[00:00:00] Speaker 01:
Okay, we'll now take up, council get ready, in 2461, 67, David versus Crowe.

[00:00:09] Speaker 01:
Good, the back door is closed.

[00:00:13] Speaker 01:
Ms.

[00:00:14] Speaker 01:
Kennedy, and you're sharing with Mr. Churchwell.

[00:00:18] Speaker 01:
If you've been around today, you know how poorly that works.

[00:00:20] Speaker 01:
You should have seen yesterday.

[00:00:21] Speaker 01:
I guess that didn't happen today.

[00:00:24] Speaker 01:
It was yesterday when there were disasters.

[00:00:27] Speaker 01:
Go ahead.

[00:00:35] Speaker 02:
Good afternoon, Your Honors, and may it please the Court.

[00:00:39] Speaker 02:
My name is Colleen Kennedy, and along with my co-counsel, Mr. David Churchwell, we represent Mr. Jerome David.

[00:00:45] Speaker 02:
With the Court's permission, we would like to reserve two minutes for rebuttal.

[00:00:49] Speaker 02:
Today, I will be addressing the First Amendment, and my co-counsel will be addressing the Eighth Amendment.

[00:00:55] Speaker 02:
As we stated in our reply brief, we believe this Court has jurisdiction, and on this point we rest on our briefs.

[00:01:01] Speaker 02:
As for the First Amendment retaliation claim,

[00:01:04] Speaker 02:
This court should reverse and remand the district court's decision.

[00:01:07] Speaker 02:
First, because the interest of justice exception applies.

[00:01:10] Speaker 02:
And second, because Mr. David exhausted all available administrative remedies.

[00:01:15] Speaker 01:
When you say there's jurisdiction, you're not including exhaustion as a jurisdictional issue.

[00:01:20] Speaker 02:
Correct, Your Honor.

[00:01:21] Speaker 02:
They are two separate issues that we briefed.

[00:01:25] Speaker 02:
Mr. David's failure to specifically object to the magistrate judge's report and recommendation

[00:01:32] Speaker 02:
is excused because the interest of justice exception applies.

[00:01:36] Speaker 04:
Counsel, should we be understanding the exception?

[00:01:39] Speaker 04:
Is there an interest of justice exception and also a plain error exception?

[00:01:44] Speaker 04:
Are they different?

[00:01:45] Speaker 04:
How do you understand those?

[00:01:47] Speaker 02:
When a plaintiff fails to specifically object to a magistrate judge's report, the 10th Circuit typically applies the firm waiver rule.

[00:01:56] Speaker 02:
However, when the interest of justice exception applies,

[00:01:59] Speaker 02:
They look for whether there's a miscarriage of justice, and in order to do so, they apply a plain error standard of review, which is a four-part test.

[00:02:07] Speaker 04:
So if we agree with you that there is a plain error here, your contention, if I understand it, is it would satisfy the miscarriage of justice component of the interest of justice exception.

[00:02:19] Speaker 04:
That is correct, Your Honor.

[00:02:20] Speaker 04:
Thank you.

[00:02:21] Speaker 02:
Mr. David can satisfy all three considerations for the interest of justice exception.

[00:02:26] Speaker 02:
First, as a pro se litigant, he exhibited sufficient efforts to comply, including filing an actual objection.

[00:02:33] Speaker 02:
This court in Wershing has noted that when plaintiffs fail to object at all, they can still have sufficient efforts.

[00:02:41] Speaker 02:
Here, paired with Mr. David's barriers that he faced in order to object in the first place, with the fact that he was able to file an objection, rise to sufficient efforts to comply.

[00:02:51] Speaker 02:
Second, Mr. David has an explanation for this failure to object.

[00:02:55] Speaker 02:
This court in Orocho v. Lapin looks to the idea of a plausible explanation.

[00:03:00] Speaker 02:
When there is a plausible explanation for the failure to object, courts are comfortable with applying the interest of justice exception.

[00:03:08] Speaker 02:
Here, Mr. David's plausible explanation for his failure is, first, the lack of adequate law library access, and second, the fact that the district court never got his motion for an extension of time.

[00:03:21] Speaker 01:
Why do we have to accept those things?

[00:03:24] Speaker 01:
He was able to file a number of other things, was he not?

[00:03:27] Speaker 01:
Correct, Your Honor.

[00:03:27] Speaker 01:
Despite not having what he calls access to the library.

[00:03:32] Speaker 01:
And why should we believe him that he filed a motion for extension of time?

[00:03:36] Speaker 02:
Two reasons, Your Honor.

[00:03:38] Speaker 02:
First, since this is, there are various standards going on here, but since this is dismissed, the lights should be taken in the

[00:03:45] Speaker 02:
The facts should be considered in the light most favorable to Mr. David.

[00:03:49] Speaker 02:
Second, in Mr. David's objection that he filed on pages 170 to 183 of the record, Mr. David details his lack of law library access and the fact that the court never got his motion for an extension of time.

[00:04:01] Speaker 02:
He talks about how the fun disbursement that...

[00:04:08] Speaker 01:
Why do we review that issue the same as we would the sufficiency of the complaint?

