good morning mate please the court my name is valued cool i represent the plaintiff appellant mr middlebrooks the district court here err in two different ways in dismissing mr middlebrooks his claims st it failed to view mr middle brooks is claims as a aggregate of an accumulation of events that cause a single a single constitutional harm to which the continuing violations doctrine applied and secondly it failed to he's it's over three years well it would be over three years but two points on that your honor one is that the government has conceded multiple times half a dozen or more times that in fact it is the november nd two thousand and twelve letter that he got can see there when this summary judgment that's the basis of this appeal happened in that they argued they consider earlier in the case but then when he took his deposition and he admitted that he received that letter then they were able to use that they had no evidence prior to his deposition that he actually received that whether he so you're saying they can't if they take his deposition he tells them i got the letter they can't then argue that that should be the property  one your honor i don't think is his testimony concedes that he got that letter in april and secondly the district court even found that that can section concession could be binding on the government in this joe chisholm to make the inscription after received the notification of the april th april th two thousand and twelve letter and then i'm not trying to split hairs here mr middlebrooks his testimony was that he learned about the april two thousand twelve letter in the november nd two thousand and twelve letter the sequence of events goes like this february th he is denied his rd grievance february th within seven days he files an appeal  explaining the sequence of events and what he's explaining is he did not receive any response to his february th appeal on october th two thousand and twelve he sends another letter asking about the status of his he gets a letter from the government on november nd two thousand and twelve saying your appeal was denied back in april it is then that he goes to joe chisholm and says can you confirm that i filed this gets mr ch sheet is that what you're saying well that is what mr let's the evidence in the record the other thing i would point out your honor is that there the government has been unable to produce this april two thousand and twelve letter and district court found that significant here and they sent this letter they would have been able to produce it the other piece of it too is that there is no date stamp of his appeal under the docks regs when there is an appeal the facility is required to date stamp it it seems to me that if this is april th letter actually existed and the appeal was late there would be an april letter in the record from the government as well as a date stamp let me ask you i know you say we should look at this issue because in this report to lie on a point and correct me from wrong i think it's undisputed that there was nothing physically preventing your client even when he was not allowed to receive the special meal in his cell from going to the mess hall and getting that meal himself i mean i read multiple portions of the position i think he conceded that he had nothing physically preventing him from getting the food that's correct but that's not his argument or a hold on ok the nd point is he knew that when they didn't give him the food in the cell that it was available to him in the mass it's not like he thought there's no food for me he knew if you just walked down the mess hall he could get it right what he says testimony is he knew from the paperwork but when but his that he knew that from the paperwork not at the time but i think the more important part of his testimony is he denies that he could simply walk down to the mess old mess hall to get fed and i'm referring here to page four hundred and twenty dollars of the record mr middlebrooks is asked during his deposition and the deposition is somewhat messy cause there's lots of times where he is interrupted and pages are necessarily in sequence and if i may just complete this point he has asked and from september two thousand and eleven you know that it meaning the meal is available in the mess hall and his response is that's not true because you could only get it one way meaning that if there was a feed in cell water in place and his meals were supposed to be delivered to his cell he did not have an alternate because he missed over thirty meals over a six month period including a period of time where he missed twenty two dollars meals over a period of eighteen days it's not that he couldn't get the meals that they were not available to him and when they w it's a matter of fact one of the other pages four hundred and thirty he was there so you understood as of january th two thousand and twelve that your therapeutic diet was being brought back to see mess hall right he answers yes and nothing in the us about that he understood that he says he read the letter in august when they told him he was going to get in his cell so at every point in this case i understand he thinks it's bogus and that it's not proper but at every point he understood where that meal was if he wanted it but it's busy i think there's a disputed fact his position is that that is in effect that he was subject to the order and when the defendants preclude the the prison personnel from bringing it to assess how it's the only way he can get it  and again i refer iran to page four hundred and twenty where he does make that dispute it's a question of fact i'm not arguing that dispositive but he is arguing that once he's in the feed in cell process that he doesn't have that i want to i read it the exact opposite when he's  you understand that you could get in the mess hall he says yes i could have but i didn't need to so his position was yeah i was in the mess hall but i was supposed to get in my cell he didn't say no i can go down to the mess hall they told me i couldn't go so you're citing a page where he says the on i think if you go down further on the page at the bottom you'll see where he says that song true you could only get it one way what does that mean i mean he could only get his meals one way so when he was ordered to get it in his cell and the defendant that meal from coming to his cell he doesn't have the option of going to the mess hall it is a disputed question of fact on that record thank you good morning your honors jennifer clark behalf of us this court to affirm the district court's decision granting summary judgment