my name is ben cooper i represent the appellant very north cross patterson we are here today in appeal that really changed your somewhat in the middle originally mr patterson had contended that he did not need to exhaust his remedies in the p l r a because there were no revenue to valuable to him simply because he had missed the initial a date for his original filing of an informal grievance within the mr patterson's argument then comes down to a very fundamental principle which the u s supreme court recognized in the glues case nine hundred fifty nine which is the ancient maxim no person may take advantage of his own wrong from the very beginning including in his complaint in this action the allegations which must be taken as true because this was after all a ruling on a twelve b six motion to dismiss not a motion for summary judgment  he did not comply or did not exhaust his remedies in part because the prison officials the corrections officers had not made it possible for him to do so had refused to give him forms had denied him pen and paper  district court however made no facts one made no findings of fact one way or the other on this issue because following the reasoning employed under no one there was no reason to that is the state had come along fact we're not dealing with that we're dealing whether just strictly whether the complaint itself strictly gilliss whom you're right the district judge very wisely dismissed without prejudice because if you are able to allege and amended complaint to get a claim you're allowed to do that that's correct and for some reason when we have history cases says that in this instance and no other i hope there's jurisdiction to come up on appeal so we're up here on what usually would be something that's down there i raise let's just say that it's very strange i'm saying let's assume that that's the status let's assume you're right let's assume the district judge is right for the purpose of the amendment that i believe you're suggesting and that is mr patterson he could not allege as the court said that he greek pursued the claim as an inmate grievance to the level of the director there was no way he could allege that he the right to ledge the facts that shows he did pursue well the fact is that what mr patterson alleged was that he could not file and then make grievance the informal first step because it was already past the ten day period and arizona's law code it's the department manual unlike the one in california the issue of no does not give the correctional authorities any discretion to allow late informal grievance but then the difficulty is that he seems to mix and match some of these grievances size having trouble sorting them out as they relate to the doctors and as they relate to the other facilities given that no is the prevailing law at this point doesn't he have to at least file his release or would have had to file it and it could be denied because they feel there's no discretion but at least he has pursued his grievance i don't take that as being the lesson of no because you know you're dealing with a california procedure where the appeals co and say because i did not file my initial step in time i've therefore exhausted what's available i think this is a little bit different situation his claim and his complaint i agree it's difficult to match up t doctors and the complaints and the periods of denial his claim is not simply that he did not file on time but that he was prevented from filing by the conduct of the criminal fishel the correctional fishel and i basically  make findings of fact beyond simply the allegation so the court could have tried to unpack all those allegations and matched up as a matter of fact those questions and made a finding as to whether or not there was evidence that in fact the remedies he alleges that correction reading of courses handwriting correctional the sins on i believe in e r one for the bottom of the third page actually the bottom for page under five d where it asks if you did not submit or appeal requests for administrative relief to the highest level if you feel explain why you did not and he writes correctional officer three curran g c which i understand means systematically avoided the grievance procedures certainly i think on a twelve b six standard that's enough to get to the next stage which may be a motion for summary judgment on the issue of whether or not he was actually prevented from filing a grievance the the narrative that mr patterson presented but i think that from a pleading level one could say that it's not beyond reason that he could show that he had been denied a material time and that this is really an issue of fact that the district court should handle in the first instance rather than this court would be the question what would be the fact question as you see it the fact question was whether mr patterson had been denied an effective opportunity to file a grievance we narrative to try to figure out exactly what the allegations are and what points he was denied an opportunity but i think that's that's something that the district since a district court never ruled on that allegation committed to introducing facts whether it's the records pretty well that i don't think the record is set the record was set on a motion directed to a specific point that is the state's point was simply because he did not grieve for the top level that was enough whereas there had been no specific investigation or battle between the parties on the issue of did you were you precluded from grieving at the initial level as a lot of that bottom line the if grieve that here would be a similar inquiry was mr patterson denied opportunity to grieve at the open at the initial level by the conduct of the department of corrections officials and that's a very limited question and if the court says no he was not denied opportunity then he has not exhausted if the court however determines that he was denied the opportunity and i believe the principle of the glass case that the state should not be able to take advantage of misconduct by its own people you know that the man you should should come into effect the the manual says that corrections officers are supposed to help and mates grieve not interfere with their grieving and in fact that this is a case where he did not get the materials union in order to do it and he should not be foreclosed from the courts by virtue of the conduct and i would say misconduct question if it is of that going back to my concern that is articulating someone in no would automatically be in federal court with at least sufficient allegation to survive a motion to dismiss without me trying to look at the practical consequences of the rule if you combine what you said to judge sought and certainly mr patterson should be allowed the opportunity to plead to this level that he requested you have the forms and a writing implement in order to grieve at his request for turned down you know that that's one of the does say it's some point that he was denied writing implements and he says that at some point he was denied the kites and i think the state is equally unclear as to what he means by quite the groceryman he means normal kinds of pretty com keep pressing you for the bottom line he's suggesting