[00:00:00] Speaker 03:
And the case just argued will be submitted.

[00:00:15] Speaker 03:
And we'll proceed to hear argument in the next case on calendar for this morning, which is 24-5130.

[00:00:28] Speaker 03:
Enrique Zacarias Diaz versus D Loya.

[00:00:33] Speaker 03:
And we will hear first from Mr. Nichobo.

[00:00:39] Speaker 03:
Did I pronounce that correctly?

[00:00:40] Speaker 04:
You got it perfectly.

[00:00:41] Speaker 03:
All right.

[00:00:41] Speaker 03:
Great.

[00:00:42] Speaker 03:
Thank you.

[00:00:42] Speaker 03:
You may proceed.

[00:00:43] Speaker 04:
Thank you, Your Honor.

[00:00:44] Speaker 04:
May it please the court.

[00:00:46] Speaker 04:
I would like to reserve three minutes for rebuttal.

[00:00:50] Speaker 04:
My client, Mr. Enrique Diaz, is imprisoned in eastern Oregon, where he alleges that

[00:00:56] Speaker 04:
Correctional staff called him the same racial slur over and over and over again.

[00:01:01] Speaker 04:
He testified below that when he tried to file a grievance for the first of those incidents, as required by the Prison Litigation Reform Act, he was, quote, ignored for months, for three months.

[00:01:16] Speaker 04:
He also testified that when he tried to file a grievance and when he ultimately obtained, tried to obtain the officer's name,

[00:01:22] Speaker 04:
We now know that name corresponds with nobody that actually works at that prison And the officer didn't have a name tag as well and the officer that's correct Your honor the officer also was not wearing a name tag at least taking all facts and inferences in favor of the plaintiff as required The officer was not wearing a name tag during this entire instance So what from your clients perspective could he have done to exhaust as to at least that actor and other other guards at issue?

[00:01:51] Speaker 04:
Your Honor, the process was effectively unavailable to him.

[00:01:55] Speaker 04:
There's nothing he really could have done to exhaust during this time frame.

[00:01:59] Speaker 04:
And that's true for a number of reasons.

[00:02:02] Speaker 04:
First, as you noted, Oregon law requires him to identify the specific officer who- Did he know that?

[00:02:10] Speaker 00:
Did he know that at the time?

[00:02:12] Speaker 00:
Because we know he would have known it after, because there were other grievances later that were denied for that reason.

[00:02:18] Speaker 00:
But at the time that we're talking about the Douglas incident,

[00:02:21] Speaker 00:
Did he know that he needed to name the officer as part of the grievance?

[00:02:26] Speaker 04:
That's the record below.

[00:02:27] Speaker 04:
If you look at ER 29, that's Mr. Diaz's declaration.

[00:02:31] Speaker 04:
He says that he was trying to file in May 2022.

[00:02:38] Speaker 04:
But he says he couldn't do so, and he ended up filing late because he couldn't identify the officer's name.

[00:02:44] Speaker 04:
So I think the only inference you can take from that is that during this three-month time frame, what he was trying to do was figure out, who is this officer that had called me the racial slur?

[00:02:55] Speaker 00:
So the other thing I'm trying to think about here is, is there some sort of a diligence overlay in this kind of, because this makes sense, right?

[00:03:05] Speaker 00:
administrative requirements that I have to meet to do this to file my grievance and I'm having a struggle meeting one of them or whatever is there a Diligence overlay in the sense of you know somebody could just say well I don't know his name I throw my hands up I don't know his name and five years later I'll find my grievance when I happen to come upon his name right like I understand those aren't the facts here, but I'm trying to figure out like What is his obligation to figure it out?

[00:03:31] Speaker 04:
I?

[00:03:31] Speaker 04:
Think certainly if he's going to come into

[00:03:33] Speaker 04:
Later on and say that the process was unavailable to him.

[00:03:36] Speaker 04:
He can't just say that I didn't personally know it He has to show that he I do think there's some diligence overlay He has to show that he tried in the past that that path was blocked him, but that's what we have here So what are the facts that show that he tried and his path was blocked?

[00:03:53] Speaker 04:
I think those are again in er 29 in mr. Diaz's declaration.

[00:03:57] Speaker 04:
He says that he was being ignored for months and

[00:04:00] Speaker 04:
A reasonable inference from that is that he was attempting to do something during that time frame.

[00:04:04] Speaker 04:
He also says that the officer wasn't wearing his name tag for months.

[00:04:09] Speaker 04:
Again, I think a reasonable inference from that is that he was trying to identify the officer's name.

