my name is hilary chattering for plaintiff appellant as mr hayes was molested threatened and beaten by prison officials then ignored by court the new york entity required to respond to his and now defendants are saying he can't come to court i'd like to discuss three issues exhaustion the sexual assaults and the retaliation my st point is that defendants exhaustion defense fails any way you slice it as having exhausted or that remedies were unavailable the result is the same as discussed in the previous argument the only rule with a legal basis is holding the state to the thirty day deadline it gave itself in the regulations this court should join the consensus of every other federal appellate court to consider the issue and hold that when a prisoner has completed every to address the specific issue of how to think about this particular problem in opposed ross world so st the cases that do predate ross are basing their holdings on the principle in jones that the regulations requirements procedure and court did not respond within the thirty days given it by the regulations rejecting defendants exhaustion defense means that regardless of how this court decides on the merits of the st three retaliation claims it must remain and that the regulations contradict itself so on its face the saddest provision does not provide a way for the prisoner to exhaust or find out when he has exhausted or to prompt court to respond so the text of that pr makes clear its purpose that if a grievance is worried that the prison did not send the appeal to cork that the prisoner can contact the prison not cork quote to confirm that the appeal was filed and transmitted to co in the regulations this provision provides that in the case of the contingency if the prisoner is concerned that the prison did not in fact forward the appeal to cork that it can contact the prison and make original this seeming clear in the thirty days thirty days write that thirty day requirement is as mandatory final stuff as it sounds it does not qualify quirk's obligation to respond within thirty prompt court to respond as i quoted earlier it's a way for a prisoner to confirm with the facility that he sent the appeal to cork and most importantly the forty five dollars vs thirty days those timelines don't start running at the same time had not received the grievance as far as he knew thirty days had passed but correct the logical world that we are asking for in this case does not apply to claim three it applies to claims two hundred and forty five and six dollars but claim three is one claim and not the focus that he had not exhausted that claim argument be that remedies are unavailable but yes on this record twenty seven dollars days had passed from receipt of appeal which he could not know at the time didn't know at the time but to return to the last point on the status track provision  lifted up and groped around tate's testicles which the prison pat frisk policy explicitly for bits you cannot as defendants declare call it fully compliant with a pat frisk policy and you can't call it a pat frisk by the book but the fact that he had a legitimate reason to initiate the pat frisk as a logical matter we know that that cannot immunize all subsequent behavior it's one factor in the circumstances that differentiates it from crawford which i'm just trying to look at that just because the pot frist was required incident to a routine soul search that can't immunize everything that happens afterward there were sexualized insults in both this case and proffered there was a pot f policy violation in both this case and crawford and in his case there is this further piece of evidence even beyond what happened in crawford although crawford said it indicated gnocchi logical purpose that dalkey pressed his genitals up against  good morning your honor hayes's view on what it means to exhaust would effectively eviscerate the exhaustion requirement in new york according to hayes the cork is bound to consider grievances within thirty yourself well this isn't a matter of legislature your honor this is a matter of the red zone regularly i misspoke your right to just get the regs extended to a result period of time sixty days docs has never had a reason to extend it because that regulation has only been directory under state law state courts have interpreted this provision to mean that thirty days is aspirational meaning that we hope we can get to it in thirty days but if we don't we can continue to process  grievances so no one says you can't i guess continue to do it but the point is that the prisoner has exhausted once you failed to do it within the time period right shallowest is the language of the rank right no your honor and  this court itself has relied on decisional law from the state courts when interpret ing how the grievance process works so we're on solid footing that the question of how this process operates is in fact a matter of state law that's correct that we should look and how state courts then when it's a prisoner supposed to understand that he should proceed on his the rule that we would articulate your honor is and this recognizes a difference between exhaustion and availability that something that's come up in both of these arguments oh rule is that you have not exhausted until you receive a decision from the cork but we believe that ross is something that can and can deal with that effectively through the on availability exception so if you are awaiting a decision from cork and you haven't received that decision and you believe that you are somehow prejudiced come into court and argue that the process has been rendered unavailable and that will be something that will get litigated under the circumstances of that case and when once our test because it's going to get litigated in cases like this what  tests in the district court is and it isn't a number like the case before was arguing like you're going to pick any year oh no no certainly not your honor and we will see the u s decision the test would be it's not something that could be hard and fast because it falls within the limits of an availability but we would certainly believe that prejudice would fall into that so if i could give you an illustration of example if we had a situation where a prisoner who was in need of immediate medical attention and they had tried to file a grievance and that has was winding its way through the system that seems like a very strong case that the process had hit a dead end which ross defines as as the grievance mechanism is either unwilling or incapable or able to provide meaningful relief and so in a situation where the inmate would be materially prejudiced in the litigation that the l that seems like something where you could come in and argue that the process is on able to provide