our second case for this morning is ramiro so against young please the court this court has repeatedly held that it is not incumbent on a prisoner to divine the availability of proven procedures instead it is the responsibility of prison officials to inform a prisoner about the griev appellant in this case ask this court to apply its holding to this case and determine that administrative remedies were not available to him because he was never notified of their existence in a language he understood the idea  now provide spanish speaking prisoners of the spanish language manual and they have a process in place by which they identify spanish speaking prisoners and refer them for a spanish language orientation had those processes been in place at western illinois when mr  entered and then applied to him this appeal would not be before this court today now are you arguing that we know that he was never informed in spanish were simply that there are just food fact in the record that maybe there was a spanish language manual and there are other things in the record that there wasn't one until two thousand and eleven and seems to go back and forth so i just want to know from a procedural point of view where you think we are well i think there has been no evidence a few that mr ramirez in fact received a standard language manual there if you think the burden was on the institution to state effectively to introduce that evidence to correct because had they produced that evidence that would have established the availability of the procedure and that was their burden to do but there i i will admit that there is some evidence in the record suggesting that there may have been a spanish language manual in existence at western illinois but plaintiffs certainly elicited a large amount of evidence that mr ramirez never received one and that other prisoners in that same timeframe who were also spanish speakers and in fact requested them were not given spanish language manuals and i think most importantly this court at the excuse me the district court made no factual determinations to the contrary and so i don't believe that this court could construe any of that evidence to make a determination that there was in fact a spanish language manual that mr meir as is good could be an open factual question though if we were to think a rebound was necessary potentially although i do think that that question was the initial ground on which the idea of c sought summary judgment and i i in my view i think that the evidence has pretty clearly establish it but i would concede that the district court may no and that mr ramirez had contact with her for other matters and had used her assistants in the in other contexts filling out medical request etc yes so he was aware that she was available to help him as an interpreter but didn't reach out to her for this particular grievance well so mr ramirez did learn that miss vincent was a translator and someone who when available could be called on to help him communicate but up until the summer of two thousand and thirteen when his cellmate informed him that there was a grievance procedure he had no knowledge that a grievance procedure even existed and so he had no reason to ask svenson to help him fill out a grievance because he didn't know what that was or that there was a procedure by which he could or should or had to complain to prison staff about the issues that he was facing and in fact the evidence shows that in the summer of two thousand that both that he had no knowledge up until that point of the existence of a grievance procedure and also that had he known that he would have he would have utilized that process and sought assistance from someone to use that process so your theory draws a distinction between his knowledge of how to reach out and get medical care as i recall dental and knowledge that he closed actually complain about bad things the subject of a lot of threats and assaults from other prisoners would feel comfortable telling a prisoner i have a tooth ache what should i do can you help me and not feel comfortable saying to another prisoner i'm being attacked and  threatens on the basis of my conviction or because of my sexual orientation i think there's a reasonable distinction to be made but why one would feel comfortable with one and not the other and also the question is not whether he would feel comfortable asking another inmate but whether he would feel comfortable asking the interpreter who he had used for other purposes before and if that constitutes making these remedies available under the statute so he did inform the interpreter  the assaults and threats that he had received and in response to that information being communicated to her she did not inform him of the existence of a group procedure or instruct him that he should file a grievance he again did not know that there was a procedure so he was not asking for her help to utilize that procedure but that's because he didn't know that any such procedure had existed the pv hearing established that he had reached out to miss vincent about prior attacks yes and and at the transcripts at thirty one and thirty two mr ramirez testified that he told miss vincent about his cellmate threatening him with a shank and that in response she did not tell him to file a grievance there also it's summary judgment in response one of our material fa was that he explained that full incident to mr vincent and the idea of the defendants at records for sixty two and stated that that statement was undisputed for purposes of summary judgment been had miss vincent said to him you need to file a grievance then the grievance procedure having now ramirez having been made aware of that procedure i agree that he would have had a responsibility to use it and timely filed his grievance says but because he did was not aware of it in a sense and didn't tell him about it it was not available to him so do you make anything of the fact that during the original orientation