we'll move to our second case this morning which is well worn versus eally case number sixteen twenty one  whenever you're ready morning your honour's i mean please the court and the outside i'd like to say that i'm reserving one minute for rebuttal repeatedly this court has expressed concern over allowing a system in which law enforcement officers can use as much force as they like an clearly erroneous and cannot be reconciled with the evidence presented and as well as with the record second this one was heavily prejudiced by the district court remedies available to him under illinois law on july twenty eighth two thousand and eleven joseph wellborn was grounded and beaten by a group of over four corrections officers because he was covered in bruises cuts and other day after he threw a punch  his fine independent finding and refers back to the very same disciplinary proceedings so he applies the heck carney says that i would i would want other grounds as well but then though those other grounds on multiple occasions are co incorporate the same principle on the hack principle and the disciplinary proceedings and in fact he goes on to the district judge goes on to say that mr one was not credible because he testified are contrary to the disciplinary proceeding which basically puts him in a paralysis because he couldn't testify either way if he testified to what he believed that he was attacked and that he did not punch the officer officer johnson specifically then she would have been impeached  inconsistent statement in that same that's represented in that same proceeding so at at the discipline or proceeding he said that he was defending himself and that he pushed back that is exactly what he said a trial and the district court could have that that would not necessarily his conviction of staff assault because the push could have sustained that conviction as well and not the district court adopted the independent officers version of the facts wholesale it found that the only force that was used against mr wellborn was holding and hitting his legs his arms and shoulders he was pepper sprayed and then his head of was held down these are all the specifics uses of force that this report identified  this is simply not it's not only unlikely that this is the only force they use but it's impossible and light of uncontroverted multiple pieces of evidence that he had very serious serious facial injuries as were black and swollen shot  there was testimony that he was missing a tooth and this is all documented throughout all of his medical records that he presented at trial so there's no way that this was that he was simply a hit and his arms and legs  the district court found that he was trying to head butt the officers he was thrashing around on a hard floor including moving his head around why is and why is it impossible for a district judge to find that that's a potential in the district court found that when he was grounded and he was face down he attempted to head but officer eally with the back of his head that was not a cause any damage to his  eyes there is no way that he could have threatened i mean unless he was repeatedly banging his head against the ground there's no way that he would have been his own i shot it that it's simply impossible no reasonable fact finder could find that not the district court also found that nurse that documented his injuries and noticed and noted more more than just pepper spray injuries noted cuts abrasions and then when he was seen by further by nurses after he was transferred to another prison the list of injuries grew even more major rhesus testimony at trial that he saw mr warren you know and then he saw that he had been pepper sprayed and that those were the only visible injuries that he had at the time  and in addition to these inconsistencies the fact that mr wellborn the fact that the defendant's claim that mr we're going was pepper sprayed at the outset of the incident is also inconsistent with the record because  events because he would have had his clothes on and defendants testified to only administering to quick short bursts of spray which would not have been sufficient to cause those kinds of injuries that he was complaining of and that's documented in his medical records johnson well the question the heck question does turn on who started the fight whether the officers initiated it whether he initiated it and they simply responded and disciplinary proceedings concluded that mr wilburn started this altercation yes but i mean to the disciplinary proceeding concluded that he started the altar cation however if that particular factual finding is it is invalidated that does not invalidate the conviction the conviction still stands and if it turns out that he in fact just pushed officer johnson explain it mr wellborn as this court has repeatedly noted the heck bar can be especially confusing for proceed with against and it was it was very confusing for mr warren who immediately after the heck in the heck objection was made before it was ruled on or explained to him said ok i'm going to fast forward and then he skips over a major critical portion of his testimony and then the district court in assessing his testimony false him for having a lack of detail when that lack of detail is directly correlated and happens right when the facts are the heck objection be documents what can i ask you about the counsel issue here you've you've talked today about the district court having failed to recruit counsel that in fact the district court did recruit counsel right in their counsel was allowed to withdraw yes do we know what what is the record tell us about the circumstances and the choices that the pla sorry what does the record tell us about why i counsel sought leave to withdraw and what options were considered by the district judge and presented to the plaint about whether to go forward or to wait is my understanding that the standby counsel that was recruited withdrew shortly before trial yes i know that because of a scheduling conflict i mean asking you what the record shows about who ordinarily look when district judges recruit counsel you bend over backwards to accommodate their schedules so this is a very odd story and i mean asking you for the background to the extent reflected in the record i'm not aware of what options were given to mr warren after his counsel to the group perhaps defense counsel or be able to answer those questions  did you have any comment on the assertions that hundreds of lawyers were contacted by the district court i think it speaks to the fact that just it was rife with complicated issues and mr warren made the most sounds to me like a non sequitur ok i was asking you about what we make of the district judges efforts which sound fairly extensive counsel the fact that mr warren did not have counsel at trial significantly did prejudice him however he was on able to navigate the difficult now the pech bar as i previously mentioned he was unable to effectively bring his case cross examine witnesses with his ninth grade a great education he was unable to mold identifying multiple potentially libel defendants including officers and a nurse who we wrongfully thought was defending walter seemingly until the day of trial because it was her signature on a particular medical know that he and he thought that she was the nurse that actually seen him it turned out that it was a different nurse and they he had no way of bringing a claim against at that point these are wellborn that's been documented three seventy seven the district court had a lengthy discussion with mr golborne where he explained that he could not guarantee that counsel would be appointed if they postpone the trial but offered to postpone the trial so that mr wellborn could move again for counsel or have more time to prepare to litigate the case himself so he was given the opportunity to postpone the trial and to try to seek counsel again and he declined that offer and elected to proceed on the scheduled trial date having done that it is hard for him to argue now on appeal that the district court sixteen and the southern district of illinois has implemented a program whereby every year there's a panel of eight hundred