fifteen g for three reasons st the statute uses a familiar legal phrase with a well established meaning in the context relevant here when courts review judicial orders to determine their impact on a future action evaluating preclusion for example they conclusively presume that the phrase dismissed for failure to state a claim means dismissed with prejudice in one thousand and fifteen gy congress use the same phrase in the same basic context there's every reason to think congress expected courts to apply the phrase is settled meaning rather than to convert ordinary without prejudice dismissals into sanctions that restrict future suits nd the structure of the further supports that interpretation read together the three dismissal categories identified and fifteen g target actions that are facially meritless or otherwise abusive without prejudice dismissals for failure state a claim are different they may be based on purely procedural defects such as the failure to exhaust administrative remedies and it would be odd to impose a strike for such suits since congress excluded from nine hundred and fifteen dollars g s reach other categories of dismissals that don't implicate the merits or otherwise suggest abuse such as dismissals based on sovereign immunity rd in related the other side's interpretation upsets the p l o raise balance by punishing prisoners for dismissals that by definition say nothing about the ultimate merits of their action this interpretation frustrates the acts objective to filter out bad claims while still allowing for consideration of the good since it restricts a prisoner's ability to bring a potentially would have a claim even after the prisoner has cured a procedural defect like to start with the text of the statute the other side suite argument is that the term dismissed is sufficiently capacious to encompass both dismissals with prejudice or dismissals without prejudice is it is a dictionary matter and we don't disagree with that proposition but we don't think that argument takes having a consequence in the latter circumstance even if there wouldn't be a preclusion consequence but the point of our argument is that in the particular context where it is this phrase is being used in one thousand nine hundred and fifteen she where you are looking to the consequence of dismissal has on the ability to bring a future action that the phrase dismissed for failure state a claim has an established meaning and courts would understand congress to have meant to signal that the dismissal would be with prejudice that that is all that's being covered and we think if you look at the structure of the statute that further supports that interpretation as i said at the opening these dismissals that are being targeted and the other side appears to agree in its briefing or actions that are on their face merit less or otherwise abusive when you're dealing with  dismissal without prejudice or failure say to claim it does not fit into that box because it can be for things that are purely procedural the facts suggest nothing about the merits of the action and it's conspicuous the congress excluded other types of  and fifteen dollars g that share that feature we mentioned sovereign immunity if the other side argues that you know well even in action that the system without prejudice could be considered meritless in the relevant sense because it is consuming the court resources and not getting relief but it's clear that that's not what congress had in mind because it's so there's no explanation for why it excluded things like dismissals based on sovereign immunity for his direct mr british could you go back to your basic argument from the language and you're of course right that there is a default rule that is used when somebody just says dismissal for a twelve b six motion we assume that that's with prejudice as a kind of default rule but why should we think that congress and act in this language incorporated that the four rule which is used for a different purpose or or at least relied on its use i mean this is a different context why would congress have incorporated the default role into its legislative provision it is a different context we think it's at analogous context in that in both making fifteen g and in the preclusion context you're looking to determine what the effect of a prior dismissal is on a future action and we think that the implication of the other side's approach makes it a very unusual type of without prejudice dismissal to an ordinary would again certainly to approach a prisoner who is confronted with a dismissal that says this is without prejudice the ordinary understanding would be that that is not going to limit your ability to bring a future action nonetheless on the other side's interpretation of one hundred and fifteen dollars g has exactly that consequence because it is imposing a strike that might be a restriction on the ability to bring a future suit so  at's right i think for practical purposes whether an indigent prisoner is going to have to pay the filing fee and overlapping very closely with whether that person is going to be able to bring an action and that's not just conjecture congress recognized that in one thousand nine hundred and fifteen b which is one of the things that the p l o rate did was that it required prisoners to pay even when they qualify to proceed ip to pay under installments but congress made clear that under that provision the inability to pay should never be a part of suits there's certainly a recognition that whether someone can proceed ip is often going to be the ballgame or whether they can bring a future suit i understand your point that there's a different level of blameworthiness if you would between frivolous malicious and failure to state a claim on the other hand nine hundred and fifteen dollars was designed to ease the burden and expense on courts you you have i think the the marshal doing the service the time of the court looking at the claim before it can decide that it ought to dismiss and all that is attendant on the failure to state a claim even without prejudice as well as the others even if the underlying claim may be if you properly plead so since the