citizen of the united kingdom who was incarcerated in the state of connecticut for several years as a result of his incarceration he engaged in lengthy and at times different hunger strikes where he would refused to take any nutrition or even at times any liquid nutrition there were a number of underlying actions in both the state of connecticut and  in the district court i believe one action even was here for this honorable court but what we are here on today is the inappropriate dismissal by judge  dismissal was without prejudice to what he had to do he absolutely was told and the circumstances under which he was told was he was deported on  twenty fourth teen from the united states after he had been held for bond eighteen months after his sentence had expired and i give you the background was held by in even gratian services he was held in current corrections department as a prisoner after his sentence had expired and before he'd been charged with anything else what authority it back it's not a part of this case your honor but on the fact that he had said that he might not register as a sex offender but he was not charged with any action nor was any prosecution brought and then after approximately eighteen months that the prosecutor in the that district said well i'm not going to prosecute that literally under cover of night in the morning he was whisked to the airport on the date that he was taken from the united states which i think is june fourth i don't want to say the incorrect a it's in the brief they looked at about five times in the june twenty third to a fourteen and shortly after that there were some communications with the court from the court that were returned to the co indicating that mr coleman had been removed from the united states so in fact the court knew after this june twenty third date that mr coleman had been taken from the united states as a result to send somebody post right now we have also indicated and we presented that to judge watch you know in the motion to reopen this was a man whose was profoundly physically ill and had some mental health issues as well as a result of several years of hunger strike and the details are gory i mean that they ended up getting on water to be able to force feed this gentleman to keep him alive so his physical mental health was very precarious when he was taken suddenly from the united states in the u k he spent time in the hospital that's been presented to judge by trio as an officer of the court it was presented it was not presented as an affidavit but he was mr coleman was hospitalized and then around december of that year he mr coleman became aware of this order knowing that he was no longer an incarcerated person he made efforts to obtain counsel he was not able to do that until march of two thousand and fifteen at which time he retained me as counsel for the underlying action and i filed my appearance with  appearance was showed on the e c f system as a motion it wasn't and that's apparently it was not so but during that period of time he said appearance it didn't say motion who makes a motion to after the time i filed my appearance but also he faulted mr coleman for the period of time from the time he was removed from the country the order entered in july of two thousand and fourteen and then th the motion to dismiss without prejudice entered into life twenty forty and in march twenty fifteen my appearance entered imposing this trick pony and sanction of throwing out this case and i emphasize this was a pro se litigant and he was a pro se litigant until the time and months it takes ten months be between his deportation and his next communicating with the court the last nine months of which happened to be after the dismissal and what point would you concede that radio silence if you will from the plaintiff's would be within would would give the district court  latitude under the busa discretion standard to make the dismissal with prejudice more than that period of time your honor in this particular case it is a case by case basis now this is an individual who had been very involved in his own in his own pro se actions he kept abreast of things and the court also is aware of the precarious health situations of mr coleman so this is a situation where it begs to say look there must be something amiss here that this is not a person who's merely sleeping on his rights it's a person who cannot effectively advocate for himself at this time and that's why i harken back to the fact that this is a pro se up through that period of time there was no pleading for example when you appeared in april or later that chronicled some inability that your client it had as in was institutionalized or something like that that precluded him from so much   i moved to reopen the matter and then when that was denied in the motion for reconsideration i articulated that there were these periods of time prior to december of two thousand and fourteen that mr coleman was hospitalized that you know it's not going to do way with every single date up to my appearance in march but it's going to give the core what the court needs first of all upon my appearance on him is i mr coleman's representative i'm the person to whom pleadings can be directed waters can be directed and through whom obviously litigation is submitted to the court so what the court had dismissed the case for was the failure to have someone for the court to be in touch with the failure to have an address that was met at the time of the march and i'm not excusing surely the purpose of the court having the address is so that the case can proceed so it could move forward absolutely so even if you look at the march i think it was actually a month later which is how it gets us to nine months was april sixteenth this is docket sixty six i'm not sure march is in my apologies my i've miss morning the morning may it please the court my name is lynn when brink i'm an assistant attorney general and it is my honor to represent the defendants in this action the three remaining defendants after some byzantine pleading our former commissioner of correction brian murphy who retired from the department of correction in october of the year two thousand and ten dr suzanne to kate who is a aaa board certified psychiatry is to is the director of mental health services for the department of correction she left their employ in july of two thousand and twelve as well as they both left before the events transpire of their interest to us and therefore their camp that's on the ground for alleged prejudice well by reason of delay right they they left they didn't leave before the events there complained of in the lawsuit although many of obviously by complained of in the lawsuit are and dated but they were correct they left prior to the lawsuit but i i do think that the fact that over the passage of