our fisc ace for today is robert williams against wexford health sources thorne says that a prisoner has too exhausted to remedy is available and here why was the standard grievance procedure not available to that i mean to the point so your honor ross was subsequent to this court decision born it was however decided before this court's decision in cobi and in cryo holes and invents vs go where this court determined the standard procedures were not available and i think the determine what procedures a prisoner actually has to follow and what the illinois ministry of code requires here is that a prisoner complete and submit a grievance form which is precisely what mr williams did it didn't include any work harm that he do a completely different argument than the one wexford is making instructions so i think the argument is slightly different for this reason i think in the district core wexler there was a line upon instructions that mr williams received from the warden and here they claim that the and the basis to distinguish thorton versus snyder and five unanimous decision of this court applying an interpreter versus knight or is not the instructions of the warden but instead the instructions of the administrative review board so i do think that that is a very different argument although of course we're not relying upon where you are alone where instead of relying upon two lines of presidential authority from this court we have versus snyder which is the definitive in controlling interpretation of the pre amendment version of the code which tells us there's no requirement to resubmit and then we also have a line of precedent that has been brought together with that those are all unpublished decisions so they're not binding and thorton doesn't squarely i mean ha but it doesn't squarely resolve this issue well i forced the district court was relying only on district court in unpublished decisions to non presidential orders that's right the district court relied on bents versus goes which actually under was not allowed to consider because it was a pretty two thousand and seven unpublished decision but you know although some of these decisions were unpublished i'd say two things st of all i think it was a critical threshold issue important whether in fact the prisoner had to admit that between them nine members of this court have articulated the interpretation of the illustrator code that mr williams is relying upon here counsel there is a split between the rd and th circuits on the question of when an emergency grievance goes on answered whether the prisoner has to employ the standard grievance procedure those cases are even more complex ray or a little bit harder because unlike in this case where mr williams was told no no emergency use the standard in those cases the prisoner has heard nothing and light of that in light of that split you know for us to say that when he was told to use the standard grievance procedure he wasn't just you know there was not just crickets on the other side doesn't that seem kind of a tough position for us to take i don't think so your honor because i think that this court's decisions are very clear that if the requirement exist in the text of the code itself which it didn't at this time it should be clear it has been amended and does now so the court's decision here would have little if any respect but when that requirement is not in the code itself then prison officials whether they are the warden anything to the law on the books and they certainly wouldn't open the floodgates of prisoner litigation because as i mentioned we're talking about the interpretation of the illinois ministry of code that was eliminated and replaced three years ago but i haven't looked at wisconsin and indiana's but it's possible that if we if we accept your argument it's possible that it would have effect you know with for other prisoners suits from other states so i'm not aware of any other grievance procedure within the circuit that would be time after the fact when mr williams years ago reasonably rely upon this court's decisions at the time and believe that the steps that he was taking would fully exhaust his administrative remedies and make it possible for him to pursue a serious i'd also just like to briefly address the sole basis that works for it provides to distinguish all of this court's prior decision to distinguish for example judge eve's decision on a prior to  mr williams my client to distinguish for example judgment days earlier decision and walker versus the hone the only basis that they offer is the fact that the instructions here came from the board and not from the warden however those were the facts of the case and kyle cows versus williams where this court held that there was proper exhaustion and even beyond that if you set aside kyle's website hasn't offered any principal reason why it should make a difference at the instructions came from the warden  administrative code prudence process so so i had a similar thought but maybe from a somewhat different angle than the one that you were briefing critical to the exhaustion regimes is transparency for the prisoner or the prisoner is required to exhaust we all understand that it can be a very salutary process but the prisoner needs to know what the rules are the prisons can't be changing the rules every five minutes and then put the prison prisoner in a gotcha kind of position oh we had this requirement we had that requirement was a practice something else and so i think there is a strong policy reason for it hearing strictly to the written requirements of the of the grievance procedures all say whether it's the emergency procedure whether it's the regular procedure and allowing the prisoner to rely on that instead of having a regime under which the a few little explicit instructions are given in this case not just about how to process this case but to move the person to an entirely different pathway and so that's my concern from a policy point of view with the department's position that you know these little one off instructions can override what is otherwise a clear grievance procedure so to address that concern your honor mr williams counsel in the reply brief stated him today that but there's nothing in the code that allows the administrative review board to request additional information or forces mr williams to go to the question into an entirely different path i think that's a different thing from saying can they ask for additional information right then you shouldn't be on this emergency path at all you should be going through the counselor to the grievance person to the warden to the board well i will point