appearing on behalf of mr carr at argument today i'll aim to reserve around three minutes for a bottle in two thousand and ten the investigation into mr karr's grievances and civil litigation over a false escapee notation in his file resulted in a correctional officer being fired since that time mr karr has been subjected to a series of retaliatory actions taken by other correctional officials officers including threats of violence false disciplinary reports being transferred all over the idaho prison system including its maximum security institution feeling to be provided the required  protective custody reviews and most egregiously having his food contaminated leaving him to contract c diff leaving him at risk of death and seriously in violently ill for months the district court nonetheless granted summary judgment in favor of defendants mr karr is challenging three aspects of that summary judgment on appeal i mean people i can focus you down and tell you my understanding of the case and where my focus is and you tell me if i'm wrong within the time permitted to file an amended complaint mr karr filed an amended complaint he did and he did and that did not require a leave of court our there is one claim in the new amended complaint that is colorable but i'm still going through the whole thing is that what the magistrate judge how that the amended complaint was flawed for the same a separate separate complaint because the cognizable claim the one involving contamination it was it was not than the new the new cognizable claim was one against a sergeant  for allegedly for basically filing false disciplinary reports against him in retaliation for his exercise of litigation rights when he sense settlement letters to these two incident dates run in november and one in march at the believe it is correct that's correct and if you look at in march when he learned that he had contract this bug back in november and he didn't file a grievance at that time that's correct you do not and you can back to that you say well he didn't do because he was afraid of retaliation or because he was too sick that's right the remedy is rough actively why is that the incident that we should evaluate whether or not he exhausted his when he was when he was when he was diagnosed with yes what why why that march twenty fifteen thirty eight or whatever that was well first proper exhaustion  is is determined by the prisons own policies and the policies do not provide any guidance on what the incident is that the that the prisoner must file a grievance within thirty days of and  here you know in november what he was told was he was told by a correctional officer who wanted to remain anonymous that you know defendants had been contaminating his food and then he became sick but it was in march sixteenth when he saw the doctor that he was able to make the critical link between his being sick and the information he had been provided by the correctional officer and i think on this point respondents point out that mr karr has filed a food contamination claim before in litigation beginning in two thousand and six and one of the reasons that his true contamination claim was dismissed before was because he failed to point to medical evidence showing that he had been treated for food contaminated related illness and based on that it's completely it was it was it was when he received that diagnosis that mr karr had enough information to march twenty eighth two thousand and twelve and then even and so we submit that the record is not clear as to whether that was treated by the prison system is either a step too of the grievance process or step one of the grievance process and if the critical incident is the one in march then that ends that seems to me the file the filed is concerned form and that's verified by the validated by the april and we completely agree that if there if that's not the critical date then then you have to look at whether or not he has raised a sufficient claim of medical inability physically unable to because he was  that he was afraid of retaliation which you know there's a different way of analyzing it that's correct and we think that the district court should hold that a never should find an evidentiary hearing but he did exhausts claims that march exhaustion and so that is why if the court were to agree with respondents on that matter we would nonetheless mr carr would on the us be able to reach the merits of his claims because he had submitted sufficient evidence that  ministrative remedies aside from the ones that he did exhaust were effectively unavailable to him the gist of what went on and reached the merits correct or not as to his food contamination claims it decided his retaliate  his retaliatory transfers claim on the merits and it held the sergeant hagan's was entitle to qualified immunity against his due process claims for being held in protective custody in restricted housing he wanted to be held in a restricted custody isn't that correct retaliation claims but it did not reach the merits of his food contamination claim and so i have a question for you on the food contamination claims the type of illness that he had i could be wrong but i assume not in most cases is caused by lack of hygiene by either the person gets the illness or some nerves or caregiver who's handling both feeding them and something relating to their excrement in most cases so i would sort of question whether that claims plausible claim ordinarily but here i understand from the briefs that the office or one of the prison guards is allegedly or