form act even though he was proceeding in form of populous i'll address each of these issues in turn turning to my first point this court made clear in october of the mesa that dismissal with prejudice is proper only if it is absolutely clear that amendment would be futile that is not the case here and each of the three reasons that the district court dismissed were in air first it is not absolutely clear that the statute of limitations bars mr bill honest claims your honor the district court did not even consider equitable tolling in this instance which we believe the district court must assess in the first instance on remand he spent what would be the basis for equitable tone your honor mr bill honest was very diligent in searching for these search warrants and putting in requests to his attorney and then also to the prosecutor and even to the district court with the district court even writing a letter to the prosecutor requesting that he produce the search warrants but he was aware that there were no search warrants at the time the search was conducted it wasn't he no your honor in fact at trial the police officers even testified that they did have warrants for the searches although the warrants were never produced right but he was aware that they were not produced he was aware of that your honor yes right so why would there be an extraordinary circumstance that would permit him to avoid the statute of limitations if he was aware of the  infirmity that he is now asserting your honor while he was aware that the searches did occur he could not tell for certain whether there were warrants or not and as you can see from the excerpts of record he was diligent in trying to determine before he government seek to introduce evidence from the surface of the house but that was part of his trial that was part of his whole criminal process right and the excerpts of record that we have  this case in the complaint do not detail exactly what warrants may or may not have been introduced not what warrants they searched and they found certain things and that was part of his prosecution so he knew that they used things from the search of his montana case line she feels as but where they conceal the fact that there were no warrants by refusing to answer any of his requests as to whether or not a word existed another basis for the dismissal below is heck the humphrey which does not bar mr bill honest his claim in this case his underlying section one thousand nine hundred three claim it's successful does not necessarily imply the invalidity of his conviction importantly the state does not dispute the fact that the district were urged on this issue on its final basis for dismissal of the district were when it determined that prosecutorial immunity applied to two defendants because it is not absolutely clear that mr bill honest cannot plead further facts on that issue turning to my second mission the facts would he be able to plea that would be consistent with his complaint because it was previously your honor for example we know of at least one affidavit submitted by the prosecutor leo gallagher in the case where he acted as the complaining witness rather than as a prosecuting attorney entitled to any immunity turning to my second point the section nine hundred fifteen strike issue despite the fact that mr bill honest paid the filing fee up front the district court nonetheless assessed a strike against him fifteen j the action must have been filed in former proper of us your honor while we do not have case law that it must have been filed in form of popper's there is also no support from this court  binding authority on this court that says the opposite that says that that it applies to both be paid and i have what's the gist of that that we don't want people filing prevalence lawsuits so if and how much is the filing fee like three hundred fifty five dollars or four hundred fifty i don't know something along those lines so what if someone has money and they just keep a net but they keep falling prevalence lawsuits that should they be shelled that if you're really looking to what the policy is we don't want people fi yes your honor we do not want prisoners filing for of those lawsuits however even the three strikes provision of section one nine hundred fifteen gy would not bar that person from filing for bullis lawsuits they would simply be barred from filing in form of popper's after the three strikes were subject to the same section nine hundred fifteen strikes as informal popper's litigants prisoners would have no incentive to pay the filing fees up front and till they have already received three strikes thus increasing the overall amount of informal pop federal courts contradictory to congress's stated purpose when they passed the prison litigation reform act also are you aware that at least four circuits have determined that strikes can be assessed regardless of whether the  proceeding of the prisoner has pre paid the fee what do you think we should do about those cases should we ignore them your honor i am aware that for other circuits have done that however three of the circuits it's merely dicta or a one line approach to it it's depth analysis of this strike issue you want us to create a circuits but your honor we do believe that the third circuit which went in depth into these issues simply that the opinions in play misconstrues congress's intent and we deducted over time correct your honor and to that we would point out that that's simply the pay now versus pay later mentality that you or i would have with any large purchases that we would make and that while three hundred fifty dollars may not seem like a lot of money to you or i it is a serve the rest of my time for a battle thank you thank you the court my name is rebecca french i'm a special assistant attorney general for the state of montana i appeared today not on behalf of any of the defendants have never been served with a complaint in this case but at the court's request as a friend of the court  i'd like you address the issues raised by the counsel for mr bill honest in this case i i always like to start with what i agree with and i absolutely agree that heavy humphrey does not bar mr bill linus's illegal search claims primarily because heavy humphrey only applies if by declaring those searches to have been illegal this court would be in a position of setting aside the conviction of mr billow honest without either that have happening either in the state of montana in a court or in a in a hideous proceeding and frankly i'm quite confident that mr bill honest would have been convicted without any of these searches as i think the evidence against him primarily consisted of his his own testimony as well as the testimony of his victim so that certainly is not an area where i disagree with counsel for mr blindness it's interesting to me that we both mr bill monist and the state of montana cited the same ca trimble versus county of santa rosa on the issue of why it was proper or in their case they thought it was improper for the district court to actually dismiss mr blindness is clase on pre screening with prejudice and it's true that one of the issues in trimble was whether the district court below was correct in dismissing a legal search claim based on heavy humphry and this court rightly found that it it should have dismissed that without prejudice because i believe at that point the inmates proceeding was still going through the court on  conviction released proceeding in state court and the notion was that the the dismissals on the heck issue should have been without prejudice because there still could be a chance that that conviction would be set aside but the court rightly looks to the statute of limitations because the statute of limitations on an illegal search claim occurs when the search occurs well it's or any published court decision in the ninth circuit holding up the