[00:04:13] Speaker 01:
We review the allegations in the light most favorable to his claim.

[00:04:18] Speaker 01:
But this is whether we have, whether we should hear the case essentially.

[00:04:25] Speaker 01:
And those things such as the failure to file, we have a docket in the peer.

[00:04:33] Speaker 01:
And with respect to whether he had adequate access to

[00:04:38] Speaker 01:
the library, we kept records of his doing a lot of things that would have required the law library.

[00:04:46] Speaker 01:
Don't we just address those facts and whether he's established them or not?

[00:04:51] Speaker 02:
Yes, Your Honor, because this case never got to the point of discovery, there was never any benefit of looking more into this issue.

[00:04:58] Speaker 02:
What we have is in Mr. David's objection, him

[00:05:00] Speaker 02:
detailing his inadequate in-law library access and his failure to put forth a sufficient legal objection.

[00:05:10] Speaker 04:
Counsel, so it seems to me that our law hasn't always been crystal clear on whether the interest of justice exception and the plain error exception to the firm waiver rule are separate or they're the same.

[00:05:23] Speaker 04:
Let's assume that you have a path through the plain error route that doesn't require us to interrogate any of these facts.

[00:05:30] Speaker 04:
How do you satisfy plain error here in order to preserve your challenge on the First Amendment retaliation claim?

[00:05:38] Speaker 02:
There is plain error here because the district court found that Mr. David failed to exhaust administrative remedies.

[00:05:43] Speaker 02:
However, he did properly exhaust administrative remedies.

[00:05:47] Speaker 02:
There are two grievances at issue here for the First Amendment retaliation claim.

[00:05:52] Speaker 02:
These are 2104 and 2110.

[00:05:55] Speaker 02:
Though the analysis is slightly nuanced,

[00:05:57] Speaker 02:
For 2104, Mr. David properly exhausted this grievance by going through all four steps of the grievance process, which is what is required of him under the grievance policies.

[00:06:09] Speaker 02:
For 2110, grievances were unavailable to him, so Mr. David's failure to appeal that grievance is excused.

[00:06:16] Speaker 02:
This is because prison officials misrepresented to him that jobs are not a grievable issue.

[00:06:22] Speaker 02:
The district court noted and opposing counsel conceded that this was in fact a lie.

[00:06:27] Speaker 02:
and thus excuses Mr. David's failure to exhaust because he was reasonably relying on the misinterpretation that prison officials told him.

[00:06:37] Speaker 01:
On the first one, he went through to the fourth step, but then he got a response suggesting something he should do further.

[00:06:47] Speaker 01:
Doesn't he have to do that to properly exhaust his remedy?

[00:06:52] Speaker 02:
When Mr. David appealed grievance 2104 for the first time, prison officials told him that

[00:06:58] Speaker 02:
He was seeking monetary damages in his request to staff, which is part two of the four-part grievance process.

[00:07:05] Speaker 02:
They told him that he wasn't able to, he didn't properly align the request to staff remedy he was requesting with what he put in his formal grievance.

[00:07:14] Speaker 02:
And they gave him leave to amend his formal grievance to make sure that the request of relief aligned, in which he did so.

[00:07:21] Speaker 02:
And he formally filed the grievance again, excuse me,

[00:07:28] Speaker 02:
and appealed again.

[00:07:29] Speaker 02:
And at that point, the second time Mr. David appealed this, grievance 2104, they told him that job replacement is not an agreeable issue.

[00:07:38] Speaker 04:
So the job replacement related to 10, not 04, right?

[00:07:44] Speaker 02:
Sorry for the confusion, Your Honor.

[00:07:45] Speaker 02:
In 2104, the second time Mr. David appealed, they responded saying job replacement is not an agreeable issue.

[00:07:52] Speaker 02:
For 2110,

[00:07:54] Speaker 02:
They told Mr. David, in response to him filing the grievance, that jobs, period, are not a grievable issue.

[00:08:01] Speaker 02:
I would like to relinquish the rest of my time to my co-counsel, Your Honor.

[00:08:13] Speaker 00:
Your Honor, it may please the Court.

[00:08:15] Speaker 00:
My name is David Churchwell, and I am also representing the appellant, Mr. David, in this case.

[00:08:20] Speaker 00:
I will be addressing the Eighth Amendment issues here.

[00:08:23] Speaker 00:
Mr. David brought Eighth Amendment claims against two defendants, one against defendant Aitzen, the dentist, and another against defendant Atkinson, the medical services manager.

[00:08:34] Speaker 00:
This court, we request, should reverse and remand both.

[00:08:38] Speaker 00:
I'm going to address each defendant individually, starting with defendant Aitzen, the dentist.

[00:08:43] Speaker 00:
As to defendant Aitzen,

[00:08:46] Speaker 00:
Delays in scheduling all of the plaque tests necessary for dental treatment for Mr. David were covered by the grievance.

[00:08:54] Speaker 00:
For this issue, it's 2103.

[00:08:57] Speaker 00:
This is because they're all a part of a continuing course of conduct established by the facility's dental policy.

[00:09:04] Speaker 01:
You're essentially saying that grievance can cover future grievable issues, something you can file a grievance, and that covers something that happens

[00:09:15] Speaker 01:
After you file, that's what you're arguing, is it not?

