reversed for two reasons first the district court abused its discretion in terminating mr nance's shaving waiver without a warning as a sewer sponte sanction second the district court erred in granting summary judgment in favor of the defendants on all of this religious diet claims based on evidence that was never said submitted to him during discovery as for mr nance the shaving waiver claim the district court only told mr nance that the hearing would be over if he failed to sit in a particular chair in the prison conference room during the telephone conference but after mr nance agreed and accepted the telephone conversation the district court dismissed his case in its entirety how do you respond to your opponent's argument that it's really your client's fault for not getting the warning because he just on his own hung up the phone the the fact that he understood this to be a dismissal of the hearing was dispositive in that he didn't know that there was a dismissal of the case and had he been told beforehand of the actual consequences i  got that and that's a good argument for your your side but on the other hand if he had not been so rude and sort of noxious and hanging up the phone maybe the judge would have had the opportunity to explain to him you know this is serious and  your case your entire case is in jeopardy but he sort of deprive the court of the opportunity to even give that warning by you know what really disconnecting the phone you're under the weather reflects that there was ample time before that exchange happened where the court could have warned him that the consequences that were here to for unspecified actually meant dismissal and that the serious and grave consequences actually meant the dismissal of the case and he could have explained that determination of the hearing was in fact actually a full on dismissal of the case so there was or have to do it at assess consider alternative sanctions before terminating the case or have issued some type of warning before terminating the case and the fact that mr nance was never told a verbal he before the case was terminated requires revers if he says consequences yes to specifically say what they are before yes your honor if the consequence is dismissal it is only fair to the plaintiff that he be told that in fact this is the most drastic consequence that will be levied in this case and worth a case to rely on that he had to specifically say this case may be dismissed your honor hilton copper is a case that says that the dismissal was not clearly noticed before the district court entered s dismissal case as the district court must have either given some type of warning or issued some type of other sanctions neither of which happened here which requires reversal neither did this  records post hoc rationalization suffice to justify its decision because of this same precedent and the policy underlying this is for district courts to not dismiss cases in a fit of pique and so considering cases the district court of the circuit has emphasised the obligation of the district court to give some sort of warning or assessment of alternatives before the fact and for that reason and post hoc consideration should suffice in this  case could you shift to the other gets you moving on to the district court's decision on summary judgment the district court granted judgment on all of mr nance's religious di claims based on one piece of evidence that wasn't disclosed to mr nance during discovery and this was the cause of meals calculating hall meals he was not completely posted in the way that you asked for it but it was clear that you wanted this information and wanted the defendants to show that they had asked around for information about the cost of meals and their response was was that they either did not have information at the time or were not responsible for looking into the information the district court erred in relying on this information in granting summary judgment to mr nance because the will of the circuit is that previously undisclosed evidence should be automatically excluded as a sanction unless it's substantially justified or harmless and the defendants did not argue and cannot show that in this case it was not substantially justified because this cost information was within the possession of its current mill contractor and could have been disclosed at any point during discovery in addition it wasn't harmless because mr nance would have been able to test the defendants on their burden for this reason the difference the district court could not have found no genuine issue of material morning like we swayed mr nance away from arguing that while a grand warnings are usually very helpful for plaintiff proceed prisoners like mr nance in rebutting a summary judgment motion the rand warning given the facts in the procedural posture of this case did not alert him to the possibility of pausing proceedings to move to strike or to pause proceedings to move to reopen discovery in order to test the defendant's evidence and for this reason and procedural fairness counsel's against granting judgment in this case  material issue of fact regarding personal involvement mr nance entered into their record on letter that he submitted to mr vick when saying that he was aware of this initial deny all based on his subordinates behavior and mr vigeland didn't respond so mr nance would one thing i would like to address about this proceeding that happened on generally faff was that it is it was a much more rude and unpleasant situation than what the transcript perhaps may reflect now obviously no one can testify as a witness to this court in this court has no way to go back and recreate and i think why does it matter if you're