should be vacated for three main reasons and i know that any of these reasons provides a sufficient basis for vacating the court's judgment first the district court committed reversible error by failing to grant mr andrews the opportunity to rebut the court's finding that at the underlying claims and determines if these claims are successful will this implicate the fact or length of the person however in most instances it's dismissed without prejudice the client the prisoner is free to bring the claim is that he has action if that's appropriate if at a later date his sentence is overturned or he's release reasons for failure state explain this because element just a claim is necessary allegation is that the convictions been overturned so therefore he doesn't stray to claim because he doesn't state that it's confessions been overturned without granting the plaintiff the prisoner leave to amend because of would accumulate strikes and would be penalized not because because the complaint is meritless but because he's unskilled in the law lacks coun and that's a result that's contrary to the pleading rules and that's what happens with tech cases frequently it's a complex legal system it's a complex doctrine the heck doctrine approach a prisoner who doesn't have the benefit of this is the difference the problem here is around i don't know the answer that you're on i think that would make sense from a procedural standpoint especially with the recognition of litigants don't have an understanding necessary sometimes to just understand the distinction between a hack cl or are do you think we should take the bull by the horns even though it was never before the district court something we generally don't speak to unless we have the advice and counsel of the district court first well it's certainly easier on this court can resolve the case in mr andrew we reach that we're going to think i'm trying to get away from doing work here can we just that we have to reach that if we're going to remain under the first instance on whether or not you've got three strikes you don't need to to reach your own if we're going to remand on that other and ongoing threat and the eighth circuit the third circuit they both have looked at this issue and some of the examples you know someone who said they had headaches and other symptoms as a result of exposure to dust at length and shower out over the seventh circuit yeah i mean it was it was vague on that point but if nothing else the district court should have given him leave to amend his complaint to allow alleged facts to meet the imminent danger exception and the court didn't do that in this case it just asked him to  responding to that issue on the question of imminent danger if any allegation of a potential future harm or ongoing condition is to be considered imminent danger that will essentially have an exception in imminent danger he alleged that he contracted a disease in the past he's concerned that in the future he may be housed within nates that what he has been lots of times he said yes i says there's no screening for diseases that's true extremely limited because all it's doing is now you're answering a what what does he have to allege she's alleged i think literally and firmly read that he's housed and that he's concerned that there's these communicable diseases which he's going to contract if just taking what he says that's true even though we're not saying it has merit or not but even just looking at what he's staying he's speculating that he may be in situations where he could become ill in the future but it's highly likely a great did find that ongoing conditions could be the basis for the imminent it's hypothetical yes your honor they found in that instance they permitted the inmate to proceed without putting in the allegations  well first of all i'm asking that this court would limit the ruling like for example and now like in the other circuits and not apply it that way and it's certainly not to get away from this one but he never went before the district judge to  have the opportunity to controvert that he has he does not have three strikes or that that he has to live in a danger do we have to even get involved that don't we just have to remain this to the district court and say look we're not going to rule on any of these issues three strikes have a danger because you never gave the inmate the opportunity to give his position on these issues no your honor there is no reason to remand this case to the  speaking to cover not only noticed motions brought by the defendants which was the case in andrew speaking but also the way district court carry out their screening obligations under the p l r seems more so that now that would  a strike you'd think that he would want that to get the opinion of many parties first well your honor under the prison litigation reform act courts are required to screen complaints and that is an enormous burden on the district court they have to make a decision in each and every one of their cases whether to i felt were always the rationale for applying interest first came when there was a motion but not if there isn't a motion the intent and purpose of the prison litigation reform act which is that the district court screen out for not having it is risking that we have an address for us as king so what's the rationale for having that case but applying it only when there is a motion because in that instance the court had already completed its screening process it had ordered service on the defendant the case was underway the defendants brought a notice motion it's just for example if the court screams out a case for failure to state a claim there's a very different procedure used then if the defendants raise the motion under rule twelve  suggests that the district courts should screen out cases for various reasons even before docketing as practicable in an instance where the defendants have been served in or bringing a motion it's understandable that andrew speaking would need to allocate the burden of but in an exactly the same thing that would happen if