just a minute tell the courtroom ale has been litigating this case pro se or about five years now and the district court ultimately dismissed her section nine hundred eighty three claims on only one ground the phillies breathed a number of other issues before the district court but the district court ultimately did not decide on any of those issues so unless the poor prefers otherwise i'll start my argument by just addressing the exhaustion of administrative remedies issue as your honour's know the first step of the grievance process requires office of the georgia department of corrections i believe that the only issue that remains in this appeal is whether ms hines completed the second step because ultimately albeit in many filings before the district court she did present evidence as to the first and third steps and so the district court ultimately decided that because she had not presented evidence as to that second step her claims against all of the defendants must be dismissed i thought there was some underlying dispute about which the grievance process that would have been in place was the two step process that was in place as of december of two thousand and twelve i think it subsequently became clearer there mistimed she filed her first inform agreements in august of two thousand twelve and because of that particular date three step procedure would have been in place at that time and i believe that the parties all agree that it's a three step process that applies in this instance so just to briefly review the evidence that miss miss hines presented to the first she has consistently said that in august of two thousand and twelve she filed a grievance at the counselor level that the documentary twenty three page five and she repeats that on document just twenty three page two and then ultimately she presented a copy of the informal agreement agreements docket injury forty four dash one at one and you can see very clearly from there from that grievance which is signed by her counselor frederick johnson and it's dated august eighth two thousand and twelve and then after the third step she presented a document that's the grievance appeal and it's dated october sixth two thousand and twelve and that's a documentary forty four dash one at two i understand this in this  nazir has raised some i guess authenticity concerns us to that document he says that because it doesn't have a grievance number in the upper right hand corner that somehow means that it's not an authentic document or that she never submitted it to the prison system our position not have a receipt which it would have had if she had presented it to the prison officials like ray like the council of grievance did her a receipt i understand your honor and she writes on the back of that document where she essentially says that the only way you're able to get this form is by getting it from the counselor i got this document from the counselor and there is no other way for me to have it but for the fact that my counselor gave it to me and i think turner the burnside so supports that position or it says that grievance appeal forms on lee come from either a grievance counselor or the grievance coordinator and that's on page ten eighty one of the court's decision and so our position but fifty five it explicitly says or finds rather that messiahs has presented evidence as to the first in as to the third but i'm finding that she has not presented similarly a copy of the in the formal grievance and therefore she e so i'm referring to documentary fifty five at but and she said the same sorry the judge says that therefore the court finds there is no evidence she filed a formal grievance and it refers earlier in the opinions  to having presented it formal evidence as tune the receipt in the appeal and so basically the district court's making the pit comparison there between the evidence that she's presented as just as one in three and the comparative lack of evidence as to step t the district court first says that mr hines made the allegation that she filed the form grievance and that her counsel made the copy for her and everything else that she made that allegation for the first time in her second objections to the are now are and i think that if you're going to also suspicious because had she really done all of that she would have said all that to begin with i would suggest that she did say all of that to begin with your honor i think if you turn to her amended complaint and this is a page three she says repeatedly that i went through the process in august of two thousand swore in september of two thousand and she does not use the specific words i filed a formal breedings in september of two thousand and twelve but that's what that september two thousand and twelve date refers to and she says that she mentions that date twice on page three of her amended complaint and so i think if you look at the documents she did produce which is the informal grievance dated august two thousand and twelve she provide it to the court i think this times i think the record in this case demonstrates that she made every effort possible to provide the copies that she had to the court of beaded six on time but she did provide those  ok she did not alternately present a copy of of that in the formal grievance i'm sorry the formal grievance and our position would simply be that under the turner analysis and step two turner very clearly says it's the defendant's burden to resent evidence of its affirmative defense of failure to exhaust and here in this case we've gone through each of the five pieces of evidence that the at healy's or the defendants have relied on in each of those pieces of evidence is flawed in some way and so essentially there is no competent evidence being offered by the defendants as to failure to exhausted that particular step and in light of the fact that they have not presented any competent evidence it was clear that the district court to essentially shift the defendant's burden onto ms hines yes she made the allegation that she had copies and she ultimately did not present those copies but unless the defendants come forward with some proof of their own that she did not complete that particular step i would suggest of