good morning honors went on a white was a federal detain me with the united states marshal service having legal custody over her and c physical custody over her during the period from september ninth two thousand september eleventh two thousand and nine to september thirtieth of that year she was with them for basically a little over three weeks except for a ninety six hour window where she was in labor and and dealing with complications in a local hospital she was there due to an interim government of agreement where can he keep county specifically germ comes detention center agree to house federal detainees and provide reasonable and necessary medical care she filed an action in september of two of that same year two thousand and eleven where they pled the affirmative defense of that of not exhausting all her administrative remedies by december of that same year a discovery order was provided it correct that the district court said that she had enough time to submit a grievance she had eleven days before delivery and four days after returning from the hospital was over to the courts yes well our she had no knowledge of what happened in terms of their basically benign neglect of her and her fetus during the period that she was there during the time she came in on september eleventh on september sixteenth a nurse took basically partial history her due date and gave her prenatal vitamins to temper seventeenth there was a meeting with the medical directors two physicians the nursing staff and the physician's assistant as well as jail person chief of operations chief downey at that time the doctors clearly stated that this this inmate was beyond their scope of care that she needed to see an o b g y n immediately and she need to be transferred from that facility because there what she needed constant monitoring went on a white was thirty seven years of age and her tenth present last my question is simple why didn't she if there's no deadline and filing a gr you say there's no deadline so it's some point she obviously learns that there was a problem so why this and she filed a grievance got it you know i believe the statue of limitations for this sort wear a deadline and my understanding is it's the that deadline supposed to be imposed by the facility but never the last the authority final authority comes from the united states marshal serv that says those kind of decisions be made by the marshals or final authority final authority for an enemy to be transferred such as in this case where she is pregnant and in her eighth month and high risk hypertension previous percenter abruption is the she previous pregnancy smoker or obese things of that sort she would have had to have a clearance by a physician before she would have been able to take a flight in this case despite the doctors stating in their meeting that she need to be transferred immediately there was nothing done  there basically she sat in her cell until she had labor there was one sick call request which she did not go to because it was too early in the morning and she was not feeling well and that was to a physician's assistant was never seen by anyone and in this case it's not that she could have gone to a hospital and emergency room you know before she was in labor and all they would have done would have sent her back she needed constant monitoring and obstetrical care chief downey said that she did even though he'd been at unavailable to her she had no knowledge of what was going on no one communicated anything to her regarding what did she get a work she got missed received a handbook ya know where they were and she never that's one thing she never ever stated that that  it was sixty seven notices of depositions filed in this case well not the mean obviously there's a lot going on there's the father's case the child's case they're being him altogether right yana but in this defense is not going to take care of the fathers of trials because yes you are but but but this is this unfortunately these deliberate indifference cases even in resulting in pregnancies with defects or death are fairly common this was a very very simple case in terms of she never said she filed a grievance they'd chose they strategically more empathetic sympathetic plenty here actually i chose to keep the criminal unfit mother if they if they want to proceed to a jury trial that was the only explanation i could gather from why they would keep we asked plaintiff's attorney to join for just to have the trial consolidated and he did not he want to stay away as far from the mother as possible and fathers tree the for the father's attorney right who believe that the only reason they would have and we it was a wave when they went on for two and a half years and in that two and a half year period good morning runners this appeal raises two questions the first one almost i don't understand the emphasis in the briefs and by the district judge on the eleventh day what's that about well you're saying you know was eleven days for four days she could walk and talk or something of least talk and therefore she should have filed a grievance within that period why your honor this goes to the availability of remedy so the question is one is there a grievance process yes there is look just answer my question why the eleven days what was a lie is that important she was incarcerated for eleven days before she gave birth to her baby i don't know but she was tipping point seems to be that you in the judges think she had to file her grievance within the eleven days and she was capable of doing it in the four days after the perth because she could talk or so right now why is that a deadline i would say the deadline would be as long as she was an inmate i'm not it was another eight days another eight days well so why is there such emphasis on her not filing within the four days when she had another eight honor with all due respect i don't think that's the deadline and that's don't why didn't you send the judge said in those four days she could have filed a grievance well she could oh and by the way