because the plainest is not exhaust their ministry to remedies and the record shows those remedies were avail nd the injunction rests on incorrect understanding of the th amendment requirements and increased application of the deliberate indifferen standard since the start of the pandemic defendants have gone above and beyond what the constitution requires to secure the safety of offenders and staff consistent with the restraints inherent in running a prison system that is the opposite of deliberate indifferen the injunction violates the p l r a because it is impressively overbroad and grants classified relief beyond what is necessary to remedy the plaintiff's injuries prior to class certification and the district court infections and nine employees with confirmed sections twelve offenders are hospitalized all off site there have been five deaths at the pac you know the court is also asked about all measures currently being undertaken to protect inmates i've got a lot of notes on this and will take some time to go through it i will do so in detail st as i just indicated every offender and every staff member has been tested or covert nineteen some of goes the symptoms of coping one teen instructions wash hands frequently the importance of wearing a mask the importance of maintaining separation from others there are twice weekly announcements in english and spanish medical co pays have been waived there are signs instructing inmates to wash hands frequently posted in the storm and in high traffic areas their educational poster is placed on dorm walls correctional officers talk to offenders and answer questions during town checks and daily rounds in each storm medical staff talk to offenders and answer questions or turn of the pack unit after a hospital stay for fourteen days in the education building self quarantining employees who test positive there's a precautionary lockdown in place and in places for the people hearing restricting and or movement interaction  action is medically isolating those who test positive as i just indicated there are temperature and well checks twice daily or my medical staff the offenders have unlimited access to hand soap and water clean handhelds are provided to each during the shift and additional gloves or cleaning supplies are available upon request or as determined by the past you know property officer who makes rounds during each shift to determine if additional materials are needed and of course as i mentioned a moment ago medical co pays  negative dorms thirteen through sixteen and cells in the restricted housing unit are used to medically isolate those who a pest it was the fall of hacking or vendors as i mentioned a moment ago have been hospitalized offsite at a local hospital or at hospital and the criteria for determining who has been in contact matches the recommendations we received an offender is to have been exposed if he has been in close contact for longer than fifteen minutes with someone who tested positive for cocaine one team now the precaution result for cocaine one theme was assigned of time of testing are considered to have been in contact with the offender who tested positive for this reason the norms placed on medical restriction when that positive test result was obtained and that's  contact with the with the infected person your honor is asking as of today yes your honor the most recent of formation i have available is from a letter that t c g filed in judge ellison's court asking individuals who have been tested but we don't yet have results from that test for our letter the t c g filed yes the i don't believe speaks to that issue and i don't have that information i don't believe it's in the record i'd like to begin this before so this is a little strange so i want to ask you about exhaustion which is what you're about to talk about there's there's been some discussion in the letters and in the briefing about an informal grievance that was allegedly filed a march t mr valentine no my question about that is why does it matter because as i understand all words talking about with respect to exhaustion is whether the grievance process is unavailable so nobody as i understand it is arguing that mr valentine or mr king exhaustive any grievance so is that right are all we really talking about here is whether the exhausting process sorry the griev process is of vailable under you know rosters versus play yes judge doc and i think that's accurate let me let me go into detail on that everyone agrees that the plaintiffs did not exhaust their ministry to remedy use of judge duncan you're exactly correct the question is whether those administrators remedies were unavailable now to the plaintiffs their the burden of showing that they were on available as justice sotomayor statement noted twice various on those various measures i don't understand the arguments that the grievance process is not available if what i'm looking at is the prisons response to a grievance i just don't understand how that can show it's not available i completely agree your honor the record shows that the grievances that they that they felt they were things they were asking quite quickly and that's the key to the district courts here the district court assume the pac unit wouldn't address the grievances until the middle of may now extra record evidence shows that that's not the case moreover information that's actually in the record shows that the items they asked for have been provided in the pac unit and were done so near days after those grievances were filed for example this is research you want to record down time want to quote lack of hand sanitation and cleaning supplies unquote same page in the record three hundred and sixty one dollars king fall agreements because quote classification continues to move offenders from other units to the pack unit during the coronavirus pandemic uncle and the record on appeal shows that those issues so let me let me ask you this in this case days but then you say he got a formal response i guess on april nd that i got a lot that's that's not