[00:09:18] Speaker 01:
Not necessarily that broad, Judge Hart's... Not every time, but that's here because it's a continuing practice.

[00:09:27] Speaker 01:
You say you can do that.

[00:09:28] Speaker 01:
Do you have any authority for that?

[00:09:30] Speaker 00:
Yes, Your Honor.

[00:09:31] Speaker 00:
Actually, in the 10th Circuit case, Howard B. Wade, this court endorsed that.

[00:09:35] Speaker 00:
When was that?

[00:09:36] Speaker 00:
It was 2008.

[00:09:36] Speaker 00:
It was after this court in Ross.

[00:09:39] Speaker 00:
did say the general rule, which is that future conduct cannot obviously, as the court's words, exhaust future conduct.

[00:09:48] Speaker 00:
And what was the future conduct in that case?

[00:09:51] Speaker 00:
In Ross, the future conduct, it's unclear from the case on the record and briefing therein, but the court does say it was a laundry list of problems, and it did make sure to note that it was stuff that seemingly was unrelated to the initially grieved issue in Ross.

[00:10:07] Speaker 00:
In that issue, it was shoulder pain, and the court there emphasized that it was something unrelated in that instance.

[00:10:15] Speaker 00:
Here, the facts are different.

[00:10:16] Speaker 00:
We have the initially grieved conduct, which is delays in necessary plaque tests for dental treatment.

[00:10:23] Speaker 00:
The other future conduct we're attempting to say that is covered under the grievance is all from that initial nexus.

[00:10:32] Speaker 00:
It's delays in other plaque tests tied together because of the dental policy.

[00:10:37] Speaker 04:
What was the action that your client wanted the prison to take in response to this grievance?

[00:10:44] Speaker 00:
Mr. David, he was seeking restorative care, generally reading the grievance with liberal construction as pro se litigants are offered for exhaustion-related purposes.

[00:10:55] Speaker 00:
Mr. David was essentially seeking any type of care that would keep his teeth in his mouth.

[00:11:02] Speaker 04:
So would your position then require us to conclude that this grievance would essentially preserve his right to seek that same type of relief for anything that happened with his teeth?

[00:11:17] Speaker 00:
I wouldn't go that broad, Judge Rossman.

[00:11:19] Speaker 00:
I'd say specifically for the teeth in question in this case.

[00:11:23] Speaker 00:
We would also cover, in this case it's tooth number 12.

[00:11:27] Speaker 00:
There's also, we briefed tooth number four to be included because the delays, even though it was removed at a future facility is one that subsequently, mere weeks after arriving at the new facility was then removed because of deterioration.

[00:11:42] Speaker 00:
It would just be limited to those instances.

[00:11:45] Speaker 04:
So is your argument in support of applying the continuing violation theory here sort of dependent on this being a continuing course of treatment?

[00:11:53] Speaker 04:
Is that a fair way to look at this?

[00:11:56] Speaker 00:
I think in part, it's continuing course of treatment, but also I point this court to the dental policy as well.

[00:12:03] Speaker 00:
The plaque tests are necessarily tied together because you have to take, you not only have to take two, but they are temporally connected.

[00:12:12] Speaker 00:
And so when you delay the initial one, the subsequent ones are also going to be delayed because of that.

[00:12:18] Speaker 00:
And because of the temporal connection, those delays

[00:12:23] Speaker 00:
factor into having a continuing course of conduct in addition to the treatment itself.

[00:12:28] Speaker 01:
I thought the institution didn't do restorative care.

[00:12:32] Speaker 01:
You couldn't get a denture or an implant.

[00:12:40] Speaker 01:
The doctor said we can remove your tooth.

[00:12:42] Speaker 01:
He refused that, so the doctor then gave him pain medication and antibiotics.

[00:12:53] Speaker 01:
the institution didn't allow restorative care, how can the one doctor, one dentist, or even prison official be liable for not providing that?

[00:13:08] Speaker 00:
I wouldn't go so broad to say restorative care generally was impermissible.

[00:13:12] Speaker 00:
Under priority three treatment, things like fillings or other types of operations were possible.

[00:13:18] Speaker 00:
You are correct that

[00:13:20] Speaker 00:
Implants, specifically, were not allowed at the facility, but that doesn't preclude other forms of restorative care.

[00:13:26] Speaker 00:
No, it didn't request any type of care that would be given.

[00:13:29] Speaker 01:
It could be given.

[00:13:32] Speaker 00:
I thought he wanted an implant, no?

[00:13:35] Speaker 00:
Within the grievance, but he also, in that grievance, talks about other issues, other issues being just the general pain and tooth pain that he was seeking.

[00:13:44] Speaker 00:
He wanted to, quote, keep his teeth in his mouth.

[00:13:47] Speaker 00:
Yeah, that was the problem.

[00:13:48] Speaker 01:
He wanted to keep his tooth.

[00:13:50] Speaker 01:
And the doctor said, I can't relieve you of the pain and the risk of infection until I take the tooth out.

[00:13:57] Speaker 01:
And he didn't want that.

