hardy and what's the import of the fact that there and the other facts come out with regard to knowledge of process so with regards to the handbook mr hardy didn't come into the prison like a standard regular prisoner he's an amputee and he was ushered within hours to the infirmary the infirmary at the exhaustion hearing he testified to the fact that thirty days you're not allowed along in slick personal belongings you signed that slip along with previous stuff and it's in the transcript and they told him that he would they would put the book in a box and he would get it when he was returned to the walk from the infirmary so seven days later he goes there there's no book and even a signed sheet that this signed document that he had signed is not there either we really were familiar with the facts ok and i i think the big question that's been put to you is if that's not dispositive if the fact that he wrote i've got this isn't dispositive of whether or not he got notice and much of your argument seems to hinge on the assertion that without that handbook it wasn't the the process wasn't really available to him right that's isn't it maybe a mis understood your ear but i thought  foundation of your argument was without having the handbook and without having a copy of d c a t m eight o four you can't really say that the grievance process was available right because he doesn't know that's a portion of the argument most but that's not the argument itself the strongest argument is that he was given this information that he relied on to his detriment we even even if i thought even that information or that argument was dependent in the st instance on the assertion that he didn't otherwise know he didn't have access to the information absolutely ok so if your argument is he didn't have access to the information and the sign form saying he didn't have access to it is not dispositive then the question becomes do we have an open fact issue where summary judgment was inappropriate in other words your argument seems to be we win because he didn't get this but do you when not in the sense of winning it all but when in the sense of going back because there is an open fact issue did he or did he not have access to the information i don't think there's an open issue i mean we spent significant time in that exhausting hearing i don't know what more could be gained from going back about about a ruling from the court which we don't have because when we read the court's opinion the court says on page eight this is appendix page down even if the prisoner does not receive a handbook it cetera and then on the next page is said regardless of his actual on balance here's what i think the evidence shows this is the historical fact as i find it and there doesn't appear to be back fact finding in this record i wrong about that well if you look at appendix eleven  the district court says moreover despite having alleged in this is under number two the wording that prevents it is in district court's decision moreover despite having alleged that two correctional officers refused to give him forms his testimony reveal that the officers told him that the infirmary was out of the grievance forms not that the ops or refused to give him any forms harvey never had any trouble getting writing materials or paper during that time further hardy testified that he was told by his the book issue is a predicate for the other white right because if you say that he's been misrepresented on certain issues but there's evidence the record that he has the handbook he has access to the grievance process he has knowledge of the grievance process then the misrepresentation doesn't seem as as strong right so we have to start with the st question which is find and says he received the handbook and there's other evidence in the record of him being knowledgeable of the process then the then you look to a different prism at your misrepresentation argument so that's why the judge jordan spent some time on the question of whether the record as it stands now creates a genuine dispute because this issue has to be resolved before you can get to that issue now if you say that the fact that he signed a form that says he received the hymn book isn't dispositive a veiled ability question is do we not have an open factual issue about whether or not he actually got the handbook you say he didn't they say he did there are some evidence on both sides and i can't find it maybe you can direct me to a place if i've missed it i can't find a place in the record where the district court said yeah he got it or no we didn't get it they seem to say you know what regardless of whether he got it it's cetera but that regardless doesn't answer the do believe that there's case law that says even if the person does not have the book itself the hymn book that's not necessarily just as a test it may not be it's not a question of whether that answers the whole question it is whether that's a crucial fact issue that has to be resolved right it's not that answering that question will resolve the whole case but answering that question is important indeed maybe critical  resolving the whole case isn't it because the whole case resolves around whether he had a grievance process truly available to him right ok so when you say on page twenty five of your opening him was clearly erroneous i mean that's why i'm spending time on this i didn't see where the dish record did make that finding and now i hear you saying they they didn't make it we got too right including appeals mr hardy never got the book that's our position now a t m four is d only given to staff and that is more than thirty page document on you know the appeals from filing a grievance now to cover this is are you sure statute of limitations issue is there another reason why there wouldn't be a foundation for mr hardy to say well ok if you think i didn't exhaust before i think i did i can pursue those arguments in court but belt and suspenders i'm filing my grievance now there is i mean medical so he starts filing them he gets them back one time he says you know i'm getting really depressed there's a lot of pain in my body he gets it sent back well those are two separate events mental health and physical health they have