welcome to the eleventh circuit judge pryor and i are very pleased and honored to have joining us today on the bench judge kenneth ripple from the seventh circuit a fortunate because judge ripple has helped us out from remanded so that mr watley can go to discovery and there's a couple of different ways that the court can get there and i want to cover two of them this morning starting with mr watt lee's january eighteenth green then the district court made the finding that mr whiteley's claim that he filed that grievance was quote unsubstantiated but there is a lot of evidence in the record that the district court and tiredly ignored that corroborates the fact that mr watley filed that prevents when and what weight do we have to give to the fact that the but the the real issue here is whether the counselor who received the grievance properly put it into the system and followed the procedure and the only thing that the defendants or the state it it's certainly in their interest to say that they didn't sign these and that they didn't lose a grievance or letter on the other hand mr whitely put a lot of evidence into the record and there are seven things there's photographs there's a unique receipt and then there's five written submissions that he sent to the prison and to the state court system shortly after the fact all mentioning the fact that he had filed that january eighteenth grievance and the district court ignored all of it so on mr wiley the last day i'm not sure it really nor did i mean it didn't it didn't the district court talk about how there were some signatures that were in question on one of the receipts and there were some other things there was a note that was allegedly this is among the later ones but a note that was allegedly written by someone who said that's not my writing and i never wrote this note i mean didn't the court also consider those things it considered the two affidavits that the state submitted into the record certainly and discussed both of those and gave credibility to those and it did at least acknowledge that mr whitely submitted the grievance receipt for that january eighteenth grievance and then also the letter that he wrote to the counselor mr petri but here's what it didn't consider so mr wiley on his last day at telfair state prison was beat up by a couple of guards and then hours later sent to wear a state prison six days later and four days before the deadline for him to file an informal grievance is when he found his grievance that's the eighteenth the day before that on january seventeenth and this is in the record mr wiley was taken to the warden's office and his bruises were extensively photographed on his front and his back the next day is when he filed that informal grievance the day after that on january nineteenth he was taken down to the medical examiner's unit and he was given another full medical exam more photographs were taken he was given urine tests x rays were taken all of that happened the mean effectively that we would be finding that your client should win and in other words we can't just i don't think we can just sort of find under the circumstances of this case that there was clear error and send it back and then then the court looks at it a new it's either we find clearer with the way the district court weighed and decided the evidence and we think it comes out the other way or we don't find clear or maybe  misunderstanding this and you want to address this but if that is in fact the situation i'm not sure that i can get to where there is clear or here and i really need your help in pointing that out a little bit sure judge rosenbaum i agree we could agree that the standard is clear error but that standard of review has got to have some teeth and this court has said in knight versus thompson this court articulated that standard as requiring that the record have while scuse me it's the that there is clear error if the record lacks substantial evidence supporting the finding this court's also said that it must be the finding of the district court must be plausible in light of the entire record and the district court's finding that mr wyly's claim was quote unsubstantiated is just belied by the evidence itself in addition to the photos there are the fact that mr wiley submitted this grievance receipt which of course the district court acknowledged encouraged the court to also look at other informal grievance forms from where state prison they're in the record this is a unique form to where state prison this informal grievance form and receipt it wasn't used at any other prison that mr wiley was transferred to and he put this into the record in april two thousand and thirteen he was only at where present for a total of about a month that means that sometime between the time that he would have filed that january eighteenth events and the three additional weeks that he remained there he concocted this crazy plan to steal or take with him a blank informal grievance form and then later create the story that he was going to fill it out and forge it and submit it additionally at the end of two thousand and twelve the entire state stopped using an informal agreements where he didn't even put this into the record until five months later it requires  very sophisticated thoughtful play and when he would have just filed a grievance with all of the state when the state had already begun investigating what had happened additionally when you get beyond the receipt itself when i would just also encourage the court to compare the signatures on the declaration and the the grievance receipt as well as mr petris signature on the letter and his declaration i think the court would find that they're pretty similar and they look pretty similar but then i also want to briefly cover those five other filings that mr wiley submitted to the prison or the state shortly after so three weeks after that january grievance on february ninth he was transferred to a third prison in jackson georgia the next day on february tenth he filed imminent danger grievance grievance number two and the whole point was him saying i filed a grievance and nobody's responded i already requested protective custody fast forward a month later in march he files another grievance he says on january seventeenth two thousand and eleven i filed grievances no response paperworks been destroyed by search team and where then again in march and april twice he submitted something to the state court because the prison wouldn't respond saying that on january seventeenth i attempted to use the grievance procedure and filed an emergency grievance the attempt was stymied by the administration and finally in april he filed directly up to the