our final case for today now this afternoon is lask against co so mr most in whenever you're ready so i take it you can see that if they had wanted to punish him for a minor offense for receipt of somebody else's property they could have done so using one of the one of the sanctions laid out in the rule that allows the state to give as a consequence as a punishment for a violation the refusal to process and the now you take it to state wanted to amend the rule to say slightly differently i mean if the state makes it impossible to exhaust then that requirement drops out and the case moves forward without the exhaustion defense absolutely and it would be again a fine rephrasing of the rule and that the nd rule that the state has this know we must know whether the state ever opened this envelope they must have opened it and discovered that the envelopes have somebodies name printed on them and actually the state didn't keep the uncle so the envelope is not  appeals and that's not the cape's the words on there were used interchangeably within the chapter and you know those states and those rewrite the rules and actually the cannot rewrite the rules on the spot as needed but  state seems has rewritten the rules and now the procedure for appeals specifically says that a form has to meet the requirements the same requirements as far as initial complaints so this has been fixed now the proper way  how much does it cost to buy an envelope in this prison that's not part of the reg not that record but you speculate that envelopes are pretty cheap although the prison definitely has an interest in preventing barter and other kinds of exchanges among prisoners because that can lead to governance issues gangs or other kinds of things it certainly has an interest in doing that and can do that under chapter three regulation describing what to do if there was a refusal process agreements the natural thing to do would be to recently that the grievance in a different format that this court has said prisoner doesn't have to do that the prisoner had every opportunity to exhaust his complaint in compliance with prison but that the real question is i think it's a serious one i totally grant you that it's a minor offense to receive property from another among a long list of verbs to receive property from another inmate but there are penalties set forth in the administrative regulations and actually interestingly even not that these are relevant but even as amended the rules now allow the rejection of an appeal as i understand it if there's threatening language or the possession of harmful substances but even now the rules don't spot by using another inmate's envelope or property as a reason to reach and so i'm very concerned about about this and actually my frivolous thought about it is that it's the kind of thing that gives lawyers a bad name i mean we are obsessing about this envelope and inside the envelope was a perfectly legible well written appeal from mr ms mr last in which he uses  name numerous times in the body of a the signs at the bottom under his name it's just mind boggling to me to think that because there's an envelope problem the prison didn't solve the envelope problem with the reprimand or whatever of the other measures and accept this appeal they've got his appeal on the right form i have two responses to that your honor st is the ultimate reason his appeal was rejected b i have a lot of trouble with the fact that the state threw it away i guess we just have to trust your word for it that this is what happened i don't know that this is what happened just on that point mr last did admit in the district court during summary judgment briefing that bargaining with items of property in the prison no no i totally understand that and i'm not i'm not viewing this is an attack in any way on three o three points forty fine rule you know and then we have all of these just looking at the appendix in the blueberry three o three dollars b minor penalties so you could have confined him to the building you could have told him his recreation privileges were suspended you could have confined him to his cell we've done all sorts of things to them too and by doing so to deter the kind of barter that the rule was made no where in that list does it say and we can also reject an appeal of a grievance because you put it in the wrong envelope so because it's not a violation that relates to whether you received the appeal let me let me try this hypothetical but i think may drive home the point it tweaks the facts a little bit from this case but i think it highlights the issue here  y mr last ten pm on the night of the last day you could have filed this appeal finds himself locked in a cell it's after hours he's locked in a cell he realizes it's the last day to file is appeal and he needs to get any really wants to get i n so somehow he breaks out i don't know how he does it but he breaks out of a cell finds his way to the to the dropbox puts his complaint in on time but obviously he broke a variety of prison rules to get there and accomplish that so it's hard for me to  cut both ways so suppose he says i have an option i could have just put the complaint form of the appeal form in the mail not in a novel the reason i didn't do that is because it has information and could likely lead to me getting killed and so i thought the better course was to put it in a novel i hope to ensure some confidentiality when it was transmitted to the grievance group to receive d a lot as in his filing that he was in segregation and that his access to those kinds of programs was severely limited he had a ten day rigid time period that your later action show enforce as is your right vigorously so the legal long program for something that's got a ten day window isn't going to help so i've had to do responses st as i don't think there's anything in the record that indicates that is being in segregation that would have affected his ability to use the legal loan program the nd thing i'd say on the timing is there is a provision in the code that allows for the the deadlines to be effectively waived for a well i don't think that's true right which we want him to use the legal loan prop program to comply with the disciplinary rules against using other inmates property but so that you don't want what but there's no rule that says if you use that envelope that somebody gave to you you're going to be disciplined not under one of the provisions in three hundred and three but in fact you know we don't care if some guards raped you you know and you are trying to take that through the grievance process we're not going to listen to a word you have to say because it's in the wrong envelope well i mean i guess my reaction to that is is strict compliance with prison rules and agreements process often results in but if we're going to aldrich about means let's have strict compliance and that would mean matching the infraction to the  authorized penalty so he could decide right he could say it's worth it to be to risk getting i have ten days and it's worth it to me to risk getting the penalties listed in three o three for using another inmate's property because i really want to get my appeal approach to this i think you can't possibly prevail because minor offenses have certain penalties major offenses have very as they should very significant penalties fair enough and i see if i'm not getting traction on the disciplinary violation i would say there is a procedural about filing complaints under your own name and i understand it minutely his signature was on the form and his name is all three of you know did you read it but the it's all rounder there is there are there to use it i mean not yet but you are just relying on the regulation that says it has to be submitted in your name so i'm saying you wouldn't have that argument if he did not try to do without your honor because again i think the issue is there could be some concern that that that the appeal form or colon well again your honor i would i would just say that d o c could potentially have to have a fraud concerns when they receive mailings that don't think match well if you can see that there is barter within the prison system or potential barter with items of property there's i don't think it's totally denied on the merits they wouldn't deny it because it was the wrong and follow they would deny it on the merits if they thought that there was a fraud problem in the appeal that was being dance well i mean when when the examiner receives the submission and sees the mismatch you know the complaint examiner doesn't have evidence you're gathering abilities so they're in no position to to evaluate you know suspicion already taken any venture handed that argument proves too much because it would suggest they can't even handle the appeals i won't assume that i think maybe we need to have your point and if you would like to to fine very good your honor i would just reiterate that i think excusing which is effectively what mr las asks for excusing in some in some sense violations of prison just canary policy just because they happen to be committed knowingly committed in pursuit of the grievance process seems like it just creates problems for the record shows that the prison never did try to impose a penalty on him and i understand  dark that's true they've got it so that's why that's why i have a little trouble with the excusing idea you could have punished him we could have punished him in the exercise of discretion the we chose not to but but that's the rule effectively mr lusk is advocating for here it's that you know he's not saying he's immune from the punishments he's just using use of you know should be heard he can do effectively whatever he wants in pursuit of filing the grievance so long as it gets in the dropbox by eleven fifty nine pm on the day ok all right thank you very much mr most and anything further client the state can ask emergency regulations to counter that again as your office and the state can pass a rule that says no stealing of and a