[00:13:59] Speaker 01:
So what was the violation there?

[00:14:03] Speaker 00:
The ultimate violation is the failure to provide any type of restorative care, separate and distinct from specifically implants.

[00:14:13] Speaker 04:
And did he have an obligation under the policy to document compliance with an oral hygiene

[00:14:19] Speaker 04:
regimen and he couldn't do that unless he got these two tests.

[00:14:23] Speaker 00:
That's correct Judge Rossman.

[00:14:25] Speaker 00:
He was obligated to receive these individual tests and in fact in that grievance he not only mentions implants but also specifically talks about the delays in receiving those necessary treatments for any type of restorative care.

[00:14:40] Speaker 00:
I'd like to briefly turn to defendant Atkinson just to assert that Atkinson below for the medical services manager claim didn't attempt to defend any of the district court's rationale or reasoning to support the finding no liability, but only raised factual issues.

[00:14:57] Speaker 00:
As we laid out on pages 57 and 58 of our opening brief, we believe that there are genuine disputes of material fact that alone support a remand for that claim.

[00:15:05] Speaker 01:
Well, how do you show deliberate indifference without showing experience

[00:15:10] Speaker 01:
of the problem or some reason why it was obvious would be obvious to the administrator.

[00:15:15] Speaker 01:
That's how we treat suicide and sexual assaults in prisons.

[00:15:21] Speaker 00:
I see my time is running out.

[00:15:23] Speaker 00:
I'd like to briefly answer and then conclude.

[00:15:25] Speaker 00:
But it's precisely that second point of showing sufficient obviousness that satisfies the deliberate indifference standard.

[00:15:32] Speaker 00:
What's obvious here?

[00:15:34] Speaker 00:
Judge Hartford, we would really prefer to have a lower court actually address that specific claim.

[00:15:41] Speaker 00:
We have not had discovery yet, and this would be an issue that would be served much by finding any type of discovery.

[00:15:50] Speaker 01:
He's got to allege in his complaint something showing obviousness, does he not?

[00:15:54] Speaker 00:
He does.

[00:15:55] Speaker 00:
I'm sorry.

[00:15:57] Speaker 00:
In his complaint, he does assert that there's a ratio of one dentist to 700 inmates.

[00:16:02] Speaker 00:
And it's notable that when that one dentist disappears for several months, then it becomes far more difficult to receive any dental care there.

[00:16:08] Speaker 01:
What's the ratio of dentists to population in Denver?

[00:16:12] Speaker 01:
Do you know?

[00:16:14] Speaker 00:
Off the top of my head, no.

[00:16:15] Speaker 00:
We tried our best to find general ratios.

[00:16:18] Speaker 00:
Unfortunately, those are not published.

[00:16:22] Speaker 00:
We respectfully request this court to reverse them.

[00:16:23] Speaker 00:
Thank you.

[00:16:46] Speaker 03:
May I please the court?

[00:16:48] Speaker 03:
Your honor, my name is Alejandra Brijeda and I'm the assistant attorney general for the state of Oklahoma.

[00:16:53] Speaker 03:
I represent defendants Ike, Goodwin, Lawson, Purcell, Aitzen, and Atkinson.

[00:16:58] Speaker 03:
May I proceed with my argument?

[00:17:03] Speaker 03:
Sure.

[00:17:03] Speaker 03:
This court should not review plaintiff's retaliation claim under the interest of justice exception to the firm waiver rule.

[00:17:09] Speaker 03:
The district court carefully analyzed and considered all three factors to determine whether the interest of justice exception applied and properly ruled that the exception did not apply here.

[00:17:19] Speaker 04:
Isn't the plain error exception its own thing under our precedent?

[00:17:25] Speaker 03:
Yes, it is.

[00:17:26] Speaker 04:
It is.

[00:17:26] Speaker 04:
So I'd like to hear your argument on why the firm waiver rule exception

[00:17:35] Speaker 04:
doesn't apply here based on plain error.

[00:17:38] Speaker 04:
Why aren't the elements of plain error satisfied?

[00:17:40] Speaker 01:
To be more precise about that.

[00:17:43] Speaker 04:
Yes, absolutely.

[00:17:45] Speaker 01:
I don't see what more you could have done.

[00:17:47] Speaker 03:
Yeah.

[00:17:47] Speaker 03:
So Your Honor, here at issue, as they argue, they argue that plaintiff properly grieved grievance 21-4 and 21-10.

[00:17:58] Speaker 03:
That is simply not true.

[00:18:00] Speaker 03:
As to 20.

[00:18:01] Speaker 03:
Could you focus on 04?

[00:18:03] Speaker 03:
Yes, absolutely.

[00:18:04] Speaker 03:
OK.

[00:18:05] Speaker 03:
The grievance was returned unanswered because the relief requested on the RTS and grievance were inconsistent.

[00:18:12] Speaker 03:
And he had not requested any lawful or tangible relief that the reviewing authority could grant him.

[00:18:17] Speaker 04:
The inconsistent relief was fixed, right?

[00:18:20] Speaker 03:
Your Honor, no.

[00:18:21] Speaker 03:
He resubmitted the grievance and still was asking for monetary damages.

