there's a clarification there that i'd like to make so i i do want to get to that but i'll start with the timing issue because i do believe that that is dispositive of the appeal and again as i was preparing it occurred to me that the government is really making two distinct arguments with respect to the timing of the dismissals and he thought endo but the first argument is based on the meeting that the government says the word bring has in thousand fifteen g and i believe with respect to that issue what we said in the briefs is what i'd like to say obviously if you have questions about that at that part of the argument i'm happy to answer them but i think the breeze deal with that what i'd like to turn to you is the wrong argument but the timing argument essentially is what there was you can bring a civil action that means you don't begin at the time until it's you're told that you can break a civil action the argument the argument is it took there's a there's a basic factual premise that i think is wrong underlying the government's argument which is that the government seems to assume that the mccann that that happened at the district court level when a complaint is submitted with an eye of p application the complaint is not actually doctors who are strictly speaking by a moment about applications granted there's a factual assumption that something like that process takes place at the power level that's not the case actually as i understand it the mechanics are different when the appeal is filed when the nose of appeal is filed but what is what is appealing appeal at appeal is an appeal when the notice of appeal is filed the commencement of a civil action or if he will there's a separate argument that the governor's making there that if the authorization hasn't occurred because the ip application is not being granted that the appeal or the civil action is not just course discussion in ball which referred to the case out of the four circuit in maclean the plame case even though ball was discussing the dismissal where in the context of failure failure to exhaust the reasoning that the court adopted prejudice but i think there's an important distinction that needs to be made between dismissal of the of the action and dismissal of the complaint and neck making fifteen g when we're talking about proceedings the district court as hasn't been adequately pled and that's really a dismissal of the complaint it's not a dismissal of the underlying rationale what you would do that with and denied the chance to amend isn't that game set match for that particular it does not but it does talk about dismissal of the of the action as opposed to the complaint and if you if the film would ask a dumb question what do you think the differences between dismissal of the action versus dismissal of a complaint is a strike it's a strike at the moment it's entered if it's not a strike it's not a strike at the moment it's entered and it doesn't become a strike based on a subsequent decision by the plaintiff whether that's in the case of the basis of the dismissal and so it can depend on subsequent events right whether an appeal was filed and i think that's consistent with but the supreme court said in the kerman case where many courts and i i think in a ball in my mind i believe the court then said and a dismissal without prejudice is not an adjudication on the merits of the two put the two principles that were operative in mclean well recognized by this court quite possibly that i'd have to argue about us agreed but i i believe this that split already exists and i believe this court in following the reasoning in the claim as centrally tha decided how the analysis works with respect to a dismissal without prejudice your honor i don't i do not want to trespass on your time i did not try to address what i wanted to say about the decision whether to grant me their window that the district were dismissed on immunity grounds and didn't consider whether or not to to grant lead to an end to try to get a claim against non and defend this and i believe that as we grow as we expressed the argument in the brief me lead to suggest that we were telling this court that it should be reviewing that decision for correctness and that in finding that that decision by the district was incorrect that is not the way that i would bring the argument as i stand here today i don't think that's right what i would say here today is is that the dismissal in death is not a strike because you cannot ascertain from the face of the dismissal read or the district court evaluated if it if the pleading could be amended to state a claim against not to mean defendants and i think you get to that was all you get it was all in the in the following way i believe the could be concluded that prison officials failed to protect out ok that's what the court says about not any independence but the court doesn't then say whether that the leader is true or not then the court says based upon the above legal standard even absolute immunity has some exceptions so i don't believe it's hiree doe the basis for the dismissal was immunity i believe that was the basis for denying leave to amend finding it was in it in equitable i permit amendment because these named only made defendants were entitled to munity in this situation as i read and as opposing counsel pointed out the sections where the court specifically recognized there was no constitutional defense how bad permits the court upon screening to determine whether or not it states a claim in the first instance and in the second instance to determine whether or not we've to mention granted in this case it used his discretion not to permit amendment because they were also titled taps and many other piece of the complaint i know but that you have if you have the judges dismissing it determine whether or not it should go forward on an answer for the people that are entitled to defenses which the judge enters without ever hearing from the defendant that it's not a strike as i understand the question judge the dismissal without prejudice why should that be a strike in the first in strikes that there is lead so there is heath two and there are still those that completely resolve the case based on a literal fifteen a and g to say that even of these cases killed a strike for the future broke today they don't necessarily kill for this particular appeal i don't believe that's how the nine hundred fifteen should be interpreted i we agree with that your honor all right so that that's a crucial decision that that's where to make first before we decide and we if we make it bigger be right to say we don't have to resolve the rest of the issues which you posed are adjudication i believe that's are i believe that's a threshold issue as to whether the timing in the first place if the strikes could accrue prior to this court authorizing actual to commence and that the ministerial task of merely submitting on the i on the number of suits that can be brought and in this particular case congress carved out for the privilege of i mean certain restrictions ones restrictions being that you can accrue straight up until the moment the court authorizes it to thirteen a one eighty two in one thousand fifteen gy the statute contemplates two different points in times submission of documents to the court and convention authorized by the court and those are two very different points and times bar rather those claims are exactly what but they appear to be conditions of confining claims isolated incidents that aren't related to some continuing pattern of abuse that demonstrates a immediate danger to how quickly your honor on the on the without prejudice issue took it is true has hell said that the statute doesn't distinguish between without prejudice and with prejudice but the statute also doesn't eight one and she i think is consistent with what i was saying in that it could be that c and o or strikes going forward but not strikes for purposes authorization to proceed without paying another piece it's not saying that the appeal is a military until that authorization is qur'anic i think would there be jurisdictional issues for example the thirty day appeal period is jurisdictional if the authorization granted after bets expired could be questions about jurisdiction you could do without by simply saying that the appeal relates back to the data file which when there's authorization the appeal relates back to the date the notice was filed and and  of the statue grounds that it is submitted to the court before the statue runs the formal filing would relate back to the date of submission so you could apply a similar analysis on appeal but i just think it's simpler to say that the appeal of other issues where the the court happen to make the observations about the screening process and how it works i don't believe those are holdings about for example what the meaning of the word brain is for example in gives on the issue here was was whether i had he said as could be revoked that with that was the issue in the courts of the world said on page one sixty two one sixty if there are sixty two of the actual was brought up when the motion to proceed  extent that that's a comment on what the meaning of the bride is i do think it's dicta because whether you construe brot as when the complaint is submitted or you construe brot as when i a piece tess is granted