one of the driving factors was to ease the burden both in volume and in court time why shouldn't we  at least consider that rather than entirely the blameworthiness of the of the filers at do you think it's a relevant consideration but i think it supports our view of the statute and the other side's argument as to why it's not such a harsh consequence to have a dismissal that's based on procedural grounds without prejudice or dismissals for her insufficient pleading for example is that there could be repeated repeated opportunities to him and and that that is how the system takes account of it we think it's equally consistent and perhaps more preferable under the statute for courts to have the option to say what this stuff as pleaded this does not state a claim rather than continuing to congest the court's stockett's i'm going to dismiss this action but make it without prejudice and to the extent that without prejudice dismissal is going to have a consequence my point is that talking of the dockets the expense of that has already occurred before the court can say i'm going to dismiss this this action so to that extent the impact on the system is the same for the other grounds  for denial i think that's right of course that's also true if an action is dismissed based on unity it's having the same effect that it's clear that that is not something that counts as a strike and of statute so it doesn't seem as though congress had in mind just something that  needs to be dismissed is going to result in a consequence aust district courts also have a great deal of power to determine whether something is going to have that consequence and result in a strike of course they will have the option in the vast majority of cases if they think there is different really is no opportunity to amend and succeed in the dismissals should be with prejudice and they would be a strike under under either of you in the category of cases such as actions dismissed based on a heck bar where just analytically it is the kind of thing that is dismissed two and a little tied questions to call this as a head for comparable to immunity is one thing because there you might have an argument that not counting as a strike a lack of jurisdiction failure to exhaust sovereign immunity even potentially a heck bar those are all jurisdictional questions and in my mind that's a different question than whether a mere dismissal for failure to state a claim without prejudice that's more did you do something where you didn't state a particular claim with enough particularities whether it's immunity hack or or failure to exhaust if you're making a legitimate claim there's another independent ground for not having you come to the court the failure to state a claim without prejudice however this is a different statement in a different issue i thought this case was just about the latter the question presented addresses only whether  dismissal without prejudice should be counted as a strike in my incorrect about that assumption and you're certainly correct about the question presented but it encompasses both types of dismissals that i think there are two basic categories that would be incompetent for something that is being dismissed for failure state a claim without prejudice one is that there is just a pleading deficiency and that the court thinks it's potentially curable and in some instances you would have an amendment maybe in other instances the court might just go back to dismiss the claim without prejudice but there's a separate category that is implicated by the facts of this case where there are certain claims that are treated as being dismissed for failure to state a claim that are necessarily without prejudice because there is some procedural reason that prevents the court from reaching an end and to deal with the exhaustion example this court in the jones the bach case interpreted the p r a indicated that in some instances exhaustion would be dealt with under tr there are two sets of splits out there one of the question presented whether a dismissal without prejudice or with prejudice should be treated as a strike and there's a circuit split among the circuits as to whether dismissal is subject to a strike will be granted on the st that's that's right i mean there are quite a few circuit  consistently treats hec dismissals that is how am i understanding it's the vast majority of circuits treat ect dismissals as being something for failure to state a claim so we think this court should be resolving that that question about whether dismissal for failure to a claim without prejudice and it doesn't it doesn't need to reach the question of whether that's the proper way to characterize hack we think it probably is a heck itself refers to it in terms of whether there's a could nice will claim it's and it's an unusual circumstance because given the bar the such a home case limitations doesn't begin to accrue for the claim until later so it is something that is procedural in nature but nonetheless it's often dealt with on a tour of all the six standard she's been on your upset the balance argument of appeal how should we think about rule fifteen leave to a man which is granted once as a matter of course sponsors to the response of pleading and then district judges so often and have the answer i gave to the chief justice earlier that to the extent their argument is don't worry about missiles without prejudice because often the judges are going to have multiple opportunities to work with the white again and he he will have a full opportunity to make sure he can state his claim it's not obvious that that is a better system or more consistent with the p r a to avoid court congestion the other answer is that it's not actually clear the extent to which will fifteen operates in the context most courts of appeals h that it does but there is one outlier to suppose that it does that alter then it does seem to mitigate some of the unfairness that you talk about that could occur from just routine correction of something in the complaint will usually happen or could happen under rule fifteen and often does happen it would mitigate the unfairness with respect to just pure pleading