that checkmark was an ambiguous admission the six written agents attached to her four complain showed inferences that she was being obstructed in her ability to complete the grievance process mistake not at all basically she had an excuse for not exhaust him in a straight a premise on her so she didn't if she exhausted all remedies that were available to her that is correct because she was precluded in interfered and exhausting remedies beyond and under the holding in mitchell the warning remedies are not available to a prisoner if the prison is interfering or obstructing the ability of the because the prisoner blatantly admits i did not exhaust because in most cases i can't get money from the prison and agreements process i wish to prevent it in several ways the inf made in her complaint show for me was that sometimes she may not have been provided hands or to be able to complete the process furthermore she states that she is being pleased with it deprivation  that she was not provided pens and paper and sometimes even grievance forms themselves but she was provided by the right wing it that's correct at some point she wots but that doesn't mean that a prior time she was grievance process from taking the next step she was put into a psychiatric housing unit directly after the alleged events took place in that unit certain things are taken from you and that includes pens and papers she also cements at times that she didn't even have a mattress so the simplest of things were taken from her such that she was not able to fully exhaust her ministry to remedies i would also conducted she made an oral complaint and then an investigation was conducted by the president on this exact issue that investigation was found not in her favor and there's at least one case in the second circuit that says that the purpose of the p l o ray which is to provide the prison and ability to address the merits of a claim to have notice that the merits of a claim that is satisfied wants an investigation has taken place and have been found not in favor or without merit basically on part of the complaint so i think if you have any any case will support the idea that we can excuse fact that her mail was taken from her everything was taken from her she was unable at that point to sustain the ability to go forward in the grievance process with this occurred prior to this late absolutely occurred while i believe that she started to take some stats and then the rest of the stats she was unable to complete i had the case a lot of the facts there she said that she was unable to i'm sorry she was not if if as she alleges in letters to the court later on she was not provided grievance forms themselves that would not be the same as being able to follow lawsuit to the court if she doesn't have the forms to she ledges that she was being that that the prisoners were preventing her and that she was being retaliated against for taking any steps at all and i also want to get back to the form itself upon the fourth the form complaint that she was asked while she had the opportunity to submit this form complaint and upon it as a checkbox that asked if she had exhausted her administrative remedies which formally talking about we were talking about the complaint form required to do that at all and certainly if you're looking at if you're looking at the procedure of things this is just a complaint an affirmative defense hasn't been raised yet so how can she then proactively as just a pro se litigant thin because it was given or if it's the because that's very important there is no room for an explanation under that question it's yes or no her only room to explain if she's required to do so at all which i submit that she is not we have to drawn from not complain to assist her but i submit the complaint isn't even the proper place where there should be taking place procedurally this should be an answer later once the president has stated there has been a administrative bre available number one and then say here they are here is the forms that the prisoners and submitted to us she hasn't completed them and then it would be upon the prisoner to answer to that was this information presented to the because of what she said she didn't have to answer that she did not have counsel but she sends several letters to the court were literally it's a big letters underlined i am being obstructed i think this court was the district court was aware she reference she was not provided access to certain things that other prisoners may have access to but i believe what i do have nothing to do basically i think that this form should not contain th second hurdle is you have a motion to dismiss before you get to the mirror's of the case correct all right and i suppose that the district court the to save the marriage of this case very small sliver of the litigation or best deal well if if there isn't if he says otherwise are not valid then of course they should not go forward and the other defense can be or should we look at the whole problem i think that little sliver here is a very large problem this could be any prisoner filing such a case and saying i'm being obstruct as you probably know our prison system has a three stage grievance process where you file a grievance with the grievance officer if you don't like the response you then can appeal that to the superintendent of your institution and then finally to the secretary of and despite what my friend ms thompson his just said there is nothing either in the complaint or in the subsequent filing with the district court that undermines those allegations were made it erroneous to rely on the now in some of the cas you're pretty much limited to the case and the issues that is in front of you and i think that dealing with with what you call the larger picture of her lawsuits i think that is a case management matter that is better dealt with by a district court in terms of i suppose if you have anything in mind you certainly can i find that district courts are usually pretty well assume to what's needed to control their own docket but i'm sure the district court would be happy to have any suggestions that  of rather than leaving it where it should be yours and no i'm not i'm not at all that point is what would be shifting the burden would be if the