the last case on for argument is grafton versus assistant deputy undersheriff dismiss literally under rule twelve b six a motion that challenges the sufficiency of the pleadings and that the district court both the magistrate and then later this judge went ahead to consider matters outside the pleadings effectively deciding the exhaustion of administrative remedies on the papers that had been submitted without having given graft and the plaintiff any notice that the court was going to so proceed it is worth keeping in mind that because the complaint self was one of these sort of tick the box things that you find in a correctional institution that grafton did said he had exhausted what were his available administrative remedies and that's all the prison of the geisha reform act requires because he was now being thwarted at every turn being able to actually mind you you have to read these somewhat more liberally but i think that was his point that he was saying look you're making it impossible for me to do this because every time i follow one of these you tell me i have to file something else that's not there or you that you know the tough thing that he's running into is that he's basically trying to explain look i'm not able to use a system to make complaints and you're frustrated by a problem with that kind agreement right because he's generally complaining about the system yes he could put in his grievance and then we find out what the system said about his grievance well and his point was that he was trying to his point is he was trying to do that and that wasn't working because they were either docketing them or they're returning them to him without without being heard isn't there some allegation that presentation of information that they had group his grievances were received and process well there were and but he also said that they came back to him in a way that he wasn't able to have them heard because they were asking for additional information to be submitted but the point judge paul and i think it's a good one is that maybe all of what you say and what judge restudy says is absolutely spot on correct but then what you want to do is you want to say at the district court level to grafton look there's a serious problem here because the defendants say you're not complying with the administrative remedy scheme so at least try to articulate try to explain for us in some way how you're doing that and the point that i've tried to make principally in the reply brief is that this sort of a gate keeping thing which is what the exhaustion requirement is is something that you know you can set it up in a way to say look your case is going to be pitched and remember this case was dismissed not on it was dismissed on a motion on the pleadings and it will be six but the judgment is a judgment dismissing the case with prejudice so he's out  chance to replete or anything else and my point in all this is that you can fix that by simply giving him the option to explain and that wasn't done  tell the district court needs to conduct a hearing receive affidavit what are we well you know there's a there's an interesting case it came out since this and that's this court's decision written by judge solomon and shepherd the citation of which is nine twenty one dollars said rd eighty nine dollars it's also a prison litigation reform act case it deals with a three strikes provision and imminent danger which is you know your get around on the on the three strikes and judge sullivan talks about the same kind of thing here and he says look he says when you've got these sort of gatekeeping mechanisms the court can consider matters outside the pleadings but in shepherd they didn't move to dismiss them to twelve be six they moved to dismiss under the court's inherent authority which put you on notice that you know maybe your case isn't going to be there anymore it's not a matter of the pleadings and he said yes you can have these kind of limited every denture things maybe you have to have a hearing maybe you don't certainly i cited judge chin's decision that suggests you get into a rule fifty six analysis about where there's a genuine issue of material fact that's one way to approach it maybe you don't maybe you treat it like a statu repose or you chuch treat it like an immunity defense under civil rights case where we can sort this out subhuman or jurisdiction defense that's why when i say it should be vacated vacates send it back give him notice and do it the way it's supposed to be done thank you awarded as the magistrate said in his report and recommendation even when he said he ran into some problems he filed grievances after that he has been successful in quite a number of grievances including one that went beyond the county to the civilian review concerning his will bound wheelchair bound to transport him to a fire i mean is there some level of threat that would really help somebody i guess they could be some level of threat which would prevent a person from doing anything i think the judge  one of the investigators hinted at something and again that doesn't rise to any levels or you know saying that there is no grievance procedure in the correction in this case what happened when he was coming back to some place he did that there are too many grievances below threat no i don't know a very well what about there are too many grievances and we have ways of dealing with you wasn't there that wasn't there something like that do you take it a little rises to the level that you do away with with the prisoner asking you i would say no that we should have or that at some point it's enough of the threat that you don't have to continue to go through with your procedure but we would hope certainly an asteroid county that if you get anything even appears to be a threat that you go to disappear iraq was there and there are different levels and i don't know of any statute to work and it's a really good statute and you can resolve things inside the correctional situation works well so good on that and that's that's terrific on the other hand when you have someone like grafton who basically says look  pleads in his complaint you're not taking care of my grievances it wouldn't be the most difficult thing to very much like a report recommendation of a magistrate to put something on the bottom of a motion or on the bottom of a notice from the court saying the defense of asked is dismissed because you haven't exhausted we're going to consider matters outside the pleadings let me know tell me what you have so with the court can make a fall determination of whether the of vailable remedies and his point is th developer remedies here fact exhausted have in fact been exhausted because like what's required one of motion for summary judgment is is made in a case where the other side is pro se exactly new jersey has a great state rule to go back the district court to review the procedures the prison and tell them this is what your procedure should be i'm not exact well that's the you know what is the what's he want you know it's not a complaint  wants something i know and you know it's interesting i had the same reaction i spoke to him about this much of what's really going on here and he said look he's a problem is the system's not working it's not working that's why i'm seeking this form declar it's not working where i can get to court because they're frustrating me look if it's true you take care of it if it's not he loses but but that's the nub of this kivas case and typically we don't put something like that line in the play hookey look at this way you could have put in a complaint nothing happens to it and then he could have put in his grievance nothing happens to it they they throw in the garbage they won't consider it and then he files a complaint in court that says i tried right but he did it just the other way i mean give give the person credit he did a fairly nice job for a jailhouse person so he has other grievances about the conditions in the medical unit those grievances he can try to get relief and when he doesn't he files a complaint in federal court and says i didn't get relief because they wouldn't even consider it right well and i think your point is that if you're going to make this other claim saying the system is stacked against me you've got to grieve that st his point is look i tried on the ones i had it's that point it's futile to relieve in his complaint other than fix the system that's his client ok that is his claim your honor thank you thank you thank you both we will reserve decision on that case and i will ask the clerk please to adjourn court