whether the person who didn't get the notice nevertheless understands the mechanics of summary judgment and the consequences i've got a slightly different the court held that harmless or only applied in the most exceptional case which we believe obviously that this this case is not exhibit anything unique in that context even then the court said it was an objective inquiry if the plaintiff for example receive and find that your client won without a jury can you ask us to do that and say if we won without a jury give us a verdict but if we lost without a very very it's the same kind of that there is a of course there'll be harmless or if there's nothing in the record that could suggest you prevailed on these claims in my mind that they've the question because the record itself is deficient if you did if rand holds that are apt to withhold evidence and not put it in the record on summary judgment to then use the record as the basis for finding that he couldn't have prevailed on the monella claim or the other claims is itself undermines the entire purpose of the rant quire now granted if i understood your question should he be able to keep the judgment against the trend having not received the notice as to everybody including other defendants we think he should because that there was evidence in the record discourses claim against  away from the fact that he may have provided additional evidence as to the defendants who in fact were dismissed it was as a result of the summary judgment and i can return to that as far as the jury question is concerned we feel that  facts found by the who are that established legal violation now to the extent we feel that the facts found by the court were a product of the series of errors nevertheless if that sufficed if that past the threshold and test we feel that it would be a moot point to then undo everything because we are saying that these facts were impacted by the lack of the jury by the lack of counsel etc so to the extent then that those facts are not to the whole purpose of the rand requirement or mind is to ensure that the there is an adequate record so granted that if it was an error for the court not viable so lease notices to any of the defendants because he didn't receive it on summary judgment constitution doesn't apply to me because i'm a male and summary judgment were granted on that claim that would be harmless error i assume because nothing in the record could change that  summary judgment had proper notice that is exactly what we're saying your honor that and i think the and is that because it's something you find in the record or something that you feel that it's not clear that unit when they refused to cooperate that would suggest that there was a pattern here and something that would implicate me now live building beyond that again i think we get back to the issue of the sufficiency of the record to the extent there are other issues there that random requirement that being said as we know it in our brief there is the testimony as to other inmates suffering the same fate that so he's testified he had experienced now if i could move on to the another so we believe that based on rule fifty eight that was it a clear error by the district court and in the inherent abuse of discretion so to the extent this court was inclined to affirm the statement of decision that remains an er including the court's credibility fine nevertheless at the conclusion of that order the court reached reached the legal conclusion that there was insufficient evidence to establish anything then the violation as i mentioned before other inmates where there has been an objective sufficiently serious deprivation of rights and second where there has been a deliberate deliberate indifference by the prison officials we feel that two credits the recent case in any way as the events inherently there's sufficient evidence here to move past summary judgment to get to trial then what changes is that the court finds least credible so that it's difficult to see what would have undermined that original conclusion is saying that the evidence for me principally the testimony and the witness flyer was sufficient to get me past this and then in the statement of decision say and this guy is more credible it's hard to see what happened to court's conclusion yes we believe that lisa's testimony alone based on the court's credibility finding and based on the fact that bell tran presented no competing version of the events in the bell trance that i never talk this guy to credit sleeps at all to one last thing i'd like to address if i may is the bill of costs which again no matter what else stop it happens in this appeal sleeps with tax one thousand one hundred sixteen dollars for the depositions that the opposing well that was noted in our brief that as part of the it we believe followed from the conclusion that there was no right to a jury trial and opposing counsel in their briefs on page eleven having said that it was their responsibility to pay for these briefs two of then filed the bill of costs against the lease for one thousand one hundred sixteen dollars is inappropriate and unfair and in fact that he should have had it in the alternative of finding that the district court made is infected by his lack of understanding that a jury trial demand had in fact made and that the district court gave absolutely no explanation for refusing appointment of counsel now i'm not suggesting by my assertion that counsel was required to be evidence to present to this court such that it even took it past summary judgment this is not a man who did not know anything about objections this is not a man who did not know anything about motioning to the court when he thought there was a shortcoming the ram notice is not about but rather the influx you're not quite hearing what i'm saying i mean i ticked off at least five things that it seems to me that the district court got wrong and any one of them is enough to send it back i mean if you got the jury demand wrong plainly that's an area that has to go back for a trial and  would not reverse bell track and with respect to cold and sheriff baca there was no evidence presented and there was no demonstration by the moving party who has the burden that there was any evidence that was not pre for lack of brown notice nor any any indication that any additional evidence would have been presented as a result of the ram notice randy again it's about the implications of time which i don't know as there focuses on evidentiary issues with respect to the w well you didn't really comply with the requirement of filing the jury instructions which of course was a burden that the local rules put on the defendant not on the plaintiff we don't believe so because the judge specifically jury instructions anyway quite frankly we don't believe that's that error made by the judge overshadows his decision in this finding that there was a jury waiver the reason being is that the court specifically not that the jury waiver was based on a failure to provide free trial documents your honor i understand the court's concern with respect to what you think if you did if you make that mistake then he was clearly mistaken as to the rest however wasn't in and of itself the court didn't stop right there that's the point i'm trying to make to this court the court also found that solace is imprisonment was a substantial barrier to his being presence and the court went if you'll pardon the expression ben over backwards and said we're not going to just dismiss the case because there's an inability to prosecute the court ordered the trial to proceed by video presentation witnesses were called and there was examination and cross examination well maybe you could  one thirty four one thirty five one sixty two one eighty nine he indicates that around the time when he had an interview before he was allegedly placed in a gang module he was interviewed  it was vargas who who did the interviewing he's implying that based on that interview and directly and right after that interview which supposedly took place on july fourteenth one thousand nine hundred ninety he refused to be an informant and after that vargas about something else and that's when i told beltran i said hey beltran once you have a look at the paperwork man or have them call down there i ain't supposed to be where you guys plan on putting me just because i don't want to inform for you guys at that point that's it they say stop the deposition mr sleeps in terms of this appeal yes my understanding is that the central district has the same program and my sense is that firms are bending over backwards to try and get these sorts of opportunities and i'm not in a position to commit my f additional representation the on what we have here i'm very confident that firms including our own would be very willing to undertake the representation mistress least if present of the opportunity by the district court so