the exhaustion issue in this case essentially turns on one issue notice under this court's precedent and raised the if prison officials had notice of the eighth amendment claim an opportunity to resolve it and heard it through all three levels of administrative review that mr cruz exhausted his weapon remedies by way of that procedural waiver here prison officials did have a notice of his eighth amendment claim even if we only look to his originally filed six o two form in that form mr crewe stated in his request for relief i request that c open a court and seo creo quote stop telling others to beat me up he also said in that same six o two form that he was raising an eighth amendment claim and he further stated requested that prison officials investigate the incident on may fifth at twenty fourteen all of this information taken together shows that mr cruz was raising it commandment claim that officer been to court was orchestrating fights between mr cruz and other inmates and even only on the face of the sick so to form prison officials could have had notice of this claim because now the district court didn't agree with you what did the district court do specifically that was wrong specifically the district court there were there were two reasons they decided that mr cruz failed to exhaust claim one was that they decided that it was on time we filed however prison officials waived the untimely filed what what what what are you referring to so when prison officials had notice of the facts that mr cruz was filing a claim regarding an incident on may fifth twenty five or may fifth twenty fourteen in september they could have at that point followed the non conforming grievance procedures of california regulations and cancel his appeal stating that it was untimely filed however they chose to not do this and instead continued to hear the grievance through all three levels of administrative review and in that way they waived any procedural defects that might have been present in his originally filed six o two form from either being untimely filed or not containing all the facts that cruise knew as required by california regulation i've read  but both are separate claims here although he doesn't specifically state his investigate the may fifth incident claim is tied to a fight even if prison officials investigating that incident just looked at the law the instant logs for that date which are at our f c c or our s t r thirty one to thirty two they would have seen that there was a fight between cruz and another inmate on that date and could have surmised from the other information mr cruz did discuss the august sell search if that is what you are referring to the august eighteenth two thousand and fourteen incident was that raised in district court i couldn't find as as a separately about the fight eighteenth no he did not raise that at the district court he only was alleging that we can consider it here i don't believe so no and we did not raise that claim and in our appeal the the fight on august eighteen however the may fifth fight was raised and they originally filed six o two that is the claim that mr cruz brought in the district court and that he was seeking relief on for his his injuries from that the four broken ribs there is always a hard thing you know try to argue this is going to share your time with her i am and i see that my time is running low so if there's no further questions on exhaustion i'd like to see the rest of my time to my co counsel thank you a retaliation claim has five elements one of which is that the in this case that betancourt knew of the complaint against korea where on the record is it evident that betancourt have that knowledge there's no direct evidence that officer betancourt was aware of the grievances but crews did present circumstantial evidence that he may have known he alleged that officer but with with respect if you're five elements to is fairly strong the circumstantial evidence can support the because of element of the claim that's clear from mccollum and several other cases and there was circumstantial evidence showing that the two were for partners which in a prison scenario and particularly in this prison in mckinley hall from the logs at r a c r thirty one showed that there were two officers working in pairs at any given time in the prison meaning these officers would have been dependent on one another for their safety which would have presumably developed a close seemed kind of sketchy though i mean i realize you can make it an implication but that that's all conjecture part of on conjecture based upon the circumstances in which they work but there's no i didn't see anything in the record that indicates any information showing that did not state that he knew about the grievances or that he was retaliating because of the grievances but his behavior considering that he that he performed the search against cruz shortly after the grievance was filed coupled with the fact that he used the grievance or excuse me use the search to orchestrate a fight in which cruz broke four of his ribs in addition to korea's statements to cruise while other searches were happening you serve the search well was for a legitimate purpose with a lawsuit about one of those searches and a different fight with a different inmate on a different date the district court correctly answered summary judgment a new claim because mr cruz failed to exhaust comparing mr cruz's september seventeenth grievance with statement could only refer to the confiscated television because there is nothing else that mr cruz allegedly happened on that day in the grievance he also complained that his cellmate mr davis beat him up on any time before august eighteenth and did not name in the osborne that statement was not sufficient to put the prison on notice of his current allegation the court's analysis should end there because the prisons investigatory interview is not part of mr cruise's grievance but even if the court considers the interview it's still not sufficient to put the prison on notice of this current allegation but much the bottom line and i think my colleague was touching on this is the there are two different events two different days may fifth and i just august the eighteenth the initial claim was for august eighteenth which involved one set of facts but what was talked about in the district court was the may fifth have been which of all the separate set of facts therefore there was no exhaustion and the and that's pacific case the retaliation claim was brought not by an inmate but by an employee but even if circumstantial evidence is sufficient it has to be the kind of evidence that a juror can make the inf that an officer act in your calculation for some kind of protective conduct and there is no available inference here here mr cruz went on property restriction on april fifteenth the two officers work together dinner in the same location yes said to him about that kind of issue it's not the kind of issue does a safer custodial care i would think that two officers who work together in a custodial situation would want to share information because it would help them perform their professional duties right it's possibly honored but in this case there's no evidence that officer creo told officer betancourt and that's why that claim fails but there's also the other issue is that mr cruz one proper your fiction on recently imposed property restriction that when in fact almost the same time it will be for the grievance so there's just no inference that it was retaliation would there be a claim if we assumed knowledge even though there was a claim so if the motivation was retaliation but there was a legitimate pain a logical interest could there be a claim or not there would not be a claim of the first amendment there may be other reasons to discipline the inmate i'm sorry disciplined officer or bring some other kind of a state law claim if it applies but the case law requires that the inmate prove there is no legitimate can a logical interest of the case the bruce case is distinguishable because in that case the inmate had been so he had to file some grievances before that prison investigated whether he was a young member and on two occasions he concluded that with evidence that had he was not a gang member then he ha filed some grievances and the prison then investigated again and used the same evidence to conclude that he was a gang member and this court said that in that kind of situation where the sure the prison is required to investigate whether inmates are members of a gang or not but here when they had twice concluded that he was not a gang member and then the third time use the same evidence to say that he was that puts in doubt whether there's actually as it was in the correctional interest to what they did here there is no such case the interest was tailored to mr cruz because he had violated prison rules and had been put on this property restriction the first search was necessary to check if he was complying with those rules and revealed that he wasn't there was a second search a couple months later that showed that he still was not complying still it began revealed prohibited property items and a third search a couple weeks after that show they were still not complying so for those reasons there was  well i have two very brief points on her battle first cruise did provide the prison with notice of his eighth amendment claim related to may fifth and through a combination of the grievance and the second level interview which was a part of the grievance process cruz did give notice of the run for the rejects that was sought which is the standard for a raise and griffin he alleged in the interview that a white inmate slammed me into the ground and broke my ribs which is in the  seventy seven and allege that they were setting inmates up to fight with him this seems like clear notice about claiming the prison officials are not able to simply not address that claim or give it back to cruise as procedurally defective  again there is no legitimate pain a logical purpose behind setting up crews to fight another inmate thus whether or not having both a legitimate motive and an illegitimate motive would insulate the officers that question does not need to be reached because cruz alleges it was used to set up a fight thank you thank you thanks to all of you especially to our it was amazing to please all that into that amount of time did a great job have great careers ahead of you so thank you