commissioner from his informal grievance because no one had responded the district court ignored all of that evidence there's no there's no indication that it looked at any of it and instead found that it was unsubstantiated that mr whitely had filed the grievance can you just confirm for me that that there is no request in the i mean if if there's a request from either party for never denture hearing that might have an effect on how i look at the legal framework here can you confirm for me that there was no request for an evidentiary hearing i don't think that mr whitely came out and asked for one he was a pro se and made prisoner on his own and given that the the the state's admitted just these two affidavits i mean there's a lot of questions how many how many grievances does this particular council get in a day and a week what's your process for taking them for signing a receipt for in putting them into the system for sending them on to the next person and none of that is anywhere anywhere in the record we just have no idea all we have is the self serving boilerplate affidavit that nist identifies mr watt leads number just proving that this is just a routine thing that they sign and it was two years later that's all that's in the record in support of the fact that mr wiley didn't sign it and so we would submit to your to your first question about clear error there's not substantial evidence in the record supporting the finding and helping the state meet its burden to show that he didn't in fact exhaust his remedies and i'd also just like to point out that this court has before reversed on a question of exhaustion for clear air that was in demands for says brown that was a case where it was required combination of looking at mr wyly's grievance number two and number three that he filed number two is his imminent danger agreements and number three is the eight or nine four zero and we would submit your honor that he achieved exactly exhaustion when he first admitted that second prevents which was improperly rejected and the state has not contested and briefing that it was improperly rejected he requested he was clearly complaining about the beating and about not receiving medical attention and it was improperly  rejected requesting a transfer he was also not notified that his grievance had been rejected in the state has not contested that either so what was he supposed to he had no idea he'd submitted this grievance into the ether he thought he had it was supposed to be getting process so what did he do he filed a grievance number three saying i filed a grievance number two and nobody's looked at it i want to grieve the issue i want to grieve my beating the warden there's no question in a district court agreed decided and directly addressed on paper the merits of his of mr wyly's beating claim and then that went up to the commissioner and the commissioner didn't necessarily address the merits of the beating in the same way that the warden did but there's no question that the commissioner decided the grievance on the merits it wasn't rejected for any procedural reason there was no procedural bar and yet that's what the district court found and that was that was error well so when the commission addressed it it talked about the procedure i guess it is dressed mr wobblies concerns and complaints that the procedure hadn't been filed but i'm not can you point out to me where you think that it addressed the merits yes your honor so reviewed there's also no question that the commissioner's office must have reviewed grievance number two all of that and and the warden's response in grievance number three so there's no question that the warden's that mr wyly's beating claims were before the commissioner and he looked at them the standard can't be that it's so it's a matter of whether the commissionaire includes four extra words and you weren't beaten that just can't be the difference between exhaustion and not exhaustion the question is did m exhausted here he pursued his remedies he pushed the issue to the very top and woodford the supreme court said that the purpose of the exhaustion requirement is to give the prison notice an opportunity to correct his error mr whitely absolutely did that clearly the prison was on notice because it was investigating what had already happened and and we would submit that they have that requiring mr whitely or skinny enforcing a procedural bar based on the commissioner failure to include just a couple extra words would just insulate from review a mere it's based decision that the prison actually thank you very much counsel good morning i'm a please the court roger chalmers with the georgia law department i represent mordant heart and officers smith and griffin when the district court makes specific fact findings under step two of turner this court has said it would not will not disturb those findings absent clear error in watley one and this court remanded the case for tunes first for applications of turner's two step process and for specific fact finding on this question that mr wadley submit the january eighteenth informal agreement says he can and second with respect to grievance eight or nine four zero for consideration in fact finding on this question did the prison reject finding has occurred as the court has seen in the record and so with this in mind i'd like to take these two in turn and show why the court should not reverse one clear review counsel has fairly emphasized the serious nature of the allegations in this case but they are allegations there's been no default there's been or what the court has before it is a rule twelve motion which under brian and turner is the proper way to put the exhaustion issue for the court that motion was filed within a few months of the filing of this action in december two thousand and twelve the supreme court has said over the years that judicially crafted point for the analysis of this case because what suggested here is that by grievances eight zero nine four zero this court should over look what happened at the appeal the third step in the grievance process and that cannot happen boothby turner in two thousand and one the supreme court said it does not matter if the remedy desired by the plaintiffs is not available in the administrative process in getting to that result the court said the pillory p l r a says one must exhaust and that means use all the available processes want to exhaust processes in this and the law says you woodford the go in two thousand and six the court said you cannot avoid exhaustion by failing to exhaust by doing the wrong thing by writing completely exhaust and that's exactly what we have here what is required is proper exhaustion