you with that meaningful relief seems like this is resurrecting looking at all the particulars of the case in precisely the way ross cautioned us against  meaning you're saying on a case by if i'm understanding correctly the rule is exhaustion does not take place until the state renders a decision that's correct that in the nd stage we should say on a case by case basis if the prisoner feels that he is he or she is prejudiced by having not received a decision they can go to court at any time and try and persuade p l r a and try and persuade a court they are prejudiced in a particular case based on the challenge of the circumstances while your honor that would still fall within whether a mechanism was functionally unavailable on our position would be that those cases would continue to be rare if you're looking at prejudice it's more a question of not whether it's available but of whether this person really needs the relief so i don't know i'm thinking of someone who's absolutely bedridden and used to be carried out to go to the bathroom they only have to wait a week before the deadline has been blown because the prejudice would be severe but somebody who just wants i don't know if toenail clippers are he'll have to wait two years because it's not all that severe from to get it but the procedures are the same well not necessarily your honor because when we refer to prejudice we mean prejudice to one's litigation prospects so the p l l ray is a mechanism to keep cases out of court but not necessarily to hurt the inmate once the exhaustion process is either completed or excused so in a certain situation where the delay is so profound or the circumstances of the delay is so  egregious that it really does impact the inmates litigation chances that would be a situation where they would be able to come in and have exhaustion be confused with just describe to me what sort of prejudice you have in mind like the memories witnesses fading or something like that perhaps a witness who we understand or the inmate understands is going to be retiring and moving out of state it seems like a pretty opaque process to me and prisoners could be really screwed because they just didn't calculate what was reasonable even though we seem to be having the same problem isn't this exactly the sort of thing ross is concerned ross is that certainly one of the ro factors your honor and we believe that this case doesn't fall into one of the rare rovs factors you think it's pretty clear to a prisoner what they need to do yet next time they should allow court to decide before they go into federal court not that iran are but we believe that it cannot be said that no reasonable in may act would understand that they need to wait for a decision from the cork but if you want it to have been long then they're at a lock if they wait too long for a decision from the cork yeah why would that be when there's a statue of limitations no says hey see your honor well the exhaustion process is winding its way through the statute of limitations is told so so we could go then years in some cases that would be ok well of the if the process was going yours let me give another illustrate of example the process is going it's two years you've done your status check and you there is saying it's still in the queue we don't know when we're going to get to it that seems again like a much stronger situation to say that docs is just unable to provide relief in that situation so you know mr hayes's case i mean let's let's forget about hypothetical how long before he's some stand he suffers the prejudice you need can you give me the number here on our there is no number because he is the prisoner's most and i want the numbers he's you can anticipate when he should file how is he supposed to anticipate when he should file he can fall at any point that he believes all right but you're saying you're going to fight those facts right and then you're going to fight and you're going to his and my point is if your point is that this is something that prejudices number of months or days or weeks that constitutes the prejudice that triggered the on availability requirement and if i could clarify my position it is not ever going to be a particular number of months per se that allows a person to just walk into court without waiting for a court decision it has to be delayed you can be a relevant factor we don't oppose that notion but you're going to need to have additional circumstances to explain why that factor is either making the grievance process something that is unable to brought provide relief or was that the latest warning you and we juxtapose this process in contrast to this day thirty one rule where on the thirty one anybody can rush to court we believe that that is not a faithful reading of what's available because they have thirty one we have a system in new york state where cork is both willing and able to decide grievances and in hayes's own case they decided all four of the grievance appeals were at issue so he can't say it but the process he did end it just didn't happen as soon as he would have liked but the process was available in that respect nor was he threw it because there is no evidence that led happened in bad faith he got his determinations he just got them late as to whether the process is to do he just disagrees that he had to wait after the thirty day period expired if you look at hayes's opening brief he mentions williams only for the standard of review and in attacking whether or not the status check provision is mandatory but if this court wanted to reach that issue it's not open for three different reasons why the grievance process does expressly contemplate or expressly authorize in a different section that seven a one dollar i that's what allowed the sexual assault claim to be exhausted but notably doesn't include that language in seven hundred and one five d thirty two dollars we would argue that the status check provision itself in visions circumstances where the inmate hasn't received a response from cork within forty five dollars days and it's advising the inmate to do something but that something isn't file a federal lawsuit and three we would this i'm sorry that something is just to check to make sure that it was received that's correct your honor so but that's indicative that the regulations are saying to the inmate here's what you do in that circumstances but it's not saying go to federal court  it's not going to prompt any action back or write that that check in doesn't go to court does it is not an age to decide this right it's like going to the mailman and saying hey did you pick up my mail right now that i check in with the recipient to make sure they're doing anything with the mail that mechanism wouldn't be a way to force cork to issue a determination