circuit if the court applied garret to mr downey case then the nd reason not even be addressed however the nd reason is that even if mr downey status as a prisoner at the time of filing his original complaint somehow controls for purposes of the as between those two positions which one do you think the better one we go in well between application of a garret or application of arguing a policy and i'm serious want to clarify your question yes that's right ok well the application of garrett is is a right line rule that this court handed down that makes clear that the time of the filing of an amendment supersede it's ok it's referenced that he was a prisoner it's in the past tense and said he was incarcerated l a times relevant to the action it does not specifically say he is now not a prisoner but for purposes of pleading such a requirement that this court has has indicated that it's not an affirmative pleading requirement it is an affirmative defense if somebody wants to raise the funds want to raise the status of being a prisoner and the application of failure to exhaust even a different court cited that that language in its decision so although we didn't express please state he is no longer a prisoner we did sure and there is not a documentation issue to apply in this situation we need on behalf of mr downey filed the initial complaint of course he wasn't made at the time the very next day he was released we had filed the amendment as a matter of right to cure some legal many terms in the for them or in the original amendment it had nothing to do with any gaming of the system in fact we didn't even know our office at the time that as of filing time to be suspicious well i in this situation i can say i go in at all because we were we were representing him at all times and we had no knowledge as to when he was going to be released there was not a date certain  amended and supplemental claim in the amended complaint relate back to the original complaint because it is going to confirm the same core operative facts in the court that specifically say or language with respect to amending states that the grievance of them is intended to deal with a wide range of issues procedure or event that may be concerned inmate but quote it is not meant to address incidence of an urgent or emergency nature and the facts of this case are that this was clearly an urgent situation you know not just saying that fortuitously for our benefit it's actually up from evidence in the record where we have testimony from the  medical director dr tom and dick where he testified that as of well january january and as of march that mr downey situation his severe bilateral glaucoma and his uncontrolled  quote urgent care was needed specifically with respect to his right eye st so if you apply the clear language of not meant to apply to an urgent urgent situation and then you have testimony from the defendant's medical and there's of course the grievance process which is no way intended to deal with a situation of this nature although we don't claim that he grieved it is clear that he file inmate requests the staff forms that went to both of the st two levels of what would have been to grieve insist them and by the time he got to the nd level he had received the surgeries he requested and by that point of course in in their care and it was almost nine months before he would ever send back and provided the surgery that were indicated both by the d o c and ophthalmologist that need to be done within one to two weeks on an urgent basis let me let me to immunity or with respect to failure to that is by the deliberate indifference standard raised and that any record made below what the court and no record before the court that it's even in the position to address the evidence that would allow to rule on this it is clearly one way hold on hold on a nd do you do we need the record understand that the department of corrections an arm of the capacities and so this is not simply claiming the liberty and difference of the dio c it's under mono liability which allows you to include an agency in that respect and we also and then a couple days later you file a sure and the courts have control and discretion as to whether allow amendments especially if they in the paper believe that a party is trying  and completely different in this case here in downey there was no intent to grieve whatsoever it was actually purposeful decision by mr downey to not avail themselves of the  here and you should let mr downey get away with it never did anything concrete with winning the prisoner and he just waited in telly got out and that's not right maybe not be too simplistic but that sounded like the and according to garrett he doesn't have to abide by the p r a if you file that complaint or amended complaint or supplemental complaint one that's alright but my question is so what what what difference does  question of the urgency question to know how how do you win and they should have followed grievance procedures when you have your own client saying surgery no no no the irony is that mr downey goes to your client and says i can't i'm this is the happening and they say yeah this is serious this is urgent and he doesn't get it and then come to see the then the medical people agree with that proposition but he would have received the surgery sooner if you build up paperwork and gone through the grievance procedure that's really your position and i think i actually i believe that it is absolutely true because here was that the scheduling didn't take place because the person who was doing the scheduling thought the scheduling have occurred so you have to pay at the end of the day mr howe the position you folks are taking in it exhaustion and it was an exhaustion hair this was a long standing chronic health problem that he had he didn't need and they knew it going in right he came in and they knew when he went in to the facility that he had this problem and they knew in january that it was urgent but let's talk about the word urgent here ok what if if the internal procedures say you don't have to agree he or urgent situation and the record shows by your client's words that this is an urgent situation what what's the foundation for saying my name