first that the rule and not the exception of the stackhouse case applies here and therefore the district court's misapplication of that case constituted abuse of discretion second neither the rule nor the reasoning of the palace versus state farm case or political to affirm the district court's holding on alternative grounds and third as the merits of the allegations mr hernandez's complaint against all three sets of defendants are sufficient to survive a motion to dismiss you might even before going into those voices touch on the question of jurisdiction because you know the point was dismissed in this case without prejudice so under parolee don't we essentially have no jurisdiction you're are we believe that at least two of the burly exceptions of part of this case it's true that the district court dismissed without prejudice but the district court directed the clerk to close the case we believe that under the garber vs leggo case three fifty two out third that makes this an appealable order we also believe that mr hernandez has chosen to stand by his complaint in his briefing he has referred to the to the district court's order as final and as resolving all of his claims he's argued honor we believe that twelve ninety one based on the relevant supreme court precedent should be given a technical not a practical construction we believe mr hernandez believe that to mean that this order was final and that the district court was resolving all of his cl that the and that the clerk was directed to close the case under the circus present we believe that makes this a final order i think you would say that we have to disregard that without prejudice term and consider this terminating case yes your honor your view well you states in the opinion that he should be given an opportunity to amend should apply with particulary this case because mr hernandez is a pro se plaintiff well let me ask you something about reli that's a twelve b six dismissal right i believe so you're on it ok distinction that's meaningful here i mean does that distinguish perelli in any way in your mind well your honor we believe that if this court chooses to choose they'll just consider the dismissal below as a failure prosecute under forty one to be the way the the the district court dismisses it's required to make an explicit finding in balancing of all six of the palace factors now you said in your briefing that i think that you didn't think power supply it here it is understand you know you're on it what what i meant was that it doesn't apply in the context of twelve b six motions to anchorage at the anger just so she its case which was applied in the stackhouse which the stackhouse court applied said that palace does not apply in the rule fifty six context because rule in dismissing correct she did her honor and well in what were what are what we're arguing out is that if this court chooses to treat this as a forty one b dismissal it must also remain and because the rule that's where you're hanging me if you say if we choose to treat it that way how could we treated any other way if that's the way the district were treated well your honor it could you could i suppose this court could treat it as a twelve six dismissal and stay she says it's forty one b then what what our writer what logic is there in our saying well no you didn't use me said forty one b but we're treating it as something else why would we do that well your honor that the district court's opinion says that the that the case is dismissed for that the that the twelve the six motions would be granted and that the case would be dismissed for mr hernandez's failure to comply with a court order under that analysis we believe that that the dismissal was an error for failure to reach the merits now as your honor is saying one b for failing to prosecute the district court below must reach all sit reach all six of the palace factors and balance them and us versus eighteen million in u s currency thirty f third this court said quote we have always required incineration and balancing of all six of the factors by the district court and palace itself this court said this court will be guided by the manner in which the trial court balanced the factors under this court's precedent the re in the district court balance the when the district court dismisses for failure to prosecute as a sanction to the plaintiff if that is better this court sir under this circus president the district court must reach all six of the palace inconsistently we believe and that the language of stackhouse that tells that says there are twelve the six motion can be dismissed without reaching the merits if a plaintiff receives quote specific direction to comply with the local rule from the court we respond to the motions to dismiss by a date certain but we believe that language in stackhouse means a specific direction to comply from the local with the local rule now to give you give us the one which you think would have would have satisfied well your honor just remember in the middle district state has has struggled with this language and she has said she she grant and mills versus martinez she had given the president plaintiff a direction to comply with the direction reply to the motions to dismiss by a date certain she made a specific statement that the court will dismiss without a merits analysis if no reply if it doesn't apply under the local rule that was not the case here but we also believe your honor that this rule is right your honor are our arrangement with the circuit is that we are engaged in a letter with mr hernandez states that we are his attorneys for for the purposes of this appeal the rights of the case goes back to your unless you get brief white versus napoleon the none of the briefing discussed the state law plains and this court still said that the district that the ancillary to stay law planes are properly before the district court on the remap all right now isn't your pro se the p say issue that you raise alleging that stackhouse isn't sufficiently clear to make the notices sufficiently clear to a pro se isn't that though in your brief anyway in your position further complicated by the language problem that your particular client had because aren't you really asking us to look at this not just as a pro se but as someone who is not capable of addressing english in these pleadings yes your honor a we the fact that mr hernandez kid did not respond to the twenty six motions in time we think that it's clear under this record that it was not because it