[00:04:13] Speaker 03:
The problem I have is that even if you can get past all of this stuff on the Douglas one, and you excuse the untimeliness, you excuse everything else, and even if you combine that with the other two as really treating it as one claim,

[00:04:29] Speaker 03:
When you get to the four claims pending rule, I don't see that that's going to cure that problem.

[00:04:36] Speaker 03:
How many claims do you have pending at the time when the four claim rule was invoked?

[00:04:42] Speaker 04:
For this first Douglas incident in August, Your Honor?

[00:04:46] Speaker 03:
Well, they're all submitted.

[00:04:47] Speaker 03:
The three of them, what was the time frame in which they were submitted?

[00:04:53] Speaker 03:
So Mr. Diaz submitted... Not the date of the underlying incidents.

[00:04:57] Speaker 03:
When were they actually submitted?

[00:04:59] Speaker 04:
So Mr. Diaz submitted the first incident in August, I believe it's August 23rd, 2022.

[00:05:03] Speaker 04:
That was for the May 22, that's the incident.

[00:05:07] Speaker 03:
So August 23rd, the next one?

[00:05:09] Speaker 04:
August 29th is when he filed the next one.

[00:05:12] Speaker 03:
All right, and then the third?

[00:05:14] Speaker 04:
The third one, he did not.

[00:05:15] Speaker 04:
He didn't file at all.

[00:05:17] Speaker 03:
That's correct, that's right.

[00:05:18] Speaker 03:
He didn't file, okay.

[00:05:19] Speaker 03:
But at that time in late August, how many did he have pending?

[00:05:23] Speaker 04:
By the time he filed,

[00:05:26] Speaker 04:
The Douglas incident, that was the sixth complaint for that month.

[00:05:30] Speaker 04:
So he was over the four grievance limit at that point.

[00:05:34] Speaker 03:
Right.

[00:05:34] Speaker 03:
But how many did he have?

[00:05:35] Speaker 03:
There's two rules.

[00:05:36] Speaker 03:
You can only have four per month, and you can only have four pending.

[00:05:39] Speaker 03:
How many did he have pending?

[00:05:41] Speaker 04:
I don't believe that ODOT tells us exactly how much he had pending, but they did tell him that he was over that four pending limit.

[00:05:49] Speaker 03:
OK.

[00:05:49] Speaker 03:
I mean, because he had a number of other things pending, including for things like, I need a snack,

[00:05:56] Speaker 03:
I would like the staff to change the channel more often.

[00:06:00] Speaker 03:
And the office had turned out the lights too soon.

[00:06:03] Speaker 03:
So I mean, this seems like exactly the kind of grievance filing that the four claim rule is designed to prevent.

[00:06:14] Speaker 03:
I mean, this is someone who is abusing the system by filing trivial things in large numbers and clogging the system.

[00:06:25] Speaker 03:
And then now you claim, well, this is the one that really counts.

[00:06:30] Speaker 03:
But he's used up his four on the lights in the TV.

[00:06:38] Speaker 04:
Let me make two points about that, Your Honor.

[00:06:41] Speaker 04:
First, I think that makes it all the more important that he would have been able to file this grievance in May.

[00:06:48] Speaker 04:
The relevant part of Mr. Diaz's theory with respect to exhaustion is this.

[00:06:53] Speaker 04:
This was a May complaint that should have been filed in May.

[00:06:57] Speaker 04:
It only ended up being filed in August because of the state's conduct.

[00:07:02] Speaker 04:
That's what makes this case like Eaton from our perspective.

[00:07:05] Speaker 04:
In Eaton, too, you had a four grievance limit.

[00:07:08] Speaker 04:
And in Eaton as well, you had a plaintiff who you could say was a serial filer because he had gotten over that four grievance limit.

[00:07:15] Speaker 04:
But what this court had said in Eaton is that, well, if it's the state's conduct that's maybe causing these complaints to pile up or any ways,

[00:07:24] Speaker 04:
then if the state's causing the procedural denial, then we're in Ross Category 3, where you have a situation where the state is in some way thwarting the inmates' ability to grieve.

[00:07:36] Speaker 03:
And that's the theory that we're... Couldn't he have withdrawn some of these?

[00:07:39] Speaker 03:
You know, I won't worry about the TV and the lights because I now care about it.

[00:07:43] Speaker 03:
So I'll withdraw those and now use this slot as one of the four.

[00:07:49] Speaker 03:
He could have done that, right?

[00:07:50] Speaker 04:
He could have withdrawn, and that would have solved perhaps the active grievance limit.

