see all right mr frederick you're up st sir thank you judge stewart and may please the court the district court's injunction should be reversed for two independent reasons  st the district court defied the p l r re and created the very kind of special circumstance exception of the supreme court has consistently rejected nd even if the peel aerated not bar plaintiff's claims the district court finding of liability is based on multiple your errors of fact and a fundamental error of law and i want to start with exhaustion but before i do i want to address the court's questions about current conditions  seventeen inmates assigned to the pack unit have tested positive there are currently four active cases among inmates at the pac unit there have been twenty seven staff members assigned to work out unit who have tested positive since august st there are nine current active cases among staff there are currently zero inmates assigned to the pack unit who are hospitalized with active tested positive there are no additional offender deaths the last offender death occurred on july twenty seven there are currently no staff hospitalizations and there are no staff  if i could begin with exhaustion hilary bars the plaintiffs claims because there is no dispute that they failed to exhaust their administrative remedies before violence the district court hel remedies were not available for two primary reasons st because the grievance process quote operated too slowly for the seven thousand seven hundred and thirty four in the record on appeal and nd the grieving process was not effective in preventing the question is whether it is possible to obtain some relief full stop relief is available if there's a forty to take some action response or complaint even if it's not the remedy that the inmate demand for example in st tzschirner the inmate wanted money damages the grievance process did not provide for money damages the court nevertheless held that the administrative process was available there is no futility exception under now here the record shows that p v c j's administrative process was capable of providing some relief both of the plaintiffs mr valentine and mr king they got some of the relief they requested and reagan says and veil ability under the p l r a because the supreme court's been very clear in do that ross the mere fact that one inmate is not successful in obtaining some relief that does not mean that the administrative brought oh yes roger the so under the under the revised procedure proposed related grievances the st response in step one had to be returned in fifteen days and likewise step two had to be should be clear the fact that they made a special accommodation for coding one thousand related grievances during the pandemic as it develops that is not evidence that the administrative process was not available at some prior point and you only need to go back to the supreme court's language and ross booth and related cases that as long as some relief is available then the administrative process is available and inmates must do no good sorry if if the exhaustion process was unavailable in the past and it is available today what is the relevance of the former very well for purposes a prospect of relief told them the the relevance is that availability is generally evaluated at the time the complaint is filed and so that's why when we look at m valentine and mr king we need to consider the circumstances that existed that and so it is a you know unlike the th amendment in korea which is very much focused on the future it is to some extent rooted in deposition transcript mr valentine you're requested really for testing of all the offenders with subsequent granted right answer it was amazingly still and in fact once i filed the grievance i think it was just within days that they tested adjustment of the procedure within it ministration and so there was a new there was a new grievance code provided and so the inmates were believed testimonies the inmates were advis that that would be the new process and so that i think that's how it happened here on a day they just implemented shorter deadlines are so the testimon and herrera are and inadequate is not the most reliable if we look at the record as a whole there is no basis to hold that color or herrera disregarded the risk of pope at nineteen that they acted with criminal recklessness or that they showed a wanton disregard for serious medical need now i want to start with a clear factual errors that the district court made i'll give some examples if found that the tests were quote unquote defective because they were only approved as a merchant say you use and not approved for testing asymptomatic individuals that was true of every test that was available at the time of trial nd the court credibility determinations are also clearly erroneous the court found that t v c j and the defendants were not credible because it questioned their method of testing only negative in mates who were retested then eventually they began serial testing the policy was every seven days and so that's when it began and it continued throughout trial matter of fact that's not what happened  june and thereafter there was testing there were a couple of times when they couldn't do it after exactly every seven days but it was serial testing of the question i don't think it's a failure to follow the policy i think it's they were creating the policy as testing became available on a mass scale and so they eventually implemented the serial testing in you seven days in june and so that is the policy that they implemented it and that the fact that they did that is no evidence that all your aura were deliberately indifferent in fact the plaintiffs have effectively conceded that there is no proof of deliberate indifference because they