this is a prisoner a case in which mr dickinson while pursuing his grievance did everything that the regulatory deadlines asked of him the state commission on the other hand missed its own deadline the deadline that it wrote for itself in deciding the final say in i uing the final decision at the final step of his appeal every single reasonal circuit to consider this issue has found that under these circumstances the claim is exhausted the district court case can be brought was a claim exhausted or is are the procedures unavailable because they're not knowable i guess they're little different and there are two sides of the same coin there are so jones speaks to the completeness requirement so you have to complete the requirements on the books and we would say that the that it was complete would point at the point that the regulatory deadline the forty five dollars day deadline to five days to the extent that the court disagrees and says there was something else that could or should have been done by anybody then we believe then that ross applies overall framework why isn't that i hear both arguments why is it easier one to say just focus on exhaustion on the regulations say forty five days on day forty six he's done everything he's he was required to do that is your view your honor that on the on the forty six dollars day he can bring his claim in federal district court it's the regulations that the say commission in this case wrote for itself that the deadline is over he can bring his case and i think it's only to the extent that the court were to disagree with that view and some of the real other regional circuits have taken a more what i'll call ross like approach to this question that's the reason we put that into the brief as well so that that that we have s the prison authorities from from you know making decisions on day forty six and does that factor into the nelsons in all it shouldn't for at least three reasons so the st is in this case that argument wasn't made so it's waived so that those cases were raised in the seats brief in the hayes case case the nd is that those cases are on a really are about jurisdiction void ability enforceability so those cases are cases where the agency makes a decision the the petitioner a prisoner goes in and says that this isn't was void on enforceable and or the agency like that like to restriction under those circumstances some rd department cases have said the regulatory deadline is directory not mandatory and that's not what we're talking about here no one is saying that the ultimate agency decision that did issue in this case is void on enforceable or that somehow electors diction we're not saying any of those things we're just saying the claim is exhausted those cases are not about ability on a force villagers to even if somehow somebody were to say that that apply those cases were to apply an exhaustion count it's still the the regulations are unavailable under ross because the pay can compute in three out no it was very clear the regulations don't contemplate on the face with prisoners opposed to do the regulars and say shall within forty five dollars days issue decision the notion that there are some very department cases out there that talk about directory versus mandatory that's not in the regulation and they could've written the regulation that way they could have said this forty five day there's nothing in the regulations to tell him what to do in this case the state is going to get up in about twenty minutes and say that the standard to be applied is substantial prejudice the district court in this case and the defense in this case are saying reasonable to lay the district court in this case and the defendants in this case are saying he should have filed an article seventy eight dollars proceeding to say to saying you should a father proceeding for mandamus in the state court and the district court in this case also said  inconsistent with jones to requirement but i'm just sort of curious practically speaking with that procedure available to him it was not available to him in this case he did i think he did file a nd grievance   nd grievance but if he did the claims exhausted as of as of the st date not as a nd date the there i think just addressing some of bit i mean when they agreed that your client would get a uniform a two piece uniform and they got a man used one in seven new one is coming right yes right and then it didn't come for two months they said it was going to come but did your client exhaust with respect to the failure to get him a new uniform he he utilized all of the roman easy were available to him in other words he father grievance agreements was granted the delight of relief wasn't forthcoming well he thought and you got a two piece uniform for months afterwards and from from from the time of the st agreements so there's a difference perhaps your honor between the exhaustion and then the s whether or not he exhausted that's the st question we have to answer and that question we submit he did exhaust because he did everything that the grievance system required him to do and there's nothing else for him to do wanted to be consistent so now he's exhausted  the nd question is does he get to bring a case on the merits he does because to the extent that there's damages for the past harm he gets to bring that case in history is unreasonable delay in providing him i mean they accepted his grievance and then they just didn't provide in the uniform and there was an unreasonable period of delay that your client is entitled to damages and the harm to him that the damage potential damages that accrue to him during the four month period and it was a four month period where he was essentially your honour's you know he's already paraplegic he's already in a morning your honour's may please the court my name is lorraine jonica and i am counsel for all defendants of pelleas in this case i will go over with each individual defend its name is because that would take up all of my time one thing that i did want to point out which i thought was worth mentioning from the outset is that plaintiff acknowledges the fact that there is a completion requirement that is specified in the p l r avers is the state regulations he also acknowledges in his reply papers which i believe peer on page ten that he contends that there is no completion with respect to the p l r in the state regulations this belies subtle precedent that exhaustion requires compliance and completion and completion factor is where a final determination by the state commission in this case would apply there have been multiple cases that have held that completion of the review process and compliance with agreements procedures is what is required in order to exhaust know what happens if that the commission just never issues an opinion and that there is never a completion and that's completely out of the hands of the prisoner and completely in the hands of the state can the state prevent exhaustion by just issue a rule that would apply in this and other cases so the question is if the commission ever issued a decision if you take your position to an extreme the commission could prevent there from ever being completion of completion viewed as measured exclusively by whether a decision issues rank right and in that obviously that would be an extreme circumstance here but i do is that is that the position you're arguing for that would be the position but then you know you also have to realize the law required however the state regulations and the courts are the ones that define what actually constitutes exhaustion and what constitutes on availability this is a prime example of this is the two supreme court so help me understand this particular case and complaint review counsel here the regulations are pretty clear as i read them shall issue a written determination to the appeal within forty five dollars days of receipt and the decision here correct me if i'm misremembering the record that was issued approximately three months from the last that last date and so what is that i'm having trouble understanding what a prisoner is supposed to understand himself to do when he does each of th steps and he has no idea he or she has no idea when or if there's going to be an answer that is why i mean obviously we don't