when we've spoken on the phone when he has written but it is apparent from the record that he has mental health problems and he has a criminal history of sexual deviance in a word mr brady who is not someone who society readily holds in esteem but the constitution and the rules of civil procedure are not limited to protecting just the virtuous among us mr breyer filed a complaint raising non frivolous claims that against prison officials prison doctors nurses guards administrators that they denied him medical attention including certain procedures prescription drugs a prosthetic for his foot after he broke his wrist a brace prescription eyeglasses and he also claimed that they denied him the right to participate in passover services and withheld legal filings and he claims for retaliation based on his many many lawsuits in federal court and state court against these prison officials and others the district courts administered of closure or in effect its dismissal of the case we feel was not proper or just but what else so what else could the magistrate judge have done here in this case i believe what should have been done was it's just stay the proceedings and till another deposition could be scheduled for you but i mean that's that's no penalty at all right that's basically rewarding your client with what he wanted by not going to the deposition he wanted to delay it was denied denied and then he just didn't show and so how is that a sanction i was at a lesser sanction i agree that it's not a penalty for someone like mr bray over in his world i believe it is a sanction he is being told that he did something wrong he's got one more chance and the reverse i think is actually dismissal is too extreme because it was just a single in my mind a single and the financial sanction was no one hundred and thirty four dollars it's a lot for him but it's not that wasn't punitive in the sense i was just to reimburse the state for the expense it was a sanction that he could not pay so for him it was significant but i think it wasn't obvious to me that he has nothing he's commissary or nothing no ability to pay that down over time that i'm not privy to i don't know  but he does file so many actions that if i had to guess there's nothing left in the commissary i mean he is really been around the block many many times not showing up for the also wanted to respond to judge but yes he did file objections and i think automatically therefore the district court did abuse its discretion in in granting the magistrate's report recommendation because it was the wrong standard did want to answer that the irony to the whole case is that he didn't just want to not show up because of the exposure suit but the exposure suit was part of and that was always his claim is the way he's treated by prison officials and so in his mind he didn't need an exposure suit and there were lesser means i think he felt this was yet again part of being mistreated word from the court that it had been denied so he never even heard that the court ruled and he's now being forced to put on something and really may not have known what he was going for so i think it comes down to this is a case about being mistreated in prison and this was all part of the same thing it was just that it was exactly what he was complaining about and now it in effect and his counsel i also want to talk about warnings in advance closest the one warning mr breyer got from the magistrate judge was when he said you understand you there are going to be doing your deposition in your case lot on him being somebody who just is vaccinations as the government said before the court and i don't think the way to get rid of him was to just with one  misstep position after a seven hundred and twenty seven months of really very vigorous attempt to prosecute his case so i think when it's compared to many many other cases where this type of sanction and deserves a shot at having his arguments heard by the district court which might be flexible on some of these things might just say him another shot rather than have us try to pass on agree with that i would agree with your honor but there are cases where we have just applied the harmlessness standard right we haven't done that where it looks like it's just going to be you know unnecessarily delaying and the magistrate judge's ruling is going to be is going to be adopted because under almost a standard that's the only outcome and i think there are cases where yes you found it harmless i think in this case it wasn't i think that upon review the district court could find means and reason to  to continue the case find an alternative sanction let him continue thank you thank you you reserve and i did you will hear from the state there's been no final appealable order i've already spoken to plaintiff's counsel and said i would of course consent to any written submissions that the court feels are perpetrated but the order that's been appealed in this case said a monetary responsibilities some sort of action or perhaps a demand for a partial judgment yes your honor either of those would have sufficed but the order that's been appealed does not leave only administrative things for i don't actually know the time frame henri argument but the case was closed administratively yes that's correct how do we how does he have the right to move for anything without removing the sanction  i think that a motion explaining this is why it should be reopened because of this error would have us it was an error of the judge when he said there were no objections yes that is  it should be reopened and here we are willing to do it and you tell us we can't do it because it's a final order again i regret not having recognized the sooner your honor is but i don't see that it is final because one there was no objection to our i think so yes your honor i'm also happy to answer questions from the court on the assumption that there is jurisdiction as i understand that there are various issues raised by the prior argument but i do believe that the error that we had but it's clearly a district court erred but that was effectively harmless because the only option suggested by plaintiffs now is not a sufficient sanction both for his admittedly willful refusal to attend his deposition plaintiff concedes it was willful and based on disagreement with security and not on anything else and also issues that's correct so we really want to give notice to these prisoners but that if they fail to do things they will be so nice and satisfied that this admitted y handicapped prisoner were sufficiently warned in that case that every man for the district court to reconsider would be appropriate but there is no need to for this court to craft its own remedy given the district court splashed the posher in the district court below and in addition of course there would also have to be logistical questions as to whether plaintiff is going to be able to prosecute prosecute this case going forward given that he's been removed from the country but but that is again all the more reason for this to be decided in the district court in the st instance should the course of the court decide that that's necessary being deposed us while this was going to be a video deposition your honor the courts have inquired in the past when people have been removed as to whether there would be any kind of remote deposition possible i genuinely do not know the answer to that but that's something that could be gone into at the district court unless the court has f am i am in touch with them i just like to say counsel just told me minutes before the arguments so it wasn't like we spoke last night and i had time to look this up simon very much rely on books and case precedent and come back to do a deposition correct he cannot come back and just your honors know he has another case which i also representing him on and the panel just last week government moved to dismiss for this reason the panel said that the case could go forward because he is able to continue to pursue it maybe he has to find that public interest organization to represent him maybe find somebody who will do it without being retained but  and depositions can be done overseas as far as i know long ago i used to work for department of justice office of international affairs and that's what part of what we did so varies from country to country but my understanding is could do a video deposition and would you think there's any way that we could proceed to vacate the case go forward if that's a non final order i would i would say yes but but i have to say that an additional briefing perhaps because i can't just speak off the top of my head i say yes because i'm or representing him and have to look for his best interest but sure if we could have a t together with the merits of the case thank you thank you both very much thank you so much