[00:00:03] Speaker 00:
More, right?

[00:00:04] Speaker 00:
Correct.

[00:00:10] Speaker 00:
Good morning and may it please the court.

[00:00:12] Speaker 00:
My name is Philip More and I'm counsel for Jory Strizix.

[00:00:16] Speaker 00:
I would like to reserve two minutes for rebuttal.

[00:00:19] Speaker 00:
When Mr. Strizick set out to complain about Officer Palmer's retaliatory conduct, he was faced with a perplexing and Sisyphean task to exhaust administrative remedies which were, in fact, unavailable.

[00:00:30] Speaker 00:
And they were unavailable for three independent reasons.

[00:00:34] Speaker 00:
First, the grievance program here was a dead end because prison officials have consistently refused to process grievances involving staff conduct and either discipline or classification issues.

[00:00:45] Speaker 00:
Second, the grievance program here was opaque because the grievance policy does not provide any instruction guidance on how or even whether a prisoner can file a grievance about staff conduct in any way related to discipline or classification issues.

[00:01:02] Speaker 00:
Third,

[00:01:03] Speaker 00:
Even if the program could be used to process this specific grievance, then Mr. Strizic, our client, was thwarted from using the grievance program because prison officials consistently refused to allow him to use the grievance program.

[00:01:17] Speaker 00:
After ample opportunity for discovery after all the pleadings and motions in this case, one fact remains clear and uncontradicted, that for this particular issue, the program was unavailable for Mr. Strizic's complaint against Officer Palmer.

[00:01:33] Speaker 00:
For that reason, some re-judgment ought to be given to Mr. Stricic in this case.

[00:01:38] Speaker 02:
Let me ask you this.

[00:01:40] Speaker 02:
As I look at it, and I may be saying the name wrong, Dee's Sheffields.

[00:01:44] Speaker 02:
Yes.

[00:01:46] Speaker 02:
Basically interplay there.

[00:01:48] Speaker 02:
That seems to be the endoscopic problem.

[00:01:52] Speaker 02:
Do you agree with that in this case?

[00:01:55] Speaker 00:
Your Honor, I would say that

[00:01:56] Speaker 00:
D Sheffield's statement is not the only evidence of the unavailability of the program in this particular instance.

[00:02:04] Speaker 00:
Even ignoring D Sheffield's statement, you have the August 25th statement of a second grievance coordinator, which is noted on his informal grievance.

[00:02:13] Speaker 00:
saying that this matter, because it involves a disciplinary concern, cannot be used in the grievance process.

[00:02:20] Speaker 00:
We also point to in our brief, and what Mr. Stryzlik's pointing to in his papers below, is that prison officials have consistently refused to process grievances that involve staff conduct in any way related to discipline or classification.

[00:02:36] Speaker 00:
And we will point to, Your Honor, that that is an example of a dead end, one of the examples of unavailability that the court points to in Ross v. Blake.

[00:02:45] Speaker 00:
This consistent refusal on the part of prison officials to even process these grievances.

[00:02:52] Speaker 03:
If you... I just want to make sure I'm understanding something about the record.

[00:02:59] Speaker 03:
It seems to me that

[00:03:01] Speaker 03:
At least the substance of the grievance here was in fact fully litigated in the context of the disciplinary proceeding and indeed the only relief that could have been obtained had it been grieved which is an investigation was done and resolved adversely.

[00:03:23] Speaker 03:
Am I reading that correctly or not?

[00:03:26] Speaker 00:
Your honor, certainly.

[00:03:27] Speaker 00:
After Dee Sheffield directed him away from the grievance program, he used a disciplinary program or the disciplinary process in the classification and visitation process to level his claims about being fabricated.

[00:03:38] Speaker 00:
Our position, your honor, is that the grievance program is distinct from disciplinary program.

[00:03:44] Speaker 04:
So counsel, I want to ask you respectfully to answer Judge Collins' question.

[00:03:50] Speaker 04:
The way I read the record at ER 135,

[00:03:53] Speaker 04:
He went through the disciplinary hearing.

[00:03:54] Speaker 04:
The substance was tested.

[00:03:55] Speaker 04:
It was found not to be methamphetamine or any other controlled substance that he won, right?

[00:04:02] Speaker 04:
In the end, yes.

[00:04:03] Speaker 04:
So then I think as I took it, if I correctly, Judge Collins, the second part of the question is, what else could he have gotten in the grievance process other than having the allegation against him thrown out, if I've said that correctly?

[00:04:20] Speaker 03:
Correct.

