it was number eighteen one three five two john doe eight through two verses rick snyder and others arguments not to exceed fifteen minutes per side missler bell in behalf of the plaintiff said like to reserve three minutes bottom line as the court knows this is a question of whether you who filed a complaint for sexual abuse by both custodial staff and adult prisoners while housed in adult prisons in michigan exhausted their administrative procedures prior to filing their complaint in this manner the point of the p l r exhaustion requirement is fairly simple it's to provide notice to the agency and give them an affair opportunity to address a grievance on the merits and provide notice to correct the errors before they end up in court they  notice they get opportunity to resolve it before they get taken into court i think what i'd like to address in my oral argument here is the fact that the question of whether and i'm going to take john doe's eight and ten first because they're a little different than john doe nine whether they exhausted the available administrative remedies prialt prior to filing this case i think is a much simpler question than the parties got off into in their pleadings in this matter i think that it's a bit convoluted and i think that it's a much simpler question and answer for john doe eight and ten because both submitted their step one grievance both detailed their sexual abuse and rapes in the grievance and they both received notices that their grievances had been received and that they would not be processed under the general grievance system instead they would be processed under the two step  and they were both told they were rejected in fact they were both told that period grievances by policy could be filed at any time that c m d o c policy then they were told that all their their grievances been received they would be sent for investigation because the matters had never been investigated before they both told were told that and that but they were then told that the prevent gree pretty grievance that they filed is considered responded to in closed so that seems like a totally contradictory statement within that noticed right it's very confusing first we're going to investigate second your grievances closed and you know you have to you through then say what do we do now no one told them hey go to the second step if you don't agree or anything so they said well we know priya which we're now in has a two step process so we're going to ask for priya to step grievance forms the next one they were not provided their acrobat davidson declaration or uncontested that they asked for these forms frankly i have been doing this work for a long time i've never seen a step two grievance flow is there a step two grievance form in the materials that we have in the record in this case no not that i've seen but what they did do is that they wrote out in in their own hands this is my step to priya grievance and they sent it off now we know that they got john doe tuesday because john doe tends because he get a post note saying ok you can't do this here you're real you've been transferred you've got to send your step to to another facility he sent it to the other facility john doe eight sent his in and wrote there's no dispute we put this information in our complaint even though we don't have the affirmative obligation and their declarations are uncontested they never received a response what they did receive some months later is a notice that their claims had been investigated and that there was insufficient evidence to support their claims so they cooperated they did everything they could and they went through the two steps it was denied it was rejected and the department had the fifth you know notice and fair opportunity to resolve these so your position then is that the step t concluded the step two document that they created the eight in ten created was concluded before this final action of  the prison officials it was your honor because they were concerned about the time limit so john doe sent his step to in about within two weeks after he received the response to step one senate on june twenty seventh say i'm writing this because i got this notice that my grievance is considered close it's very confusing it hasn't resolved anything and i don't know what to do but here it is and you know it's really odd because you have a time limit to file the step too but what are you appealing because you don't have a response to your investigation and john doe ten did the same thing and he even actually filed a subsequent griev saying hey i haven't been responded to my step to grievance and i'm grieving the fact that nobody has responded to me and that when they said was untimely so you know they're doing everything they can and the department it's a very confusing process they file step one they say we're not going to process it that way and now the department comes back and they say well you know the palace see should have been to have the question of what the various point of the other hand we have this sort of big picture question of have the department is administer ie the do we do we just do we just because of the individual fight is and be done with it or is there some way and we should look at the bigger thank you i think that and i don't know if this court has seen them but certainly in the district courts or have been a number of cases in which the courts are saying this it's incredibly confusing to anyone and that how you're administer ing this the preah thing they have a policy they say you can file a pre agreed even set any time they do and yet when you file it things happen sometimes it goes to the internal affairs sometimes you get no response and the process is incredibly confusing if you want to look at the big picture i think the big picture is that you know the federal standards and the federal act said listen we have to stop rape in prisons