in the record your honor but we do have information showing the best things ok let me just ask this question your honor the supreme court has said in cases like ross versus blake and wood for and all the cases in our brief that they have to complete the administrative process and if they do not get the relief that they're seeking then they can proceed to federal court with a federal lawsuit and the skip that step evidence to present was unwilling or unable to resolve those grievances and there is no information in the record showing that that is the case indeed the record evans shows the opposite that we were willing and were able to redress the items that they raised in their well you your honor the the information that the state has again stepping outside of the record shows that point of valentines in an informal request to somebody who is not a defendant in this case in the present had no notice of that going to ask my questions yes you're right on the th amendment when i'm having trouble understanding is is the nature of the complaint or the nature of the deliberate indifference finding in the district court's order is it about the policies or is it about the failure to implement the policy it's my understanding judge duncan is that the latter the plaintiffs are saying that even though we've implemented that even a chance i'll get policies they're not being implemented ok mark so that's my understanding as well so i want you to respond there's some very specific findings about failure to implement on specific things now you may you may have some more in mind but i'm thinking about gloves for janitors cleaning solution for janitors cleaning of cubicles and then a very vague and difficult to understand complaint about the response to the clerk death so tell me what's your response to basically you may have policies about these matters but you're not implementing them and that shows certain parts of those policies are not being executed perfectly what we're missing is the link between that failure to implement and these specific defendants remember they need to show that these two defendants subjectively intended to in isn't implementing its own policies no your honor i don't believe the expert does say that what the expert does is make recommendations as to what he thinks good policies were b and this brings me to another error in the district courts to unlimited hand soap and unlimited hand washing opportunities now against that backdrop any health as they're concerned about has been abated by the present and there's no need to provide hand sanitizer which presents two independent risks of its own record in particular he based his view on part on defendant supposed violations of an unrelated settlement agreements in unrelated case several years now that's a paraphrase on the record mr perkins where is that in the record that the east subjectively criminally reckless state of mind in this litigation and that is a plain error it shows the judge else to not confine himself to the record for court and under this court's on bond decision in d c versus abbott any reliance on unsound say that the pak unit is now taking some measures a number of measures that were ordered by the preliminary injunction is that right  recommendations and our best scientific knowledge that is constantly evolving by the day out josh young and some of the measures we're taking are consistent with some of the items that judge ellison ordered and i mean junction for example access to on the soap and any time our scientific knowledge changes any time the recommendations change such that we want to change our policy that's the real problem here and illustrate my point the c d c is recommendations on responding the spent to make are evolving in real time and we considered the primary transmission vector and yet if we were operating under this now obsolete primary injunction based on old science of old facts we would be wasting time and resources that could be more value billy used in protecting offenders in other ways if it's something is necessary to prevent the spread of the of the virus and we now have approximately two hundred dollars inmates in the back unit who tested positive for the bar in that mostly happened in the month the man so you're i don't know how it all happened just this one when you talk about your honor i haven't seen and i'm confused now did judge ellison order anything with respect to social distancing him out my point was that the th social distancing measures because he argues is you recognize that it is impossible in any correctional setting to judge race question the record i don't believe reflects the exact height of the cube walls and joshi was your point the state is actively engaged every day in finding new ways to continue going above and beyond the memes requirements and ensure that there is social distancing to the extent practical and possible in a prison and course that's why helling talks about when we're looking at the th amendment we have to injunction is impermissibly overbroad because the district court never consider whether less restrictive means were available that would only provide relief to these two specific claimants this report should look into whether there were measures that have been taken to redress  repeatedly told the court that they had allah sees that they were following based on the c d c guidelines and they repeatedly said that they were not being unreasonable and that they were not deliberately indifferent because they filed the c d c guidelines the unreported implementing its own policies i have read believe me all of existence is there anything beyond king in valentine that the that the packet is not implementing the policy i think those are the primary pieces of but that evidence was unreported the defendants had the opportunity to testify at the hearing they chose to the defendant's counsel had the opportunity to cross examine king and valentine on their testimony of what was not being done and they chose not to ok so with respect to a failure to give enough love