the district court screens out the case for failure to state a claim and say for example they get that wrong and it comes up on appeal that as this as these three strikes it's a pure legal question and one which this court can address procedures into the court screening process overhaul the way district courts currently screen all inmate cases whether for germany or improper well it's nearly half of their docket and if they were to let an inmate have an inmate has three strikes so you're asking us to just look at the face of these complaints about which we know nothing and to decide that there were strikes yes your honor and when you say about which you know nothing it's actually a purely legal question either  complaint you so so you would want us knowing just looking at the complaint a prior complaint to just say this was a frivolous complaint we don't know anything yes your honor that's the way strikes are calculated by looking at the face of i mean i don't have any precedent or haven't heard that way but there's no reason why this court cannot make the determination just as well as the district court would and as they do every time when they have knowledge we have to go to prison or an opportunity to rebut the fact that it's frivolous  now without any kind of rehearing chancery but he got it in that instance in andrews speaking because the court had already screened the complaint and determined plaintiff was entitled to inform a proper status and then the defendant made  suppose he would have a chance to take an appeal to the district court in any event that i know is the way it occurs in the eastern district it's done by the findings and recommendations and i would point out even if the court did want to overhaul the way the screening pro currently works so that an inmate has an opportunity to rebut any time the district court screens the complaint out and the nice him leave to proceed for free this is not the correct case because as you point out the inmate did get an opportunity to file objections something that what gives rise to a comment i understand the concern and i have seen instances where the reverse is true where the inmate files that he gets action but he's asking for money damages and so the court turns it into a section one thousand nine hundred three complaint i'm trying to think offhand of any instances where the reverse those occurred i'm not familiar with them but why not conceptually and if and if and that's really what we're doing here and essentially conceptually it would seem that if an inmate is doing for money damages the court cannot just change that complaint those allegations into a behavior claim because of the prayer for define those two terms well in the us i would say in this context refers to harm that could occur at the time that is occurring at the time the inmate actually files the most happen next week  determine how it is a minute therefore the best way to interpret it would be in the context of why the law was passed of the prison litigation reform act and that was to determine that being able to bring a lawsuit for free when you've already litigation reform act so i mean and we're really getting to the point we're not filing in front of porpoises is really not filing for most of these people well however inmates do make money and the purpose of the prison litigation reform now i know and that was reasonable at the point that we were charging one hundred dollars or something for i mean i'm i understand taking taking having a problem with the statute because of changes that have occur but i don't think that i think of that i guess what i'm saying is that you need to recognize that the privilege notion turns into a barrier when and when the amount of the rate of filing becomes high enough i notice i'm exactly  danger and this court should construe it broadly because it is not set to the determination of the merits of the allegations and or whether or not the facts can be proved secondly andrews versus king is not limited to an instance when the defendant what happens as i understand it is that the district since the prisoners file repeatedly in the same just drifts often the district court itself is pretty familiar with the prior filings and if he we handle it here by the way but what would you suggest i believe the question is you know orders stating that based on their preliminary analysis they're there are three prior strikes and identifying what strikes are and then you know enabling the prisoner to file a response within some set amount of time to rebut that presumption and present any evidence that the prisoner ultimately has the burden under injuries versus king but in this case it's sort of because evidence isn't really it's a point right i mean you have so for the for that reason and he certainly has the opportunity doesn't make sense to have to make petitioners file appeals this is not the proper forum for evidence to be presented and the new cases cited by a telly shouldn't be considered here it should be remanded so that the court andrews does have the right to present evidence and argument to rebut the presumption and finally i would urge the court to determine that versus humphrey does not constitute a strike it's an issue of first impression for this court it certainly is at issue here because one of the cases that the district court found to construct striking andrews versus hafey was the dismissal based on hack and there is a need in the circuit to have clarity with respect to this issue and whether or not it will bar prisoners from with the purpose of section one hundred fifteen gene with which to present to prevent prisoners from filing frivolous malicious claims that i don't know marietta that didn't have the next phrase which is a little hard to figure what it's doing there but it's failure to state a claim that's that's the phrase i mean it's not appropriate at that time it's not that the merits of the underlying action that the underlying claims lack merit there's no determination of ok thank you very much that's only pushing your argument in the case of a