that there had been so much going on that the other five pows factors did not line up in favor of mr briscoe and my guess is i detected there was a significant amount of frustration because there was a perception that mr prescott was perhaps gaming the system understandable i think but if you look at the list factors and you examine that and you compare this case to a number of other cases pretrial conference was cancelled that this judge who was found to be dismissed the action mr bristow contends that he never received either of the two orders issued on september eighth the first one saying if you don't show up we might dismiss your case in the second one saying he did not receive either of those how do we know that he says he doesn't and i mean he says in interviews with you or it's in the record somewhere what he did say that interview with me he also claimed there was also nothing in the record indicating that he actually was served there is no proof of service there is only what has been recorded and that is based on the w your letter was until december you're complaining about two or three months later you know that's a long delay if he discovered he's been thrown out because he he didn't show up and if he had an excuse there you would expect him to instantly sent a letter to the trial judge should not the chief judge and the next day not three months later so just a couple weeks later i want to try to figure out is whether delaying the pretrial conference would have bumped the trial date that is whether there would have been a motive for him to not show up in order to advance his pending motion for a continuance of the trial date by delaying the time the pretrial conference could be held from september ninth to some time much closer to the trial date and then hope that that trial date would be had an opportunity to listen to him get a look at him face to face and decide what really happened or at least make a more informed decision as to what happen you know what the chain of communication was whereby the proud judge was told that briscoe was refusing to be transported and therefore wouldn't be in attendance at the pretrial conference call from prison officials unnamed that this is in the order both orders i believe he received a phone call and he faxed i believe an order and order stated must be served  considerations but there was no opportunity to be heard by mr briscoe you know i don't understand that the language of will forty one itself doesn't require i mean doesn't say that about su sponte dismissal but the wrong but you don't know you haven't heard the other side i mean at one point what might go ahead in the in the greater context of this case for i can understand at first glance this record may appear thin at first glance the september tenth  opinion in support of the or dismiss the case may not be entirely persuasive but if we take a step back and look at the record of a whole and place and context of an abuse of discretion standard at use of this question has been defined as a clear air of law that there's no the the court concluded that the fault was soley riscos and they did so based solely on the assertions of the   i fayette officials i mean doesn't briscoe get an opportunity to say what he's thinking i would submit no you're on i mean it's speculative otherwise isn't it well we or otherwise suckle suffer dismissal on the merits of the languages in the order he had notice that he needs to get out of the cell get on the bus and go up toward scranton for the conference next day where he was going to suffer dismiss on the merits that that's the the due process i think that the court as a is that at least as far as a record concerned other than what with the court says in its order dismissing there's no record that he was even notified there is a record that the court directed s c i fail at the notify him but there doesn't appear that there's anything in the record is nobody's affidavit there's nobody's affidavit of service and none of that is there to determine it in fact he was notified and then he comes in with his letter to judge van ascii which isn't in the record either but it's he has an answer while i wasn't notified in his brief you see and i should at least be entitled to a hearing thank you when that letter i get out your honor that letter i don't recall says anything about i was not notified it says they would not transport me back that says they were not transparent three or four times in any throughout when they would give me my legal papers to them i think  pretrial memoranda jury instructions warrior etc all three defense attorneys had followed that that the trial date was literally two and a half weeks away mr briscoe doesn't file anything his motion to extend time shed some light on his thinking he wanted sixty five days to hire counsel i think he said that motion i can't go to court represent myself i'm in a but i mean with my head of court never ruled on that motion no it didn't but it but to get back to a question of prejudice is the prejudice is the defense there there is blocking off time to go to trial in two and a half weeks they're prepare for trial if he's not going to cooperate with pretrial orders and deadlines and file this is his case and he's choosing not to prosecute at this point by not filing by not showing up a pretrial conference but who was that even on the record was on the record i guess is kind of a relevant term i'm smiting there's certain things that are not in the record so why is it not being there we know we know he didn't file his his five pretrial things  the prejudice is