when the one spanish speaking inmate is whispering a translation to him and is told to stop doing stop stop talking for all i know i'm sure whether we stop translating but stop talking is that of any significance well i think it certainly shows that mr  z is communicating to someone who is employed to work at that orientation that he does not speak english and he's notifying them about the language issue and and then are you making anything in the state's response  they're blending language capability in his case i mean there's a lot of evidence that he really has very limited english if at all with illiteracy and i want to know whether illiteracy forms any part of your argument or whether it's really just a linguistic issue i think the linguistic issue is the primary issue we have not pursued the question of what would happen had mr ramirez received a spanish language handbook but couldn't read it and i think that that's certainly a closer question i know that the idea is to take steps to do that for english speaking prisoners who are literate they say there is a grievance procedure if you have questions talk to your counselor i think is something to that effect for spanish speaking prisoners in spanish would be a reasonable thing to do but i don't think that this court needs to reach that question in this case but you know you raise an interesting point which is which is a broader aspect of this case i've been thinking about in some ways ramirez is an easy case because spanish is all over the country and certainly in the state prisons in illinois i take it i take it it's your view that the prison needs to figure out what language each new inmate speaks if they speak mongar if they speak laotian or if they speak mandarin or they speak something else they need to be told in that language that is my position but to be clear the only consequence to that position is that that is what is required before the id idea see can invoke the affirmative defense of failure to exhaust and have a prisoner's case dismissed on its merits it would be entirely reasonable to me and i think probably the idea is he would agree that they would decide for that one case of the laotian prisoner it's not worth that to undertake the cost to come up with an explanation in that way and that person's native language in order to keep that person from entering the court on the merits and sort of a fair affirmative defense on that score and that's all we're asking here either inform prisoners spanish speaking prisoners in spanish about the grievance procedures or don't complain when they don't use them and i think that's a simple and straightforward role in the idea of to make whatever choice that wants but when it has an informed prisoners about the grievance procedures spanish speaking prisoners about the grievance procedures or even that those procedures exist it cannot then seek to dismiss the prisoner's claim without ever reaching its merits may please the court assistant attorney general linda watching on some behalf of the state defendants the people are a makes exaction mandatory and in illinois it's the very first step of the grievance procedure was for an inmate to attempt to resolve whatever his issue is with his or her counselor but of course issue no our court has said that if the institution never tells the person that there's a grievance procedure then that step is passed and we move to the merits it certainly doesn't mean that the prisoner wins the case it just means that there is no effectively of vailable that's what the supreme court stressed in its most recent decision grievance procedure yes your honor but as a factual matter the president did tell rumors about the grievance procedure and see how they did it all mean he doesn't understand anything that's being said to him at this opening meeting and the inmate who was translating is shush and we don't have any evidence that they anson told him about the grievance procedure so where does a spanish speaker i mean i don't know if you've ever been in the position of being in the room where everyone is speaking a language you don't understand but it can be i was last week and it can be figured unsettling i have been in that position and your honor the thing here is that ramirez never informed prison staff that he didn't understand what was going on during orientation how can he well you're not all he had to do was tell the prison official race and stay in until the prison official know obligating glass and everyone understands that means i don't speak english and they would have a ranged for a spanish translator to be made available to him and they would have conducted his orientation in spanish why isn't it the prisons burden to make this information known to the inmates that's i mean you're shifting the burden in a material way and i'm not sure that the law supports that you're unaware not all we're saying is that the prisoner has to let the officials know that there is a language barrier he didn't do that in this case there's no evidence that he told any staff member that he didn't understand what was going on during orientation no i don't think that's right because the record has many notations from prison officials that all boil down to m doesn't speak english they you know they phrase it in different ways so at least at this stage of the case it seems to me there is quite a bit of evidence that the prison was perfectly well aware with with or without ramirez saying no oblon glace your honor there's evidence that she received spanish translation and various other points but at that critical juncture of when orientation was being conducted and when as a factual matter they did provide instruction on how to complete the grievance process it's not clear that the person who was conducting they were and station understood that he didn't speak english but the regions procedure would have been easily usable if the next day to his cell and she had briefed him so i don't know that there's anything magic