good morning your honour's may it please the court kelsey woodford for appellant michael rate i would like to reserve four minutes of our time for a bottle i will discuss why this court should reverse the district court's finding of non exhaustion and re man the civil rights case for trial on the merits and my co counsel jane castor will discuss why at the very least this court should remain to the district court for reconsideration of exhaustion in light of ross people because the arizona department of corrections disciplined mr fuk way for exercising his religious beliefs he exhausted the only remedy available to protect his rights the inmate discipline procedure order eight zero three in the limited context of this case the interaction between the catchall grievance procedure order eight o two and the specific disciplinary procedure order eight zero three required mr fuk way to challenge his religious discrimination through disciplinary process why your honor order  goes to the catchall grievance procedure the text is it is the default process for filing grievances but the tax has specific carve outs that warn that it cannot be used when when the primary issue is within the scope of another procedure the text specifically reads and you write either the question is sort of which is that there's a turducken right there is that there's an there's an issue that's common to both and so is your argument that religious freedom claim is is that is premised on both and it's only the disciplinary proceeding where he could get fully full relief is that your argument your honor the argument is that the discipline and the religious claim are inextricably because the discipline that the prison put on mr exercising his religious believes based on the tax evader to conclusively shunted him to order eight o three so the text reads in nato too that that procedure does not serve as a duplicate or substitute appeal process right i'm aware of that so if  i appreciate that but here's what i'm trying to get at if he had pursued and i appreciate this was a sticky problem for him but if he had preceded me in the grievance procedure and prevailed would that have been an affirmative defense in the disciplinary procedure your honor i don't think that he could go to was not available to him he could not have used the eight o two procedure in all religious claim no based on the text so the text says that inmates who attempt to file grievances to appeal for actions outlined in one of these external procedures will be instructed to follow the independent procedure and the procedure is available only when the primary issue is outside the scope of another established appeal but we know that mr fuqua his primary issue is within the scope of  three and therefore to use language conclusively put him in ito three territory is it your position that the two informal letters that he wrote initiated no your honor those informal letters can actually be used for many different different purposes and he was largely just communicating with stop at that point his letters were to the chaplain the work order and the kitchen manager with it all issued before he had lost his job yes your honor seems to me that those two addressed requests to be reassigned is that right they the opposing argument is that he should have initiated at that point and at that point he didn't know that there was a disciplinary procedure what is your response to that your honor the president's own records actually countermand that point so on page seventy four of the record and page seventy seven of the record we see in the prisons own documents seventy four is the response to stop one appeal from the ducie warden and seventy seven is the inmate discipline report both of them say on seventy four on nine twenty four fourteen you received discipline and on page seventy four they say inmate fouquet was virtually placed on report so he received discipline on that day and based on the language of eight o two that did put him in eight o three so there was no time there was none of this gap where he could have filed it's you he was immediately disciplined after this incident of being terminated and put on report so this was so so the day that he was escorted back to his cell that's yes that's it right yes yes so he is in the disciplinary process at that point warden actually says on nine twenty four fourteen you received discipline on seventy four yes i'm looking at seventy four yeah it's the second paragraph of what the rights there are nine twenty four you received discipline after your fuse so y so and this is dated of course this is dated at the gist of the terminations the end of the appeal yes your honor this is actually midway through the process he has another appeal that he files with the directors doesn't me but the issue is that because he was in this opportunity to address these claims both in the lead up to and the aftermath of the discipline we know that they addressed the merits in both the deputy warden's response to his appeal and the director's designee response to his second appeal so the pr behavior shows that they had the opportunity to address but instead they acknowledged and rejected these claims at this point opposing counsel is going to argue because they've argued in their brief that this this issue wasn't one of the issues that really even addressed it a disciplinary proceeding right that there's  due process inquiry and there's an inquiry about whether the charges supported and then there's a review of the appropriateness of the discipline and yet there's an entry and i have a question for both counsel there's an entry indicating that at the at the disciplinary proceeding there was a report that they'd checked with the chaplain to see whether this is