prisoners to exhaust unavailable remedies that are practically speaking incapable of use to obtain relief so it does not require a prisoner to go down a dead end as the supreme court put it in ross versus blake to try to exhaust something that will never result in any relief also doesn't require exhaustion of remedies that are so opaque and so confusing as both ross and this court in the williams case have said that they just as a practical matter are incapable of providing relief for a prisoner that is what the grievance procedures were here they were opaque i do think they were opaque i think the opacity such as it is is this this is what they say twenty one days you have to file your grievance within twenty one days it seems clear very clear nowhere in there does it say oh but by the way if after enduring a beating at the hands of prison officials we decide to ship you to office of mental health custody because that's where you need to be you're going to get twenty one dollars days you're only going to get whatever amount of time you had argument because doesn't that suggest that if it was not clear to your client that he couldn't file from major custody that he should have tried to file from custody which he did not do well the question away after the twenty one days is gone absolutely and i think the teaching of ross versus blake and williams is that what the statute says is you have to exhaust remedies that are available if the remedy is unavailable because  kind of helpful but let's let's stick with that and if might be better had a rule that said you have to throw in twenty one days but you can't file from only may then there's no tolling so there's definitely no tolling everyone agrees with that and i do think it's also just a straight dead end and i think even the the district court below said well after five days yeah that does look like a dead end to me so the question because if you only get the five days if you can to be cut off up to twenty one it's twenty one days right exactly and so whether we're talking about five or we're talking about thirteen this is just a question of can approve can a person get a prison grievance procedure that has a twenty one day rule without notice just cut it off at five or thirteen or any time before two things one of the things you think matter one does it matter that it was the act of the bureau of prisons that made the remedy unavailable after whether it's five days or thirteen days yes i do think it matters and i think he just that day thirteen let's assume i don't think this is quite this case but let's assume after the beating he's more or less fine mind it's clear he can file a grievance he's got twenty one days but suddenly at the thirteen he has a stroke and becomes incapacitated for a while you wouldn't be saying would you would you be saying then that he only had thirteen days and so he didn't really get his twenty one dollars so i mean there's no tolling so we have we have another argument our beef about his mental health and that being kind of an open question the circuit well that could be let's put that to one side and let's say the court didn't go down that road no it would be it depends and i think the other side use the analogy of an accident let's say he had an accident  we use the analogy of a statute of limitations it is the prison of the big difference between that is it is the prison officials conduct on one fact that matter is helpful to you very much so i think the thing doesn't matter and if so what does the record say about this whether he had any notice that he was going to be transferred to i'm age because i'm looking ahead at what rule where establishing it seems to me a very common situation is somebody has a grievance at rikers island at a point where perhaps he knows that the next step in his progress is to be sent to a different institution to serve a term right and he knows that that's going to happen some time short of twenty one dollars days is it then his obligation to you can he say well there they transferred me it was their act and now under the rules i can't file a grievance at green haven about what happened at rikers i can file a grievance that writers want to make green haven catch twenty two in other words but that i knew in that circumstance that he wasn't going to really have twenty one days accurate i mean if he's act dream haven he can file his grievance but he has to send it to right that's my understanding i think office of mental health custody is sort of a different animal or at least it was i think the thing that's changed but just to answer the question no there's nothing in the record that shows that he had any notice i think it's quite clear that he didn't have any notice about either going to happen he goes into custody and then under the rules he can no longer file a grievance that that is the problem it's not a question of we could have filed that the next day if he wanted to or something like that is that he didn't get the twenty one days in act  amendment of the statute of limitations of someone is in the middle of their statute of limitations period the legislature decides to move it back and then all of a sudden it's cut off it's been the law supreme court case law for many decades that you would have to get a reasonable reasonable period of time after that in which to file a grievance that did not happen here i think everyone agrees that whether it was day five or it was day thirteen that was it because he was in office of mental health custody for seven months the forty five day there's a little bit of play in the joints for forty five days is a hard cap and so at no point after either day five or day thirteen say if we agreed with you that maybe he should have a reasonable period to file a grievance from our marriage is there any due diligence requirement or is it any problem for you that it's rather longer than forty five days before he even makes an attempt and that in a context where it's not as if the rule says in some bright red letters don't bother you're a no i made no i don't you know i think that going forward if this court were to say look at the very least  this is what prisons would have to do in this situation you have to give a reasonable period but here we're talking about is a statutory requirement of availability and it's conceded in all agree that there was no availability at any time so how can you say  he never tried but williams and i think williams is very instructive on this it refers specifically to the need not to engage in a futile act because we're talking about this is fundamentally a question gets there in september twenty three i believe he's back in great nick and then in november there is a attempt to files and after he's an addict or when he st files right after he's out of own age think that i think that's correct i guess the question is when does by it was over by then even if he had it wouldn't worked the forty five days was a hard cap and so it was unavailable i'm sorry i'm sorry to interrupt i'm sorry to interrupt but he didn't attempt to even make sort of a tolling argument is the point he didn't attempt it no but we know from both the record