purportedly has said that the food was contaminated can you help me on the record there that's correct so on the record there mr karr has submitted ver affidavits saying that he was told by another correctional officer that defendant fleming had contaminated his food and there's also he also submitted affidavit saying that officer fleming told him mr carr that she had done this and there is a final affidavit from another inmate who testified that officer fleming told this other inmate that she had done this and those are in the record at the are ninety four is the affidavit of the other inmate and then mr karr's testimony is that you are ninety eight judge so let me just talk about the motion to amend briefly you had raised a question and i don't think anybody briefs the answer to this and that is well there's a verified prisoner complaint file we filed an answer behalf of our client and then sometime later a motion to him and plus an amended verified complaint was filed it seems to us that you need to look at the prison litigation reform act which which requires a review when judge bush in this case did the initial review one of the things that that review order says that  three forty four plaintiffs may not proceed on any of their claims at this time so it's our view that before he can proceed on them particularly in this case where there were other claims against other individuals who weren't defendants in this case that needs to go through that vetting process of the of the review just as the initial complaint did which was not done in this case what then happened which seems to us is important there were a number of motions filed in a number of things that were filed as the court can see in the docket and then what happened was that mr karr filed a motion for partial summary judgment and quite frankly we felt compelled to respond which we did in interesting lee although the the opening brief indicates that ought to be treated as a motion  for partial summary judgment what literally that motion said was he wanted judgment against the defendants that had then answered as to the original complaint so respond this is an interesting case in terms of the exhaustion issue but i think i don't think there's any disagreement as to law on exhaustion and that is under the prison prison litigation reform mandatory court and and council presented the court with the roski blake spring court case that was decided in two thousand and sixteen i think it's clear the supreme court wants t away the discretion take away special circumstances and there were some and in that case then there has to be the availability of the process will miss case if you  look and and when we look at the record and it's s c r zero zero zero eighty one in eighty two there's no contention i don't believe that mr karr doesn't understand the process no i think it's pretty clear the process you have to go through so in idaho it's you file a concern form they're supposed to be a response within seven days if you don't get a response sometimes or not then you have to file a grievance within thirty days of the incident and then there's the right to appeal now what it is ira judge bush's decision and he didn't reach the merits on it was failure to exhaust when mr karr filed his verify complaint the original complaint that was filed i believe on august twenty ninth two thousand and thirteen he said a number of things but one of the things he said was that he was told on november nineteenth two thousand and eleven that between these dates he was fed human feces and he went further about how officer fleming had to go outside to the porta potty come back in presumably through security with this cup and place it in his food and he also indicated he'd been eating it for two days well when we felt compelled to file our own we prove not only did that not happen because she didn't do it not only did she deny it but the proof was she wasn't making food she wasn't delivering food nor was she there when these events allegedly occurred and so then the response was when when mr karr responded  he said well i really didn't learn about it and tell april fifteenth two thousand and twelve after i was transferred to boise and i had an outside visit with an outside physician somebody outside of the institution and here's what he said in his disputed facts he changed his story again and said well no when i really learned about it was march sixteenth two thousand and twelve when i was still the facility  fairly far north idaho then in in march of two thousand and twelve on two occasions he wrote the attorney general not the attorney general himself but the deputy attorney general handling these matters indicating what had happened and then on march twenty eighth he filed a concerned form but he didn't follow it up with a grievance until april now we don't have a record of that in the record now i'm not going to sit here and tell the court that mistakes can't be made and things can't be lost but we keep a log and we don't have a bullish just assume that's right if if you  the best case scenario if you say even though he's told this he knew about it and even though he's changed his story a number of occasions if you just assume march is the date he still doesn't follow our procedure which is that or stand it why judge bush said you didn't exhaust your remedies because he didn't file a grievance within thirty days the incident clearly on march seventeenth two thousand and twelve when he wrote the  attorney general he knew the circumstances he said it in his letter and so our