to be you know separately filed good that's understood but since the argument that the state is making and the medical defendants are making is that you didn't exhaust does your client lose anything from pursuing a grievance now and appealing and exhausting i think that that they will and that he would under just just the administrative process itself you have to file within fifteen days of the occurrence of the  incident when several when he did break it down into individual incidents and filed an additional multiple grievances with those then rejected they were rejected time there they were rejected because they were out of time yes but to but they were never taken through the full appeals process right they were not and and since their primary argument today is not hey as a matter of law you don't have any claim because your claim is bad your argument is as a matter of law you don't have any claim because you didn't exhaust could you still exhaust i believe that he's attempting to  different copies and stuff back east he's made but i don't think they're getting through this process we ask you this question is what we're talking about with regard to the advice that  this seems to be this thing a misrepresentation and frankly it seems more akin to an omission why should we interpret further a t m it up for their own policy so is that how so should know the policy because sometimes they're involved within the grievance process he followed it to his own detriment and and more it says prisoners are entitled to rely on instructions by prison staff even if they're at odds with the grievance policy and such instructions may render the grievance procedure unavailable  question i don't think so i don't think so i think that he had every right to go to his counselor and say i'm getting all of these these rejections what do i do and that's what he did and she said found the other one sunday again and he did that but if we refer to import a standard for exhaustion in this area like we did originally has an objectively component and the subjective component right if if an inmate receives the handbook and therefore has access to the information about the appeal then that would take care of the objective one absolutely and the the subjective one  we talked about and read all the whether there was actual knowledge or should have known and again having received the handbook if you did that that could be dispositive right right right and also the exhaustion hearing i mean i'm not signed document they know who signed it you know they didn't produce an affidavit afterwards they didn't bring that person to the exhaustion hearing to say yeah i gave him that book none of that happened  and i don't know that it would if you sent it back and so it is let me ask you one last question if i might there's some points in the briefing said that he filed twelve separate grievances and the other point seems to be saying he's filed eleven separate grievances how many grievances that he i think it was a total sixteen and i believe there's a put no in there where the grievance ops are says that she has lost some of them so again the number it please the court my name is howard hopkirk i'm a senior deputy attorney general with the pennsylvania office of attorney general i am representing the pennsylvania department of corrections in this appeal i will be using eight minutes of the police time arguing on behalf of the other police is emilie ryan fuehrer a of the pittsburgh law firm of webber gallagher all right can you go straight to the  issue the fact issue which we were talking with your learned opponent about what what are we to do is there is there a fact finding in this record with respect to whether mr hardy got the handbook or not same time it's it's murky so our position is even if you put that aside his actions still did not meet the requirements of of exhaustion but if how did we put it aside how can we put it aside if the question is availability of the grievance process and the varied document that would explain to him the grievance process was never in his hands so if you assume he never received the handbook we believe there's still other evidence that shows he was generally aware of the grievance process and he had the signed off on having received the handbook that was some notice that there was this grievance process and then also who kate but i got to set that aside right unless you're prepared to tell us wait there is a definitive ruling in that record that he got the handbook because all repeat i haven't found it and i haven't heard you point us to it as i will set the handbook aside what else is there that makes you say oh he understood the grievance process fullness not the fact that he could file a form but that after filing the form he had to take certain steps to exhaust the grievance forms referenced the grievance procedure which he could have taken he could have gone t all the grievance form does is reference that a t m form which the prisoners don't have they don't have it now maybe there's a copy in the library but the prisoners don't have it is that an accurate statement around eight afraid of forty and one and therefore i should go to the library and look it up that's your argument that the reference to a d m a to work tells you that's a form i have to see and that that's enough to make it available that's the that's the pennsylvania argument i mean that that is or you meant if that's your game and then you essentially in history the handbook requirement right because in every case what you'll say is court board discerning them deciding the party the hymn books are relevant because this person filed a grievance form at some point and is generally aware that there 's a grievance policy somewhere in the library so we should impute that to them and to him book stuff really doesn't matter so that sounds like what your argument is i mean what we're saying it doesn't have to matter if the court disagrees with you know that there isn't enough without the handbook then i would agree it should be sent back to the district court to make a more dispositive finding on whether or not he actually received the handbook so you say you believe that that there is a question of fact on whether or not he