[00:04:22] Speaker 03:
It was resolved that it wasn't drugs, but also as I understand it from the disciplinary process, there was a finding that the officer had not done any misconduct.

[00:04:36] Speaker 03:
Is that correct?

[00:04:37] Speaker 03:
Yep.

[00:04:37] Speaker 03:
So if you were given the opportunity, if he had had the opportunity to grieve it, what more could have been done?

[00:04:44] Speaker 03:
The whole issue had been litigated, resolved.

[00:04:47] Speaker 03:
And so there's nothing further, is there?

[00:04:51] Speaker 00:
Opposition, Your Honor, is that he was prevented from using the grievance program, that the grievance program was the proper procedure for him to be able to level his complaint against Officer Palmer specifically.

[00:05:02] Speaker 00:
And we believe that the disciplinary process and the classification and visitation process

[00:05:09] Speaker 00:
weren't the proper mechanisms for him to seek the kind of relief that he sought.

[00:05:13] Speaker 00:
It is true that the drug was, it ended up not being a drug, but he did, as a result of Officer Palmer's conduct, did lose some of his visitation rights for a period of time.

[00:05:24] Speaker 00:
He was placed in the hole for several months, and it's possible, so I guarantee that,

[00:05:30] Speaker 00:
He might not have received some of these penalties if he had been able to grieve Officer Palmer's conduct.

[00:05:36] Speaker 03:
I thought if you grieve a staff conduct issue, the only remedy you could get out of that would be an investigation.

[00:05:44] Speaker 03:
Am I reading that incorrectly?

[00:05:46] Speaker 00:
I don't think you are, Your Honor.

[00:05:53] Speaker 00:
Okay.

[00:05:53] Speaker 00:
As I noted, Your Honors, he was directed from the grievance process to these other processes.

[00:05:59] Speaker 00:
which is an example of dead end.

[00:06:02] Speaker 02:
With respect, Council, the real issue here seems to be due process, at least from my perspective.

[00:06:09] Speaker 02:
Did your client have a chance to make his case, have a decision made?

[00:06:15] Speaker 02:
And as my colleagues have pointed out, perhaps not in the same forum that he originally started with,

[00:06:21] Speaker 02:
His grievances, if you will, were heard.

[00:06:23] Speaker 02:
He was found not guilty of having the meth there.

[00:06:27] Speaker 02:
There was also action with respect to the officer.

[00:06:30] Speaker 02:
He was found not culpable.

[00:06:33] Speaker 02:
What more could there be?

[00:06:34] Speaker 02:
I mean, I understand technically you're saying, well, we wanted to be in this forum.

[00:06:39] Speaker 00:
Yes.

[00:06:39] Speaker 02:
But you got an answer.

[00:06:41] Speaker 02:
What's the problem?

[00:06:44] Speaker 00:
He did receive an answer, Your Honor.

[00:06:46] Speaker 00:
That is correct.

[00:06:48] Speaker 00:
But I would once again, Your Honor, point to that.

[00:06:50] Speaker 00:
Grievance program was the proper procedure for him to level an accusation against an officer.

[00:06:55] Speaker 02:
It's a little bit.

[00:06:56] Speaker 02:
We're hard.

[00:06:57] Speaker 02:
It's hard to hear you.

[00:06:59] Speaker 00:
Is this better.

[00:07:00] Speaker 00:
That's better.

[00:07:00] Speaker 00:
Yeah, thank you.

[00:07:02] Speaker 00:
Once again your honor the I would go back to the point that the grievance procedure is specifically about leveling an accusation against an officer who committed wrongdoing against you whereas the disciplinary program and the classification and visitation processes

[00:07:18] Speaker 00:
Have different purposes which perhaps officer Palmer's specific conduct.

[00:07:24] Speaker 00:
Maybe it wasn't investigated as fully we we do not Oh, that's a frankly is not a speculation though.

[00:07:30] Speaker 02:
I mean The the issue was discussed was handled in the disciplinary hearing, right?

[00:07:36] Speaker 02:
Palmer's conduct it was after a while.

[00:07:38] Speaker 02:
Yes, so aside from the if you will then nomenclature of the forum

[00:07:46] Speaker 02:
The issues were litigated.

[00:07:48] Speaker 02:
They were investigated and litigated, right?

[00:07:52] Speaker 00:
That's what it seems to be on the record.

[00:07:53] Speaker 02:
Again, I have empathy for what you're talking about, but I just don't see here where your client was truly aggrieved.

[00:08:02] Speaker 02:
He got a decision.

[00:08:05] Speaker 02:
His name was cleared, but Palmer also was found not to have violated the rule.

[00:08:12] Speaker 00:
What are we missing?

