i'm doing pretty well thank you good all right let's turn our arguments for the day with the case of united states no matter versus t submitted his documents to the first level review he submitted everything that was necessary the second level and the third level of appeal and in fact the district court assumed that mr mack did supply the required photocopies when he first right we're arguing but we are arguing that he strictly and perfectly complied with the procedures as written and that is what the court should look at but even if the court looks at the additional requests by officer wa for more copies of the appeal to the facility manager which came after the three levels of her even if the court lets it that he's substantially required a complied with that request by providing his own original for the he got a notice that he had to supply copies for his appeal would be dismissed now he had supplied copies of other documents and actual photocopies but he failed to  supply the appeal to the facility manager signed and dated correct that is what the prison contends your honor but actually the district court assumes that mr mack provided the required documentation in all three stages of  on page twenty of it's opinion which is that appendix page forty eight forty nine district says even if mack included the photocopy of his appeal the fact is that he was informed they were missing and in fact the prison concedes that it can't prove macca didn't attach the required documents including the photocopies to his appeal for final review what were let's say you're arguing burden here you're arguing they had that burden and they didn't prove it because that's true they had that burden most reasonable reading of the record is he didn't have any more photocopies after the whole process was done so when officer watson asked him for his photocopies saying that they were missing he just gave in his originals but you can't say it was an original he copied it at that point in time did he not where they signed and dated from the original time frame your honor i believe they were and honestly the record is unclear but he says he provided handwritten originals and whether he beat it out or more reasonably whether he just kept his original my assumption here but you're the moving party don't you think you have some obligation to tell us who's on first and tell us exactly what  honor and i mean if you want to prevent a dismissal you have to say you know this is what i did it was my original i did supply and they must have lost it and they prevented me because the photocopier was broken i mean this is the second guessing game we're supposed to make the district work making assumptions and you're saying that the defendant has to ferret out what happened here seem to me if he wants to pursue  case he's got obligations and in response to a noticed that talks about photocopy he either has to provide that photocopy or at least alert the district court that a copy of it was he didn't do that did he well your honor first of all the requests that he received did he do that did he let the district court know the argument that is currently being me that the photocopier was broken he say that he said that he provided his original copies and then later when it was claimed to be missing he provided his quote original handwritten copies on appendix page two sixty i put out in front of the fire my question to you did he say to the district court i'm giving you my original hand written because the copier was broke and i complained about it but the prison did nothing about it he did he say that to the disputed part he did not link it up he provided relative to including all complete documents and telling me at ten working days to provide such documents and then there's the language at the bottom of that one about  this is page one forty six of eight one three six and it indicates your appeal to facility manager signed and dated is is what was not included what if anything did he do after that form he went and within the ten days allotted he provided his original his original handwritten copies to the grievance officer officer yes we did which you would have to agree were not what the policy requires that is for us that is correct with the pulse requires a third level of review which maintains that he provided system says he didn't because if that's the case every one of these cases eventual he ends up in the u s district court and maybe eventually because we're always going to have prison system had no opportunity to term and whether or not there was some administrative follow up whether in fact within their process or within an office at the secretary's office an inmate grievances and  first time around and so i can try and find a few but that would be helpful if there's some kind of affidavit or something that puts the prison system on notice that they better rebut that i believe so you're right but even if that's not the case when he was then asked he was asked for additional copies of the record by december there was a new photocopy ok right and we're talking about activity here that took place in january and february you mostly i don't think that the record is clear that there was no his photocopies of third level of this record just assume that but even if you look at the additional requests from officer watson and you think of that as part of the grievance procedure his provision of originals was enough to substantially comply it doesn't have to be perfect the hearing before the district court who had the burden of proof against really substantial compliance your honor the prison has the burden of proof of demonstrating that mr math failed to exhaust and as a result the prison has the burden of proof it's enough to for the prison system merely to raise its policy at that stage business and the fact that what mr mack did was not consistent with the policy isn't the burden of proof then on him to come back compliance but i've we've opened whether it's part of the holy well your honor i believe your earlier question was whether its lives would hurt and would for it only requires that deadlines and other critical procedural rules  didn't supply it but once they have sent him an action required for that says what he has to do within ten days in italics and it will result in a media dismiss of your appeal you think he's being put on notice