[00:07:56] Speaker 04:
It would not have solved the monthly grievance limit.

[00:07:58] Speaker 03:
Right, but they're cumulative.

[00:07:59] Speaker 03:
You have to solve all the problems.

[00:08:01] Speaker 03:
And that's my point, is you may be able to solve the problem of May versus August, but you can't get past the problem that he's already clogged the system with four trivial ones.

[00:08:16] Speaker 04:
Well, Your Honor, at first I would dispute.

[00:08:17] Speaker 03:
And he could withdraw those.

[00:08:19] Speaker 04:
I would first dispute the fact that these other grievances are necessarily trivial.

[00:08:24] Speaker 04:
That's, if you look at, I believe you're looking at ER 66 and 67, that's the grievance history where it's, so is that.

[00:08:31] Speaker 04:
But if you actually go and look at those grievances, oftentimes what's actually being alleged is quite different than how the prison characterizes it.

[00:08:38] Speaker 04:
A good example of that is even in the grievance that's with respect to Mr. Douglas that's here, that's at issue,

[00:08:44] Speaker 04:
There's no mention of discrimination.

[00:08:46] Speaker 04:
I think if you're looking at your 66 or 67, there's no mention of discrimination in how the state characterizes that complaint.

[00:08:51] Speaker 04:
It's just, well, I want him fired for unprofessional conduct.

[00:08:54] Speaker 04:
But when you actually go look at the grievance, what he's saying is.

[00:08:56] Speaker 03:
Correct.

[00:08:57] Speaker 03:
No, that's right.

[00:08:58] Speaker 03:
Those are the serious ones.

[00:08:59] Speaker 03:
But he files one of the ones at issue here on the 29th.

[00:09:07] Speaker 03:
But he has four others, actually five others, on the same day.

[00:09:14] Speaker 03:
The sink needs fixed in cell.

[00:09:18] Speaker 03:
Food needs to be dated when made.

[00:09:21] Speaker 03:
The hot water is too hot.

[00:09:25] Speaker 03:
So he's using up his slots on other things.

[00:09:30] Speaker 03:
And how are you going to get this down below four, even if all this May stuff goes away?

[00:09:37] Speaker 04:
Your honor, he can't get it down below four, but that to me is exactly why it was so important that he should have been able to file this May grievance in May.

[00:09:44] Speaker 04:
This is a May complaint.

[00:09:45] Speaker 04:
It should never be in this August scenario where you have all these other complaints.

[00:09:50] Speaker 04:
And in May, your honor, he actually, I mean, to some extent, it's kind of a miracle.

[00:09:53] Speaker 04:
This guy is a guy that files a lot, but in May, he actually had capacity.

[00:09:58] Speaker 04:
If you go back and look in the May grievances, had he filed it then, it actually would have sailed through.

[00:10:04] Speaker 04:
So and the reason why he ends up filing in August, and this is our critical point, the reason why he ends up filing in August is only because it takes him months to identify this prison guard's name.

[00:10:15] Speaker 04:
And that's the state's own conduct that's forcing this all to happen in August.

[00:10:19] Speaker 00:
I mean, I have a related question, I guess, in that are you aware of any authority that sort of upholds this kind of a frequency limitation?

[00:10:29] Speaker 00:
Because it's easy to point to the facts here and say, oh, we need a rule like this because this guy is filing all this seemingly frivolous stuff.

[00:10:36] Speaker 00:
But what if you had somebody who had legitimate constitutional violations in a short period of time in a series?

[00:10:43] Speaker 00:
And I'm just curious like has any court said that this kind of a limitation is just inherently valid I I looked into that your honor That's one of the arguments.

[00:10:53] Speaker 04:
We wanted to make there's an unpublished case in the 11th circuit I'll have to get the exact site for you where they looked at a similar grievance limitation rule, and they said that the

[00:11:04] Speaker 04:
prison's ability to set these grievances, set these grievance limits without more, does not run afoul of the Prison Litigation Reform Act or any constitutional remedies.

[00:11:13] Speaker 03:
And so, and here in this case, obviously... But certainly, I mean, you know, if we have a really bad prison with a really rotten prison guard and he's beating someone every day, then it, you know, if you get to five with something like that,

[00:11:30] Speaker 03:
That's going to look a lot different from a constitutional point of view.

[00:11:33] Speaker 03:
You'd agree with that, obviously.

[00:11:36] Speaker 04:
I would agree with that, Your Honor.

[00:11:37] Speaker 04:
I would.

[00:11:38] Speaker 04:
I think here, Eaton did address the same rule, this four grievance rule here in Oregon.