[00:08:13] Speaker 00:
Well, what's missing, Your Honor, from this recitation of the facts is that our client actually did receive some penalty that he had to serve out for several months at a time.

[00:08:24] Speaker 00:
He was in administrative segregation for several months.

[00:08:27] Speaker 04:
If I understand your argument correctly, if, for example, the correctional officer Dee Sheffield had told him, yes, you can grieve, and he had done it right away, it's possible that he wouldn't have spent as much time in the hole?

[00:08:43] Speaker 00:
That is a possibility, Your Honor.

[00:08:45] Speaker 00:
In fact, this was a months-long goose chase, in part inspired by the actions of the prison officials who consistently told him that you can't use the grievance program.

[00:08:56] Speaker 00:
And they redirected him to other processes wherein he wasn't allowed to specifically challenge the conduct of Officer Palmer.

[00:09:04] Speaker 00:
And I will point to this court's case in Nunes

[00:09:08] Speaker 00:
The Duncan actually, which is the case that case provided that an example of unavailability or thwarting specifically is when a prison official who is tasked with knowing how to use the grievance procedure and administering it if they direct a prisoner.

[00:09:26] Speaker 00:
to not use an appeal or grievance, then that prisoner was thwarted.

[00:09:30] Speaker 00:
And that's what we're saying here.

[00:09:31] Speaker 00:
When Dee Sheffield, on April 23, directed him away from the grievance program, he was thwarted.

[00:09:37] Speaker 00:
On August 25, 2018, when the second grievance coordinator then said, you cannot use the grievance program for this specific allegation, he was thwarted again.

[00:09:48] Speaker 00:
Okay, when program manager Billy Reich, pursuant to that August 25th program, then said, sorry, I recognize that, sure, Dee Sheffield may have granted you an extension, but I'm still going to say that it was untimely.

[00:10:01] Speaker 00:
He was thwarted once again.

[00:10:03] Speaker 00:
And so he was prevented from using the proper procedure for specifying his allegations against Palmer.

[00:10:10] Speaker 00:
And as a result, he suffered.

[00:10:12] Speaker 04:
Counsel, I just want to make sure.

[00:10:13] Speaker 04:
I mean, I understand we're looking at this in the light most favorable to your client.

[00:10:17] Speaker 04:
But was there any evidence offered below that your client's recollection of what Officer D. Sheffield told him was incorrect?

[00:10:29] Speaker 04:
Was there any evidence?

[00:10:31] Speaker 04:
Did anybody put in a declaration from Officer D. Sheffield or testimony that, no, no, no, no, I never told him that?

[00:10:38] Speaker 00:
No one put in any declaration of sorts saying that D. Sheffield did not tell him that.

[00:10:43] Speaker 04:
And the way I read,

[00:10:45] Speaker 04:
November 21 2018 determination regarding what miss Sheffield told you that it's She's incorrect so as I read it it was Accepting that the officer told your client that it's wrong the new one you filed is late too bad That is that that happened

[00:11:07] Speaker 00:
Your honor and what I would say is that is an example of opacity if grievance coordinators who are tasked with administering this program and who are supposed to know whether a grievance can be processed or not are directing a prisoner away from the grievance program by providing incorrect information.

[00:11:26] Speaker 00:
then using the language from Ross v. Blake about how is an ordinary prisoner supposed to discern or navigate the process, then it seems here that it would be unfair to expect our client to navigate the program if D. Sheffield apparently doesn't know how to navigate the program.

[00:11:43] Speaker 00:
If the second grievance coordinator also, for whatever reason, doesn't know how to navigate the program, it would be an unreasonable expectation of our client to know how to do that himself.

[00:11:54] Speaker 00:
Do you want to save any of your time?

[00:11:55] Speaker 00:
It's entirely up to you, but for rebuttal.

[00:11:59] Speaker 00:
In one last minute, Your Honor, one thing I will point to is that Officer Palmer has not provided any evidence of the availability of this program for this particular issue.

[00:12:11] Speaker 00:
Officer Palmer, yes, points to five grievances that Strizis has raised in the past.

[00:12:16] Speaker 00:
None of them deal with this issue of staff conduct in any way related to

[00:12:20] Speaker 00:
discipline or classification.

[00:12:21] Speaker 00:
There is no denying that Dee Sheffield said what she said.

[00:12:27] Speaker 00:
There is actually a pointing to the policy saying that you cannot grieve matters that are related to discipline or classification.

[00:12:33] Speaker 00:
Officer Palmer had ample opportunity to marshal all the evidence that he could in order to show that yes,

[00:12:41] Speaker 00:
this was available for your specific grievance, he failed to.

