holmes how do you how do you pronounce your name vinci ok they come forward with an oral motion that says that's what i'm talking about right here is this through into a new gesture that says that well this isn't correct because it's not the right party well the problem  is the corrections officers are training handbook actually states that the correctional officer is the first line of the medical team and other words there's an image in a cell his contact with medical is through the corrections officer out i don't know how many officers listed as defendants the point is that any or all would have been equally appropriate because of whoever came in contact with this man while he was in the cell and while he was in a fevered and really debilitated state that is a person who should have brought that matter to the attention of medical now when it was back to the attention of medical is another issue that i thought your first argument was that there was a waiver here that they had waived i think they did or they had waived the defense of exhaustion which they then changed and came in at the hearing to had brought it up timely to question the issue that there was not the proper identification of the guard here the defendant would would that have been acceptable you're saying even on the merits somehow that was a correct i thoughts drew would have helped them well smoove probably does but i think that as an agent of the medical team basically th or otherwise no ok raptures but otherwise no to the first point and yes to the second because the greve the corrections officer is part of the medical team according to the corrections officers training manual because he's the sort of the our eyes of the medical team and so in that way it would be appropriate to name him or actually the grievance procedure only requires him to say who has what you're talking about the maricopa portion of a correction the medical i think all right but would have to be something like delay have treatment ok but when you don't know where the delay occurred we don't know we actually at this point in time well and that he was to live and the reason why he wasn't timely careful was a deliberate indifference of the corrections officer who has a duty to recognize and he's trained in recognizing symptoms of illness and to report that to medical and what we don't know right now whether medical was informed on by state anyway if that was such a portal portal part of your grievance why wasn't the officer some time and yet when was the officer finally named in amended complaint and how soon thereafter was the matter complaint filed i'm not sure but it was  early it was certainly before any meritorious discovery had taken place there were in their depositions done before this there was nothing done on the merits yet it would have been then that would have been a timely objection that it has to that it needs to you need to say who's going to know about this who should we talk to about this because of purposes for the error whatever's going wrong to be taken care of in ass and so the grievance procedure here that it was the corrections officer who should have reported to medical exactly but i didn't say anything about i mean to me mr tripp a great my client had no idea that this corrections officer wasn't reporting it to medical medical as far as he wanted something about corrections he didn't say anything about corrections officers right no he will i believe that he thought that the corrections officer was saying the medical this man's got a problem a medical didn't show up until much later to the after he had red stripes running up his leg and was really near death and on that on the date that well they're i'm not sure even because we don't have any information from them they knew of it on the seventh of august you know for the medical people became aware of it that's what they're saying but there were several days before that where they did the inmate was really having a problem wasn't coming out for meals wasn't coming out for exercise was clearly ill now and being in that state state i think we make an argument for the fact that i don't know who's hurting me but i think it's medical because i'm sick and basically you know we're dealing with pro se petition players from coming in with nonsense and that is just not the case here what happens here is that this isn't an affirmative defense of exhaustion it should have been played before there was any fact finding any tauriel discovery and it wasn't at bae and then when the judge actually says that you know he's going to take this up and he's going to make a decision he has a year in a general way but they didn't say what it was what was because we have a document that says this grievances is finished you know there it's the final document saying denial of by the d o have it i have to admit that i read actually let me help you out you should not think you should you should have said that when i prefer to vacation right to deny that and i want you to know he knew that he told the corrections officer about his problem he didn't know whether or not it was a miracle ring was incoming for i'm not going to discuss the leading case  please the court many research because the murder may please the court my name is jim holmes let's assume for the moment that clearly had this been brought up timely there would have been a major problem with the identification of the officer here that i think there's much doubt about that the problem you have is procedural you've got at the time the trial was se summary judgment before it's been denied you filed a summary judgment on the tenth with respect to exhaustion then you get to the seventeenth and you say forget the exhaustion we got a new theory he did not benefit the  what kind of notice is that given on the seventeenth well with all due respect your honor i believe you are mistaken about me making a third motion and i believe also i'm just i'm saying in effect oh you know you can change gears you have it different theory for your summary judgment motion i'm sorry hypothetically if that were  no hypothetical what did you do on the seventeenth and what is your argument that you made in the summary judgment motion on tap on the tenth i said no issue had been made to final review so that exhausted that you hadn't exhausted the grievance proceedings correct and on the seventeenth you then it's as i call it switching gears to what was your rationale for why summary judgment should be entered in your favor is the same rationale the only thing i did differently the seven austin they had exhausted correct i thought you said on the that you didn't state that particular reason in your summary judgment motion on the tenth that you i believe i did not promise i maybe not the particular reason what i had said was i provided the court with all the grievance information that was available and your last day according to the court for filing the motions of the sky was what march three of zero eight i believe you are correct yes and that was entered in august of zero seven what was it that order was entered august of zero seven you got anything you want to bring we force you better file by march three correct yes or and you waited till if you don't make them timely i made the argument timely i raised the issue at the very first instance i raised in the answer i'm trying to but you never made a motion that followed up on that did you i never made a motion filed with that no you my understanding of the holding is that it's still the prison regulations that provide a yardstick for whether someone has exhausted or not it was in that ruling in school i believe so yes  you're saying exhaustion cannot be weighed i'm saying it's not brought up and emotion that you've had what six seven months notice you should bring up some type of motion and you didn't do it and you wait till eight months after the deadline to bring it up in sort of a way saying that wasn't exhaustion and then the seventeenth the reason that there was an exhaustion is change from the reason you gave in your motion on the tenth i kind of what kind of due process is that i honestly do not agree with that interpretation of what facts say on the tenth in your motion in the in the tenth in the motion i said that failure to exhaust failure to exhaust because he did not bring and any issue that he raised in his complaint to final review that is