the burden is not on her to come forward those copies it's sufficient that she's made the allegation in her amended complaint repeatedly and then she says it more specifically and her in her objection to the are no are that this is when i completed the formal step on this particular day and so i knowledge that in some ways the dish records ruling in this particular paragraph it's somewhat subtle but i think it's very clear that by saying there you say you have copies but you have not provided any copies for for me their farm finding as a matter of law that you did not complete the step i think very clearly inherent in there is that he the district court is saying the evidence your burden is your is and simply not the case under the turner analysis and lack of the defendant's ability to present any evidence of their own with respect to the notation in one of the grievances i think it might have been one of the informal ones the notation by one of the counsellors quote you cannot grieve this poor as soapy and quote yes that applies to the claims against g c h j nichols yes because we've said it several cases in our brief stand for the proposition there defendant or prospective defendant in this case doesn't need to be specifically named in the greens or in the complaint in order for them to be essentially swept within the allegations that have been made by the prisoner and so in this instance ms hines was very clearly complaining about her health issues and complaining about doctors there for very long time and she ultimately says i would suggest in part because of the representations made to her by nurse rogers in that in that quote  just referred to that there is a certain confusion about what can and cannot be greed and so if mitt nurse rogers is telling her you can't read medical which is clearly not true and not what the law requires there is no reason why ms hi should have known that she could also include dr nazir's employer within the grievance that she was clearly making about her health care that issue about availability of grievance process the case law  clear that that is a problem for the defense only if it actually deters and it seems to me that her testimony was so clear that she would not her has to be viewed in the context of the warden's misrepresentations that she was investigating this time as agreements when impaction wasn't and so essentially between nurse roger is saying you can't grieve this issue and the warden saying i'm investigating but i'm not investigating the deaths and really creates confusion about what the grievance process requires that a formal grievance was required and there is absolutely no evidence that one exists just that you had the burden of proving not exhaustion right it is our burden as an affirmative defense your honor and the district court specifically took that into account on page five of its order or you cited you cited the wrong grievance policy there are no that was correct that was because of the confusion in the complaint filed by the person in may which made allegation i'm not i'm not placing any blame or the reason why but you cited the wrong grievance policy correct and then you failed to present any evidence about that missing step in the grievance process right your honor there is no evidence it's impossible no that is no hold on all you need is an affidavit from someone at the prison saying i reviewed all of the prison logs and all of the grievance records and ms hines did not follow step two of the grievance process that's a very simple thing to do it's done all the time absolutely right it wasn't done here it couldn't have because it wasn't raised until after the magistrate's report and recommendation one for the first time document showing what the proper grievance procedure would be based on those timing of their filing first wrote back to your burden and you're not meeting it you cite the wrong standard then once the once the right standard is brought up by somebody then you need to realize that now you need evidence to satisfy your burden on the correct standard and know whether it is for is presented on step two isn't that a problem it's not a problem because it was duly noted by the court and has been well established by law the district court itself cited porter vs site lawyer as well as malik vs pollard and as long well established in the court system and they were it took judicial notice in order to use this as part of the fact official notice of what of what the appropriate standard for the time frame was when i was in paris i am taking that as a given that one someone brings up with the appropriate grievance procedure is that becomes the governing procedure now i'm talking about the evidence you need to sustain your burden on the right grievance procedure and the it was evidence that you submitted on step two the difference between the two procedures your honor is that an informal what was required previously and then it wasn't later bo procedures require a formal we do have an affidavit by the deputy warden of care and treatment that says there was no formal grievance we did submit into evidence the grievance history which showed there was no formal grievance so the we did  appropriate information and the court took judicial notice once it came to the attention which jeopardized everyone by the late filing after the report and recommendation by the magistrate court showing a different time frame what do you mean jeopardized everybody your honor the information providing the dates was not submit it most of the information is case not occur until first or second objection to the magistrate's recommendation report it wasn't submitted to the magistrate court whatsoever when it came out of who came up with the three step procedure first there was no knowledge or information in the original complaint alluding timeframe who came up with the three step might be there michelle hirsch at the attorney general's office was handling this from a deputy warden treatment submitted that there was a two step procedure based on the allegations in the complaint which was all we had notice of when it came up the district court properly to notice that the appropriate but if you need to answer my question yes hard as