[00:12:45] Speaker 00:
And because of this court's case in Albino v. Baca itself, a PRA case, in which like this case, the prisoner did not move for summary judgment, but summary judgment was granted for the prisoner because the defendant had ample opportunity to litigate this case and provide all evidence that he wanted to.

[00:13:02] Speaker 00:
So here should Mr. Strizix be granted summary judgment because he did try everything he could.

[00:13:09] Speaker 00:
to litigate the issues.

[00:13:10] Speaker 00:
Thank you for talking.

[00:13:13] Speaker 02:
All right.

[00:13:14] Speaker 02:
Let's hear now from Elizabeth.

[00:13:17] Speaker 02:
Is it Lehman?

[00:13:18] Speaker 02:
Is that correct?

[00:13:18] Speaker 02:
Or Lehman?

[00:13:19] Speaker 01:
Lehman, Your Honor.

[00:13:20] Speaker 02:
Okay.

[00:13:20] Speaker 02:
Very good.

[00:13:21] Speaker 01:
Good morning.

[00:13:27] Speaker 01:
Okay.

[00:13:29] Speaker 01:
Good morning, Your Honors.

[00:13:29] Speaker 01:
Good morning.

[00:13:30] Speaker 01:
This is Lehman on behalf of Dustin Palmer.

[00:13:32] Speaker 01:
This case is here before you this morning because Jory Strozich is attempting to muddy the waters and make things seem more complicated than they are.

[00:13:40] Speaker 01:
There are three keys to understanding this case.

[00:13:43] Speaker 01:
The first is the burden shifting framework.

[00:13:46] Speaker 01:
The second is the correct determination that the alleged statements by grievance coordinator Dee Sheffield were inadmissible as hearsay.

[00:13:54] Speaker 04:
I'm sorry, can you speak a little closer to the mic?

[00:13:56] Speaker 04:
Yes, sorry.

[00:13:57] Speaker 04:
Could you repeat what you just said?

[00:13:59] Speaker 04:
Sorry.

[00:13:59] Speaker 01:
Sure.

[00:14:00] Speaker 01:
The first key to understanding this case is the burden shifting framework and a correct understanding of each party's burden.

[00:14:05] Speaker 01:
The second is the district court's correct determination that the alleged statements by Dee Sheffield were inadmissible as hearsay.

[00:14:13] Speaker 04:
I mean, that's just totally wrong.

[00:14:16] Speaker 04:
I'm sorry.

[00:14:17] Speaker 04:
That can't possibly be right that when the argument is I acted because this person said this to me and that influenced how I proceeded and why I didn't do something because someone in authority told me that, that's not a statement offered for the truth of the matters asserted.

[00:14:37] Speaker 04:
It's a statement offered for the effect on the listener.

[00:14:40] Speaker 04:
So, I mean,

[00:14:42] Speaker 04:
I mean, you can try to convince me that I'm wrong, but I don't see how this statement could conceivably be excluded as hearsay.

[00:14:50] Speaker 01:
Sure.

[00:14:51] Speaker 01:
Understood, Your Honor.

[00:14:52] Speaker 01:
And I agree that it's a fine line.

[00:14:53] Speaker 01:
It's a close question here, I think.

[00:14:57] Speaker 03:
Well, but even – I mean, he is to some extent also using it for the truth in order to establish what, in fact, the policies were.

[00:15:07] Speaker 03:
But for that purpose, I'm still not sure that the hearsay exception wouldn't apply because one of them says, for the opposing party statement, that it was made by the party's agent or employee on a matter within the scope of that relationship and while it existed.

[00:15:26] Speaker 03:
If you're a prison officer and you want to take advantage in litigation,

[00:15:32] Speaker 03:
of the exhaustion requirement and the prison's disciplinary system.

[00:15:38] Speaker 03:
Is it not the case that with respect to the subject of exhaustion of grievances that the people who are involved in the grievance process are your agent as a member of that entity for purposes of that issue?

[00:15:54] Speaker 03:
And so, because otherwise it's a little bit too cute that the state can have this exhaustion requirement

[00:16:01] Speaker 03:
But then you have to sue the individual officer and then, you know, everything's going to be hearsay because we're going to say there's a total connection.

[00:16:08] Speaker 03:
That seems a little too cute.

[00:16:11] Speaker 01:
Well, Mr. Sturridge could have sued the prison as well or sued the state or the Department of Corrections.

[00:16:16] Speaker 03:
But the underlying claim is only against Palmer.

[00:16:19] Speaker 03:
Right.