the legitimately recognized holiday what can you tell us the record pretty slim about the extent to which that was dealt with at the disciplinary hearing so your honor these three points that you bring up in th defendants bring up the due process adequacy of proof and appropriateness of discipline if we take a holistic look at what ito three is doing in this process it's considering the appropriateness of discipline and because the discipline was underpinned by this religious claim it wasn't appropriate so that's a general perspective but a more textual perspective can actually be found at page forty seven of our agenda which is in our opening brief and it says that these decision makers shall consider these three factors but it's a non exhaustive list so they were considered ample counsel forgive me for interrupting i'm just worried about your time do you have an example where this type of claim this religious for exercise claim has been used as an affirmative defense to a felony charge like the one your client received here your honor there is no evidence in the record of the eight o two actually being available to any inmates we do have two cases it sorry the it is you process being available to inmates when their grievance touches on discipline we do have two cases coming out of arizona where we know that you know two procedures that they have filed that have been related to this plan were actually rejected in one process based on the form at page eighty one of the record this is not this is not my question my question is probably well articulated but it's different so for the minute i'd like to just pretend there isn't a grievance procedure at all i'm just talking about in the confines of the disciplinary procedure the state's argument is that there were these three top topics that shall be addressed at the discipline in the disciplinary procedure and my at my question is in that procedure is a claim like the one your cla asserting an affirmative defense to the felony charge here i'd likely have time for my opponent to make the argument but if i may briefly respond we believe that this would be an affirmative defense to the discipline because what underpinned the discipline was inappropriate and so the two decision makers actually did have the opportunity to remedy by dismissing the charges my question is do you have any authority for that we do not ok thank you thank you thank you  good morning and may it please the court jane kassner for appellant in the event this court is not prepared to reverse and remained for trial it should at a minimum reverse and remained on the matter of exhaustion for the district court to apply r assessing whether the eight o two grievance process was actually available to mr fuqua a of course further consideration by the district court is unnecessary to hold that the eight zero two grievance process was unavailable to mr fuk way the text alone proves that but the record is inadequate to reach the opposite conclude when that eight o two was in fact available defendants have ultimate burden to prove non exhaustion so they must conclusively established that the two grievance process of able to mr fuk way and if they don't this court must at least remain to the district court for a fact based inquiry into whether ito two was available in light of ross there what the showing that it that the actual text of it you know to demonstrates that the eight zero two grievance process was unavailable to mr fluke way because the primary issue that the state is saying he should have grieved was within the scope of his disciplinary process and the second argument that we make in our briefs is that at the very least the eight o two process in conjunction with the eight zero three process was so opaque that no reasonable person or could know that they were supposed to file grievance when their primary issue was within the scope of their discipline that's a rustler you're right that the g o p can this argument is about ross both of the arguments are about ross our claim is that ross changed what it meant to do a searching will be instructed to follow the appeal process outlined in the specific department order so our claim your honor is that at the very least the defendants have not carried their burden to show that this was available so when we may and we could look at for example counsel  he done so they would have been up had an obligation to tell him right that he that he had to vindicate his rights under eight o three is that right sorry at what point your honor i see my time has also cut into rebuttal time but may i briefly certainly i think you're saying your position is that he didn't initiated a grievance procedure and that had he done so they would have had an obligation to tell him which procedure he needed to pursue yes so what had he tried to grieve under our interpretation then the prison would have had to tell him that that's not what ito to says and he had to go through the disciplinary procedure yes that's our interpretation of what it ought to says i think there is there some tension between your argument this is so  good morning may i please the court i might show dialo i'm with the attorney general's office of arizona counsel's table with me is greg cody i'm representing defendants francisco stornes and kamut mr cody represents defend clark i'm simply going to dress with you the grievance policy at the department of corrections and the opaqueness issue and mr cody is going to address why the disciplinary conviction grievance procedure before he's been able to follow it that's your argument i think three different times before but it seems to me that his problem was figuring out it's the turducken problem it was the problems figure out which one he's supposed to follow