placed in an up stairs cell and we did and we determined by the fact that he had appeal never an appeal of the final judgment and the final judgment had been against what we were we just talking about john morgan threat and morgan is not mentioned in his appellate briefs but that this court says there is a cause of action here and therefore reverses that's correct your honor i think you have to separate out two things one is with respect to whether you filed a notice of appeal fact that we created jurisdiction over the appeal which is right now in answering that question we sort of take a functional approach and try to figure out what did he intend to appeal with respect this dismissal of morgan and given that he had said i did not intend to appeal the dismissal of morgan how do we get past that's correct so with respect to the jurisdictional issue the question is whether you file a proper notice of we're going to look past the fact that he did not raise any issue with respect to morgan and mcintyre because let's just assume you're right on that i think we're all trying to get to this declaration right so that with respect to the declaration ordinarily i would agree with you that if i had as i said does not intend to appeal with respect to a particular belief that and that would be a problem for him that he did not over i think what's different about this case and i could walk you through reasons and i am in that so in other words we're taking his language out of legal leads right into what he might have intended and then he's telling us these reasons that's that's correct your honor so i think this news is the icing own handwriting that's right this document needs to be liberally construed as document needs to be literally construed and i think the best way to read it is that my client was saying he was trying to explain why he thought he had not successfully appeal and he thought he did not have the right to pursue or feel against john and i think that was just a fundamental being on a state based on the view that because you define it as notice of appeal after the final judgment he did not have a right to challenge the earlier interlocutory orders that had been issued against his claims on more than that and that was just a legal mistake so in that regard his his waiver here was not knowing it and involuntary in the sense that he didn't understand the legal options available to that he did not understand that he could in fact press the claim against  y close i mean it's pretty close an educated lay person might describe it that way right you have to in to and surely a perceive the risk that there will be a serious harm to the person and make an intentional decision i'm not going to do anything about it and then the declaration you do get a sense that what the plaintiff was primarily upset about once these sort of false to say when arry reports the thing about the lunging out of the wheelchair and not so much about anything involving morgan i agree with you that if you read his his documents he does not do the best out of prisons claim i do think they were found all the way up through the informal proof at least that he had done enough to raise the delivery sometimes but what's the best we i've never seen it happen maybe i just don't remember it held on quite these kinds of evidence if you would that there's not been a knowing and rational waiver yes your honor i mean if you need to come back and  have a waiver that is based on the state of law so i don't think that rights are will be enough i think what really pushes this case over the head and we will have this case to be narrowly happened is that the area that my client made was in part invited by and state respectfully on the part of th but he doesn't try to go to recess or take the argument against morgan that's right and again i submit that's because he did not understand the situation what was going on but we understood it was research and understood enough to think that he could make an argument that he still distinguish this because this court made a mistake and i'm here to say we did make a mistake ok but in this in so you said raise relying on that mistake and so he should be excused fair enough except that he disc he thinks is the problem that you could say about any process you know we went back to the original series of questions here about pros and how we had to happen this narrowly well any process a person per se criminal proceeding other person say well you know understand we generally say that a pro se litigant waives any issue they don't raise in the informal brief and there's no exception for i didn't know i had i claim no that's right i think the reason again here is because this area of adopting statement contributed to the mistake and to be sure you similarly situated in action the only person in particular patient motion was more so my client than i was again because of the mistake in the action because of this worst mistake my client was deceived into thinking he did not have a right to it and that's how i  take a look at per se litigants it seems to me like you're asking us not just liberally construed what he says but to ignore what he says that's what i'm asking you not to ignore it but to understand that what he said the waiver was based on a legal mistake that was assumption that the clarification order was in error but why's that why is the clarification order wrong why was morgan part of this appeal given that the informal brief never mention just it's is because in your view because he appealed the final judgment and of question that's right so he appeals people that's not really how we've talked about it and maybe the answer is it's sort