opportunity to refile that's correct ok what was actually done at the on the sensitive filing and i'm unclear as to well i mean there's there seems to be a major dispute then in the circumstances ross provides when you mention intimidation that has so on a different meanings because he did file number proceedings even after all of this and they were considered so he wasn't is the requirement of subjective i deterrence it we actually take will position on whether there's a requirement for subjective or objective because i think it's important to note that i referenced this is the retaliation complaint yes as we were previously if i understand you hadn't quickly what we've been discussing for the last twelve minutes or so was the first in retaliation complaint that was the sensitive complaint  available suggesting that the reasoning that follows is explaining why this is not available but we now have a roster that identifies three eastercon stances and identifies only three can be excluded or excuse from not properly exhausting i believe that can grow together he and provide sort of a different way to properly exhaust and you mentioned it we should consider this exhaustion because it was in fact  procedural default believe the circumstance that i was just considering is whether is if we had the same response but it did not directly mention the additional allegations it was a and we heard based denial of the entire grievance without then impermissibly includes in the appeal to the region an additional assault on february second that based on his complaint was the result of retaliation by a staff member with some sort of anim in all of the result the actions of assault by other prisoners may be the same the because they were the result of different activities by employees of the bureau prisons but those two issues are actually distinct and separate concludes i'm requesting institution stop forcing me to sell with another person regardless of our compatibility credit isn't that right mr romano in his declaration says that this is raising the same issue as was raised decided limits camp to two it's a very factual specific situation i'm sorry can i has exactly what was before the northeast regional director  it's clear that the that the improper selling her improper procedure screening was before them correct correct and it's clear that the assault with the initial snowing in may was was the retaliation claim i don't know which of the last two if any were before the northeast region i mean they were raised before the northeast region but what was done the o by him in that appeal to the northeast region all right and you say possibly because it might be included as part of the whole course of conduct for you or is it your position that it's an independent letter and should have been started should have been raised at the lowest level it's an independent matter that should been raised at the lowest level and the rate and the same with respect to the retaliation that's correct  himself in so the allegation arises for the first time in the complaint that he was a sort of for the three week period after february second in the second century in the second talking about the sense of filing there's no real evidence in the record as to what was contained in back i think we're talking we're talking about the the assault claim that's raised in these federal complaint and whether that exhausted that the institution stop forcing him to sell with a person regardless of compatibility how does that not raise an argument as to a claim of assault by the second something as a very good that set of factual regulations governing in the grievances he handed the waiver if any of such regulations by prison officials we also concluded in school that we are one of his claims had not been released but was an address on that it's properly exhausted and poor at purposes of federal court yes but that would be the position based on the state precedent currently and that showed the government is not is not taking the position assault the first assault that's occurred that was presented at every level to the to the your presence was exhausted was exhausted but i believe that allegation was also part of a prior civil case a civil action the crux of his allegation referring to that first time assault i believe was to bolster his claim that he shouldn't be forced to sell within meets despite the screening process by the bureau of prisons i believe he says factual recitation as to why he shouldn't be forced to so  with the people that he's claiming and were intended to him with they necessarily know they wouldn't be in the decision making process what would they know that i'm trying just trying to figure out the process that person would be i don't believe that's in the record and i don't want to speculate on that but the allegation or as i understand the argument over normally is that he would have been intimidated if you went to the his mental state specifically there was no final by the district court as to whether or not he felt deterred it was the determination based on his firing history of us make that determination the first instance i don't believe the court needs to make a determination as to enquire whether it be by testimony or some sort of other affidavit that he would file because assuming that he would assert i felt deterred take that as as what he would say and he would say that is a subjective state of mind the record would allow that that assertion by him because of the numerous amounts of filing such a made including one challenging m request what is there for the need to correct what defect is there for the need to correct and restate that the fact that in and for all the directions to go back to the institutional level and give them the institution an opportunity to sensitive request so where does the defect for him to correct their right why why isn't it proper exhaustion under five forty two seventeen c who did simply appeal to the general council as that section says of the regulations for the inmates to follow them not based on the subject subjective determinations by the needs as to what process they should follow otherwise means there is nothing in the record that says that he was specifically directive we don't have any correspondence to support it but that the general practice for the koreans in the in me was directed to then refile the institutional where is there the institutional level when that code comes up and says that's not saying that discovery would be helpful i don't think discovery is necessary due to the procedural rejection of  resolved only on the regulations and details of the regulations and the and you talked about the codes that were need then to go to the institutional level that taking an appeal to the general counsel would exhaust in these sensitive knowledge and history of the inmates as to what the compatibility between those inmates are and what the risk is to the enemy and determine whether or not based on the resources and availability of housing whether it's still program to watch them together keep them manipulate housing assignments for various reasons so based solely on the allegation of she threatened to kill me i think there's a far larger consideration for been for the agency to determine appropriate hours in the end than just that statement that's even maybe enough in itself to cause the first take some action with regard to housing out why shouldn't we allow and then that is is it the government's position that there is some crazy just to the government in allowing that amendment and if so what the  premise for our interview subpoena was that we had a final order because he was resting on this complaint despite the opportunity to amend and was asking us to revisit that question and if so does that call our jurisdiction over this