medina of food on multiple occasions the district court granted defendants summary judgment holding that mr medina failed to exhaust his administrative grievances this court should vacate the judgment and remand for further proceedings because there are genuine factual disputes about which administrative remedies were available to mr medina and whether he exhausted them and on that score this court's twenty sixteen ruling in williams the case cited throughout our brief is  positive williams held that new york's procedures for unfiled unanswered grievances like mr medina's here are so opaque that no inmate no inmate mr medina not anyone else could use them but that's that that's absolutely right this case as to the june claim is a replay of williams in every respect you have december so as to december what you've got the factual predicate for the claim is that mr medina had filed this lawsuit in july think july thirtieth two thousand and seven one of the officers is a defendant in this case officer gilbert was served with a complaint somewhere around i think november thirtieth the very end of november two thousand and seven and less than two weeks after he sees medina he's the individual who's charged with rolling the food cart around you know this is a maximum security prison the inmates don't eat in a cafeteria the in their cells the food has to be delivered to them by the corrections officers and so officer gilbert is there and he sees medina and he says let me help you out with your lawsuit add this to it and then he fails to feed him fails to get a meal rolls the car right on by so that that's the factual predicate predi for the claim the way it worked as far as exhaustion is that medina filed a grievance or written grievance i think the same day or the next day that grievance was neither filed nor answered but medina h persevered he filed a second grievance the next day a written grievance and also a complaint i believe to the superintendent at southport the second of those two grievances was docketed and processed it was received  by the grievance committee at southport the grievance committee dismissed it and that's different than a denial as we try and show in our brief they dismissed it saying well you needed to confer with the block supervisor confirm something for me have a lot of questions for the another thing that the regulations do say that's important and this is a page four of the of the statutory regulatory dent m eighty four says that a facility may not impose preconditions so i think that reinforces it doesn't say that that there are a number of things that the regulations say inmate must do as to the december claim mr medina did all of those things there are some things they say they're encouraged to do were made to mention why should we find what should be sent back because there are fact disputes even to really your position that he exhausted in december he did everything he had to do in december in finance you can proceed with his lawsuit even your position but yes your honor it's our position that he did everything he needs to do but i do want to recognise that to do pendants disputes some of these factual five before want to and the the greven may appeal a dismissal to the i g p supervisor within seven days and he must respond within seven days and if he disagrees with the that leads to it seems to me an endless round of every time you don't get what you want you have another procedure that you that you may exhaust which is making a new complaint of the failure to reinstate the old and so you can do that until they lay you in the grave precisely so your honor and i think footnote four from the williams case actually gets into this a little bit and says this process of filing a collateral grievances so opaque that no one really could make use of it so i think we would agree that to the extent that option if you file your complaint it's been dismissed and the dismissal dismissal has been affirmed by the supervisor that process that appears to be optional it says may up to the  process is out there it's not available must you and exhaustion does exhaustion cover only things that you that that are put in the mandatory that you must do or things that are available to you i believe proper exhaustion is the watchword that's from the supreme court's woodford decision that means exhausting every process that's required of you i'm not aware of a case that gets into may versus must but it's it is telling that the i g p regulations throughout use the word  must for the three steps that they've got said you must file a written grievance you must file an appeal but the language that you've just referred to your honor is may and in any event even if that may process were you know considered to be part of proper exhaustion for the reasons given in williams and footnote four and for the reasons given in our brief it wasn't available in fact to mr medina here the only other point i want to stress is that this was a maximum security setting available to mr williams here because it failure to deal with first premiss right that's correct your honor yes and so it's not clear as williams notes in footnote for what he could have got out of that and it would have gone on endlessly if his view is i did what i was required to do in their view as you didn't see them good afternoon good morning your honor let me go right to the issue of whether there is an infinite the collateral grievance when allege that the grievance program supervisor failed i want to go back to  to in every case like this that i have been involved in in the district court which is thousands of docs take the position that you read  grievance procedure literally that the prisoner comply literally with the grievance procedure right i can't speak to those thousands of cases i think literal compliance is a good idea  literal compliance is what you do you read you read what's on the page you do what's on the page and you don't skip any steps right if you're a compliance is a safe thing to be ok so that the grievance policy says inmates are to seek out he has blocks orange and the black sergeant name nowhere appears in the document imposes a precondition on the filing of a grievance by requiring him to do something that's not only not written down but that he only encouraged to do in the first place right no it didn't for two reasons first of all medina filed his grievance the grievance was in there they didn't