a could is that by virtue of the relation backwards you know your honor it's not because mr garrett does not need to fix a statute of limitations issue here because so certain of the  st incidents that gave rise to this suit were engine early january twenty four team which was slightly more than two years before his rd amended complaint however those claims would be told under the statute of limitations under our position that it's both your honor so the test because the test for determining whether something's fifteen a amended complaint or fifteen the supplemental is whether the complaint adds some facts or changes some facts that is there any case law that says that an amended beating him into a complaint can be both amended and supplemental or that says it can't be your honor i have found no cases that have addressed the question in those terms but i have found several cases involving a complaint that is labeled amended and supplemental and so does that leave us simply was rule fifteen  the wall which we must interpret here for determining whether it's possible to be both or cannot be both for your honor i think that ultimately the different shouldn't matter which is the nd part of the question but just to explain amended complaint does drop certain allegations in prior complaints which garners fifteen a status but it also raises new claims that are based on events that occurred after the the prior pleading the last pleading he filed in prison with o'donnell which is subject matter for amendment purposes which is subject matter for supplemental purposes i think it can be both your honor i think the difference is more just about which claim clearly has to be a difference otherwise the rules makers would not have differentiated it to rule fifteen yes and the difference i think is it becomes it can be both because both means that you're changing based on events that occur prior to the original filing but it can also be supplemental if it raises claims based on events that happened after that original file or different consequences if we deem it to be amended as opposed to supplement bill and if we do both how are those consequences how does consequences play out in this case there would not be different consequences and here's why underwood fifteen a the entire amended complaint completely supersedes and renders the prior pleading deed the case law is less clear whether a fifteen to supplement completely replaces the prior but it doesn't matter it's i mean you have to concede that there's a different consequence right in the amended sure to suggest that will fifteen the supplements may sometimes supersede but here's why it doesn't matter because if even if a fifteen day does not supersede and replace at the very least it must be the case so we know that will fifteen the less a li raise a new post file in fact to cure a defect in a prior complaint and it must be the case that that new fact to the degree it conflicts with a prior fact because the defect that new fact must supersede because otherwise could never use will fifteen due to reason with fact security fact because any time a new fact cures a defect it necessarily conflicts with the fact that causes the defect originally and here the new fact that's relevant is that garrett was released from prison and i'd like to point out it's clear that had care filed a new amended complaint he would not be subject to the people right because he is no longer a prisoner and that shows didn't release prisoners are not subject to the people right so the narrow question in this case is purely whether mr garrett should be barred from reaching the merits it's all this academic because if i understand the facts and tell me if on wall once we get to the rd amended complaint the medical defendant's everything's exhausted just before the  nd amended complaint to the extent that there's anything related to the medical defense in the rd amended complaint there is no exhaustion problem and as i understand the deal see defendants have raised exhaustion so from that standpoint your good your honor yes that is one way that you can rule for garrett and we agree that you can reach that out my i would like to just note of the d s e defendant's raves and exhaustion defense below but it was not go on so you're right it's not in front of the score so correct mr garrett properly exhausted his medical can or claims excuse me on april th two thousand and fourteen granted he filed his lawsuit before that however you're right he filed a subsequent amendment and i also like to point out  none of the defendants in this case even filed a response until september th scene which is about five months after mr garrett exhausted so at the time that the litigation really got going you're right that all claims were exhausted however one of our point is more that in addition to that rather that mr garrett was simply not subject to the p r in the st place so he wouldn't have even needed to exhaust because had he filed the same exact complaint in a new docket original pleading and so yes right so in that instance to the extent that it's part of it is deemed an amended complaint why don't you have a schedule titian's problem with regard to some of the claims asserted because obviously it exceeds two administrative grievances from at least january th two thousand and fourteen he got to this prison january th and he filed his st complaint on feb th two thousand and fourteen and so at the very least the statute of limitations filed his rd amended complaint on february th two thousand and sixteen and so and ok yes it so those claims are less than two years like less than two years have passed and i just want to point out as well in any are not viable i will note that there are portions of mr parents complain that may not raise claims but he clearly raises several specific claims and those are viable colloquy that proceeded me are completely different and they have to do with whether or not the district court properly dismissed the th amended complaint  non specific and fluffy well the fact that you're arguing about seven incidents means that there is some degree of specificity and rule eight would appear to at least on its base be met that's an excellent question and i'm i'm i'm prepared to address we're also interested in actually the answers so it wasn't ruled eight used as a club here to knock out the in a higher complaint st to respond i don't believe it was used as a club because you have to look at the entire history of the case and his persistent failure this was the st one will say that what well i'm prepared to advocate that the cases so the case law should interpret roy eight to permit the judge to exercise h specific bullet points that my learned opponent presented as discernible within the complaint i was not conceding that they were in fact discernible or represented garrett was aware of how he had to just simply do not function as a basis on which relief can be granted one of the district court holds the district and this record just didn't like the complaint that's a correct it was an a it was i mean you know i don't we don't we had a slippery slope here if we say hey that's just too long all the rule calls for is a shortened plain statement the claim right that's why you have a lot of things yeah that's why i asked you to considerable hoping in context a district court exam is a specific pleading in particular subject to the language of rule eight both the language short in plain as well as our standard of way which is abuse of discretion would seem to provide the the district court here with with considerable discretion or at least with  really i prefer that you look at this is a as a course of conduct because it's an abuse of discretion standard on the judge and obviously she was taking into consideration everything else happened but let's say we ducked in that case we focus on this is the th amended complaint it's an satisfactory in a variety of ways the difference if there is one point i would ask you