affirmative defense that must be planted and proved by the defendants in any action therefore we believe the trial court's to spark a dismissal as and proper that this case should be remanded that the complaint reinstated and just briefly the facts that were set forth in the complaint indicate that mr wheeler has ben at this idaho correctional institute for about four years he was transferred there in two thousand upon his arrival s medical treatments for these maladies it's mr wheeler contention that he was not treated accurately or was not treated pursuant to these needs that he had significant setbacks the record pleaded and parties can submit evidentiary issues if there are any and get that resolved but we can't decide here today whether in fact the record shows that so absolutely there is at least an ambiguity here as to whether he exhausted his mr miller's contention that he did exhaust but as i indicated the reason i point that out is to illustrate the deficiency was the response argument that even if the legal standard was that a complaint can be dismissed due to lack of exhaustion on the face of the complaint we clearly don't have that here as mr wheeler indicated that he did  context may want to wait for the requirement obvious option in order to get a judicial decree dealing with a difficult inmate or some other legally significant problem therefore maybe to the defendant's advantage to simply w we believe that now that would be incorrect for a trial court to be able to dismiss it on the face of the complaint of exhaustion because it is an affirmative defense as indicated by this court the white decision therefore as we all know affirmative defenses can be w carrot on the following page that seems to indicate that he thought he didn't have to exhaust administrative remedies under the eighty anyway now whether he was actually making that as a legal argument that he w required to exhaust administrative remedies it's not clear but even looking at those two pages in conjunction with each other clearly indicates that there's a pretty good argument to be made for mr willard's that he did exhaust or at least that's the impression that he made to the trial court to if the defendant didn't plead lack of exhaustion or failure to exhaust and if it's an affirmative defense why wouldn't the case be able to go forward because if the plaintiff catches in the term that it uses the word shout but how do you deal with the fact that the civil i'm calling it a civil cover she i mean it's called something else that's what it was called in the western district of washington but that she there was no the ninth circuit did not speak as to whether or not the allegation and exhaustion of the mistreated remedy was quiet so at the time that magistrate judge williams made his decision it was correct because on the face of he determined that on the refer the court to the excerpts of records pages twenty six and twenty seven and it's my understanding that's actually not a cover sheet but is actually part of the prisoner's civil rights complaint in which on one page he alleged that he had completed the administrative remedies requirement and then on the second page and it came to that he did not need to require or need to exhaust remedies as to aviate and rehabilitation and claim i think our position to this morning is that if this plaintiff had in fact perhaps mark that he had not if exhausted administrate remedies that would certainly be a concession by the i think why it does and certainly puts the courts allowing the district court to do exactly that when it's evident from the face of the complaint right now thank you