[00:11:44] Speaker 04:
And there wasn't any indication from the court that there was a problem with the rule.

[00:11:47] Speaker 03:
But my point is, if you look at the array of August complaints, this is in the heartland of why the four grievance rule is put in place and why, in that respect, it would not be constitutionally problematic.

[00:12:00] Speaker 04:
that we're not bringing a facial talent challenge to the four grievance rule for that reason what we are arguing is that there is still something in mr. Diaz's particular case that may have rendered these generally available remedies effectively unavailable to him in that time frame and that's the fact that

[00:12:18] Speaker 04:
There are disputed questions of fact as to whether the prison itself was engaged in any machination or misrepresentation.

[00:12:26] Speaker 03:
Again, I guess I get back to the fundamental question.

[00:12:28] Speaker 03:
Do you dispute that he could have withdrawn enough of these other August grievances to pull the number down below four and failed to do so?

[00:12:37] Speaker 04:
Absolutely, I dispute that, Your Honor.

[00:12:40] Speaker 04:
Had he withdrawn, let's play that out.

[00:12:43] Speaker 04:
It's August, and he files this.

[00:12:44] Speaker 04:
Could he withdraw other complaints?

[00:12:48] Speaker 04:
potentially withdraw complaints to get it under the four active grievance limit, but there's nothing he can do about the fact that the grievances have already been submitted that month.

[00:12:56] Speaker 04:
There are different requirements.

[00:12:58] Speaker 04:
There's an active grievance limit and then there's a monthly submission cap.

[00:13:02] Speaker 03:
And withdrawal on the monthly submission cap can't be cured by, I mean, if you file for the four file per month can't be undone by withdrawing them?

[00:13:14] Speaker 04:
I don't see anything in the rules that suggest that that you could your honor that that could be the case and Second another problem is he still hasn't correctly identified this person's name or correctly identified this officer so even in this scenario where let's say it's withdrawn and this Grievance becomes procedurally proper for that reason

[00:13:35] Speaker 04:
This is a dead end.

[00:13:37] Speaker 04:
This is the exact type of dead end that the Supreme Court, as explained in Ross, does not need to be pursued.

[00:13:43] Speaker 04:
He isn't, to this day, we don't know who this officer is.

[00:13:46] Speaker 04:
ODOT's counsel admitted they don't even know who this officer is.

[00:13:49] Speaker 04:
That's a dead end, Your Honor.

[00:13:50] Speaker 03:
Do we have some time for rebuttal?

[00:13:51] Speaker 04:
Yes, Your Honor.

[00:13:51] Speaker 03:
All right, thank you.

[00:13:52] Speaker 04:
Thank you very much.

[00:13:53] Speaker 03:
All right, we will hear next from Ms.

[00:13:59] Speaker 03:
Naito.

[00:14:00] Speaker 01:
Naito, Your Honor.

[00:14:00] Speaker 03:
Naito, okay.

[00:14:02] Speaker 03:
You may proceed.

[00:14:03] Speaker 01:
Good morning, and may it please the court, Kirsten Nadeau on behalf of ODOC and the state defendants.

[00:14:11] Speaker 01:
The question here is whether plaintiff may be excused from exhausting his first grievance because no remedy was available.

[00:14:18] Speaker 01:
But the record demonstrates that additional remedies were available, and this court should affirm.

[00:14:23] Speaker 01:
I'd like to start with the timeline here.

[00:14:28] Speaker 01:
And just in defendant's view,

[00:14:33] Speaker 01:
A plaintiff is incorrectly reading the record when he suggests that he could not remedy the procedural violations in August.

[00:14:45] Speaker 03:
He said that withdrawing to get below the four pending would work, but it wouldn't work for the four per month.

[00:14:55] Speaker 03:
Is that correct?

[00:14:56] Speaker 03:
What does the rule say about that?

[00:14:58] Speaker 01:
So I don't think the rules expressly say that if you withdraw to reduce the number under four, you can then meet the monthly limit.

[00:15:09] Speaker 01:
But in this case, what we do know is that the plaintiff here filed seven grievances on August 23rd, including some of the ones that Your Honor has already pointed out.

