final case for this morning is james john her against mark  claims are dismissed due to failure to exhaust mistreated remedies at issue here is a two step process and stated by the magistrate judge in which defendants were able to take discovery before the pavey hearing but mr darwin was not entitled t now he has asked for discoveries i recall before that so how do you navigate that territory sure mr dyer did agree to a two step process but the two step process that was described to him was one where the defendants had to meet a burden to exhaust administrative remedies as an affirmative defense and the magistrate judge explained the first step would be that the defendants would be able to show whether they could meet that burden or not if that burden was met then they would move to the second step however that second ok i'm satisfied with what the state has said now mr dr you can go off and do your discovery and we'll have you know three months from now phase to whatever correct that it was mr doris understanding that at some point before the issue was final before there was an adjudication or at least a recommendation that there would have been a discussion about does mr darden need additional evidence to rebut that presumption and that was explained to him multiple times by the magistrate judge when the magistrate judge was explaining this process  magistrate judge said repeatedly that there might even be a need for a second hearing and that this was not a denial of discovery just a delay of discovery however that delay never came about with regard to spite requesting discovery before the two step process after the two step process but before the pv hearing and then objecting to the findings or the recommendations of the magistrate judge attempted to get discovery at multiple points but that discovery was never allowed he never had access to anything including his own file at the jail he was not able two return of grievance forms look very similar very similar he understands that and it's been his argument throughout that there are two reasons for that first being that mr barnes the individual in charge of returning the grievance forms routinely would identify demarcates things identically even if they were not responsive to the grievance in question but which you just photocopy the same page in because when you look at i guess it's in the back of the brief when you look at the two forms even the distance between her signature and the line in all sorts of very particular details i know it's in your somewhere but anyway particular details are identical and that would be for me about the procedure here and i hope the state might also showed some light on his i understand sequence i guess i had a little trouble understanding dollar is supposed to cross examine state witnesses effectively about this if he has not had discovery before the first step hearing i would have thought but to step process used for discovery related to a paper hearing is never constitutional never constitutes process a due says but there is a reason i'm skeptical that it would be because mr dar even if he was able to get discovery later down the line would another issue that is important and that the magistrate judge and district court failed to evaluate was whether a failure to exhaust administrative remedies was available to mr dyer and that was outlined in p v conley one in two thousand and eight and and applied in p d p calmly to in two thousand and eleven there is substantial evidence here that mr garment may have received incorrect evidence or a correct advice about what to do this is this business is it is it a classification appeal  correct and so when when mr darwish pursuing the informal resolution process outlined by the grievance procedure he spoke with a caseworker who informed him that this was not an issue that he could grieve that this is the classification appeal and that constitutes something that this court because in mr doris objections to the findings of the recommendations he explicitly brought up all of the chandler and discussed availability as an issue so for those two reasons mr dar should be remanded to the district court because we cannot allow system where a plaintiff has promised discovery of cross a letter get as promised discovery at a later date and then that process is switched on him and he never gets that can't please the court the state asked this court to affirm for two reasons one the magistrate did not violate mr dare's due process rights and to the court correctly found on the evidence before it that mr dower had had exhausted had not exhausted his remedies and had not yet not was an innocent and not exhausted enough so i think i have trouble not with maybe this procedure in the abstract but with the way it unfolded here because it does seem to me that mr doctor was promised a chance to present his side to investigate his side i should say not present to investigate his side and he never gets that opportunity the magistrate judge is rushing things along he spends nearly two hours with the state's case it's down to the final ten minutes since very clear he wants to go eat his lunch  and mr dar anyway has one hand tied behind his back not both because he hasn't done any discovery so i few this is a person who's trying as a pro se person would to preserve the rights he presents this is a million different ways to the prison and somehow he's told at every turn you didn't do it right and now we're not even go magistrate didn't promise him that he would get discovery after the first part but that that would be even worse if if he's going to decide only on the basis of what the state says without any chance to rebut let's say this serious inference that the document was fraudulent the question about what was done when the question of what the first counselor said to him you're just go under what rule of law does does the court just take only the state side well no of course it doesn't and if that's what is what had occurred then i think it's very clear there would have been a due process violation but that's not what the record reflects in this case did  when they had their telephone conference planning out the paper hearing the court asked mr dower and the state what discovery do you need to you know they were talking about wanting to take depositions and discovery and  what witnesses they wanted and mr darrow identified witnesses to who were currently employed at d s e one miss barnes who was no longer employed and the the judge had said d o c can you give them the information he needs get make sure these people are available to him and the judge at the state raise the concern as for miss florence who is no longer employed can i provide her address contact information under seal we don't like to give offenders information and it was at that point the judge said ok i'm seeing we could have security issues with granting mr dare the discovery he wants at this point let's