exhaustion claim specifically with regard to retaliate and there's also one of the lability issues there under this circuit has said that when a plaintive credibly fears retaliation for filing agreements  that a decision that the judge would make or is that a fact issue i believe he is a legal issue to be cited by the court and and so there's a subjective and an objective component to to the right all the grievance about this however we do know that after he was transferred the st time that's when there was a two month delay between when the decision was written for his  e response and when he actually received the grievance so it's very likely that his st transfer actually prevented him from pursuing his grievances as well as took him away from the treatment that he was receiving at temple university and the doctors that were treating him there so although he's not acquired to plead any facts around exhaustion it's an affirmative defense that depends to prove he has alleged facts that would suggest that a reasonable person may have both fear of retaliation and that retaliation was a serious issue for him in the transfer see a seems to me that those what you just resign it really goes to the exhaustion of of the other crimes i'm not that he was transferred once and that that transfer did make it very likely prevented him from pursuing his grievances pursuing his st amendment rights shows us that he very well may have feared just like in this case there was a back dated prevents decision that was dated for one day didn't get to the plaintiff for another two weeks or so and this court and availability issue there under robinson and so this court f even more clearly unavailable remedy than the grievances in robinson that had been responded to very late it was impossible literally impossible for mr shiflett to continue to the focus should be on if you will the nd stage of appeals oh yes because all four of the grievances were her who raised the valid issues and because the president either responded too late or didn't respond all four of them were unavailable  don't know that i can speak for the other defendants but i mean i believe that because dr goh starkey did properly that it did bring it up argument that if anything the court should find that because the other did and did not well how do you get past the fact that pardon me that there was no response are three and four you know whether there's an overlap and i but never concede that there is an i think that there are a lot is that in the circuit it's clear that the war the circuit is clear the grievance procedures have to be followed that's clear so my question is very specific follow up and inquire about the status is a factor that should be considered on and i think that the duplicate of nature of the agreement should also be considered he still had access to the agreements process i mean  it if you say oh it was about the surgery but clearly substantively you'd agree that each of the four of them i mean they're obviously separate separate time they're they're different in exactly what they're complaining about you would agree with that no there are some differences slight differences and i mean yes i think overall that they are very similar  later a month later so that it would not affect the p r i in the sense that if he had what do you understand that to me that if he had a p r but by within fifteen working  honor i think the grievance process can be exacting and it can be difficult but it does have to be followed by a book by everybody yes in addition to he did inquire you know what are you doing but he ends up having to file a complaint here and as it turns out in the in the district court only your client brought up the exhaustion issue even at all and yet the court somehow ruled for others well better to exhaust us to that but it looks like under the supreme court are available how could he fail to exhaust their own i think that the key part of robinson is not only that it was that that quote a prisoner's administrative remedies are deemed exhausted when a valid grievance has been filed and the state's time for responding there to has expired close quote should we not make that plain there's no other there's no circuit that goes the other way matter therefore the issue court's decision should be affirmed for three reasons firstly a pelleas the christians of pelleas are not deliberately indifferent to the appellants serious medical need as the complain illustrates three paragraphs rather detailed complaint shows bianco per quarter providing care to the patient to x rays reviewing those x rays c t scans being ordered pursuing outside treatment for the patient the principle holding is with regard to exhaustion and essentially any discussion of substantive issues is i would say advisory but clearly so you jumped right to the substance how can we do that it would appear that the st thing you'd have to address is it just exhaustion let's assume that you were correct in whatever you propose based on your papers i would say it's please affirm on exhaustion then we would get to the substance so rather than get to the substance was the deliberate indifference which of course is not the question that we get to even if we address exhaustion with regard to your client's not specifically pled so that's kind of strike laws we can go through with the tell me some other case you're going to wow me that's that's published no there's not going to be a while in case the but the judge in that case indicated in might of the futility of continuing litigation of a case that this court has determined it is barred from hearing  response but the defendants here that there are remedies are unavailable ready and there's nothing further that persons like shiflet need to do the same thing for claims three and four complaints report three and four a present would you know whether there was it was bugs i know whether there is outside the record absolutely but within the record as he has he's played it i do not know my trying to play semantics or anything not however but that's the way that the complaint reads it is as if he attaches it but there is no indication of the response was provided he doesn't indicate one way or the other in his complaint he says that i he sta and persons that he's complaining about that are also separate in time they're not all and they that and they all are not complaining about the same thing  pain in one you know failure to medicate at a particular level in another i mean we can't clump them all together i mean if we put them up and say it's all about the surgery it would get to that right because procedural matter the case can't go forward that whatever as to the substantive claims the holding right i agree with ok so then anything that the district court said and the subset of claims is not a holding so there's nothing for us to either affirm reverse or can understand i totally when i did i thought we were talking about the law that's the law i agree with that i think in this instance the court was trying to double down to really show the futility