and they were particularly concerned about my clients children aged thirteen to seventeen who were in don't prisons and they said we have to stop and this is what we're going to do one of the ways to stop it is we have to bring it out of the darkness and they particularly said that you'd have a difficulty in reporting rapes by custodial staff and adult prisoners so they say let's bring it out of the darkness let's eliminate any time limits for that's the policy that the statute what do we do if anything well the standard say you have they can be no time limits for filing a grievance that sets forth pria in the michigan department of corrections adopted that their own policy says there is no time limits required to get the question asking which is what do we do well i think as  to i mean i think not the individual pieties am asking is there any larger issue to address here or should we just leave it as the larger to apply it be done with it i think the larger issue is to recognize that the departments of corrections can no longer impose a time limit on grievances set for sexual abuse in prisons so what what the relief that you're asking for and at this stage from us is to say that john doe's eight and ten have exhausted their grievance procedure and to remain on the case to the district court to proceed on the  priya apply only to prison rapes before the individual turns eighteen no they're looking at when the rape occurred no known for i thought these people class yet but the class is youth who entered the prisons between ages thirteen and eighteen and were sexually abused in assaulted by customer deal staff and and during that is no period no it's not so limited it creates a vulnerability a particular vulnerability of that class of you now the district court said ok we're only going to consider rapes up to the age of eighteen that is not our case it hasn't been addressed yet we've been my aired in this for five years sure and we haven't even had a discovery it's meaning the exhaustion the exhaustion and then you've got john doe nine which is the retaliation claim where he everyone agrees he didn't exhaust but russia saying that that should go on and  i'd like to address that briefly to you with regard to john doe nine he did not file and he set forth a declaration this is not a boy case is very specific he said i've been retaliated against before they threaten me with putting a contraband in my cell they threaten me with physical danger and assault and you know unlike this complaint where we got john anonymity status particularly because of the difficulties of proceeding with this you file a grievance and you have to expose yourself and he said i'm not going to do that and i won't expose myself and particularly the facility which they don't dispute base because we put forth from staff that this is a facility that alger facility has a culture of retaliation so defendants argue they don't dispute his declaration very detail but they argue persists sixty days prior to filing the complaint he wasn't at the alger facility so he could have filed there the reality is is that he was taken out for a short period of time before and then put back in alger he was taken out this time and he was he who would have to do the grievances eligible and in fact that's back where he is right now so to say you could have filed alger knowing that you were likely going to go back there and so you had a right to do it that's just not and it's not supported by anything in fact john doe nine is back at the elder facility right now this would have deterred an adult of ordinary firmness from filing it and i think that this is you know this court and a number of members of this court have recognized that finally a complaint like this that subjects people to criminal prosecutions and firings is a lot different then you know i'm not saying you shouldn't argue and file a grievance if you get your legal material taken but this is very different and and they threatened him with exposure and they threatened him this was significant to do that the second thing they argue  with your red light is i hate to say so and i can i finish this and i'll take two minutes i'm rebuttal thank you the second thing they argue is that well he couldn't filed anyways because his time was up but that's not their policy their policy is very explicit you can file a preverb pretty a grievance at any time so he could have filed it it was available to him that own power see for filing it and bring it out and he was thwarted from doing it it's an exception to the exhaustion requirement and we'd ask that john doe nine as well be sent back for trial and  whether the no time limit previous standard applies retroactively to plaintiff claims that occurred before it's effective date to allow them to exhaust these all claims that's what judge cleveland dismissed this case the preah process was not available to them and so that they had simply fail to accept is not peculiar in that even though they were the prison gave them notice were considering this under priya the a pig was eaten ten got that treatment even though they weren't expecting that that they were the timing was a little off seem like the prison  ahead with priya i agree that that when they found these grievances the preprocess the deal i was in place so the deal required sexual abuse complaints to be process under the pre grievance process so that's where they went the point is that yes we did accept the grievances because we had to because that's what the dio i am in the c f r says about no time limit so we did take the grievances and we did investigate them i don't disagree with any the question is what's the impact or the fact of our doing so our argument is that that should that are the investigation under these circumstances should not apply retroactively for exhaustion purposes in other words it shouldn't the c f r was not intended to look backwards there's no