good morning your honors please the court a seem from covington and burling on behalf of plaintiff appellant michael anthony todd i'd like to reserve two minutes for rebuttal mr todd bring this case before the court today following the district court's decision to dismiss his eighth amendment failure to protect claims against the defendants the district court dismissed mr todd's claims on the basis of a failure to exhaust administrative remedies mr todd challenges the district court's decision on two grounds first the magistrate judge whose findings and recommendation upon which the district court relied improperly place the burden of proof on mr todd as opposed to the defendant's this was in conflict with the circuits baka second the prison officials failure to process mr todd's appeals violated his first amendment right to access the courts i'd like to focus my time today on the first issue regarding the magistra judge's improper allocation of the burden of proof this court has established a three step procedure for resolving questions of exhaustion and i'll be novi baka the first step according to the court was for the defendants to carry out the burden of showing that remedies are generally available and that the plaintiff failed to exhaust those remedies in this case this is not in question step one has been satisfied and mr todd acknowledges that there was a generally available remedy and that he was unable to exhaust the will be in a court then held that the second step is for the burden to shift over to the plaintiff to come forward with evidence that shows that there is something in his particular case that made exhaustion unavailable to him and the court was clear that this is merely a burden of production not a burden of proof and in this case as i will explain in more detail shortly mr t satisfied the burden by providing testimony and a declaration that explained when and how he filed these appeals upon making the showing the court has held that the burden then shifts back to the defendants as they carry the ultimate burden of proof to show that exhaustion was unavailable to the plaintiff and here in this case the defendants present no evidence that rebuts the evidence put forth by mr todd unfortunately for todd would have been would have prevailed in this litigation or at least on the exhaustion issue in this litigation and the court would not have dismissed mr todd's case this is apparent from the text of the magistrate judge's or the magistrate judge concluded that it is quite difficult to believe that mr todd wouldn't like to pursue appeals of official decisions that allegedly led to his being stabbed and physically attacked he also concluded that the appeals process was fraught with theoretical and practical pitfalls yet despite making these findings he ruled against mr todd because mr todd didn't do enough to show or to establish that he was frustrated in its attempts to exhaust so what was the substance of the government of the state's evidence the state provided evidence showing that mr todd was someone who had successfully filed appeals in the past on unrelated issues and that mr todd and the a generally available administrative remedy was present that mr todd could have availed himself to however none of the evidence specifically related to mr todd's evidence which showed that on specific dates and times he attempted to exhaust these remedies and he was unable to do so he followed the proper prison procedure he filled out the appeals slip them under the door and someone from the prison was supposed to come had anybody put in an affidavit or a declaration saying that they only went by his office by his cell to pick up mail and they never picked up anything like this they did not your honor they didn't provide any af davit nor did they provide any live testimony they did call a couple of witnesses to testify about the general procedures available but god alone isn't sufficient as this court is held in williams the paramount in that case the court ruled that evidence that generally outlines the procedures for filing a claim are insufficient and that's precisely the type was there a drop box near his cell there was a drop box near mr todd sell it did they put in an affidavit did they put in a witness order affidavit or anything to say that they checked that box every day certain time and they never found anything in there from mr they did not provide that testimony i believe they did testify to the fact that there is a drop box that he could have dropped the appeal off you and to be clear the man magistrate judge in his findings and recommendations noted that the fact that mr todd followed the proper procedure by by slipping an appeal under his door it was one of three possible methods for mr todd to attempt to avail himself to the administrative remedy the magistrate judge found that that was a sufficient way for him to go about filing his appeal it seems kelso that both sides in this case would characterize your client as as the boy who cried wolf in the sense that he's always complaining about things that i think it's fair that mr hobhouse filed several appeals in the past and it seems to me one of your better arguments is that if he's going to complain about all this other stuff and surely must a complaint about this yes your honor that's correct and under williams vs parable i'm reading this sentence and i was surprised to read it in the decision but it's there and it's good for you it says levin ninety two i believe says william statements sell and collect his appeals but they didn't do that instead they presented evidence showing that there was a generally available administrative remedy for mr todd and that was not an issue in dispute let me ask you this our