of this complaint and that's the position greater for due to a separation that's in the complaint so it's clearly not an adverse action as a result of a constitutional protected conduct because he's saying i can't go back to greater for i was transferred because of the separation so i think that it would be if if if if there is consideration of appointment of kilts all that may weigh that may well change but we do have to start with the ruling that the district court made and appeal that was going to be my st argument your honor but i think that the court is very concerned about exhaustion and i want to address that concern top of mind i absolutely do believe that dr morgan was not properly served with notice of appeal his name was affirmatively taken out of the caption that his name was in the complaint but it was not in the notice of appeal and neither was the motion to dismiss dr mogen and neither was his name of the facts i believe that plaintiff's counsel has sort of tortured pleading to try and make it sound as though dr morgan refused to treat the plaintiffs that's not at all what happened and that's not what he thirty eight read at the top of yes yes thank you so sure and plaintiff would ultimately need surgery that that's an examination that's an analysis that's a judgment a professional judgment that is prescriptions to prescriptions that's called treatment that's not called deliberate indifference what the only thing that is at stake here really is that dr martin refused to give his legal opinion as to other defendants in this case that's very clear here dr morgan explained to plaintiff that if anything legal occurred mulligan would become an expert witness and plaintive could not afford him climb it he he wanted to treat the plaintiff he did not want to be say this is that case sure but that's not this case refusing to express an expert opinion while you have rendered treatment to the guy it's just not medical treatment it's a whole different thing its refusal to be an expert for the m who's one of the moving right so your position now on exhaustion isn't isn't relevant is it because if the district court ruled in your client state or you know we work on exhaustion and that's the primary issue that we have to deal with the fact that substantively your client may have a a very good article on the substance of the difference between something that we have at least in the st instance put aside i understand your question your honor i think the reason that the court the district court went to the trouble of explaining its thinking on the substance was possibly and at my client entirely or at least certainly and i think that can't be ignored that was part of the district court that the court's holding as to failure to exhaust or whatever it had say about exhaustion is not all that relevant to doctor mulligan because and i think that's why judge king on a scale of us the benefit of her thinking on the issue on the very substance having gone to that trouble i think the court can affirm i think that the exhaustion is she was not an obstacle with respect to dr mulligan and the court can simply file i think the district court offered it i think you can affirm tha context of the defendants that didn't plea our didn't plead as an affirmative defense lawyer to exhaust their briefs that the court kind of family places on the record and our position is that upon review of the complaint time if we set that aside you see some deficiencies here but there was a full closure of amendment because of the perception of exhaustion so why if you assume for a moment a exhaustion analysis and certainly i would say that would be with respect to get for tally ation claims starting with that with perspective dr rome she's not a corrections defendant she had absolutely nothing to do with the decision with respect to whether to transfer or not and had no involvement prison within the prison system she was outside the scope of that process that decision making process she had nothing to do with it putting aside what i think is the waiver of the issue for failing to brief it with respect to dr romeo opening brief we also just have the issue and with respect to deliberate indifference the issue here seems to turn on according to the complaint dr rahm's decision not to move the left bottom wisdom tooth and placing two plates to repair of a broken upon visiting dr graham and a follow up visit he asked for additional pain medication but if you look at the grievances that were filed and attach to the complaint and part of the record it's clear that during that same time frame where he's asking the doctor to hand him over drugs or a prescription or pills for the pain he did have a prescription at the corrections facility and that prescription according to the plaintiff was not being fulfilled on that hand so three it correct so what he asked for at that visit was to have the doctor hand him over pills without position and she did not deny him treatment or delayed treatment because that medication had already been prescribed and his problem was that it wasn't being provided to him in a timely fashion apa corrections facility so in light of those facts there is no delay in treatment there is no deliberate indifference it's just a disagreement with receiving and prescribe medications during the time that he states that he asked for and did not receive medications in other words his surgeon had already prescribed medication for that that went to the room and told her that there was a much swelling in his face and that the alignment of his teeth was it right after the surgery she just said to him i think it's going to get better which is not providing treatment it is simply saying i you're treating surgeon and i think that it's going to get better on its own and i'm i'm i'm not going to look further into the fact that you had this  some some of what's been suggested and i think the district court mentioned that as well is that negligence claim sounds like a medical malpractise maybe but how does it fall all of the hardware was going to remove be removed from his mouth that simply didn't happen in that follow up surgery with dr hugh awoke from surgery still ringback with hardware in his charge that was supposed to be removed so even the fact that where normally a court would defer to a doctor's professional judgment that's not always the case where there is a substantial deviation from professional accepted professional standards of care or standards of practice and this court has recognized that in pierson this court recognized expert witness testimony be something may sometimes be necessary to distinguish where the surgery or whatever getting out of a surgery with problems that weren't there in your mouth before you entered the surgery shows you that something went very very wrong and that that inadequacy of clerical error and i think that the cases that dr morgan points to on that issue are generally where there were two different orders from the district court and it's unclear which of the orders are actually being appealed in this case