and that means using all steps that the agency holds out and then again and ross be blake in two thousand and sixteen the court said a prisoner's reasonable belief that he's done what he needs to do is not sufficient you have to actually exhaust and there is no special circumstance such as the complexity or the seriousness of this or any other special circumstance that will excuse an absolute failure to exhaust against all of this we have bryant and turner and this court has adhere to that process since two thousand and eight w came down and brian explained that in allowing district courts to make fact findings on exhaustion and for this occur to occur at the end t d the motion to dismiss stage makes sense because the purpose of the o raise to reduce the quantity and improve the quality of prisoner litigation so what is what is the point of that the point of that is to actually encourage the administration it's ministry of resolution of grievances the argument that's being made here as to great as to grievance eight zero nine four zero that the court should ignore what happened at the third step and that somehow watley one suggests that it should runs counter to all of those cases that runs counter to the idea that the purpose of the exhaustion is to encourage resolution of grievances out because what would happen is that the prisons would reject grievances at that second step and not pursue any further resolution if this argument were accepted by the court clearer view and let me be clear on one point before i get into the two grievances clear review does not say that substantial evidence must support the court's fact finding under clear review reversal is not permitted unless from the entire record the chord left with a definite and firm conviction that a mistake has been made and where the district the inferences they are in are plausible and not unreasonable that's the standard they cannot be overturned even if a cause to disagree exists credibility choices which were made here are resolved on a clearer view in favor of the fact finder and the fact finders choice between two permissible the use of the evidence cannot be overt and this has been applied in the magistrate judge and the district court issued thorough fact findings on these two possible bases for exhaustion the magistrate judge report and recommendation is at the record it docket eighty five and the findings are at pages twelve to fourteen he said that mr watt lee's corroborating documentation are not in the record the extensive record of the grievance filing history the court said further that there were declarations that johnson and petri declarations and those declarations discredit the content and specifically the receipt was submitted to suggest that that grievance  was counsel has suggested that the court should compare the signatures respectfully i don't believe that that's what clear air contemplate there was a factual finding on those declarations and those declarations were not speculate speculation and they were not born or plate they went to a central and simple issue in the case is that writing yours or is it not and each of the declarations shows that the declarant said no that is not mine based on those declarations the fact that the fact finding was made and it is plausible and not unreasonable that these were not then the magistrate judge went on he said mr whiteley's grievance filing history belies any contention that prison officials hid his grievances attempts to grievances or otherwise made the grievance process on available to and and he went on he filed sixty nine grievances at georgia diagnostic and classification he filed three that's a much smaller number but it's as important because he filed three at where state this is exactly this is the prison where he was transferred immediately after the alleged beating two of those he took to the appeal step all the way through and documentation for all of that is in the record prison officials the magistrate judge said did not hide or destroy these grievances they kept records reflecting the initial filing in the various levels of appeals and so the finding from all that the magistrate judge concluded and judge would adopted that finding that the evidence weighs in favor of defendant's contention that mr whitely never filed the january eighteenth informal agreements and more specifically defendant's account of the disputed facts is more credible than plaintiff's account so what we have there are findings that are plausible and not unreasonable we have a choice between two permissible views of the evidence and that is not clear and we judge judge pryor the district court did make that finding and we don't contest that on this appeal and my brief was not clear on that point but in reproducing the arguments that were made below we set out the arguments that we had made which is fairly construed that grievance concerned process from start to finish from informal to formal and then i recognize the magistrate judge has made a factual determination that in fact at the middle step of the process the grievance was addressed in part on the substance of the merits of the claims that would be brought in this case we don't believe and i don't contest that finding that's there it could not be overturned except for clear error there are two ways to look at  o i don't disagree with that point in the case however grievance eight or nine for o cannot constitute exhaustion in this case and i'd like to address three points if i could first coun suggested both in briefs and in the argument that the court should look at this as a combination of grievances eight zero three two seven and eight zero nine for and and first i'd like to say eight zero three two seven is not a path to occurred or excuse me does not seem to argue exhaustion occurred strictly through grievance eight zero three two seven that's the imminent danger of grievance it appears to suggest that the history of that grievance the state has never conceded that grievance eight o three to seven was rejected improperly that was properly rejected as a transfer agreed the policy plainly state that that would be the case mr wiley also knew because the p plainly gives room for him to do so that he could grieve a use of force or a denial of medical care and he never did that and that's the critical shortcoming here the second point is you can't show exhaustion through multiple grievances this court has never said that exhaustion can be shown by piecing together components of grievances that themselves do not constitute full exhaustion and that is logical the law requires complete exhaustion meaning that you must complete each step in the process in the way that set