or even to alert them to the fact that you're kind of curious well you would alert them that they're kind of curious bark and notice court is going to be the one who is going to be the one communicated with and that's where the status comes from where you're where your grievance appeal is with the cork i was under the impression because i don't have the rain here that it was simply checking with the prison to make sure they sent it  have the regulation here remains pending so there is a mechanism to do that under state law once the thirty days passes even though court has the right to continue working on it rendering the process still available you could file a mandamus you can get mand relatively quickly based on this and we would also point this court to its own decision in neil vs court for eighteen years this court has held that to exhaust you don't just need to file grievance appeal you need a decision and that was an interpretation of the p l r essay so with these three factors we're not operating in a complete and utter vacuum along the lines of what happened in williams but if you're on a table and  consistently unwilling to provide relief to aggrieved inmates within the regulatory prescribed time isn't that a dead end no your honor that wouldn't be in our view that wouldn't be a faithful reading of the availability exception the available or the availability of the only thing i added was within the prescribed time period i understand your honor and that additional language that additional language takes it out of the ross exception because we're talking about within the regulatory time period it wants a grievance process that is available meaning that the prison is willing and able so if the prisons time limit is thirty days and on day thirty five it's still working on your grit your grievance appeal then it is both willing and able to provide you with relief it's not just not doing it in a speedy fashion you're basically saying the test shouldn't be the dead end it should be it's ok if you're stuck in bumper to bumper traffic for three years and don't move because you're still not technically in the dead end it our our test would be the dead and is fact specific you would have to come up with circumstances to explain why this delay compounded with additional facts amounts to a dead end but this deadline which is directory that wouldn't create a dead end if the court is still working on something and we have authority there in the regs say whenever possible don't they have a textual kaviak that would that would tell the prisoner we ain't promising nothing here our rigs don't have that language in it that said our state courts have read it in that way now if this court has any doubts that that is in fact the state court interpretation of state law it could certainly certify that question to the court of appeals but what this court shouldn't be doing is telling the state courts that their interpretation of state law is wrong based on on this court's own opinion of what that language says because after all the grievance regulations all are a form of state law the state courts have a right to interpret them and have found in cases involving exhaustion in the previous case they spoke about power but know there are cases out there gholston and hendricks decided in january of this year that have addressed this very question with respect to state law claims and found that exhaustion had not been completed notwithstanding the court's failure to buy by the thirty day deadline because that deadline was directory and that is something that we believe if that is how state law has interpreted it then for p l r a purposes this court should treat that as this is how new york state revisits regulations operate i think we get an argument but it does take you directly then into ross and this process isn't opaque are unavailable for other reasons if the only way you know when to go to court is something that doesn't prisoner very much about how to use these regularly well he taze does have a mechanism under state law to request mandamus he could do that on day thirty one if he wants so that's that's available on that's part of the of the administrative step is part of the exhaustion requirement no your honor but where we are saying that once day thirty one expires that mr hayes doesn't have to sit and guess he already knows our position if i could maybe some it up in a sentence our position is that it is clear that when days thirty one dollars comes and there's no decision on the grievance appeal mr hayes knows that to exhaust for the purposes of the p l r he needs a decision now just like any other inmate who comes to court without having exhausted he can raise he can raise his entitle into an excuse for exhaustion for any reason that he sees fit but if he's going to be relying on a delay where the court is otherwise willing and able to decide his grievance appeals as it did here then he is going to have to come up with circumstances that are compelling enough to explain why the co to decide his grievance has rendered the process functionally unavailable thank you quite clear council reference correspondence with cork in the record but that's not related to the status or provision and nd counsel argued that there are some alternatives that is could have used but so argued that the rule on exhaustion should be that a prisoner has exhausted when he receives a court decision there are several district court cases suggesting that there are also a number of district court cases saying exactly the opposite and ultimately that's not the regulation new york wrote second argument that there are state courts that say this is what the regulation means how should we consider that that line of argument as your honor mentioned earlier that runs into an i problem under ross and that's not on the face of the regulations that new york wrote and handed to the press in our president has no way of knowing what those intermediate court cases said and that they indicate anything at the present or at the time we decide this case without going down the ross road yes there really think when we can say notwithstanding new york state courts interpret their own reigns in new york state regs we can say that exhaustion occurs after the thirty day or forty five day period depending on the rank as counts on the previous case mentioned at the new york cases do not refer to the p l r a and are saying that court is not deprived of jurisdiction at the end of the thirty day  time line and we're not arguing that it is we're simply saying that for purposes of the p r a the prisoner can proceed to court still has jurisdiction and could issue a decision so it's not inconsistent with those cases and again because there is no way for a prisoner to know by looking at the