to defendants in our brief we provided a number of reasons to affirm and i will jump  st the merits and at the very least the question of qualified immunity here it seems undisputed on the record that there is no excessive risk to the plaintiff's health and safety because he had no medical infirmity that a point where he was taken off of the therapeutic diet that's at issue in this case what's so there's the therapeutic diet question and then there's the question about how he receives those therapeutic meals and so the only thing that's at issue in this case is the delivery of meals to his cell verses picking up meals in the mess hall i do not understand plaintiffs to be raising an issue with regards to i was given a non therapeutic diet at some point when i should have repeatedly in his deposition and elsewhere which is i wanted to receive my meals and in my cell so it's where he is getting the food that's at issue in this case it's simply just doesn't present the issue of what food that is  about whether when you didn't get it is whether it was available to him and that's what your response your honor i simply don't agree that the record supports that at all to the extent that you can read the testimony that my opponent citing as mr middlebrooks in fact making that assertion it's completely a it's based on nothing he never attempted to go down to the mess hall to receive his food as he states in his deposition and everything else so he doesn't know that and everything else in the record makes clear that he could have received it at the mess hall there is a forty one dollars in fact in his grievance one of his grievances he himself says i was told my food was down to i was told to go down to the mess hall to get my food so he says that himself in a grievance he testified repeatedly at his deposition at eight hundred and forty one extension zero that he was told he could have gone down to the mess hall and that he understood the multiple responses to his grievances each of which told him that he could receive his food in the mess hall there's a declaration on the record in which one of the defendant says i told him to go to the mess hall and get his food that's it a three  letter in the deposition in the the the page that we discussed earlier which i believe is four hundred and thirty eight it seems quite clear that he repeatedly agrees that he didn't fact received that letter but that's not the only and he had obviously opportunity at that point to say i never got that letter when he files objections which he does file object to the are in are the rd one that comes after that deposition testimony the magistrate judge puts in his report and recommendation that he received the april th letter and he does not object to that he doesn't say that he didn't receive the april th letter in his objection and in fact there were three rounds of summary judgment in this case in the nd round of summary judgment this issue had come up as well plaintiffs puts in objections at that point and he says himself i received the april letter and in response to that i sent in october  i don't have his quote here but he says that he wrote his october th two thousand and twelve letter in response to the april two thousand and twelve letter and again that's district court docket number entry number thirty six and your honour's  putting aside the questions of of exhaustion and timeliness if the court has any questions i will address those at the very least here it seems quite clear that that there is no case that would have clearly established to the defendants that that inmate who had no medical necessity for food to come to his cell could have possibly they could have possibly been violating the constitution not bringing food to a cell particularly after a feed in cell order had in fact been rescinded  the record makes quite clear that that document is is not a forgery that is nothing more than his conclusory allegation to the contrary but if you compare the version of the document that he submitted to the version that defendant submitted the identical in every respect except for that the doctor stamp did not make it all the way down to the th carbon copy otherwise the curlicues on the signature everything is is precisely the same so there's simply no dispute that that's an actual document on the nd grievance to establish exhaustion and then looking to the continuing violations doctrine the last action further and would relate to the rd grievance  in doesn't make a lot of sense to me that you could mix and match to achieve exhaustion could you address that point for me yes your honor to the extent that that is the argument that he's making that he would be attempting to sort of loop in the rd grievance process yes that he did not exhaust into the nd grievance which is the only one of the three that he did fully exhaust that's that simply runs contrary to for example the supreme court's decision in ross that made quite clear that there are an extremely limited number of exceptions to the exhaustion doctrine that it's mandatory that in every circumstance with those exceptions to the side that meet exhaust and exhaust properly and the simply no support for his i understand the argument correctly and i'm sure i'll get a reply on rebuttal but if i'm understanding it correctly assuming the continuing violation doctrine would apply here for the moment it would mean that you think that if to the extent that is there been a case where this is this is worked as a basis for exhaustion i'm not aware of any case now and it seems quite clear that subsequent to ross it could not so so i do not think that's a supportable theory my apologies i should ask you the st time around that's ok so the continuing violations doctrine i think the court here made the mistake when it carved up the six month period to three separate segments this is a repeated course of conduct it's like sexual harassment it's like the morgan case where the supreme court said hostile work environment you measure from the date of the last and that it sweeps in all other acts that is the basis of the continuing violations doctrine  the exhaustion in this court's decision in johnson says you have to exhaust and if you've previously exhausted then you don't have to exhaust again and so i understand the court's concern about it having exhausted many years ago but that might be so disconnected that there would be no continuing violations doctrine in other words the prior events may be so far removed in time or circumstance that that if he has an exhausted this particular event but that's not what happened here he's talking about the