do it this way state you put on your evidence carry your burden at the first part of our pay the here in and if you have carried your burden then at that point mr dare you will we can in a better context you'll be able to tell us more specifically what you need and you explain that to me and we'll provide you that opportunity right see here's here's i think what was in the magistrate judge's mind if the state could put on its or maybe at that point if the state could put on its case and the magistrate judge decided you have not made a prima facia case of failure to exhaust we're moving forward it's your affirmative defense  darwin wouldn't have needed to go through all of this the merits of his problem would simply have been adjudicated that's not what happened so you know branch number one terminates branch t happens ok state you have in fact cleared whatever initial hurdle you have but he doesn't circle back to mr john heard to give him the chance to look at things well he did circle back to the and mr dower said he specifically said the state has rested mr dower how do you wish to proceed you have the opportunity to cross examine and get some exhibits and that's when he has the ten minutes you know he just kind of gives i mean what do you  about grief and materials so he he hadn't gotten everything he wanted clearly no doubt about that he had made requests you also didn't have the chance to shape his just covering requests as the magistrate judge wanted him to do in light of what had happened during this phase one well as he would have had a chance to do that until the state rests and that's where the state says mr dyer at that point decided i have tried my position is that the electronic file system is unreliable and that's the evidence that i need to rebut the state's case he had tried to get information in relevant to that the court had said mr  don't agree that that's relevant because it's not dispositive of the issue when we've got a paper record system in place as well and the paper records don't exist so it doesn't really answer your case or or prove your case to say that it doesn't exist in the electronic file because the electronic file system isn't reliable and i think that's really an important point and to keep in mind the court made a relevance decision based on the information that mr dare had been seeking and to the extent he had some of it the court said i understand you want to prove that it's unreliable and maybe it is but that doesn't rebut the state's evidence when there's this glaring evidence of no paper record which should be there if you had filed it and mr derek never challenged the the lack of a paper grievance form and unreliability of their paper records and i think that is really the crux of the  magistrate's position to say the state carried its burden and mr fair was left with well if my whole effort to prove this electronic system is unreliable isn't getting me anywhere with the judge the no i don't have anything else i don't need any other evidence there's nothing more i can do and at that point he gave up what his right to engage in were discovery to rebut the state's case and have that second hearing  lost a piece of paper oh i'm sure they have but given all of the evidence presented and again keep in mind mr dare did cross examine the witnesses that the o c brought and there might have been limits to what he could have done without discovery he didn't ask miss barnes about the grievance in return that he had in front of her or his all that he says you know she signed these and he never asked her about them so even if he didn't have other grievances and returns that he could have brought in to ask her about you know you've done the same here and here and here he didn't even ask her about the ones that were at issue in this case to the extent he did have another set of grievance and returns from another offender the returns in fact didn't look exactly like what he claims she always does so that underminded his efforts to again rebut the state's case the mr terrorist is presenting this case as if he had no evidence as if he had nothing to bring to the court and the court made a determination only hearing the state's evidence but that's really not the case he admitted five of his own exhibits he was able to cross examine and illicit testimony from the witnesses in an effort to undermine the credibility of the state's case i'm trying to imagine another context you know which we would say there has been a fair hearing where the responding side has been told you will i won't rule against you without an opportunity for another hearing in an opportunity for you to conduct discovery and even what you seem to be saying is that participation in the first hearings amounts to waiver of the right to take on the second no i'm not mean to say that because he cross examined he waived any effort to engage in more discovery and have another hearing what i do say is he didn't tell the judge at the end of this when the judge said how do you want to proceed do you have other do you need other evidence mr that was mr dare's it's perhaps not the best practice but mr daire was given an opportunity at the end of the state's case to say judge i need my discovery now because i feel that i can rebut what they said here's what i was wanting to get beforehand that you wouldn't let me that would rebuff this it wasn't all what you told me is not relevant but he never said that he the judge had made it clear every time they've had he filed a motion for a continu initially i think it's important that this court understands that mr guard did not have the opportunity to have any discovery he did issue interrupted tori's requests for production but those were never responded to and that's what this regard explained to the judge which is likely needed to pursue subpoenas i w direct requests to a multitude of individuals ms heise did not respond to him there is evidence in the record that one individual now and the defendant did respond but not with substantial documents that would assist mr dart in supporting his claim  have documents to enter as exhibits at the p v hearing but those were that the documents that were already in his possession not documents that he was able to obtain during discovery i think too it's important to note this issue of waiver whether mr gar rested at the end  that interplay between the judge the magistrate judge mr gar was clearly about do you have any additional evidence today not do you need any more evidence or that this is the end as a pro se litigant maybe we would say that an attorney should have objected at that point to preserve the right more fully but mr dart did his best with only ten minutes remaining and another point when we're talking about paper records versus electronic records the electronic record is based on paper so the fact that there was no paper record and individual well for accepting the appointment thank your firm and