of a one way ratchet but we've always said look we don't do this technically informally w e try to figure out by reading the informal brief what was the intent what did this person intend to appeal and if you read the informal brief they're really there they're at it it looks as though he's i mean it's raising it barely and what arguments are being way absolutely correct and is that they are for us to look it just seems to me that the declaration is consistent with the informal break so we get really two documents we got a formal brief that lays that doesn't really talk much about morgan in the way you're now claiming and they were god declaration that reiterates that so we really have to think you have two things so again this court has discretion to excuse a waiver or forfeiture it clearly chose to excuse the making and knowing an intelligent waiver based on an error that had been invited by the court so i think this were clearly has discretion to undo that parent allow my clients out institutional claims to proceed well the other person that he talks about in this informal he seemed to understand that he didn't force anything with respect to him i just he this is terrible a fact there are mistaken i am prepared to say it's our mistake had didn't seem to affect him except under your theory with respect to him not with respect to anybody else that's right that's because morgan was the only one who had filed this clarification motion and so my  maintained that he didn't appeal what do you maintain with respect to that we maintain that he did not appeal asked morgan a bat's when we look at the totality of documents on appeal ok what if we assume for purposes now that the remaining documents on appeal to see what arguments that or what arguments you weight the only arguments that he put your assuming way were not forfeiture is that right waiver or four for john i know there are different doctrines pay your money and take your choice issues all of those issues only have to deal with the remaining defense none of those issues or of the basis for morgan or assonance dismissal had none of those issues were raised there was no issue as to deliberate indifference rates and then what did this the fence and so our contention is this court went beyond its authority in making that determination and that was the initial mistake however players contention that that mistake somehow cause it was stated and smorgon that the plan to have the benefit of that were when he filed the declaration so he knew that this court had held rightly or wrongly that his complaint stated a claim and in spite of having that fact it deliberate indifference that that phrase and the statement related to deliberate indifference is only contained in the informal rate in the procedural history session and only in the section where the plaintiff was recounting all of the that he raised the issues that form the basis of the court's dismissal i can answer your questions so your so your colleague says but we obviously excused assuming for a minute that there was a waiver in the informal brief that we obviously exercise what is in fact our authority to excuse that waiver at least as to morgan perhaps not as to bass but can can you respond at least with with respect to morgan why haven't we already excuse that waiver to be honest received when we received the st order we were surprised the port spend it stopped more as i mentioned surprise we excuse the waiver so why isn't that issue now behind us because morgan moved for clarification having not had an opportunity to participate on the deal or newness as play a pointed out warning was listed morgan in past those were listed just as defense it wasn't until we received the ports st order that we not had an opportunity to participate in the appeal and that and as you saw that was the basis of employment really no other documents indicating that there was any intent to your list morgan we filed a motion for clarification court's st order didn't address any issue as to pat's so and basses perspective of the st order was the work did nothing to change now it is in our st order reversed and sent it back and if you take if you take i know you don't but i don't really understand what you don't that there was but the final order of the district court the final judgment his appeal the peel of that appeal that as to all four people and i don't know why you don't the opinion says reverse and remand it doesn't say reverse and remand specifically to morgan back and that may be the reading of it because there mention that you made it sound like that that language was in their opinion i don't think that discussed them but they don't distinguish who they are reversing with respect to clear just quite right for the foregoing reasons we vacate the district court's judgment and remand for further proceedings consistent with this opinion and then the end vacated in  prior to the order for clarification yes even though and the th and again an error on our part even though they are characterized in our docketing order as or the unpublished opinion morgan and those help you in this our guest a caption does help that that's no you just told me that he thought well anyway the caption i gave you told me that bass knew that he was in because of the opinion but bass in fact in the order is in the same position  does it matter if he does this particular point matter that much because it does seem to me that whether or not the district court actually whether whether all of these claims were now properly sue me for a minute this case was vacated as to the disregards judge was vacated as to all of the defendants including morgan invest at least on your