deficiencies of course colorado points to local practices in colorado about how prisoner complaints are treated there's no evidence that that is systematically applied across the country and that other district judges are magistrate judges are handling it in that way but even that approach would not deal with the problem of failure to exhaust being strike because that's not just an issue of allowing a replete in that's an issue where there is a procedural defect that is prevents the court from reaching the merits and something external in the world needs to happen what's your understanding  of how different district courts treat rule fifteen as compared to dismissals without prejudice is that your understanding in other words that judge in courtroom one will routinely do a dismissal without prejudice judge and courtroom two will to grant leave to him and over and over again and not dismiss without prejudice and that and if that's so how should we think about that my general sense is that particularly dealing with prisoner cases there is not a consistent practice across the board and across the country and i think that that is a reason to not treat it without prejudice dismissal as being something that can result in a strike because it could be an instance in which it is a curable defect and in any event as as i said it's not obvious that it is a better system as far as the people raise concern to forced courts into the situation where they need to hold the litigants hand to have multiple repeat opportunities to abandon keep the case on the docket before there could be a final dismissal i do i did wonder what is the standard that a district court applies in deciding whether to dismiss with or without prejudice and is that enforced on appeal the general stand so i again i think there are two categories if there's an instance in which because there is a procedural defect that prevents the court from reaching the merits could be a jurisdictional issue that necessarily has to be without prejudice in an instance in which the question is whether it's just a pleading issue that could potentially be cured with its new facts i think generally the court's way courts deal with that is if there is any ability to you know if amendment wouldn't be futile if there is not a there's a reason to think you could potentially provide more facts that that should not be with prejudice should have been allowed or at least dismissal should've been without prejudice i'm just wondering about the incentives that the rule that you're advocating will provide for district courts in deciding whether to dismiss with prejudice or without prejudice if they have to take into account if i dismissed without prejudice this is going to enable this frequent litigator to continue to file will you have any concern that that's going to give them an incentive to label these dismissals with prejudice that it no i don't think so because i think that would be reversible error if they are dismissing something with prejudice without an opportunity to him and that there is a basis that in which the complaint could be reformed to adequately state a claim so i don't i don't i'm not concerned about that consequence i do think that the fact that district courts are the ones handling these cases and have incentives to make sure that the dockets are being appropriately managed is an important one but it supports our view that you know to the extent there is a concern about repeat hec claims for example being asserted repeatedly the district courts have every he's missed it why he did the same thing again nothing has changed so it's frivolous you go that that would have been in two years i think i think the court would have been within those discretion to do that and i think going forward if there is a clear rule that without prejudice dismissals the failures to state a claim do not result in a strike in the category of cases like heck that it is analytically something that is going to be without prejudice courts can deal with that in the appropriate way by recognizing that in some circumstances it might be frivolous or malicious but not every hectare claim will be frivolous and those that are not that there's a real good faith argument about whether that bar applies should not result in a strike because it there's nothing different i think in that they were slightly different claims one focused on sentencing of the other i think also did raise sensing issue but was focused on the prosecution and  other issues involving the conviction there's no question that there was considerable overlap there's also i think very little question that a court could have determined that we see the nd one in frivolous or malicious but the court did not do that and as a reason for imposing a strike on the west on the other side's view any time bed and exhaustion issue could be dealt with on a motion to dismiss basis it is going to result in a strike which we think is anomalous because it means in the circumstance in which the would again exhibit candor or candor and save the judicial resources because the the exhaustion problem was apparent from the face of the complaint that is going to result in a strike but in the vast majority of and the other instances exhaustion is not treated as a strike precisely because it is the type of procedural defect that does not implicate the merits of the claim does not suggest any of use of the courts and we think it is an anomalous result of the other side's interpretation that that sort of dis going to result in a sanction why why do you assume that a procedural defect doesn't tax the resources of the of the court it's not just the word is the law or judicial system and the sort as i said the service of process and all these other things why is that i mean it's i guess the issue that you in justice ginsburg about if if it's been identified that you're going to have a problem and then you go ahead you file the same thing that's still a procedural defect but  it is a i don't know if you want to say abusive but it is the filing of a case that does not have the prospect of success at that time as filed and it's from the point of view of the burdens on the on the system