well different in that the court tried to overlay some specific requirements upon the prisoner's litigation here you've got a different situation you've got the president setting up guidelines for for what needs to be done in that could justify a suit going forward even if things were exhausted but the court was firm that the people are a does contain in the statute its own availability limitation and that that limitation has a real concept and that part of ross that remained good for the lower courts to do more fact finding so that the prisoner didn't take the first step admittedly did it take the first step but there was evidence in the record that even had he done so it would have been  based on what the prison would have done down the road and so the court remained ski remitted for further fact finding because taking that first step would have been futile then administrative relief on the whole was unavailable and there's no duty to exhaust and the prisoners who cannot be dismissed notwithstanding his undisputed failure to take that first step suppose that sergeant perry had not miss misled your client and all you had in the record before us was suit should still go forward the reason is setting start to perry's misrepresentation to the side for the moment defendant's argument about who should have been named on that or who should be named rely on two documents first the written eighteen pa policy and then second degree would form the evidence in this case shows that mr townson despite his efforts didn't have access to the written policy so i think we set that to the side the question then becomes what is step two if you don't get a response in fact it says all complaints should be handled informally first we get into this issue about who should be named it says be brief in bold upper case underlined letters and be specific as to the name of quote personnel involved now your honor that is the same exact language that was on the form in the burns case and as we pointed out in both of our greece this court did not impose a strict name all future civil defendants full as we pointed out it's also very similar to the language that was on the form or at issue in the jones case where the supreme court said that michigan doesn't have a strict name all future civil war why should we ignore it you know that the purpose of this is so that the president can try to fix itself you know so you don't have to necessarily have litigation why should we ignore requirement that that the prisoner maybe not name specifically but at least give enough facts so that the person can figure out who  him not having safety equipment the prison doesn't need any more information for mr townsend to investigate that his allegations in this lawsuit are that the people he's named as defendants had some of forty two look at the safety equipment and some authority over the safety equipment in that job he gave the prison everything it needed to to know interpret in the form i think we're not asking you to overlook it we are asking you to interpret it in light of the context of the p r a which as your honor says  involved is a separate inquiry from who are all of the people at the end of the day who might be liable one last question on this line of inquiry which is does the fact that that your client named a particular individual but then omitted to others is that problematic would it other words your argument might be stronger if none of the three were named if there were simply a complaint and the water treatment as is is not safe and therefore we need a rocket fired but here your client named one individual in the name to others is not a problem i don't think so your honor the substance of my client's complaint is the water treatment job and the safety attendant and i think the prison had everything it needed he gave some specific example or gave a specific example and maybe a specific person but extra information or that information i don't think changes the fact that the prison had everything it needed to have if i may i think i could illustrate best with an example about what's required here it's suppose a prisoner is punched by a guard and he knows the guards name of course the prisoner puts down the guards and a lot of screens for maybe the prisoner even knows that that guard has punched other prisoners in the past and might suspect that he wasn't adequately disciplined but the prisoner does not know the names of the higher level officials who had authority to discipline the guard it didn't do so and the prisoner is not a lawyer so he also doesn't know there might be valid legal theories under which those higher level officials could be held liable for their own willful blindness this court should not interpret the very brief language on the grievance form to mean that prisoners have to first learn the law so they know the valid legal theories then find out the names of all the higher level officials who might fall under one of those theories do so all within fifteen days and importantly do so without any discovery recognizing that is an reasonable way to read that very limited language on the form i think the better way to read it consistent with burns is what district courts are doing in this circuit and that is the prisoner must provide sufficient information so that the pr do a reasonable investigation and that includes naming anyone who was directly involved with the prisoner whose identity is necessary for that investigation that for example your honor is what the district court did in the access in case we talked about in our reply brief rejecting the magistrate judge's recommendation if i may back up for a second to first the written policy as i said mr townsend didn't have access to it from time to time defendant