the exact same argument i made at the hearing for the motion for summary just say in the motion on the ten specifically because he failed to identify a corrections officer no there's no game set match no sir it's not if it if the shoe was on the other foot and a prison didn't do this you would say that the prisoner had waived would you not if i said no i would not because we can follow a motion that with remember you supposed to file it within ten days and if you don't file it within ten days then you need under six role six to get a court to say ok you know there's excusable neglect at the very least you have to have a finding of excuse will neglect in order to file the motion on november tenth you don't get that i believe im i did i implicitly but the court has to give reasons and there are any reasons given by the court on the record as to why you acted with excusable neglect when you filed your motion on the venture down with excusable neglect now but the court reason that it was an issue that was better decided by the court when the jury was an issue of law but you have before you get there you have to go through the pioneer factors the court didn't go through that you did did you know that you were within the ten day period when you file this on november tenth remember the trial set for the seventeenth yes sir i had noticed that the trial was set for the seventeenth of october twenty seventh so i had twenty days between when i had notice of the actual try member seven and you didn't i'm so i want you could have if you were allowed the file something post march three you could followed it by november seventh if you want to go over twenty seven you had ten days actually eleven days and you didn't file it correct i could have found something yesterday on it but during that time i'm responding to the new discovery requests of the appellant i'm trying to set up depositions at institutions for the appellant so he can depose witnesses for his case i'm trying to get a medical expert on my own to rebut your dear medical merits for the hearing on the seventeenth for trial it's under spewed that he did not exhaust his administrative remed that he went through the process he just didn't identify the officer but then maybe i misspoke it's under speedy that he did not exhaust his administrative random remedies properly if you mean this this issue being presented and this call clay why did the standard of review when that district court made that decision to hear the issue in the of used when you don't get a finding of excusable neglect none of the factors in the pint six piner factors were even considered you didn't even ask did you even know that you were within the ten days and that you had to have it there once you had to file a motion before ten to november seventh as to whether you could file i know i did not i inquired have you said this crash we have to determine if the district court abused its discretion in deciding to hear this issue in facility and such administrative remedies are available as as are available are exhausted and reviewing abuse of discretion discretion what factors to look at we look at a prejudice to the petitioner i believe you would you would say yes your honor i did read a case in which you looked at it was all of the blame it's an on unreported penny not asking what i am asking as a general rule and reviewing abus district court and terminating whether or not it will consider a motion what are the factors we consider and i threw out maybe a little softball to well i'm sorry your honor if i may it was actually a pretty big so  thank you your honor if i may her all right thank you then this is an abuse of discretion only occurs when the district court acts in a fashion clearly contrary to reason and not justified by the evidence none of judge computer acts were contrary to reason he was trying to prevent a frivolous case from continuing if i may humbly submit this is an epitome of a frivolous it might be you might win on the merits you were preparing for the merits and all of a sudden something sort of went into your head a week before you now say was actually in your head twenty days before but you declined the file i mean what kind of notice is that given to the to the  your opposing side that this is this is the way you're going to proceed in making an argument and where are the where the preconditions you need to do that where is the file finding by the court that there was inexcusable neglect  within ten days assuming the court was going to allow you to follow after marjorie which implicitly may i begin with what i believe to be the first part of that question your right it if you look at the history of this case there is absolutely no ever work at the institution so the district court said ok department corrections please tell him who was there and when did they work so we provided him with that information we gave him a menu here's who worked in his debates they worked despite having regeneration i would say would go to equable factors was there any prejudice towards the client what else if the client have notice of the argument not not timely he certainly had notice of of it being an issue it was raised at the very first possible moment no notice with that this statute or the rule is that he supposed to get ten days notice also you've got a scheduling order i mean what's the point of hearing you went through the six by your factors that you mentioned pioneer no sir i did not i assume the court was aware of the prison let it be very much so your honor and it's it's instructions decided that you were too late or that he would not amend implicitly the pretrial ruling or that he would not hear and the district court turman that  there was no exhaustion because there was no naming of any correctional officer and that this was a factor going to the merits of the action and  any person not every person who may have information that could be helpful resolving the grievance that's a requirement of the agreement any person not every person also wen stop you from presenting this case no but what i mean is that their prejudice to us is that we put out extreme amount of time effort money in having this case for trial we were about to pick a jury and all of a sudden there's this motion that the judge picks up and and decides he is going to decide even though he doesn't put on the record anything about excusable neglect or good cause or any of the reasons that would make it necessary for there to be such a way filing and if there is nothing in the rules of procedure that would permit this with al the judge finding that there is some good cause been a decision on some late judgment the same issue could've been presented at trial which as a matter of law would be a decision by the judge and not the judgment motion before the trial and abuse of discretion because it's the act itself says it we have to bring we have to deal with the exhaustion issue before we bring suit before suit is brought before we go through all the time effort and money to prepare this case for trial before we went to court a judge for you to prepare and this appeal you have to prove that this wasn't the use of discretion i think it was an abuse of discretion because of the fact that to bring has already been decided in this circuit i think in rank that it means before we start any meritorious discovery to bring this this issue up to to bring up this affirmative defense it has to be brought up before there are meritorious discovery matters happening now this defense was pleaded in the answer and if it had not been brought up on summary judgment would it not be a matter of law to be brought up during the trial i think it would be a matter of fact to figure out whether or not it is a c e o an agent of the of the medical team you would be a matter of fact to determine whether notice had been given to the prison as required by the p r a of the guards involved and the judge then would have made the decision during the trial instead of before the trial that there had been no such identification in the complaint and wouldn't that have after you had even more effort and time into it so were you in effect say the present prejudice of that extra effort and expense by having the decision made before the cryo instead of during the trial that's negligible in my opinion but to be precise that the issue is that he's not required to please all the