[00:15:22] Speaker 01:
And that on August, shortly thereafter,

[00:15:28] Speaker 01:
The I believe the same day the the grievances including the one at issue here were denied on those procedural read read for those procedural reasons because the rules permit a An adult in custody to refile that grievance within 14 days of the initial denial plaintiff here could have refiled this grievance and

[00:15:52] Speaker 01:
The next month plaintiff would have had plenty of time within that 14 days and would not have Excuse me been bumping up against that for grievance limit is it in the record that he would know that So here we do have in this record that plaintiff attended the grievance procedure training in I think multiple times, but definitely in April of 2022 plaintiff had withdrawn grievances in the past and filed them and

[00:16:21] Speaker 01:
That I don't know that plaintiff refiled them.

[00:16:24] Speaker 01:
But there is nothing in this record to indicate that plaintiff was unaware of the rules.

[00:16:28] Speaker 01:
And I think the record.

[00:16:30] Speaker 03:
Is there anything in the record that suggests that he had ever refiled one after an initial procedural denial within 14 days as you're positing?

[00:16:41] Speaker 01:
Not that I am remembering off the right now.

[00:16:44] Speaker 01:
I would need to go back and probably reread all of those grievances.

[00:16:49] Speaker 01:
But what I will say,

[00:16:50] Speaker 01:
that you know we know that plaintiff could have you know refiled that grievance within the next month because plaintiff did have a grievance that was accepted in September if he refiled it would he have known the identity of the guard at that point so at that point he could have refiled he would have you know to his knowledge and even to his knowledge you know when when he got into the district court the identity of this prison guard was jay douglas and

[00:17:20] Speaker 01:
And at that point, that issue could have been brought to his attention and to the attention of defendants.

[00:17:29] Speaker 00:
But the record is that it's actually not Douglas, right?

[00:17:31] Speaker 00:
That that's not a person.

[00:17:33] Speaker 01:
That is correct.

[00:17:34] Speaker 01:
And defendants have not been able to find that person.

[00:17:37] Speaker 01:
But I think that issue illustrates why we have the grievance procedure and why this court and the Supreme Court has said that,

[00:17:48] Speaker 01:
You know, this type of administrative process is important in developing these types of claims so that they can be addressed closer in time so that the record can be developed around those issues.

[00:18:00] Speaker 00:
So the refiling process that you've just described, there's also a deadline, right?

[00:18:07] Speaker 00:
Like you have an incident and then you need to grieve it within a certain period of time.

[00:18:10] Speaker 00:
So that refiling process, does that avoid any statute of limitations problems?

[00:18:16] Speaker 01:
The 14-day problem?

[00:18:18] Speaker 01:
So let me be clear as to this grievance, filing from May 22nd in August, that is going to be beyond the timeliness.

[00:18:31] Speaker 01:
And refiling the grievance within 14 days would not excuse that untimely filing.

[00:18:37] Speaker 00:
Right, but if something is, if you file it and you have too many going on,

[00:18:43] Speaker 01:
You filed too many that month, but it would have been timely and then you get denied for that frequency problem But then you wait and you refile it in 14 days to overcome that problem, but now it's untimely My understanding from reading the rules is is that that would excuse that 14-day Timeliness issue because you had filed the initial grievance within the 14 days so that is the way that I read and understand the rules that we're dealing with here and

[00:19:14] Speaker 03:
So how many did he have pending at the time that these were denied, the two that he did file?

[00:19:28] Speaker 01:
So at the time, on August 23rd, again, the record shows that he filed seven grievances.

[00:19:35] Speaker 01:
The first four were actually denied for other various

[00:19:43] Speaker 01:
procedural defects and the final three were denied in part because of the number of grievances he had filed on that one day and under the rules an active grievance is one that is You know that it is filed and then is within the the limitation period which with which it can be refiled so the you know the the

[00:20:12] Speaker 01:
The number of grievances the way that I read the record that he had when he filed the May 22nd Incident was he had four pending and he filed an additional three that day on the 29th I You know I think at that point he had you know he was still up against the number that he had already filed that month and so I and I

[00:20:40] Speaker 01:
Don't have the exact list on me had he been denied for filing too many at a time prior to august the So the record shows that he had filed between 40 grievances I think in between April and

[00:21:07] Speaker 03:
August and I apologize that I the chart shows you exceeded the limit in February.

[00:21:13] Speaker 03:
I mean if you just not the pending limit right for the monthly total he he filed seven or eight in February and at least a half dozen in March.

[00:21:25] Speaker 00:
My question is more, was he denied for the reason of filing too many at a time?

[00:21:30] Speaker 00:
Because if in prior months he was exceeding that procedural bar and not being denied for that reason, then what do we do with that?

[00:21:39] Speaker 01:
I apologize.

[00:21:40] Speaker 01:
I don't know the answer to that question.