[00:18:24] Speaker 01:
That's different.

[00:18:25] Speaker 01:
He wasn't asking for monetary damages.

[00:18:30] Speaker 01:
Before he can bring a 1983 claim, he's got to exhaust his administrative remedies in the prison.

[00:18:36] Speaker 01:
So even if the relief he's seeking in the 1983 claim was not available in the grievance system.

[00:18:44] Speaker 01:
So how do you do that?

[00:18:45] Speaker 01:
If all you are complaining about is you were injured and you would be compensated for that, you have to bring a grievance, but you're not asking for anything they can give you.

[00:18:55] Speaker 01:
So you're saying, therefore, you can't bring the grievance.

[00:18:58] Speaker 01:
So therefore, you haven't exhausted your grievances.

[00:19:00] Speaker 01:
So therefore, you can't.

[00:19:01] Speaker 01:
file under 1983.

[00:19:02] Speaker 01:
It doesn't make sense to me.

[00:19:04] Speaker 03:
He wasn't requesting any relief whatsoever.

[00:19:07] Speaker 01:
He said, I'm filing this because I want a file under 1983, which I think should be understood and would have been by someone experienced in this at all, that he's saying, I'm doing this because I have to do it before I can bring a 1983

[00:19:24] Speaker 03:
Okay, Your Honor.

[00:19:25] Speaker 03:
Well, then the answer was that plaintiff was given 10 days to either appeal the grievance to the Administrative Review Authority and he failed to do so.

[00:19:33] Speaker 03:
For 04?

[00:19:34] Speaker 03:
Yes.

[00:19:36] Speaker 01:
What?

[00:19:38] Speaker 01:
It was un-finally?

[00:19:39] Speaker 01:
I thought that was... He did appeal, you're saying, his appeal of the denial of 04?

[00:19:45] Speaker 03:
Well, asked to... Oh, apologies.

[00:19:47] Speaker 04:
Asked to 04.

[00:19:47] Speaker 04:
2110.

[00:19:49] Speaker 04:
Yeah, 2110 agreed.

[00:19:51] Speaker 04:
04 disagreed.

[00:19:53] Speaker 03:
Pursuant to, according to section 7 of OB 09124, if the plaintiff fails to correct the errors or properly resubmit the grievance, or properly resubmit, the grievance will not be answered and the inmate will have waived slash forfeited the opportunity to proceed in the grievance process.

[00:20:09] Speaker 01:
So how, how is somebody, how is a prisoner who is injured supposed to exhaust administrative remedies

[00:20:18] Speaker 01:
before seeking damages under 1983.

[00:20:21] Speaker 01:
If he doesn't want, you know, I don't want this guard fired, I don't want this change in your system, I was just abused and I want relief.

[00:20:29] Speaker 01:
It makes no sense to throw it out, throw out the grievance because he can't get relief from the prison.

[00:20:42] Speaker 01:
When he really doesn't want relief from the prison, he just wants

[00:20:47] Speaker 01:
to exhaust administrative remedies.

[00:20:49] Speaker 01:
It makes it impossible for someone in his circumstance to get into court.

[00:20:55] Speaker 03:
OK, Your Honor, but then he needs to make that clear.

[00:20:57] Speaker 03:
So obviously, as I stated before, requesting monetary compensation is a non-grievable issue pursuant to our ODLC policy.

[00:21:04] Speaker 03:
So he could have made it clear, look, I'm not seeking monetary damages.

[00:21:08] Speaker 03:
I'm seeking this.

[00:21:09] Speaker 03:
He did say he wasn't seeking monetary damages.

[00:21:14] Speaker 04:
He said, I'm just seeking.

[00:21:17] Speaker 02:
I will.

[00:21:19] Speaker 01:
If you just could explain what he should do in this circumstance, maybe that will satisfy.

[00:21:26] Speaker 01:
It'll be satisfactory, but this isn't your fault.

[00:21:31] Speaker 01:
Yeah.

[00:21:35] Speaker 01:
This is something that the way this prison has set up its system makes it really tough.

[00:21:44] Speaker 01:
No, and I see where you guys are coming from.

[00:21:50] Speaker 03:
I think with this, again, our staff go through thousands of grievances, right?

[00:21:58] Speaker 03:
I assume, again, I'm not going to speak for the individual, that obviously the facility had reviewed this grievance.

[00:22:06] Speaker 03:
But my guess is they reviewed what he was requesting, and they thought, oh, he's seeking monetary damages, and that is it.

[00:22:12] Speaker 03:
However, I agree with you guys.

[00:22:14] Speaker 03:
He did make it clear, I'm not seeking monetary damages.

[00:22:17] Speaker 03:
So it sounds like there was an original problem that was legit.

[00:22:21] Speaker 03:
Exactly.

[00:22:22] Speaker 04:
That he didn't have a match between his request to staff remedy and his grievance.

[00:22:27] Speaker 04:
And then he had to fix that.

[00:22:29] Speaker 04:
Do you agree that he fixed that?

[00:22:31] Speaker 04:
I agree that he fixed that.

[00:22:32] Speaker 04:
So then what remains is a grievance that's gone all the way, 04, went all the way through the appellate process within the facility.