and what the people who processed the grievance grievances were saying to him that no tolling argument would have worked it was a hard forty five day camp it was unavailable and he didn't have to engage in those futile acts that's fundamentally our point thank you good morning your honor i'd like to begin by addressing judge lynch's concern about the rule that you're struggling with and the rule that the defendants would like this court to adopt is that under the availability analysis if an inmate has a meaningful opportunity to pursue the grievance process prior to the transfer then it has to be available now mr romano thirteen days leading up to his transfer we agreed that thirteen that mr romano didn't file a response to our summary judgment papers at all i would direct this court to page eighty nine of the appendix that's the botsford declaration and we say there that he was not transferred into o m h custody until march nd that's corroborated by the inmate movement report on page one hundred and three that also says discharged into on custody it's further corroborated by new york law something that  important for the court to understand is that when you're talking about moving an inmate out of doc's custody into another agency's custody there's a set process for that it's a new york correction law for two and to do that you need a court order it's not as easy as simply placing them in another cell within the same prison and also note that on page eighty nine they do specify that this oh i'm a jobs or visions is inside about a cup so he hasn't left the department's custody until the four o two process is completed they get the court order it's not as simple as being like process the way all that you are suggesting whether it's five days or thirteen is that you're it might have been a perfectly reasonable rule to say you only have five days i'm not sure that a court would say well that's not a reasonable opportunity the rules five days you have five days it's  question of the five days is reasonable is that here's a person who was told you have twenty one days and then halfway through that period approximately more than halfway through at best for you he is told ha ha it's no longer available and if your honor the twenty one days and to address your concern it says in the regulation within twenty one dollars days or so doctors making clear twenty one dollars days is the outside limit with which to file a grievance that's it is within twenty one days i mean that's the outside limit but we can shorten it as we see fit your honor the department isn't shortening the statute of limitations it's informing him that he has twenty one days just like any other inmate but it's not it's not trying to have twenty one days your honor he the department's not trying to blindside him the department went through a statutory process to transfer him the fact that he doesn't process he would have had to be interviewed by two psychiatric examiner is at the very least so it's not as easy as simply spiriting him away i know there's a process talked in other words this is not like an adversarial process is it where he has a right to resist being transferred and he's given notice that we're going to transfer you on such and such a time or point transfer you sooner or  later and we have to get a court order and what do you think about is that what the processes are not under section four o two i understand it to give him a right to demand something of an adversarial process under some circumstances but i'll concede that the record here isn't clear on what exactly happened we only know that he entered custody on march nd but getting back to why we think that this rule is the correct rule we would anchor it in ross versus blake and it's rejection of special circumstances and especially its definition of availability now perhaps mr romano expected that he would have that extra to file his grievance but under the revised definition of availability articulated in ross an inmate subjective expectation no matter how reasonable has no place in the analysis availability is defined as capable of use a possibility for giving him relief that means that if mr amano had the ability between day one and day you thirteen to pursue that grievance process yes his failure to do so isn't the result of anything that the department of corrections did to him it's a product of his own choice and just as with any deadline you procrastinate at your own risk you asked your own are whether it matters that it was the department that effectuated this transfer i would contend that it would matter if there was  somehow done as part of the grievance process certainly if the department tried to get him out of their custody in an attempt to thwart him that would be relevant but here the only facts that are in this record show that something happened to him that inspired the department to believe that he had to receive treatment i know i'm a match in that sense it's really nobody's fault it's not mr i'm clear so let's imagine there's not a situation with all it's just a garden variety inmate with a grievance he files it on day fifteen and the department says you know what we decided the twelve days was reasonable we're not going to consider this ross you think that that's ok your honor i think that that was available to you had twelve days time was available we didn't we didn't prevent you from doing this your honor i think the difference between the situation you're describing and this case is that there the department would have been engaging in machinations that something that ross expressly identifies so there we don't think imagine somebody just sincerely believes the twelve days is more than sufficient time for an able bodied even perhaps college educated in maid to get his act together and avail himself of this really that's ok your honor if there is a set deadline and there's no good reason for shortening the has an opportunity to file and then the prison administrators realize i think he needs mental health care we've got to get some psychiatrist in here and transfer him that's not machinations that's correct your honor and that's why it's important to note that nobody is truly at fault here the department is doing what it's obligated by statute to do to get him mental health it's not acting to shorten the deadline not a problem with the prisoner's expectations if you're told twenty one days i don't know i procrastinated you think ok i'm going to get started on this about seven and in then something it's not his fault either in it does seem i guess you changed the procedures you made amends it seems bizarre that the transfer to a mental health facility could arbitrarily cut off your time in this way well not if it's considered that the process is capable of use before hand that is the definition of availability articulated by ross and that's why we have analogized it in our brief to an accident so capable for use in this case i mean that he was in a position to file during the thirteen days we would argue that we carried our burden to show that there was a grievance process available to him and then the burden shifts to mr romano to show