it may be for your case who came up with the three step procedure first who created it your honor no who noticed it in this case and said oh it's not a three step defendant dr nazir brought it up and there were brief in response on how the process went and explain why you didn't present affirmative governments but part of that blame has to be at the side of your client for not bringing up the proper procedure to begin with is that not correct your hon it reasonably infer that the december two thousand and twelve grievance policy was in fact based on the allegations in the original complaint that was never raised as an issue until after the magistrate's report recommendation when new documents were filed at that point then the defendant noted to the court that in fact it appears the other policy applied however the affidavit stood in terms of discussing that there was no formal grievance and both procedures require a formal grievance bo parties in this case have stipulated the only issue is whether or not a formal grievance was filed everything else has been resolved by the district court the only thing before this court is whether or not it was clearly erroneous and its fact finding under turner v burnside for the court to decide that there was no evidence of the grievance but the main basis for the district court's finding was in fact the inconsistency used by ms hines herself and that she was inconsistent  stating she filed a grievance with the counselor and that she had also filed an anti litum letter but she never made any reference whatsoever at any point in time to the fact that she had filed a formal grievance she was very clear and many many many filings of the process she underwent and yet she also stated that she kept copies of every document she refused for a very long time to provide them she provided them after the magistrate's recommendation and report and at that point in time it was clear there was no copy there certainly was a question regarding the appeal documents census had no grievance number and only had ms hines handwriting however based on the burton the district court noted that it would construe that in the favor of miss hines find that she exhausted the informal and the appeal process but that they are based on her own in consistencies there was a credibility determination by the court and the supreme court has advised that on a review of clear error if the evidence is plausible in light of the record in its entirety that this court cannot reverse even if it would have viewed the evidence differently and where there are two permissible views of the evidence the district court's choice of one cannot be clearly airness in light of the evidence that was before the court at this time there were there was an affidavit at the warden of care and treatment that stated there was no record of a formal grievance by ms hines there was a grievance history showing that she had six other grievances during the time she was incarcerated was familiar with the process and that in fact there was an appeal document that didn't reflect a grievance number and only contained her writing but ultimately at the end of the day this appeal comes down to a district court's fact finding the sherman nation under the second prong of turner and its assessment of the credibility of ms hines under the issue of exhaustion which is a matter of abatement and that court found that it did not find her mere statements credible in terms of the formal griev the parties are in agreement that that is required and that we are here before you want to clearly earn a standard i'd like to see my remaining time to my co counsel who is a couple of different issues to address in regard to his clients if you have no further questions good morning your honors me please the court my name is paul and i felt i represent dr nichols and georgia correctional health care i'm going to refer to them as g c ac hines did not exhaust any claim related to any of her medical treatment therefore even if hines exhausted her claims against doctor knows or she certainly did not exhaust as to dr nichols or g c s e as a district court noted it's not whether hines filed the formal grievances to her medical even though a grievance is not required to identify a prison official by name it does require an inmate to set forth anough facts to pervade provide the institution with notice of a problem such that they have an opportunity to address it internally none of the green grievance forms submitted by hines mention anything concerning doctoring azores qualifications or that the doctor should not be employed at the prison did not mention any improper hiring of un qualified medical professionals at most alleged grievance forms relate to the medical treatment at a provided by a doctor in azhar exhaustion is mandatory the prison litigation for act would be rendered meaningless if a deliberate really indifferent hiring decision claiming it claim is allowed to go forward without exhausting the district court exam and two additional pieces of evidence when determining exhaustion for g c a c in dr nichols what do you what do you make if anything of the statement by nurse rogers on that slip to mrs heinz that quote you cannot grieve this per and so p end quote yes your honor first that does go to the treatment doctor knows are provided not not his qualifications not deliberately indifferent hiring just a decision hines did not raise that at the district court and therefore that's wa but even in fact sheet she argued the opposite she she she is she's admitted miss rogers told me i could not grieve but i did that's a document twenty three has been been another pleading she admits that whether that was sufficient or not her testimony was that yes you filed an informal grievance even after nurse rogers told her that matter of her care could not be grieved yes your hon actually she just did she found grievance she did like the first one was that's what i'm trying to get straight in my head is the chronology after nurse rogers gave her that slip of paper with that comment yes she then files the informal or according to her files the formal all five days later she filed the informal then  obviously did not follow the formal and then of