not that it was hard to follow just which proceedings because your sponsor place because because the language of the of the grievance procedure is absolutely clear it's very clear there's no a paper as the eight zero three process in the eight zero two process don't interact with one another  but what about i think typically that's right but what about this kind of a circumstance where it's the that that the religious claim that he's got would have been an affirmative defense in the disciplinary proceedings wouldn't would it not i'm not  only procedure that the department of corrections has where an inmate can actually grieve an issue it's designed it's designed to handle grievances the appeals process is and if i may or honor but how is he supposed to defend adequacy of proof the the appropriateness of the sanctions right and then so he said they sanctioned were not appropriate because i asked for a religious holiday i was not accommodated it really was state's position that wouldn't have been a defense not in the appeals process you are not in with this is what you tell me was you refused to you didn't follow the order you didn't show up for work and so let's say it's christmas or easter or something the chaplain said yeah could nice a holiday so is it really the state's position that would not have been a defense to this felony charge in that instance it probably would have been a defense because it was a recognized holiday i'm going from the record yes your honor ok so what's the difference the holiday is recognized or not and that's no small thing but i'm just trying to figure out whether or not it's really the state's position that such a claim wouldn't have been couldn't couldn't have been redressed in the disciplinary proceeding and i can't imagine how that could be right because in the disciplinary in the appeals process mr fuqua didn't he didn't expand on what what the issue was could be the difference can't be that we recognize christmas and we don't recognize  as a defense to a discipline imposed and then made can't raise religious beliefs and religious conviction as a defense and i want to recognize if that is that your position that is not my my position well then why was it recognized in this case because there was adequacy of proof he actually did i mean proven what proof you're in somebody say i'm beside you know i am i am my whatever it is talking about is the fact that he actually refused an assignment that he actually when he actually refused an assignment your honor well wait a minute that is that what he was disciplined for for refusing an assignment he was why would he mean it there not proof that he refused an assignment know what you said yes your he i don't understand he refused to work that is what he was not supplying for right and the appeals process took that into account and they said he refused to work i know but there's a but they didn't recognize the defense i refused to work because it was a religious holiday and my religion prevents me from working on this holiday right the review process did not address that defense the review right some of your own or the review process did address that defense but they did it in sort of a cursory way well but it didn't say we don't have jurisdiction i mean you have we're talking about exhaustion i mean we're not talking about the merits of his client so he presents the claim of the disciplinary process the appeals and during the appeals process it's addressed and your argument here is they shouldn't have done any of that because it couldn't be raised in that context anyway so even though it was addressed on the merits you're saying that no that was the person was wrong is that the that when your argument is that the rest in the first place that the president was wrong to address the dirt to address his argument no i don't think the president was wrong to address on the argument in the way they address the arguments right so he so he the person does address the argument in this process he raises why isn't that exhausted that's not exhaustion because the the prison didn't get didn't have fair notice the only way the prison gets for notice is through the grievance procedure your honor no i don't understand that part of your argument but in fact it was an actual notice right it was a it was an actual notice but it was absent a complaint and a grievance well do you think he could have contested his discipline through the eight zero three right but his his claim is that i was in appropriately disciplined because i have a religious klein so isn't that claim the claim that he was then appropriately discipline look from the record i don't believe that happened i don't believe he was told that is it does bring up another issue because that the guidance the prisoners are given is that if you initiate the wrong process by initiating a grievance when it should be a disciplinary proceeding we'll tell you that but doesn't work the other way it was the state's argument that it would have been time barred at that point he couldn't initiate agreement because it was too late it would have been time cardio because because his his his his right or his ability to grieve the discipline well it arose when he received it you know we take a really strict view of the requirement to exhaust remedies under this as you know and what you're saying about these two processes makes perfect sense to me we're talking about really a different claim but here it seems to me that the argument the prisoner has is baked in to the disciplinary proceeding and that's the that's the problem i'm having appreciate that i've been at it here what do you think he should have done you think that he should have challenged his discipline and the general grievance process this year