[00:16:19] Speaker 03:
And it's just that there's this exhaustion requirement as to Palmer.

[00:16:24] Speaker 03:
But the exhaustion is run by the state, but for Palmer's benefit.

[00:16:31] Speaker 03:
And so I'm wondering whether, for purposes of the rule, that's a sufficient agency that they are acting, as it were, on his behalf in operating this system that has to be run through before you can sue an officer.

[00:16:49] Speaker 01:
I guess I'm not sure how else that might

[00:16:54] Speaker 01:
be run.

[00:16:55] Speaker 01:
Officer Palmer wasn't in a position to handle grievances himself, so he wasn't the one.

[00:17:00] Speaker 01:
Correct.

[00:17:00] Speaker 01:
So they were his agents for that purpose.

[00:17:03] Speaker 03:
And so when they say something about how the process runs, he's bound by that.

[00:17:10] Speaker 03:
Or at least it comes in.

[00:17:12] Speaker 02:
Let's assume for purposes of our discussions that you don't have forever in terms of time, that the panel is not sympathetic to the idea that this is hearsay.

[00:17:24] Speaker 02:
So where do we go from there?

[00:17:27] Speaker 01:
Well, just to finish me, if I may.

[00:17:31] Speaker 01:
Sure.

[00:17:32] Speaker 01:
I think the relevant truth here is not what Mr. Strazic thought is what the prison actually said, what it actually did, just by way of illustration.

[00:17:40] Speaker 03:
What it said and did is first, you know, Dee Sheffield says,

[00:17:45] Speaker 03:
that you can't grieve this because it's disciplinary.

[00:17:49] Speaker 03:
And then when he submits it later in August, he gets a denial in September that says disciplinary has its own appeal process.

[00:17:59] Speaker 03:
So already we have two data points that suggest

[00:18:02] Speaker 03:
that if it's staff conduct, it's almost like Heck v. Humphrey.

[00:18:08] Speaker 03:
It has to go through, if it's a disciplinary issue, it's got to go through there and you don't bring the separate grievance.

[00:18:18] Speaker 03:
So we have two things that say that.

[00:18:20] Speaker 03:
But then the third problem that we have is that, in fact, this has been completely exhausted

[00:18:27] Speaker 03:
The whole issue was litigated, all the determinations were made in the disciplinary process, and the only remedy available, which is investigation,

[00:18:37] Speaker 03:
That was done.

[00:18:38] Speaker 03:
So the whole process is exhausted.

[00:18:41] Speaker 03:
So tell me why this isn't completely, whether you want to call it dead end or whatever, whichever box it is.

[00:18:48] Speaker 03:
Why doesn't this fit?

[00:18:49] Speaker 01:
And thank you, Your Honor.

[00:18:51] Speaker 01:
I do agree with my colleague that the grievance procedure was the correct procedure for Mr. Strezich to have pursued in this case.

[00:18:57] Speaker 01:
And that's because a grievance submitted alleging staff misconduct goes to HR.

[00:19:03] Speaker 01:
It's handled as a staff misconduct complaint investigated by HR.

[00:19:06] Speaker 01:
That's not what happened.

[00:19:08] Speaker 01:
In this case, there is a different investigation for a different purpose.

[00:19:11] Speaker 03:
But it has to go to HR because officer Sheffield didn't know that.

[00:19:15] Speaker 03:
And then the person who signed this other grievance here at ER 121 doesn't know that.

[00:19:24] Speaker 01:
Yes, Your Honor.

[00:19:24] Speaker 01:
And that second statement that you referred to happened after the grievance was filed.

[00:19:28] Speaker 01:
It can't have thwarted the filing of the grievance.

[00:19:30] Speaker 03:
No, no, no.

[00:19:31] Speaker 03:
I'm not saying that it thwarted it, but it shows that on this kind of heck-fee-humphrey type issue, do you have to litigate the issue in the disciplinary system, or can you litigate it

[00:19:46] Speaker 03:
as, again, using the analysis of 1983, is a separate sort of civil grievance, or does it have to go through that machinery?

[00:19:54] Speaker 03:
No one seemed to know the answer to this question, so maybe it's opaque under Ross.

[00:20:02] Speaker 01:
I don't think it was opaque, at the very least not to Mr. Strzic.

[00:20:05] Speaker 01:
The entire basis of his case is that he files complaints and grievances so frequently.

[00:20:10] Speaker 04:
No, I'm sorry.

[00:20:12] Speaker 04:
Please go ahead and finish your answer.

[00:20:14] Speaker 04:
So here is my real fundamental problem with this.

[00:20:19] Speaker 04:
He doesn't have access where he is to the written materials.

