or could have heard based on the demeanor the tone of voice and the witnesses ability to respond to evidence and questions he could have heard and made it a credibility germination based on that  provided a carbon copy which supposedly is provided to inmates under this new grievance procedures that the defendants offered the grievance procedures offered by the defendants were dated october twenty fourth and november twenty fifth two those are well issue of fact on the record and summary judgment was inappropriate but if we look at the affidavit that the defendants offered from james cox the deputy inspector of the internal affairs department for malaki county if you take a look at that you have been held in this case but like i said previously if mr winston could have offered testimony from pot officers and cellmates and based on that live testimony the district court could have made a credibility determination however that hearing never on resolved in fact this court is in the same spot that the district court was that i think the time he decided summary judgment because this is what unresolved we have nothing in the record to establish whether m seem to be asking us in the papers as a remedy to strike the affirmative defense of failure to exhaust as opposed to sending it back for a p v hearing is that what you're asking for and you have any legal support to do so  what the future may hold in terms of your stiction on this case turning to the merits of the appeal i think one of the fundamental issues is whether at least in this context in the context of this case holding the pay that here it was discretionary i think we argue that a lot the difficulty i have is trying to trying to figure out what what more could mr winston have possibly done i don't think there's anything more that he could have done and i think that was such that miller's point is that sort of inventing new evidence at a no show what more could he has done to show that he exhausted well to start with the record as i mean despite representations from counsel the record is void of any declaration under oath say i did all of these things but if there's not any evidence in that record that he's swearing under oath that this is what i did there's a shortfall and that's where i think this case is closer to whiten or where in judge saddler ruled there's really not a factual record though i mean were the you you all having made a record as to what grievance policies were in place at the time that the grievances were filed sure well again it's our position that no grievances were filed that was our point and filing that now that you still have don't you still have to provide the administrative framework for the context in which you know the grievances would have been received in considered and here you point the cox declaration you know those that are in effect at the time the civil complaint filed but not at the time  remedies and our position is he didn't file the grievances one when he says he did in this bruce if this would have been an issue of arguing whether the grievance was sufficient but we knew ok he filed something at this particular date i filed and they differ in a material way in the inmate compliance to the letter with the old policy your position is that he's failed to exhaust because he hasn't applied to comply with a new one that's not my position or honor and that would be the case declaration doesn't even say that agreements with both you agree with my hypothetical you agreed that the policy in place at the time the hypothetical grievance was filed is what applies no i in this case i believe that multiple different guidance and i think this this case in particular fits closer to wider than it does roberts versus you know if you have any of the other ones summary judgment again in this case had been fully briefed by the time katie was first raised and it was within the discretion of the trial court in that context and in that circumstance to take the issue and address that on the merits without having to hear it because he already had a full record he had everything  inspector within the internal affairs department had worked for decades within the law king county sheriff's department he in the affidavit indicates that the dates of confinement that mr winston was in the marquis county jail and then goes  impact the forms themselves change and it is true that they do not have carbon copies when in the past they didn't but this case is not present as a scenario where mr winston stood up in the district court and said hey wait a minute the policy that applied back in twenty i think that's the new i think that's right and i think it's a credit to the corrections institutions the jails in the prison for keeping track of them and they do have very good computer systems now this has all become digitized where they're able to track them really gets to the standard of people when you know fundamentally what pay the health court knows is that there's not a seventh amendment right to a jury trial on the issue of exhaustion so we know that this matter is ultimately going to be decided by the trial judge an amendment right to it the judge is going to have to make that determination but seventh amendment right to a theory determine the issue does not mean the seventh amendment right to a hearing or to have a judge make appropriate c