good morning and may it please the court on behalf of james blakely mr blakeley summary judgment orders should not be counted as strikes because summary judgment is not a dismissal listed in section one nine hundred fifteen and that should be the end of the analysis that rule is quick and easy to apply and most important it is what the p l o mandates to hold otherwise would require court dealing with i have p applications in prisoner cases to look beyond a grant of summary judgment to see if they could try to ascertain the underlying directly with this that if the court for example entered at some rate i said i'm just a judgment of dismissal is one that's final minutes nature and is appealable under rule fifty four and you can have one you can have a judgment you can also have a summary judgment i think the question that you want to jump past is becomes apparent at any point in the proceedings so if i just record is faced with a summary judgment motion realizes that that point that the prisoners case is frivolous they answer under the p l o raised to dismiss under nine hundred fifteen to be one and then the summary judgment and it looks at the case and says this is one of the most brutal it's cases i've ever seen there's just nothing to it and i'm dismissing this case as frivolous that's the order and i'm now saying that case does not qualify and i'm not sure concludes it's malicious or concludes that it's failed to state a claim then that could qualify if that were shown it could potentially cause i think it would i'm not sure i understand your argument could the court say i'm granting summary judgment because this is that qualify i think that's a tough question as to whether that qualifies because the grant summary judgment if the grant that the rule fifty six a standard has been that which is no genuine should material fact in the movie is entitled to judgment as a matter of law so that is that actual i think it likely would be again i think that the better course for the district under those when we have to go back and look at what the district court before it for example in this case these cases all of them that were relied on how opinion the district court records and the court magistrate judge or the district court large on those when granting summary judgment it added on to be sure in some of these cases it qualifies under the statute but in response to your answers you didn't seem to you seem to say that that would be all right they haven't understood that is your position you know your honor i am sorry for not being clear but i think you're right our position is that you shouldn't look beyond the grant to summary judgment itself because it is a but let me just say she this question i think you've answered for maybe she can have a conversation with you but if the order says summary judgment or says it's based on frivolousness then you would say that counts as a strike you exactly what tolbert was saying in response to an identical argument raised by the government that the p r a was not designed to introduce complexity right it was designed to create clear rules for courts to follow and courts have parent authority in managing their caseload and residual authority under a one to respond to revel isness without having to go through every prior opinion to see if the magic words frivolous are used that's correct i mean under the theory and i think those in response it seems to me that when we read back the record which we're not going to do here we great only have a limited amount of time but if you read back the record i'm not sure your response to church shed squares with your response just now so maybe you can to try to marry the two for sure i mean i guess what our position would be is that if some rejection is granted that should be the end of it it's not in  into all of the us because as judge jackson's question pointed out under nineteen fifteen a one there's a discretionary authority that resides in court to either grant or to denounce i have peace status now the record the record of litigation abuse here is simply horrible i mean i  and when congress passed the p l r a and added subsection g it didn't touch a one it didn't touch it and after mcdonald and after the amendment the d c circuit says in the butler case the residual authority rumanians and it is that  in butler it says in concluding whether a prisoner should be allowed to proceed i have p we will examine the number of content frequency of his for his his litigation history and the supreme court am the c circuit have indicated we have a duty to deny i have peace status when you have someone that has abused the system in the way mr blakeley has so quite apart from from in which those express were a see it on the record and nonetheless you maintain that's not sufficient to him because we're only talking about status for inform and congress spoke wasn't me speaking i might have said personally i don't like any of congress spoke on this and they had an intent here and i cannot believe they relied on the procedural posture of a case you look at the supreme court's decisions in this area since the p r larry with pass they actually don't rely on general discretionary authority under a one they rely on a very specific supreme court ruled dealing with frivolous filings and i'll speak i think both to the general authority and to mr blakeley history first as to the general authority the court obviously has inherent authority to manage its docket i don't think it's not just kerry to reach out and exercise that kind of extraordinary authority in these prisoner cases because since spoken very comprehensively to how i have he thought it should work in these cases there's poor provisions that work together here the first is nine hundred fifteen b which is the baseline provision saying that even if i have the status was granted peace status it has argued and the d c circuit has hailed court to have a discretionary authority