to because these things procedures even if it did cover just position of mr less disciplinary proceedings would not be available due to the complexity of the procedure and the severity of mr l you let me ask another question i understand that mr levy was released at the beginning of december over two months ago and yet we just learned about this last night were you aware of his release damages way to the damage to his mental health that occurred from that disposition he was we actually had a trial or hearing on that junction and mr levy was ordered removed from the ala last year unfortunately shortly you know i think it would be helpful to the to be my colleagues as well if you and the state were both to file letters commenting on the effect on your cases  problem with the procedure itself it was used to issue the disposition of some of the issue it's simply that the disposition itself is being as a result that is deleterious and is a violation of the constitution that is why the arises so not having the ability to start a due process claim and having read the grievance procedure and being told that that disposition is agreeable it is simply that mr levy falls into a very narrow cases that as written is not appeal no longer in custody and not on parole or any other form of community supervision that certainly moves the five points appeal the thirty five dollars to appeal on page thirty one dollars of that appendix he in bold font plaintiff does not request monetary damages he makes it creating only clear that it's only a complaint for injunctive relief and so there's no realistic claim that he has continued to have a personal stake in the outcome of that li case but i will further research that and elaborate that on that in our letter brief so unless the court has any further questions about the five points appeal i'll focus instead on the hudson appeal  outcome of the disciplinary proceedings cannot be grieved because a separate administrative appeals process exist to resolve those complaints case law from both this court and new york's the court squarely for close plaintiffs argument and make clear that inmates are proceeding it may be used to challenge the manner in which the sanction is imposed paint one just complaint and i believe mr la pierre just says that he is not complaining about the decision at any particular disciplinary proceeding but rather the manner in properly exhausted by appealing any of those decisions plaintiffs also fail to demonstrate any issues of fast with regard to whether the grievance procedure at issue is quote essentially unknowable plaintiff effectively argues that that if you haven't complained about the conduct of the hearing due process complaint for example that is dealt with through the administrative appeals process and not the grievance procedure you reconcile that position with the broad language of regulation which encompasses and i'm quoting quote any individual decision or disposition resulting from a is lodging a complaint against the manner in which the sanction was imposed he is very clearly raising the conditions of confinement claim and those are claims that are exactly what the grievance process exists to occasions showing that the process was not in fact unknowable or unknown to him finally the question of whether mental illness can or did render administrative remedies unavailable is not properly before the court plaintiffs expressly waived this argument in the five points litigation and failed to preserve it in the hudson litigation unless the court has further questions on the brief and the letter route to be submitted within a week thank but that grievance process was altogether unavailable and it is true that ross overturned the idea of a reasonable are of a mistake being an exception to the exhaustion process but what ross didn't overturn interpreted another way this just exacerbates the fact that mr levy was mentally ill and because he was mentally ill so severely mentally ill he can't be expected to avail herself of something that that a reasonable non mentally ill person would be confused about and the court date says that you think that argument was waived to the five points litigation preserve in the hudson litigation what's your answer to that claim yes your honor we we we don't st of all we haven't found the the defense to have cited to any case law it was a misstatement on the record but it hasn't been we have failed to preserve the argument we've been arguing all along there was a misstatement in front of the district court that i believe the grows out of the confusion over which the sipek case was being referred to because the fact is that at hudson we aren't arguing that he was unable to avail himself of the process we're arguing that edwards condition significantly teary aerated from the time that he was at five point to the time that he got from the time that he was a husband to the time that he got to fight and he was placed in solitary confinement which we have you know the transcription of a statement that was made no your honor not not a missed transcription it was a misstatement from our counsel the the the court asked him if we were saying that he wouldn't have been able to and he believed my understanding your honor is that he believed that he was being asked about the hudson case rather than the very good will that i believe got to conclude your time thank you both for your thank you all for your argument we will reserve decision and we look forward to receiving your letter breaks next week