of robinson cole is counsel for the plaintiff daniel rials with me a counsel tables attorney kelly fry barnett there are two principle issues before the court today the first whether or not mr riles properly exhausted administrative remedies that were available to him before suing in district court on his excessive force claim second issue is whether disputed issues of material fact exist as to whether the defendant's medical professionals demonstrator deliberate indifference to plaintiff s serious medical needs a district court erred in finding in favor of defendants on both of these issues and unless reversed the impact of that air is clear no review either administrative or judicial will ever take place with respect to a videotaped incident in which the plaintiff was thrown headfirst into a concrete wall while handcuffed with his hands behind his back resulting in serious injuries and permanent disability and second the defendant medical professionals will never have to has been correct your why don't you trust that certainly this is a different case than a lot of the other ones that are cited by the defendants where it's been found that the inmate failed to exhaust ministry of remedies and we pointed out several those cases of page twenty three of our brief there are disputes here about whether or not the plaintiff efforts to exhaust technically complied with every step of the you ministry of directors and i would respectfully disagree your honor that it's not clear i would disagree that it is clear is that because of the option that's made available to inmates to make a verbal informal request in the language is not if it fails the languages if it's not if i do the specific language is that if the verbal request is not satisfactory the resolved issue so what my client believed was that by making the verbal request by being assured that there was an investigation into defendant blues conduct will be forthcoming and then to immediately thereafter find out that the investigation going under the rules that is there those are the two requirements you either have to attach the written request form or explain why it's not been attended nine that's correct it involves the procedure to the extent that the procedures can be interpreted as the defendants have advocated that the verbal request needs to be that the verbal or request has no effect basically and that it has to be followed up by by a written request and may take another tank please i'm reading your blue green peach ten would refer to the manner prescribed by the d o c i'm referring to what the defendants have characterized as their interpretation of that specific requirement we've mandated throughout the brief that there was compliance with the verbal request form and then further that once the d o c has an option where they can return a grievance form without disposition and allow the plaintiff to refile so it's not a jurisdictional dispositive requirement that that written in from request be submitted  there is actually an opportunity to resubmit which my client in fact did which only the to then be rejected is out of time but that correct but there is under though the language of those that directive there is no reference to the subsequent refiling to correct and respectfully my client was kind of a buzz saw here because you have this one on the one hand he makes an informal request he falls it up by the written level one grievance he receives no response he falls it up with a level two grievance he received no response denying that they were seated and even if they're denying that they receive it if they should be allowed to make that argument that's an issue of fact that's disputed issue a fact whether or not the d o c received those forms respectfully the evidence shows that they did that those were submitted because in each one of his grievances  he's referring to the prior ones that he submitted and asking how come i haven't received a response how come no one is addressing this and specifically saying that he believes it's due to administrative reprisal because he's has been speaking to the commissioner and to the police about this inc actually available to my client and i think the evidence shows that in these circumstances where i count seven different requests for a for addressing this administrative complaint that we're either ignored by d o c or were demonstrates that do you see had the opportunity to address this is you get the point of exhaustion right in your favor that says that that comes comes out the way you without opening a door to all sorts of day that my case is different kind of kind of situation i understand the concern and i think that the circumstances here are different because this is not as you are but everybody else is going to say the same thing i mean these rules are pretty pretty clear and pretty specific i would disagree that they're very clear in these circumstances where there is a situation where the only issue with the submission is an apparent failure to include a written in formal request and when the is not a jurisdictional requirement it is clearly said that if you made me resubmit to correct that deficiency it does not say they have to resubmit within x number of days so under that scenario these are different factual circumstances that would not be very next second next section which play defoe mits in his brief specifically says any grievance which does not meet the criteria specified in section six a which is written in formal resolution apartment of this directive may be rejected outright does seem a little unforgiving i don't think it's harsh your honor because the written in from resolution of harm is very clearly spelled out in the procedures it's not ambiguous at all about his obligation to do that and even if it is harsh you  off i think you have to keep in mind here are the he failed to comply with the very first step and that's fatal if even if you were to assume that he did then just skip right to the level one and he did submit that and he didn't get a response they submit is level two and didn't get a response the procedures specifically provide avenue for the inmate to address that the d o c is contemplated there may be mistakes made something might happen where they don't get