about that orientation as a matter of fact he did meet with vincent the next day but the record doesn't show that she informed him about the grievance procedure the record doesn't show that she was aware that he didn't understand what went on during the orientation and we have to keep in mind we understand if she was aware of her notes say that he didn't speak english we have to keep in and then the next day you know somebody said oh she doesn't speak mandarin you wouldn't the logical assumption be that she didn't follow what had been said that is an assumption that one could make a response and obviously didn't make that assumption nor did mr ramirez do the simple thing of informing her that he had sat through these several hours of orientation but didn't understand what was going on he also signed an acknowledge receipt of having received the orientation manual sat with her and didn't ask what was contained within that manual the evidence shows that ramirez interacted with been sent from september two thousand and eight to up to over twenty thirteen he had face to face interactions with her more than fifteen times not sure and  she helps him a lot she helps him with the dental business she helps him with other things but we're talking about one very specific thing about the prison process namely the duty to file  if you want to complain about something and it's an important part of the process we all understand that but if he doesn't know what's available and doesn't realize he should be asking about something that he doesn't know about page eighteen of the transcript when he was asked at the people here in the whether he sought vincent's help regarding officers not protecting him he said no no i did not mention that to her then at page forty six of the transcript he also couldn't remember telling her that he was being threatened by the prisoners what about pages thirty one and thirty two with that situation involves a two thousand and eleven disciplinary hearing which is of course after he had been at the prison for three years and had already requested various forms of help for other issues so in two thousand and eleven he had a hearing a disciplinary hearing and according to remember as he says that he explained that his you know cellmate had had a been struck with a shank but at that point he had been at the prison for several years and so there's nothing that would alert vincent to the fact that he didn't know how to pursue the grievance prosecutes he had used it many other times during his time no he had not used a grievance process he used the process for getting better care that's different he i have not used what's termed the official grievance process but i knew that there was a mechanism for resolving issues at the prison it's a different mechanism for the medical than for complaining about your in your cell might have it is a different mechanism but the point again is that all he had to do if he needed assistance at any point was to ask for help and he didn't do that the district court made a factual finding that ramirez knew how to request help when he needed it all he had to do was inform the officials of the issues that he faced and again you know from twenty foot two thousand and eight to twenty thirteen he addressed issues that range from inability to purchase items from the commissary to questions about his release date to requests for dental care with his translator now don't you see a difference between those kinds of issues w have the prison and a complaint about failing to protect or a complaint about you know guard brutality or a complaint about bad medical care you know you think of the kinds of things that do go through its procedures sure i would think there's an even stronger basis for requesting help if you are being beaten and under constant threat of attack as he alleged in the complaint so yes there is it when i go the other way that's not our view our view is that they did in fact tell him she says he didn't understand but he didn't make prison officials aware of his lack of understanding there has to there's a notice required that's part of the basis for exhaustion is putting the prison officials on notice of an issue that you're having to suppress and make any record when new people come of the language that the new inmate speaks he can't be the only non english speaker in the illinois prison system certainly not that i'm is that on somebody who's record somewhere as your owner's sort of alluded to earlier there is a notation that he was given a spanish language manual so no but i know like when somebody comes in do you just the prison say a b mandarin c d spanish e x english speaking g age english speaking to that part of their my record i don't know the answer to that specific question but during orientation they are given paperwork to complete and if an inmate is unable to complete his paperwork for whatever reason that would be a hint to whoever's conducting the your intuition that there's some sort of language difficulty or barrier that he was whispering to another inmate who was helping him so he might have been able to complete it unbeknownst to them that's the key your honor unbeknownst to them the prison was never put on notice of these language barriers but i can see that's where i disagree with you again because vincent repeatedly says he doesn't speak english and isn't the two thousand and eleven the june two thousand and eleven incident anough notice to her that he is unaware of the grievance procedure at that point she has been attacked with a shank she knows he's been attacked with this i'm not sure that that is enough to put her on notice of his alleged unawareness of the grievance procedure again and yes your honor it is a different context of meeting medical requests but given her repeated interaction with him over the over the course of his time there i don't i i don't think that is enough to put her on notice why not i mean he's being disciplined when he was the one who was