district court had looked at the complaint and see what sponte dismissed it but that didn't happen here we raised it we raised in a motion to dismiss which under jones be bach and i believe great self is is entirely proper for us to do it would not be appropriate action in a district court be to convert this to a motion for summary judgment allow some discovery or some other information gathering to see if indeed this was actually available to her or if she was riveted from some facts well that's a possible course of proceedings but the complaint itself was clear on its face that it isn't necessary to do that and let me let me talk a little bit about the obstruction allegation i think it's very important very important to keep in mind or have to pay attention to exactly when things happened and when they are alleged to have happened because i believe my friend miss thompson has misunderstood some of the timeline the record of for example mr ball in her complaint complains about a series of events that began on january the twenty third and ended on february twenty eighth three games later she signs her complaint to the district court and what that tells me is that that the status of her grievance procedure is exactly what you would expect it to be from her complaint that the grievance has been filed but not pursued to completion because she couldn't possibly have exhausted the administrative remedies within those three days as of the obstruction what we have is a letter for the court or some kind of filing to the court she files are complaining march in the vendor she tells the district court that she is and that's the last you have to go there or exhaust that possibility before filing complaint for that's correct and what you say ordinarily takes more than thirty days of sure at any stage of the process there is there is at least a a two week i have to say that i don't see that asking for that information as a problem in the information is going to come out in any event whether she tossed or she didn't exhaust all that's going on here is affecting the timing of when it's going to come out and i don't see that it seems to me that if you haven't exhausted your complaint you have no business being in court and the sooner everybody finds out the better if i'm sure of this know we have a huge system and and we we have to have some kind of procedure to follow or we're going to have chaos i'd like sometimes above procedure we get more if you could only for one one second i would like to address the issue of the pens this again is an allegation that is made many months later in september of the year she filed the lawsuit she says for the past several months our motion and supporting proof that she had failed to state a claim of deliberate indifference she had alleged to have a box that they failed to provide appropriate medical treatment to her during this escapade that she has outlined in her history as to the time line as mr noir aptly pointed out the allegations in the complaint which we must accept as true it cuts both ways i do not indicate that she was ever denied a grievance form do not indicate that she had even requested grievance form do not indicate that she was denied cans of the allegations referred to her losing mail for prop two and nineteen day period if you look at the time requirements of the grievance process she has fifteen days to file her first of all ten days follow second level an additional fifteen days to file to the secretary's office of in make grievance and appeals in harrisburg that's forty days for her having a time here that doesn't even take into account the time that it would have taken for the grievance officer the superintendent and then harrisburg to review the grievance the response the other filings and make a decision clearly the spall was accurate when she indicated in her complaint that she had not completed the grievance process because she simply had not had enough time to do so there was no obstruction here it was her choice to use that form complaint it was her choice to complete it in its entirety and i note for the which in this case miss ball chose to leave lame and not offer any explanation i believe as to my motion to dismiss miss fox has claimed in her public brief that she never received our supporting brief and therefore was not on notice that this was an argument raised with the court she did claim that she received the actual motion to dismiss both of which would have been in the same on the mail to her i will note that the motion to dismiss reference is a supporting brief and that miss ball made no attempt to contact my office to ask for a copy of the brief from oh i think i have i've learned more currently about the process in the prison than i had before this is the most that i've heard not been produced nothing was produced in the district court everything up there stating as far as timing or fact issues there of gone through basically this all goes back to the fact that it's an affirmative defense there should have been documentation sure state this is the procedure you need to go through but then show that she did or did not go through it and let's get back to that complaint form again there is a reason that she never raised an issue of the fact that she had or had not been i'm shocked it and that reason is that she did not have to jones first block and ray versus kurtz make it very clear the prisoner does not have to at any time raise the affirmative defense of course of exhaustion nor defend that defense they don't have to answer she was being obstructed in her efforts i don't think this needed to come out in the complaint form i think it was proper proper procedure and if under the law she was given a warning if you answer this you have to explain and i would disagree with what the defendant had just stated about her ability to explain that is not the case have you found a grievance concerning the facts related to this complaint she states yes that's where she's given room to explain under that is the griev process complete no no when to explain it's the end of the page she has no right to explain she's provided no warning that answering this question first of all that she doesn't have to answer the question under the united states supreme court holding and second of