and  as opposed to the actual discipline process that makes no sense to me well not to mention that he would have known what the discipline was going to be at the time he had the clock was running to initiate the grievance procedure he didn't yet know he was going to lose thirty days and loss of privileges and you know all that you know he was going to be convicted and what he and correct your honor but he did know that he had been fired he did know that he received discipline but isn't the only way to get all of the relief to get all of that wiped out to pursue pursue the argue would you put seven minutes on the clock for him so he gets his full time it please the court your honor my name is gregory cody i'm with the law firm of macarthur in english and i am here representing kitchen manager clark mr clark at the time in question was one of the kitchen managers employed by the  private company contracted to make the meals at the prison facility he's sense retired and is no longer with the company i guess i'd like to initially thought i'd be shifting gears and talking about  the first argument made by him a few rather than opaqueness and i'd like to just address some of those issues if it please the court because i think that they were dancing around a couple of issues that really go to the nub of what you're trying to get out and why this process and the raising of religious issues in the disciplinary process is inadequate and i think the overarching theme here is that the two systems are are not equivalent and the differences similarly render this argument the mr a few quid has made affectively a constructive exhaustion argument the two process sees the procedures there to entirely separate they don't overlap they don't interact they're governed by this race they do math of only overlap that's our problem well i think in a sense by subject matter because he raised the religious issue just that piece of it overlaps but in terms of guilt of that piece of the district court it's premised soley on the defendant's refusal to grant his written requests for days off on what he termed his sabbath and for the terminations of his job there's nothing in the disciplinary records establishes that the claim was premised on a substantial in burden imposed by wrongful discipline so we're talking about this case in the entirely wrong context right now here's my problem in the disciplinary procedure it's pretty clear in the record quite clear in the record that the chaplain was consulted to determine whether or not this was a recognized holiday correct or if the chaplain had said yes would that have been a defense in his disciplinary proceeding i believe it probably would have your honor i don't know i don't represent defendants that had anything to do with the disciplinary process so i don't know really myself as i stand here today what transpired in the disciplinary process and going back to chief judge thomas this question said in the merits of side we're talking about exhaustion and just me if that was part and parcel of i b m using the phrase you know baked in to the disciplinary proceeding and it really had to be addressed and i'm i'm just struggling to figure out why this wasn't some would have been an affirmative defense to the disciplinary charge itself only it would have had nothing to do with the administrative decision to not grant him the day off or the terminations of his job and in fact those requests for relief aren't even authorized under deal three it's an entirely separate remedy scheme under deal at all three there no connection or correlation between what you can obtain for relief under deal at all three and what you can obtain under deal you know to the systems are entirely in the equivalent in that regard and so that's the issue when this court ruled  pinero that exhaustion cannot occur i think she's mean i think this case is very similar to the pinero decision where this court said that an inmate cannot constructively exhaust by participating in an administrative system that is not equivalent to the grievance procedure that's a real available to him and so what he should have done and you've mentioned this a couple times already he should have defended his disciplinary claims but also even before and i think i should step back at the time that he was terminated from his job in print on verbal report for discipline the only remedy that was available to him was to deal to administrative grievance system because in the text of deo to it doesn't say that you're prohibited from filing a grievance based because you've been charged with discipline it says only that you can't use the grievance system to appeal a disciplinary conviction i think what you're really recommending is that the  first of the prisoners must be able to figure that out second that even though the materials indicate prisoners that if you initiate the wrong procedure we're going to tell you which one you're supposed to be in and i think advocating for these parallel proceedings that could actually reach inconsistent result mean right well i think as to the first point i think you've actually made my point that if he had filed a grievance and it was incorrect they would have told him well in advance that he couldn't do that because it was a disciplinary matter way before he was ever convicted of discipline and so it never would have jeopardized his right to appeal his disciplinary can fairly that i think your position is he was supposed to pursue both of them well i because they're separate proceedings with a step or procedure separate separate tas separate timing by which they complete each task and separate subject matter so the subject matter overlaps here that's the problem i mean i understand your point if you saying if you're