[00:20:24] Speaker 04:
He asks the person who should know the answer, the person who should know the answer, and there's not to be facetious, there's no allegation he asked the chef what he should do.

[00:20:36] Speaker 04:
He asked the person who should know the answer.

[00:20:39] Speaker 04:
She told him that he could not grieve Officer Palmer's conduct because it was disciplinary related.

[00:20:46] Speaker 04:
The state is not arguing that he didn't hear that.

[00:20:49] Speaker 04:
And when I look at ER 127, the person is acknowledging that he was told that by the person who ought to know who was just wrong.

[00:20:58] Speaker 04:
It just seems to me that for me, I don't see why that's not the end of the inquiry to let him proceed now with the merits.

[00:21:06] Speaker 04:
explain to me how with that sequence, which at least this stage of the proceedings, we have to accept this true, that bars him.

[00:21:15] Speaker 04:
I simply don't understand it.

[00:21:20] Speaker 01:
Your honor well, I suppose I'll go back to my colleagues argument that this case is appropriate for Sue respond a summary judgment I don't think it is I think at the very most we have a question a factual question about availability here the only evidence that mr. Stridge has submitted of these Sheffield statements are his own self-serving affidavit they're not supported by any other

[00:21:41] Speaker 01:
any other witnesses, any other documentary evidence, anything else.

[00:21:45] Speaker 01:
And so allowing him to go forward on his own bare declaration alone undercuts the purpose of the PLRA to filter out baseless lawsuits.

[00:21:54] Speaker 01:
and lawsuits without any evidentiary support.

[00:21:56] Speaker 01:
Any inmate could make that claim.

[00:21:58] Speaker 01:
That may be right.

[00:21:58] Speaker 03:
It would be unfair to do a cross-motion when you were not sort of put on notice that you needed to potentially get a declaration from her on that specific point.

[00:22:09] Speaker 03:
But would that apply to the separate ground that

[00:22:13] Speaker 03:
anything that could be gotten out of the grievance process has already been achieved in the disciplinary process.

[00:22:21] Speaker 03:
This issue has been completely exhausted.

[00:22:25] Speaker 03:
The merits of it have all been completely resolved and the only remedy available from the grievance process, which would be an investigation, has also that whether

[00:22:37] Speaker 03:
that issue has also been resolved in that process.

[00:22:41] Speaker 03:
It's a futility at this point.

[00:22:43] Speaker 03:
Now, tell me why across some retrenchment wouldn't be appropriate on that ground.

[00:22:48] Speaker 01:
Your Honor, and I do respectfully disagree.

[00:22:51] Speaker 01:
If a grievance had been submitted, like I said before, it would go to HR.

[00:22:54] Speaker 01:
It would be investigated in a manner that would protect Officer Palmer's due process rights as an employee as well.

[00:22:59] Speaker 01:
It's a different type of investigation conducted for a different purpose by different staff.

[00:23:04] Speaker 01:
and can have different consequences.

[00:23:07] Speaker 01:
The procedures that Mr. Strizic pursued are focused on the outcomes for the inmate.

[00:23:13] Speaker 01:
They don't have anything to do with the outcomes for Officer Palmer.

[00:23:15] Speaker 01:
So there is a different remedy that's available through the grievance procedure and that Mr. Strizic left on the table by failing to file a timely grievance.

[00:23:31] Speaker 01:
Okay.

[00:23:34] Speaker 01:
And so I do want to emphasize under the burden shifting framework here, there's no real dispute.

[00:23:39] Speaker 01:
I don't believe that Palmer has met his burden to prove that a grievance procedure exists at MSP, that Strzic did not exhaust it in this case.

[00:23:48] Speaker 01:
I think that burden is a general availability under the court's guidance in Albino v. Baca.

[00:23:54] Speaker 01:
I just burden is to come forward with evidence that shows that it was unavailable in this particular case.

[00:24:00] Speaker 01:
Our position is that he did not do that because his evidence is key evidence is inadmissible.

[00:24:05] Speaker 01:
I understand that your honors disagree on that point.

[00:24:08] Speaker 02:
I mean, I hear your argument on this, but to some degree, it's kind of like.

[00:24:13] Speaker 02:
So what?

[00:24:14] Speaker 02:
I mean, we've all we've all pointed out everything could possibly be considered in an administrative hearing has not been considered.

[00:24:22] Speaker 02:
It's all done.

[00:24:23] Speaker 02:
The whole purpose of the Prison Litigation Reform Act requirement of exhaustion is you want to be sure you don't have everything in the district court.