position is to exhaust is mandatory he didn't exhaust in this case and we think the court was right  for whatever reason we're going to give him the benefit of the doubt maybe six maybe he can't figure this out that's why we give him to march but if we give into march judge he still doesn't meet our requirement he's still late and those requirements are mandatory and we and we believe judge bush is absolutely correct when he made his finding that as to fleming hartnett and davidson on the eighth amendment claims they fail we've also briefed bluntly that on the merits if this court were to decide well we think he did exhaust or for some reason we're let we're going to let him go forward we've also set forth in our briefing why we defendants prove one thing the story changed so and as to hartnett and davidson in any event there was no exhaustion but there were certainly no acts on their part on the merits on the conditions of confinement it's a it's again an interesting issue in this case because mr karr sought and was granted protective custody and and i don't think the record reflects that he didn't want to be in protective custody i think what the record reflects is that he didn't like where you used to he would be that ricky would be someplace else it was not quite as comfortable and i get that we understand that but it's not his right and and so that's why we believe judge bush was right when he indicated that with regard to and he used the brown case which obviously this court is from the year with there was no clearly established law as it as it regards protective custody  mates and what due process they must be afforded when that status if you will is not contested and mr karr's not here telling you he's contesting that and so when you look at the record and you look at when he was moved there are notations although not hearing about why he's being moved and his protective custody status so with we're guard to that issue of confinement and his fourteenth amendment allegation we believe that like why should be affirmed the last thing was was the retaliation under the fourteenth amendment of being moved to a variety locations and i wote i'm not going to walk the court through every every location but that claim was made against sergeant higgins and we believe the proof is clear that although sergeant higgins can make recommendations in the court so found sergeant higgins has no authority and no control to confirm where mr karr for that matter any other inmate under his charge your question i'm not i'm not sure i know exactly what you're looking for but  those that claim is that he was told by an unknown officers we all know and i deposed him and by that time he'd forgotten i don't mean to be flip it we don't know who it was we we have no idea but but the story went from well it was her that did it and went through the scenario how she brought this back again when we proved that she wasn't there didn't prepare food didn't deliver food then mr karr's story changes so with regard to the officer fleming just pious now not only did did he not exhaust we think on the district court i appreciate the opportunity to be here on a somewhat historic day thank you mr president thanks for your argument then the temp of it as justices thank you judge you  two thousand and twelve grievance the problem with that is that it ignores the medical records showing that in early april mr karr had a relapse in his disease and had been responding to antibiotics but it he had  his symptoms recurred and he was actually transferred to another prison for emergency medical treatment and you can see that in the in the record that you are one sixty six to one sixty seven as well as e r to sixty  evidence showed officer fleming's shifts kegel but it didn't say that there's no way that she could have been there and as a result we think there's a disc genuine dispute of material facts as to that question whether or not mr whether or not defendants or district the district court felt that claim was credible it is still sufficient to survive summary judgment on the due process claims mr karr was given very conflicting information about why he was being held in segregation and it is absolutely clear from the record that mr karr did not want to be in segregation and he was first told it was because of his medical condition but the medical corps in thousand had been lifted several months before and so he continued to pursue that he was told it was a security hold and then only after he was told it was a security hold was he told that it was a protective custody issue and so his failure to explicitly challenge the protective custody doesn't nation that he had wanted protective custody he did it once before he did he did but when he was wanted to be in protective custody in a different facility well he wanted to have a hearing about why he was  wanted to be in a different facility so you know he so he has the basis of his claim is that he ought to be provided the hearings that he was and understood and then lastly on the retaliatory transfers claim authority to transfer him and so to the extent the court this court relies on mr sergeant higgins authority and we would request that direct district court on monday quit was forming part of the retaliation climb fleming is mr mr carson mr karr's briefing is a little confusing he definitely i think asserts facts that would suffice to show retaliation by officer fleming not only for the food contamination but also for the prior disciplinary report  counsel do a fine job just like those washington d c count