because he did not express stubborn resistance to the courts of the already or obstinate disrespect for the judicial process nd lesser sanctions and the form of a warning or limiting hope to testify by video would have prompted diligent prosecution of the case and berg none of that aggravating factors are present here because hope did not cause the delay did not intend the delay and did not credit the defendants in any way ultimately if that unfounded story really struggling with this so i'm assuming this hearing myself as a trial judge i think the plaintiff has gone to the hospital because of his own conduct to swallow and he had all of that and postpone it and then down the road i learned that it's not true at make a difference to the trial that's exactly our issue your honor and i would point out that it was a very confusing dialogue that occurred between the t t c guards and counsel and including the judge and i want to speak for mr dennis but i believe i'm correct in saying that none of us knew that hope was being held in the garage until after the fact that's exactly why we moved for a continuance because we were told that he was on route to the hospital or to the prison  so that he could be x rayed and so that the key could safely be retrieved from his body if he had swallowed it but once we found out after viewing the video that none of that was true that may his conduct no longer confirmation as and it your problem and mine and so this is a good district judge why did he not perceive this is a problems trying to understand i mean no you can't reduce feyerick at that but i'm just trying to get an understanding of why it made no difference to the district court that this story of the hospital and all that wasn't true the judge did not think i made a difference because he held that by hope pulling the handcuffs into his cell early in the morning a in and that was inappropriate because that entire spear of comment that morning demonstrates that help was compliant with the officers the video shows not only his conduct but also his words state that he had every intention of appearing in trial he stated that the guards refused to beat him and that he was going to tell the judge about their misconduct when he appeared in court why did the ambush want to be shredded shirt i want to ask about that because that point really demonstrates his desire to try his case and sue for the most positive impression possible he struck his shirt because he said it was quote tacky then when one of the guards tell appear in court without a shirt he thought that he was going to have to wear the red button down that was provided to him and that he did not believe it was a proper decorum for the court and instead of that thank you his process he shredded it was going to appear without a shirt i mean what was the law i don't want to speculate into what he was thinking about perhaps he thought that there were other shirts ionized and they have another bench warrant clothes a wide variety and maybe he wanted something else that he got would a model prisoner i don't think anyone would argue with that but his conduct in complying with the guards demonstrates that he did have respect for the judicial process and wanted to try his cases he reasserts that his actions were not in disrespect to the court but were instead based on his frustration at not being fed in his affidavit supporting his response to the rule forty one the motion this demonstrates that he didn't want to try was playing games and he did not mean any disrespect to the court and to the court's point that hope started a series of events by pulling the handcuffs and of the cell there are several key events that growth that chain of causation and demonstrate that the court was never at risk and the dismissal was improper hote st repeatedly staves that he flushed the key down the toilet he then distro searched twice and submit to the boss body scan which is specifically designed to detect that it was unsafe to put judge albright and others in the courtroom rests quote until the location of the key could be found and therein lies the problem there procedural safeguards and strict searching hope and submitting  more than the read times as confirmed by the video in that case that he was not going to court he then refused to submit to strip search for speeders and when he gave sworn testimony to the judge over the phone he again confirmed that he that we found out after the bar that he was being held in the garage but he was not allowed to come into that court based on the t v c j guards having told the marshals that they believed he had swallowed the k a that's our exact point your honor there's a disconnect here the t v c j guards have prison disciplinary measures and a place that can be utilized to handle and address prisoner misconduct will forty one be  are defendant and this action are different from the t t c the guards who were transporting hope and so that's why we can't really sanction them for that but it's clear that it didn't just sit by the dismissal because as you pointed out we were not given the full story that day and it was an unfortunate game of telephone really where the information that was told by the guards whether on purpose or inadvertently gave the misimpression and then hope was being person who made intentional misrepresentation isn't anybody before us so that's that's the disconnect there that's correct your honor and the court should have utilized lesser sanctions here i'd point out that h never been warned that his conduct at the present could result in dismissal with prejudice a warning was not used here the court simply threw that alternative sanction by the wayside and instead immediately resorted  have failed to achieve the desired in those last or sanctions were not used here this was a hoax st instance of any delay or anything else or to abide by a court order he has diligently prosecuted his case both before he was provided counsel as the president would again and he's continued to express a sincere desire in his case since council was appointed he has marital planes that we were ready to present to a jury that he shouldn't have  of the three aggravating factors are present here that is your core correctly held that the defendants were not prejudiced by any delay because mere inconvenience and having to try the case again does not mean the high bar private is but the court abused selection in another case was set to begin at nine so there was plenty of time for hope to go through the security procedures and appear at core regarding the factor of intentional calmed up post conduct was not intentional because he did not conduct here hope had no appreciation that his actions was of lead to dismissal of his case or even any delay of the core hope intended to diligently prosecute his case and made that clear in the video the apple is playing their motion to dismiss and everything to this court that hope is a troublemaker who wanted to annoy and badger of the guards and the court through this action that is not true hope wanted to pursue his of here your honor where the court consent please state of the lesser sanction of a warning should be used and this is the st incidence of any problems in this case if the court doesn't feel that the record is clear enough we should at least have the benefit of evidentiary hearing to work out any fact issues that are troubling to the core or the district court level because i don't want to try its claims and because his conduct was not in the hospital he was actually groff i will disagree but i don't i don't think there are there there is some confusion by plaintiff's counsel there we were all under the impression as far as i knew that he was in the van and downstairs because the t v she's air transportation officers