[00:24:31] Speaker 02:
You want to resolve these things as much as possible within the administrative system.

[00:24:36] Speaker 02:
The meth, all that sort of thing has been resolved.

[00:24:40] Speaker 02:
There's nothing more to do.

[00:24:42] Speaker 02:
So for purposes of this case, what's more to exhaust?

[00:24:49] Speaker 01:
And I'll return to my prior point that there could have been a human resources investigation into Officer Palmer's conduct.

[00:24:57] Speaker 02:
But at the time of the disciplinary hearing, was there not evidence brought by the prison people, also brought by the petitioner here?

[00:25:07] Speaker 02:
They presented their evidence, and it was in effect adjudicated in that setting?

[00:25:13] Speaker 01:
It was adjudicated that Mr. Strzic didn't have any evidence that Officer Palmer had committed misconduct.

[00:25:18] Speaker 02:
Okay, so he he's off the hook.

[00:25:21] Speaker 02:
The math was turned out to be nothing, right?

[00:25:23] Speaker 01:
Right.

[00:25:24] Speaker 02:
Okay, so 2 things were adjudicated there.

[00:25:27] Speaker 02:
What more needs to be adjudicated?

[00:25:29] Speaker 01:
Well, it was the the testing of the drug didn't come back for several months at the time of the discipline.

[00:25:36] Speaker 02:
Yeah, right.

[00:25:38] Speaker 02:
It's all been tested, right?

[00:25:40] Speaker 01:
At that point, but again, there was a different remedy available if you'd submitted a staff misconduct complaint, which is expressly grievable under MSP's grievance policy.

[00:25:47] Speaker 01:
Staff misconduct is clearly listed as a grievable issue.

[00:25:50] Speaker 02:
So if you were listing, say you were the district court and you were listing everything yet to be litigated, what would it be as far as exhaustion is concerned?

[00:25:59] Speaker 01:
Everything that needed to be litigated within the prison's grievance system?

[00:26:03] Speaker 02:
In other words, what more needs to be exhausted for purposes of the Prison Litigation Reform Act?

[00:26:10] Speaker 02:
A gentleman to go forward.

[00:26:12] Speaker 01:
Sure.

[00:26:13] Speaker 01:
An investigation into what had happened during the cell search, how the evidence was handled.

[00:26:22] Speaker 01:
Officer Palmer's prior contacts with Strzic and if he had any retaliatory motive that Strzic alleges.

[00:26:31] Speaker 02:
And that's necessary as part of the exhaustion requirement.

[00:26:38] Speaker 02:
In this case?

[00:26:39] Speaker 01:
It would have been triggered if Mr. Strzic had filed a grievance and possibly interviews with other witnesses who might have knowledge seeking other evidence.

[00:26:47] Speaker 03:
Weren't those issues resolved in the disciplinary?

[00:26:49] Speaker 03:
I mean, they made findings about whether Palmer had done anything wrong.

[00:26:54] Speaker 01:
At the disciplinary hearing, it was Strzic's burden to present evidence, and he didn't do that.

[00:26:58] Speaker 01:
This would have been an investigation conducted by the prison.

[00:27:05] Speaker 02:
hearken back to the old law school statement, a de minimis non curit lex.

[00:27:09] Speaker 02:
You remember that one?

[00:27:11] Speaker 02:
The law does not bother with trifles.

[00:27:13] Speaker 02:
And I don't know what we're trifling about here.

[00:27:16] Speaker 02:
Hearing's been held, sure there could be more things, but in every trial something's missing.

[00:27:23] Speaker 02:
And for purposes of the Prison Litigation Reform Act, Congress just wanted to be sure that most of these things got handled internally.

[00:27:30] Speaker 02:
Seems to me that everything that needed to be handled

[00:27:33] Speaker 02:
to do the exhaustion has occurred here.

[00:27:36] Speaker 02:
That means perfect, but hadn't it been handled adequately to move forward?

[00:27:41] Speaker 01:
Our position is that it wasn't, that he needed to file a grievance.

[00:27:46] Speaker 01:
Okay.

[00:27:47] Speaker 01:
And if I may continue, Officer Palmer has met his overall burden of proof in this case because there was no timely allegation, regardless of whether it could have been in a different process or if it needed to be in the grievance, there was no timely allegation in any context.

[00:28:03] Speaker 01:
Just to remind Your Honors briefly of the timeline here, he had five working days to file a grievance.

[00:28:09] Speaker 01:
That's from April 20th of 2018.

[00:28:11] Speaker 01:
He had until April 27th.

[00:28:13] Speaker 01:
There's an intervening weekend.