out that so the warden form that the warden filled out but had a check box that said grievance denied pleas resubmit through the normal processes the administrative review board form that they sent back to mr williams stated he didn't actually state that the group was denied it would specifically states is grievances being returned to the prisoner for the following reasons more information is necessary and then it requests two documents for the regular information if you'd gone through the regular process your honor is correct that the documents that there are you would require him to go back to his counselor and agreements officer to obtain those documents why isn't the remedy for the problem that you're facing in this case exactly what illinois did three years ago it realized that this was unclear how the how the emergency procedure interfaced with regular procedure it amended the code this problem will never come up again you know we're like over and done with this is like a one off case and going  forward illinois has now structured in way so the prisoners all know when they file that st emergency grievance and maybe mr williams thought the being blind was an emergency you know it's not the craziest thing i've ever seen but if you've chosen the wrong thing that the road map is now clear thanks to the amendments to the regulations but it wasn't clear before so what i would argue is that the regulations don't need to be around the administration or they just thought it was an emergency in the warden evaluated it in a different way i think mr williams is a perfect case of that he's losing his vision you know for all he knows time is of the essence you know for medical intervention to salvage some of it so as i say i can imagine frivolous cases but i'm not sure this is one of them what i don't think that the two thousand and seventeen amendments solved and what concerns us in this case is that if the court rules that direct instructions are quest for more information from the administrative review board do not have to be responded to by the inmates then an inmate could draft a extremely big or limited information understand your question is it your position that if he had never received an answer saying sorry this isn't an emergency please file your grievances that grievance to the standard process you would say ok when he did exhaust i would say if the administrative review board came back and just said review review board can simply create any additional steps at once for exhaustion and hold those out as additional remedies  to exhaust before he can file suit and i mean you know like what if the administrative review board says we're denying you're a p l l but you may secretly through your congressperson and and ask them to alter the conditions of your confinement and if they're on a bill after twelve months you do so you may file suit i mean let's take it to it odd limit but that's what that's where your argument to me seems to go i don't think we're making that broad of an argument your honor what i what i think we are arguing is that the administrative review board should have the ability to request more information about a prisoner's grievance and i think that under the code they do have that in section five hundred and four fifty see it states that they're allowed to hold hearings and that they're also allowed to review documents at their discretion and so what documents is a little bit that and so this court has provided some mail you ability in the code when it is not it's truly specific and if i can give the saying you know what this was untimely but if you can provide us with more information about why it was on time we may consider it in the that's different from what happened here it is but but your honor what happened after that is is the inmate then instead of following the administrative review boards direct instructions sent that description directly to the director and so even though he tried to follow the guidelines he didn't fall the specific instructions from the administrative review board those instructions are not in capsulated code doesn't say where the prisoner has to send that additional information and so the court found in that case because he didn't follow the specific instructions  different i mean because this was adding if you're right i guess a kind of surprise and so i just want to clarify this is important to me you are saying that you would not be raising the exhaustion defense if notwithstanding recipe like notwithstanding the availability denied his grievance on the merits of his grievance if they reviewed it and said because because emergency grievance it usually can't be reviewed by the administrative review board so they can't determine a procedural issue like that there they were the code only allows them to determine issues on the merits and so if they determine an issue on the merits which is what they were attempting to do by getting more information from the prisoner but that's me you keep saying that that me i guess that's your explanation of judge perry but the thing that's troublesome to me is  they aren't just asking for more information they are spelling out the other past for grievances and until the amendment in the code that wasn't an obligation on a prisoner it may have been a gap but that is clear that they have to file these cruises and i don't think that it's going to expand the authority of the administrative review board to be able to ask for information about grievances in order to properly handle those  ok thank you thank you very much anything further ms hear are like to make three quick points st of all i think what you just heard from my friend was a concession that in fact the standard procedures were not available based on the pre amendment version of the code and that's in fact consistent with a statement in their brief sa however if you look at the district court docket entry thirty one exhibit b where you receipts see the return of grievance form there is in fact a separate check box that though a rb would have used if it was simply looking for additional information about what the grievance meant it did not use that checkbox instead who says use the check box is requesting a response from the counselor the grievance officer and the chief administrative officer which would only exist if in fact mr williams went back to the fold formal process and i think the final point i'd like to make is in response to the argument that we should use the generalized purpose of the course in litigation reform act to somehow override what it is that the illinois ministry owed actually said at the time the supreme court has rejected that mo