i don't see why it shouldn't be regarded as a strike under nine hundred and fifteen dollars i think it would be possible to have that view i don't disagree with the proposition that  the court's resources despite being a procedural defect but when you look at the structure of the statute it does not seem like that is what congress could have had in mind in one thousand and fifteen cheap because again dismissals based on jurisdictional problems including sovereign immunity are going to have the exact same feature except that they will almost certainly not be curable in a way that failure to exhaust or a heck bar might well be that congress did not impose a strike for those actions so it does not appear that congress thought the thing that is sanction worthy that is going to potentially restrict prisoners future access for the court is just filing an action that consumes judicial resources and cannot succeed as filed instead one hundred and fifteen dollars g is targeting something more specific it's targeting actions that are meritless on their face or are frivolous or malicious which are significant standards that where you cannot it may seem odd but you can you have frivolous cases that are dismissed as without prejudice right i mean it's if you've got the you're suing the wrong person you thought tom smith was the guard that you did this and it was for a jones instead it could be characterized as frivolous because there's no possibility of success because the guy you're naming was you know off that day and yes you can let you know you would probably want it to be without prejudice because the suits you know completely compelling so as to get the right guy  i agree with that so the dichotomy that who've there's three of them what it's called it's kind of me between frivolous and failure to state you can't claim that you're trying to draw is not as airtight as you suggest i don't think that's right because a dismissal based on lack of jurisdiction for example courts of recognize that that could be dismissed as frivolous because you could be making an argument that is just so has no basis in the law that it deserves that sanction of being something that is an abuse of the court's over and above filing an action that can't succeed because it's been filed in the wrong place so the frivolous and malicious provide courts with an opportunity to recognize even though this procedural defect goes above and beyond exhaustion thank you counsel olson mr chief justice and make it please the court the text structure and history of the prison litigation reform act all support giving was dismissed its ordinary meaning in the three strikes provision the text is straightforward if a case was dismissed for failure to state a claim it meets the statutory definition regardless of whether that dismissal was with or without prejudice because in either circumstance that case was dismissed which is what the statute books second the structure of the act backed this ordinary meaning the prison litigation reform act uses the phrase different meaning in the rest of the act that violates basic rules of statutory interpretation in addition the three strikes use of the categories frivolous and malicious alongside the category fails to here what results is an easily administered the rule to see what happened rather than look and analyze the consequences finally the history of the acts reports this reading this court in the new opinion in  and nine held that although it might be an appealing proposition having sue us bondy dismissals for failure to state a claim was inconsistent with the informal proper statute in effect at that time and the district judge instead of granting leave to amend dismissals without prejudice prisoner corrects the error fixes the defect files a suit and prevails not only is it sufficient to state a claim prevails in the case you would still say that that prisoner has a strike even though they won the case well if it was we look at the text which says an action was dismissed and if the st action was dismissed even though they won a subsequent case on the same set of operative facts it would be a different action so that st strike would count of course does not strike you as a winning case and you get a strike under the peelers well no it doesn't because congress looking for it in ministry will rule and you look at the action itself and its discussion earlier just going to illustrate rule fifteen requires leave to amend to be freely given where justice requires whether or not it's as of right and i think what we see in the district of colorado certainly is a conversation back and forth between the prisoner and the court before that dismissal occurs so there are i guess side raises another question which is i would have to earlier i don't know that that practice uniform in fact i'm pretty sure it's not uniform so a lot of district judges will grant leave to amend freely but a number of others for a lot of reasons clearing the docket and otherwise will dismiss without prejudice and yet those two things which are functionally identical for the prisoner will be treated differently in terms of the strikes under your view is that right yes in that circumstance that does that make sense to treat those two functionally a democrat things from the prisoner's perspective differently it does under the text of the statute which says which asks the court to look at what happened to the action and if there is a clear rule from this court justice kavanagh's question well well a clear rule on this will help courts adjust their behavior so regardless of whether the text of the statute is ambiguous or not but secondly i think given rule fifteen given the focus on amendment and fixing complaints rather than just dismissing them i think it will from this court and the ample tools that we have for courts to fix to find out if there is a way to state a claim before prisoners every prisoner gets three non meritorious on their face dismissals before the three strikes provision applies secondly under either rule there are going to be some prisoners who are not going to be able to excuse me that allow for the extreme cases to come through but congress