[00:22:42] Speaker 04:
And as I see it, the only sort of question is whether, in the section where he's supposed to say what relief he is asking for that the prison can give him,

[00:22:55] Speaker 04:
You're contending that it's as if he didn't even fill that out because he asked for something that, you know, he couldn't get.

[00:23:02] Speaker 04:
So is your position that the reason the grievance is unexhausted is because he didn't answer the question correctly?

[00:23:13] Speaker 03:
My position is that, again, there was action requested.

[00:23:17] Speaker 03:
State exactly how you believe your request may be handled.

[00:23:20] Speaker 03:
That is, what could be done and how.

[00:23:23] Speaker 03:
Compensatory, this is his answer, verbatim.

[00:23:25] Speaker 03:
Compensatory, punitive, and nominal damages through a 1983 civil suit.

[00:23:30] Speaker 03:
I am not seeking these damages through the administrative grievance process.

[00:23:33] Speaker 04:
Which is, I think, a correct description of the law.

[00:23:36] Speaker 03:
Yes, but again that does not give our staff any direction as to how we can help that invade.

[00:23:41] Speaker 04:
So is it, I think we're getting there I think for my questions, is it your position that because he gave this answer, which is essentially, and I'm not putting words in your mouth, this is just my understanding of your position, essentially a non-answer.

[00:23:55] Speaker 04:
It's as though he left it blank.

[00:23:57] Speaker 04:
He didn't finish it.

[00:23:59] Speaker 03:
Exactly.

[00:23:59] Speaker 03:
So when you look at Mark Knutson's response to his grievance, because there was an amended response, right?

[00:24:04] Speaker 03:
He basically, in a sense, is stating, look, this is a non-answer.

[00:24:08] Speaker 03:
We can't do anything for you, because you have not asked us for anything.

[00:24:12] Speaker 03:
OK.

[00:24:12] Speaker 04:
So then this is further to Judge Hartz's question.

[00:24:14] Speaker 04:
What is your view of what he should have done?

[00:24:17] Speaker 04:
So what he said we've established is a correct description of the law, but in your view, as good as not saying anything.

[00:24:24] Speaker 04:
What should he have said that in your view would have exhausted

[00:24:29] Speaker 04:
This grievance.

[00:24:30] Speaker 03:
Yes.

[00:24:30] Speaker 03:
So let's come back to the meat of the grievance.

[00:24:33] Speaker 03:
The meat of 21-4 is that he felt that he was being retaliated against for complaining about the chemicals in his bathroom orderly job.

[00:24:41] Speaker 03:
So what he could have stated was, look, no, he could have filed a, let the facility head know, no, I am asking for something.

[00:24:51] Speaker 03:
I'm trying to tell you guys I'm being retaliated against, and I

[00:24:55] Speaker 03:
you know, want this to stop, whatever it may be.

[00:24:56] Speaker 03:
But again, it was just a non-answer.

[00:24:58] Speaker 03:
He didn't give the facility head anything to do.

[00:25:01] Speaker 03:
I mean, there was no relief requested at this point.

[00:25:05] Speaker 01:
It was just like... He didn't want any.

[00:25:06] Speaker 01:
He just wanted money.

[00:25:09] Speaker 03:
But then we can't give him that, Judge.

[00:25:10] Speaker 01:
We, again, pursuant to policy, we can't.

[00:25:13] Speaker 01:
Then how can he exhaust to satisfy 1983?

[00:25:17] Speaker 01:
If he can't... One way to deal with it is say, you can't grieve if you're not seeking anything.

[00:25:23] Speaker 01:
And all you want to do is sue under 1983, in which case, okay, I've exhausted my remedies.

[00:25:30] Speaker 01:
You told me I'm done.

[00:25:31] Speaker 01:
Maybe that's the way to deal with it.

[00:25:34] Speaker 01:
But if... Yeah, Your Honor.

[00:25:42] Speaker 01:
Let's turn.

[00:25:43] Speaker 01:
Okay, okay.

[00:25:44] Speaker 01:
Well, 04, he was told, they told him he couldn't grieve.

[00:25:50] Speaker 03:
No, are you talking about O10?

[00:25:52] Speaker 01:
Did I say O4?

[00:25:53] Speaker 01:
Yeah.

[00:25:56] Speaker 03:
Do you guys want me to discuss grievance 21-10?

[00:25:59] Speaker 03:
Okay.

[00:26:01] Speaker 03:
So as to grievance 21-10, that was him alleging that defendant Lawson fired him from his kitchen job in retaliation of him submitting a grievance.

[00:26:11] Speaker 03:
Plaintiff argues that the administrative grievance process was not available to him.

[00:26:15] Speaker 03:
because defendants allegedly misrepresented to him that he had fully exhausted his administrative remedies for that grievance.

[00:26:21] Speaker 03:
That is false.

[00:26:22] Speaker 03:
Defendants did not tell plaintiffs that he had fully exhausted his administrative remedies as to Grievance 21-1.

[00:26:28] Speaker 03:
Further, plaintiff fails to point to any evidentiary materials in the record to support such.

[00:26:32] Speaker 01:
But don't you think telling him that you can't grieve this means to stop the process?