argue that they don't have to prove it but as we've explained in our brief that is contrary to export it's contrary to it ball there is no vicarious liability twenty one dollars there is he said in their experience they simply could not get it any faster despite the fact that the surety of company that performed the tests apparently said on their website that they could do it in twenty four hours that's slightly help me understand the eighty a really claims in that set of of inmates which sort of by definition there are certain number of inmates who either w you know how many were there i mean it kind of fit into this category of those in the wheel series and so forth particularly co morbidities cetera et cetera and not so much with your argument about the p l r a would be the same but just obviously people on crutches in wheelchairs have a different set of proclivities as boys hand washing and that kind of stuff a tickle they would put their hands back on and so i'm not real clear exactly how that was all address below because it was so much other in here but the wind up of that is just shift gears slightly to that set of plaintiffs a wheelchair bound head extra co morbidities etc what the some class during trial some class was not actually certified until the the final injunction was entered and so this theory and of emerged during trial the evidence was or the argument is that as you mentioned certain inmates you know they have to touch the wheels of their own rings on the wheelchair wheels after they wash their hands so the argument is they must have an sanitizer but  supply of alcohol based hand sanitizer to these mobility impaired it's now as louis was it was it was at the key hang up because generally you know because a sack a whole base that kind of fits you know i guess within a general sort of band contraband whatever whatever penalising claiming was that the hang up that's my word you know be said to be complying and i guess the answer is you know was there some alternative  unclear about that piece and you help me tell me that subset was never really certified as i did well not not until the the actual permanent injunction but i can't answer your question about alternatives surface and so the other point i'll make is the accommodation they seek would be as far as we know from the record unprecedented because there's testimony that other prisons provided a stationary source of hand but there's no evidence that any prison provided individuals why and that's it he distinction because on their theory a stationary source would not solve their problem because they would still have to wheel themselves away from and so i can tell you where they were are they were in they were in common areas outside of the dorms and so i i think based on my understanding of how this the unit is set up i don't think they would be easier necessarily to access than sinks into dorms you know which inmates could access at any time i think it was more of a secondary measure or just provide another option but i'll also point out that you know for certainly through the time of trial the whole unit was on precautionary lockdown so inmates were not moving around really except to go take showers and so the access sinks in their dorms i think the only argument is that once they washed their hands and there's no testimony that anybody couldn't wash their hands it's just that then they would have to go back to their b not testimony about that but the inmate testimony says that you can get gloves through eighty s i'm not sure what that stands for but there are special wheelchair gloves and so i'm not aware of any specific testimony about how often they can get them but there's no testimony they were unable to you know our let me just ask you one of the area where i understand what the what you are it's not a valid theory for two reasons the st is that they have not established a denial of access to a prison service because even if you  of all there is no authority that the district court provided that specifically hand washing or on the spot hand sanitation is a service under the eighty eight dollars but even if it is the testimony does not show that they were denied access to that they have an alternative which is the use of logs they also get clean towels every day and rd that would not be a reasonable accommodation to give them individual supplies of hand sanitizer because it's contraband and so that would fundamentally change the nature of the supplies the prison provides to its in deaths and illnesses and in fact in about two hundred infections about the time of the oral arguments in between i think the injunction this court credited to d c j's representation is that it had substantially complied with the injunction judge davis you reluctant lee concurred but noted up of acts and representations had not been under oath and not tested by cross examination after an eighteen day trial the trial court determined that the pac unit today juggle them what i will say the numbers are not credible the district court found that on good record evidence to find the real credit evidence that for active cases is not credible well because the website is not numbers change with no consistency we had other texts you come asking for i think i'm asking a slightly different question i want to make sure i understand your position i heard mr frederick represent on behalf of his client earlier that there are four active cases at the time of trial and today there are four active cases as we're sitting here on december rd it would be an extraordinary thing i think to say that it's that your friend on the other side this is not giving us correct information especially after the court asked for it in preparation of argument and so i want to make sure i understand or are you saying that mr