to do not have peace status to prisoners who have abuse the privilege even when three strikes are not present so why would we require the district court in a case where there are these multiple there is this pattern of one appears to be abusive filing to parse those filings to see if the magic words frivolousness were used when the district court has the discretionary authority to deny a grant to see i think that exercising the discretionary authority actually also requires that kind of laborious  frequency and the disposition of the filings so that requires an intensive look at the person's entire litigation history to see not just the number but also what the claims were about how far they got it cetera  it doesn't require parsing the procedural posture but it does require parsing out the dispositions parsing out the content which could require looking beyond orders back to complaints etc and in butler for example the d c circuit  there was a pattern of abuse of filing because he had filed twenty five something actions over the course of eight years that were all wrong don't you i do think that you said so you want to create a circuit conflict with butler because you just said in your brain you're briefing if how can i help him but would be incorrect or the supreme court statement be incorrect when in passing for nineteen fifteen g b the court left that discretionary court's nine hundred eighty nine decision in mcdonald and it was aware sundra but it was aware of mcdonnell which addressed that language and congress being aware of the supreme court decision left the language in ten to two eleven as an exemplar the actual order just says summary judgment is granted and the next line it says it is ordered that this case qualify as a straight if you look back to the analysis section of the decision then you see the language that and judge chance hypothetical if the court reaches the case in the summary judgment context and says i'm dismissing this case because it's frivolous it's not a strike that is a straight that's  strike if it's summary judgment i'm not trying not trying to make a distinction about dismissal as i'm trying to make a distinction about the some substantive standard summary judgment is the rule fifty six standard that's different than a frivolous malicious or fails to state a claim but you don't even need to reach that to brief that argument i thought that we told you that you were confined to the p l r a three strikes provision to one eighty eight is that correct that's correct your honor and then  record you only to reach the restrikes it was then brought up by the other side in the briefs and i do think that if this court is inclined to really address the butler issue it hasn't been properly teed up the panel didn't decide it and apple leaves haven't presented the court with control of a court there are two answers to that question number one is that even under the d c circuit test the number of filings is not the only consideration it's the disposition frequency and content and if you contrast mr blakeley its history with mr butler's history there are quite different mr butler had filed about twenty five cases in eight years that were all about the same thing they were all of a request seeking essentially the same relief they just and he was also voluntarily dismissing cases in essentially in an effort to evade strikes mr blakeley here of police have pointed to approximately forty cases over about a seventeen year time and many of them went to summary judgment some were moved from state court they were about various topics so it's very different prudential one that congress has spoken to very specific types of cases that it thinks should prevent a prisoner from going forward with i have peace status as prisoners right right and does not speak at all i'm not pressing that exact argument here but i am pressing that you shouldn't recognize it as more of a prudential matter because there's just no need to do it in this context and the congress has spoken very specifically as to the types of dismissals that should be counted as strakes and i don't think there's a need to go beyond that because if the p r a works as it's meant to work in district it may not have but it also put in place quite mechanisms that courts are required to use if they think that the prisoner is bringing frivolous malicious suits or suits that are without merit and those are the mandatory dismissal provisions that night hundred fifteen  a if those are used in prison or cases those prisoners who fall within those categories will get to three strikes pretty quickly but we don't have orders like that here we don't have the i forgot what they called it in the c circuit i know the the pacer evidence of any strikes beyond the strikes that are in the record in this case but in response judge wilkinson's question i'm not sure that the two are mutually exclusive when you could have a holding from this court that you can't disqualify him for i have p under the statute but we use our own discretion and we'll i mean that's entirely possible now we asked you don't we brief break the ip status that's correct and i don't think that you could reach out to exercise discretionary authority without giving mr blakeley notice of which cases the court would be considering for those purposes in other cases where th court has been post filing restrictions that given the let it get noticed an opportunity to be heard and i don't think this is the appropriate he has to address it because as your honor points out it hasn't been fully briefed there isn't a full record the panel didn't decide it and so for much the same picked it's the order that they decided it in but i think more importantly even if you detect i think it's correct every circuit that we've been able to find its address summary judgment has held that it's not a strike and hasn't looked beyond that and i think and even if it wasn't we're think the