claim for warrantless search  occurs when a person learns of the search and not when he learns that the search warrant less you know your honor i believe that the district court sided mccain yes i'm i'm sorry i i might  have the name wrong but i think that the district court did cite a case talking about the fact that that search occurs he also cited a case when i believe it is out of the district court for the district of california  and i think what i find particularly confusing about this is from the perspective of mr bill wanting us according to him a district court should never dismiss on prescreening with prejudice based on the statute of limitations because there might be some facts out there that a plaintiff could raise if allowed to amend and raise equitable to but the more important consideration really is that i think that mr bonus have the opportunity to make these arguments mr bill honest has a more of a record than you would normally expect to see in a case where the just a court made its decision based primarily on the complaint because he chose to attach to his complaint a number of documents excerpts of record from his trial letters he had written to the court and he was relying on all of these and continues to rely on these documents to argue that somehow this is the one or more of the defendants i think it's important to recognize that this is a hundred three claim so he has to allege specific facts against each of the defendants so i don't think that this equitable tolling should apply unless he could actually identify which of these defendants concealed the fact that there was no warrant which seems to be his argument as to the the august third search in terms of the prosecutors i think i heard opposing counsel say that the complaint could be amended to show that i want at least one of the prosecutors signed the search more what's your response to that assertion well you know i didn't actually hear that what i heard was that one of the the that may not be information known to the attorneys or mr villainess is that it is common because montana although it has a grand jury system it does not usually empanel a grand jury as matter of fact i think it's only done so once or twice in history prosecutors commonly prepare for the court a motion for leave to file an information when they charge someone with a any offense and ask part of that motion for leave to file certainly the prosecutor can i think they usually do an application and it's not sworn but you know if if there is a sworn application out the affidavit what i would say is that in my experience all of the process all that the prosecutor is swearing to is that he has received this information from the investigating officers he's not actually vouching for the truth of any of that information now i guess though if that the district courts you know why wasn't the district court's dismissal on that possibly premature is could make factual allegations concerning the prosecutor's action that would not be subject to absolute immunity that they aren't certainly he could i don't i don't think that that i would have ever seen a proffer right and bar but more importantly i mean the district court chose to dismiss on three separate grounds the dismissal as to the prosecutors it was based solely on prosecutorial immunity but because this complaint was based only on the illegal searches not the actual prosecution then if those if if a claim based on the legal searches was barred by the statute of limitations then so too what a claim based on anything that the prosecutor did something is not something that can be concealed and truthfully if mr bill anus was actually waiting to find out for sure that there was no warrant then he'd still be waiting because the his only basis for stating that fact fifth is because it hasn't been turned over to him or at least it wasn't until october when the district court actually made a part of the record and in his post conviction released proceeding i want to touch just briefly on the issue of the strikes and it has to be brief because i'm running out of time here because i really am here as a friend of the court i did feel it was incumbent upon me to point out to the court that you don't actually need to reach this issue whatever you do in this case because there is ninth circuit's already that says that the decision about whether there's a strike really is made by the court that imposes that strike however i certainly don't want to discourage this cut this court from deciding this issue because i do think it's an important issue it's important for the district court judges in the in the all of the districts in the ninth circuit it's important for people  honest his position so they know exactly what's going to happen when they choose to come up with that three hundred fifty dollars and pay to file and certainly it's important to potential defendants can raise this as a defen e i believe and have argued that the plain language of the statute itself is sufficient the court the not look to legislative history but if the court is to look to the context  that's statute is triggered anytime a prisoner files a case against a mental institution or an employee of the governmental entity and i think that really does show that congress was concerned about all like to point that were simply arguing that dismissal with prejudice and without leave to amend at that point was unjustified because the standard in this court is that it must be absolutely clear that amendment would be futile it's a low standard  we're not asking this court for much and so in pointing the court to mr blot of his repeated attempts to try and get these search warrants which he believes simply do not exist and as th  court must assume don't exist for the purposes of this appeal it shows that equitable tolling might be an issue in this case well but when you're searched you know you know you're searched so you know it's like you're if we don't use that a bright line for that's when people are put on notice then it just opens a whole pandora's box i mean it's not a situ it's not if it were a situation that he didn't know he'd been searched that would be a different situation he just doesn't know what theories he would maintain on that so i think the rule that you're proposing is one that could make this go on forever well just callahan it respectfully i don't think that we're asking you to create a unclear standard on that specific issue in finding that dismissal of this specific case was unjustified that he it's unclear from the record whether he knew that there was a search warrant or whether he could have known that perhaps a but it's when are you on notice of that you know the illegality of your search i mean otherwise it would open the doors as to any other well i didn't know that they actually searched the bathroom and you know so i just found that out so now i can file it as well as you as your honour's well aware there are exceptions to the warrant requirement as well and so even if he was on notice that it was a warrantless search he didn't necessarily know that that the that it wasn't a legal search well then your claim that that that makes it worse because then you're claiming that if he didn't know that it was warrantless but now you're saying well even if you know it was warrantless he didn't know it was illegal well i think that this is a side issue your honor for the purposes of this specific  again all we're asking this court to rule is whether i could be tolling could have potentially been an issue in this case where there was absolutely clear that equitable tolling wasn't a potential issue in this and that and this issue should be decided by the district court in the first instance i think that and whether mr bowen this is successful on that or not is is beside the point for the purposes of this appeal i've explained to my time i'm happy to answer the question