received him yeah i do believe there's a question of fact there and the magistrate judge did not really sufficiently answered ok so you see your position is if you go back then well our st position is even if you assume he didn't process and could have followed it and it's and the burden is on him it's not on you know you asked one person then maybe there was miscommunication and so catherine undisputed as he tried twice to go to the library right well he did he tried to sign up twice yes but i don't think that that was a you know much of a crime it's not a good faith effort to go twice to be turned down and  i also would say the fact that there were policies available on subplots and he didn't say that when you say policies available on cell block i'm not sure i understand you say in what these are generally available that this so called jailhouse lawyers ha so he could have asked around somewhere that somebody has got it now that the corrections officials would have available on also mentions officially he asked the corrections official and he was told to file another grievance the commonwealth was making is that you could ask a cop you could ask one of the corrections officials he did that and the response wasn't well here's a d n a go for it's hey file another grievance right  and what i'm saying is if you look at renault he that what the magistrate judge said well if if this had been an intentional misrepresentation to mr hardy then  aside whether it's an intentional misrepresentation i'm pursuing your own point your assertion that this is available on the cell block you just have to ask an employee of the prison he did that he wasn't given it he was told when to an employer employee and said i don't know what to do next and the answer was it oh well here's a d n a go for or you should file an appeal it was file another one so by by even your terms he did what you're suggesting by going in asking somebody and he was not told here's the appeals process he was told file another grievance so how does that help your argument that this is freely available information the record here indicates it wasn't freely available indeed that he was misdirected even if it was any quote clear misrepresentation so it is obvious it doesn't help my argument but i would just direct the court of the case law on you know that it has to be a misrepresentation or the process has to be so opaque that the prisoner can understand how you learned to do it what's the distinction you're drawing between what happened in brown and this dar right so what's the distinction that you would draw between brown and and what i would just say here that the magistrate judge heard the testimony of hardy and was not convinced that it was the type of intentional action by the department which would warrant you know they're exhausting i get that but that wasn't my question my question is what's the distinction you're drawing between the factual scenario in brown and this case and brown he said it was  hand and what harry did here well i think that in telling the prisoner that they should just hold tight that the investigation would be over would clearly put them outside the period in which to comply with the exhaustion requirements where is it's not so clear here and it is your stories advice is i grievance forms as long as you note that they are you know appeal from the previous clearance how was anything that perry said even by implication a statement that you need to appeal there yet you rightly point to something the mass reach it said but it's a puzzling thing because it doesn't seem to speak to the facts in any way because there was a misstatement that you should appeal and you can use the same form or appeals the next step or any reference in any way at all to appeal it was quote file another one he says i found grievances nothing's working file another one is that not just in any ordinary parlance that anybody would understand an assertion not to appeal but file another grievance i agree it's seems highly problematic but at the same time it's a it's a highly profoundly troubling i mean here's a person with an obvious medical issue and if i read the record correctly a grievance officer who does handle appeals and michael bell later looked at tiny heists series of rejections and said i don't agree with them they're not right so they did she did it long and she didn't just do it wrong once or twice did it long over and over and over and over and over again i mean the kafka ask description provided by the plaintiff is genuinely troubling her you file an appeal and it's rejected because you put two things in and then you filed it two separate ones and it's rejected being duplicated how and that the ses own person in reviewing it says well those are right i want it done now i mean i understand you've got a legal position that you're resting on which is no exhaustion but if you just dig slightly under that legal position i sn't the department of corrections in a world of hurt when its own people look at the rejections that were made by ms heist and say she's got that wrong repeatedly  amputated further because of it so with all due respect the merits of mr artie's claims are separate from the you know exhaustion issue enough which is why we've spent all this time talking about exhaustion but in the end there real human being with part of his leg missing because of something the department of corrections itself through history bell acknowledges was a series of mistaken incorrect rejections of grievances that just kind of irrelevant in what the district court should be looking at when it's asking whether there was available grievance process here i mean is it so separate that they shouldn't be saying something's going on here that maybe should have required more attention from the department pressures maybe it may be that they're completely separate one has nothing to do with the other but i put it to you are they so separate that the district court shouldn't have been paying some attention to what the consequences of repeated mistakes by ms heist were  misled not not whether it's intentional not whether there's even an affirmative misrepresentation as opposed to an omission but whether it's a prisoner is misled and thereby