to janitors the only testimony we have is mr king that's it that both of which are required by the c d c guidelines that they say they're following so picture is there any evidence whatsoever that the prison officials knew about a lapse in any of loves to janitors and did nothing to remedy it yes the picture itself would be the evidence the picture was attached to warden herrera's declaration and wharton herrera submitted that this was an accurate picture and the picture cleanly shows that the janitors are herrera in his declaration basically only said that they had policies one where chose to provide no evidence of how those policies were actually being implemented and as the warden it off comes up to him to ensure that the policies are being implemented certainly you would like to mention any any special policies that would relate to this back unit that it is primarily a place for all people in the record the only thing in bold d on the st page of the c d c guidelines says the guidance may need to be adapted based on individual facilities is a ghost based op you later and condition and record evidence is that there deliberate indifference on the part prison officials it is our burden and i think the fact findings below are very clear in showing the multiple examples of deliberate indifference for example just what we were just speaking about judge davis no adjustments to protect this particularly elderly and vulnerable population when they repeatedly said the evidence that they were not deliberately difference was that they were following the c d c guidelines and made no attempt to do what the c d c guidelines say which is to would just or this up elation tell me one adjustment that they failed to make that shows deliberate indifference well there are multiple the  adjustments mean one sure for example the social distancing that the c d c guidelines require there is unreported evidence that they have a dorm that was empty after empty with is that the evidence that is the evidence that is on rebut it yesterday that's is not the only evidence with respect to an alternative facility that the prison is allegedly not using mr king statement about whether it was air conditioned and so there is certainly space that they could use as the record was there was no attempt to potentially put in air conditioning or do anything else to make that space usable to promote social distance you know so you're talking about social distancing i am reading from judge ellison statement here that page one thousand and forty one of the record even the most ably run institutional setting would find it difficult to have social distancing as people went through the challenge even went to the pill line people use available restroom i don't think that was a serious point of dispute and it's not the fault of anybody in the act you know that's the judge himself saying that so how could there be deliberate indifference based on a failure to socially justice in a prison the what the defendant stated to the district court and said is the power unit was promoting social distancing and other times they said social distancing is being encouraged and the undisputed evidence was the prison did not require mr king or mr brown time to maintain six feet during group activities like being in halls meals showers recreation mr valentine testified at the hearing that in the hallways inmates were very crowded up to the gates less than a foot apart in the serving lines in showers about three feet apart so encouraging social distancing was actually not happening but more importantly this is a prison if there is any place where they could have followed the c d c guidelines for prisons which say not that you should promote it but you shouldn't or so increase between individuals and lines and waiting areas they did not enforce it minutely they didn't do that what does judge millicent's preliminary injunction provide with indifference they had a guide my and that said it should enforce it they had the ability to enforce it and they chose not to they chose to encourage it and then despite that suppose it encourage men you can rebut it testimony was prisoners were often one foot those complaints on april the nd now in light of that evidence how could i possibly find that the grievance procedure is not of bail within the meaning of ross versus play i see evidence of the process going on well let me make two points to that number one you do see evidence of process going on because the process is still going on right now in the step two process of the grievance procedure so while this grievance procedure was started and goes on mr valentine has been tested positive for kovan nineteen which is unlikely was not at the beginning so the grievance procedure has still not woun its way through the end it's ok example of what the supreme court was talking about and in ross which is a process which is a dead end since it is how can it be a dead end when a prisoner says i need hand sanitizer and within three weeks the prison says well look we have ample ample sult being reem provided and the c d c specifically says that hanson ties or is not required in the prison is responding to to the complaint i mean this is not a this is not a well sorry there's just no way that you can that you can get any response whatsoever there he's getting a response he's not getting the response he wants but that's not the that's not the test i just i just don't understand how this fits in any of the categories of on availability and loss as to this  dead end in the facts of this particular case and the more stark evidence of irreparable injury then the fact that while the grievance process still goes on over one hundred and sixty inmates and staff of tested as if i think i've heard a one hundred and ninety this morning and a balance on what i get from that answer is this let's see if you agree when there is covered in a prison there is no requirement for administrative readings period you just follow us and no that's not what i mean saying once in a generation situation like this where