again is shawn kirkpatrick with the pennsylvania with attorney general on behalf of the department of correction if you don't have five minutes i want to make some very quick points the st is sovereign immunity cannot be waived if you  st time it is raised on appeal that it will the martin case so it can be raised at any time that by sovereign immunity they can issue is my now liability will be michigan department of state police the u s supreme court case clearly says that one now liability does not apply to state agency so at the very least of the partment of corrections which isn't a person under purposes in one thousand nine hundred and three the judgment should be absolutely the other we argue that the record is clear that there is a lack of personal involvement by the superintendent that the waiver standard is different for appellant and appellee that appeals are taken from judgment not opinion and that this court d nay support a judgment on any grounds of supported by the record we think that this record it adequate because mr downing never took the deposition of the superintendent or the deputy and superintendent below so  it didn't matter really to him what they did it only mattered who they were because they were pursuing the now claim against them and that as a matter of law not not proper  that the correct officials position that this was not really or most an urgent intel just around the time of the surgery is it depends on the kind of relief you want that we can we can let you go blind we can let you go blind and you can't ever get anything in the way to quickly about that because once you're blind you're blind they came to superintendent attention there within four days he told surgeon for the st consul and frankly i represent the department of corrections the superintendent and the deputy superintendent in this position right now is that as a legal matter the the grievance process even though it says it's not for urgent situation somehow includes proviso that says unless you're luck unless what you want is money in which case even if there's an urgent situation you know you can you can ask for money later that you're that's what you're telling us then within the next week it's not like i'm immediately i'm about to go blind because i can't get surgery again your honor i think that if if the inmate request would have gotten surgery within  the st week and there would be no blindness then the question becomes do you do have a grievance should it happened in three days should it happen in four day that i did think we have to go that far right because  mean that the grievance process is not a political that in fact you don't have to agree that if the order to have a claim because you're in an urgent situation because of the medical standard that that is and then that the  department question itself chose to put in its regulations if you've got an urgent situation you don't have to greet well i would say no your honor because this court has held that in order to obtain compensatory damages you must put it grievance if if the procedure itself says you don't have to agree because you don't have to by the surgeon well that's why i believe that there are two separate cult claims essentially one is for the surgery and one is for that mine and it's the regulation itself you don't have to grieve for an urgent situation what do you rely on to say that doesn't mean money if you've got money plain you have to agree that what you're authority for that the fact that getting money is an urgent ok and i'm beyond my kind but can i answer a question that judge one taste raised with my friends on the other side i promise to be less than a minute yes go ahead with your after judge one case you were expressing some concern about inmates gaming the system and i just want to give you two statistics one is and this was year were released every year approximately thirty nine to forty percent of the population turns over i dish only thirty eight percent of inmates serve three or fewer year so you add a statue limitations of two years that means that a significant percentage of inmates if they do not need to grieve because all they have to do is to late a decision on exhaustion until they get out exhaustion requirement was specifically to get issues to the prison officials so that was clearly at the intent now obviously there's a conflict amongst the circuit as to the reading of specific words within cannot file frivolous lawsuits but two to raise issues in the prison in an administrative process so that they can be addressed at the st instance by administrative officials and if we are allowing forty percent of the ration and also had claimed that were never grieve but were available to be green as well as additional facts in claims right after he was really hardly know it cover every situation and th issue of when the situation became urgent the court was correct that this was an urgent matter at least as of the kind that mr downey was recommended for a theoretical consol in january and that asking can you give me the status of my surgery again schedule he was led to believe at all times this was happening there was no mr maori can you give it in sight it's their place in the record where it's expl the people that you know and to your point the two officials that you need to hear complaint downie who's me a fellow so and summers but that they do there are some communication with them with what the policy and the way of trying to be applied here the policy clearly says it does not apply to an urgent emerging situation and there's nothing in the policy that says it's somehow thereafter to bring into it doesn't have its own fortitude in his own language somehow spring into existence after the fact our concern is that this is a policy drafted by the v o c and they certainly had to build into the fine terms and control how they wanted to word it but as it's written there is nothing that they devise is in this situation mr downey that his urgent matter that was not required to be exhausted or agreed somehow they are had to be aggrieved solely on monetary after the surgeries that he was seeking her ok well we've got your argument thank you very much mr mallory in power in the past we've got the