to take away from this in terms of my position it would be if in such a prolix dance jumble you can discern referring to the sixteen page complaint i specifics about events so wouldn't the more appropriate course of action from the district court have been to went her way through this sixteen page one way determine what's in and what's out rather than dismissed the entire even if you can find something in the midst of a particular way inaptly pleaded complaint you still may take that into consideration it's not the judge's job to winnow through the complaint and find issues because if it's that difficult then actually the judge  so so here's my question to you do you concede that exhaustion occurred with regard to the medical defendants prior to the filing of the nd amended complain why can't we proceed because we have a bright line rule that says exhaustion must occur prior to the piling up a complaint we hear and what that bright line rule set down in any opinion of the supreme court or this co if you think that that bright line position you're taking is in some conflict with jones versus bach no i don't think so at all why not well jones versus ba really should only be seen for the proposition for which the supreme court ruled that it's not the plaintiff obligation to prove the exhausted but the defendant's obligation to bring it forward yes but the court also said through the chief justice speaking for on on a supreme court decision that calls boilerplate to conclude that normal procedures concerning supplementation or amendment of complaints under rule fifteen don't apply to care made it should have been dismissed clearly if it's dismissed it should be dismissed without prejudice i would absolutely agree with a lot a lot were replete i absolutely agree with that ok so we have a rd amended complaint right and why should we have to forward and that allows me to get to the st point i want to make and particularly because it's not one that's well aggressive the bridge perhaps to suspect or some pattern blindness on our part given that we experienced  at the time if you look at the rd amended complaint itself and i read it again line by line last night there is absolutely nowhere in that complaint in which mr garratt says i have been released from prison in fact there are five only suggestion that he has been released from prison in the document that is the thirty minute complaint is that a handwritten address and target is on the bottom now we all knew this but as an operative complaint there nothing in there that would legally give the court a basis upon which to change the status of his incarceration through that pleading in the th and the complaint is very much in the same boat  more specific if if if he is permitted to be plead and there's no exhaustion she when there's no yes such a limitations issue then what's the issue that precludes them from going forward in these circumstances i think not because it's not as if the plaintiff filed a motion for many complaints saying you know what you're right i should have exhausted before i filed this i could just dismiss my case today and refile tomorrow and everything will be fine but can i just file and i'm going to complain instead i don't even think i would object to that your bill would but that's not what he did point but that's also going to the court didn't do it it should have done right because if there's a premature filing there's administrative remedies against her whether prior to bringing his claims in the st place or subsequently the grievances that were ultimately exhausted and do not relate to garrett's claims against her which are specifically tailored to an allegation that she discontinued mental health medications as a psychiatric provider in january of two thousand and fourteen there's no grievance that's been exhausted to that fact  a question i was next asked that is first of all you you would agree that prior to look to the department of corrections or the institutions specific rules and procedures relative to the filing of this position upgraded yes correct your honor the the inmates must comply with the specific policies and procedures for exhaustion in this case those are the policies of the pennsylvania department of a particular be the policy does not specifically say name each defendant rather says that any facts that are relevant to the grievance must be incorporated and to the extent of the name of the individual the individual's involvement the individual's conduct is in fact that is relevant is that it is pertinent so is it your position that there was nothing in the grievance in the way of factual or vermin representation that went amended complaint does not include any sort of fact any sort of a variant any sort of statement of an occurrence that occurred at a later date to supplement his pleading to reflect that he's been released from prison and if in fact that was his intention to say the president of the geisha reform act no longer applies to me i am no longer required to be sauced my administrative remedies prior to bringing this lawsuit that is something that would have been required to be included in his subsequent clear whether amended or whatever but i just you know assume for the moment that it was exhausted so if you assume for a moment that there is a grievance it says what we agreed says we you can come to different conclusions as to what that exhaust their administrative from abuse prior to bringing any claims at the outset of the keys whether or not other they were subsequently exhausted is not the question for the court to consider i believe that intended but that's that has not been made explicit and certainly it seems that the supreme court has not bought it so what you what you just made was a policy ari i don't believe it was exclusively a policy argument you honor and i disagree that the jones the bok case stands for the position that if you want to direct holding the head with you i'm sorry it's not a direct holding that i agree  brief it's on page fourteen footnote ten we point this out but i can give you the appendix numbers of the answer is it was he did you you pointed to the degree and he raised the grievance and he properly exhausted it so in j a to sixteen i don't have to number for that it's paragraph five the rd amended complaint he says he did fully exhaust but next i'd just like to quickly turn to the point that was made about he didn't allege that he was released on the face of the complaint i don't think anywhere in the p r i or in any law it required anyone who is not a prisoner to allege in the face of the complaint that they're not a prisoner and also mr garratt did tell the court and the parties that he was expecting release the court closed the case because he is affecting  an amendment after being released and after the other side moved to dismiss this rd amended complaint he responded by saying i'm no longer a prisoner i'm not subject to the all right so he did put the parties on notice in my last point i'd just like to point out that the opinion should focus almost entirely on the rules on our procedural rules regime the response i got from ms neal in had some difference of opinion not with respect to the words holding but the important decision seems to me that one thing that has to be conceded is that what the supreme court teaches is that with appeal  heads not told us is not instructed us where congress is not instructed us to look for some exception if you will then our course has to be to look to the existing rules of procedure would you agree with that i do agree with that i'm out of time but i'll answer your question i think that's exactly right and i think the point that miss no makes about exhaustion being mandatory clothes the ability to fix it and if the last point the defendant's position would actually turn will fifteen which is clearly designed as a tool to reach the merits into the very impediment that it was designed to avoid so much you have any other questions thank you thank