theory of the case and we do say we mending for proceedings consistent with this opinion the district court could have said in the alternative ok they're all back in front of me and now i'm going to reissue my exact same opinion as to johnson ambassador that would have been entirely consistent with our opinion in the case and we'd be right back where we are just with a slight kind of procedural twist in how it happened i this way if we assume as i think is week we were acquired to do by the law that he when he appealed the final order he appealed with respect to all of these but i know you for some reason you don't believe that but that's what it does when you appeal a final ok i guess they are assuming a yes ok then your argument is that he had to that the fact that we didn't discuss and we didn't happen the court the case correctly because on our assumption he's appealing with respect to all of them so they all are apt to leave defendants but that doesn't matter you know if you don't make you maintain that we made no mistake but if in fact appealing the final judgment appeals a judgment with respect to all of the defense then our caption was incorrect was it not it was under those facts and it wouldn't change the analysis because because we look at the end form a brief we look to see what orders and issues were in the form of break and there were thought a lot about jackson because i was on the and there he did not appeal the final judgment and so what your colleague is saying is it's sort of a one way thing like if it's a produce a petitioner and they neglect to say oh it's the final judgment i'm appealing then we will do a really sort of generous and functional analysis to see whether nevertheless he may have intended to say to appeal to file judgment but that we don't do it in reverse if you check th right box we're not going to go back and try to figure out whether maybe he didn't really need to do that so why isn't that a fair reading of jackson because even if you follow that analysis he forfeited those arguments on appeal by not raising them so so so even jurisdiction and there's still a waiver probably that is correct but i still can't get past the part about we appear to have excuse that in our st decision in this case given that we did reach we did say that he stated a claim against mor plaintiff's response to that meet clear what his intent was on you know i agree that but or the declaration we might be having a different discussion but there's no question that the declaration in his intent on appeal just as if at any point the morgan pleading at this stage i understand that might be potentially an issue with that bass and johnson but why are we talking about the pleading and morgan when this court's already ruled on whether you agree  we care now i'm so i'm just not understanding the posture in which we might be revisiting that determination understood i think that because he did waive that ruling that there was a cause of action against them what would we do then decide it in other words decide as we ordinary peel or send it back to just recorder what well i think at this point we do have an i'm not trying to tell you how to argue your appeal but you might want to focus more on josh and whether they would play the i'm not sure i want on the panel i'm not sure i have the power to vote contrary to a part and also that might be couldn't i don't think they were they seen what they came separate but i couldn't tell that from the record you know and i could not tell that from the complaint in either it's only allegedly were nurses that arrived at the s and move forward and i think in considering that question it's important the other side has really said very little if anything about prejudice that would result more i mean this is not as if he's going to be deprived of arcs unity not as if there are any witnesses who have died or passed attack them but nonetheless they falsely said he did which misrepresented this is all they were the st medical responders on the scene so they knew that by falsely representing his medical condition that that was going to have an impact on how he was going to be treated because my concern is i really want to see if you can address this so what he says is that in the complaint is that johnson and bass covered up the seizure disorder they pretended that this is been a voluntary line which when we really it was a manifestation of the seizure so that his concern is that they while they're not mentioning to see they intentionally left out the seizure but then when he gets to the doctor his complaint is the doctor only treated my seizure disorder he wouldn't look at my bad back what i saw i am missing the causal link here the causal link me liberally construed he's saying they misrepresent him construing it liberally because i'm at least i mean i'm looking at this informal before which really says very little of anything and i'm giving you the best like most aggressive reading of it i can which is they lied about me not having a seizure disorder i think the argument is that they lied about his condition and so it's only lied about how his physical ability to lunge out of the chair misled people into thinking that he did not have a serious spinal injury that he in fact i can totally of and i want to say i know you're appointed counsel and we of course really appreciate what you're doing here and you have been handed a case way late wheelchair he's unconscious and he's having involuntary spasms and what they said instead of actually reporting what's going on they say he aggressively was out of his chair and attacked us that creates the false impression that he is that you know not have a broken