is not too much to ask than that non prisoner parties play by the same rules when those procedures are those of the federal is a civil procedure in this case defendant william powell in the district court violated two separate provisions of the federal rules of civil procedure the first is ruled twelve by not raising exhaustion until his third motion to dismiss more than three years into the case powell forfeited his right to argue the affirmative defense of exhaustion it was stated in the answer right it's an affirmative defense that was alleged and he answered correct an answer that came after two prior rule twelve motions and the and the answer then was followed by a motion for judgment on the pleadings right correct a motion for judgment on the has to come after the answer because it has to be at the close of the pleadings right it does but under this court's precedent and bryant it was titled to raise the defense and their answer no no no and the reason why is that u exhaustion as a defense and i ruled twelve being motion would result in a waiver we know and it would so it has so if we were to do that if we were to say that what notice does the government have that that's what's going to happen if they fail to list started if we've never the rule itself doesn't say that as she as you've admitted and no precedent says that well defense something where the findings of fact are made by the judge or by jury that that was certainly part of brian but the court that's the disputed bride is and it is but the court didn't just say that's the only that's the only issue we're talking about the personal jurisdiction venue so when we're thinking about what notice did the state have that this could be waived we have bryant that says that it's treated under the analogous rules we have rule twelve itself that says that a party that makes a motion under this rule must not make another motion under this rule and then we have rule twelve h which says that certain defenses can be waived even ones that are not listed and we see the consequences of this case there were other material submitted in support of the motion for judgment on the recognized it not that it might be actually raised in a motion for summary judgment but the court should trade it for purposes of fact finding as a rule twelve motion where the trial judge makes the fact find correct  and bryant explicitly recognized did it not that it might be raised in a rule fifty six motion but treat it as a twelve motion for purposes of that fact finding right that's right but that's also why even admitted  purposes of waiver why i don't know that brian drew that is tension nor could it because if we're going to give the benefit of having the judge make fact findings that that means that even if there's material outside the putting it doesn't turn it into a summary judgment  it's still a rule twelve motion decided by the judge the same way the judge makes decisions about venue about personal jurisdiction of the i mean the bryant and those you know right panel said the bryant court said that it's a matter in abatement  and that there are a lot of motions that are brought pretty answer and are treated like rule twelve motions that aren't actually listed in rule twelve motions for stay for example and this is like that right correct but that's also why the fact that you can bring those motions even though they're not listed is why the analogous rules that apply such as venue i mean the perfect example the one i want to we have any authority where a court has said that one of those other kinds of motions for example a motion first day abstention something like that that's not listed and twelve b that the failure to bring that results alone w those no course he's austin's not listed there at all right that's right there are there are some defenses you could raise later you don't wave but not having raised earlier right subject matter and third as they climb right any federal court that has ever said that your failure to raise something not listed and twelve be one through six something that's a matter an abatement that you know it can be brought in a pretty answer motion is waived for your failure not to break bring it down there are no cases that say in these exact circumstances but i do want to emphasize that there are two third circuit cases where defendants did not raise exhaustion in the district court and the court held that they were weighed because they were tried to be brought up on appeal and there are numerous other courts that have said that this is just like any other form of defense but they were snobs timely and properly r cases where it was first raised on appeal correct but the fact that you can waive it makes a difference and as the supreme court emphasizing jones worse is bach this court should not and no other court should depart from the usual practice and under the federal rules as they were and so if it were analogous a motion for subject matter jurisdiction then it would have been able to been raised on appeal for the first time right correct i said there are many time for about on this there's no questions good morning may it please the court my name is elizabeth crowder and i represent the police william powell in this appeal there are two primary things going on in this appeal the first obviously is whether or not a rule twelve b motion that says that failure to raise a non enumerated will twelve defense constitutes waiver there isn't it isn't there some prejudice though to a petition or some potential prejudice here in that if you don't raise it right away and you wait until two motions of gone by now you're in the third one in this case has been up to our court before i mean years go by and so then it becomes impossible for the petitioner to exhaust his administrative remedies that seems problematic to me tell me if you would why that shouldn't be a consideration here and i mean i'm not suggesting that your client purposely tried to manipulate things but theoretically that would be something that could be done if i understand your scenario correctly i think the prejudice would fall by the wayside based on the policy behind the grievance process and the timing behind when the