good morning i was going to say good afternoon i have i have ten seconds after an afternoon your honors my name is william o'connell from goldbergs a gala i represent the defendant appellee kelly blanton this action this very simply this was a twelve b six motion to dismiss a third amended complaint the plaintiff is a former attorney and had ample opportunity with help from the district judge to frame his complaint and ultimately the third amended complaint was dismissed on appeal and this is not well put in our brief but i just want to raise it because i feel as dispositive we were just missed on the ground that we were not a state actor and the district judge went through the arguments quite well and very thoroughly plaintiff doesn't allege on appeal and argue that we were a state actor so they've abandoned that point and state actor is absolutely necessary against my client who's a private entity really that's my argument and the court would like to hear any other background that's fine thank you thank you your own  afternoon david posner forty of wall raven and meester the probation officers from duchess county the appeal as it relates to them as we interpret this appeal is from what the pla in correctly calls the district court's denial of his request for leave to file a fourth amended complaint in fact of course the district court did not deny leave and in the footnote six where the court discusses that the court simply instructed the plaintiff on the foundational requirements of making a successful motion to leave for leave to appeal certainly in the context where you've already made three prior motions there's no right or as of right at this point you have to get leave of the district court while the plane of complains it was a quote substantial requirements improper substantial requirements we suggest is in fact a district court was throwing the plaintiff a lifeline by explaining to him what he would have to show was there prejudice to the defendants why did you wait so long make sure you discuss the merits to of your fourth amended complaint i as a district court judge i'm not just going to let you file a fourth amended complaint at this stage of the game  not at all your honor especially well it doesn't matter for several reasons want to think primarily and again the district court discussed this at length which the plaintiff completely ignores in his appellate papers is that he was trained as an attorney and was an attorney with the record isn't exactly clear that he's no longer an attorney but he is an attorney he proudly in his papers suggest says he pro se went successfully to the new york court of appeals in a case so the general solicitude that this court grants to pro se parties does not apply to pro se attorneys second this is the fourth attempt to amend the complaint pro se attorney certainly get solicitude at the beginning but when we now had three i believe motion conferences with the court and she very carefully explained to him what the deficiencies as she perceive them to be and how he could correct in remedy  he had our meaning the defendants you know statements to the court why we didn't feel the the existing the first or the second of the third amended complaint stated claims so at this point that solicitude to  a pro se attorney isn't appropriate but she gave him solicitude if you will because she had actually no obligation and it would be i think improper for her to have accepted this affidavit he filed in opposition to our motions to dismiss as creating a fourth amended complaint she said you can't do it that way here's how you have to do it you have two weeks to do following make a motion follow rule fifteen what what's the harm in that and you should address the following four issues why did you wait so long what are your new facts have you prejudice did the defendants and address this the the merits of your fourth amended complaint i e it's not few tile your long past the point where you can amend as of right you have to now justify your complaint and so she was literally giving him a road map on the points he should address in his motion to this to a man and she gave him time to do it he opted not to do that rather to appeal the denial of the of the grant of the motion but then he doesn't  motion to dismiss but then he in his briefs to your honor's he does not address the merits at all of the dismissal of the probation officers mr and wall raven and just says i should have been given an opportunity to file a fourth amended complaint but he was given the opportunity he issued that opportunity the court gave him two or three weeks to do so and here we are i just don't see how she abused her discretion that's the standard we're on here that the district or abused her discretion by explaining to a litigant exactly what the living in a has to do in order to make a successful motion as i say going from a curve ball or a knuckleball she thr lifeline this is what you have to do and that's pretty much what we have to say thank you thank you both loser decision on last case on calendars some versus sessions that is taken out