was trying to do with chris motivation reform act was reduce the amount of prisoner litigation that was coming to the court and they balanced as the chief justice identified the burdens that that prison litigation was putting on the court with giving access to prisoners they get three strikes and again these strikes occur only when it's non rhetorical on their face if it goes to s they lose a trial if it's if it's dismissed for twelve b one round it doesn't count as a strike so only in this category of strikes do we see the dismissal count and yes in any bright line rule there will be some examples that we can think of that fall on the other side of the rule that if we were crafting policy ourself we might say should be included in the policy but what congress did was put forth an easily administered rule that says we look at what happened in the prior cases and were those prior cases dismissed for florida state a claim not looking at whether there was with prejudice or without prejudice and this makes sense when you also look at the structure of the act because the structure of the act begin to use is theory to state a claim several times and it says in the structure several times you district court have the authority and in some cases the obligation to screen cases and dismiss them if they saying the same thing we're dismissing with leave to appeal i think that's your adversary's argument and that's what you're not getting to which is why should we treat those the complaint with leave to reforest because that's what without prejudice means when we look at the text of the statute it focuses on the action being dismissed and when you look at what happens in the mind run of cases these actions are dismissed typically if it's dismissed without prejudice and a couple of cases of petitioner sites have this exact fact that over there is a dismissal without prejudice and thirty days or sixty days given to file an amended complaint no amended complaint is filed then the action for the complaint was dismissed and after that failure the action is dismissed but it is still dismissed without prejudice and i think mr olson your answer suggests that there's a real reason why courts would pick one thing rather than the other why they would dismiss the complaint with leave to amend on the one hand or dismiss the entire action without prejudice on the other and what people are suggesting to you is maybe there's not a reason maybe it just depends on the culture and practice of particular district courts maybe in some district courts the incentives actually cut the other way some of my clerks who have clerked on the d c district court suggested to me that the incentives all cut in favor of dismissing without prejudice rather than giving leave to amend because of the way they can out their docket so if that's correct if the courts are doing this randomly or of some are subject one set of incentives and other is subject to an opposite set of incentives but they're all trying to do the same thing which is to deal with a complaint that has not pled sufficient facts and telling the person go do it again why should we treat those two cases differently for purposes of counting strikes because the prison relational format did not remove that broad discretion that all district courts have that as you say manifest itself in some difference in practice throughout the country but what it did do was put forth in this text and in mr bill rule that was easy for one district court to determine what another district court did and that usually ministerial rule uses the language an action clean period it does not say without prejudice and i think you know there is a statutory argument and we can talk about the statutory argument i don't want to poop to that at all it's important to go by statutory language  i just want to if we think that the statute is ambiguous and allows for a result either way why is your rule the better rule given that it is it seems to treat two very similar cases from two courts where they're trying to do the same thing completely differently for purposes of the strike counting and it's a better rule because it's clarity and administer ability it allows for no uncertainty for to determine what happened and it honors the scope of the other dismissal so frivolous and malicious can be women without prejudice and there are many examples where there can be some cases where it seems unfair that that was once applied but it isn't easily administered bull the other rules easily admit of screwballs well go dismissal with prejudice if it's a dismissal without saying anything more or it says with prejudice then that's in reviews what they've done and says ok this rises to the level of being frivolous no it just has to be dismissed with prejudice the well sure that would be the other way to leave to amend or it's dismissed without prejudice and comes back no dismissed again this time with prejudice but the problem with that approach is that the with prejudice is justice ginsburg pointed out earlier the precludes effects are much much greater than whether or not you have to pay your filing fee and installments and wins prejudice means that you cannot bring a case on those that have operated facts again that's why district judges are going to be loath to do that right out of the box but that's why i think that that  would lead to more challenges in the district court and require district courts to spend much more time before they dismiss it here under this rule where we have been without prejudice count as strikes it just report can give prisoner some back and forth and say we haven't met the prisoner has not met the required threshold were dismissed without prejudice set meaning that prisoner can bring that claim again if they do it better and develop more facts but there correct yes i do want to turn a little bit to the structural argument here which is that the statute uses the same language several times and it would be very odd court just held in the cochise consultancy case all but the most unusual circumstances require us to give the same meaning to the same phrase in the same statute and we see that here in provide strong reasons for