by this document makes it something that they really care about a critical rule if you will your honor i see my time is up and listen but another this giving him ten days that that kind of puts up a red flag that if we're talking about you know what needs to be complied with that this would be a part of your honor i think that i don't think that it would make it a critical group that is outside of the written policies as i think d c i may go for but even if it is a critical rule he did substantially comply with that one for the ngo doesn't say that perfect compliance is necessary for all deadlines critical wood whether they are copies that he literally copied out by hand happen or whether they are original handwritten copies which is the term that he uses in his papers regardless we're talking about two documents that literally just say i would like to appeal that such and such we're not talking about a description of the events these are fairly insignificant documents and if the prison had any question they already had a copy that was that was  good for the prison to want to know exactly what it was was filed earlier upstream in the process and was providing notice to prison disciplinary issues at that stage  that in significant no that it's not insignificant but the prison already had the original appeal so the facility manager no one is suggesting that the second level overview mr mack did not file these two papers saying i would like to kill the screen and in fact the person responded so we know they were aware we only got into talking about our things that say i would like to appeal the street probably knows but we don't know  said they they have these things but we don't know whether this system is just a tracking system or whether files are maintained and here again we're left to you you'd like to place a question mark and say oh well they have them but we don't have proof that they actually had this so that it would be kind of a no no harm no foul kind of you have any proof that this that they have a database that contains this so they really didn't need it anyway  system contains actual copies of this what we do have is that he originally submitted the appeal to the saudi manager and that that goes into the grievance file in the paula he says that these documents will be put into the agr file so we don't know where the grievance filed it may stay with the first step and never go to the second step and he has the obligation it may not be where the final appeal is the considered and that is what the president intends but remember we had  discovery despite repeated requests for discovery we had no counsel we had we see repeated requests for discovery he found a motion for discovery that was declared moot because he didn't have to move he just had to serve a request did he ever serve a request your honor he says the fact that the things he put in his motion were not have ferreted out this information and here you know but did he deserve a request for discovery he the record does not reflect any requests for discovery that he actually certain there are no copies of that however in his various times the district court he references that defendants have failed refuse i'm sorry to provide him with discovery and that c after that motion for discovery was denied so a fair reading of the record shows that he felt a motion for discovery set forth something that he wanted not realizing that he didn't have to file the district court district court deny that and said you only have to serve the defense and thereafter he raised it to the dancer court long afterwards that he never received any discovery materials and in one of those filings he labeled it as discovery so he fairly alerted the court that he'd been asking for these things and although the particular things that he noted did not go to exhaustion i think that construing all pro se filings in his favor all inferences and his favor it's fair to think please the court my name is howard hopkirk and i'm with the pennsylvania office of the tourney general and i represent the a pelleas all of whom were employed by the pennsylvania department of corrections at  dallas i'd like to i feel the court does understand my basic arguments and first i want to try to clarify some of these factual questions and then judge smith seems to like eight a of the appendix there is a cover letter and so i would page two eighty eight a of the appendix there is a cover letter from mr mack in and that is the only communication regarding in providing these handwritten conspicuously absent from this is any suggestion that you lost my early years copies that that's correct point and our position is to even get to the an arguable substantial compliance issue he would have had to give given some reason why he was these days are prior to the january third two thousand and eight i r r decision so these couldn't have even been in existence as originals or if they had because they necessarily would have been prepared after the i r argosy am i right or or he when he was making the hand rated copies he was mistaken about about the day ok i mean i think that's probably the situation just for reference that the inmate request form what i believe is those were forms that were readily available to him to have paper to make these handwritten copies to try to provide substantively what was in his original appeal but it's missing the these signed you know signed notations and the actual date and as i suggested to the court in my brief this court requires litigants to include copies of of things of lower court decisions even though you could have your law clerks get on pacer and find the decisions wh in camp hill pennsylvania where the secretary of the entire department of corrections is located and so this is a centralized final review process it's a way from the institution itself the people involved in those decisions are different from the people who are defendants in this case and anyone at sci dallas and so while copies might be in existence at sci dallas that doesn't record but i am telling you i will make that representation but police this the supply this appeal to the facility manager what makes it critical that it be something were from this copy that was provided on february nineteenth what i think of as a system type thing i can't speak to this case and they never reached the merits because