should not have been deemed as a concession and what your of the facts that your honor is pointing to our evidence in support of in support of that whether or not this court should adopt a different rule for or for prostate plainest based on their language abilities or whether or not they can speak english we don't we don't have a position on that your honor but we do think that the pro se that we're a where a district court is faced with a pro se plaintiff who t we weren't inclined to agree that that this missile was the right thing in the first instance here as a sanction because this is a sanction right i mean you look at it she said you didn't comply with the local rule you're out didn't look at the merits to looking thing else it's a sanction right i would agree ok so it's a lot of sanction we and we think well that's not the right way to do it your argument is well look at the merits he still loses how do you square that argument with this court's let me ask it this way why would we look at the merits in the first instance what what makes it a better proceeding to have this appellate court do that analysis before the district court has done it i think you're on the courts pretty much in the same position as the district court we have a complaint the complaint was attached as an exhibit that's what the district court would be looking at and making of the sit in on and that's what this court would be doing as well i think there's three solid grounds generally committed negligence resulting in my injury why isn't that enough is a broad statement of a claim against all the things well with respect to the negligence well constitutional violation arise on the wreath amendment deliberate indifference to a serious medical need certainly what holy spirit hospital bed the surgery cataract surgeries performed that always very hospital there were several follow up visits the holy spirit hospital as well place complain there's no allegations in complaints complaint whatsoever what holy spirit hospital did wrong if we lost if we agree that the dismissal was improper and there are any of the grounds that we have discussed this morning when would it make sense for the case to go back for perhaps the filing of an amended complaint with the statute of limitations has now run and if it goes back again i don't think you could survive a motion to dismiss and i did complaint would relate back would not it would  don't see how the change there would be substantial change into it we're talking about a negligence claim plaintiff was required to file a certificate of merit in support of his negligence claims in pennsylvania there is a very specific rules governing professional liability claims against hospitals the rule ten forty two point three which applies says plaintiffs represented by counsel or pro se players must file a certificate america within sixty days of following his or her complaint so want to merits analysis you wouldn't have a problem so have a certificate of merit i think it would be prejudicial for us to go back now to district court to have that decision to i mean plan a certificate of merit was due in october of two thousand and five to be filed now if we kick it back down to the superior court the cost that holy spirit hasse was going to incur when this case really doesn't exist anymore because a certificate america's never filed it's ok if i'm sorry is that your biggest argument in the prejudiced grounds that  was you know it's not my biggest or is one of many one of one factor that a certificate of merit was never filed i mean i don't think i have to say mr chairman that the case doesn't exist because the certificate of marriage wasn't filed when in fact the case doesn't exist because the district court dismissed it as a sanction this record judge never said hey you didn't you didn't file a certificate of marriage therefore i'm dismissing she looked at one thing you did of a local rule we told you you're out so isn't that the reason the case doesn't exist your honor i think what the what points are asking you to do in pro se cases that the rules don't apply to pro se plaintiffs and in this case the court there was specific direction by the district  multiple warnings that mr hernandez received the standing practice were applicable to all pro se plaintiffs had a specific direction to file a response by a date certain of february tenth he never filed another motion for an extension of counsel or another motion for appointment of counsel how do you square dismissal with the repeated statements of this course court dismissal is the sanction of last resort an extraordinary sanction i don't think there were any other options available for the district court at this point we have a certain plaintiff was proceeding informal pauperis generally you can have monetary sanctions against people who don't respond in course the police but what other alternative does the district court have if a pro se plaintiff or any plaintiff for that matter just does not respond by a date certain well you know actually if he had what your all of these problems would have been a void that might have been a problem in the making when the was you know that was denied by the district court we think that would have helped you because you would have somebody to talk to you would have gotten a little discovery the case might have been addressed right on the merits you may not be here today well your honor the district court in their opinion which denied appointment of counsel it was clear that based on the record that was in front of her at the time it did not appear that mr hernandez was incapable of proceeding with this matter pro se but it is it seems to me to be clear that he was  one who was communicating with the court his name was on several documents but he had a jailhouse lawyer who was really hard to document for him and who told the court that's the only evidence i think that if we accept that as true i think that opens a pandora's box to to many pro se litigants who have jailhouse waters that you'll be seeing these letters written all the time we do see these letters written all the time i think it opens a pandora's hughes pandora's box especially in this case where i looked at the medical records  mr hernandez signed all the documents my time's up finisher signed now there was no indication in any of the medical records that mr hernandez had any problems or understanding or not psych cannot understand medical treatment i just think it's a giant leap to a snake an assumption on a jailhouse