having the strikes with count from those that are both with and without prejudice and i guess i'd like to end by to saying that as we've alluded to in this conversation this statute has had real consequences for the number of frivolous lawsuits filed by prisoners it has reduced them substantially as brief pointed out and the filter at the prison edition reform act has been effective over the years in making sure that the frivolous claims are reduced now that your prisoner claims are still a substantial part of the docket of the federal courts around ten percent of all civil claims filed and our respectful position is that the court recognize the majority of the circuits who have held that failure to state a claim dismissals with and without i want to return just briefly to the plain text of the p r a for the simple reason that it is both the most important and we maintain it is alone in this case sufficient to resolve the case we have a situation where we have an inmate in prison for a felony sexual assault who brought three actions during the period of two thousand and thirteen in two thousand and fourteen each of which was dismissed for failure to state a claim which is one of the enumerated actions and in section one nine hundred and fifteen dollars g the text of the statute says that if we have a a prisoner who on three or more prior prior occasions while incarcerated brought an action or an appeal in the courts united states that was dismissed on the grounds that it is frivolous malicious or fails to state a claim upon which relief may be granted they are part they are subject to the three strikes rule so as in the coleman case we have a situation where it is literally what the words of the statute say and as in coleman we are confronted with a question of whether the language should have  or should be construed to be read with things that are not actually in the text well it's a little more ambiguous than that failure to state a claim can mean two different things it can mean failure is to claim with prejudice or f claim without prejudice and the consequence is that distinction obviously are very significant storm i'm not sure i understand your textual argument i'm not sure that that's the end of the case so so respectfully i might say i don't think it's that it can mean either it can mean both that the plain language encompasses both dismissals with prejudice and dismissals without prejudice and indeed in the petition reply brief they acknowledged as much that this language failure to state a claim upon which relief may be granted or dismissal on that basis in compass is both but generally when when an action is dismissed for failure to state a claim it's always a dismissal with prejudice unless the order says something otherwise so you might say what there are two categories and the categories are dismissals and dismissals without prejudice and if somebody sometimes says dismissals with prejudice they just adding unnecessary words because if it was a just a dismissal if a court justice misses it's going to be a dismissal with prejudice so the with prejudice part is  superfluous you might say and when congress just says to specials all it's choosing to do is not inject a superfluity into the statutory language well the word dismiss encompasses both we know in this case there were three dismissals of the actions on the on the grounds that were numerated the question of whether rule forty one dollars should be read in i would suggest  doesn't make sense for two reasons one is that the as a statutory interpretive tool we have point text i mean thing that it's not even big us but even one thought it was i think we would look to rule twelve which provides the same language to leaders state a claim on which relief can be granted and it is understood that that can include with or without prejudice i don't think there's any reason to go to the language rule forty one because it's language dealing with what counts is in the jury cation on the merits is not language in the statute so i don't see that it actually provides interpretive benefit and then secondly the congress writes its statute against a backdrop of the way people use language and here the way people use language is the dismissal on a twelve piece of explosion a simple dismissal is a dismissal with prejudice and you don't have to say with prejudice so congress responding and acting against that backdrop says all we need to do is say dismissal to have a dismissal with prejudice because there's really no such thing as a dismiss eed you never have to use those three words together in the way courts operate you don't have to but you are permitted to do it either way and they both count as twelve the six motions that are granted and i think that the backdrop if we're for frivolous grounds does not include the set of laws that are dismissed for failure state a claim so congress is partly responding to that and then in denton the court had said that a a dismissal for frivolous under the prior version of the language in the ip statute had said it could be with or without prejudiced so congress knew the background in using one of those enumerated grounds at least was with both it and impose filings that aren't meritorious impose costs on the system but at the same time the words are of a different character i mean if you if you file and if your case thrown out because it's frivolous or malicious that's one thing if it's thrown out because of a failure to state a claim when you report that to your colleagues back at the firm they're going to say well is it without prejudice or with and if you say it's without prejudice they're not going to think you're a bad lawyer i mean they're just going to think that you've got to refile after something else happens for precisely and so when congress isn't adding the language on philly or state a claim was expanding  the type of claims that judges would be positioned to dismiss under the appeal are a and was not saying they have to be those that are are vexatious in some manner they can be those that are simply deficient and that takes me to i think what is is an important point i do want to get to is if we look at the the dismissals