conversation we're having about which types the summary judgment orders might be strike first is not just show that doing that kind of analysis is contrary to way tolbert and the third circuit recently recognised in birds the core purpose of the p r a which is think it's more of a slippery slope so once you say you can look to some language beyond the order than if you have litigation about what language you can look to what different things mean we don't and i don't think that would you have to look to would you have to horse in some  only now i don't think ok so in other words if there's a rule twelve dismissal when you have to parse to see what the basis for the dismissal was under rule twelve i don't think so your honor because i think the b c is for is that does that on its face automatically count yes or no it does not count how could it count i don't think so your honor because the i think the point of the p r is clear from everything in the record everything that it was a twelve let's move on my question is what route twelve under your argument require parsing sometimes as well you know it we would say you shouldn't parse we would see it think you should just say through twelve it's not clear from the order you move on and that's because in this context when courts are dealing with i have p applications they should be able to tally mediately from looking at the order whether it's a straight or not if you can't tell that you shouldn't look further than thank you thank you for your it thank thank you so much and you've got some rebuttal time as well thank you your honor may please the court your honor you've just heard the appellate argument that there is a bright line rule that summary judgment does not constitute a strike into the p r a it is our position that under a plain reading of nine hundred fifteen g and and looking at the congressional intent and looking at the prior case law in the circuit i thought you'd be doing a plain reading it would look at congressional intent for the prior case on the circuit right if you look at all of it judge but i thought you just started out with which is what supreme court always tells us to do plain reading of the statute yes you are plain reading the statute it's not the procedural posture of dismissal that determines what constitutes a strike quarrel with whether dismissal is a word of art but you would acknowledge that dismissal for failure to state a claim upon which relief can be granted is a word of our winship i would if if the words frivolous and malicious warnin than i'm just complexity about why why you have to hang your hat on g when it appears to me if we agree with your with your current the you that we create a circuit split your honor we have nine hundred fifteen large a we have nine hundred fifteen e we have nine hundred fifteen g on aca by congress all congress knew that all of these different rules existed when they enacted them  each one is meant theoretically i guess to to solve a different problem or address a different circumstance in the litigation process nine hundred fifteen g is the third hurdle  they exhaust based they said they've got the exhaustion hurdle they've got the the court's discretionary hurdle for dismissal for failure to state a climb and then they did the strike hurdle this is the strike or this is the one where all right you get by those other two and you file multiple frivolous lawsuits let you can't follow up on what judge keenan and judge duncan to saying because i don't wish to associate myself with their views i think if they're heading in exactly the right direction it seems to me that in getting to this business about whether a summary judgment order count so whether a summary judgment order doesn't count under g one that we are entering a real briar patch and some or a circuit splits on that on that point but why do we need to even of decide whether the p l o are a of clive's why can't we assume argue window that it is not disqualified and then move directly to the permissive language in a while which resolve the summary judgment point for you because a court maybe the summary judgment order counts as a strike and maybe it doesn't but if you go to a one a court can certainly take into account the language of the summary judgment orders in exercising its own discretion and the fact that the summary judgment orders were so negative to the petitioners position and said these are frivolous and these are these count as a strike and everything will whether it all really counts is a strike or not it's certainly can weigh in the court's discretion what the district court thought of those actions and limited to the exercise of our own a one discretionary  of us is an expensive history of litigation here and while we may quarrel over the particulars of it it seems to me this is the perfect example of what congress was getting at through this whole through this whole series of statutes and why doesn't the court just cut the gordian knot and have the authority to say no this person is undeserving of i have peace status and we can look at the summary judgment order as one factor which way in our dissuades now discretionary denial i would i would not argue against that but i would say argue my only point there would be i think if you look at the p l r a that is one the i'm looking for the term one of the mechanisms congress has given the court i think nine hundred fifteen g which we hear about is a setting that can hear our rate is tricky ok you've got some very good judges  different views of different questions coming at it from a little bit different perspective than they you know and they each have a good perspective to bring on but don't you sidestep all those thorny problems if you go back to a warning we've got support from the supreme court in sundram for what we're doing we've got support from the supreme court in mcdonald's the court would be doing we have support from the d c circuit in