[00:21:43] Speaker 01:
I would direct this court to the exhibit that

[00:21:48] Speaker 01:
that Judge Collins was looking at in terms of the number.

[00:21:52] Speaker 03:
But... But this doesn't give either the denial date or the grounds for the denial, and that's Judge Forrest's question.

[00:21:58] Speaker 01:
Oh, okay.

[00:21:59] Speaker 01:
So the, you know, Exhibit 10, which is also in the record, does contain all of the grievances, does contain all of the denial reasons, and I apologize that I don't have all of those... For this chart?

[00:22:12] Speaker 01:
For that whole chart, yes.

[00:22:16] Speaker 01:
So Exhibit 10,

[00:22:17] Speaker 01:
Has including the seven that I that I have specifically look you know the seven that were filed on August 23rd Which were you know returned for the untimeliness reasons?

[00:22:29] Speaker 01:
It also contains I believe all of the grievances that he filed before that so So this court has that information the district court had that information in in front of it Can we would you address your?

[00:22:42] Speaker 00:
Opposing counsel's argument that what we should really do is we should look at back at May when?

[00:22:47] Speaker 00:
If he'd had the information he needed to file the grievance closer to the time that the incident happened He wouldn't have had this frequency problem.

[00:22:54] Speaker 01:
Why isn't that the right way to look at this so two answers first is that the his Denial of the denial of his grievance in August for the May 22nd incident was not based on That was not based entirely on on the timeliness that was referenced in the denial of

[00:23:14] Speaker 01:
but but that that rule permits an adult in custody to Explain why the grievance was not timely filed so that you know there's there's nothing in this record that would preclude him from obtaining relief now as to the name of the official of the officer you know the the

[00:23:44] Speaker 01:
The reason that this court should not look at it kind of on in that backward glances or sorry backward looking is that again that was not the reason that this was That this was denied and that was a rule right I mean it is a rule he was denied on other grievances on that basis correct and so It doesn't seem unreasonable for us to think you know if he didn't have that information that

[00:24:12] Speaker 01:
Closer to the time of the incident that the fair implication would be if he had filed his grievance It would have been denied for having that piece of information missing so that that kind of interpretation would would basically permit you know permit permit ase's to circumvent circumvent you know these procedural rules by delaying and and kind of and and filing these late claims and and the the plra has

[00:24:41] Speaker 01:
you know, requires exhaustion, and under Woodford, requires proper exhaustion.

[00:24:45] Speaker 01:
And so that's why, you know, this, you know, and then.

[00:24:49] Speaker 00:
It's a little bit like having it both ways, it seems, right?

[00:24:52] Speaker 00:
Like, the prison has a whole long list of rules.

[00:24:55] Speaker 00:
Some of them are fairly complicated.

[00:24:57] Speaker 00:
And you're saying, in this context, well, you should have just ignored them and filed anyways and seen how it was going.

[00:25:04] Speaker 00:
Because we probably would have given them a pass on the rule or something.

[00:25:09] Speaker 00:
I don't understand how we're supposed to look at that, because we have evidence in the record that the president wasn't giving a pass on many of these rules and other circumstances.

[00:25:17] Speaker 00:
So why should we think that it would have earlier?

[00:25:19] Speaker 01:
Oh, I don't think that this court should assume that defendants would have given him a pass on the identity.

[00:25:27] Speaker 01:
I think what defendants' position is in this case is that when he filed his

[00:25:33] Speaker 01:
grievance in August.

[00:25:36] Speaker 01:
The reasons for the denial were that he had filed more than four in a month, and he was beyond the four grievance limit.

[00:25:45] Speaker 01:
And he did not explain why his grievance was untimely.

[00:25:49] Speaker 01:
And so the defendants didn't even get to the identity of the person in those grievances.

[00:26:01] Speaker 01:
Plaintiff here has not identified how he would get around and how he would have exhausted those claims on that basis.

[00:26:10] Speaker 03:
I thought you said that he, you know, for the four timeliness, you know, four pending that that could have been refiled within 14 days.

[00:26:22] Speaker 03:
Yes.

[00:26:23] Speaker 03:
And bring it into that.

[00:26:24] Speaker 03:
That's not mentioned in the explanation.

[00:26:27] Speaker 03:
I would have thought that would be something that would be said in the denial that this is denied because you're over the limit but you could file, refile within 14 days if that gets you into September and then, you know, but there's nothing to that effect.

[00:26:43] Speaker 01:
So it's true that that's not expressly set out in the denial but that is provided for in the rules that a procedural defect can be cured and that's why

[00:26:53] Speaker 01:
You know, the rules do not permit an appeal from a denial based on these kinds of procedural defects.

