did all he was supposed to do to bring you claim under the california tort claim act the state did not do what they were supposed to do at every step mr tough complied with the procedures to file a grievance at every step th you have in your brief from a california so it claims that act says that it's a plaintiff does not comply with these requirements the exhaustion etc or cannot because of the action of state officials the potential claim are the prison officials prevent the descendants from exhausting his remedies as you say they did that he's not excused i have not found a case that that states that there is some sort of  well and that's where the right case comes in and explains that substantial compliance is not sufficient also the right case cites to various cases under patriot's corpus law that that habeas corpus was denied because of allegations that the department didn't do what they were supposed to do so it's drawing an analogy to those cases that would support the notion that exam there would not be process did not comply they said that the department did not continue the review process in a timely fashion and that the department's failure to make a timely decision the court looked at that and still denie corpus in those cases and you are not there are good reasons why exhaustion is required that california tort claim act is a partial waiver a sovereign immunity and the it is important to hold the agency responsible the grievance regulations are set forth in detail to provide that the agency has first level of redo the agency should be held responsible to to follow the very grievance regulations that the state has set up it would determined at the first instance at the agency level sort of strange to you making that argument i assume that if you're in a california court trying to get around the the i think the exhaustion requirement you would be making the exact opposite argument the the point is i believe your honor that the the state of the law in california is that there is no excuse for exhaustion and this was the reason why mr kelso was barred f proceeding with his suit i'd like to also point out to the court that importantly there was a form letter from the board that stated that the grievance that the petition to the board would be held in abeyance until all administrative remedies were exhausted this is found in the exercise records page one thirty six and geoffrey tell submitted this letter to the district court and the district court considered the letter and held that as a result exhaustion was required also mr health simply did not know about the requirement to go to the board and the prisoner regulation point out at  title fifteen thirty eighty four point seven east three that points out that a prisoner won't even be informed about proceedings to the board and till after the third level grievance is acted upon further he a prisoner is not given instructions to proceed to the board until after the third level is acted upon and as is very clear in looking at the grievance regulations a third level review would never be acted upon until the proceeding once a second level is and that wouldn't be acted upon and tell the first level is and opened and there were some items that were missing but where that is right the items that were missing were his mother had sent him a pair of tennis shoes one of the shoes was missing from the payer also he had some underwear in th analogy with the phillips versus haas case that came before this court and in that case the facts are very similar in that case the the the prisoner was trying to file a petition for writ of certiorari and he was attempts to use the grieving process he was not able to adopt his administrative remedies which is a prerequisite to bringing the claim under the california for claim act that mr tells us cause of action was taken away from him without an equal opportunity to be right to bring a cause of action for damages and contrary to the cases that are cited in the red brief in this particular case mr health is not seeking any particularly or different grievance procedure  rather the procedure having been established due process requires this procedure be followed because the state did not follow this procedure is denied mr kelsey opportunities proceed with his claims which violate due process  that they're supposed to do and the state does not follow their own regulations it's a clear it's an aisle of access to court the problem is that it's a grievance procedures that are set up here the form that is required to be filled out requires both sides to comply with their obligations to proceed through the process there are there are cases for example the word for adverse is the case where it has been held that if a prisoner fail to do what they're supposed to do right then and so here it's very similar situation except the shoe is on the other foot that the the dollars defending regardless of what the ultimate cost is that's what you want right well that's not what we want your honor unfortunately that the end result when mr kell stood back and did nothing to pursue his client record i'm sorry it's hard to say that from his record well your honor if you've done nothing at all we wouldn't be here he filed some claims and you cited he filed grievances your honor with the prison officials they were not responded to see you that on several occasions he tried to bypass the informal level and go directly to the first level that was not responded to or told that he had to get informal response but he never tried to obtain directors level review by similarly bypassing the lower levels and submitting his appeal directly to the directors level  office is well aware the eastern district of california is one of the busiest in the nation and it's inundated with prisoner complaints and one of the reasons that we're working with is because sometimes the prison grievances system just doesn't work and when i read just this case i can see why where were they did in these cases in federal court when the state out of the resulting in four that is correct your honor and it could have been resolved at the state level in a small claims court out that he could have filed a claim because nothing in section one ten of the government code requires that a claimant prove exhaustion at that level i would also point out that in the right case which of counsel determination on that grievance but the board had denied it which then allowed him to file his state's cause of action two weeks to pursue his claim wait we understand i think and you can correct me if i'm wrong that it's the state's position that mr kills was not prevented from exhausting his internal prison administrative remedy is that correct that is correct your honor because that issue was never reach we are not here i'm sorry i've got a follow up question but i think we all understand stand that it's a space position that he was not prevented from exhausting his administrative berman's correct prevented from exhausting as administrative remedies that he could then pursue his tort claim in california state courts yes your honor he could have pursued it if i do concede that