fredericks assertions are not credible i'm not saying that mr frederick intentionally trying to be inaccurate or that you've not i am saying that the website is not  so i guess we go back to is it four cases is that i mean the court has to make a decision about the permanent injunction whether it we have to do exhaustion if you take them in we have to be a whole premise on a record and so the record in front of us was for the time of trial and for today and so i just want to make sure that we're all on common ground for active cases we're not and we could go it was we don't know how many of you have and i will say that if you look at the website last month there were forty instances of what they call ending cause this month there were the one ending cause and so it's unclear how many there really are and what's happening up so i don't think without testing this under cross examination we can find that these numbers are credible i will say that director collier testified that the risk at the end of the trial of kobe of reading again in the unit was higher than it been back in march and that the risk was extremely high and their expert doctors say what's agreed with the  this inmate as recovered on their website and not us let me get at it this way maybe this will be helpful mr frederick and i understand you haven't disputed this but in the briefs filed in the court at the time of the or for active cases and today there are four cases do you have any record evidence yes or no that suggests that either of those two times points in time there were more or less i suppose active cases than for there is no record because the record only for the new numbers now i can tell you about the website between those two points as shifted dramatically from zero to six and back to four so there is no record of events of that just like there is no record of events with sports i don't understand how what that can be based on if your client the lead plaintiff in this case laddie valentine says that the grievance procedure was quote amazing i don't understand how you could say it's not available he said when he asked her as the and got to within days yes and the court bickley found that thing had been planned before the agreements was there is not mean record evidence at all whatsoever that any inmate received any relief based on agreements that was fi both of them not plaintiffs testified that they did they had available remedies from the grievance procedure and i guess i'm looking really hard for appeal or a case they would say where you ask for some relief and you get some relief that you well so the real world workings of the prison grievance and in the real world of this prison grievance even mr valentine who said it was amazing that he got the task that they later didn't realize and it came out at trial  one of the things the court should look at is whether they were just rubber stamping the grievance and if you look at the grievances in this case that's exactly what happened there every grievance doesn't address the merits it simply is best we have a policy we're following  testifying about i mean we can we read his words but i mean what it what are you saying that he's talking about in context mr amount i was asked is the grievances i'm available and he said yes it is apologize if you have a different page number but i only have the westlaw page numbers of the district court permanent injunction ruling so this is on star twenty seven and the district court says and relies very heavily on this to the sage t j knowledge meant that the one hundred and sixty to the contrary you've got mr valentine saying that their response time is amazing and then he gets it in a couple of days when he asks for the testing well what he was saying was it was amazing that he got tested immediately after his grievance he wasn't saying it amazing but they were responding quickly we haven't heard of the sort of maybe this is the better way thing about it is is can we agree that the purely theoretical maximum amount of time that you could have taken one hundred and sixty days is irrelevant in light of the preposition you give or doesn't matter it's not does often but it does matter and so apparently we do think about purely theoretical things not just not real world things always i think about real world things that's why i raised this one particular instance where there was an inmate who took well i think in looking at the real world circumstances you look at the real world that says they're allowed this much time and they can say this much time that's the real world and in the real world they could take one hundred and sixty days and sometimes all right let me help me understand boy your own appeal to the you said that the district court found essentially the process was a dead end so we're on appeal the i mean what within the scheme of ross or you are going to the panel today we're in the row twelve judges have seen this case so you know we're you know we're here so so what landing on that because that's what all the facts on the record show there is not one piece of evidence in the record shows any inmate paying any relief based on it removes i'm not sure i understand what would be  a if the inmate says i would like to have code testing and then the prison provide some code testing wittman in the musingly short period of time and in your clients or words the fact that the prison may or may not have scheduled that before the grievance the grievances been met i mean been the thing you asked for you received right if a prisoner says i would like to receive a pusher meal in a prison delivers the kosher meal what does it be a good case for us to look at that says the prison providing the thing requested in the grievance is actually a dead end not seen a prisoner receiving that thing