under attack it seems to me that's a pretty big red flag that he doesn't understand that there's a means by which he can protect seek protection which is to file a grievance so he says and you know of course we have to take his facts  but if he were being again all of this is it if he were under this constant threat of attack which is what he claims the very simple and logical response for any inmate to take was to tell someone even if he didn't know that there was a formal grievance procedure at least informing his counselor about his issues separate and apart from a disciplinary hearing he told the interpreter in june two thousand and eleven and she didn't give him his confirmation to consular was the interpreter and so again this makes it even easier for him to just tell her that these are the issues that are going on with me and you know there are notations in the record that you know from her entries from january of tw eleven in december of two thousand and twelve include the statement in may express no concerns so we're not trying to shift the burden in any way but we're saying that if for whatever reason someone didn't recognize at orientation that he was spanish speaking only all he had to do w inform the officials of his issues ok thank you very much  morning my minutes craig on rants i represent cynthia lynch just like to make a few introductory comments early on the issue of burden of production came up in terms of who should be in terms of the makes no difference to this case you also mentioned that although you although your opponent has said that it as if i would say is considered that at a minimum we would have a different case before us if the records were very clear that he received found perfectly reasonable they'd never if they never gave him any handbook the prisoner was a quadriplegic assume for a moment that they did give him a manual and they gave him the capability of turning the pages but he never told the prison that he was illiterate in any language spanish english or any other now does that change the decision in hernandez i think it does and that's the key here is the illiteracy and the fact that he never and somebody might be in fact a lot of prisoners are illiterate but prisons orally transmitted information about the way the prison runs whether it's from a medical point of view whether it's from a grievance point of view orally they do and as matter of fact this is how he and that he did not have an oral briefing according to the records that he understood he met with his counselor julia vincent the day after the orientation she tested his language skills she speaks english to them first to find out how well they can speak then she speaks spanish all he had to do is advise her i am illiterate s read well i don't know why you make she chewed does that but then she makes a notation in the record that his english is extremely limited she so she she runs that test and she is but this family or is that the soft counsellors on average nine times per year he met with julie of vincent fifteen times and yet five years into his incarceration and one month before he filed his new federal lawsuit at that point he said by the way i'm illiterate i can't read in english spanish or any other language and she put a question mark sutter that she was and how come it we're finding th now that literacy question is is just irrelevant here because as chief judge would just said we can't accept as established that he received a spanish language in all books so in this case hinges on vincent that he learned that there is that it's sufficient to supply an interpreter of but do nothing more it is also it is undisputed that spanish language grievance forms were available to every prisoner in the for your it that's not an undisputed fact it's quite disputed the prisoners themselves testified that there were no spanish language grievance forms that there were english forms so you know i'm not there but somebody further down the line would resolve whether there were spanish forms or not but it's clearly a disputed fact the law is that the u appropriately in the light most favorable to the defense as opposed to the light most favorable to you paul and it's all true and you know this is a a mental exercise that we're all quite some milieu with and we know what it means what it not comply with step one of the grievance procedure but of course the threshold question here is is that grievance procedure available and and i would just like to point out that the testimony that was pointed out to your honor's on page eighteen  i believe was represented to be mr ramirez contending that he did not mention anything about meeting protection from other inmates and in fact the quote is my question is whether you i asked her specifically to help you write a grievance regarding officers not record for texting you from other inmates answer no no i did not mention that to her of course we don't dispute that prior to the fall of two thousand and thirteen he did not seek assistance from a sense into file grievances because as we've explained and he didn't know that any such process existed the last point i'll just make is that the idea o c now contends that it appears that the idea was contending simultaneously that they had no knowledge that mr ramirez faced and spoke spanish or faced any inability to understand and simultaneously that they provided him with a spanish language handbook i don't know how those two things can actually be true at the same time  i think the evidence demonstrates that within twenty four hours miss vincent met with mr ramirez and suggesting that they knew almost immediately of his language barriers and that she that conversation happened exclusively in spanish because he was unable to speak english i'll rely on my proofs for the waiver the waiver arguments that were raised and if there are no further questions we ask this court to reverse and remain for the court to proceed on its merits thank you all right our third case