worded in efforts well i think if if the court thinks that that evidence shows that there was misleading conduct on her part to put it outside of of the general requirements for exhaustion then you know that's a different issue and like the case then should go back for her to make a more definitive ruling song whether he ever received the handbook in the st place what's our standard of review you said earlier oh it's very differential what is our standard of review in determining whether or not the grievance process was available to this prisoner the song clearly erroneous if not not of enough we're talking about misunderstanding of the legal test if the magistrate thought it was i had to be clear misrepresentation but supreme court case law in our case law talks about whether a prisoner was misled that's that's  there please the court our position is consistent with the department of corrections i believe mr hucker did a good job of laying out our positions i just want to say that we agree that the handbook issue is not dispositive and that we believe that there are sufficient facts in evidence per finding that remains were unavailable regardless of whether he  councilor perry ok that's what they're relying on what are you relying on to say you know what all that doesn't matter assume that's all right doesn't matter what do you rely on that says i was available he knew that  there were multiple opportunities for him and i now again going to the fact that there is an objective aspect to this that a reasonable and me could have talked to one of the nearly four thousand other inmates and go down this road then perhaps it should be remanded for for further evidence or findings on that issue in the end your position is it doesn't matter because there's four thousand other more about the process what it what else you have something besides there's four thousand other guys in this prison i believe he could have made a better effort to go so i bury you could have asked more than than one person about the p here's a question i have for you about the policy there seems to be and an inherent inconsistency in in the policy that even if he had the  created a problem let me be specific as to what i'm talking about page forty one of the appendix cites two section one a paragraph fifteen of the grievance policy and it states any concern disputing initial review resubmitted those seem to be inherently are intrinsically inconsistent so what knowledge can we impute to the prisoner of the policy when the policy seems to be inconsistent in what it's in the message or the language its uses i mean i think that there's there's two different options of course that like you're saying that the inmate has one of these and says rejected and i think it just goes back to the fact that even if he didn't have the handbook we believe that there were many ways that he could've learned about obtained a copy of the full policy and then come to understand it better but you're just greenways making the point that if he had the policy the policy tells him keep resubmitting and that's the information that he got from the counselor and as he's doing now he's continuing to get with different explanations rejections how at that point available which was appeal he could of been and they are across the south asking for help asking why his grievances were being rejected let me ask you this your folks are in charge of the infirmary case that you're not entitle to anything with you does it or does it not seem more likely to you that the events transpired just as mr hardy said they did he had to go straight to the infirmary they told him hey just sign this will be waiting for you later but he didn't get it on that occasion because he was going straight for a boy yes i definitely think that that's possible but that doesn't i don't think that has any bearing on whether th like the two thousand and sixteen us supreme court case the court outlined three scenarios which would not excuse an inmate from the exhaustion process but rather deem him to have heist the grievance coordinator the misrepresentation is he relied on that advice from his counselor to his detriment there is case law if we go back to the issue  well there's a step you're supposed to take after you hear no from biz heis so with misrepresentation it would destroy that argument absolutely a peak got that camp book he read it and it's not about what he knows it's it in this case in th appeal to this oh i g assume that that's what it says with clarity is he entitled to go ask somebody and then say hey i was misled they told me to file another one if he's got to him book and a ham book tells him what to do so when we're dealing with the prison population a lot of them have difficulty with greet in but that's not dispositive here he had receives that hand buck and he doesn't understand something silly takes it upon himself to go find his  explain why this is happening and she says you know just do another one and send it then that is misrepresentation and under this case it doesn't say a clear misrepresentation when absolute misrepresentation said he doesn't have to hand so it's hard for me to i know you've got to take the question is so if he has any handbook and says he has an th grade education and he can't make heads or tell he has a right to go to not one of the four thousand in the institution but do you see counselor where it says in their own a t m policy that they need to know this policy because they're involved sometimes so yes i guess i'll turn myself around and say you should rule that way the other thing i want to say just ringback just one last thing about the book harvey under oath testified in that exhaustion hearing it was a rebuttal presumption there was another person who signed that sheet they didn't bring that person even though they hopped on it throughout that hearing and they didn't you know what the now the david or kalahari in any way after the briefing and we but a presumption that they chose to do nothing you you are so are you because i think that you your argument includes that a prisoner being misled under the case law even if it's not intentional to the prisoner is misled by the prison that that would satisfy the morning right yes thank you ok