timeline was not intended to look backwards to allow people to exhaust stale claims but what saying where winds are still claims there isn't a statute of limitations that's the problem here well there's still because they occurred before the effective date of the no time limit when do contend is the effective date of the no time limit our principle position is that we didn't agree the state didn't agree to be bound to come into compliance with the no time limit until april twenty sixth the dating world  really true or i mean the only the next best date for the effectiveness of these standards is the october first twenty thirteen days why isn't it the twenty twelve when the statute says it's effective because it wasn't effective as to the there were times where these individuals were sent information saying they would be considered under priya and it was priebus state adoption agreement to comply let me  look at the seven the effective date requirement of the adoption of the national standards as the states so the first time that we're going to be held accountable to these new standards is the second fiscal year beginning after the date in which the standards were finalized so that second first fiscal year began october first twenty thirteen so the best day that plane is that that's date that i can concede to would be this october first date but they filed after that date right they filed complaints after that day there are incidents all occurred before so you're a real concern is when did the incidents happen yes it's right there's a multilevel right so we have what the effect you said you know you never will agree if we never agreed then then then all these people who are purportedly protected by this federal statute are not protected well how are they protected there's no enforcement mechanism the only in force and mechanism here is the d o j can we can take away funding i mean i'm sorry but where you we force apply a lot of the tab that don't have a built in  force mechanism i mean if it has the force of law our opinion has the force of saying it is law and people therefore have to comply i mean you have a very quite notion of what the states obligations are it's quite and i'm going by what congress said the standards applied to states after october first twenty thirteen and it hardly even said that but there is a rolling time period for compliance and the only penalty for non compliance is due jamie take away some of our funding so mary if we could get to the question of of what actually the state has done in this case there are some forms that are corporeal investigated finding an action forms what are they are they step one responses or step two responses do you have a step the plan is to be together step one response as far as i remember the steps or how the two step process is supposed to work and really this is nothing that the court court did not decide any of these questions so whether or not they've exhausted this the prayer process will have to go back and remand for if you think this is retroactive because they were dismissed on this retroactive take to the question and not because they failed to exhaust the pr sometimes during the course of oral argument people recognize that they're on the same path so is your contention that these forms and one is are twenty seven thirteen and are twenty seven fourteen the corporeal investigative finding in action forms are they step one responses step one responses the ones a little bit more like a memo so they are not step one response one responses is really basically the memo that came back saying we've taken your complaint it's be investigated this is your stock one response but that one said you're looking at the results form so so the form that you just referred to in trying to answer my question which is really causing the problem here is something that says we are going to look into this but but is not giving an answer yes you have a valid grievance or no so that's your step one response so is there a step two response the only ti the department the only reason a prisoner would go to step two on the preah grievance is that if we did not investigate now there is a step to has to be filed within ten days of the step one response what is that the step one response is the one that came back at the very early outset that says we're investigating your case we're investigating your claims i recognize that this is  when they said when they said there's nothing to your claim what do you call that step one step two or something else that's just the at the terminations of of you it's neither step one nor step two who is this fellow surge and they were all done in the end now john doe's eight and ten have asserted that they have exhausted and you're saying that they haven't we won the first round by eight eight nine and ten were dismissed for failure to exhaust they filed this complain in twenty sixteen i believe so this case has not been pending that long it's the restated their back for if they already lost why is this not i don't get what's the difference if they lost they can refile claims that arose to priya so your position then is for any of the rapes and sexual assaults that occurred before whatever is decided to be the effect of today  threatening to send a prisoner to a different place in retaliation for his protected activity is the essence of a retaliation claim why isn't this a similar situation  purposes of exhausting these claims but again so it but answering your questions we put in the record that you know if he was you have to do the case law from the circuit suggests you have to make a firm and effort you have to do something to exhaust you can't sit in your cell and do nothing and he had the opportunity to do something when he was transferred for a couple months before into a disability he'd never been at to at least attempt to file a previous prevents at that new facility before they filed