of the procedural default but things like whether it was timely whether it was what the reasons were given for the appeal and for the for the denial of appeal and things like  to the request for the copy and hand written copy the cell in february to ninety i gather it was accurate is there any contention that wasn't accurate is there any information that absolutely the final appeal board had to have order to determine the appeal on their ads in this case and probably probably not but as  substantial compliance no your honor substantial compliance is following the requirements under the o c eight zero four and that required providing photocopies and well in particular cases it may turn out that it's not important as a system wide thing to have a a unified review system poll and interpreted by the supreme court these types of policies are not things to be second guessed by the court in fact in jones versus back but the supreme court said was the level of detail necessary in the grievance to comply with the grievance procedures will vary from system to system and claim the claim but is that the prisons requirements and not the p r a that define the boundaries of proper not properly exhaust he had a claim that he actually included these photocopies in the original complaint at that point if the prison had done nothing and he just dismissed his complaint without giving him an opportunity to opportunity to cure then i think you very well might have a substantial compliance with the with the with the requirements but in this case the before and it's our position that that is inadequate especially if he had given a reason if he had said i'm providing these because the photocopier is broken and there's no way i asked  get photocopies made and they say there's no way to make them then again i think you might have substantial compliance but one i would say as judge smith pointed out the copier appears to have been fixed in december in response either to his complaints or other people's complaints which was well before that and second the policy itself as far as grievances goes has a whole separate instructions about allowing inmates to approach their unit manager and other procedures to obtain photocopies the idea that a c i dallas that has fifteen hundred prisoners and i don't know how many staff only had one copier in the library and that was the only way to make copies for grievances just doesn't seem credible mr hooker yes with substantial compliance th administrative remedies feeing will be satisfactory if it is substantial but the whole sentence begins without embellishing but the case law in the area will have to develop we know it hours this panel can largely you know say what that what the rule for state substantial compliance is and i would say that apart from this case wouldn't you say that this that's our job yes it and i think we know that but you're here we'd like to hear what you and i said i want to give you the test i was promising you i think a prisoner may properly argue substantial compliance where one it's impossible to comply with the requirements you know i don't know and these are going to be narrow exceptions but you know that the prisoner was in a coma over incapacitated so he couldn't meet the deadlines that was just impossible second corrections officials have actively prevented compliance which is quite different from this case where they tried to facilitate their numerous cases from other circuits dealing with the intervention of prison officials and they're making it impossible in practice for a prisoner to utilize and then the third would be the prisoner has detrimental y relied upon the actions were statements of officials so he reasonably believes he is in compliance or compliance is not necessary  measure of substantial that defines compliance you're talking about three circumstance that which exists use total compliance but you haven't told  you measure from a qualitative stamp point the compliance that he has done as compared to the compliance that might technically be required by the rules aren't you leaving something out i mean what you told us ok if we get that case then we won't slap the prisoner and rest will say you know you can proceed but it's not really substantial compliance it's that compliance was excused because it was impossible or prevented detrimentally relied so what's the qualitative measure of that kind of critical rules if you will under the case law that would be substantial you have an answer to that and i'm not sure is a term that and defines the you know one of the a type of quality in american clients i think that there may be not a minimal that's not perfect there's there's a mistake in using the word substantial in it normal sense because i think opposing counsel wants to make it sound like well he had to do fifteen things and he did fourteen of them perfectly just kind of good good enough  has its guidelines that you know you can't come in argue well i don't think number fifteen is really that important and something like that you have to say they told me that it was ok for me to submit  here isn't the answer really that after john and woodford there probably isn't a substantial compliance or if there is it's the prisoners it's the prisons definition and well ok i see i'm out of time and i would ask that the court the court affirmed thank you i'd like to address opposing counsel suggestion that there was no evidence in the record that there were other copies around the prison system that could have been looked at copies of the appeal to the facility manager irrespective of the third your honor opposing counsel suggestion that the person bent over backwards in sending mr mack this request from officer watson for additional copies they asked for copies not photocopies and he provided copies they actually could have done more they could have asked specifically put a copy before actually denying his appeal at the final stage so there were more things than could have done at the end of the day your honor at the prison could always come up with extra requests for additional copies of documents saying they were missing things that might confuse the prisoner at the end of the day his interpretation of that request and his provision of originals or original handwritten documents whatever it was prison's during for that cross that they had lost you know you're