state prison in the grievance procedure provides four levels of review but the fourth level overview is expressly limited to emergencies and to in make grievances that challenge general complaint it was simply easier to leave count to blank than copy all three on to the first ones for letting him get beaten up in the third one as for destroying us legal papers correct your honor and the first one he did go through all the record i'm thinking that one is no more appropriate for the fourth level than grievance three it was not your honor and i think that that is an instance in which mr a vera was attempting to exhaust his ministry of remedies but did not that they allege that he might be challenging a general policy and procedure the president actually honor there is evidence that that that the prison officials that were in charge in fact this for and l did not believe cell and that would be and destroy them and i don't think that this policy was challenging general procedure in fact it was the right see the way it's worded it sounded as though it had the word policy and might be a little ambiguous what policy or procedure the the prison officials confiscated his materials what was the justification what was the policy and he never obtained and if you know that your honor there's no there's no particular policy cited he's not he hasn't cited any any any challenge to a particular statute or or or or cites a policy simply just respected you see what's going to happen here years some of these prisoners may have twenty five different cases they want to bring and they're going to have that's when the patients of varying times they don't have the money to file twenty action that report my four was really striking and there were two other reports in there that are for the same effect there was just some kind of serve and some investigation of the guard honor there was an investigation completed unfortunately the i don't think that there really was a set up i think we had two new correctional officers  well now and we're both really new and they did find out that the door that the attacker came in through had a malfunctioning light on it so it showed that it was secure when in fact it w not defendant nixon was in the control bubble and they did say that he shouldn't have he should have acted quicker first off he was the supervising officer and he may not have been supervising other two adequately are different and i'm wondering why we shouldn't just avoid deciding the difficult legal issues about exhaust and because both claims are individual challenges rather than challenges to policy he's not trying to get any policies changed the way things are test cases sometimes do always trying to do was get a remedy for his particular beating and his particular loss of his legal papers they told them on the first claim when he went to level four they didn't say we're deciding it against you they said your claim is not appropriate for a level four and the second plane the papers claim things just the same as the first i'm thinking he did exhaust both claims by going through level three he took the first claim to level for the building claim and they said you're in the wrong place you can't come here for individual grievances like this is just for reasoning well your honor i think if mr rivero had an admitted that he did not exhaust all levels with respect to his third claim for relief we probably would not be here today if you look i don't  exhaust all administrative remedies with respect to level three just quickly my first argument in that regard is that it's not clear from the face of the grievance that he's not challenging policy of procedure and then it would not be appropriate for a level four review and  saying that your grievance is not challenging or questioning general policy or procedure so the responses to both of his grievances with respect to the first claim for relief the fourth level response is that with respect to the third claim he asks i have a question of what was the justification then he goes on ox cut off part of the word and it's hard to read and then it says i was deprived of my property and legal materials for twenty four hours because the shakedown don't think twenty four hours and i think that they have deprived me of my property and legal material for twenty four hours to herrick's me and in violation of my constitutional rights that's all think i can actually work for change of policy it may be that he was seeking an explanation that could have been given to him at the fourth level of i can understand when people ask for a change of policy like your opening outgoing mail i can see why open incoming mail i want to change your policy you should not open outgoing mail so it has to go to the fourth level on this i don't understand what how you can read this to say he said asking for a change of policy when we read it that way he asks for an explanation and he may or may not have been able to get that at the fourth level but the fact remains that he did not speak for its level review and he admitted in his first off in his opposition to the motion for summary judgment i point you to our excerpts admit that he was obligated to go to the fourth level and fail to admits that he did not exhaust and he admits that in his in his brief that he filed with this court his first informal brief before the court appointed him townsell on page five of he says he wants to explain why he did not appeal to all levels but he he says he had he admits that he did with respect to count one but he didn't exhaust with respect to count three objected to the report and recommendation of the magistrate he admitted that he didn't exhaust ministry of remedies with respect to count three and he sought to explain why he did not but if he hears from the record that he didn't seek fourth exhaust i believe so with so many places in the record where mr barrow himself admits that he did not exhaust with respect to count three but that's still subject to our review we we  can decide if we are so persuaded that notwithstanding his his admissions that in fact as a practical matter he did it because it's not the answer you would like i know what i mean trying to find out is  that as a procedural matter at this point can we make that determination or do we have to send a well i don't think it was raised in the court but well ok and i don't want you to ever he didn't preserve that issue so ye thank you very much your time has expired so after you have a little bit of time left three quick points from our first he did file two grievances of the suspect is count one claim the person told him to wait until the investigation was complete and refile his grievance and that's why he filed to second