has a broad statute for survival of claims and essentially in a case like this it's very well established where there's damages to a claim for damages to injury to a person that they claim does succeed to the personal representative of course in the district court there is rule twenty five a which allows appointment of it a personal representative within ninety days of the filing of the  mitchell have family yes so i've communicated primarily with mr mitchell through since my appointment and then about six weeks two months ago mr mitchell son and i had some contact we've been in contact three times since his passing at least three times he's coming to augusta this weekend to collect some personal effects as the court may know from the autopsy report he passed away at augusta state medical present so i anticipate that i'll be seeing mr mitchell signed william i understand he's an only son and so i do anticipate that a personal representative will be appointed in due course and mr mitchell was very interested in having his family pursue the litigation if anything happened to him and i've only preliminarily discussed that with mr mitchell son william and my feeling is that he also is interested also obviously has a lot of questions in that regard so yes the short of it is i control the litigation and that sort of stuff and i do not anticipate that being a problem here your to your expectation is that within the ninety day period that a motion to substitute  personal representative having been established will be filed that is my anticipation yes your honor ok one of my concerns about this case is that it appeared from the complaint that the that mr mitchell's complaint was that there was a new treatment potentially revolutionary kind of that he was being denied treatment that he had perhaps suffered some did now at an earlier prison but his complaint as to the last place where he was imprisoned was that he just wasn't being given the treatment that he preferred could you help me with that yes your honor of course as your is the court is aware mr mitchell was pro se below up until the court's appointment of me on appeal his complaint is entitled to liberal construction as a pro se litigant your honor covered much of this ground in the brown v johnson case which also isn't the the primary nine hundred fifteen out of the eleventh circuit in this particular case a fair reading of the complaint alleges both that he that is mr mitchell was not receiving any medical treatment for hepatitis c that is primarily grounded in paragraph seven of the complaint on page can the pacer page numbers page ten of the complaint where he alleges a lack of treatment the development of cirrhosis stemming from the lack of treatment those are his words and then also he goes on with what you're saying is that that that allegation the lack of treatment cirrhosis has be ok ok so our tree that's right and he had been it augusta before so again back to augusta that's where he passed away just very recently ok all right so when when when that complaint that was filed he's complaining about tree that's correct on and and we're you're saying we should read we should liberally construed paragraph seven to say that he was being denied treatment altogether and that cirrhosis after numerous attempts for medication and or treatment and then on page the next the following page progress sixteen eight numerous attempts and are true ok so woods noble and not to refer only to the paragraph twelve that begins on page eleven and so on page twelve about not being provided hard vonnie that's correct your honor i'd do acknowledge the complaint also alleges hard vonnie was breakthrough medication which could potentially provide a cure for him he also obviously in his complaint does discuss that but i do think that a fair reading of the complaint and certainly a liberal reading of the complain that's correct your honor and he cites the trials and that seems to be his allegation that notwithstanding the lack of treatment up until that point he was still a candidate or could benefit from this breakthrough medication and i will say you was complaining about the denial of treatment so again the case is very analogous to brown b johnson notwithstanding states that tend to show this as a mere disagreement over the extent of medical care that was provided seven and thirteen or fourteen fourteen i guess it was in the manner that you've outlined today and say that because of that based on that liberal construction it was  back to the district court then to remanded for the proceedings yes your honor that and i'm not opposed to that i've never dealt with this circumstance and i could not find any authority other than what you're the one case that the older ninet fifth circuit case but certainly that seems appropriate to have a protocol represented as as i don't anticipate that would be a problem we're not opposed to that in this case obviously the urgency is passed if you will yes right you know so i appreciate the motion for or the court's ruling on the motion to expedite review and such but under the circumstances i don't think there's any harm or delay in an acting that we've got i mean i think we kind of have to do that to have that we have to reported false statements there's a couple problems with the alternative holding of the district court the first is that mr mitchell was not provided any notice regarding an opportunity to respond to the court's ruling that he was providing false and misleading statements to the court the court the lower court i relied primarily on rule eleven and as your honor knows the court knows from the appellant's blue brief rule eleven c one on its own terms on its face be choir as an opportunity to respond and that was denied here i will say that judge thirteen twenty one where the court in that published decision indicated that the district court must generally provide the plaintiff with notice of its intent to dismiss or an opportunity to respond there are exceptions narrow exceptions the second issue is that the court's ruling that mr mitchell could simply pay the four hundred dollars filing fee and realize his compliance and there would be no no prejudice because  dismissal with prejudice in that mr mitchell the whole point of his complaint was that he needed urgent urgent immediate care and he could not get that by simply stating his pain he had thirty seven cents in the time he f i don't know exactly how we received notice but when mr label here was appointed we received notice of that and we decided to participate in the appeal to the extent that we could be helpful to the court in deciding the issues there are two separate and distinct reasons why the order of the district court can be affirmed in this case the first is because mr mitchell is concerned let's listen we have an obligation do we not with the pro se litigant to construe the allegations of the complaint liberally in his favor absolutely right and it's well established yes paragraph seven and i think it was fourteen  are cryptic well why isn't your labels description of them fair enough that we should send the case back that is that in alleging that the lack of treatment cirrhosis has begun and alleging that the fenders would snowball and brakes fail to assist the plaintiff after numerous attempts for medication and or treatment constitute deliberate indifference to point of serious medical needs in violation of his rights under the fourteenth amendment to the constitution and further constitutes cruel and unusual punishment what why isn't that enough  to send this case for because your honor in addition a liberal construction and reviewing the allegations in favor of the plaintiff at the courthouse to review the complaint as a whole and so you can't cherry pick certain the allegations in order to support one side or to just decide we're going to ignore everything else in the complaint and here when you look at the complaint as a whole you have allegations that