their complain so this argument so we put that in the record that we file a reply brief we have affidavits and that's in the court while we've referred to them here and i would say at this point these are still sort of disputed questions because we didn't argue about the school it wasn't decided  so is there evidence in the record that if in inmate files a grievance in the new prison with respect to events that happened in a former prison that the prisoner is told they should have filed in the place where the events occurred and ordinary grievances like the three step process gets right if you are trying to grieve if you're one facility you're trying to grieve events at a different facility your grave it's nice to be sent deficit so why would that policy of michigan prison system not apply to john doe in other words if you're saying john doe nine you should have filed in your new his and there's nobody at our my who's going to retaliate and would you know that would be our position and grievances are moved around like this all the time it's usually the facility where the bad thing allegedly occurred  responsible for for investigating and then you have to remember that there are different lot of layers were different protocols now for the pre agreement so he had filed a pretty grievance and there are sort of layers of new protocol that applied the investigation of those grievances did did the michigan prisons indicate that they were treating these grievances filed by eight and ten as priya grievances it says right in their response and this is being treated as a predicaments because we happens that's what the new policy states so how does the real case affect whether we should treat it as a free a grievance i guess i'm not following your ok i'm yours or your time is up so i will stop asking you on a couple of things first i don't think it should be sent back for further facts it was their firm and of defense they filed a motion for summary disposition it was granted i think it was in error their motion for summary disposition as to their  defense should be denied because a fail to meet the burden we did argue exhaustion below we argued all of these points we had declarations on it and i don't think they get another bite to go back and start arguing again priya before they met before they knew the date they now say was the effective date that's absolutely correct they required these eight in ten to respond to the new two step process not the old three step that's correct and it was pre the date that we are now talking about as when the state decided to follow the federal law i'm not sure  that to be honest so they filed their grievances in march of two thousand and sixteen and they filed it on the regular form in old form the old form and the state then said no you can't process it this way in in june and august there were long delays for john doe ten so i think they're saying that the end of june is when they agreed to do this but at the time the people filed it it was before the time they're now saying that we've got a new process it's very i have to tell you it's incredibly confusing because john doe got a step one grievance response saying pre agreement response step one john doe ten never did but again something that said the same thing it just didn't say what it was their basic point to capsule is that this should not be applied retroactively to events that occurred before whatever one decides is the effective date and many of these incidents that are being complained of didn't occur before the effect twenty twelve if we say that and so how do you respond to to that i don't think it's a retroactivity issue i mean they may have the lawyers may have an argument and statute limitations but the issue for exhaustion is all you have to do is file your grievance and have it be processed through and do affirmatively all the steps in they did exactly that for the steps they told them they had to follow there was nothing else they could do their own policy says there's no time limits a policy doesn't say there's no time limits for assaults that occurred after a certain date we won't process those who reject them they could reject it they don't do that so what's to prevent one of the prisoners from filing claims of assaults that occurred in one thousand nine hundred ninety nothing your honor nothing and that's what in fact what i think your answer would be the statute of limitations nothing to prevent them following a grievance on it and alerting them to this happen you know they could be telling about an officer that still working there's nothing to stop them filing the grievance and priya exactly said that but to stop them having to go into court is the statute of limitations like any other agency you know you take the claim or they could have you know they can reject it for certain reasons but there's nothing to stop people from exhausting there's a lot to stop you from going a statute of limitations still tells us that you lost before on exhaustion and yet and we're not supposed to be talking about exhaustion today capsule's point what do you say so here's what happened they filed in two thousand and thirteen a motion to dismiss for failure to exhaust was filed they did not file anything the court said did not excuse them based on their youthfulness or their the department's failure to even advise them what to do he dismissed it without prejudice we clarified it's without prejudice because you can appeal or it is is a procedural thing they went back and sure it and then they filed another motion saying no they still haven't exhausted the decision that they had and i think it's an error they followed every confusing thing they could do and we'd ask that the decision granting their firm and of defense and summary judgment be reversed for all three and be sent back for americans thank you very much thank you thank you both for your argument the case will be submitted