attorneys and the attorneys can be appointed during that time were recruited during that time and then if the year goes by and they haven't been recruited they're off the panel so here i imagine that the district court would have turned to that panel and because it had been implemented by that time and requested another attorney to step in had mr wellborn elected to postpone the trial that system wasn't what was used at the beginning of the case when judge gilbert contacted some four hundred lawyers no it was not because it actually was implemented through an administrative order on january twenty ninth two thousand and sixteen which was effective march first tw sixteen his counsel withdrew in mid march twenty sixth seen the pretrial conference was a week before the trial that occurred in april two thousand and sixteen so he would not have had the benefit of that system when he made all of these contacts but he did so anyway so judge gilbert actually contacted some four hundred lawyers that's correct it's unclear precisely how but there are minute orders that state you know for the first time i believe contacted sixty five attorneys and  e going on the record does not bear out exactly why the court did not follow and did not accommodate the volunteer lawyers schedule it showed that the trial had been set for a week during which the volunteer lawyer had already been scheduled to speak at a conference in chicago and so he couldn't make that work there's simply nothing in the record showing why the district court did or did not attempt to move the trial date at that point however at the pretrial conference you know the option was given to postpone the trial to mr wellborn and i'm not sure whether that and the court would have gone back to that same counsel or whether it would have sought other counsel i would also like to talk for a moment about the hex bar the district court did apply the hack far correctly and i would also like to point out that during the pretrial conference again in document three seventy seven the district court and wellborn and defense counsel also had a lengthy conversation about the heck bar the defense counsel suggested that it was going to object to certain parts warrants testimony on the basis of pack the district court said that it understood that objection and mr wellborn piped up and said i don't understand what does that mean can i still put on my case in the district court answer question and said that just means that you can't testify contrary to what the adjustment committee decision and determined however i will let you put on your case and then that was reiterated again during his direct examination when he was testifying in narrative form defense counsel made the objection the district court noted it and then allowed him to proceed and so there's nothing in the record showing that that was misunderstood especially given that there had been a lengthy discussion of that issue a week prior jury and the pretrial conference mr baldwin also did give his side of the story there's nothing to show that he that he did not in fact he testified at least two times that johnson grabbed him and choked him first even though that was contrary to the heck bar he did get his side of the story out and so there also was an independent basis for the district court to rule in addition to the heck bar the district court did not clearly  in that respect i would also like to know with respect to the facial injuries there is no evidence in the record clearly showing that the district court erred the district court found that he suffered facial injuries and  at that point you know his face would have been as you can see from the photos small and and red and that's a very obvious injury the fact that he did not see cuts or other swelling on his face is not unreasonable and there's nothing in the record contradicting the conclusion that the injury simply developed later or the fact that mr rhys did just didn't see those injuries or did not remember them i mean that's happened years before he he  testified at trial it is a perfectly reasonable explanation and a conclusion that the district court breached that he did sustain these injuries during the initial altercation and that mystery's only saw the injuries from the pepper spray when it all kind of comes down to it mr wellborn on appeal and nitpicking little decisions that the district court made the district court heard the testimony heard the evidence and based upon its own estimation of that evidence and argument testimony it issued a careful decision and that included detailed credibility determinations dozens of findings of fact and many well supported conclusions of law and if the court has no further questions we ask that  section five zero four eight ten required that all grievances be submitted to the grievance officer within sixty days of the incident that gave rise to the grievance this court has repeatedly affirmed that when an inmate fails to submit his grievance within that sixty days window summary judgment is appropriate in this case the evidence that used at the p v hearing reveals the missed the incident that gave rise to mr wellborn complete occurred on june twentieth two thousand and eleven it is understood that he did not submit his grievance to the grievance officer until november sixth two thousand and eleven which is one hundred two days after the incident that gave rise to his grievance accordingly and the district court properly found that it was untimely and missed that mr wilburn failed to ex the regulations require that inmates attempt to resolve disputes informally with their counselor however the regulations require that the grievance be written on it an official grievance form and that that form be submitted to the grievance officer within sixty days if the inmate was unable to resolve the incident with the counselor through the informal resolution process in this reduced evolutionally time limits for the informal resolution process which there was no time limit pertaining requirement that the in jackson versus sheppard that the inmate actually receive that written response from the counsellor before going to the grievance officer and that sixty day timeline is required and so according based on the holdings of  er that group sportster it's true that in april of this year a new regulation went into effect that allows the inmates in two thousand and seventeen to submit agreements either to their counselor or the griev however that procedure was not in effect in two thousand and one right now but the concern that i have is that under the system it was employees there was an awful lot of vagueness and discretion concerning time i don't know if the state or its employees or its contractors are in a position to place where to insert strong strict compliance with those deadlines where the other circumstances are vague i think that the regulations are clear and the case law is clear on this point i don't think that there's any there is no legal authority does a person have to research our opinions  and just a quick point on the appointment of counsel to the extent that mr woodward is alleging that the that the district court should have appointed or counsel prior to the great of summary judgment that argument language of the regulation it states that the grievance must be filed within sixty days after discovery of the incident problem or occurrence or does not say that filing can only be achieved by submitting it to a grievance officer and not  and submitted a grievance form on september twenty third which is within sixty days of the incident to the grievance counsellor it was marked as it was stamped as received and was virtually addressed to the formal form now the only way a defendant's  interpretation of the regulation as it was an act that at the time prevails is if the preceding sentence about an informal resolution with a grievance counsellor is treated as this whole drawn up informal stop for a formal step which is identical to what  and then you have to go to the grievance officer and do the same thing over again before you appeal that is not what the regulations stated they have since been updated to reflect to reflect that and on under both version