a significant disability as a result of the little mite this situation this case is the proverbial comic case remember twenty years when i first saw the law school a comic can change a case and this is that case in this situation the new york the code specifically requires requires the facility in cork to follow guidelines it did to file or request whether a notice whether he filed whether cork received his complaint is the grievance should contact the i g p supervisor in writing to confirm that the appeal was filed and transmitted to see or see exactly one ok and if you look at what the requirements are by the facility it says shout must different than should you should not operate a vehicle while using a cell phone because you can get into an accident you may not operate a motor vehicle while using a cell phone because it's against the law inmates to err on the side of exhaustion that is to err on the side of contacting the i g p supervisor and figure out what happened to their appeal ok well let's let's i appreciate that question because that's very good point and that's where exactly where i'm going to go with us ok because what we have here is mr does ascii file grievances saying that he for various different reasons for a brush for a distant fourth something we take for granted mr she says he needed a brush to clean himself after he goes to the bathroom it was in his papers to mr sheehan mr sheehan gave him a wire brush to clean they had that appeal did not raise the denial of the motorized wheelchair right the appeal compassed everything it was a general peel of everything because i appeal even assuming that ok you know the the appeal still in and it took them five and a half months to send that to cork five and a half months here it says one working in the codes as one working day seven days it should have been submitted to cork five and a half months how can we just ignore that what is the purpose of this code the purpose of this code is to prevent the long delay and ensure that somebody that has significant disability and needs them is to be had for basic sanitation  met without the need of being here without the need of being in the district court but they completely completely obvious get all of their out the obligations they've got five and a half months to get it to court and then once court got it how long did they take the requirements that shout must thirty days it was over a year until court made a decision and why did courts make a decision because we fight we filed a lawsuit and it took them two months after the lawsuit was filed that's completely going awry of why this is even in place the district court missed this and completely gave the scene but the problem here is let's say the district court said ok he should have which the regulation has the word should be look most of the accommodations that he sought were toilet brush to clean himself with i mean that's that's cruel that's cruel punishment that's cruel or unusual and should not be accepted yes he is in prison so what so what the specifically eat let's take a look at just look at the time frame that the district court said this record saying if mr jeffs he it would have been different because mr g s s he had the opportunity to say where is where is my appeal in forty five days what would have been done we have twenty twenty hindsight in the situation because we know that poor didn't make a decision for six months subsequent to receiving the appeal november twelfth was the first day that mr appealed the decision ok according to the district court he should have not must should have said where is my appeal did you get my appeal then what what was he supposed to do after the top person at the prison and he personally spoke to mr deserve to be on several occasions he testified during his depositions it was his responsibility to ensure the safety and of the inmates he personally s ok he was the one that ignored the requests that were made in the initial grievances what was mark supposed to do it said he should ask where his appeal was and then what to what to what then there's nothing else in the code after that the only thing we follow a lawsuit because nothing was being done because the code was put in place so that was would have to be filed so if the code wasn't to be filed by the allotted number of days that's why someone if you don't get a response from work you should contact the i g p supervisor so what and there's nothing else in the code that says what other requirements are the the only requirements are thirty days and then all the testimony is basically i don't know what else what else is that to do what there's no system in place to help somebody that's suffering that someone that's be brushes and shower bars were inadequate and question excuse me were inadequate with without further detail so even if there is a question of fact about the availability of the court decision that still only have to say i'm not aware that this allegation that there was a steel wire brush provided to plaintiff i'm not aware that that's in the record i didn't see it just now and plaintiff statement material and i don't recall seeing that the record of plaintiff is willing to provide a record side of course i would be happy to be proven the air cushion the shower brushes the shower bars and enter grabber tool the appeal statement said those are inadequate that's all that was presented to cork with regard to the question when was what was stated in the letter in the letter that was attached the grievance was a soft a long handled soft with regard to the sherif buyers i believe your honor pointed out later and i believe it was november of two thousand and thirteen plaintiffs made a reasonable  did that specify the height and location of the shower bar that he would be necessary that would be necessary for him to be able to take a shower i don't recall but i believe not your honor but when there were a problem was revealed it was it was addressed he said this individual defendant for the eighth amendment claims is the superintendent plaintiff's relies heavily on a conversation he states he had with the superintendent while he was in the special housing unit was in his is also relying on the fact that  instance to a deputy superintendent and then two different deputy superintendents depending