allegedly there were no inmates who were positive when this was started and the district court tried to implement a narrowly tailored injunction that at this point the grievance process has still not address and judge duncan one of the points you said is that it was responded to they said well the soap and there's cleaning supplies it was under it but had testimony at the complete cleaning supplies are not being provided there's a minimal amount being provided it is not in accordance with the guidelines or in accordance with the c prison there is no grievance process i think if there was a grievance process that was tailored to function to something like this to a pandemic then the answer would be no that there you could have a grievance process this grievance process is not tailored and it's not functional to respond to the covert nineteen process so it's only really rather that it was  has to respond or if any other or any other special provision for emergency or even you know there are no such provisions that i'm aware of judge davis and the evidence before the district court i will point you to record at three hundred and thirty one what the court was told was that their deadline to respond into the step one was may th in less they seek an extension as permitted by the offender grievance so the record evidence is that the a response from the prison with respect to the step one grievance that is a response to the step one grievance that is was much quicker than the deadlines or just the you know out of bounds this is a response with them twenty dollars days yes but it's my understanding there's still no response to the step to grievance and that process goes on and so in fact the remedies would not even be exhausted today could not even be having this discussion day and it been a requirement to to exhaust the existing grievance process remedies ordered relief in the form of steps the state should take to warrant the spread of infection in lot of the evidence that evidence that would before him now we have almost two hundred dollars infections and w circumstances that now exist in the year that judge davis i would say there needs to be much more done and we are in the process of examining that however the injunction that was in place is just yesterday that we got a listing of what additional steps they're taking we haven't had any chance to look into how they're implementing that so i can't really comment on that yet i would assume that there were should be additional steps and we need to evaluate what they're doing what we found in the case maloney just to ask you want to think i'm going to ask you by monday to consider what additional steps you would ask the district court to take if you had th you just you have and you have the car collateral monday we will do that thank you to us or you haven't asked us for that you haven't asked us to do that i'm responding to judge davis and you know that but you haven't asked us to do that no we have not asked the court to do that at this time why don't you have an opportunity of a trial on a permanent injunction to reduce additional evidence  you know propose whatever you want that is true but the trial is still two months away and this infection could spread even more rapidly if steps aren't tak available in this case it is spread rapidly the evidence has shown that without the preventative measures allowing the president to go forward with their haphazard and often not following their own policies procedures of preventive have not worked the grievance process goes on while people have become infected and the deliberate indifference i think there was more than adequate fact shepherd case which we talk about you know our brief in which they have never responded to anything memon does not require us to be successful in a limited ating or diminishing yes it just says that we cannot disregard medical monitoring waving co pays living meals medications all of the extensive education mr hawkins i know that we have lots in the record about the number of times that the prison has updated its policies where can i find the most recent sort of compendium of the policies that are actually in place right now in the prison where where is that in the letters and briefs and everything judge duncan i think the best source i would refer your honor to is the letter that t v c j filed yesterday with judge ellison in district court in so i believe about twenty pages maybe more and it documents not only the material that correctional facility but i want to stress your honor that we are now requiring mask usage and have been for some time and that negates the need for social distancing when every offender and every staff member is required to wear a mask except when they are lying primary injunction hearing said that he thought that there was on used base available there's nothing linking that to defendants collier and herrera that does not show wanton criminal recklessness there are parts of the pack units that are under construction to make them compliant with wheelchair accessability and as a result of that there are some parts due to construction that are not how to bowl at all times that doesn't show that herrera and collier have been literally different  protect the other prisoners are in contact with well your honor the the kill requires a district court to ask that exact question to ask how can we prior to class or of asian protect only anywhere in the record where the experts said that providing mass was a was a reliable substitute for social distancing if you can if you can or made of something i'd like to see if you're out of the c d c itself recognizes that that masks are an important part of born part of responding to the pandemic and there's recognition in this court's case law that that in the prison environment officials are subjected to the constraints of running a prison and than when i ask you are there anything in the record the say that my ass substitute in my gun necessary socialist to think in the record on appeal as it appeared on april th i i don't know