[00:26:39] Speaker 01:
Wouldn't any reasonable person, or at least many reasonable people think

[00:26:44] Speaker 01:
I'm done.

[00:26:45] Speaker 01:
They told me I can't grieve this.

[00:26:47] Speaker 01:
So why go through four steps of a process that I'm not allowed to pursue anyway?

[00:26:52] Speaker 03:
Well, Your Honor, that's why we have our process.

[00:26:54] Speaker 03:
That's why we have the ODOC appeal process.

[00:26:56] Speaker 03:
That's why we have the administrative review authority.

[00:26:58] Speaker 03:
Because we want to give inmates on an appeal form, they can either click probable heir by the reviewing authority, who's the facility head,

[00:27:06] Speaker 03:
and let the administrative, the ARA know, hey, he made a mistake.

[00:27:11] Speaker 03:
You know, again, our staff, they're not perfect.

[00:27:13] Speaker 03:
They make mistakes.

[00:27:14] Speaker 03:
However, he had the opportunity to either point out the mistake to the administrative review authority or to appeal, and he failed to do either.

[00:27:24] Speaker 04:
And he did appeal for 04.

[00:27:26] Speaker 04:
So for 04, he did.

[00:27:27] Speaker 03:
But we're discussing 10, right?

[00:27:29] Speaker 04:
We are discussing 10.

[00:27:31] Speaker 04:
OK.

[00:27:32] Speaker 04:
Isn't one way to read?

[00:27:35] Speaker 04:
his failure to exhaust intent is that, well, he knew how to do it.

[00:27:39] Speaker 04:
We'll look at row four.

[00:27:41] Speaker 03:
Yeah, absolutely.

[00:27:41] Speaker 03:
And similar to the plaintiffs in Hoover v. West and Jernigan v. Stuchel, here, plaintiff has not shown any reason why he could have not brought the mistake regarding the previous grievance to the warden's attention or to the ARAs within the 10-day time period.

[00:27:57] Speaker 03:
Because he did not even try to cure the deficiency, this court should affirm the district court's dismissal for lack of exhaustion.

[00:28:03] Speaker 04:
Can I ask you your position on

[00:28:05] Speaker 04:
Your friend on the other side is saying that when we review a grievance, we do it liberally.

[00:28:12] Speaker 04:
Kind of like you look at a complaint, a pro-state complaint, you give the pro-state complaint.

[00:28:17] Speaker 04:
You don't act as the advocate, but the court gives it a liberal construction.

[00:28:22] Speaker 04:
Do we do the same thing for a grievance?

[00:28:25] Speaker 03:
I would disagree with that.

[00:28:28] Speaker 04:
Based on what authority?

[00:28:29] Speaker 03:
So just pursuant to our policy.

[00:28:31] Speaker 03:
So pursuant to ODLC policy, grievances have to have certain things.

[00:28:36] Speaker 03:
this, you know, our staff has to know, hey, what is this inmate grieving?

[00:28:40] Speaker 03:
Right.

[00:28:41] Speaker 04:
So, so no, no question about what the policies require.

[00:28:43] Speaker 03:
Okay.

[00:28:44] Speaker 04:
So the policies are fixed.

[00:28:45] Speaker 04:
Yes.

[00:28:46] Speaker 04:
When we're assessing whether an inmate's grievance complies with those policies, do we assess that grievance liberally and give it a liberal construction?

[00:28:55] Speaker 03:
I mean, I wouldn't disagree with that.

[00:28:57] Speaker 03:
I think case law is pretty solid on that.

[00:28:59] Speaker 03:
But I also think that, you know, inmates need to give prison officials proper notice.

[00:29:04] Speaker 03:
They can't just, I mean, it can't be a morass of ambiguous complaints.

[00:29:08] Speaker 03:
You know, it's got to be, there's got to be specifics.

[00:29:11] Speaker 03:
There's got to be names.

[00:29:12] Speaker 03:
There's got to be dates.

[00:29:13] Speaker 03:
And that, I mean, they do.

[00:29:14] Speaker 03:
They do have to abide by our grievance policy.

[00:29:20] Speaker 03:
Let's go to the... The dental care claim?

[00:29:22] Speaker 01:
Yes.

[00:29:25] Speaker 01:
the contention of the plaintiff that a grievance about dental care at one point, if it's a continuing problem, say it's the same tooth,

[00:29:36] Speaker 03:
Yeah, I disagree with that strongly, but yeah, I'm more than happy to get into that.

[00:29:41] Speaker 01:
Why don't you convince us to agree with you?

[00:29:43] Speaker 03:
So again, plaintiff cites to Shelter v. Christensen, 9th Circuit, 2024, and Howard v. Wade, 10th Circuit, 2008.

[00:29:50] Speaker 03:
However, the plaintiffs in Howard and Shelter both submitted multiple complaints and grieved a single continuing harm.

[00:29:58] Speaker 03:
and or a single course of conduct that prison officials failed to protect them from a specifically identified threat posed by inmates in their housing unit.

[00:30:07] Speaker 03:
Shelter and Howard were both being continuously threatened and physically assaulted.