say well there was no evidence of have access to just because it's written down somewhere that would be a consistent with ross recall ross said the availability has real content and is aimed at what prisoners ordinary prisoners could do practically speaking it would also be it consistent  and claim remedies are available backing up one step even further to start a perry if i may sergeant perry as i said there's no dispute about the fact that he was misled there's also hasn't been any dispute about the legal consequences that as i said ross is outcome shows you don't go back and pick at individual steps of the process the way ross described its rule is further further support for that it said administrative remedies are unavailable when the administrative process operates as a simple data and meaning that prison officials are consistently unwilling to provide a belief all that says is that none of the steps you have prevented from taking any one of the steps but  relief at the end of the day is unavailable then there is no exhausted duty defendants would impose the opposite rule that even if it operates a simple that and well we're going to go back and look and see if there was a flaw in the individual step that would  relief wouldn't have been granted or some accommodation on the been made so your honor this would happen after a lawsuit is filed defendants bear the burden of proof on exhaustion and discovery is taken and so for example that's exactly what happened to ross he did it take that first step but evidence was found out in discovery and it was a deuce that the supreme court said look we see evidence of the record that even though he did it take that first step it may have been futile and mr towne said case we see what happened remedies were unavailable regardless of whose names were on that slip at the first step well we know that they didn't find any merit this year's reasons it's one his name i don't think that's correct your honor what happened was that he was misled by sergeant perry and then waited too long according to that and so when he did file that formal grievance it was not addressed on the merits it was rejected administratively as a timely he promptly appealed  the same think it was not addressed they never found it doesn't have merit in fact enjoyed it and this one fifty nine you can see that initial response of the informal david's and it says we're ordering some gas masks essentially saying you know what there should have been some safety equipment for the water treatment job but he wasn't given that response so i think step one was not available well he wasn't given that did the order they took the action of ordering the gas mask your honor whether they actually placed the order is not in the townsend until it the the exhaust in question was raised in the lawsuit what about that isn't that a significant matter that he didn't at the time realizing that that he was a light realizing that he had been misled wouldn't it wouldn't follow that he would explained that in his diary no your honor i don't believe the record supports that and during appendix sixty eight you can see the response where they tell mr tauzin his grievances untimely it is a form a template form there's no explanation you don't give them a copy of the procedure they don't say it's because you have to move on to the next step if you don't get a response it just checks a box that says a timely mr townsend's response is appropriate he says nothing i did was a timely i never got a response it was the prison furthermore he's not looking for a get out of exhaustion free card he says exactly what he wants all i box that says a timely no other explanation at the bottom his response is the most substantive he says i was absolutely not untimely it's the prison that was untimely i never got a response all i want is for it to be address responded to and have people see either incidents that is there anything the record that explains in that explanation that you just described why he didn't include reference to to his conversation the storage impaired absolutely  the point is that the prison did not tell him the bases under the administrative policy remember he doesn't have the written document so he doesn't even know that sergeant perry was wrong at this point they tell him one time only but they don't say sergeant perry was wrong about waiting they just say on tyler perry told him to wait he did what he was told to do and then without any explanation without any citation to the provision of giving him a copy basing on timely there was no reason at that point to bring up s misrepresentation if i may the evidence of sergeant perry's misrepresentation is on rebutting mr townson submitted his affidavit defendant murphy didn't even file a reply brief the other defendants did but didn't address it there's no affidavit anything but exactly what mr townsend said he did all right a time has expired thank you for your argument and we'll hear now from the apple e's mr mr hurd surfie and proceed first go ahead was named in the grievance by mr townsend and i will submit to the court that mr murphy's argument basically hinges on those exceptions in ross the three provide the correct forms mr townsend used the correct forms in his grievance process there's been no indication declarations of any kind of dead end element or proof with the arkansas department of corrections  do it when to do it the time frames to do it even if he didn't have access to that because it was in the library nice so there's no evidence that he asked to go to the library he had the record seems to show twelve when the defendant mr townsend went into the arkansas department of corrections he did acknowledge by his signature that he had received a