lopez versus a new ch may please the court i'd like to start by addressing new arguments raised by the state in its letter to the court and see him a conspiracy the district court in the state are laboring under a misconception that there are two cases in this appeal the first opportunity that mr lopez had to peel any decision from the first docket number was after the district court enter judgment in the second arc of all the previous decisions in the first arc of number would not appeal because there was no final decision under twenty eight u s c section twelve ninety one and the case of need versus why start life insurance company holds that they remain to an administrative proceeding is not a final judgment that happened in the  contacts that seven sixty eight and thirty one or two in two thousand and eleven from this court there's a couple of consequences because of that the first is that dr goodman was served with the first complaint the state accordingly the state because you know they raise this forfeiture argument that the truth is that the defendant dr goodman has forfeited every argument on this appeal the statute of limitations is an argument that can be forfeited the second consequence one has been able to argue the merits so if we buy that argument was raised below isn't what we should do simply vacate and remand and send it back for the whether event argument or defenses to it and everything else is v here rather than trying to decide the merits we vowed never side as we are now yes i think that is one way to the way to do that would be to address the exhaustion piece of this so that the court could reverse on the exhaustion issue and essentially have him ready for trial so that's that somebody can go in and try the case on deliberate indifference and i  he's there is something the air isn't the appropriate way to put the whole thing before the district who are so that all of these questions can be argued out now with your client having a lawyer who can make the best case for and the state coming in and telling us more than what they have in that brief which frankly i didn't find very helpful because it didn't address these issues i think as we would not object to that i think that the case can go forward even further if we if you are willing to look at the exhaustion issue because that is tech that is right before the court the court that the district court did make a decision on exhaustion and if the court looks at the new york prison system administered quote unquote administrative remedy and finds that it's inconsistent with the p l o or that then then we can just move beyond all  there is a failure to comply with the new york tolling well that's a different question from exhaustion i thought you were arguing we should we should rule we should reverse on exhaustion i'm not quite sure what you mean by that i mean he in the district were initially dismissed for failure to exhaust but then the plaintiff did exhaust and then in the final dismissal was on statue limitations let me clarify here if if you reverse an exhaustion you never reached the statute where you are you saying that we should see whether there was exhaustion it time was the first one is that what you're asking us to look at you know what i'm what i'm asking you know what is under w ross to say that the new york prison system exhaustion and ministry of the quote unquote administrative remedy does not satisfy the standards of play for and it was there was no need to ease off under the administrative because because grappled with the issues the result may not have been an entire invalidation but you certainly did bring up well the issue and you couldn't just you could say narrowly in this case you could say nearly in this case for the facts on this case the new york prison system field  lopez and the reason why is because they point to the purpose section in their administrative remedies and they say look we're not here to decide anything adversarial but i think that that is a difficult question and your client mi win anyway because he raised a continuing defect a continuing a violation and v r for when he did exhausted time to that was timely then why should we decide you know we tend to avoid deciding really difficult questions and and i must say we've only a lawyer from one side in two answers to that one is a pragmatic answer is that a case that is ready for trial has a much different force than a case that is still stuck in pretrial proceedings and it means a lot it would mean it is better for my client and i have to represent their interest to push this case as far as i can i understand why you're doing that of course this is the second issue is that i think it is there is a problem within your prison system and if there is an opportunity to correct that the  then we couldn't do that we'd have to go on even if they were not here but if a question is whether vis is time for us to decide we have an issue that is very difficult and maybe we'll come up anyway because if you am on the question of whether vis was continuing because of a court below route rules against you that then the question you are raising now will be before us and it will be is i'm not i don't think that that's actually correct i think it should be under federal told us and the reason why in section two zero five has a provision in it that says that the plaintiff must serve must serve the defendants within six months  complaint in then under new york state law at the point of has the ability to serve at any time under the federal system he does not and so he there is no way that he can ensure that he meets  tolling and as it happened in this case there are two things that prevented him from doing so one was he couldn't get the he couldn't get it you couldn't get the decision from the administrative panel and the second was that the district court prevented him from serving because  just if we buy your argument that this that your client sufficiently is a pro se should be read to read continues  basis was wrong and we send it back and all this we get be treated again i fear that there's going to be some mischief at the district court and in states going to try to try to draw distinction between the different types of claims that he has