butler what we'd be doing would be not creating a circuit split this way whereas if we go deep into the p l r a we're going to be creating circuit splits but it doesn't the fight doesn't have to be fo if given the court's residual authority and given the fact that both judge keenan and judge duncan have emphasized that these two statutory provisions operate as in very different ways but the supplier issue is but in fact the district court you enclose the boilerplate language taken directly from the statute didn't she doesn't find that this action and each claim as an inmate and he asserted that he walked with a cane and there are these claims that he can't take shower he can't get to his little material what is the difference in your judgment between a claim that lacks merit the times we have helped that a person wasn't disabled if we caught just because they're not disabled frivolous than there but a lot of frivolous claims that we've we've killed a lot of trees to explain why know the difference and the different amount of work it takes to identify a frivolous claim compared to a claim that is without merit don't you agree with that i absolutely agree with my argument is not that all summary judgement dismissals are frivolous malicious so fail to state a claim unless a strike that's not my argument argument is that when the district court finds that then they court judge who's examining all the record in looking at the affidavits in that case the medical records finds that mr blakeley was was frivolous and malicious because he didn't have an ego finding a re your view that it's the reason for the disposition and not the procedural posture what if the district court says i find this case to be completely completely lacking in fair to take that language as a whole over to the district courts recitation of that language head of purpose to put it in there for a reason and the reason was that her impression of this was that the suit didn't amount to anything and that it was beyond being simply meritless it was either frivolous malicious or fail a spade a claim and you're right it's a term of art we're tradition because it can use under the statute as sunday i don't think much of this  all and she went and took that step but the whole point is we don't have to decide that particular issue about whether that language is a strike or not if you were look to the courts discretionary authority and we can say we do take that language to be a negative comment up upon the type of suit being brought by this particular move to exercise his or her discretion issue at the judgment that the premise to that question is that the language that we're looking at phyllis malicious afraid to say the claim that the premise of the question is it doesn't matter because the judge is going to dismiss it anyway but does that question require that premise that the judge wants to get to the same result that as you would read the statute yes what happens if the judge says this i can read the section we're discussing and under that say action i would if it had been decided and i would have to do it that's the only reason i'm going to do it on my own discretion i will not count it as a strike doesn't the statutory language matter then it does your arm and if it gets back to mr blakeley in his pro se motion for reconsideration before this court appointed counsel actually stated in there that after he had these multiple strikes we're arguing about today he quit filing for seven or eight years and then when he was appointed counsel we started briefing this he is refiled eight new lawsuits in federal court in the last year and a half this is why the strikes exist and that's my argument i don't wan that no nine hundred eighty shouldn't be applied discretionary i'm fine i grew with that but that strikes prohibit and prevent well the strike so that's the mandatory provision something i can't there's no there's no safety valve for that provision in no event shall a prisoner bring this civil action in that in that circumstance it made i quibble a little with your characterization of that as a hurdle that's a full stop that there's the judge retains discretion even under that issue or not allow that to impose and at some point once again judge i think the idea is to inmates who can just as many lawsuits as they want they have to at once again i go back to not every summary judgment is a is a and by the way right that prisoners pay for strikes right if but if but if a district judge dismissed as a claim  hundred fifteen g applies to summary judgment ok i think the panel stated it perfectly the first time to look at black's law dictionary dismissal as the terminations of a case sometime prior to a judgement here to state a claim upon which we leave can be granted does is not a word a term of art in your view it doesn't trigger it's right in to twenty six i think it is a term of art but does not trigger us right into people who are looking at the plain language it there we should not rewrite statutes that's what they call judicial activism they talk about judicial activism judicial activism and the rest example anybody come up with that is rewriting a statute just adding language to a statu question really pointed the way on the us which is that a case can be found to be frivolous on summary judgment or can be found to be malicious on summary judgment that may not be apparent record and i can guarantee you no one would find it abusive i'm not dissing i was i've said three times that i do not disagree with you on that well we would have to find that there is a record here upon which to say that this is and balanced right they're the only records we have to look at or the nine issue point out it was somewhere many years ago one is frequent this is recent and so we'd have to say on the basis of that that we're going to exercise o discretionary jurisdiction for a discretionary choice here is national honor is rather in the reason we