forth in the policy and give the prison a reasonable opportunity to address what your can you can't do that force excuse me six circuit and the seventh circuit cases that were cited and quoted in watley one the cases reason that when a grievance is accepted in process to conclusion on its merits and the merits or same are the same as the later filed lawsuit then exhaustion has occurred so let's think about what grievance eight zero nine four zero was it was filed march twenty to two thousand and eleven which was two months after the use of force if it was filed at georgia diagnostic and classification prison which is to facility transfers down the line from the alleged incidents occurred it listed march seventh two thousand and eleven as the date of the incident and the subject matter was process mr wattles contention those grievances were not being processed by ms victoria malone at georgia diagnostic and classification prison not use of force at  the document documentation shows that it every step along the way at the informal at the formal and at the appeal the grievance was accepted and processed as a grievance regarding process i thought you just told me that you're contesting the district court and that's that is that is fair and that's correct judge pryor we don't contest that at the middle step there was an additional comment on the merits of this case but it every step of the way it is true that the grievance was accepted and processed by the important thing here the fact talk viney below cannot be overturned is that the commissioner at the third step in the process addressed this as a grievance regarding process not a grievance about a beating or a use of force or a denial of medical care the president rejected grievance eight o nine for or for zero on those procedural grounds the process that was raised in the grievance not the merits of this case so it comes down to this simple question did the prison in resolving grievance eight o nine for somehow accept the earlier grievance eight zero three two seven as the grievance that it was resolving and specifically as a grievance regarding a beating and a lack of medical care and addressed those claims on the merits and the answer is that asking this court to construe the grievance in a way that the prison did not runs counter to the point of exhaustion which to allow the prison the first opportunity to address the matter counsel's presentation has been convincing but it does not carry the day in clear air review careful i would ask that the court be careful with the suggestion and not accept the suggestion bald head in but you do somewhat open legally right my question to you is did you raise it to do if so where in honor we we think that the issue has been preserved fully for this appeal  watley raised the fact that grievance eight zero three two seven was improperly jacketed in his objections to the first report and recommendation before this before watley one and he raised it again in his words and his objections to the report and recommendation that remain and i five i think i can quote him he said something like how much more specific do you have to get then severely beaten and transferred without treatment he also said when a grievance is rejected as opposed to that's ok thank you for your questions rosenbaum i just want to briefly revisit your question about mr watkins potential request for a hearing and so i do want to just point out of course as i mentioned he was pro se and i think there's a there's a couple of different things in the in the papers that could be construed as certainly as a request for a hearing so and docket sixteen which is mr wiley's response to the to the court's request for evidence he did ask the court for quote appropriate appropriate action deemed necessary by this court and we think this is an instance where the court should have on its own based on mr wyly's request for appropriate action invited a hearing given that all that the state submitted were those two papers additionally and docket seventy nine on page twenty four which has was his reply to the state supplemental brief it's a little odd but he sort of says that everyone should quote be hailed into court and so we think that also should be construed as a request for a hearing  i also just want to cover a couple things that the council stated he noted that you know right now we're only dealing with mr wiley's post allegations about what happened and i failed to mention  that we did request from the state and request all the photos and documentation and that request was denied as confidential state secrets counsel also talked about mr whitely is grievance history after he filed his january sixteenth grievance and i only want to point out that mr wiley was incarcerated for sixteen years before he filed the january eighteenth grievance and in those sixteen years he only filed twelve grievances most recently before january eighteenth was three years earlier at a different institution related to being banned from flag football game so it wasn't until mr wiley was beaten up and filed a grievance on january eighteenth that was ignored he then started filing a lot of grievances after that because he thought that the system wasn't working for him  a couple of oh i see that my time is expired if you take one more minute ok thank you briefly on and eight zero nine four zero i would just want to point out that that is a standard overview it's not clear  and mr watley is definitely and what would be considered a catch twenty two and minor versus brown which is a southern district case the state argued successfully argued that an inmate's claim was barred for failure to grieve a retaliatory transfer transfers are absolutely griebel and and that's clear under the s o p and then finally there's really just two different contracts that that the district court of that the district court could have followed either in for says a valid procedural bar with respect to mr wally's beating claim or and i'm sorry this is the prison the commissioner either enforces a valid procedural bar with respect to mr wyly's beating claim or it decides it on the merits and there's no question here and i think counsel agreed that there was no procedural bar imposed by the commissioner in grievance number three the only thing that he did was decide the issue that was before him on the merits and it would insulate from review the prison's determination that mr whitely hatten been beating to do anything else thank you counsel thank you then i know if that you were appointed and on behalf of the court would like to thank you both very much ms peters mr tuck for your excellent representation in this case thank you for accepting