that he was prevented and we need to find on this record the basis for that allegation and when interfered with his grievance and the district court never ruled on those allegations and the district court never could have taken evidence could have given him more of an opportunity to present evidence on it but the motion practice was not devoted to that issue that was not the ground on which the state ladies terminations based upon complaint the allegations of a complaint and i'm not sure what it means about taking facts or seems to be some stray language that you can watch side that day facts and i don't know where anybody's done anything wrong that he asked for the form and didn't get the form isn't that isn't that exhaustions to open the ten days of and run i don't think it's that the rule doesn't take ten days form that is from the appeal that is a later stage of the peel he does not even get to that form stage because he's under the informal resolution of it all two point zero eight and that is he must he could not go to a formal grievance unless within ten workdays of the action that caused the complaint he files and form a grievance and in may issue response and that's the point which he didn't make so he's not even in proceeding because he did not take the first step and the question is was he sat purely at the correctional officer grievance level and the question is was he denied the ability to grieve by being denied the forms in the writing instrument to be able to do it with in a timely manner and unfortunately if we accept the principle that correctional officers should not be able to get grievances by making them on timely at the first stage the price of not sanctioning misconduct by the correctional officers may be that some of these complaints can get passed a motion to dismiss and have to be resolved under rule fifty six but i think that is a fair compromised in order to maintain the integrity of the system if we're going to as time goes on and we're here we're here to deal with it with what started as i think three issues about the availability of administered remedies that no case and the woodward case the supreme court determined procedural default would no longer carry the day that he never did attempt even initiate a process and i think that's the real heart of the matter when we get to the final issue on the availability issue which is the of the issue of prevention as an initial point i'd like to that that that is a conclusory argument that you don't have to address at all because of the fact that he never alleges that he went and specifically said may i have a form and had it declined if you read his complaint closely you'll see he alleges that at various times he was abuser and then there's another one of his counselors who apparently denied him the kites that your honor referred to and i think perhaps that meant the informal stage in the process perhaps it meant the grievance of self i think commonly used as a complaint  seems to dismiss his case because he didn't pledge that actually did grieve to the highest levels but we're not even talking high at this point we're talking initial if that's right you're on notice so my only question there i in the ordinary course of things it's that do we need a ruling by the district court on that point rather than trying to define it on appeal as preparing for arguments i discovered something have three instances that are alleged in the complaint when he had any interact when mr patterson at any interactions with the defendants was run june twenty fourth two thousand and two when he was denied water and he speculates that that might have been at the order of defendant that on july second he was put into some detention situation and wasn't allowed out until the sex but there again he is laboring under the misconception that we're talking about calendar days whereas in fact it's worked so the fact that he allegations about being denied property or being blocked in any sense after that meeting merely suggested by the time he has another meeting with greeley on august seventh and greeley is more specific about the fact that he's not going to get any medical assistance because of whether he's having a hunger strike or a liquid diet he's just not going to get any medical help and it's completely speculation this might have been the time that i realized that what he did back on july nineteenth was what was the problem but by then it was already t the one who determined when this action and when it accrued because if not you're basically just saying i am the inmate i can decide when my my action accrued just trust me on this one and then you were back in that position where your orders were quite concerned this with you've got inmates being told all you have to do is allege that i was frustrated i can guarantee you having done this work for a number of years that you'll be seeing tons and tons of complaints making that simple allegation without any background facts the point here is that those facts within the four corners of the complaint it's quite clear that the ten day periods when he might have been separated from his property he has been back with his property before the ten calendar day period that and then to hear maybe the doctor really is not doing anything with that is sufficient to wedo t was pretty specific that it has to begin with a formal writing a formal and formal resolution again to begin the process of creating the administrative record to make it a process where people higher up in the chain of command can look at an issue and see if there's some issues that they can get into and resolve and i think that's a really important point that that i think would make sickly or that they do want to see at least an effort just if not you're getting back to the whole procedural default issue where you've got the inmate on his own unilaterally  to be filed or supporting evidence should we be doing that since the district court's holding on the exhaustion issue really pointed to the absence of evidence at the highest level which i think the whole department of correction were not real they weren't they were true when he said you know i didn't have my property for ten days that's a non issue because the issue was ten calendar days and he concedes that he had he got his property back he was able to file papers  arguments of being blocked when an officer current called him a grievance abuser this was after september of two thousand and two when he'd been transferred to another unit to the south unit the only instances where he was interacting with the defendants was between june district judge did not make any factual findings made he made a determination based upon the wording of the complaint and entered a dismissal without prejudice in your view not file within the ten held under again missing the point as we're talking about and it worked and if you read further because he's prosecuting the state court action at the same time it's obvious that he's got his property he's got his pencil his writing was there is is that he could allege that he pursued the complaint i think that's correct your honor i think you basically be underwriting what he's already and to the and that argument will be based upon what in the action really a