a timely response and the procedures provide the can just appeal to the next level and that's what he did he knew that he could appeal and that's what he did he didn't do it right at any step of the process but there's a procedure in place for that and he has to properly comply with that procedure all the way through and if he does identified three ways the procedure can be deemed unavailable and ross came out after so we haven't really briefed it in that way so i'll take them each and the first i think what you're for him to is kind of the a picnic argument which is where the procedures are so unclear the no prisoner can misinterpretations ambiguity it's that they have to be so unclear that no prisoner can possibly comply with them and again the written in formal resolution or karma which is what he failed to do is crystal clear there's no question he had to do that and he could not proceed to level one without doing a first and judge shot the below and numerous district courts in connecticut have found these procedures to be clear and judge shot the use the words quite clear so that doesn't even come close to meeting the biggest and second exception that ross identified is the institutional debt and where the procedures may be exist on paper but d o c doesn't actually have a forty to implement them and that's kind of what was at issue and ross that's not the case mr directive nine point six is the only procedure that exists for this kind of remedy their grievance a d o c officials clearly have authority to rule on these grievances if they're properly filed and there's no evidence to suggest th c ever much less consistently disclaims that so really the third prong i think is where the plaintiff's kind of hanging attack intentional bad acts by d o c that would maybe interfere and he really identifies three ways he thinks that happened and there's just no support for it in the record the first argument he makes is that he made this verbal resolution request and v o c said they look into it and i think frankly that borders on a frivolous argument you he concedes expressly in his brief an argument today that he learned immediately after that that they weren't going to be invested in this was an alleged from and that's his second argument you're on the up he's alleging those there's a threat but first of all that's a waived argument he never raised department simmons and your honor that was in regard to his attempt to restart the process long after the fact and on level two he submitted he claims you submitted another when informal and then another level one those both got that got denied it killed to level two and dio so this is after all right this was ever so none of this really matters because this is four months later and it's but  c denied that level two grievance because the level one was untimely and improper so that was the whole reason the g o c gave for rejecting them and then they checked the box because level two is the last level you can appeal to you cannot go to level a mistake or don't know your own just with the second no is entirely appropriate to check that box you saying that you have gone you got as high as you can go and we're going to check this box you cannot go to level three that and if you read the box it says he says you've exhausted your remedies and you cannot appeal further that's why they're checking the box to say you cannot go and someone reasonably misunderstand that it's saying ok i don't what i need to do and so i don't i think that the only understand you could possibly have is that you can't go to level three and that he proper exhaust so it's not just you exhaust your memory remedies improperly and then you can go to court understand how that might mislead innate sense of thinking that they've done everything that they need to do to get into federal court by way of exhausting one of them in that spot on the procedures also and so the reason that they're checking that box is to tell the inmate this is the last that you cannot go to level three this is the last step in the procedures for you know if an inmate had done everything properly he could look at that and say yes i've exhausted my remedies yes he has told me that i can go to court sure that's absolutely true as long as everything he did was proper before that but if he's been violating the procedures that every single step of the process up until they check this your honor addressing the last issue that was just discussed why is that language there it's not correct to say that it's simply there to explain to inmates that level three appeals are not going to be heard it's also in the level one for so one in in form that is denied that box which is a j one sixty the appendix also has you have exhausted your administrative remedies it was not checked in this instance but that same language is there and this fits into the overall picture of  way or threaten him or cause him to make mistakes or reassure him that you know it's this is his you know whatever whatever they're doing so they take an affirmative that's that's a different story that's correct and in this situation ignoring numerous requests and providing reasons for denying the requests that were not accurate affirmative misled the plaintiff into believing that it exhausts remedies there was nothing else he could do the point that was completely missing from of from counsel's argument is that the error can be corrected the failure to attach the written request can be corrected at no point has that been a addressed by d o c's argument so if it's if it can be corrected it is not jurisdictional the mistake i believe just wanted you second one is that it can be corrected and there is no time there is no will be no grounds to reject a resubmitted grievance form as being untimely provided that the initial form was submitted within the time that was provided which it was it had a technical noncompliance issue so for deal see later to reject a level one grievance form which they didn't even reject on time would undermine all of us the whole scheme that steel sees burden your honor and they've been very good at putting in time restrictions their failure to do that in that instance should not be held against the inmate who is making every effort to comply