mr mitchell was receiving treatment his complaint was not sufficient after i mean the man is dead and buried i mean i don't understand the point of your argument that the point of my argument is the information that was before the district court at the time that she willed on this complaint when she looked at the complaint as a whole it was certainly a fair interpretation of the complaint given his reference to proper medications with a suspect in his hepatitis c ok i get that and that seems to me to be the sort of thing that could be sorted out in a marriage determination with evidence but and i can understand the district court who  law to take a preliminary look at it before the defendant appears and to determine as a threshold gate keeping kind of function oh whether the complaint should be dismissed or not  ok but but but isn't it fair to say that as mr label now we have court appointed counsel here who says you know there is another way of looking at this complaint i can see where a judge might read the complaint as a whole as saying this is really a complaint that he wasn't being given the treatment that he wanted as a posed to being guinea given any treatment at all mr label says now here's another way of looking at it yes he perhaps complains about being denied her vonnie a treatment that he would have preferred but he also you can also liberally construe the allegations as  as alleging it was but also being denied any treatment and her body would be especially helpful to someone who had been previously been denied treatment that's another way of looking at it if there's a reasonable way of construing that because it's a pro se litigant and we have an obligation to liberally construe it we send it back to the district court the prison has the opportunity to say to prove he was not being to treatment he was being given treatment here's all the records of it isn't that the right way to resolve it and well your honor i would have to say that if you look solely at the paragraphs referred to by mr label under a liberal construction i would i would concede that those paragraphs established an imminent need under the brown v jackson case but i'm merely saying that when the district court looked at this case you looked at the complaint as a whole and didn't disregard later allegations that tended to discount or contradict those allegations right i get i think i can see that given the district court's position but but  now we're in a different position and there is and it's been pointed out to us by our our other friends here that our there's a different way of looking at the complaint and if we liberally construe it in that way we ought to send it back represent the department georgia department of corrections i routinely represent individuals employed by the georgia department of crack i mean do you know what their protocol is for treating help otitis your honor they do have an but the standard treatments for hepatitis c are routinely offered to the inmates in the prison system from my experience looking at the cases where you know i'm just wondering i mean obviously it can't be much fun for you to come here and argue that his pleadings weren't sufficient to show an eminent danger to mr mitchell when when he's dead i mean obviously he was  imminent danger i mean what what do we learn from the something that doesn't doesn't make the courts look good it doesn't make your you know the the department of corrections look i mean what do we learn from your honor i have not done any sort of investigation case but i can't comment on on whether or not he wasn't receiving treatment or was or if there was a medical reason why he wasn't receiving a treatment i just don't have it and i realize you were not involved in the district court proceeding  danger that allows for a filing even if you've got three strikes i would agree with that see me running well and you know so maybe going forward some of these cases will be treated everything as a whole  held that a notice is not required when the dismissal is without prejudice but in this case and technically i guess it was without prejudice but when you have what is truly an imminent harm isn't the real sanction that's being imposed whatever the harm is because if it's truly imminent here death right if you dismiss it without prejudice you're effectively i mean sentencing the plaintiff to deafen in that's what you're sa effectively as a practical matter i don't mean to suggest that the district court meant for that to happen but when you actually have true imminent harm it just seems like there might be a problem with dismissing even if it's without prejudice there may be there are some alternative that is a lesser sanction well in this case your honor indeed there was nothing that prevented mr mitchell from turning around the day after he received the dismissal order from the dis that prevented him from come back after the judgment was entered well that's exactly what he did when he filed additional pleading saying i'm getting no treatment plan for sleeves no treatment but those documents were in the course i mean i'm speaking in terms does fall season the same you know the danger of dismissing this under rule eleven which you know is an attorney rule you know saying that you have noticed when ruhle not a circumstance that the precedents that you're saying would apply our address isn't that right that is correct your honor there are some cases from the circuit and there are published decisions where no one is under one nine hundred fifteen e has been found to be sufficient when a litigant had been informed of his by a ling status and three striker status in prior orders issued by other courts understand your argument what happened here is what should have happened here and surely that's not your argument it's a well i certainly don't believe that mr mitchell should be shipping tonight any medical treatment and again i don't know if that is  not what i'm saying is that there's just a court didn't abuse its discretion in imposing the sanction against mr macdonald but again and i know you said well he could just go back the next day but that let's talk about practicalities because first the order has to get mailed to the jail then he has to receive the order then he has to get time to write up whatever he's going to write up and get it shipped out i mean that in and of itself means that there's going to be the lapse of at least two weeks at least two and if the harm is imminent why isn't it the case you know if the court has reason to know that the harm truly is imminent and the death or some serious injury is going to be the result of not getting  really immediate review of the situation why isn't it the case that some lesser sanction should be imposed other than even if it is a dismissal without prejudice even you know why isn't it the case that there shouldn't be some lesser sanction imposed i i would say that if judge abrams had decided to impose a lesser sanction that would have been within her discretion to do so here's here's my concern  mr mitchell and all caps a note failure to disclose all prior civil cases may result in the dismissal of this case if you're unsure of any prior cases you filed that fact must be disclosed as well but that does not come out it seems to me to a sure course show cause order that rule eleven sanctions might be imposed and he just wasn't given that opportunity to just real briefly your honor and i know the court has the facts obviously under control the district court when it went to dismiss the complaint it told mr mitchell he had to pay four hundred dollars filing fee to get back into federal district court and counsel for the state hypothesize as well he could have just gone back to district court and we completed that the answers to question number eight regarding the prior filing to sort of didn't tell you look you need to show cause why you shouldn't be exactly right and there's no there's no nothing like that no case from this