingness to be recruited as counsel in this case and your assistance to the court as well as your client thank you for the cases taken under advisement and we'll hear argument