at by him not showing up nobody knows whether the trial is going to take place and we're going to be on a level one step at a time you didn't show up because you knew the day before that you it was canceled the judge notified everybody the day before so nobody wasted any time on the day that the conference was supposed to be held so so far i don't see any prejudice now if the trial because we're going to go ahead on september twenty first and the pretrial conference couldn't be held until the nineteenth then you might be prejudiced but we don't have any basis of knowing that there would be that kind of delay as far as i can imagine the pretrial conference could have been rescheduled for the eleventh and held on the eleventh and if he's in default of requirements then he can be thrown out on that basis but prejudice in being prepared for trial doesn't automatically arise when the trial is not to the twenty first just because a conference  eighth or ten look you could your could have moved for sanctions for the failure to file on september fourth but that's not what's before us what's before us is the failure to show up on september ninth and without more in the i don't see actual prejudice there could have been prejudice if you were forced to go on trial without adequate notice of his positions without a pretrial conference enough in advance of the trial date but that that's there's no such evidence in the record all we know is that on the eighth the conference for the ninth was canceled and not reset could have been reset your honor if we look at it your hon motive and possibly manipulate the system earlier he filed a motion to extend time for sixty five days to get counsel and he indicated he could go to court on his own by not showing up the pretrial conference by not filing deadlines if it doesn't get the smith he gets what he wants and happens mr briscoe in charge of when things are going to be tried or not i would respectfully submit that the trial court has to maintain control over the docket i'm not talking about control i'm asking about whether there was actual prejudice to the government that you can articulate  so far i don't hear anything but being articulated i've submitted that with the three attorneys who have their counters blocked off that the ten defendants who are probably still not scheduled to work but i've blocked off a couple days for trial the witnesses here but none of that is necessarily going to go by the is rescheduled for the twelfth all those blocking out schedules will actually occur on the twenty first as of september eighth i would submit the prejudices they don't know whether or not they're going to trial i mean this is respect for your honor this is kind of hindsight and perhaps the lower court could have set up another date but again when we look at what's before the court the motion to extend time the failure to file documents his previous not showing up for deposition i mean how many bites at the apple does mr briscoe get to not cooperate with court orders he didn't give the deposition of first time he didn't file his pretrial documents a time or a fourth and the court after talking conviction there's the letter to the chief judge nasty two months later that there's no motion to reconsider filed shortly after september tenth of record asking the judge to reconsider minus things as your honor pointed out it was december if ever december the seventh so better make up your mind if you're going to if you're going to be here now in one sense it turns out he didn't have an attorney and a court would have to rule on that but socially what happened is the the court again so dismissed no hearing no anything and yes there were other things that could have been considered if it was looks like a rush to judgment if i may respect plans that if we go back to an abuse of discretion standard and  if you're going to dismiss the party again the that's going to be taken out of this has to have a full and fair opportunity to be heard there wasn't even a motion going your honor with polis and some of the other pain opinions out there that if the defense doesn't have to move there doesn't have to be hearing doesn't how the i'm not sure you're right there may not have to be a hearing but there's an opportunity to be heard there wasn't even a motion and speculation you may be right again we're not saying in any way that you're necessarily wrong we just don't  know i would if i could just answer the sanctions real quick your honor as far as monetary sanctions we know he's an inmate he has i have peace that is monetary sanctions aren't available dismissal without prejudice no what about just michel sport you can still keep this thing t trade on tracks by saying ok we won't have it on the night we'll have it on the eleventh riots and if you don't show up i will entertain a motion to have the matter dismissed just so we understand that the seriousness that we're dealing with us but that's what we have with  third warning i mean he had his warning us of memory each other how do you know that you keep saying he had his warning on september eighth but all we know is the trial judge said prison officials told him the papers were served and the prisoner was recalcitrant thank you your honor because i forgot to mention is that we know i would submit we can it's a reasonable inference that if the prison officials would take him from his cell in july to the july pretrial conference why in the world would they refuse to take him for september letter realizing it's been dismissed the motion to extend certain deadlines when we know he was