certainly not  i don't know that there is a case that has that exact scenario where it just by happenstance happened that the prison had scheduled to do the thing that was grieved but there were so many other things that were grief and so many things that were in days and then they did not even follow the testimony or they refused to put it in writing the judge found that even during the trial they were following the seven day testing so you have an instant tatts then while mr valentine did get tested what that has been used don't they were order to produce the results so that the underlying facts could be trusted and subject to cross examination and they never did can you help me understand the argument that you don't have to show subjective intention dish reports opinion right now and i don't see anything in here about subjective intentions of the warden or the director is there but am i missing something it doesn't look like the dish board said anything at all about subjective culpability  factual finding and whatever funding to go through shows the subject and it's all based on the factual findings none of which are clearly erroneous as to storms with capacity one hundred and sixty seven dollars inmates left open for just infer from the objective result if the things that i'm speaking of the factual findings that you know there were no but they were aware a plane and took no action like we're going to i think and i think we're saying something if you're aware of not sufficient mr king yes there was no increase in downers or chemicals and dr young testified the cleaning with not sufficient rickover at nineteen in may they took mr king's deposition and he said we need more cleaning we never have enough cleaning supplies in your lot mr king testified in trial that the complaint cleaning supplies run out i knew in and that they had never been increased mr herrera's said he was not aware of any increase in the cleaning chemical and is told by all the inmate janitors that there is not enough cleaning chemicals is removed from there we'll call witness list and he never testifies of direct cross examined but direct a collier is asked about what monroe told him and he said and was wondering if that might be a factor he said things like cleaning supplies were raids and he said we need to start holding wardens more accountable so he knew he had throughout this case been told they don't have enough cleaning supplies he waited them so trial to actually go and check it or herrera knew this all the time or waited until trial to go check and then after taking monroe off the witness list and saying he told them everything looked fine we see attacks that he actually knew that the warnings warrant doing enough and that there was enough when you get him out i'm sorry if my question my question was is there evidence and you were very emphatic cutting me off that yes there was and so i was waiting with that there was evidence that the cleaning supplies were in some closet and just weren't being provided to the janitorial staff are you saying that there wasn't that the no no no expert said that there was adequate cleaning supplies if you went there and and yet there i understand your position on the eighty eight what is the government service or program was denied to the mobility impaired subclass and hygiene is a government program so what's the authority for the idea that hand hygiene is a government program u disability because the wheelchair and maids were not able to get to the sinks and were repeatedly even if i went to the same as i had once i leave the same my hands are now touching the wheels the wheels are touching the floor and other things and i will correct one thing up my friends is that there was testimony the mobility impaired inmates going to aim gloves i don't believe that's accurate i believe the testimony is gloves were only provided to inmates and not to the mobility him to get to the thing based on the location of the same and i will correct one other thing the testimony was that the hand washing thiessen which only appeared during the trial the hand washing stations were not located list the things that he found that they were not doing were not telling of policy to the pack yet despite knowing that these inmates were at higher risk they had a system wide policy and the you disagree with yes there were no specific things done for the pack you know and so we got to the edge of trial when things like and washing stations suddenly showed up but things like masks or one suddenly to master even everyone so even their own policies they weren't following them i believe having a policy and then repeated instances of regularly not following the policy routinely not doing things  that is evidence of subjective you know and deliberate indifference in our lawyer or a regular if i would say also the fact that they knew the pack unit had more complaints than any other unit and took no action collier waited until trial to set up a compliance team to go out and see what the issues were and then even his from my own steam he said well i don't have a report i can say what they s do that but yes for the most part the record evidence was the biggest you were at the mouth is that routinely the guards are not wearing masks that was the testimony was an isolated incident it wasn't a negligence thing it the all of a one hundred and four units and grievances and a lot of that was about not wearing e b e or no or also testified he walked the unit routinely so he wouldn't have seen this he said that sometimes the guards take masks off but  you know i would just rely on the luminous record of the factual findings of the district court that there were so many instances of them not following i mean i think in addition another example a subject is if you look at the