grievance process has to take place versus a statute of limitations or some things of that's where  they could still file a lawsuit the grievance process that's of record requires that the grievance be filed within ten days of the date that the instance occurred or knew or the person who ultimately became the plaintiff knew of the circumstances so the timing behind filing the grievance versus when they could file the lawsuit in the princess i misunderstood you in this particular case but that's not necessarily i mean different prisons have different exhaustion procedures and there may be different  steps that have to be taken in those procedures and so you know my question goes to the issue of is it fear radically possible that doing this allowing an exhaustion defense to be raised other than the first time a motion to dismiss is made could prejudice the defend the petitioner and some why i could concede certainly that in theory it could present itself but not in the facts in this case nussle in the first is to give the corrections officials time an opportunity to address the complaints internally i mean is it is it your position that in all these years since this event happened your client had had the time or opportunity to address these complaints this is a person it is our position that this complaint was never raised to our client there was never a grievance filed by what you've been in the same room arguing about both of them so you've known about it for quite some time certainly they were put on notice by the lawsuit that mr brooks filed but they were not given the opportunity behind the scenes to remedy the problem before the lawsuit which was filed which is the purpose of  right but you're now asserting it after it's already been to this court and i mean you've known about it for some years and certainly you've had a time or opportunity to address this but instead choose to assert this exhaustion requirement that it's provided to you to give you time or opportunity to even know about it i mean it seems backwards to me it doesn't i would concede that procedurally this case is an anomaly that it should could have been raised before and it wasn't but our position is and as plaintiff's counsel pointed out underworld under brian versus rich if there is an  remedies one of them is to afford time an opportunity i mean i don't think you're arguing you had the time or opportunity again you've known about this for years in the right certainly they were put on notice by the filing  i mean i mean so what's the complaint filed you're relieved of any obligation to do anything about it i mean is that is that your position it would because that because he didn't  exhaust originally no it just is designed to put them on notice to avoid the expenses of litigation and going through years of ok well that until avoid the expenses of litigation this is your second trip up here because your client has chosen to make three separate motions to dismiss how does that avoid the expense of litigation in this particular case i would concede that it hasn't and that this again i would say is an anomaly this is not the normal kind of scenario the consequences of the decision in this case would have an overarching reach towards prison litigation as a whole and that's our position is that but why would it right if we if we're not saying that you can't ever raise an exhaustion defense we're just saying you have to do it in the first motion to dismiss why isn't that a reasonable requirement since it seems to me to be analogous particularly to the venue requirement and we've said in bryant that you look to see what it's analogous to under rule twelve the first i would i don't believe and our argument is that it's different from venue  the supreme court and this court have both said that failure to exhaust is non whalebone if you take it and you put it into ban you and they've actually said that an exhaustive claims cannot be brought in federal court you can't go forward if you haven't exhausted those claims the suggestion that it's like then use takes it and says if i put it in a different case if i put filed in the wrong if a different court than the outcome would be different but that's not the case here day out the outcome would still be the same whether you filed it in the middle district the southern district california or florida the venue falls out of the way so you say a good failure to exhaust is not an affirmative defense is it your position no no i image i believe joan to be back makes clear that it is an affirmative and affirmative defenses can be way they can be waived if you fail to assert them in a in a response of putting in an answer and this was in fact preserved in the this is an affirmative defense and eight c makes it fairly clear that you can waive affirmative defenses that are not preserved in pleadings i want to i want to talk about the other purpose of requiring prisoners to exhaust and again  administrative the exhaustion process quote filters al frivolous climbs on course that's what you all did you said this is a frivolous climb it gets litigated through two levels of federal  any purpose associated with requiring prisoners to exhaust their administrative room and he's served by you asserting this at this late date can you enlighten me and well again i would say this is procedurally not the best case for this argument however that doesn't change the fact that litigation is an evolving process there may be facts that come to light through the discovery process that were that maybe were not known or  not the parties were not aware of the in which case if you make a finding that the failure to exhaust can never be raised after you do so you were not aware of it that we deem and you were not aware that he had not exhausted his administrative remedies i was not aware i mean obviously i came into this lawsuit late but the office what what i mean my point is i mean if if there are facts in existence about whether or not he asserted his administration or he went through the administrative process of the prison i mean they would be in existence at the time one way or the other right i mean there are no if there knowable today there were no bowl back