the question is not asked for fun and i understand that you're on to do you can see movement that if he could establish that he was prevented by prison authorities from pursuing his administrative remedies claims presentation and at that level the superior court must make an independent determination and that under government code section one forty six point six subdivision e i believe that then allows the court at that time for calcutta presented all the fact that he alleges in this complaint that he submitted the grievances that the various about six or seven grievances that were never responded to and then the court  sate theories of the stop will apply if the conduct of the public entity or employee prevent the claimant from filing a claim either time we are all together th honor of the day it was filed instead of filing in the eastern district he had gone to state court would it have been timely i am forcing we do not know on what day this complaint was open with the district  contrary to mr cast as position there is an exception to exhaustion under california law and the campbell case campbell vs the regions of california cited in our  supreme court of california recognized that there are exception and that that list they provided is not exhaustive that there's different reasons also cited to green ball and although in our case there is a court notice that there are exemptions for futility there are exceptions based on fairness and equity had mr kell filed a cause of action with a superior court to recover for the loss of his property he could could have pursued but didn't and did not allege that if the defendant ever prevented him from filing his claim directly with the board so finding an application for filing an application with the superior court or even from filing a cause of action directly so how was i was a prisoner confined supposed to figure all of this out the board was mistaken you said that magistrate judge was misguided and didn't have all the exemptions we have to look at the nuances of of the remedies available to him those are the same procedures that all individuals all litigants all saints have to pass it's there is no exception for a prisoner are is free any other person out in the street if they want to seek relief from the court they have to follow the procedures established by the state to reach the remedies at the scene can i ask can i go back to my question maybe it and claim by some affirmative act now would you why when the most sensible thing here big to hold this case in a band let him go back and file not some wri of whatever he said a mandate but to file his claim under the california top claims act and allege that the reason i didn't i didn't exhaust my remedies big was because agents or employees of th terms of the having the ability to file the claim that right existed in two thousand and one as it does today and the fact that he made a decision not to file any claim at that time she should not then have the opportunity to go back and correct his errors but let me see if i can focus it down because i think i have the same question as my colleague if we sent this back to the district court with instructions to hold  was prevented from exhausting and the state would be free your clients would be free to come in and say no no no he wasn't prevented here are the facts there would be a factual determination whether he was or was not prevented and presumably if the case to the district court in this case pursue the tort the the government claims and all my question is in the proceeding in history court that the state come or did your clients come forward an affirmative they say your honor the best solution for this case is for you to hold the matter in but in advance all of what's commonly done in haiti is cases and allow the individual to go to stay court present the claim including his claim that he shouldn't be required to exhaust his prisoner of these because ues or give him his money that's correct your honor i agree with you and i'm so that gets to the larger issue and i hope i hope the state will take take note of it is that we really do expect the state to to work out some of these  kalf clearly did not have the opportunity to do that below as is evidenced by the letter that he submitted that shows that the board would not have provided provided him the opportunity  pelz this record is very clear that mr tells how show that he was prevented by the act of the statement prevented from exhausting his minutes administrative remedies that's true and he's confident in his ability to prove that there should be issue is there's a little bit of a time conflict here that if he would have done that back in two thousand and one he he would not have been able to proceed with the board  that time because since he has the best evidence from the record i'm talking about filing a claim under the california tort claims that you say exactly what you argue in your brief i think it's a page thirty four that he was  he had the i submitted the the letter that he he didn't personally receive it but there was a form letter from the board that indicates that the board would not act on his claim until such time as he exhausted all of his administrative remedies and that being the case he was not able to proceed and just record what you say in your brief that the i'm page thirty four that the acts of the defendants were an insurmountable just cited for you would be excused he did not have the opportunity to present this before the state court because he before filing in state court he would have to exhaust his administrative remedies the difficulty we're having here is that in your opening argument you said that the state of the law is that even if he was prevented then he can pursue a tort cl understand that we've heard that three dozen times is it your position that if you could establish that he was in fact prevented that that would excuse his failure to exhaust administrative prison remedies i believe  exhausting administrative remedies that that there is no requirement that there be exhaustion is that correct that is correct that is what what was just read and that's not quite different from what you argued in your opening argument just to go back one second that the the the talking about two different types of exhaustion i'm sure yes now but but but the theory should have theoretically apply to both i think that's what we're struggling with right here if we  credit your main theory on prison exhaustion that prevention excuse that not so apply to the separate exhaustion requirements if there are any in front of the the sort claims i would say right and that that's i mean i think that's the odd thing about this from both perspectives the state is arguing no you don't have to exhaust on one hand but you just have to exhaust on the other hand and you and you have to you're taking the opposite position so there is not that's why  you're not a verse in a dish example i realize that there are larger issues involved and none the ten issues but i assume that if that you wouldn't object to now that you've both sides of clearly presented their clients to us and then air th