it please the court the district court's cursory proceedings in this case had no basis in the federal rules of civil procedure or the governing case they reached an incorrect and unfair result and mr c and if permitted will and other similar cases insulate prison determinations about inmate exhaustion or remedies from any judicial oversight whatsoever while the p l o puts many limits on prisoner suits it doesn't make prisons the final arbiters of whether prisoners can access federal courts the district courts areas here appear in two separate orders that i'd like to address in turn turning first to the aug twenty fifth in order where in the district court ordered m provide exhaustion documentation the first important point about this order is that it was inappropriate in the first place because exhaustion is an affirmative defense that the defendants need to improve but even if it's to a sponsor order of some kind could be appropriate this order was not looking at the order itself it's a boilerplate order it's about fees and exhaustion and it didn't provide mr custis notice of any potential legal or factual deficiencies in his complaint and it didn't provide him any meaningful opportunity to respond on the issue it tells on page join appendix sixteen it tells him you can submit either the grievance documents themselves or statements about the documents themselves that's all this order allows him to submit on the issue of exhaustion and the problem here is that that would not reveal even the most egregious instances of a grievance process being unavailable under blake and earlier precedent in this case it didn't provide m procedure in either case this order alone requires reversal second turning to the september order where in the district court dismissed mr justice's complaint for failure to crude exhaustion first this order again places in an inappropriate burden it says mr custis and if you look at joint appendix twenty four it says given the plaintiff's submissions do not show he fully complied with the prison's grievance procedures  dismissal is warranted and that's just inappropriate we know from the jones case and from the main holding in andersen that exhaustion is an affirmative defense the defendant's need to plead and prove a second this order is  error because the district court failed to consider any evidence whatsoever about what the grievance procedure at issue actually was the grievance procedure is not in evidence in any way it was in judicially notice by the district court and as you can see from the briefs both sides here had to struggle to figure out how to even provide context to these documents and by failing to even look at what the grievance procedure would have been the district court couldn't have considered the availability of the procedure and we know from the supreme court's recent decision has exhausted the available administrative remedies and that's the requirement it requires an understanding of the remedies available here even on appeal both sides are struggling to put before the court what the process that the please if you should have the opponent here should have followed and the fact those were even before the district court renders that this or court's dismissal order erroneous for for that reason alone a third of the district court here in this order it doesn't specify whether it's proceeding under some kind of motion to dismiss standing in the shoes of the defendant's process or if it's looking at more of a summary judgment type process unclear but under any of any of those processes the way that it looked at the facts here was wrong is very clear that this is a situation where he is contesting the prison's judgment about his use of the grievance procedure this is exactly the kind of case where availability issues like those outlined in blake should be considered by the district court before dismiss that's not a fair reading of the statements in his complaint at all because he's saying i'm contesting what happened here i'm trying to use this proceeding and i'm appealing their obvious cation of it we've also point in throughout the briefs and especially of pages thirty one through thirty eight of our opening brief of how even looking at just the bare documents that existed during the district court proceedings here just looking at those alone there are numerous issues that should have raised concerns about availability and made this the kind of case where even if we're going to continue to a spontaneous missile and some prisoner cases this would not be one where it would be appropriate and while we've run through a number of errors in both of these orders i want to emphasize here that is not a situation where to handful of minor errors taken together what this process does is it insulates the prisons determination about prisoner use of administrative remedies from any meaningful review while we don't have to say that there was certainly malfeasance here we know from the supreme court decision that there are instances where the prison itself is what's making the process unavailable and yet under the district court's proceeding here it just said the doc said you didn't do it right  that's it that can't be the case because the p r a well puts many limits on prisoners doesn't make prison officials the ones who determine whether federal courts can hear prison or complains now there  numerous concerns raised in in the briefing and in other similar cases about whether district courts can handle prisoner cases like this within the rules of federal procedure we say yes they can and the federal rules of civil procedure include  cases like this one we also would submit that to the limited extent policy considerations are appropriate when looking at how cases should be handled and we know that extent is limited because the supreme court told us so in jones said we should not generally be reading beyond the statute just to effectuate policy concerns to the extent that's a consideration the actual practices of many district courts in this circuit show it's quite possible to look at cases like mr custis is through the normal rules of federal civil procedure in such cases prison defendants commonly can move for a summary judgment using the evidence that would be an a declaration from the prison official attaching the relevant grievance procedure and in the best practice would also be attaching information about an individual plaintiff's use of it and district courts can also act to move quickly through these types of cases where warrington they can raise summary judgment on their own motion and use the protections that would flow through a rule fifty six and if this is a case where the face of the plaintiff's complaint somehow demonstrates all