then right not in all circumstances no i mean but certainly there could be circumstances where you would know and neglect to include it in a rule twelve motion yes that's crowder i'm looking at page one of your brief  case law from the circuit further supports a finding that failure to exhaust cannot be weighed that's the opening page of your argument and the red brick that's what i was confused about are you saying that you don't mean that i'm not saying that i don't mean that no i believe that the way it could be waived if you fail to assert it in a responsive pleading as an affirmative defense ok that's different from what you what you wrote is waged that that strikes me as not right now so i agree with you that it could be but you just can't be waived by the court because what i think you certainly and that is supported in a number of cases from the supreme court and also in  motion under this rule under rule twelve you've got a you've got to assert every defense later i mean you can't come a second time but yes it just really the language of the rule you can't come the second time and assert something that was available to you before a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but was submitted from its earlier can't waive our argument is that as the court district court pointed out that this is most analogous to subject matter or issues talk about that for second right subject matter jurisdiction can't be waived because the court can't decide the merits cannot decide the merits in the absence of subject matter jurisdiction right yes but you would agree that in the absence of exhaustion the court still has jurisdiction to decide the merits if any number of circumstances occurs for example that would be futile or there's a waiver or whatever the case may be would you agree with me yes ok and so the purpose of exhaustion is really i mean it's all part of the same purpose of an economy right we're trying to allow the state to resolve this complaint before it gets to the federal court to save it's purpose of comedy but it's also purposes of litigation expense we're trying to save that judicial economy we're trying to you know improve judicial economy tell me how it improves that purpose of exhaustion for any party to be able to file more than two motions to dismiss one the second motion is something was exhaustion that they could have filed in the first motion because to let the case go further once they become aware that it has in fact not been exhausted would incur additional expenses and additional cost of litigation and go all the way through to the very end of the case why should we make you bring it in the first motion to dismiss i mean you all know at the time the complaint is filed whether you know or not you have the capability of knowing that a complaint has not been exhausted if that's the case why shouldn't you have that responsibility to bring it in the first motion to dismiss why should we be sitting up here after we've already heard this case before on the merits and now for the first time be addressing exhaustion that you all knew about at the time that this case was filed or that you should have known about how does that promote  it arguably doesn't promote judicial economy but the fact that it doesn't promote judicial economy doesn't mean that the rules and allegorize in the rules under brian versus rich to subject matter jurisdiction doesn't remove the opportunity to do it is the point of exhaust defense to promote traditional economy it's not the only is that what purpose it all part of is it to promote additional economy or is it to give state prison officials the opportunity to would address and resolve matters this case very upsetting i mean here's a man that was in the custody of the state of georgia your client he's raped he's beat to acquiring his hospitalisation and the facts of that are set out in judge marcus as opinion from two years ago now september  twenty fifth ting there horrific and not to be an embarrassment to the state of georgia and yet to this day you are you and your office are not talking about that what you're talking know what this panel will rule but i did it just seems to me if you you know the the whole purpose of setting up a system where prisons hear from their prisoners so they can know about problems and correct them if there is a problem you know why not go ahead and look see if they're what the problems were and saw them out address mr concerns all these years later i just i'm baffled but by your offices response to this over and over and over i just i don't i mean  number of complaints by prostate prisoners yes your own that they always tell the truth you know do you i mean do you have any personal knowledge one way or another what happened in the hospital room i will only respond if i may by saying that there is evidence in the record as of today that contradicts at least the duration of time that mr brooks was out at spaulding regional medical center the number of days he was in the hospital correct your honor i find nothing that contradicts the allegations that he was made to lie in his own feces and was taunted by the guards while his allegations are that he was made to lie in his own feces for two and a half days  and that was it two days no your honor he was not in the hospital even for a day and ate it not even for a day not even four fold twenty four hour period no he was according to the evidence in the record he was and it was not provided to a go to the merits of the claim right so i want to be very careful that my response and my response sure it was provided as part of the evidence to support whether or not he actually attempted to give a grievance to his counselor who is lesl medlock and an accompanying affidavit from june bishop in response to a pleading that talks about where he was housed and on that same movement history it indicates that he was out to the hospital overnight you know i also know in reviewing that the testimony of mrs medlock in front of the magistrate judge you know she says i would have accepted a grievance from him about what happened when he wasn't in the prison or when the when that generally her testimony yes of course in your own pleadings