thorough orientation he was aware of the procedures make manual and committed it to memory no i'm not proposing that he should be able to go look it up if you ever has occasion to trigger the procedure with the way it works it is your honor and his actual i thought that's where we were but his point is i tried to look it up and i couldn't get access corrected that's it that is what he states i think his action john or he for he fills out the correct grievance for his actions tend to lead to show or give weight that he knows what to do it when to do it again he meets the correct fifteen day time period and even acknowledged that in his declaration which is joint appendix one three zero i know he knew that part but his point is i didn't know when perry told me to wait that the manual says basically not to listen to him and to proceed anyway correct but so where of the administrative director of the two thousand and fourteen your honor so what is it significant that is orientation was in two thousand and twelve the one that you referred to on joint appendix one hundred one i don't i don't think so you a manual was published two years later doesn't it follow that he couldn't have been oriented about it in two thousand and twelve well the manual the directive indicates that effective excuse of directive indicates within there been changes they would have been which there weren't and there's no on the record those will be clearly posted for both reporters for again inmates and dollars why isn't he just entitle regardless of whether he had access to the manual to be able to rely knowledge on this matter is that statement but i would submit again i'm not trying to talk in circles but the fact that he did comply up until he needed to file step two of the grievance which was in that six day period he he knew what to do he knew what what forms to fill out in when to file those and i got think that if what if somebody had to build file the first one i don't know mean totally different nobody told him not to proceed with step one right i mean yes you are i mean so they don't and he knew to do that where i think we are or mr murphy's position is that he knew that process well even if he knew knew the process when don't need to do anything right now i mean that's pretty persuasive evidence that he doesn't have some sort of independent obligation to corroborate that to go make sure that the person who should know actually does know what they're talking about and that right very good argument very good point yes your honor and i can't stand here and argue that what he should have done a point other than to go with his knowledge that he had up to that point but the steps that he perry statements again is just adverse to his actions of what what he did the course of the track that he took well i don't get an answer from some from sergeant perry so i now know to go follow step to the only his own declaration doesn't indicate that perry address the other two inmates your honor but there were other issues of in my view in our brief that claims not brought up in the grievance were also filed in the complaint before that before the district court a if even if it remained is to murphy it should only be asserted claims to the client to the claim that was exhausted or attempted to be exhausted or what if what were the claims that you say were added in there allegations the march twenty three is the chlorine gas subject being chlorine gas of turning off valves in this certain room and then he pleads another another dead of another allegation which is obviously denied but  identify officer romano or got warden white the prisoner knew how to file step one grievance because he had filed one against marty and so when he filed the form form clearly says on the form that you name  personnel involved with the incident and that was not done in this case he knew the prisoner knew at the time when he filed a grievance they have mr oman was and you know that the warden has the ability to change it and so why isn't it sufficient to put the warden at least the warden on notice that that this particular complaint could be directed at him and he didn't start the warden in in the great events and therefore the warden was not involved because the personnel that are involved are supposed to be named in the on the phone what's supposed suppose you have a situation where somebody has entered and you know that there's three three or four present employees but you know there's an entry that's involved you only name to it that you don't know who the other two are so you don't specifically name that ms is that it you only get to bring the claim against the two even though you know the two other people are involved but you can't name there you have fifteen days to file a grievance however in this case if we don't get to that point because there's no where france to warden or to any other supervisor or any other her office always the grievance and two other individuals would that have been enough or would would they need of what he had needed to at least identify them as supervisors in this case well there would be a reference would be made prefer to have a reference to someone else another put it in our case there is no reference so that would not apply to this case were named or not name it to begin with and the prisoner knew how to follow previous because he filed one against mar we know you're asking for the affirm and so we're just wondering go ahead you know well if does the does the attorney general of arkansas have a position as to why expired mr baucus and i think we understood most think we understand the case will submit the case on the arguments presented thank you all three for your presentations and we'll file an opinion in due course