on what's requested to handle that i don't believe that the record supports that you're on or what but with regard to chew the question of the eighth amendment claim that the standard is whether he had this is a subjective subjectively rigid subjectively reckless state of mind because this is deliberate indifference claim and because the system is set up so that m requests and medical care requests are gentle with my deputy superintendent and medical staff and that's a very ordinary thing that this court has recognized that the superintendent has to rely on subject matter experts for that that doesn't rise to the level of being subjectively reckless and plaintive mentions a conversation while he was in the special housing unit his deposition testimony is he had one conversation with a superintend the superintendent said i'm working on it and then  the and the plaintiff was moved out of the special housing unit into the infirmary so that his medical needs could be met while he was serving his disciplinary penalty again this doesn't rise to the level of the sufficient subjectively record subject or recklessness that's required for  three and again there is no question that the wheelchair or the pain medication that the participation programs those were appealed to cork and they are therefore not available for  type of claim that's being alleged so for example if an inmate is severely disabled and really can't function without a particular whatever it is  i'm not sure i know but i will point out that there is an exemption to that that there would be i think grounds under the pillory for you know a person who was saying that they were it because italy endangered so i think that some of those concerns about regarding exhaustion would be addressed in that manner but again these are questions that the court if necessary could decide the district court could address in the first instance in a hearing not on the merits  failure to exhaust relates at least in part to appeals that had been or claims that had been pending for six months undecided your honor i would say that correct that with respect to claims that you say should be dismissed because he hadn't exhausted administrative remedies there were appeals or other claims that had been  six months undecided from the time that cork received plaintiff's appeal on the very limited very limited appeal it took them six months to decide yes and this court's precedent and they all said you're supposed to and that is not a situation that's presented here plaintiff as the court is not the one that the effort to exhaust had gone and decide i'm sorry i didn't i don't think i quite follow what you're saying could you repeat the question when my prison is taxed with failure to exhaust and the court is told you have to throw this case out because the because the petitioner have failed to exhaust his administrative remedies and the facts are that the that he made an effort to exhaust by filing a complaint filed a grievance filing an appeal whatever it is and that thing pended undecided for months and months and months and months isn't it isn't it appropriate to say that at a certain point his failure to exhaust is not his fault it's the fault of of the of the state which is simply failed to to act on his grievance and his appeal and he is then excused from from failure to exhaust yes your honor i said that there might there was certainly because there's not been sufficient facts developed as to the we should be mandated and have the district court determine that if the court feels it necessary but again your honors the court doesn't need to reach that question because there are alternate counts for four months on the merits which have been were fairly briefed and were being developed below and were briefed by bias on the appeal on this the court has for the questions i see my time has expired thank you thank you you figure out when to follow a complaint and what to do if he did file a complaint your client has very adroitly been able to use the complaint procedure with not only did my client use it the proper appropriately he had an attorney as well helping him during this process this process what happen is what i was asking you were lawyers what is he supposed  exactly was he supposed to do to make cork do something what in the regulations could he have availed himself of there's nothing else he could have done where in the record is the reference to the steal i was not able to find that in the in the record it's more or less an example of what was actually the reality of what he was living through we don't do with reality you know i understand i understand that but what we do we do we deal with reality but the real is that you ation is that there was enough going back to your point there there is nothing in the regulations that he could else he could have availed himself of look at it it says it says he should just ask is i don't even know what the reg is is asking to do it as does he should inquire if pork received his appeal it doesn't tell him what else to do after that there's nothing in the regs i search and search there's nothing else on the regs the efficacy of asking that could cure the problem if something was not received and it got lost somewhere it can put the thing back on track but i agree let's did let's just say because we do have twenty twenty hindsight capabilities here let's say he did that nov twelfth he files ok then forty five days from that is summer twenty seven so on december twenty seventh in he file he then sends a smoke screen or whatever it is to whoever it is and says hey guys if you receive my did you receive my appeal ok let's say they did receive his let's say they took immediate action and then repealed the appeal the facility says we made a mistake i'm sorry we forgot to send it so instead of waiting five and a half months they forty five days later they sent it to cork now how long did cork take inquiry should is not a requirement i understand requirements are on the other sections now it is a should but what else could he have done it he did he was talking to his doctors consistently he was talking to she and consistently he was talking to everybody in the prison that would listen to him what else did he have to do there anybody that would listen to you thank you very much thank you both