that it's that it's available as a factual matter and that in light of his inability or  his fusil to submit any response to our exhaustion argument on summary judgment that that would be the case that we established that he didn't exhaust he failed to establish that it was unavailable i know that he was in the infirmary for five days but that's the only piece of information we have that he's in the infirmary he could have said in response to medical information that he suffered a broken bone that's correct we do have the nature of his injuries but we don't have any kind of contention from him that his injuries put him in blinding pain we don't have any contention that while at the infirmary he was under such a round the clock medical attention that he just didn't have time to think about agreements we to custody does that say nothing about whether he was psychologically capable of taking advantage of the grievance procedure not without more from mr amano your honor because what he could have done with i was incapacitated he could have described something in the cell keep in mind that men still hasn't carried his burden because he didn't say which he could have if it was true he could have put in an affidavit that said you know i wasn't in my right head during that whole period i was in such blinding pain or whatever the condition is that would have kept him from filing during that period and his his burning this is to at least tell his side of the story in a way that would permit a court to make the reasonable inference acknowledge that it's a reasonable inference in light of this these facts that he had some kind of mental health problem going on he wouldn't be transferred to m h custody without that who's in for this right that's correct your honor but keep in mind when we're talking mental health we're talking a gigantic field some mental health disorders or policy is the one that says nobody used to say that nobody who's in mental health treatment is allowed to file a grievance that's your policy if you want to take a broader view which i guess you now do that being merely being a mental health treatment doesn't prevent you from filing a grievance that's one thing your honor it's not i don't see that it's not about nobody being in mental health treatment it's about being in the custody of a different agency so it's not about incapacity but he wasn't we have your honor but he we would say that simply being a no i'm a custody doesn't make him presumptively incapable of filing a grievance if i could give this is i didn't think it was at st but is it clear to prisoners that if by some chance they're with their consent or against their will they are put in all  made custody that their time to file a grievance is going to basically take away is that clear the regulations say that you have twenty one days to file a grievance and you have to file it at the facility where your house so i he's sending a grievance back to attica from oh i'm h he's already violating that regulation on its face if he's in a different facility he can the question i have is if you're at attica but the events that you're grieving against took place fifteen days earlier when you were at green haven what do you do you're still able to file at attica green haven right yeah so if you move to green haven if you're still within the department of correction and you can still file you file your grievance at green haven referencing what happened to you at attica right now no your honor it's totally different that's a totally different thing because it is a different agency altogether they they have said time that has really been mentioned was for the st time just now on oral argument this isn't an argument that he raised below certainly he didn't raise any summary judgment response below and it hasn't been raised in either of the council briefs so this should be decided on one days but if by some chance you're put into oh h custody they have a lock you have twenty one days and if by some chance anything happens to you that's going to inhibit you from filing within that twenty one days you're going to be out of luck that's why we talk about an accident or as your honor pointed to if he had a stroke if he chooses to procrastinate for a two week period and something outside of his control prevents him from going the rest of the way then he's blown the deadline just as he would with the statute of limitations or any other filing deadline it shouldn't be different just because of what we're talking about here's administrative exhaustion the bottom line is that he did have nearly two weeks on this record to file a grievance and the fact that he didn't is not a product of anything that the department did to him it's a product of his own choice not to file and that's the rule that we would ask this court to adopt i will say in the alternative if this court believes that perhaps there was something keeping him from exhausting within that thirteen day period the remedy wouldn't be to find that he can go to trial t doesn't mean exhaustion or trial if there are factual issues related to exhaustion you get a hearing thank you just to very brief points in your honour's st on the state of the record as between five and thirteen there is a question of fact there if you look at a ninety nine in the appendix for example that's the internal movement history display that seems to show he seems to left custody on the nd of february didn't get back no record no record of any internal movement by him til september rd so at the very least it's a question of fact on five versus thirteen but more importantly i'd like to respond to the procrastination rule that counsel on the other side is offering and with the court's indulgence just kind of apply that to offices or something we're actually not going to except that brief i guess i had procrastinated and perhaps i should have been more diligent and filed the thirty days early but for this court or any quarter any grievance system to say and you know what going forward we're never going to accept it because we're only going to go up to ninety and you're not going to be back at that office by day ninety or something like that that is unavailable remedy that is as a practical matter incapable of effective use and it should not matter that i didn't proffered the brief a day eighty nine if i was told and it was clear we're never accepting it too bad sixty days was enough and even though you know we had said it was going to be ninety one analogy would be any difference if instead of going to your client had a stroke could be thirteen there'd be a big difference now i think we would still have an argument as we say in the brief it's open question whether mental illness or physical illness can sometimes fit into the availability regime but it's very different when it's not a stroke that just ends it but rather the act of the d this necessary move to put him in custody but that is different absolutely were in fact you know i don't think we've ever argued that there was anything malicious about the transfer we're saying the combined effect of the transfer plus the rule that argued case on the calendar this morning