saying his tone was rude well who cares i think that does matter your honor because his his conduct in the courtroom he was there by telephone bordered on contemptuous and it's relevant because he actually hung up on the district court and that's not that is reflected in the record i think it is we're all aware of that i guess i'm bothered by the fact that the judge at no point is your opponent has said give any sort of warning that dismissal would be the consequence of his noxious rude whatever you want to call behavior that even contemptuous behavior and i guess i thought  our circuits law was very clear that when dealing with pro se litigants in particular that a warning an explicit warning of that sort was required before suicide want to dismissal could be imposed well my colleague referred to the phrase ample time as though the district court had ample time to actually give a warning i think what's what's dispositive here is that the district court was trying to manage mr nance and was deprived of the opportunity to give him any warning i agree with you because he hung up but why couldn't the judge have simply issued a minute order right after that hearing saying listen that was totally unacceptable you will participate in this conference by sitting in the designated seat or else your case will be dismissed and we're going to and i'm rescheduling for a week from today why couldn't the judge have done that well from the district court perspective i think that had already happened there had been an order issued months earlier saying that these pretrial tasks are considered quote critical  the court had now in its hands a notice from defense counsel myself that there had been a walk out of a meeting of pretrial preparation the court already issued a minute entry saying we're going to discuss that at a status conference  none of the things that you just mentioned said in any way shape or form that if you fail to comply the consequence will be that your case is dismissed with prejudice that nothing said that to him you're right your honor that there was no there is nothing specific addressing this very very specific possible sanction of dismissal of a case don't don't our cases with respect to pro se litigants require that before to a sponsor a dismissal i'm i'm aware of no case which says something that specific i know that pleadings of course are construed in the light you know in a liberal light for for pro se litigants but this was just a fundamental compliance with court orders issue and i think the district court should be afforded latitude and discretion in deciding how to handle that the situation of the district court was facing where we already have first of all of course this court is already aware courts have to undergo a lot of preparation for a full blown jury trial the court has been busy doing i asked was there a firm trial date set at the point that this january fifth your honor i can't remember if at that point a firm trial date had been set we are reviewing the record suggests that there was not that there had been a date set but it has been vacated and so there wasn't some i'm with you if the trial was going to start in a week maybe there wasn't time for the judge to issue the kind of middle ground i was describing but we could only figure out that there didn't seem to be a certain set and so i didn't what's the urgency in having to issue dismissal immediately without giving this at least a chance to comply and obviously the thing is rescheduled he refuses in the seat after getting the warning then you would be me here because there would be nothing to appeal yes i think your urgency was in getting things going where the trial even could set a trial date and clearly does the district court of seeing that this is not going to happen we have a litigant who is refute he walked out of a meeting we don't know what the joint exhibits are going to be where there's a lot of things that are missing because of that missed meeting and now i'm trying to address the problems that were created from that walkout and i can't even proceed with that that the the discourse specifically finds in its ruling that there really are no lesser sanctions will i mean there can be but the further delay was there there's i'm not going to talk about a sanction we're talking about a lesser step of giving a warning before bringing down the ultimate sanction on this guy's head and i think you honor that the district court should have discretion in finding that all the warnings that needed to be given have been given you know there's nothing else that i don't think there's anything even close to being a warning that dismissal will be the consequence if you fail to do it in whatever this thing was the sit in a proper seat there's just nothing that that that is that explicit and especially not that earlier kind of case management or are they referring to that was not even close to being a i guess  brings up another point that the district court was found itself in an impossible situation and to go to the point that my colleague raised about post hoc rationalization i really think that's an unfair characterization of what the district court did agree the ruling clearly states what the judges thought process was he did consider sanctions and staying proceedings as your honour's talking about the district court in its discretion felt that staying proceedings or delaying proceedings was really going to accomplish nothing counsel what do you say that this your court was in the hospital well i shouldn't say impossible it was a difficult position it felt that the district court felt as reflected in  ruling that nothing else is going to work now there's no question that managing profane