of his hands and remains highly disputed but i'm summary judgment the court must take randolph at his word not the officers indeed even the district court here found randall testimony racetracks will question whether he submitted to treatments appeal but prison official state of mind and senses evidence or testimony which is evidence on both sides it's therefore a question for for the finder of fact and not for the not as a matter of all that's  correct our position is randolph testimony is competent evidence that the district court should have credited on summary judgment and when you're presented with read all testimony on one side and  testimony on the other side that you know the only way to resolve those or to make a choice between competing events which is you know exactly the point of having a jury system there are cases that he did sustain some injuries after the use the force the fact that you forces you to get him is not in dispute only the justification for the use of force and i think on the object of kong in particular you know even even the defendant version of events that they tackled him to the floor and held him until he stop resisting if they didn't have a justification for doing that that alone would constitute an objective li non commitment use the force and would suffice for purposes of any co claim the only quote the only real question in dispute here is whether or not there was a legitimate people logical need for the force whether and therefore whether or not they acted in good faith or bad faith and randolph testimony  alone that you know among other things that they cursed at him the tension in retaliation for previously reporting an incident involving one of the officers supervisors the fact that he was complying at all kinds during during the threatening did i think there's two problems with that one is that you know god is on all fours here and explicitly rejected relying on disparity between medical records an inmate sworn statement to grant summary judgment because that necessarily involves the kind  credibility terminations and weighing a contradictory proof but it's forbidden summary judgment and back and i think what the district court here did was conflate the evidence perhaps non serious injuries with weather with  regulations provide that if an inmate files an appeal to cork the c r c but does not receive notice of receipt of filing within forty five days he quote should contact program supervisor there is no dispute that claim to who never received such notice failed to contact the i g p supervisor upon the expiration of that forty five day period accordingly summary judgment is properly affirmed because plain to fail to exhaust that particular administrative remedy this is true even though the remedy is phrased in permissive rather than mandatory terms for three to mandatory administrative remedies number two as a matter of whether a slate of intent interpret ing that phrase it ministry of remedies to include permissive remedies further helps quote afford corrections official he had contacted the i g p supervisor within forty five dollars days i'm not sure there is one way or the other well i mean i suppose what would have had what would have happened is based upon the evidence in the record the i g p supervisor would have said hey we don't have any record of you filing this appeal so please you know it depends it would depend on what the what necessary so hey prison what's happening with my court appeal and by the way if it was mishandled or misplaced in any way please grant an extension of time to file a new one and as far as the record indicates he would affected in any given case or whether it would have served all of the p l r raise purposes in any given case although we do think it would have done so here but the question is whether it was one of as the supreme court said quote all steps that the agency holds out and this follow up procedure this forty five dollars day follow a procedure is one of those steps i take it the district court declined to dress this is the district court declined to address this issue i found that that's right if it declined to address this issue although this court certainly can do so based on the evidence in the st instance and as far as the where you wait when we certainly can by the trial or ordinarily i would expect it to be addressed in the st and by the proud court and we certainly made this argument in the st instance by the trial court but this court regularly can and does affirm an alternative grounds and here again there's no factual dispute that plaintiffs should have but did not take advantage of this forty five day follow up procedure and even though the procedure is phrased in permissive terms this court  summary order has acknowledged that permissive procedures are just as much a part of the exhaustion requirement as procedures phrased in mandatory terms and the cases are recently called napoli why don't we why don't we move on to the merits i mean if if we reach the merits i mean why aren't there issues of fact jumping out here your honor i'm happy to rest on our brief for the merits we do think this is a case that comes within the ambit of jefferies and those extraordinary cases where the contradictions are so replete both the contradictions within plaintiff's evidence and contradictions between plaintiff's testimony and the contemporaneous evidence that bring this within the universe of cases where some comparison can be done but i'm not sure i have too much to add beyond what what we what we explained in our brief i really do think though that this case is primed for in a firm and some alternative ground on exhaustion because as far as the forty five day procedure goes the record is clear there is no factual dispute that upon the expiration of that forty five day period petitioner the plaintiffs did not contact the i g p supervisor and say hey where is my appeal and again even though that was permitted that was the main argument that all conclude that even where procedures are permissive they can say that they are still part of the scope of administrative remedies that must be exhausted in fact the only outlier circuit that we've been able to into the statutory texas where it comes from the that inmate has to exhaust it ministry to remedies that are available there's no differentiation between mandatory administrative remedies permissive administrat reference that wasn't cited in their brief i'm happy to if you provide the site to find a doctorate and submit a supplemental letter but i think that the president deported absent all apply and jones a supreme court case is made clear that discussion briefing in the district court on the forty five there was and it was that it was i mean again we don't have we don't have a ruling from the district court on it other than that it raises dispute the fact but follow up after forty five dollars days but does not require them to do so and here in particular there are other regulations say that it under no circumstances may in extension of time to appeal be granted after forty five dollars days so it's like how could  inmate comply with that if you wait forty five dollars days then your appeal is worth it because there's no opportunity to get an extension of time to file and in their brief pelleas reference the other idea that they he could have or filed a new grievance on the idea that he had been improperly denied an extension of time but the this that the regulation that they referenced there is also phrased in permissive turds that it may pursue a complaint but an exception to the time limit with the not by filing a separate grievance and so when you add all of this up we're getting very close to the the concept articulated by the supreme court in broad that you know the question is whether a remedy is effective and whether a remedy is available to it in eight and if it's just jumping through hoops to file a complaint after complaint only to be hit by procedural bars every step of the way that's not a grievance person that is available and was not available to randolph here