lawyer letter in this case thank you mr j may very much thank you miss keny part of your court oh i think we have we have a similar prejudice argument that the hospital has in other words dr long is going to have to continue to be a part of this lawsuit he has issues with credentialing he would always have to report this is a case in you know over its head it has far flung consequences when a doctor is named in a lawsuit and i did not address this in my brief and i apologize but i do believe that the prejudice to dr long as  americans especially when coupled with the fact that mr hernandez knew enough to ask for an extension of time the first time he just did not do it the second time there was nothing in judge teams order that said this was the last time no for the request granted i get it doesn't it doesn't that actually rebut your your colleague's point i mean the last thing one of the last things you said was what else could chief judge cain of done but sounds to me like you're pointing to the things she could have done which was to say ok i'm giving you a further extension but this is the last one you know put him on notice somehow that he didn't perform then that x was going to drop i don't think i don't think we want to put that would be a different story he had the where with all you have a knowledge of english language and of the procedural system to ask for the extension the first time he just chose to ignore excuse me time didn't the first request come from the jailhouse lawyer he signed the request right but but didn't the explanation come that i'm not going to have the assistance of this jailhouse lawyer anymore to make these requests even the letters that were received and i noticed in december of two thousand and five they  have crossed but but the real problem is you're talking about expedience to the district court and at the same time the expedience hasn't in you or to anyone else's benefit and it doesn't seem that it's a logical argument to say that on the lowest level where you're closer to the facts that a judge in that circumstance can't hold a hearing or make  factual determination that somebody is capable of answering in english and answering the pleadings where where is that in the record that there was that kind of analysis there is none and i don't think  has his chair the decision to deny him counsel so i think it's somewhat of a non issue then there were no not as not as to deny counsel that order clearly was not specifically appealed but to deny the right to participate by entering the sanction is the ultimate sanction and that was appealed it is the ultimate sanction because he never filed any type of response there is nothing to prevent him from sending a very simple that or judge i don't understand i need more isness is this is history of dilatory snus is there anything else in the police factors that possibly applies here if you look at all of them even though you didn't deal with it in your brief it's certainly something that you're supporting the district court on well i think you have to look at the meritorious sense of the claim with which goes our merits argument the only obligation as a doctor is that he referred the mr hernandez to a consultant when you supreme court emphasized that eighty two is pleading is something that needs to be particularly attended to when there's a pro se plaintiff but what if you look at it if you look at dr there are no allegations or grounds on which to tie dr long into this general theory the only factual allegations only factual basis is that he referred mr hernandez to a consultant but he doesn't appear anywhere else in the timeline of events it's unclear whether that there are grounds to include or drive dr long into that general mass that he has led let me just read something from count one for example which names dr long and says the defendants listed in the above there he says dr long knew dr long refused to treat dr long was in effect deliberately different so when you say there's nothing in there how do we read that he names dr long and he says that how is that  not eighty i think that's reading into brother there's no allegation of direct personal involvement which is required in including a deliberate indifference claim there's nothing that shows he had personal direction or personal involvement there's just the general conclusory allegations there's nothing to show that he had actual knowledge of what was taking place with mr hernandez after the fact so you think you think a day is supposed to requiring noticed leaving where you say you knew i had a problem you refused to treat your deliberately different requires some more factual detail to say why you specifically so right that's correct you need to have some type of factual grounds and you have actually based you have a case a supreme court case or third circuit case that says well i think the erickson case says i think in itself it acknowledges that you only need to give notice of what claims are but it's still expects some type of factual basis or factual grounds in order to plead a cause of action or a claim doesn't your argument turn stackhouse on its head if you if you allege that you need more specific pleadings from a pro s still needs to be some type of factual basis in other words mr hand is needed to state or meet need to make that connection between dr obama having knowledge you he has you know you mean that mr hernandez should have stated in this process a complain that even he didn't file that dr long somehow was involved in asking him to sign a waiver before he could have the needed operation is that what you're saying you have to say among some of the details just because dr long is not part of the department of corrections there is no and i repeat my my colleague's question where is it in the law of this circuit or the u s supreme court or in procedure that that's required by any by any complainant well i think personal involvement is directly required i would point have pointed out in his brief i conceded that there was a fact twelve b six was of action stated what i did not concede was that it applied to my clients that the dots not connected and let me ask answer your questions as to what case actually stands for that proposition and i suggest to you that is sproule and sproule in dealing which was after the also be parker case in dealing with the non issue i am and i'm suggesting under passages are right for you to take a look at this case there are under sproule and specifically affirm for or not then under