crew and you can see mr patterson yourself struggling with at what point and has dietary issues that did accrue and i think that's all the more reason why he needs to file something to give the officer reviewing his complaint and an opportunity speculation of things that really didn't happen because you just didn't didn't try so we have no way of knowing how it would have been responded to me simply saying it could have been the state or the state doesn't really cut it because there's no determine if she hasn't given an opportunity for the process to a cruel date without giving the department any opportunity to look at it and decide whether something wrong had happened he simply no matter how you cut it he's he's disregarded the entire system and he's asking you to speculate and decide when it might have a crued how it might have been responded to and that's really not the point of p l r exhaustion which makes it very clear that the the there the twin the twin factors they're looking for it's just to make your jobs easier as well as to give the department of chance to look at complaints and to resolve them by the way mr patterson approaches this case he completely deny the department any opportunity to review his problem well if he went back now and said well i was on time  we're getting into terminology issues here i'm going to through we're talking about the informal resolution states and that's the one aspect of that policy that says if you don't file a timely informal resolution the entire process is off limits that's not that's  the informal resolution stage it doesn't say that with regard to the later grievances so limiting my responses to the informal resolution and again this is hypothetical i would say that seven years later it would i mean  that arose seven years ago i can't imagine a situation where they had they could let that one go forward  some of these things what do we do with that allegation how it is if there's no evidence there's no affidavits there's no declaration there's no record of thousand and two and following where as the incident that issues started in june july two thousand and two and again as we learned and you know to which reaffirm the naacp's holding that there is no such thing as a continuing violation so  natters relating to the way has this hunger issue i said dietary issues were handled and once that wrong begins that's really where the clock will start so again matters as it may have been rejected month hence what i would not be able to to exhaust the claims he's presented here thank you thank three in deciding a motion to dismiss for failure to exhaust non judicial remedies the court made look beyond the pleadings and side disputed issues of fact in this case the court didn't do that it simply relied on the top level allegation as it's hard to tell your honor there are a variety of responses and one problem is that the lady doctor who's identified at one point is not identified that we're not sure if that is in fact supposed to be dr goldsmith sheri goldsmith later or  that some other person because if you look at the chronology not dr really correct it's not i believe dr release that he i think we know that from the chronology for example if you look at his reply is long narrative and all kites or forms while he was there the next date given was july second in the sequence so if that's before july second if you say fourteen days of july eighteenth you're basically within ten working days the problem is that the narrative is incomplete and one reason is incomplete because it that's not what the state moved on the state moved on the narrow issue whether it's been grief to the highest level and when he mr patterson is put in under mr carter's reasoning he says well we should have done something even if it might have been deemed late well this court has never acquired prisoners to do something when there was no chance of success no there was a chance because there was discretion in the arizona says and use knows terminology arizona is late its own minefield in respect by creating rather unforgiving rules that is if he does not file within the ten days of the conduct that took place he ma y not file and the state in its was rather candid and if its response brief on appeal were it said given them on page eighteen given the mandatory deadlines and agencies regulations it must be if he's not within ten days of the initial conduct there's no there's no outlet there's no built in ability from to come in and say i'm late but i have a reason and that's the fault of the arizona and it's quite knowledge that mirelle other california rules say that the party had to have the maid had to have an opportunity to file arizona has made no such accounting and if that means that it's easier for prisoners to get past exhaustion because arizona has built in no possibility of them getting their hearing administratively then that's arizona's price and you know in this case i was going to call the california model and a while for this but mr should have continued to follow file appeals further up the chain even though there was no chance of success it's not futility in that no one's going to listen to me it's there's nothing available to me here on the unforgiven arizona rules there was simply nothing available to him and finally i would say that this court should remain and because this is a factual issue and it's very difficult for us all sitting here addressing pleadings are really addressed to a different issue w that the possibility the language is that allegation in i believe it's section five where of the complaint where he says that the  but you know this is a complaint it's no just pleading and he certainly puts more allegations about the frustration in his reply but i think that should be enough and the court can as i noted on the twelve the one motion take backs and facts disputed issues and there's obviously a dispute issue and it may be that with the court focused on this particular question that it may not get any further because he may not be able to allege specific facts about frustration within the material period but that should be an issue for the district court to decide in the first instance not for this court to try to make up on appeal let me ask you just one final question was the district court right when he said when he said that he had pursued was that a correct determination you not allege the degree and well the court what the court said was he did not pursue it to the highest level of the director that's correct because he could not get in the door at the lowest level highest level and that's correct because he couldn't the question is not the highest level it's the bottom level and he did not allege that he didn't pursue it there he alleges that he was frustrated now it may be that he needs to make more specific allegations or put in an affidavit making clear what is factual contentions are as to that point but i think there's nothing here that he should survive to have that system i know also the state usually does as well it's a little easier to respond to counsel briefs and we also like they just are harder that we're happy to have you here and that you've recovered so that you can travel and with that word you're in for the afternoon thank you