ok thank you good morning everyone i'm just testing the audio good morning a lot of can you hear us ok good morning i hear you perfectly and more importantly i see oh if he perfectly good morning a lot of  the waiting room zuma has worked pretty well for us as a court at times just as with conference calls someone may inadvertently speak over another we will  be extra patient will indulge everyone with a little extra time if that's happening but i'm confident all will work out ok here so with that we have six cases for today four of which will be  argued in our st case for argument is number nineteen dash one thousand and ninety five mackintosh versus wexford health sources this powerful whenever you're ready thank you testimony to resolve by rejecting the magistrate judge's credibility findings based on live testimony without himself hearing live testimony the district court in this case effectively denied the parties the hearing that this court's precedent requires this alone is reason enough to reverse but it's not the only error the district court also clearly erred by recognizing two competing possible inferences from the documentary evidence and yet drawing  require an expansion of jaclyn necessarily i think that jackson actually makes the habit and it's holding in a way that could also apply here this court could just simply state as it did in jack and and as the th circuit did in l case in which there are credibility findings necessary that i just report must be live testimony i don't think that it's necessary here although some surrogates have taken it that far that's not the holding that we see today i think there are a lot of parallels between jackson and this case another one is that in jack quinn as here this court had specifically ordered an evidentiary hearing to determine of the issue of credibility between the parties and here this court precedent compelled and other than sherry hearing when there is a dispute between the parties and there as here the magistrate judge found one party more credible than another and the district court reversed on the keepers alone so i'd also like credibility is the key issue here is by matching would have some what would you ask us to hold you you emphasized at the beginning that at the beginning of your comments that you know you have your client has a constitutional right  t issue here these trying to vindicate the constitutional right if you had to just to still to a sentence or to the core of the holding that you're asking us to register post jackson here what would it be  affecting a person's constitutional rights and he went on to say that we do not hold that due process always requires a fact finder to see witnesses were making credibility choices involved in the making a fact of the finding of facts and  to our determination with regard to whether or not hearing should have been helped i do see a reference on page eight of the magistrate's opinion that the defendants were asking the court to find macintoshes version of events not credible but i don't know if it's fair to characterize all of what the district court did as a credibility finding where do you submit we should draw the line as to what's the credibility finding versus  that's coming up from the magistrate judge your honor well a couple of thoughts on that that i think that the documentary evidence that was submitted in this case is all bound up in the credibility inquiry for example mr mackintosh submitted to unsigned grievances which he testified at the hearing were simply bounced back to him and reviewed and signed and which sergeant stripper testified he had never seen and so the parties on that issue as the district of the each party asked them extensive questions and then interpreted that bit of record evidence in light of what he had heard and in light of the credibility of the parties and i think both parties agree that that the key here was the respective credibility of each party at the hearing both discuss the fact that this that come down to an issue of credibility who do you believe and that's so often the case in the view related hearings because prisoners oftentimes don't have access to the administrative records that might be held by a prison there might not be much evidence at all and here we see there's not very much record evidence and what there is is entirely dependent on the stories of the parties so david the magistrate judge's opinion as to the assumption that it adopted from defendant's objections to the report recommendation the st being the length of the investigation and the nd being mr macintosh's state of mind at the time he wrote the gr to do you agree at least at this level that the district court made credibility findings and i agree that the district court reviewed the evidence and determined based on that evidence that up one story was more likely true than another so does that mean that i he would have been too impaired by the medications to have even written the grievances at the time of the original incident i pills he had to make in another words is there any evidence in this in the in the record of her example of exactly like to take in how they were likely  in this situation this is a total he said he said and the only way to resolve this is through a hearing where the witness testimony is taken incredibility findings are made and there's there's nothing that precludes the district court as a matter of law from making a contrary finding but i think what this power is saying on behalf of mr mackintosh is that he can't do that on paper alone why isn't why isn't that correct this is this just seems to me i mean if we sat down with a blank piece of paper and tried to hypothesize a he said he argument on the issue of whether the nd he hearing was required and the issue of whether it be district court got a properly excluded from evidence hearsay statements by two inmates at the st clair county jail as to the regardless help us out with that sequence and if you could fold into your answer do you know whether there was any discussion as to whether or not there would be an evidentiary hearing before judge gilbert exactly judge gilbert's order was predated other than the fact that the initial pay the hearing was scheduled in june of that year and due to technical difficulties it did have to be continued to august before the magistrate judge or the district judge to clarify the alleged did discrepancy on the record because you're holding it up this evidence  really i don't believe any party had had sought clarification on that particular timing of the entry then how can you hold this up as evidence that the magistrate judge may not have been relying on actual testimony chris findings and conclusion inferences based on the record before it jackson arguments if it's alright with this court so st i would like to say that counsel opposite relies heavily on the clear error standard to defend the district court's conclusions in this case but this court has explained that the hearing findings of fact incredibility argue for clear error but the exhaustion determination is otherwise a summary judgment question and as the district court in this case properly recognized it was required to reasonable inferences in mr mackintoshes favor i just wanted to specifically point out that when it came to the two grievances the district court itself after articulating the crack standard explicitly recognized that there were two plausible inferences to be  quickly on the point of the defendants only evidence for the reason that mr mackintosh was unable or should have been unable to draft grievances is his own complaint statement that he couldn't think straight and i think your honor that in this case it's complete speculation to base an entire summary judgment finding well halfway on this on this statement because there's absolutely no evidence as to what mr mackintosh meant by this and in fact directly following the statement in his complaint he goes on to talk about the fact that he was contemplating suicide and took an active step for the st time in his life and so i would submit that there is no evidence that this meant that he wasn't an able to formulate a grievance but rather that he was contemplating suicide as to the jackson issues  so i believe one of your honors asked about whether the magistrate judges finding was indeed if the magistrate judges finding was indeed an adverse credibility finding and i'd just like to point this court again  circuit's decision in lewis because the court there also began its opinion by evaluating whether there was in fact a credibility finding an issue the losing party in that case had suggested that because the magistrate judge didn't explicitly state that he found the losing party incredible that there wasn't a credibility finding in that case and what that court said was that by crediting one party's version of events the judge of necessity discredited the other party's diametrically opposed version of events such that the testimony or such that the findings that were based on live testimony were absolutely credibility findings in that case and the same is true here the magistrate judge did not explicitly state that sergeant's trooper story was incredible but by finding mackintoshes a vastly different version of events credible and rejecting the invitation to find him incredible the dish or the magistrate judge of necessity found one party more credible than another your would also say that we have absolutely no quarrel with the federal magistrates act i just record is of course absolutely entitled to adopt reject or accept a magistrate judge's findings however we only submit that in a case such this the district court can only do so after hearing live testimony in the event where this court has held that a district court must make a decision based on live testimony or only by hearing the testimony himself does he have an adequate basis on which to do so and finally as to the affidavits we would say that while they serve to bolster mr mackintoshes credibility there in no way necessary to the actual exhaustion finding this court has plenty of precedent stating that once an inmate has attempted to exhaust he need not continue futilely except attempting to do so and we submit that that would be the case these affidavits went to the longevity of the