you use and the first second motion to dismiss you say weird that would have been the responsibility of the hospital so i mean when when mr brooks of i tried to grieve ms melike told me i couldn't grieve what had happened to me outside the prison i mean there's there's a theme here i mean it shows up in your pleadings even though now all these years later you know she says that's not what happened i believe what the reste responding to are that whether or not his jumpsuit could be lowered so he could use the restroom not whether or not the conduct of mr powell would be something that he could grieve even though he was out at the hospital versus within the prison the conduct of g t c officials can be great believe that's what they were referring to is that it could be agreed to regardless but not but that it would be incumbent upon the medical staff to actually remove his jumpsuit and facilitate him going to use the restroom not on mr they please a court i will make a couple brief points about rule twelve opposing counsel said that this is an unusual case and that there are bad procedural facts and we agree this is exactly the reason why rule twelve should be enforced in this case  faster could you help me with that so i mean the obligation that defendant asserted exhaustion is not an owner's one i would imagine almost every case they assert exhaustion they have the records if they need more time and they can ask the court for more time they even asked the court to defer ruling on it or they can't do is file a motion under rule twelve that says dismiss on the voter's data claim but then not include exhaustion included and if they need those concerns if there's some concern about additional discover said and they can may raise it promptly though under the rules and the answer and then raise a motion soon afterwards because they raced and of defense in an earlier twelve emotion you would say waved yes and that's the same thing we do with personal jurisdiction we do that with venue those are all valid defenses that have purposes but this court and bryant i understand that that part of it is dictated but the plaintiff in that case asked for a jury trial on the issue that exhausted even the dicta anything about waiver right but the point is that the this court told prisoners you cannot have a jury trial on exhaustion because at that  right correct and we're going up by rule twelve procedures and rule twelve says that you if you make a motion under this rule you cannot make another one and there's a very good reason for that the advisory committee explains that they require consolidation of defen objections in a rule twelve motion is tahlia tory and that it works against piecemeal consideration of the case there's been no argument from the state that they didn't know the facts this is the first time i've heard this an argument that there was even any question that they couldn't have argued exhaustion before they have the records i mean that's their own system the affidavit declaration they submitted was immediately submitted once this case was remanded there was no reason for delay if in some other case they have that argument then they can make that they can ask the court to differ a ruling they don't have to file a rule twelve motions they don't want to i suspect again that in virtually every case they do and in fact we know from the record that in cases filed that year against mr powell he asserted failure to exhaust caesar to failure to state a claim so this is not some kind of owner's restriction with the supreme court has instructed as that nothing about the p r a depict requires departure from the normal rules and under the normal rules you can't make multiple motions and the most  similar defense is venue of personal jurisdiction and so those rules should apply and that's there i do have a question actually an on the other issue as i mentioned i read the transcript of the evidence or here never did that i mean you didn't know what was going to happen after the evidentiary hearing did she know and that is the perfect encapsulation of our argument that main violation on the second issue is that the magistrate judge made a post finding of fact but didn't enter a recommended disposition from which we could file objections it went straight from this evidentiary hearing that was supposed to be take place before the district court but instead it was from the magistrate the district court adopted those waiting an opportunity to rebut that which is thought that i think this procedure was irregular and it wasn't followed but it did seem that subject a harmless error analysis and the problem i had with was that when  say i mean over and over he said i don't know what just royal is going to do he can figure out what he wants to do assume you'll do this or maybe i'll do that i mean so you didn't know whether you were going to get written findings to thought about the witness says there was no i'm making a finding you have an opportunity to respond did he say he wasn't going to write any kind of report and recommendation or anything of that nature that would have tipped you off in any way no i mean he didn't say i mean he just said we're going to make these comments and then go from there i mean that's the perfect example of what what if going to page fourteen ninety s i guess it's one twenty two twenty i should also say mr brooks find a reasonably credible would except that it one point in your his testimony that when the defense was he goes on to say only thing i can say is just based on the demeanor that was one of the particular i'll just make one last point about why this makes a huge difference the whole exhaustion dispute is who's telling the truth mr brooks or mr madoff and the district court said i don't have any reason to discredit mismatch box testimony and based on our demeanor the demeanor he never saw and we would love to have filed a brief explaining how miss madden has made inconsistent statements and you know if you were there and saw the look on her face when we asked her did you tell us that your deposition you don't remember any grievance and then at the hearing she says well i do remember one of the grievances that's the kind of