alternative remedies and that congress has actions did not support the creation of a new givens claim however to just require erred on both counts the supreme court now bossie emphasized the central importance of distinguishing ordinary challenges to quote standard law enforcement operations and individual instances of law enforcement overreach like we have in one roasters case the issue here is whether a begins remedy is available for the rare prisoner who has suffered a sustained every time a prisoner wish subjected to internal punishment they would claim that it was our retaliation for this that or the other  retaliation it's simply not there very definitely but we were arguing that it's the definition of the cases where the administrative grievance system is the problem here there was no other recourse for in his attempts to remedy the abuse he sought to file a grievance as he is entitled he tried to follow the proper channels but instead was just so subjected to a vicious cycle of abuse every time he would try to remedy the abuse that that in turn triggered additional abuse it's a rare side of facts we it doesn't happen often in that circuit our briefs have some statistics on there that these person are tell you some cases don't come very often and even if it is retaliation occurred he's tried different avenues and injunctive relief is also unavailable here because the prison fischel is argue two very contradictory things first that courts should not be in the business of running prisons with which we all agree and second that because one roster has a purported and jumped remedy he does not have he should not have damages here but that's contradictory because if the court were to grant an injunction here it would require the court to develop a policy monitor on ongoing basis have their hands in the ground what's your best case for that so we have a case in this is central district of california it's called gera and in the we had submitted on the  retaliating against him for filing petitions of grievances and then the court found that he did not have injunctive remedy there and we are similar to that case in that injunctive remedies are appropriate here we are even in the same prison and it would be a contradictory avenue to combat the purported it just wouldn't make sense here we damages in our one finite circumstance where we would just determine what when rush rose of god and pursue it in a way of paying him for what he has suffered it wouldn't make sense to do an engine injunction here congress has passed legislation in th number of frivolous lawsuits a prisoner could bring they affirmatively by affirmatively controlling prisoners use not method it preserves the availability of defense bevins was available before the p l o was and acted so congress did have the opportunity to eliminate or narrow bivins remedies and effectively it preserved prisoners opportunity to collect events in an appropriate case the supreme court in jones vbac explicitly stated quote what this country needs congress cited is fewer and better prisoner suits and evaluate leymah retaliation under the first amendment at this low level is a better valid claim and this is exactly what congress first serves the opportunity to collect damages for so in our case there is no other meaningful remedy congress has spoken as to preserving the availability of bivins so nature of the defendant's conduct does mean the requirements of the first prompt for example the head of the education department told been rushed that quote a hard directed her to preclude him from using the typewriter and quote because of a grievance and lawsuit that when russia had similarly another correctional officer told then rush show he was quote being targeted for filing grievances against high level staff and finally lieutenant gregory confirmed to personally that his treatment was quote part of the reprisals for filing grievances now excess of the second prong of rule twenty eight two or the common question of law or fact that in this particular case as one of the conduct at hand qualifies as first amendment retaliation and that in korea revolves court that the central focus of the policy decision is on the separation of powers with bosie says is that the question is who should decide whether to provide for damages remedy and the answer most often will be congress and that the grievance process of the bureau of prisons was an adequate alternative remedy that's the holding of the court i think that applies here now the court in that case did not reach the issue that's posed here which is whether  claim first and then retaliation because in that case the prisoner did not adequately plead it but it's really only a short step to get there in fact you can make the argument that there are better reasons to to prevent prisoners from bringing first and then retaliation claims than there are to prove to prevent them from being first amendment access to court claims because the way we things work in prison is prison is a lousy life you go there you have no privacy what's however  officials are constantly telling you where you have to be what you have to do they're searching you they're treating you nobody in real life would want to be treated that way and you have a grievance system say five prisoners file grievances and after basically everything is in retaliation for the filing of the grievance and that's a problem and every if you allow the bivins remedy to be extended to tell you claimed you can that everything that happens in prison is going to be in retaliation for the grievance they filed a couple e blocking of the phone numbers and the typewriter and the search with the search of his cell and the strip search which he did not exhaust the first two exhausted he took them remember the greenness process not just at the at the institutional level it's not just first thing you have to do is you try to resolve it informally the second thing is you go to the warden the third thing is you go to the regional director who has nothing to do with the inside of his supervisory over the institution but he's not at the institution and the fourth thing the final thing you have to do just in order to exhaust before you can bring a lawsuit as you go to the central office he did that with both of those two claims so he axes sized this now the fact that he was not successful that doesn't mean that those were not adequate remedies as the vega decision says the fact that  you're altered the remedy is not successful may just mean you don't have a very good case now paraphrasing that but it does say that in the decision you made you might just not have a very good case and i think that's what happened here so he did exercise his right to use the grievance process so he was given several opportunities he was explain it was explained to him what was wrong with his complaints and he did not fix the complaints so i think it seems fairly clearly within the district court's discretion  i'd like to address three points by opposing counsel first and foremost there is no issue of floodgates and widespread litigation in this case as discussed in our briefing first minute ivins cases comprise a very small subset of prisoner cases litigation if federal of officers are continuously committing constitutional violations and if that is the case that is exactly what business is designed to deter and so we need it more than ever if that is what's happening all the time and the same applies here because we will only have wrought widespread litigation if there are prisoners who are suffering a sustained course of abuse triggered by their attempts to remedy the abuse through the administrative grievance process if this is really the case business is not only appropriate it is necessary and we need it here second the administrative grievance process itself in no way qualifies as a remedy something can hardly qualify as a remedy when there are further constitutional violations that occur as a result here his use of the grievance process triggered further more retaliatory measures infringing on his first amendment rights this court has held multiple times that in writing is required only to exhaust available remedies and when officials have forwarded the inmates ability from taking advantage of the grievance process that remedies in fact unavailable and that is precisely what happened here we have a malfunction of the prison givens process where every time we use with the proper channels and his claims one higher up which he did he went through all the channels he was punished more as a result of it third first and foremost yes we do have a an abuse of discretion standard here but the legal conclusions underlying that the solution may be reviewed to novo and this is for jointer though the legal conclusion here is the decision on jointer that these officials were improperly joined held by this court and that that standard comes from th to but moreover this case can easily be resolved in summary judgment everything that when russia claims happened will have a record of it if there is a hearing on the torn mattress there's a record of it if you file a grievance there's a record of it if he really was put into solitary confinement for however long a time and the reasons for that he was there's going to be a record of it simply for document production the only remaining question before the court will be a calculation of the damages and that will be all that has to be