marriage serve three minutes and i pine for a bottle you certainly may would be below in the district court when the summary judgment motion remain pending what what was what in the law the case at all that could could be zero one the reason why legally he wasn't permitted to bring it there's if you if you spend if you just take a couple moments reading through eight o one you'll see that there's no opportunity for a prisoner to what what makes you believe that in the context of a big grieving that you can't talk about the things you want to talk about here  legitimately subjected to retaliation and that because conduct charges could be ob accurate and still be issued as pretax as potential retaliation could authorize damages to a prisoner for example i'm the opposite is true that i mean the regulations know how to write this it up for poor example it you know there's there's paxon any regulation that contemplate necessarily authorize the hearing examiner to dismiss the misconduct charge it for example be the if for example the hearing banner found the kind of charge to be accurate for example let's say in things could happen at the same time and then why shouldn't both those parties suffer some consequence the inmate who actually didn't gain the st a consequence and guard who  s being retaliatory get called out for it is there something off about that something that you think makes it unlawful or make did the administration really not available  regularly but doesn't change that the employer's action would be retaliates him and i think that that's what's going on here is that let's say that in a misconduct proceeding a prisoner actually did what  lead to misconduct charge but the misconduct charges pre packed to discriminate on the basis of protected status or protected conduct it's unclear to me that i'm hearing examiner would have a to dismiss the charge yeah i got your argument maybe you did this for public limits understanding of employment law but i thought employers could fire somebody who didn't show up to work and that even if there was somebody that decision tree you may please the court my name is shawn kirkpatrick and i'm with the pennsylvania opposite attorney general and i'm here on behalf of the sermon bat and we agree that the dispute in this case has narrowed and we agreed that remained is appropriate because it has been a fact think that and that the only question in our mind left is whether the court should beit eight to allow for limited discovery in the district court to hold a small be candid hearing or reverse the order preclude any hearing or development of the record on the exhaustion issue and i i believe my my friend on the other side overlooks the possibility of a small be camping hearing such that the district court can resolve a dispute a fact regarding exhaustion without having it need to go to a jury that's what we're asking here we recognize that partly because of allegations  and partially because of a change in the law post feel that there are facts factual disputes that need to be resolved and all we're asking for is that this court vacate re mand and allow the district court to end the party develop a more and more fully developed record and i think that that's important expression in this context because what i it appears my friend is asking for is the per se universal rule that's going to be broadly  applied and i think my advice would be that this court followed the same path it did in small b camden which again had a situation where there was a dispute about whether exhaustion was inadequate fact record is that it's going to have obviously a lot broader implications and i want to get to is there a question here with respect to pretty accurate in that how he described they don't want to made war and that you know for is the general life grievance procedure and it is explicitly not for misconduct so even if they happen to be t we disagree with my friend on the other side on not the language but the lack of focus on the fact that it had to be directly directly related to a misconduct charge and the reason it is not directly related to misconduct charge is because this charge is actually not important to the st amendment claim and here's that if somebody says i've got a st amendment right then they're supposed to know that with available they don't work because then it's not directly related to him her to an inmate supposed to look down and think ok now this is available to yes your honor because it happens all the time refer to this court to fortune v bittner where now it's an unpublished case but they are not presenting it for its holding and presenting it for it's fact pattern in which an inmate professed confusion that he could grieve incidents related to a misconduct through a to four but the court found that out of a lie because he filed two other grievances about the incident in the misconduct in they'd recognize that you can grieve every calley ation regardless of what that retaliatory conduct is through eight o four because it is separated from whether you are guilty of the actual misconduct charge now if there is confusion in this regard then the u s supreme court in rod speed blake said that the inmate needs to err on the side of exhaustion if they're simply rejecting the whole cloth then we agreed that it is not available but that is not what that is not how the policy was drafted that is not how the policy is being interpreted by the institution not what you think that's not how it's being drafted look i mean directly related on a charge than disputing this august charge well your honor respectfully it's not the charge so much as the misconduct so if this charge were replaced with any other  charge because the accusation is that it's being fabricated instead of refusing an order is replaced with attempt to escape or swearing out an opposite or fighting with another inmate or any other fabricated charge it doesn't change the the misconduct under ada one there they serve two fundamentally different purposes to the equivalent of a civil court and a criminal court and just like you can't collaterally attack the criminal conviction in a civil court you can't use this context but take the misconduct out say that the n may have protected activity the guard retaliates and does it by not letting them go to a shower but no misconduct is ever issue well one would never be triggered so of course the inmate can grieve that through waiting for so that's why it sort of trying to have it both ways that it's directly related to the charge for purposes go for but it's not directly related to the charge such that the inmate can bring it up as the grounds for why the misconduct was off and he is innocent of the conduct through ada wine and i'll note that if the court directions attention to jay one of seven which in his appeal to the facility manager about misconduct raided the issue of retaliation so yeah i'm a little worried about your trying to have it both ways argument because as it's written it certainly looks like any prisoner who tried to bring that sort of retaliation claim that you're describing  said that let me make sure i understand the factual dispute within play here the weather the p r c it is that the bit that we're not can you repeat that what is what the factual is how the institutions are applying a go for in this context i think it would benefit everyone to have a more complete record to see how inmates and the institutions are interpret a factual dispute we're just beat up a legal dispute which is the round the regulation the wording of the regulation if you're going to follow the wording of the regulation or you're not and that's a legal question a factual question you get what i'm trying to ask i do your honor and and that is a legal question i completely agree with you and if this court make that determination yeah and you know that that how we're going to have to live with that moving forward  i guess i simply two points on that one is i would caution based on and sort of in adequate record it might not be the best vehicle to do to do that if the court were so inclined but number two would be i guess the factual dispute in my case was sort of the assumption that the court was going to read eighty for the way we were reading it and even if it did unfortunately for me there still with a factual dispute as to whether if he was being it was available because he was being portrayed so i guess what if the court doesn't agree with me on on the legal aspect to then it hearing examiners can dismiss a game of conduct if it's fabricated yes my answer is yes then i just want to make sure that's clear they can absolutely dismiss a misconduct if it's fabricated and  in that contact and again the record is is not exactly complete on this and that's why it would it would be helpful to the remand and vacate if that happens if a hearing them are determined  that a guard is fabricating that conduct there will be an investigation so the there is a broader remedy than simply you're guilty or not guilty thank you your honor ok thanks that administrative really that was available to him and now the case would proceed on its merits my understanding is that many many are corrections officers perhaps that would be the next thing that mr grinstein will see if he was able to survive that there might be a limited discovery period it could be an evidentiary hearing early in the case and and that that's where it the case under advi