grievances that most of them are just rubberstamp with the same response and no one actually addressed the grievance so i think that shows a reckless disregard of the risk if inmates are tell me what there were i could say is that's not my quest don't know answer the question you think you want to answer but answer the question i'm asking what is your best case or cases that even taken what you just say it amounts to deliberate indifference as described in farmer's verses gross negligence or something akin to that i just want cases not argument i would start they already breathed in your brief but i mean you know when sensually so but so what the cause this case to this there are plenty of prison cases you know but i mean what's the given what you say it you know the other side says yes requested correct answer yes sir be facts stepping back the fact that inmates undoubtedly got relief in this case before the grievance paperwork was complete that might be evidence that the administrative process was not necessary but it is no evidence that there was not authority to provide some relief and that is the test of no ability under the p l o i want to jump now to former versus brennan which mr kevil cited the district who are the district court also cited that case at and this is if you look at it this shows the fundamental legal error that pervades the opinion on our way seven thousand seven hundred and thirty six the district court cites farmer for the proposition that an inference of deliberate indifference may follow quote from the very fact that the risk was obvious end quote farmer eleven us today forty two the full quote from farmer reads quote a fact finder may conclude that a prison official knew of a substantial risks from the very fact that the risk was obvious and quote the cited passage of the district court relied on in farmer deals with knowledge of risk that's the objective prong of the hate and then an inquiry but the district were used that language to describe a standard for avoid the spread of coded nineteen and that is directly contrary to farmers as brennen which holds that there is no eight the minimum liability merely because the harm was not occurred it the court held that turnaround time showed deliberate indifference because it was simply too long to effectively contain the spread of the virus seven thousand seven hundred and forty four again that is inferring deliberate indifference from failure to succeed in abating the risk that's directly contrary to farmer to this court's decision in shepherd st dallas county and to discover its decision in go over which says that in a medical conditions in a medical treatment you must show the prison officials refused to treat ignored complaints intention we treated incorrectly or negation similar conduct in the vents in wanton disregard for serious medical needs i want to point the court regarding cauldron herrera to report our reply brief says this is where we address what the plaintiffs described as ample proof that hall urine herrera themselves were deliberately indifference we have explained what you see there is they list knowledge of objective facts and then they say there was a clearly quote inadequate response that's their theory of deliberate indifference that's not what farmer old that's the district court's theory of deliberate indifference and it is contrary to clear supreme court or if we look at the record as a whole based on all of the steps j and all your herrera took to address the  constantly changing and emmet it is not possible it is wrong as a matter of law as a whole the whole year or herrera act with criminal recklessness or engaged in is cruel and unusual punishment no not at all your honor but the staff members of course are not always confined in a pack unit i mean that's that's why now i continue my answers and stewart oh absolutely yeah i'm going to think you so i mean that's  everyone including the district court has recognized that prisons are uniquely susceptible to infectious disease and one thousand nine hundred the staff they go home at night then they come back in and so i don't think it's a surprise i mean we you know they are they are out in the world and unfortunately we're seeing that people out in the world are still getting poked at nineteen so i think the more important fact is correct but i i could not swear to it and i can't give you a record site right now but i my understanding is that it is the same test and generally the same schedule but i can't say that for sure but i can tell you that i can tell you that the fact that they have continued this testing regime and have continued to screen people and restrict defender movement that's the opposite of deliber and if i could just take fifteen seconds judge stewart yet here i want to be very clear to affirm the district court this court would have to do several things you have to violate congress was commanded exhaustion is mandatory you have to do exactly what the supreme court has repeatedly told lower courts not to do really special circumstances or the district court said extraordinary situation or extraordinary circumstances exception the l or any you have to contradict former versus brennan by endorsing an objective test and it would have a whole prison officials liable for a constitutional violation because they failed to completely abate the risk of harm from a once in a century and the word should stop at the  argument is to have a conversation with counsel to get answers to the questions and we appreciate both of you with vigor and candor and prepared nisson answer and the question is there we have stuff case so  we'll get it decided as soon as best we can but thank you when your respective colleagues for the good work done so with that you both excuse with thanks to the court