a right that was my understanding that yes after she gets that slip of paper from reese rogers then the informal one that gets filed that's correct and that she said yes and that's and that part is undisputed that is correct and that's when she started the grievance process so it did not prevent her at all any misstatements did not prevent her at all now the second piece of information the document that the district court reviewed was a purported settlement a letter hein filed it purports to acknowledge that heinze filed a formal grievance and offers tines to two hundred fifty thousand dollars to settle her claims this was purportedly written by the health services administrator at the prison i submitted an affidavit from from that individual who said that's a forgery the district court first noted that the settlement letter does not relate to any claim against dr nichols or d c ac for i deliberately indifferent hiring decision so it has no bearing second the magistrate court determined that it was not credible it was a forgery and it and this determination was not modified by the district court and in fact the just record book pointed out another reason to question its authenticity at age six no said she never mentioned the settlement letter when the court was originally considering an exhaustion as to doctors are the district court found that the settlement letter was not genuine this is another reason to question the quote ability of hans and the authenticity of the documents she submitted  should be noted i filed the motion to for sanctions that hasn't been ruled on but the only permissible sanction for an inmate following a forged document federal court is dismissal of the entire action thank you your hon essentially she says right there that my issues with darkness there predate february two everywhere two thousand and twelve dr nazir in this case apparently for reasons that are unclear to me understood that the symptoms  signs was complaining about started sometime in two thousand and thirteen she's clearly referencing a february two thousand day which means that dr nazir was on notice at the time he filed his motion to dismiss that it should have been the three step process and not t step process he chose to attach the wrong standard operating procedure and essentially to present evidence in this case as to that standard operating procedure that was a little out of because the evidence that was presented goes back to two thousand and eleven that's correct so that it it obviously refers to the prison history all of the grievances she filed and goes all the way back to january of two thousand and eleven exactly so the evidence is the same and we learned later doesn't matter who helped us learn but the coach learn later that the three step process operated instead of a two step process but the evidence is the same not we're standing it seems to me i think that's correct your honor but i bring it up simply because dr nazir has now tried to make the argument that there was somehow some jeopardy here because they were somehow misled by the allegations messiahs complaint i think that's incorrect it may be that they misunderstood ms hines is complaining that doesn't mean that she somehow misled them as to the time period thank you and so just to briefly address what evidence they've presented in this case it's only five pieces of evidence it's a standard operating procedure which wasn't in effect at the time and it's a grievance history that clearly does not reflect the in form agreements that my sense to somehow represent that document as off the word stative when shown to be demonstrably false by the evidence ms hines has presented but the district co is not required to completely disregard the obviously not complete because there was this informal grievance out of the other system apparently that complements the formal system and then there was a counselor level particular to say ok we now have her evidence what other evidence do we need to get in order to combat her evidence and i think that's very simple you go and get an affidavit from her counselor you didn't affidavit from the grievance coordinator you get an affidavit from the warden they didn't do any of those things in this case instead they just referred back to the evidence that the district court had already considered and which is known to me today it's the same to me there's overwhelming evidence to satisfy the  grievance fall and she filed it and then he made a copy for it and then she testified she keeps all of her copies and then she was i asked for that and did not produce it she produced other documents but then there were suspicious circumstances about the appeal anyway the lack of the number and the lack of the receipt which should have been if she had submitted it to the pr officials and then there's the settlement letter that the district court found was not genuine and raise suspicions about ms as our hands so it seems to me step is sufficient in light of the fact that they have not presented any competent evidence to the contrary so that would be my first response i think to just and on the settlement letter that you mention you know the district court did make findings in its order that there are certain things about this that are not credible the district court also said in that very same order that nurse rodger is not credible he says that twice and the reason for that is that miss nurse writers had previously submitted the declaration saying that my client only one complaint it was about a co pay it had nothing to do with the allegations claes and we know that that's not true and so to the extent there are very clearly making the argument that ms hines not credible one of the witnesses that they relied on also has been found by the district courts not be credible and to briefly remark on the motion for sanctions issue that motion was completely breathed at the time of the district court issued its second motion to dismiss order and so had the district court wanted to take up that issue and as a sanction dismiss miss hines as complaints on that grounds he could have done that he chose not to and that goes to the lack of credibility of us rogers anderson thank you your honor the birth power