elements of non exhaustion which would include a general showing of availability after blake perhaps even a real twelve c motion could be had from defendants that might be possible and looking to the guidance of other circuit courts to consider the management of these type of cases many of the sr circuits here have explained that district courts have ample authority to order and to limit discovery so that perhaps issues of exhaustion can be addressed before a full some case into the merits proceeds the type of procedures might be appropriate and should not foreclose the basic application of federal rules to cases like mr custis is there some let me ask you about sort of the process in the circuit because i think you take issue with the broader process and say that it's wrong to begin with but the onus on the honor no it's not what's clear on the face of the complaint is that mr custis actively contested the grievance procedures that were used in this case and that can't be the kind of case that's appropriate for screening of some kind under a parent on the face you might have been better off saying nothing about exhaustion right under that this it's nothing that is not well your honor i think there is actually a base problem that your question points out which is that mr custis believed he was required to use a form complaint the requires him not just to plead exhaustion but attach documents and there are several districts in this circuit that do that it's leanly contrary to the jones case and is a problem here we don't know precisely which form he used here  some cases yes and it appears from our understanding to be a requirement to and so we'd be happy to submit supplemental briefing on that we do think it's a base problem here and it's not a pleading requirement and so requiring an inmate to attach documentation is certainly even a step beyond that but to your point of what that requirement means it means that all elements of the affirmative defense would have to appear on the face of the complaint and we believe that especially after the case but even interbreeding prior cases that includes some demonstration that the that the grievance process was actually available to that particular plaintiff and so you do see instances where this situation could arise we've quoted a couple in our briefs where you have a player who says i knew about this grievance procedure but i didn't want to do it i knew about it i've done it before i didn't want to do it this time and so maybe in that kind of situation you have a concession and again we really  unable to really begin the process or something like that or mark correct your own and we think squarely is probably a generalist description of what this required from the from the plaintiff's but yes we do think for example we don't have evidence in the records we can't say oh he was on extreme pain medications or unable to prove processes for x number of days that's not here but that's the kind of thing that is clearly established as an availability problem in case law i'm creating blake and at the very least here you needed a process that would allow him to explain that and that's a critical thing here is he never even had a single opportunity to describe what he thought the problem was so you know we would agree that there are numerous potential availability problems another one we see is we don't know because we don't have the grievance procedure and when in view doc was supposed to respond to his informal complaint or if it was even possible for him to file his regular grievance on the same day he received his informal complaint disposition and because that's clearly cued up just on the face of the documents so there are numerous issues here along with his statement and his complaint which is all that's required at this stage that i am appealing this i tried to appeal this determination i that you fronted your honor we do think that there is reason here to look back at anderson and the whole to a spontaneous missile process as a whole you don't have to do it too fine for mr custis here to remain on to the district court because largely on the rationale that the informer popper a statute asked district court to scream but looking at the p r a and especially after jones and after blake we know that the exhaustion affirmative defense granted by the peel array isn't a separate statutory provision from the screening that's granted by the people are a and in jones the supreme court said the fact that these are are different matter and so when you have a statute that behalf of the commonwealth there are really two points i want to focus the course tension on the scoring is that first after the supreme court's decision last term and ross versus blake we now know that there are no extra textual exceptions the p r a's exhaustion requirement so this case to the commonwealth presents a very kind of narrow issue of whether or not a district court properly complied with this court's binding preston anderson and more in dismissing mr custis is complain after giving him the opportunity to respond because the plane showed on its face  improperly exhausted his administrative remedies and then second that applying ross's availabilities factors to this case in the three circumstances laid out by the supreme court makes clear that dismissal was entirely appropriate here first and this case is tailor made to anderson's framework based on how mr custis played his complain and anderson the court did go ahead and point out pretty jones that exhaustion is an affirmative defense but it took care to also make clear that district courts in a certain subset of cases could act on its own motion and what was required were two things that judge diaz pointed out which was one of the inmate have pleaded on the face of the complaint and the fact that the administrative grievance process was not properly exhausted and at the end may then have been given an opportunity to submitted that's exactly what happened here in his complaint mr custis attached a verified statement and that's it j fourteen of the record and in that statement he said quote i have attempted to exhaust my administrative remedies but my grievance was rejected as untimely and at that moment the court is on notice that this is not proper exult it properly exhausted at least there's a question about it proper exhaustion underwood for requires compliance with the procedures deadlines and that's what's necessary to have appellate letter which was step three and here when is scribus was of logs or the intake procedure and his regular grievance shows really two independent failures the first is that he was untimely under the thirty day deadline which is referenced and laid out in full on j nine on the