time they have left one of the one of the former defendants peter murphy is scheduled to retire april first but the department of correction is a is an agency that has a fair amount of turnover so they're not the only ones that have of time i mean this would be a burdensome challenge to have to go back and try to recreate things and all the passage of time adds to that the plaintiff has discussed in his brief just talking about  that prejudice can be presumed in as little as two to six months memories fail documents become harder and harder to prove to procure and i do think that in this case prejudice also was fairness by the fact that the allegations were constantly changing so it wasn't as if it was an inefficient action up until that point and then the year kind of brought everything to a halt and it could just pick up again we have the allegations change after the behalf of the plaintiff has indicated he would like to amend the complaint so it's my understanding that they will there were no pleadings during the year and there have been no pleading since other than the motion to reopen i do want to point out that in the motion to reopen attorney palmeri only as counsel for the plaintiff only cited the fact that the plaintiff had deported been deported a year previously he didn't say anything about any hospitalization he didn't say anything about any ongoing health problems those were not brought to the district court's attention until the motion to reconsider at which point in time it's improper to bring forth evidence that was entirely in existence at the time of the motion t plaintiff or his counsel for the extra you know extreme delay which turned out to be thirteen months when all is said and done i would also like to touch on the jurisdictional argument the the plaintive keeps arguing that the rule forty one dismissal in the summer the notice of appeal the rule forty one dismissal without prejudice does not automatically get rolled into the denial of the motion to reopen this case is procedurally identical to watts versus divine which relies on the smith supreme court case smith which is also cited in our brief it's also stated in a case cited relied upon by both parties schrader versus e x s c s x transportation which says that the the dismissal of the original this missile if it is not mentioned in the notice of appeal is not before this court it's beyond this court's jurisdiction even if this court were to consider the factors of political in reviewing a rule forty one dismissal i would respect submit to the court that all of them were met the district court did in fact consider lesser sanctions insofar as it didn't initially issue an order dismissing with prejudice but without prejudice so had the plaintiff complied with the court's rules and soon after he was deported said here's my new address and here's why i couldn't communicate with you previously and that instance perhaps we wouldn't be here obviously but the court did consider lesser sanctions and it didn't enter judgment until a full year with absolutely no communication other than an appearance by counsel with nothing further had been filed i do think that jurisdictional list argument is important and we would respectfully ask the court to consider that the pro se plaintiff certainly had the ability to communicate with this court he had shown on multiple occasions multiple lawsuits that he was and able an effective litigator on his behalf and he certainly could send a letter to the district court saying i've been deported post the evidence of this record that he's active from say well if you look at the sheet you see numerous pleadings that he filed on his behalf in fact i in reviewing to prepare for the argument your honor in one of them in a couple of them he moved for the appointment of counsel and he would say i'm writing this from the hospital from the department of correction infirmary or the department of correction hospital so he was able to communicate numerous occasions with the court acting pro se and proceeds are not relieved of all obligations they're not relieved you don't have to be an attorney to understand that you need to communicate with the court he had been warned on multiple occasions so there's no really no excuse justifying the long delay here that was collective plaintive delayed for nine months and then his counsel delayed for four months and the prejudice to the defendants is nearly automatic i mean it can certainly be presumed that they have the right to rely on an finality of judgement to proceed with their other affairs and the district court has the ability to take into account other litigants before it as well as the interests of the pla i think that the argument that counsel is making with regard to the appearance does not rise to the level of excusable neglect filing an appearance and then waiting a full four months before communicating with the court as experienced counsel simply doesn't wash as excusable neglect as something that and and experience counts would say i'm just going to wait for the court to act on my my appearance before i do anything further the district courts discretion in this case was in in no way abused and we would ask for  time in the course of unfortunately that's true it's not an and is not on a reasonably long amount of time particularly in important cases such as this case certainly a case that was started by dismissal and then the case went to judgment what lesser sanction was considered there was no lesser sanction there was not any imposition of a stricter timeframe which going to been done there was not any  imposition of any kind of rule as to what might or might not be allowed in the case as a result of the delay and the delay it was not it was thirteen months but it was not on reasonable delay  rule forty one the rule forty one five part test talks about reopening cases that have gone to judgment as well so it's appropriate to have to review these five points the duration of the plaintiff's failures the we can look at that as the time in which the plaintiff did not reply for thirteen months and whether the plaintiff and received further notices were received notice that further delays would result in  missal there have not been any notices that further delays there was a delay in this case and then once we came to the court and said let's reopen this it was denied it was denied after the first ten months and it was not the night after the subsequent as a result the first ten months not your honest talked about prejudice to the defendants all of the matters that judge by trudeau discussed as the core points out were matters that were in place before any of these issues arose so no additional no additional prejudice to the defendants accrued the prejudice is to the pro se plaintiff not being able to litigate this matter thank you thank you