it doesn't matter right because she had another eight i'm saying that she know she had another eight days right so there's no magic to those four days i would agree with that well why do you talk about it that your honour's it's my belief in the brief she is an now if she had filed within a week or two weeks we might discuss whether there is an implied or a reasonable time limit that we want to put on that but that would be a different case well when we can let's let's talk about there's of an opinion from this quarter earlier this year called king against mccarty that also dealt with an inmate who had been transferred and the question was whether after the transfer that inmate could have had because and i think you lose the whole case at least the whole defense because she's only in there a few days after having given birth before she's transferred i mean that the idea that she had to file that quickly  it seems to me is just preposterous if i could say this case is about her seeking or not receiving prior or sufficient obstetrical care so the time to do that the time to raise that is when she's pregnant yes i'm not feeling good yes i want to be transferred yes i want to go to the be taken to the hospital yes i want to see an obstetrician so so when's the time limit under the policy that she was given to answer your question there's nothing in the end made handbook that has an explicit deadline i would say that the i would say that did she know she was going to be transferred on the thirtieth i'm not sure is there any evidence that she did oh i don't know what she was told in advance of the transfer well ok because this position you seem to be taking now is she could kankakee absolutely ok and after she's gone she cannot the inmate handbook talks about grievances being filed and it specifies that grievances are to be filed by inmates so you infer from that the after she's gone there's no grievance procedure available to her that's what i would infer ok i said that would be my primary position i think you could also make any sense to say that grievances are to be filed by in may  while they're in in is that if they don't want a grievance they just you know let it go a few days it makes perfect sense but it means that there's no defense under the p l r a well i've if it's not available to her well it was available to her because let's talk about availability what might my question as to the court would be what is preventing the inmate from filing a grievance at any time for my other thing she doesn't know there's a deadline she doesn't know that her transfer is imminent and she's trying to recover from a fairly traumatic birth ok but what we're talking about here what is she seeking what would be the group in last we're going to say that this case there's just no way to file grievance in this case she wants more upset to hear she wants to see a doctor she wants to go to a hospital so it's my belief that it's incumbent upon her to file a grievance so that the jail officials are actually in a position to do something for her you can put in a grievance here's how you have to file a grievance even if the only remedy available is retrospective right correct i mean the whether there's a meaningful remedy really doesn't matter does it correct it's a case and in the briefs we kind of go down a road where we talk about futility and i hopefully it's clear in the briefs that her futility arvid just doesn't fly because it's not about whether she can get monetary damages or anything like that the question is she has to put it file a grievance with jail fishel that's what's required under the inmate handbook and again there is no dispute that there was a grievance process and there is no dispute that she's never filed a grievance so there is we're not going to the question the question is whether the grievance process and procedure was available to her that's a statutory term  let me ask is there any time limit for processing i believe that there's a seven day appeal period it's in the record but i don't and procedures so we also and that lays it out what is the role of the marshal service in all this while this was a federal inmate and she was transferred i understand that that's why she was there but what what different facility and they had some involvement in terms of where she would be transferred and that is actually an issue in the second case the lipsy case which has been filed on behalf of so the  defense early in the case now if plaintiffs wanted to concede that they had not exhausted their randy's they put of they could have done several things they could have dismissed the case they could have tried to follow a grievance even after transfer they could have done a host  things they didn't do that mr rose i got to say hi i have some doubts about the legal viability of plaintiff's arguments are about waiver i really do wonder waiting more than two years to seek that hearing seems to undermine the whole purpose your honor there was no question with the filing with second case and there's a long and tortured procedural history with the spector the second case the two cases were solid  dated there were motions smiths that were filed so there was no question that all of these people were going to have to be deposed you know and the fact of the matter is point to point on a white and chief downey were not to post until late  you know with respect to that issue before going for a baby here and so it made it made sense from a defense standpoint since we were going to have to take these depositions anyway to try and discovery was consolidated there's no intentional delay here there's no bad faith litigation if anything the p r a puts the onus on the point that it's the plaintiffs or spot this the plaintiff inmates responsibility to follow and to file a grievance and the plaintiff also child who was born with severe and permanent birth defects is five basically i'm not sure this is a mother's case and then we have a father's case which the marshals didn't exactly exactly because the marshal service has finally complete