[00:28:15] Speaker 01:
He had all the information under his own facts to do so.

[00:28:18] Speaker 01:
He had everything he needed on April 20th when he alleges that Palmer explicitly threatened him and then planted this fake narcotic.

[00:28:28] Speaker 01:
He, on April 24th, he wrote in his disciplinary statement that he thought this was all a big mistake, albeit a reasonable one.

[00:28:36] Speaker 01:
If it did turn out to be a drug, he thought either an officer or an inmate had placed it there willfully or inadvertently.

[00:28:43] Speaker 01:
That's inconsistent with what he says now that on the day before on April 23rd, he had asked

[00:28:48] Speaker 01:
how to grieve Palmer's conduct.

[00:28:51] Speaker 01:
And it wasn't until May 3rd, which is nearly two weeks after the cell search, that he made any allegation against Mr. Palmer.

[00:29:01] Speaker 01:
It was May 20th.

[00:29:02] Speaker 02:
Your time is up, so let me ask my colleagues whether either has additional questions.

[00:29:06] Speaker 02:
I think not.

[00:29:07] Speaker 02:
Thank you very much.

[00:29:08] Speaker 02:
We have some rebuttal time.

[00:29:17] Speaker 00:
Two points, Your Honors.

[00:29:18] Speaker 00:
Either he was supposed to go to the grievance process and he was thwarted, or the grievance process was a dead end, and as a result of that, the program became unavailable, or he was supposed to use discipline and classification, which he fully did and exhausted.

[00:29:34] Speaker 00:
whatever internal administrative remedies were available.

[00:29:38] Speaker 00:
Given that he was thwarted, or it was a dead end, or in the alternative that he exhausted whatever remedies were available in the discipline and classification process, the courthouse's doors are open as a result of that.

[00:29:50] Speaker 00:
Whether he received the answer he wanted, that Officer Palmer actually was guilty, that Officer Palmer should, I don't know, like be disciplined for whatever reason, is irrelevant to the inquiry

[00:30:01] Speaker 00:
the specific availability inquiry, which the Supreme Court in Ross v. Blake outlined.

[00:30:07] Speaker 00:
The program here was unavailable.

[00:30:09] Speaker 00:
As a result of that, he gets to go to the courthouse.

[00:30:12] Speaker 00:
The second point I would point to, Your Honors, is that opposing counsel has not provided any evidence of the availability of this program for Mr. Streets's complaint against Officer Palmer.

[00:30:26] Speaker 00:
None at all.

[00:30:27] Speaker 00:
And for this reason,

[00:30:30] Speaker 00:
Summary judgment is appropriate for our client, or any alternative you could remember.

[00:30:35] Speaker 00:
We do think that the conditions of Albino v. Baca in which this court did grant summary judgment in the absence of a cross motion for summary judgment from the prisoner have been met here.

[00:30:44] Speaker 03:
But if you had filed a cross motion, that would have put them on notice that they needed to get a declaration from Dee Sheffield.

[00:30:50] Speaker 03:
And she might have come in and said, he's lying, I never said any of that.

[00:30:53] Speaker 03:
And we don't know the answer to that question because no cross motion was filed.

[00:30:58] Speaker 00:
We don't know the answer to that question and no cross-notion was filed but I would emphasize your honor that our client was pro se in the proceedings below and so he may not have known exactly

[00:31:08] Speaker 00:
what all to do.

[00:31:09] Speaker 03:
At this point, if we're going to sue Espante, grant summer judgment, the inquiry is whether or not the other side was put on sufficient notice that it needed to cough up all of its cards on a specific point the other way.

[00:31:26] Speaker 03:
And that's the question.

[00:31:28] Speaker 03:
They had their grounds for why they thought they should get summary judgment.

[00:31:32] Speaker 03:
But if they knew it was going to go the other way, they might have then disputed factually the D. Sheffield.

[00:31:37] Speaker 03:
And we just don't know that.

[00:31:39] Speaker 00:
Yeah.

[00:31:39] Speaker 00:
My final point, Your Honor, then I said is that the burden shifting standard in Albino v. Baca is that the ultimate burden of proving non-exhaustion always remains with the defendant.

[00:31:54] Speaker 00:
And what we're saying is that

[00:31:55] Speaker 00:
He therefore was on notice, officer Palmer specifically, that he had to provide all evidence of the lack of availability or the availability of this program for this specific issue.

[00:32:06] Speaker 00:
Thank you for the questions.

[00:32:07] Speaker 02:
Thank you.

[00:32:08] Speaker 02:
Thank you both for your arguments.

[00:32:09] Speaker 02:
The case just argued is submitted.