regular grievance it says that you must file your regular grievance within thirty days of the date of the incident or occurrence and here mr custis his grievances are very clear on this point and his complaint is very clear he was grieving and he's filed his lawsuit alleging an violation related to being house in an upper tier cell which was and c alleges against his medical records is missing several toes i believe on one of his feet and he was not supposed to be housed upstairs he was moved to that upper tier cell as he told department officials on aug eighteenth problematically he filed his regular grievance on september the eighteenth which is thirty one days late it may be regrettable that he filed one day out of time but the fact is that that's on time in the second row i mean but we don't have any evidence other than the fact that he says shouldn't there was some indication that he had some physical ailment ailments that prevented him from perhaps complying with the deadline  deadlines and themselves are low but as the scribes were early because they don't impose a deadline for the front end filing of the formal complaint but then have this outer limit of thirty days which suggests that that might be that might be problem it is i think you asked two questions if i can split off the first you started to say there is no evidence here on jay nine hundred regular grievance it was denied by the prison officials for being on time these explicitly under this rule that it needed to be within thirty days of the date of the occurrence and then with respect to whether or not he was the timeliness based on his injury was unable to fully comply with the deadlines for some of the reason we point out that he was moved up stairs on august eighteenth which is a long time i can't i don't know the exact number of days between when he was moved and he fell in september the second he could have grieved that issue any time between august eighteenth september the second reason the part that's not on the record why the party doesn't have an informal complaint deadline for when to file that after the incident occurs but if we did have a date on the financing you have to file within five days of the incident we would then be accused of short circuiting it because they might have had a reason why they could file it in five days what date ten shows is under the informal complaint procedure the department gets fifteen days from the date of that a formal complaint to respond and that you have to file your informal complaint for you can file a regular grievance here the department actually responded to mr custis in six days he says in his complaint and is a formal complaint it's the department shows that he found in september the eleventh they tende him an answer on september the seventeenth he now before this court wants to read in that department like waited until the last day to come forward and provide an answer but that's just not indicated by the record isn't formal complaint actually shows that department gave him a crystal clear answer for why he was housed upstairs he had to ask to have his cell repaired and the department acquiesced in that and they had to reassign him the purpose of the reassignment given in the informal complaint is that this was the only available bottom bunk and his medical records chart that he attached to his complaint shows that you're supposed to be housed in a bottom tier cell bottom bunk so the part of put him in a bottom bunk with the only one available cord into them was on the upper tier about his argument that the deadlines are not of begun to run from the  that that harmed him and from the department's perspective it would have been in everybody's interest in this case for him to have come forward sooner to say hey i shouldn't be housed upstairs my medical records are against this because in week they could have potentially taken action prior to him falling down the stairs so he had a period of time where he could come forward and told the department you know about the problem before the injury occurred because he's not saying that you violated my eighth amendment rights because i fell down the stairs your valise he's saying you violate my eighth minute rights because i should have never been up comes to the level of the very injury that we're on or if he thought that he was in a position of extreme harm for example like he really is a fall risk he should never been upstairs in the department which was unwilling to meet him he could constitutional right to live here we have the aga and you weren't injured so you can't win because then you go all you're doing is just rouse to eighth amendment because as you agree there's no right to a certain tier floor position there is no incentive for department officials to prevent him from using the grievance process to encourage him to fall down the stairs before fixing the problem it is in everybody's interests to resolve these issues at the prison facility they would rather not be in federal court or have an end majors now suffered some other additional injuries that would have been on everybody's interests to have had just raised earlier if i may return back to the andersen framework once it was clear to the district court that this had been improperly exhausted for two different reasons the second that i don't think i mentioned was just that his you have five days to appeal the refusal to take your grievance he mailed it to the wrong address we agree with him that the address for the original on budget is not in the record other than as an as part of the procedure here but there's we would submit to the court that in future only not in the record but there's another dress in the records and the bill that misleading that address comes out of the more recent operating procedure at sixty six point one there are two different bugs bins we missed that it's confusing the better process for the court would be to focus on the one day it's clearly on time when the what the right address is for the regional law your honor it's not in the record but we would submit to the court that it would likely come out later that it's posted at the facilities there usually drop boxes for these mailing it to the wrong one but i believe there's only one set of pretty good evidence he didn't have the right address people make mistakes your honor i mean he could have just over thought this made a mistake clearly there are two addresses there is the regional own judgment in richmond as a level three address that goes for things like  at that address wrong where could he have got it from but well from the operating procedure a sixty six point one has that address and it was got i guess local ombudsman but it doesn't have a name and address