[00:26:59] Speaker 01:
The grievance is returned to the AIC and they are given the opportunity to remedy that.

[00:27:08] Speaker 01:
And, you know, again, the record here, you know, and it's undisputed that this AIC had attended the training on the grievance process, had utilized the grievance process in the past,

[00:27:23] Speaker 01:
And plaintiff did not at any time before the district court assert any kind of claim that that process, he was unaware of the process or the process was unavailable to him, such as to render a remedy unavailable the way that it was in other cases.

[00:27:42] Speaker 03:
Do you agree that given our ruling on the prior appeal that we should treat

[00:27:49] Speaker 03:
this pattern and practice claim is essentially one grievance and not three?

[00:27:57] Speaker 01:
So I think the important thing here is even if the court does treat it as one grievance, plaintiff still needs to get over the exhaustion on this May 22nd claim, which plaintiff cannot do.

[00:28:12] Speaker 01:
So even if the court does treat it as one, the... Suppose we disagree.

[00:28:17] Speaker 03:
Suppose we think he can get passed in May 22nd.

[00:28:21] Speaker 03:
And then the question is, can he treat it as one?

[00:28:25] Speaker 03:
And then does that get us within or under four?

[00:28:30] Speaker 03:
So my question on the second one is, do you agree?

[00:28:33] Speaker 03:
Because we basically said, I mean, reading it in context, that each of the three claims individually didn't state a claim.

[00:28:42] Speaker 03:
But if you view the three together as a pattern, that's a claim.

[00:28:46] Speaker 03:
So he basically needs the three pieces in the pattern.

[00:28:49] Speaker 03:
But why isn't that one claim?

[00:28:51] Speaker 03:
I mean, if you have run a prison where all the guards engage in multiple acts of harassment and create a pattern, and you say, aha, but there were five guards who harassed you, and now you have five claims.

[00:29:04] Speaker 03:
I mean, truly, that can't be the way this runs.

[00:29:08] Speaker 01:
No, I agree.

[00:29:09] Speaker 01:
I think under the facts of this case, it's a little bit different than the scenario that Your Honor just suggested.

[00:29:15] Speaker 01:
And that's because the record here is we have this plaintiff

[00:29:19] Speaker 01:
this AIC, you know, filing a grievance for the May 22nd incident, and then a few days later filing a grievance for, I believe, the August 26th incident.

[00:29:32] Speaker 01:
And those two could perhaps, you know, at that point, you know, had they been properly accepted, you know, put the department on notice.

[00:29:42] Speaker 01:
But if the, if a,

[00:29:49] Speaker 01:
If an AIC is alleging a pattern in practice, you know, grieving one incident is not going to be sufficient to put the department on notice that there is a kind of prolific problem, a continuing problem.

[00:30:03] Speaker 01:
And so the purposes of the exhaustion requirement are not served under that scenario.

[00:30:08] Speaker 01:
This is very different than the cases where this court has, you know, permitted that continuing

[00:30:15] Speaker 01:
violation, doctor, and I'm well out of my time.

[00:30:21] Speaker 03:
If we're asking questions, then we keep going.

[00:30:23] Speaker 03:
If you don't have the pattern in practice until we get to three claims, then maybe you don't have the claim until you get to three, and so maybe the may thing just doesn't matter because you need the pattern, and so the last one is when you have the single claim and so there's no timeliness issue, and then it's just the issue of four.

[00:30:46] Speaker 03:
And then the question is, does getting this down to one claim, are you below four at that point, or are we still clogged with four others over the bar of soap, the TV, and the lights?

[00:30:59] Speaker 01:
I believe the way that I read the record is this AIC would still have the problem of the four pending, because the last grievance was also filed in August.

[00:31:13] Speaker 01:
and had, you know, exceeded the number for that month and that were pending at that time.

[00:31:19] Speaker 03:
Okay.

[00:31:19] Speaker 01:
All right.

[00:31:19] Speaker 01:
Thank you.

[00:31:20] Speaker 03:
Thank you, counsel.

[00:31:22] Speaker 03:
All right.

[00:31:22] Speaker 03:
We took your opponent over time, so I'm going to give you the three minutes you had asked for.

[00:31:26] Speaker 04:
All right, Your Honor.

[00:31:27] Speaker 04:
Thank you very much.

[00:31:31] Speaker 04:
So just to clarify the timeline again, Mr. Diaz cannot grieve in May because he reasonably believes he has to identify the identity of this officer.

[00:31:42] Speaker 04:
and he can't do so because he's being ignored.