question from  case do you deal with that your honor that finding is dealing with the collateral issue he makes multiple findings in his findings and recommendation the main finding that he makes is that it's quite difficult to believe that mr todd wouldn't have filed these appeals but then as you note he also states that it's equally uncomprehensible that he wouldn't have maintained these daily planners where he noted down the dates of his appeal but that deals with the collateral issue of whether mr todd had additional evidence in order to support his claim that he had attempted to exhaust and it's mr todd's burden of production and not his burden of proof the magistrate judge was looking towards mr t think we should just say oh he's so on the merits we believe that this court should rule that mr todd has satisfied the exhaustion requirement and that we should move straight to the the factual record is complete there was a complete evidentiary hearing the defendants had an opportunity to present their witnesses that the evidence you're hearing and they didn't do it there are no other facts that need to be discovered at the district court level prison but that disclosure didn't say how he submitted those grievances and to whom so when the magistrate judge asked point blank at the evidence about his exhaustion efforts including how todd's credibility with the fact finder went down hill hard amid it despite being very savvy about the greens process that he didn't take steps to preserve his daily planners he stated that no one would believe  transferred to another prison in sacramento his testimony basic was i don't remember i don't know what happened but basically i did not take steps to preserve them and so defense raised the issue exhausted in may of two thousand and thirteen when he wrote down the dates and his proposed thirty minute complaint in february two thousand and fourteen he still had his planners that she was certainly on notice that exhaustion was going to be an issue despite that knowledge he just didn't take any efforts to preserve them and they just simply disappeared that's critical because the magistrate judge just wonder why someone like mr tutt who is very familiar with the griev process and knowing that probably had trouble with the grievance process didn't take any steps to preserve those planners and those are very damaging to his credibility cattle i understand how that might go to the ultimate merits of the case but if the if the state's theory is that beano so we start with the initial burden of production and my friend just admitted that we satisfy our initial burden now if we didn't satisfy our initial burden now is this and there's no need to go to the second part so once we satisfied our  l burden mr todd had to come forward with evidence to establish that there was something particular interest case that rendered the otherwise available process unavailable and it's on that issue where the court called rodriguez from twenty eighteen talks about factual statements that if the prisoner makes factual statements to support his claim that satisfies the burden of production so what happens in williams and williams we have a summary judgment posture so once mr i'm sorry miss williams came forward with evidence that rendered the process unavailable you have to accept that allegation as true and then the burden shifts to defendants to show that no reasonable person could believe miss williams in this context you don't have that limitation on the fact finder he is free the judge is free to credit or discredit mr tutt and he discredit mr todd in the r the the court recognized that defendants again satisfy their initial burden of production and when it shifted to the plaintiffs in the rodriguez case the court credit those unlike in this case the court credit those allegations first if so once that second part of the analysis is satisfied then you go to the third analysis here i mean there's no need to go to the third prong of the burden shifting analysis because it ended at the against tot he is stuck with that factual finding and that finding is fatal to mr toth appeal right now do you have any cases that support your reading that would require him to show i guess by products of the evidence at this stage to satisfy the burden of production i mean this case is very similar analogous to morton versus hall here as in morton versus hall you have an evidentiary hearing and haul defendants produce and satisfy their initial burden of production there's no dispute about the burden of production here the court also examined mr hall sed i mean mr morns testimony in same thing here you know the fact fi grievance process is easy to allege in theory but it's fatal in application and practice court exits claim requires a showing of actual injury which is a crime that flows from the standing doctrine in the exhaustion context interference with the grievance process not a barrier to filing suit and that's because exhaustion becomes an issue only if defense raise and prove not exhaustion if defendants fail in that regard any adverse exhaustion ruling is access to the courts because you can correct any purported mistakes in a grievance ruling for these reasons we asked the court affirmed the judgment ok thank you of whether he maintained these additional planners this is an issue regarding collateral evidence and kolob corroborating evidence that mr tague could have used to strengthen his claim if he had to meet a burden of proof this does not go to the issue of whether he had actually filed the appeals and on that issue the magistrate judge found it very quite unlikely that mr todd had not filed these the peals and for these reasons i asked that the court find in favor of mr todd