but not the regional was so the one he sent it to is more of the state seventeenth in order that said we're going to dr complain or the p l o array but you need to come forward and show exhaustion and that's entirely appropriate in light of the fact that his complaint facially shows that he wasn't he had not exhausted and it said that he could make statements or anything the local rules don't allow him to say no it's got a test some proof of exhaustion from the get go your honor there are four complaints to both the western district in the eastern district use they do not come from the department of corrections and we have this complaint to take at face value of what he has filed and here it is as he points out it's not clear exactly which form complaining used may be a hybrid of the two it's it's just a ballpark of what he thought he needed to plead to be in federal court and unfortunately here he did plead exhaustion even though he wasn't required to under john and i want to make one point about jones because it doesn't undercut the andersen framework at all jones agrees with andersen that this is an affirmative defense but in jones the court goes on to talk explicitly about the statute of limitations  fense as an example of why you can dismiss before summary judgment and chief justice roberts point peace justice roberts points out that you have a statute of limitations bar pled on the face of the complaint and if that happens it is obviously open to be being dismissed for failure to state a claim and he says that right in june and that is effectively what happened here he pled on the face of his complaint that it was an exhausted or improperly exhausted the district court asked him to come forward and show that he had in fact complied with the mandatory exhaust requirement he didn't do so and then he dismissed they dismissed the complaint on the second point about the rosses three rate three recent availability factors i think it's important to step back and note that ros really did two things the first is it made absolutely clear that proper exhaustion is required and that there is only one textual exception to the p l o raise exhaust requirement which is availability in availability has been in the statute for a long time and mates as this court is fully aware raise it frequently in a variety of contexts but ros clearly can't be the answer here because mr custis used all three phases he filed his informal complaint he submitted the grievance with all the material filled out he just submitted it too late and he tried to submit the appeal he just made mistakes and are also allows for mistakes says you remember going to be cases where inmates make mistakes that doesn't rise to the level of on availability then with respect to the first prong going back that is whether or not officials were quote on able or consistently unwilling to provide relief he never made any allegation to that effect any corrective action it says that he was reassigned to soon as his cell was repaired but you know by the time that the fall occurred it is obviously too late for them to do anything then the third factor and ross is really whether or not prison officials tried to  the generally speaking applies to state officials including prison officials where the court legally presumes that they discharge their official duties properly in the absence of some evidence to the contrary and so although the record is not fulsome in this case there's no reason to read any submit anything told him exactly what he could cement and it was the grievance documents or statements describing those documents there was no opportunity any time in this case for him to submit an explanation that might go to availability or otherwise describe the circumstances of his grievance second as this court pointed out there isn't an address in the grievance procedure and counsel statements about the fact that it's posted somewhere or there's a drop box for it those are exactly the type of things that should come out in a response of pleading or as evidence attached to a motion for summary judgment because that's the kind of evidence only the defendants in this case actually have certainly mr custi would then perhaps have to explain if there were individual lives availability issues that applied to him because some availability problems are individual but at minimum that type of generally political information about the grievance procedure should be before the district court before it can dismiss a case like this second if if that address doesn't exist then this is exactly the case that the supreme court discussed in blake under the problem that no reasonable prisoner could have used it i there could have been information about when mr custis actually received that disposition we know it was dated for the same day he allegedly had to return it into a regular grievance whether he got it back at a timely fashion on that date whether it was delivered to h policy is not necessarily apparent in the documents provided and would better be found in the operating procedure second we think continuing injury theory could be appropriate third the version of the operating procedure that we have cited discusses and  obligation to try to resolve their complaints informally before even filing an informal complaint so all of these things and you'll see in his letter to the regional ombudsman he actually states i would have tried to make this known i tried to get it fixed but it fell on deaf ear and so the grievance procedure if we're going to characterize it the way opposing counsel has maybe it's to get everything resolved or maybe it's to require the plaintiffs to try to get things resolved before they even go through this procedure  that as a factual matter where opposing counsel has characterized this idea that if you don't respond immediately to mr custis is needed they were notified of it we do contest that characterization and what you can see from the face of the response to his informal complaint in fact is v doc saying well we assigned you because you made a request of us which may even raise an inference of retaliation of some kind because you asked for a repair and it could have been his entire cell was melted in flight it could have been a really serious need who knows but because you asked for that we moved you to the nearest a r d vailable bottom to your bunk but the medical order says unions are excuse me i said we moved you to a bottom bunk but the medical tier order is for a bottom tier cell with a bottom bunk so it's actually facially apparent and it's apparent from the facts here that his need to not go up the stairs which resulted in an injury was not addressed to the informal complaint process so it is hard to accept the