you sure i'll speak up and talk more slowly but we are emerged two thousand and sixteen or they were physically and sexually assaulted by prison guards working in his unit he then filed the proper grievance of the prisons administrative it's undisputed that the prison never responded to that very been under this court's holding an address the marshal and the holding the seven other circuits that failure to respond rendered remedies unavailable and for they should be permitted to proceed in federal court court contention in this case is that by choosing to file a nd grievance about the assault about a month later or the re triggered his duty to exhaust administrative branch many of them we think that's not correct and that and not served here to revive the administrative process under the rules was both untimely and implicated in those are both grounds for cancellation under the regulations we think where an inmate only wait wait wait wait excuse me but that's only true restated march incident right there's two different problems with maybe part of it is the one person just pointed out it would have been on timely and but then there were these other incidents that may or may not have been time we don't really know that right  d whether for they has exhausted with regard to the assault claims well it's not like you were telling the truth to gether maybe i misunderstood your reason i thought you were suggesting that  that is the large grievance would i not really sure i was understanding is that we should find them a grievance exhaust because of the march grievance and i was really clear in what you were arguing there and i think the question is whether for the complete every level of review before filing suit with regard to the may grievance but we don't think he had to run a single site from the different i know there were two different claims suspect to harassment and some of the things that happened after the events in march there were that were includ differences between those two clans so you know i don't think there are substantive differences between the claim but i think the main grievance was an attempt to reraise the claims that he had read he raised in the march for event because he never received a response that march prevented but the problem march prevent was the vehicle for him to take out this claim the prison never responded that rendered remedies unavailable and that in which respect to remedies and on the sexual assault claim it was investigated response to the  was interviewed it was with process to multiple claims of the appeals process so i'm not sure how you can say that he had no remedy for that claim that claim was not addressed because factually it was address so or they never said we're not going to process it under the regulations the prison could have still cancelled it at the rd level of review so went for the filed suit was pending on the rd level of review and both the regulations and prior cases make clear that the that's not an available remedy within the meaning of the p l r a we think if you look at it kind of from a more fundamental perspective i think the question of availability really has to be analyzed at the time when an inmate can file a timely grievance and that's consistent with the court's the supreme court's holding in what for and which requires that they meet comply with procedural regulations including deadlines that means that the analysis really have to focus on that time window and what we know methodology are advocating the same methodology as opposing counsel which is that we would look at as of the day the complaint was filed was a clear to file it that's what opposing counsel so so so under that theory he didn't he hadn't exhausted them a grievance that's correct right so if you win on that it seems to me then you've got a problem as to the march davis because on the day he felt he had exhausted the march great months and i just want to give you an opportunity to respond to that well i would disagree that interesting as it is but we have to have a mechanism and it seems to me opposing counsel is arguing for taking that snapshot so that we know the prisoner knows i mean fairness on the day files is a free to file or not that seems to me like the approach so there's a workable rule that comes out of all this so why am i what i'm missing there well for one thing if if if he headed justification for filing that nd grievance because he can demonstrate that he was prevented from doing so by officers then he can present the proof to the appeals office and they can accept it for review if it was improperly  in your honor any when he did not receive a response but he was never the last in communication with the appeals office who told him notified him that is grievance had been accepted and he was in constant communication with them he was being told that univac had administrative remedies available now before well i met so on the st one the way you go on does that mean your answer to that person's question is it is that as to the march grievance he was supposed to continue to wait and he wasn't free to available to the prisoners to bail themselves of those remedies now there may be a circumstance where yes there are the prison officials it's demonstrated by the facts on the ground which is how ross the plague characterize it that they're consistently that you presented no evidence that he actually requested emergency processing on his appeal that he says it is bates position he has to request emergency processing isn't it the nature of the of the allegation that triggers th really the allegations that he raised in the march for events were considered by the prison officials an investigation was conducted he had sound avenues for relief i was capable of use that as a stream course definition specific circumstance as aside from what mr chorley actually did which was to use a form twenty two to follow up with the appeals office which he did and would receive responses to and then to submit a new grievance explaining the circumstances  for the initial regarding his initial allegations and when he did that those great those allegations were considered on the merits and investigation was conducted he had an available administrative remedy and was using it through the rd level but he filed his suit before he completed the process and for that reason he failed to exhaust in the courtroom from the gentry thank you on my scorecard it matters and my understanding is it was an emergency grievance and state's position that they had thirty days to respond as depended upon their i guess assumption that the grievance wouldn't have a sufficiently spelled out facts to indicate that it was needed to five days under that it was clearly clearly on their responses clearly untimely i just want to be clear that even if you look at the normal regulatory deadlines the present never responded to the march for events and and there may information where he repeatedly asked what was going on with his grievance and the president said that it was in process but we know from the records that they never actually responded so that was in some way inaccurate it wasn't in process to answer another question that was raised for they could not proceed with the marriage for even without a response the regulations specifically provide that you need a response at the each level of review in order to appeal to the next level overview that's how the grievance process is structured ultimately our submission is that the