[00:31:44] Speaker 04:
So May is foreclosed from him.

[00:31:47] Speaker 04:
Then we get to August.

[00:31:50] Speaker 04:
He cannot grieve in August, Judge Collins, because of the monthly cap.

[00:31:54] Speaker 04:
And I want to read the rule to you exactly.

[00:31:58] Speaker 04:
Division 109 at section 215, subsection 2.

[00:32:03] Speaker 04:
And adults in custody may not submit more than a combined total of four initial grievances and discrimination complaints per calendar month.

[00:32:12] Speaker 04:
And that's all we have.

[00:32:13] Speaker 03:
But the problem here, and I want you to focus on this because I think it's really an important point.

[00:32:22] Speaker 03:
The first of the two grievances at issue, he files on August 23rd.

[00:32:28] Speaker 03:
That is his sixth for the month of August.

[00:32:33] Speaker 03:
And among the four are, I wanted three bars of soap, the lights were turned off too soon, the channel needed on the TV needed to be changed more often, and I need a snack.

[00:32:47] Speaker 03:
So we've already clogged the system with four trivial ones before we get to this under any count.

[00:32:54] Speaker 03:
Why don't you just lose for that reason alone and nothing else matters?

[00:32:59] Speaker 04:
because he never would have been, because it's the state's conduct that led to him being in that situation where he's trying to file in a month where he's already clogged.

[00:33:08] Speaker 03:
It's his own fault that it's clogged.

[00:33:10] Speaker 03:
He's complaining about TV and bar of soap and lights and silly stuff.

[00:33:16] Speaker 04:
Yes.

[00:33:17] Speaker 03:
And then he has a serious claim and guess what?

[00:33:20] Speaker 03:
Maybe you shouldn't, you know,

[00:33:24] Speaker 03:
you know, play games with the system this way.

[00:33:26] Speaker 04:
But Judge Collins, it's the state's fault that he's having to file in August at all.

[00:33:31] Speaker 04:
And that's what makes this case like Eaton.

[00:33:33] Speaker 04:
If you look at Eaton, you have a similar situation where you have a prisoner who filed a lot of grievances.

[00:33:39] Speaker 04:
He was over the limit.

[00:33:41] Speaker 04:
But what Eaton said is that if the state is in part forwarding the inmates' ability to grieve,

[00:33:49] Speaker 04:
then that brings us into Ross Category 3.

[00:33:52] Speaker 04:
And that's exactly what we have here.

[00:33:54] Speaker 04:
Yes, you're right that he did file too much in August, but this is a May complaint.

[00:34:00] Speaker 04:
It never should have been in August.

[00:34:03] Speaker 04:
This court in Albino, the Ambanc Court said, if there's a single disputed question of fact with respect to exhaustion, then the proper procedure is you deny summary judgment, and you promptly hold an evidentiary hearing.

[00:34:15] Speaker 04:
Because this is a threshold issue.

[00:34:16] Speaker 04:
Then the case proceeds from there.

[00:34:18] Speaker 04:
There are a number of disputed questions of fact here, Your Honors.

[00:34:21] Speaker 04:
And so the right procedure is that you don't have to make the determination once and for all.

[00:34:25] Speaker 04:
You just deny summary judgment.

[00:34:27] Speaker 04:
You send it back to district court to hold that evidentiary hearing.

[00:34:30] Speaker 04:
And we get to the bottom of questions like, why was he being ignored?

[00:34:34] Speaker 04:
Who is this officer?

[00:34:35] Speaker 04:
Why was the officer not wearing his name tag?

[00:34:38] Speaker 04:
All disputed questions of fact, Your Honor.

[00:34:40] Speaker 00:
All right.

[00:34:40] Speaker 00:
Thank you.

[00:34:41] Speaker 00:
I have one last question.

[00:34:41] Speaker 00:
Go ahead.

[00:34:41] Speaker 00:
If we disagree on the continuing violation theory,

[00:34:44] Speaker 00:
And we think that only this Douglas incident might survive.

[00:34:50] Speaker 00:
Is that enough for you to keep going?

[00:34:52] Speaker 04:
It is, Your Honor.

[00:34:53] Speaker 04:
I mean, if you disagree on the continuing violations theory, if you disagree with the previous panel that this is really just one claim, such that exhaustion for one, I think, would suffice for exhaustion for the others, well, then we're in the scenario where we were before the first panel ruled, where you still have three different lawsuits.

[00:35:12] Speaker 04:
you know, the suit against Jay Douglas and ODOT as a named defendant there.