were the ones that came up stairs and spoke to all of us including the u s marshal who was standing right there and said we got him down there will be don't know where this ts we think you go to the hospital need other words the whole point of the delay was it was on his way to the hospital that's not the case that was not the case and i was not that is not the case here either record it says of the series available that we just we just think there is no evidence that shows this is what was happening in the courthouse with regards to the discussions between the marshals and the judge i think this was all just briefed by by pla his intentional conduct and confirmations conduct that caused all of this all right there was confusion at the courthouse that is the point is there is confusion at the courthouse the marshal service did not know where that key was for sure know if you watch the video later he says i it's down the toilet it's down the corner ok foreign it's after the fact we watch the video ok maybe that's the case but at the time we don't know what that think they're under an obligation to say we're not holding this trial right now and that's what judge albright ultimately came to with we're not putting this out risk right now we're not putting myself in the courtroom staff or most importantly the to be shackled throughout the civil trial yes yes ron let's i mean that's to the discretion frankly in my experience of doing this for twenty six years it's the it's the scratch of the  sometimes both because the only way for him to get the key if he swallowed is it going to pass through his body and on the way out and so could not a guard had gone with him to the restroom and thereby prevented any ability to brief which is not like they were giles appreciate your groups there's not a lick of anything contesting the facts alleged by mr hello so it's news to me that you're saying oh no everybody knew that he to say everybody everybody was on the impression it was on the way to the hospital from that standpoint it was i was of the impression where everybody knew that he was there if i missed that in their brief that's my bad but i will tell you as someone who was standing there it still goes back to his conduct that's was the point is we can argue all day was he downstairs or not but it's still his conduct in what he did with the key he started this whether he's downstairs or not i don't hear i don't believe so basically we have the video already shows what he was doing i think that's sufficient for the court to be a look at video shows what the video shows i mean we all know the supreme court said that it's got persons hair arrest you can't contest what's on the video so and i think we do i think we have a video of every what reason why he should be held in contempt this way and that what he did at the at the prison on the way to the courthouse he knew he was on the way to court and then he pulled all the  that decision he was found to have committed condemnations conduct that the decision itself was based on at least as far as i can tell from the representations that have been made in the briefing to us was accurate and  t if you go back to judge all rights dismissals he says you know what regardless of what the story was that day i've seen what's on the video now and i saw what he did at the prison all right he said what he did at the prison and taken the key destroying the ripping up a shirt not obeying the orders to move along consummate disturbance that was enough for judge albright to say you know what  he had his chance and he was disrespectful regardless of whether t v c j was successful in getting him there before the corps was going to begin and it was still mr hope's conduct and then again i go back to him just taking that heap we can argue all day long aware that he was he still the one who made his bed he started this in the know the plaintiffs want to say oh well he wasn't dead so he was right for taking that at that point why take a chance you know again i go back to the security issue for the judge and for their car so why ticket chance at that point you know if you just walk you know what you know let's just go for we don't think she's got it but you know some you know know for sure and there's a lot of emotional i don't know it's you know one thing we do know is that the last case based on a very extreme sanction now i'm not saying you can never be i'm not saying it wasn't appropriate here for sure i'm saying there was no evidentiary hearing where all of this could have been analyzed including this issue of how reasonable was it for the t t c j official to claim that he still had the key well it i'll be honest with you i've been in that in all my years i've been in that situation where and i was just discussing with co counsel this morning we've all been in that we've been in that situation where the images simply said that's it i'm i'm not going i'm mad it's the nd day or you know a lot of times honestly that happens like on the nd day they just say forget it i could see what's happening i don't like what's happening i'm not leaving my cell and the guards film him saying said i don't want to go ok and you know what i think is to the it is you jake bards credit frankly that they got into the courthouse because if you watch that video they have the patience of job with this guy all right i got him there so what were they supposed to do day i don't believe they did and i think they are they are going to resist that they were going to take him to the hospital and they did not do that so that does not seem consistent with  fluid situation and there's no indication frankly that any of my clients anything to do that whether the transport officers didn't didn't give a full story or not ok that's up for debate on that all right but response for example the keys to the handcuffs so that is what we have in the rocker regarding what we knew at the time the trial was set to be again if we have or knew that he had been taken to the courthouse we were then under the impression that he had left and was going to be x rayed for his own safety and having swallowed the key if we had known that he were there we certainly would have asked to speak to our client or order perhaps ask for a different remedy besides continuing the trial to a lighter later date and we agree with opposing counsel that by use of the video and the affidavits that have been submitted to the court from lieutenant boss and russell ho jr we have enough evidence here to conclude and any doubt in the mine we would certainly rather have an evidentiary hearing to flesh out any of those remaining factual issues regarding the response of the t t c jail guards did not know if the procedures had an effect at least and hope for a key that's exactly what those procedures are therefore if they can't be relied on then why are they even performed and their actions after they told the story to the judge confirm they did not believe he had the key or are they completely disregarding hope safety by not having him x ray hope wanted to go to court he states that in the video he did not provide some post rationalize ation for his conduct he have permanently staged a real time events that he wants to go to the courthouse to explain to the judge what has happened to him that is all that is required here and there is no regardless of what happened there as we've noted he had appeared in court or at the courthouse by eight hundred and forty five so those issues were no longer valid concerns and there are other alternatives that could have been used rather than dismiss prejudice and chief judge owen were happy to brief the issue that you mentioned but i would point out that our recent no two cases roger is the kroger and neal the papa sonne in those cases plaintiffs not