say mr menino you can't file any grievances because we're imposing a new condition he filed a grievance and then vision that in june he didn't file a grievance which i thought we were talking about the samberg december is the block sergeant right there in june he makes a claim under medina i'm sorry under williams that the grievance process wasn't available now we said he based on his deposition testimony that he claimed that the grievance process was available and he  exhausted it and he went all the way up to the cork so we don't think that claim will fly but if but mr medina concedes on appeal that there are disputed issues of facts if you get beyond this deposition testimony as to the june claim there are at least disputed issues of fact and that goes back for a mesa hearing and we disagree with opposing counsel that it can be put off until the trial because mesa itself that you can exhaust that you could decide exhaustion just based on an inmate's allegation now williams recognized that they were under the motion to dismiss standard they had to take the inmates allegations is true  going back on remand the defendants had asked for mesa here and presenting evidence that created this spewed issue of fact over exhaustion then i believe that issue is still open in williams certainly this court should hold that when there is a request for a mesa hearing and when there is a disputed issue of fact over whether remedies were available to them prisoner  then you go back for mesa hearing you have that preliminary hearing and that's when you decided before anything else happens justice mesa said now let me get to december december this is the you're not demeaning what he complained about no i mean i think the allegations in june are for more serious i mean and this is more than one meal but in june it was many it was it was five days in june it's a serious allegation we're not we're not demeaning that the sender he misses one meal and he says that the officer was retaliating against him and this goes to the basic policy of the regulations that you're supposed to try to work things out you miss one meal you talk to the area supervisor and you say i missed a meal and this guy was nasty to me and he was retaliated but your regulations don't say anything about the area great i couldn't figure out that you had to go to the block sergeant well your honor this is this is the important thing the regs say although a facility may not impose preconditions to submission of a grievance the failure of retaliating against me he deprived me of a meal on the eleventh and the block sergeant could have resolved it they could they could have made me a good faith effort to resolve it by saying ok corrections officer gilbert is not going to serve you any more meals we're going to make sure that and maybe they couldn't ever solved it if they didn't resolve it all mr medina had to do was write down explain to the grievance process i try talking to doesn't work come back to us and entitle to do why the title to impose this new condition well in addition to the language i cited seventy one point one b says that the their reasons procedures are intended to supplement not replace informal problem resolution seven o one point three a says they're encouraged to resolve complaints informally stand that they're encouraged to resolve completely informally procedures pacifically says we can't impose any preconditions if you want to do it informally we can't impose any preconditions on you that requires you to do it informally and you don't require them to do it if you want him to solve something informally tower one the first thing you have to do is try to solve it informally not you may but you must well it is a discretionary matter this is seven a one point five befo consequence because you didn't do a thing with yours to do before finally well for one thing reading the rule literally it it's ok to do that and reading the rules in context with all of the references to informal dispute resolution what  allows the committee to do is say look there's a very simple thing you could've done you can try to resolve this with the blocks arch and tell him what went wrong on his watch and then if it doesn't work come back to us we have your grievance we're going to dismiss it for how it was like a dismissal without prejudice but mr medina never talked to the block sergeant that's on page four sixty six in the record court said to docs that there's a way you can address this issue of unfiled and unanswered grievances and that way is to amend your regulations indeed dox has since williams amended its regulations once not in a way that deals with these issues but in another unrelated way so far as i'm aware there's nothing to stop docs from amending its regs to provide for these circumstances it hasn't done that it ought to bear the consequences second as to june it appears that there is agreement between the parties here that there are genuine issues of material fact that would preclude summary judgment so the question is it's got to go back to the district court but you know what's what comes next and as we point out in our brief pages thirteen to seventeen of the reply that's a question in the first instance for the district court the district court has discretion to say we're going to hold a mesa hearing as my colleague mr brody says or we're going to do this a trial or in some other way that's for the district court in the first instance turning to december i just point out that as we note twenty six of a reply formalities were not often followed at southport and that's another important layer here you know medina did the best he could to comply with these confusing rules but even when he did sometimes the regs would say you got to do x and x wouldn't work so he do y and y miraculously would work i think that's an important point and then the other thing is that he was transferred at the end of december two thousand and seven we don't know exactly when the record doesn't disclose that point but williams had identified a transfer as a complicating factor something that made the procedures unavailable in that case and here too you have a transfer coming right on the heels of the december claim so for all of these reasons we urge that the case that the judgment be vacated and the case fermented for further proceedings thank you runners thank you thank you both will reserve decision mr king thank you for taking the assignment