[00:30:12] Speaker 03:
Shelter and Howard are not applicable to the KSAT bar.

[00:30:15] Speaker 03:
Nowhere in grievance 21-3 does plaintiff specifically identify a single continuing harm or single course of conduct by Dr. Aitzen.

[00:30:25] Speaker 03:
Further,

[00:30:26] Speaker 03:
Sorry, can I just finish my thought?

[00:30:28] Speaker 01:
No.

[00:30:30] Speaker 01:
Okay.

[00:30:31] Speaker 01:
You have a lot of thoughts and I'll forget.

[00:30:33] Speaker 03:
Sorry.

[00:30:34] Speaker 03:
Yeah, absolutely.

[00:30:35] Speaker 01:
So your thought at this point was he didn't identify a single continuing harm or a single course of conduct, but can you characterize what he grieved as a continuing course of conduct?

[00:30:49] Speaker 01:
They're not dealing with this problem with my tooth.

[00:30:52] Speaker 03:
No.

[00:30:53] Speaker 03:
No, he did.

[00:30:54] Speaker 03:
So, I mean, verbatim, in the grievance, he states, and interestingly, he never even mentions, there's a huge lack of, in my opinion, of specifics in his grievance.

[00:31:05] Speaker 03:
It's a morass of ambiguous complaints, no specifics on what denial.

[00:31:10] Speaker 01:
He wants to get some restorative therapy, some restorative treatment for that tooth.

[00:31:20] Speaker 03:
for non-restorable teeth, yeah.

[00:31:22] Speaker 03:
Tooth number five and tooth number 12, as Dr. Aitzen stated in his dental treatment plan, were decayed to the pulp, therefore non-restorable.

[00:31:32] Speaker 03:
There's nothing he can do.

[00:31:33] Speaker 03:
I mean, he came into the facility with 12 missing teeth, and two of his teeth were decayed to the pulp, one of those being the one that had to get extracted.

[00:31:43] Speaker 04:
I have a question.

[00:31:44] Speaker 04:
I mean, a lot of your argument, and I think totally righteously,

[00:31:50] Speaker 04:
assumes that the inmates need to comply with the prison policy in order to precede him.

[00:31:56] Speaker 04:
That's fair.

[00:31:57] Speaker 04:
But the policies also put a burden on the inmate that he can't comply with unless the prison responds.

[00:32:06] Speaker 04:
And the dental policy suggests that priority three treatment must be preceded by documented compliance with an oral hygiene regimen.

[00:32:15] Speaker 04:
So in order for him to demonstrate that, he had two plaque tests.

[00:32:19] Speaker 04:
Why doesn't this grievance which prevents him really from complying with this not constitute

[00:32:27] Speaker 04:
enough to exhaust the claim for both tests?

[00:32:31] Speaker 03:
I don't agree.

[00:32:31] Speaker 04:
One big plaque test.

[00:32:32] Speaker 03:
Yeah, I don't agree with that.

[00:32:34] Speaker 03:
OK, why not?

[00:32:36] Speaker 03:
No, you're fine.

[00:32:37] Speaker 03:
So plaintiff was transferred to this facility on November 18 of 2020, right?

[00:32:43] Speaker 03:
Within days, he was seen by Dr. Aitzen, where Dr. Aitzen did his dental treatment plan.

[00:32:49] Speaker 03:
And then within a month, he had his first plaque index test, right?

[00:32:53] Speaker 03:
So within a month.

[00:32:54] Speaker 03:
And again, we have busy.

[00:32:57] Speaker 03:
Yeah, we have scheduling constraints and whatnot, right?

[00:33:00] Speaker 03:
But within a month, he had his first plaque index test, which he did not pass, meaning that he was not following the oral regimen that Dr. Aitzen had briefed him on, right?

[00:33:09] Speaker 03:
And then he got scheduled another plaque index test, and he failed to show up.

[00:33:15] Speaker 03:
They argued that, oh, maybe it wasn't his fault.

[00:33:18] Speaker 03:
He failed to show up.

[00:33:19] Speaker 03:
It was a no show.

[00:33:20] Speaker 03:
Regardless of why he didn't show up, he did not show up, right?

[00:33:24] Speaker 03:
Um, so again, I mean, I guess getting back to the grievance, I don't agree.

[00:33:29] Speaker 03:
I mean, this court has previously held and established that a grievance obviously cannot exhaust administrative remedies for claims based on events that have not yet occurred.

[00:33:38] Speaker 03:
And I don't believe that he did grieve a single continuing harm or a single course of conduct.

[00:33:45] Speaker 03:
Absolutely.

[00:33:46] Speaker 03:
Yeah.

[00:33:46] Speaker 03:
And Barnes v. Albright, which is 2012.

[00:33:51] Speaker 03:
I'm sorry your honors.

[00:33:52] Speaker 03:
I'm past my time.

[00:33:54] Speaker 01:
I didn't even realize that but we realized it Yeah, very good anything further.

[00:34:00] Speaker 01:
Thank you guys case submitted Counselor excuse this was a real pleasure Students did exceptionally well.

[00:34:07] Speaker 01:
You're a live wire.

[00:34:08] Speaker 01:
It was fun so Court will be adjourned well in recent