polish you can tell me what with the prejudice is to the institutional defendants and leave the prejudice is only in the balancing of their rights why should they have to go through a motion for summary judgment or a trial if in fact at this stage you can take a look at it under under sproule and say clearly that this is almost factually the equivalent us of course in if that were so then every defendant in every case would be prejudiced because every defendant has an expense and has time to devote to a case and so forth but not every well nonetheless with respect to the the r h lieutenant who are that mr sproles twelve mr pre schools complaint was not sufficient under twenty six because he did not show the science or he did not plead enough facts to connect the dots between the orange you've attendance and the complaints the medical complaints that he was talking about well doesn't it is it a distinguishing waiver not something that requires medical knowledge or understanding a sort of sort of a straight up i'm an administrator to put negative spin on it the way that the plaintiff might a bureaucrat tells me scientists are you're not get treatment now if that's the allegation doesn't that take it out of strudel which didn't which dealt with medical judgment and not with an administrative function like sign a consent or not i think if that's the case and you're almost looking at at eight as being something akin to a residence that if you simply say that this happened and that there are corrections officials involved in the corrections document if you look at the operative language in mr hernandez complaint that deals with who it was or how this came about he doesn't say that anyone particularly presented this particular form to him what he's saying is he sings who he's saying who should be responsible for all that when you say it's a res ipsa we're not talking about ultimate liability here we're just talking about your argument the merits whether it survives a dismissal or not whether he ever gets hurt on it or not i don't mean to say that the ultimate liability i'm saying that if you take the spectrum of being fact pleading which does not exist and whatever else is on the other end of that continuum which does not exist in federal practice you're drawing a line someplace much like they did in in ericsson and also in in sproule as to where the limits of that are going to be and in balancing necessarily you know the rights of the plaintiff with the rights of the defendants in this case w hat i'm saying to you is that had mr you know much like mr kenyon's argument had mr hernandez simply said yes there was a document that was presented to me it certainly was not he knows who who presented that document it was not the the superintendent of the deputy superintendent where the health care administrator it was one of the staff as he says it was sci smithfield staff who presented that there are six hundred staff there waiver form that's standard procedure for the institutions when you know you're just having surgery it may be at the hospital we don't have a waiver so i made this we're here because the the plaintiff says that there is such a form so for twelve b six purposes there is something that he's saying that was placed before him by someone specific and but we don't know who that is if it was a doctor if it was someone else oh isn't that the sort of thing that gets handled the discovery setting and not suggesting to you that the only way you get to my clients the superintendent the deputy superintendent and the health care administrator it's through responding it's pure are they responsible perhaps well maybe a court would find that but they are not the ones who presented the form they are not the ones who are connected you know to the wrong that mr hernandez we don't really know at this point based on the pleadings doing mr farrel that they didn't direct it that they didn't personally directed in some way we don't know that so again isn't that something that discovery is supposed to address i think you would absolutely you're correct and all he had to do was simply name them he knew who they to the actual office met issue in this particular case dealing with that particular form if they did it then then yes he could have he certainly could have named who they were your argument is based on our concluding that the judge merits we'll start with the correction and it's i think our brief is clear as to why this case is distinguishable from school from i'm sorry from the complaining school these correctional defendants are in this complaint not because of their position or their status  these correctional defendants are in the complaint because mr hernandez has alleged that they asked him to sign a waiver of causation before giving him the surgery that they knew he needed therefore this is not the case respondents period or the respondents period or cases that the correctional defendants are attempting to rely on are not relevant as to the but as to the mr long as as judge jordan stated all that's required here is that mr hernande give dr long notice of the notice of the allegations against him via short and plain statement of relief mr hernandez is not will not simply allege that dr long referred mr hernandez to the holy spirit hospital for surgery mr hernandez has alleged that dr long knew that the treatment that that mr hernandez was receiving at holy spirit hospital was ineffective yet he did nothing to be with that knowledge he still did nothing to ensure that mr hernandez would receive the medical treatment that he needed and finally as to the as to the hospital your honor we the reason stayed in our brief we believe that this that that the hospital's actions here clearly constitute state action the cases that the hospital has tried to rely on are the summary judgment stage where dismissals of the summary judgment stage where the facts as to the the prisoner at the hospital and the prison have all been have all been found here mr hernandez as to  his mention has not had the chance to establish those facts if this court were to decide to adopt a rule in this case which we believe would be more appropriate for the district court to do we believe that the fourth circuit and conner versus darnley has adopted a rule which states that a private physician who treats an inmate off the prison grounds is still a matter for purposes in one thousand nine hundred three and that's consistent with the court's holding in west there are no questions mr mayor thank you very much