want to be on reasonable in this instance we realize that exhaustion  complex issue but from if you look at the actual district court decisions and there's multiple ones listed here that they actually consider this exact issue what happens in the event that the if you wouldn't be reasonable to say if the people are a is designed to simply incorporate and apply the state's regulatory structure to say well what it new york say oh new york's in forty five days for a decision but for us to construct a things  the six months is our eight months is our only maybe eight months isn't so much like what is the yardstick by which you measure reasonableness although reasonable n'est would probably be something that you know this court would have the authority to me that if we can't figure out what is reasonable i don't know how a prisoner is supposed to figure it out and that would seem to make it exactly what's contemplated the ross is unavailable right the ross factors here ross is an example of of are ready to determine what constitutes an availability and i think that is really the predominant issue here if the courts in this jurisdiction are deciding whether even if it's unclear at this point what actual period constitutes an availability they seem to be deciding between around this one year time period that after you reach the one year then it sort of becomes unavailable to the prisoner which is something obviously to not be unreasonable that this is a process firm deadlines by which a prisoner needs to make grievances an appeal point parts of the grievance prize if there's firm deadlines by which a prisoner must make a grievance right there is correct and there's firm deadlines by which a prisoner must appeal and the denial of a grievance right but there is this very squishy deadline is to when they get to bring a case to court that turns on reasonable is which is about a year which is something that again would have to be decided to create a definite standard but i think the point here is that the connecticut's prison system is but if they have different rules i don't know let's say they have a ninety day deadline is our one year and then deadline applying them to it would be within the jurisdiction so so y courts and the state regulations i mean i want to better approach in iraq be to say the new yorks regulations seem to contemplate pretty clearly that after forty five days if the prisoners wait forty five dollars days he's done everything that he can do if new york state one would prefer a one year rule it can change its regulations that's correct your honor that is one evan you which the regulations would change but also i think what's important to realize is that this court today has the authority to mandate that there is this one year of bonus of time constituting play and that's what constitute that that's what would constitute an availability in jurisdiction it's already been done in ross it's already been done in jones where there's an example of the courts doing this the courts and hoping what constitutes an availability and that's what i think that the court today has the opportunity to do so the state gives itself forty five dollars days but we'll round it up to a year that's what you're saying we ought to do well interestingly in the actual new york state regulations there is a specific section that deals with this it has not received a decision and it does actually require it doesn't require but it also suggests that they are encouraged to follow up if they do not hear within forty five days of filing an appeal to inch ensure that the appeal was actually received by the state commission that in itself shows that the state regulations even the seemingly mandatory language of the shall issue within the forty five dollars day is that in itself shows that this is in it's not inflexible standard the state regulations inherently although they may say the language itself may seem to contradict itself there is also a provision here that states that the inmate is encouraged to follow up in writing in the event that there is a del any portion of the grievance procedure it also with respect to the agreements with the two piece uniform there is an implementation of the decisions in this regulation and i'll quote verbatim if a decision is not implemented within forty five days the greven may appeal to the c or c that the highest the state commission in this instance citing lack of implementation as a mitigating circumstance that did not happen here it's undisputed that he only followed up with the commission months after he had already commenced the federal action so these provisions in itself show that the state regulations although maybe the language may have to be tailored a little bit they're not inflexible the courts had the ability and they had this ability  it's even further supported under the decision of ross which that's the court today to issue a clearer one year as we would submit as a suggestion based on the precedent that has a business been established in and just a couple of quick notes i didn't catch the regulation of my colleague oh yes i quickly said i did but i'm not aware of anything after regulations that has a follow up requirement that's in the docs regulations that has a status check requirement which my colleagues provide a letter by the by the end of day on monday specifying the regulations that you're referring to and argument and then two days later no more than two pages on both sides just speaking just day on the forty six dollars day he can bring his case at the there was some suggestion that that there is no completion until the decision issues that the regulation could have been written that way and that would provided t notice to the prisoner that would have satisfied the ross issues that presented here my present other russia issues my present other objection to challenges that are not here but that regulation at least would satisfy the notice requirement of ross it would potentially satisfy the completeness confused about this your client filed a grievance about requesting a two piece uniform that since we're requesting a september th within a week his grievances except that he's then told they're going to get him a two piece uniform a couple weeks later they get him a two piece uniform from another institution and tell him he's going to get a new uniform sometime after that on october th he files a grievance inquiring about the new uniform he's told that the damages claim is mooted that there may be other issues with respect to whether or not he can bring his claim there but if the sole issue in the solution to this were decided was that he didn't exhaust granted right and even if it's granted under abney and other decisions from the circuit the that all he was required to do was utilize the administrative process which he did well in mr process work to his favor he got the uniform  in this case for example you know because of the two piece uniform perhaps even in our minds giving rise to a large damages claim maybe it's not as big a deal but if you can imagine sort of you know ongoing sort of to the the acceptance of the grievance and in this case not only are there damn is prior to the acceptance a grievance or damages running after the acceptance of the grievance because he wasn't given the full measure of what he was entitled to until four months there was no other mechanism that required him with regard to that grievance to do anything else so he had exhausted damages may be minimal if we're just talking about the delay a delay of a month in getting and the jumpsuit  a week or so later they get him a two piece uniform and there they promise to get him a new one after you know that they all will make up for him and he contends that the that's her uniform they got him was not part of fully satisfactory and so that even though technically they gave him sort of a borrowed uniforms from from another prison and that the full compliance was not until four months later when they got him and he actually you know and that's and again if we're just focusing on exhaustion the claim is exhausted because why isn't a new green on the jumpsuit was not acceptable like grievance he won because the two piece accommodation also turns out not to be acceptable and so that requires a new grievance