litigants can be challenging and i understand how the district court can be impatient but tell me what case you're relying upon to support the proposition that the district court in certain circumstances does not have to give a warning before through a spontaneous mythmaking well first of all there's no case that specifically says of course that the courts say that a warning should be given but i think the facts of each of the apologize but i think it's primary steel addresses the fact that a warning is not necessary in egregious circumstances and so if there is something highly unusual the district court must have to scrushy in dealing with that situation here i really think that if if judge mcnamee had the opportunity to plainly and clearly explain what the consequences would be in a reasoned fashion as a judge should be entitled to do in a court session tell the warning would have been given counsel you find it the same case opposing counsel cited ironically but on page fourteen twenty nine of the case it said that this record had several alternatives available to him including warnings about possible dismissal if counsel persists in that often seem to support your well theory that language in the circumstances of that case doesn't but here judge mcnamee did consider the possibility of warnings and he should be entitled to discretion to just to make a finding that warnings were going to make no difference that was the case the hamilton versus primary still case was a breach of contract case with counsel and warnings would work against counsel and the hamilton case talked about that warnings would work against the plaintive in this case i think that has been demonstrated by the record that they want to know what if if if there is a warning that you're to you're going to lose the ability to perceive for the in this case don't you think that's more a theory is warning and then just consequences it is it is a it is a more serious warning i think in the hamilton case as i remember there were nine specific instances of counsel violating the court's order to stop referring to the documents as contracts he kept referring to documents as contracts in front of the jury and so this court's decision to me makes a lot of sense that you could have warned him if you keep doing this then it's going to be dismissed and that makes sense because there was an opportunity nine different times over two and a half day jury trial here we are at the end of the road likely proceeding left except of proceedings where mr knapp simply was not complying with court orders and the court found that there was nothing else that would work so the court has no other questions amount of time i asked this there was no fact of an actual warning so the district court couldn't reasonably conclude that a warning would not have worked thank you thank me ask a question if i could suppose hypothetically this it happened in an open court and the judge said you're do a sit over there and the person says i'm not going to sit over there i'm going to sit over here and there's a dispute and your client gets up and walks out says it's over wouldn't be in a situation like that the court have sufficient a lot of tude to dismiss the case they walked out you can talk to him can't give them any warning they're out your order in the case of a pro se prisoner plaintiffs in that case i think that the walking out would signify at most end of the present hearing and not a dismissal and final judgment on the case i'm not saying he's a prisoner i'm saying any case in a court where he refused to sit where he's going to and he just he just walks out why we used you think that we have to look through the psychological feeling when thinking of the defendant or is terminated yes your honor like judge wapner noted the district court could enter an order afterwards saying this hearing is rescheduled if there is further disobedience the entire case would be dismissed if he had not entered such an order beforehand you could you can do that there's a lot of things you can do but we leave a lot of discretion to the trial judge could because circumstances are always different correct your honor but in the case of the most drastic decisions without and without a motion anything causing them to defend the defense counsel to drive up and there was complete obstruction of going there's a whole line of obstruction occurring by this person how should that way into the decision of whether the judge can just terminate the case at that time your honor there's no exception in this circuits lot the sewer sponte requirement of providing at least a minimum of a warning before things a person jumped on his feet began to utter violent terrible things to the judge the judge has to say if you continue to call me one of those things i want to dismiss the case there's no exception to that in your view no your honor and that statement on the record would suffice and if that behavior continued immediately after the statement the district court would have had that baseline of a warning to terminate the case but it is just that simple statement at least one that is required before finally ending the matter if you will have to make the statement even then when the person is only  completely out of control yelling obscenity is that the judge used to say if you do if you call me one of those names again i'm going to dismiss the case you feel last absolutely necessary yes your honor unless there had been some sort of indication on the record emotion and no in the scheduling order something that had put the lid again on notice sometimes we sort of figure these people understand that they can only push so far better i see your point and your points as an absolute