we didn't broaden beyond the nine and i actually want to call it eight i think we've already conceded one point one of these nine the district court did not use the terms of our frivolous malicious of a state a claim and so there's eight and we look at the eight and we said these eight are representative of the multitudes mr blakeley has done and if we don't win on these eight we're not it's not worth going back through the other the some of the other statements that are made about the prolific litigation history viper spirit he doesn't point to a single case that has come close to success and the litigation history here which he had every opportunity to dispute isn't that now we could ask to put you know supplemental briefing and create a record everything but it's some point you say did congress really just setting a record everything it's exactly the opposite direction from everything congress intended nineteen fifty you may want to know or gee and the whole collection of statues  exercise is it crossed purposes with congressional intent as it stands now yes but but it did preclude him for seven or eight years from filing lawsuits in federal court where he went on filing in state court with it doesn't have a quick law but i understand and judge don't you think in any way i want to preclude argue that you're not allowed to use discretion to find frivolous i think the importance of the strike rule is it stops them at the front end of the case from filing before the marshals have to serve the lawsuit before the defendants have to hire counsel that's the that's the benefit of having the strikes disperse of the court discretion but it seems to me the statute itself on  face taking the language of the statute allows the court to dismiss the case for frivolousness at any stage if you're wrong and if it is during the course of a summary judgment it concludes this is the worst case i've ever seen  thank you your honor i'd like to me two points about summary judgment and one about the butler discretionary authority first just to summary judgment our position would be if you have an order that says summary judgment is granted that's not a strike if you have a case that's dismissed because it's frivolous because language of dancing but there when we were debating this but when you were first up you conceded that in some circumstances if the summary judgment presented the situation where the court concluded a case of just out and out frivolous you conceded that would be a strike but that the problem was to scrutinize the waters and scrutinize cases and the purpose was to get more at the outset the question i have is some prisoner complains about the medical condition and the judge says well follow your affidavits and let me see what we've got and they take the case on summary judgment and they first hear t the argument came across our position is you can go through that process as a district court and effect that speech you determine it's frivolous you can decide it and you should dismiss it as frivolous under nine hundred fifty which requires you to dismiss on that basis at any time  we're not saying you can't go through that process excuse me what if i just in my order i have before me a summary judgment motion armors district judge and i'm looking at the case for the first time but i'm considering these affidavits and in my order i'm not using the even though the court dismissed replies i think congress reached that in that it gave the district courts the mandatory obligation to dismiss that case that's frivolous leaving summary judgment aside even if the case gets to the summary judgment stage and i think that's what the third circuit was getting out of its recent bird decision when it said we're adopting a bright line rule here if the case is dismissed because it's frivolous malicious fails to state a claim or dismiss using a statutory or rule provision that equates to one of those things it's a strike and that cuts down on the need to look through these things and try to figure out what was actually going on with your group with davis that it's not enough simply to recite the magic words that there has to be some explanation in the record yes i would agree with that and we don't have that here what we have here is simply an order that says summary judgment is granted if you look back into the decision and we then have a statement that this case qualified it's as if just an assault for frivolous malicious or failure to state a claim has the  one of these cases the district court where the magistrate judge blessed by the district court actually relied on the state's evidence right and that in this case there were what twenty seven exhibits that the state put in its right and that sounds younger to summary judgment it's all about access to courts and justice and with the fiftieth anniversary of giving him his landmark access to counsel my question is about your bright line position in terms of  already have to be residual otherwise there would be no reason for the three strikes provision so i think to the extent it exists you would want to exercise that only in extraordinary circumstances so i don't think it's a matter of creating a service but discretionary authority under a and congress put in place a very specific scheme of types of dismissals that that should count as strikes and i think that specific scheme should take some primacy here but i would also say i think it's not we don't have a record before this court and counsel has just said it most they're relying on eight cases the burden is on defendants to make this record it hasn't happened here and i think that mr blakeley should be entitled to notice if the court were to go down that road because it is a serious filing this is that are not supposed to be full blown separate litigation i don't know how many of these cases have gone in but this may be the first one ever there's certainly even if not in banca obviously a lot of