trial detainee in the federal system being housed in the north las vegas correctional facility percent to a contract the case went through almost two and a half three years of litigation before the defendants raise the issue and a summary judgment as to the fact that there was a fair to exhaust and i've see why that's a problem when you've got any intervening change in the law which i mean before before they raise the action we were trying to get medical treatment for mr pienaar and there wasn't any exhaustion requirements nor was it brought forward so what we have here is we're being penalize for changing what was action to benefit a individual who had been statistically and maliciously beaten by a correctional officer hollins and the facts show that in fact he not only was asking for his grievance because he wanted a change of beating or the brutality he didn't have a grievance in the internal system and the they've the statute that governs prisoner civil rights geisha seems to require us not to consider a case where the prisoner doesn't exhaust internal procedure he did exhaust and that's part of the argument he filed the grievance and in fact the individual was they went through an internal affairs he testified i know there was an internal affairs there was an internal affairs investigation he testified in but you didn't present it i mean the claim i presenting in the civil rights to in the internal procedures it didn't he didn't preserve her didn't file a grievance procedure for money damages he filed a grievance procedure and initially that's what evidence in the rock climb and summary judgment ruling on any grievance with respect to the altercation and then that's why we go to them to this and go case we're talking about exhaustion he did he did not file a grievance with respect to the altercation that is part of the summary judgment record you through and a piece of paper in connection with your request for leave to a man that may or may not be agreements but that's not part of the summary judgment wrecker the summary judgment record does not show any agreement does it in connection with wasn't a condition issue and that's what the record was at the time of the summary judgment but the court made a ruling that that he had not exhausted at that point in time and our position is based upon the recent case here in the ninth circuit that that is an exhaustion issue and therefore we were situated to fall to just as another inmate was and that we should have the opportunity because it's not a frivolous claim it's not a claim that was brought forward in fact the officer was sanctioned for his conduct and based upon that the p l r a is trying to ferret out claims that worse a substantial reward constitutional violations i don't think anyone suggesting that the frivolous claim but the problem that i'm having is that the p l r a provision on exhaustion it is not simply trying to screen off frivolous claims it's also trying to say that claims but you had the chief himself involved in making the determination is going to have any point in the system that he asked for money damages not until he got into court but the reason that we got into court was because we were trying to get him medical attention on the stand by him was filed almost a month after the incident took place because he wasn't getting medical treatment i would say that's an exception th process over there they contract out their medical treatment so we sue north las vegas but they contract out the medical treatment in this case does not seek medical treatment of sixteen which is on account of the injuries that he got that's correct think is testimony that was at the time before any of these motions were filed at two fifty seven in the record was that he was trying to get medical treatment and he had asked his criminal attorneys as well as as bringing forward  it shouldn't be sufficient because the purpose of the p l r a is it sets forth a specific criteria the fact that someone can deficit internal investigation that's controlled by the staff that's not necessarily controlled by the inmate the inmate themselves are the ones that have the burden and i knowledge that it's a burden of an issue in the process and they must initiate the process by filing a grievance of a form the city or whatever corrections facility that they are currently incarcerated in applies which did not happen here yes it was investigated by the internal affairs committee and it was investigated by the chief that is all true i don't dispute but at the end of the day the prisoner here knew what the procedures were and didn't follow them and at the time i'm not certain not a criticism of his counsel because at the time the law was that he didn't have to  along this circuit was that he didn't have to as long as he was just seeking money damages he didn't have to file a grievance that's why he didn't file a grievance wasn't because he he just overlooked it or whatever he intentionally didn't file a grievance because the law prior to booth in the ninth circuit was he didn't have to so after the suit was filed a lot changed by the u s supreme court the u s supreme court said the ninth circuit or the circuit and a few other circuits were wrong on that and that it did apply to claims for money damages the ones w decided could he have filed a grievance that that time or was it too late in the prison system my my belief would be is that it would be untimely now whether or not they would have accepted it anyway i don't know but i apologize i just cannot remember the date of booth i believe it was two thousand and two i can i can look but i oppose history have filed that they have to both and it was not a step to the van that would have been an excuse that they didn't know and so forth we have gone on from that point look at even the recent decision that my colleague relies upon from his circuit the one for decision i would only note for the record is that it my understanding is on monday search was granted on this case because there is a split amongst the circuits about whether or not t setting that aside even under that case in judge newman this comes to the point you were just raising the panel judge crater since opinion in the in the woodford case he specifically notes this exact issue because in that case what happened was the inmate didn't file within the time frame but at least he filed it was fifteen days late but he filed and then he appealed there they refused to consider his grievance because it was untimely and he appealed that through all the steps and that was a critical point completely through the prison's administrative process to satisfy the p l o raise exhaustion requirement and so even under this court's precedent which says that there is no procedural default this particular case involving this particular litigant he never filed a grievance at all that's where i do disagree with my colleague on what the record provides he didn't file one at all and he didn't file one and all because this was prior to booth and have to agree with you on that and we we are in a bit of a unique procedural posture in this case and that you know this is this is a case that we're here debating whether summary judgment was appropriately granted on a section one hundred eighty three claim when the same essential claim saying but as we did cite in our brief we believe that there is a forty at the court of appeals level that has addressed this question on ruling whether or not dismissal section one hundred eighty three claims were appropriate and the courts of appeals said well listen if the state law claim went to trial anyway and the government prevailed i e the inmate had not been beaten then it's the elements of the claims are the same so any error of the district court was harmless error because the elements of the claim of the same a civil rights action saying that i was unlawfully beaten by a guard under section i say three is the same of the state law a claim for battery and in this particular case an argument because just recently we never get to that argument the feeling are i have to agree with you on that i would think you wouldn't be trying to talk and i am not trying to talk you out of that position that is obviously our backup position our position is we believe the judge pro got it right and even on her the recent decision from this court still got it right because in this particular case the inmate did not file a grievance at all ok matthew thank you  would just point out that at the time when the motion for summary judgment raised the issue after booth mr tomorrow has a pretrial detainee at that point in time had already been found guilty and was no longer in the north las vegas litigated that they have never settled one of these and a group is receipt or anyway and the issue is whether you give them the opportunity to look at the claim which they did and they took the necessary action fact mr bernard testified in the hearing and more raised initially your honor was dealing with the fact that he didn't have to do an exhaustive because under the existing case law he didn't have to do an exhaustion wasn't i understand what you think it's my point since we're talking about what issues were and were ra issue and the same argument is that it should be a situation where he had that ability to raise it and he did and in terms of the motion to amend that that should be the issue because the law changed and it should i believe it is within the of the appeal that the other issue is in terms of existing case law under wendell versus asher there was no motion to dismiss brought forward by the defen to dismiss the case ok thank you counsel the matter just argued will be submitted