wilson spent over fifteen years in prison i think we know the facts prankster ellis what i'd like to know is why we should mr he still stayed with mr austria but he didn't find out until several months later the representation that you just made reference to happen in two thousand and six he didn't actually find out about the dismissal this that year right well i certainly wouldn't concede that point i that's that's a central issue and i understand that the police has been a significant amount of time in their brief is when his cause of action accrued and when he could file a claim and the humphrey's vs right except that the cause of action it depends on the cause of action i just i'm just  i literally unreasonable search may lie even if the challenge to search produced evidence that was introduced in the criminal trial is resulting in the night section nine hundred eighty three players still stand conviction what they're saying is that the cause of action the successful has the such that it doesn't necessarily imply that the plaintiffs conviction was unlawful so i don't understand something judge hardening asked what i thought lawyer did but what about what about let's move from minute one nine hundred eighty six isn't it the case that you that you have a better argument on the one nine hundred eighty six because the statue of limitations by mel my calculation ran in november sanctioned the case for the lawyer by dismissing in other words maybe this was a rule when he went sanction because the lawyer failed to follow the judge's order you were was give me a status if if the first dismissal was improper right i mean that right and that's that's our entire argument wasn't it why wasn't it proper why why why didn't george o'neil properly dismiss the case when there was no action by the attorney because he didn't he didn't take the attorneys conduct any consideration he didn't address any of the factors it in a gauge of the dumbell requirement the recent case of the francis going to the march of two thousand and six which came down three months pull of factors it was unnecessary for him to apply the coolest factors or apply the dunbar notification procedure because that those factors only apply in a situation where you're dismissing the case with prejudice so that essentially that that action would act as a don't believe it was a final letter in fact judge o'neill's order was explicitly entered without prejudice the text of the order states that and were given the fact that the statute of limitations was was well up and at that point mr wilson had an additional seventeen months at that point to refile his claim it did not act as a final it occasion now this was the group two thousand and six that's correct right not outrageous that's correct in the order that we're concerned with here is  someone were going to be precluded from from being able to continue the case from having it heard and merits that's why you want to go through this analysis before you deprive person of their right to have their case heard in court however in a situation where it's without prejudice and statue limitations is open for a year but in fact it didn't and if you look at the text of the journals letter it almost acts as a roadmap informing mr wilson that your case is still open and the reason it does that is because the reasoning of this is that on the june two thousand and seven order states that he could not intervene to prevent that conspiracy it simply doesn't make sense that well the legal argument for summary judgment that's not an argument it seems to me that allows you to show up the court house the wars in this very well i think if we can establish that there was an alternative ground  performance that would have precluded him from being able to proceed on his claim this court can say well it would be futile to send the case back for example if if your honor to determine that the nine hundred eighty six claim could survive and should have been reopened it would be futile to send it back to the one in that case we held that a district court must make explicit findings regarding the police factors whenever rendering judgment by default we're dismissal or in decline to reopen such a judgement this intently clear that even in this case when he when the judge in either motion to reopen the police factors have to be considered your honor i haven't read that specific case but i certainly have read cases i've read pools itself and the cases applying pulis and i think it is the case law bears out that the coolest factors are only appropriate if you are foreclosing someone from being able to litigate this case so there simply isn't the need or than the subsidy to go through those factors if someone can simply is not the issue it boils down to a pro se litigant who essentially misapprehended that the statute of limitations was opened at a time where he was well aware and now i'm talking about a in two thousand and seven he was well aware that he was per se that he was no longer walk into court and refile the next it's a new case i mean it's it seems to me you may be making a fundamental error perhaps it's a nomenclature saying that you're saying the case was alive the cases then but he has the opportunity if the statue of limitations has not run to file a new case that doesn't mean that in case one that's not a final order closing the kids he'd have to file a new case it would be given a new civil docket number  not right i think that is perhaps correct however the fact that the person can mr wilson would have had a chance to fully start his claim fully has to have his case heard on the merits and because the statute had run because the if you have questions about that my colleague will be getting into that and more over at the time that the sixty order is denied that one hundred six claim is fully declarative and i think that chalked up to this before it's fully to click it of the other claims is no case you have to bring a whole new things right so it's a fine appealable decision right respectfully if it's approved forty one it says that it in june of two thousand and seven which i understand is not a question that you should apply to then not in two thousand and six because it could have been reopened and she thought and six now i think you potentially could get into the question whether or not there are are alternative grounds for a firm and i think that it's well i'm inviting you to apply some pretty broad brush a pretty broad brush application of immunity and an argument that these allegations are in fact against the state and not against municipality why this doesn't require you know the microphone i our argument that this is in fact a state again claim against the state and not against municipality would preclude him from filing in one thousand nine hundred three clean and that doesn't that doesn't require you to get into the true merits of this case i think you can apply this but again i want to let for any reason that supports its order and if in fact there was a failure to say the claim because for example of absolute immunity it would be appropriate now to uphold the judge's action which i even though neal never address immunity he did not your honor and that's why i say that the lower court can be affirmed for any reason even those that he did not consider but this is a garden variety remey and isn't we want to win a district judge from someone out of court based on a procedural default whether it's a time bar or misconduct whether it's six the were forty one why not just go back down there and you can follow rule twelve motion arguing prosecutorial immunity well we certainly could but since we are here and since the principle exists that a lower court could be affirmed for any reason i think it's not inappropriate to consider reasons where they are apparent and even that reason be something that was brought before the district court not something that might it's not that difficult to say i'm throwing out a court because your case is tying bart and in case i'm wrong on that taking my chances with this court i make a couple of alternative holdings to the wrong on the merits so he did none of that here this both upon mr wilson and upon the district court judge when its merits that's what you're saying yes that's actually one of the police factors isn't it brad rutter this is interesting at this point given that we're here we the court has a larger car i think you noticed in your request but you know one of the problems with mr ellis is not addressing immunity you're addressing it for the first time you're asking if you're inviting us to make a ruling based on brief there was no argument today on that issue if it weren't an open and shut question in our view something that goes to the core of the prosecutor's duties which is how do you pick juries how do you exercise that function it would make promise must be interpreted it's military not you just miss it doesn't have any merit right we're making an assessment about whether our case has merit doesn't mean litigating the entire case of the time or but that was extremely premature and i wasn't going to fall into the trap of trying to litigate the immunity issue on one we're here on a procedural the fact and we're also here because of the our wages actions of this former counsel true i mean there but that doesn't mean you know it doesn't mean absolute immunity we haven't had a chance there's been no opportunity in this case to actually litigate that there's some there's a lot of facts that we don't know so at a minimum it's premature we can't just say that just because he thought a complaint against some people who appear to have qualified immunity that automatically use cases that are now particularly in this tribunal we're talking about