and i want to that's actually the way that i kind of expected made remarks this morning to go i'd like to just sort of picking up on these two on these letters that have been exchanged to talk about what we think makes the most sense as a way for we are in agreement with the state that at minimum the judgment below can't stand where we disagree with the state is about whether there should be further hearings on the boston related question there was an exhaustion hearing in this case it occurred eight hundred and fifty nine days ago to meet its burden at that hearing the state introduced witness testimony in a log that purported to show that mr boykin my client never submitted an emergency gr district court in reliance on that information dismissed my client's complaint we argued in this in our briefing that the defense did not meet its burden on this record because it never estab fundamental threshold point that it should have been on notice from from this court's opinion in roberts finial that they had to produce evidence about whether an emergency grievance but there was any record of an emergency agreement specifically after the state dismissed that argument and in its briefing it has now acknowledged that the testimony about log keeping and the log itself produced at the hearing are worthless on the key probative question on the here at the here and we cannot imagine how the hearing he had not exhausted because he didn't pursue the regular grievance procedure after he didn't get a response back in the emergency procedures so there was a procedure that was available to him and the time had not expired for pursuing the regular that there is a well developed body of doctrine in this court that says when a prisoner follows prison rules and submits a grievance about an incident that has occurred and receives no response no ruling no substantive ruling on the agree with you that in not receiving that response if there had not been another avenue under our president could be treated as a and a denial and that he had exhausted and that he could file his suit but an availability and the supreme court's cases isn't pegged to that i mean if he had another route available to him i don't read those cases as requiring him i mean as as a i don't read those cases to say that well if the regulations didn't require him to turn to the regular agreements procedure when the emergency grievance procedure didn't pan out and he was denied that immediately file suit robertson our cases don't address that situation they don't address when a prisoner has an option but prison regulations don't require him to file a grievance to another available  what we would say is that the the way we understand the availability prost work is that the question is whether a prisoner has done everything that the prison rules require him to do in order to have his claims heard by the prison  and the illinois department of corrections rules now do have a do have a procedure that says if a prisoner files an emergency grievance and receives back a determination that it is not an emergency the prisoner does have to do something further the prisoner now  rules set the record for prisoner follow and whether the prisoner did so and whether at any stage of that process the prison failed to fail to do what was required i completely agree with you when you're talking about so if we were talking about whether he did what he had to do with an emergency grievance route i agree with you about what our cases say but you can't point to any other case right where there where with this was this other route available the regular grievance route well i would i would actually like to i would actually like to if i may your honor really quickly just also point out that even on this theory if your ex to accept the theory that mr boyd thing should have done something further in this perhaps is why and you can ask the state but this is perhaps why the state is asking  and we reversed if mr boykin could have filed a followup grievance in a normal fashion at any point in time between may th and may th we would need the log evidence to verify whether he in fact did and i will know that the  the affidavit that was not produced at the hearing from obviously and even in the affidavit that's been submitted lately last week we still don't know what the grievance the emergency grievance log shows from eight through  may th which are all days when mr boykin could have done the step that united been talking about whether it's required and we think that that obviously could have been that information obviously could have been provided at the st hearing it was not and we don't think that the state witness after the witnesses testified that they had reviewed the logsdon and they testified about the emergency grievance procedure and after the direct examination of that the regular grievance procedure when he didn't receive in response to his emergency grievances now i am not conceding that point i just want to make clear what happened at the hearing now i understand that your twenty eight day letter it sounded like you know when you asked us not to then but if we sent it back you think that the district court could reach the exact same decision by saying he did not exhaust because there was another route available to him not the emergency grievance but this other track and the interest of fairness if it does go back on that ground should you be able to introduce the logs i think so again we don't and nd bite at the apple it's not really a nd part of the apple because  there's no there's no evidence here that the court relied only on perhaps the court would have found the same had the locks never came and i got the state didn't even intend to introduce the locks the state bought the trial counsel that their case was honors i would just like to make a couple of points st of all the logs came up for the st time at the hearing because the state's witnesses testified about them they reviewed them and testified about them the nd thing i would like to say is this court's decision roberts been ill put the state on clear notice of what it had introduced and to meet its burden in a case like this one and on remand in roberts as we point out in the reply brief the state discovered very much like it has now that big money correctional center emergency grievances were logged differently and actually weren't logged at all if they were determined not to be an emergency status the state then had to successfully fight off a sanctions motion and withdrew its exhaustion defense i want to point out and we didn't put this in our letter we discovered and discovered preparation for argument there is overlap between the defense team in roberts and the defense team that appeared mr bork and maybe hearing we think absolutely the the state should have been on notice about what it was required to introduce here and the last point i would like to mention yawners is this is that in the event there's a remain for further proceedings an exhaust exhaustion we think it would be we think it would be it would be a good idea to instruct the district court number one that mr boykin should have access to more discovery in the broader discovery about the emergence of humans long issue and other issues than he got at the st hearing the nd thing that we would urge this court to do is instruct the district court to carefully consider whether mr boykin needs counsel for two reasons st of all as the events of the past few days have unveiled the exhausting question this case is going to be more resolution of that issue nd of all this court has repeatedly noted in cases like santiago and navajo are and de witt that one of the things counsel can do for a pro se litigant is a system in obtaining discovery in difficult circumstances and with potentially non cooperative opponents and we think that as a precautionary measure this record should seriously consider whether mr boykin similarly needs the assistance of counsel to obtain the information he needs not only to