in this case two of them are ect dismissals and there is a suggestion that these are without prejudice against five judges two prosecutors and the claims are that that he was deprived of proper bail proper speedy trial the sentence was no good and that he was denied likely to be able to hear that that is to say there is no indication that he has a he is petition that's been ruled on favorably or the like so it can be styled as a procedural issue but for all practical purposes it's likely to ever change but it's without prejudice and the consequence and i think this goes to a question just as kevin i asked as what why would it be a better rule that he asked of my colleague from colorado why would it be a better rule is because if we say that one's without prejudice are not going to be strikes that means in effect heck dismissals will not count as strikes and inmates may file an unlimited number in terms of not paying a filing fee an unlimited number of eye f p actions with without consequence and common sense will tell you that instead of the statutory purpose which is to have fewer but better claims we will wind up with an unlimited number of heck yeah well i suppose i suppose in that scenario at some point the filings would become delicious at some point there obviously precedent from this court in the macdonald and and subsequent cases where some of the excessive litigants have come to this court in the court has said enough and lower courts have done something similar but those are really aberrations those are not the norm and nor would we want the system to have to bear general that a system bears that anyway given that at least your co counsel or or counsel on the on your side litigants can do exactly that they can avoid the filing fee and they can avoid dismissal by continuously amending and some courts permit it at some point they get tired and they dismissed with prejudice  that would happen the same with inappropriate dismissals as justice ginsburg pointed out you dismiss one the court tells you had bars you and you refile it again with no of the federal courts were prisoner filings and it is now down to about ten percent but still a very large number approximately twenty nine thousand a year ago but it's from two thousand and twenty five percent to ten percent and in the majority of circuits i think it's six of eight that are ruled on this the rule is both with and without prejudice count thank you general four minutes thank you like to make a few quick points st mr olson more number of times in this presentation referred to one hundred and fifteen she referring to dealing with actions that were dismissed as non meritorious on their face they make the same point in their brief but it is very odd to refer to a dismissal without prejudice that may be based on purely a procedural defect is suggesting the claim is non meritorious on its face and i suggest the reason they need to characterize it that way is precisely along the lines of the chief justice alluded to the and fifteen she referring to actions that are clearly abusive malicious or frivolous so it does not fit with the structure of the statute to think that actions that are being dismissed without prejudice and that might be on a precipice surely procedural ground should receive a sanction that under one hundred and fifteen she also like to address the united states argument about the literal text of the statute and with the idea that well it just says failure state a claim we shouldn't be reading in another provision but that doesn't take full account of the fact that this is a term of art and this court in woodford for example where it was interpreted in the phrase exhaust the argument was made well that doesn't include proper exhaustion and the court said nevertheless exhaustion is a legal term we know what it means so it would have been redundant for congress to have to say proper exhaustion we think the same applies here in the particular context we're dealing with what a court interprets a prior dismissal and for that reason we think the coleman decision supports us because coleman in addition to relying on the plain language relied on the ordinary background principles for of simple rules of procedure and here the ordinary background rule is that while will twelve the authorization provision allows for a dismissal with or without prejudice when you are determining the impact of of a dismissal after it has previously been entered it is there's a conclusive presumption that it is with prejudice so we think congress would have understood it that way and that fully explains the  difference between why that phrase is being interpreted one way in one thousand nine hundred and fifteen g as opposed to the screening provisions which were twelve b and authorizing dismissal another point i'd like to make is the i didn't hear a good response to justice kavanagh's question as to why there would be a good reason to treat differently actions that instances in which a court allows amendment and then dismisses persons instances in which the court decides was going to dismiss this entire action without prejudice on the other side's argument seems to rely on the notion that courts will by and large apply rule fifteen and while multiple amendments as i indicated before it's not clear that that is a preferable system i think it's also not clear that that is consistent with the text of the p r a when you look at the has by saying well courts are going to allow multiple amendments you don't have to worry about instances in which there is a without prejudice to smith i don't think it's consistent with how the act works as a whole the final point i'd like to make is that the other side  multiple times to the how many pursuits that were in that they decreased as we noted in a reply brief there's no indication that there is any different pattern in the rd or th circuit for circuit has had this rule for over a decade and there's no indication that by adopting a clear rule that without prejudice dismissals do not qualify as strikes that there's been any significant uptick in prison or litigation if the court has no further questions we are due to reverse thank you counsel the