going to make a stand alone first amendment claim you've got to use the normal grievance procedure but here he's using that as a defense to the discipline and i don't think the two necessarily overlap in that regard you can't use the general grievance procedure i think you would agree as a defense to discipline true had he utilized the administrative system under d o eight zero two and obtained a favorable ruling i think that would have been a strong defense to his criminal  case under the rules in the disciplinary process under it all three so you think you think the if he'd won on the general grievance that he still could have been subject to disappoint i would highly doubt that that would be the result w discipline doesn't have to just file its defense and discipline and go from there i think he first has to be convicted and then appeal the conviction in accordance with the deal legal three but i may be missing your  point your honor and forgive me if i'm if i am but again i think that the ultimate issue here is the difference it and i would note as well that what this argument essentially boils down to is exactly what ross expressly abrogated and that's the statement that i exhausted by using the disciplinary appeal process because i thought and reasonably believed that's what the given was present in john o and so that's what we're facing here so there's the overarching responses to your questions i think are found in pinero and ross dealing with constructive exhaustion and special circumstances at least on the first argument i don't believe that you can exhaust by using the deal in zero three disciplinary system it's not proper exhaustion and i think it's refuted by standing precedent my time apply to a private contractor well your honor that's a long explanation dealing with state action and effectively it's an issue where the law recognizes mr clark as a state actor by virtue of his involvement with the performance of the traditional state function it's a separate issue that we would have argued on the merits and we have in the past it's not your honors i'd like to first remind you that at a minimum this court has to remain to the district court for consideration of whether the edo to grievance process was actually available in light of ross v blake's articulation of the availability standard and how to back down to the district court because there were some lodging the showing that eight o two might be available some lodging showing it might be administrative procedure there might be available some lodging showing it would not be available in light of the interaction between two systems so at the very least this court has to remain and without be an expansion of this wouldn't be an expansion of ross why not i mean council your client was able to navigate the grievance procedure just fine at three prior occasions to his problem is he didn't know which one to exhaust which went to pursue so he's not and ross doesn't really speak to that when it when it speaks about availability it doesn't so we're almost does sort of speak to that your honor because ross talks also about the interaction between two systems the administrative remedy procedure which is maryland's general grievances system and the internal investigative unit and in ross there was some evidence showing that when prisoners had a situation that was being investigated in the i u the internal investigative unit then they were told that they could not go through the regular grievance procedure we don't have that here we do have that here there are two arizona cases that we raised in our brief smith and thomas two other arizona district court cases where prisoners did file grievances related to their discipline our claim is he never initiated a grievance procedure because the text of eight o two told him that he couldn't and if they think that what the arizona department of corrections meant was something different then eight o two was so opaque mr fuqua he could not have known that he should have gone through the grievance both the cause of and the defense against his discipline and mr diallo said that in the appeals process mr from quaid did not expand upon what the religious issue was that is patently false pages seventy three and seventy five of the record feature a explaining in great detail how the denial of his prison job and discipline was due to a failure to recognize his religious claims were going on would you agree that is a generalized entirely separated from his disability i don't know what i'm trying to get out as in this i understand if i understand your argument that you are only he's only asserting or a loop applying with respect to his discipline is that right h is inextricably intertwined with the group a claim yes is he asserting any claim that is not connected with his discipline we don't think so because it's all connected but even if you can you said ok i said i don't understand what you mean so scope of the disciplinary process then you have to go through the disciplinary process even if it is just isn't up to the problem you have here if he's a cert if you just asserting or loop a claim connected with his discipline then there's a pretty good argument that he has exhausted through the discipline process but if he's making just more generalized for loop a climb about his religion it's very difficult in a python probably impossible to exhaust that claim through the discipline process but he was told that he had to do so because the primary issue was the discipline so mr fuqua a was still trying to do work arounds intil the moment that he was disciplined he was still trying to change around his work schedule the thing that really set him off and that made him want to contest this treatment was that he was fired from