made aware of certain factors why would the prison officials pick and choose we're going to give you this order but we're not going to give that order we're going to transport in july we're not going to transport in september that's just a real stretch of the imagination inference that when we look at those factors that it's not the president people's fault they didn't refuse the transport and because they did previously they didn't not give him the september eighth order because they gave him these other wor it made more sense even after the court entered disorder and as you know it's obviously any time you're in litigation and you can win a case you think well you take the win however you can i was in that situation a number of times but i would have made more sense for your office to have said to the court your honor one did make more sense in this situation that least have a hearing in a record and this case then you might not be here i understand with the courts coming from your honor and again in hindsight things could of happened differently and build a stronger record but i would submit what we have here is enough under the rule and the cases in turkey to get particular palls and and i submit that this case is analogous the polls in that i mean understand it's not like it's words troubled with some things but if it were three mand it then judge money can simply look back at the that is an abuse of discretion no i guess you're almost inviting us to say well done to make a determination to give them a try our sustained a district court well i'm submitting that there's enough in the record that  it's not like these cases where fit in may fail to serve process and it was quickly dismissed you know this actually could been dismissed without prejudice it's it's unlike the case that your honour's decided a few months ago what were two and a half weeks out of trial that this is really the only sanction what what what why why couldn't he have held that sanction in reserve for a couple days and notified both sides that he was considering dismissal with prejudice without a motion but he would ask both sides to file affidavits or documents to establish what the facts were and then maybe he would have had an affidavit from a person prison officials saying i handed the order to the inmate i stood there while the inmate read the order some other prison official might have said i observed him refused to get on the bus and  refused to be put on the bus and so forth and then the judge would have had a very solid record basis for the exact same a remedy that he imposed here would have only taken another few days to build that record not even with a live and just with papers being filed by both sides before throwing the case out that's a good point again in hindsight could things have been done differently yes but as a practical matter reviewing what happened with an abus discretion standard we know what mr brisk is going to say whether it's an affidavit form or letter to the chief judge form we know what he's going to say and if judge munley and his order an opinion said upon notification of plaintiff's custodian well we know what we know the prison officials are going to say so if if he heard from the baby instead institution officials and we've kind of heard from mr briscoe with his subsequent letter and we kind of heard from him with his silence from not filing a motion to reconsider we pretty much know what the what the different actors going to say anyway so i would submit it's well it's a good point and it might build a more comfortable record it perhaps a little more form of or substance and i would submit what we have here again is enough under the current l through we've asked pretty much i don't have any i don't have anything particular mr klause right reason he has super counsel is because it's my understanding that there was a chief coun thank you if i might respond to one of the first points that was made of this court has held perhaps perhaps there is not a show cause or opportunity to respond required and w it but this court has held in the past that as a general practice sanctions should not be imposed by a court without prior notice and some occasion to respond that was the night before its case which i believe  suggested by your client as to what happened as to why he was not present or the president or that he had good reason to refuse or if the people dug into that he has advised me that  the reason he has had ongoing trouble with the guards and that he was not he has been having trouble because he files lawsuits or has filed as opposing left that out and i don't think that was unintentional but there was a history of them denying that him his legal papers taking away his his clothes that he could not comfortably appear so there is that history there and that i think is the reason based on what i can tell that would be the reason for the as in connection with other with a geisha refused as judge michel pointed out really doesn't come into play unless the trial is postponed and even then i think it's questionable although i understand certainly the idea of having a block a calendar for a certain number of days and then having to undo all that and respond at a later date to the plaintiffs has issued and on the other hand you have the luxury of having your case in the can while the plaintiff scrambles that's not something you know that's not it's entirely speculative as to whether mr briscoe was not or not personally or it was personally responsible for his not appearance he says he was and he said i know from under wesley if there's a