but the court's permission i'd like to reserve three minutes for a bottle if i may this is a case that begins and ends with the plain terms of the operative statute and the question under the tax of the present litigation reform act is whether mr harris had three or prior actions dismissed on the ground that they were malicious frivolous or that they failed to state a claim looking at mr harris's prior act prior cases under the lands of the of the statute he has incurred at most two strikes dealing with precisely those kinds of mixed dismissals where the entirety of the action was not dismissed on an enumerated ground under the p l r a and i think a related principle that guides resolution of this appeal is the fact that each of the three categories of strikes under the statute under the p l o array involves dispositions that look to the merits of the suit and here both of the prior cases at issue involve mixed a mix dismissals and b where at least some of the claims were disposed of without amended complaint didn't did not exercise supplemental jurisdiction over mr harris is state law claims and there's a d c circuit case directly on point on all fours on this issue and that's and that's the case of four started the garden city group where the d c circuit h to district court has declined to actually say supplemental jurisdiction over state law claims the court has not dismissed the state law claims for failure to state a claim nor has the court dismissed the state law claims as frivolous or malicious and i think a related point that's both shared by this does not constitute a strike because there is no disposition of the merits of those claims there's no disposition even of the complaint on its face as to whether a claim was stated as to whether the complaint was frivolous or malicious precisely because the court never exercises jurisdiction over the claim issued i think even though i didn't make an express ruling on the issue i did into the district or clearly provided analysis as to the factors that would guide the decision one way or the other and i think because it's a purely legal question and we have a we have a lot to fully develop record because know we have it's been an issue with some getting some these documents and we've had to do it through motions for judicial notice but i think we have plainly judicially noticeable documents that i think make up a full record before the before the panel and i think the court has or for failure state a claim and as opposing counsel has indicated plenty of concedes that two of the prior dismissals constituted strikes the remaining two dismissals are at issue and either of those dismissals would be sufficient to affirm the district court's ruling of first address the nielsen district court matter in that case the plaintiffs had sued five prison psychologists and other prison officials about the denial of his parole based on their testimony at his parole revocation hearing and the final order that dismissed the action was for failure see a claim upon which relief could be granted because it was apparent on the face of the complaint that those officials were entitled to clause  and this court routinely holds that dismissal dismissal for failure state a claim is appropriate where an affirmative defense is apparent on the face of the complaint and that's happened in the context of prosecut instructs instructs us that to look at looking at the final order that dismissed the action if that order is a mixed dismissal as it was in washington some of the claims were dismissed for failure state a claim and some of the claims were dismissed for lack of because there havey its claims when that final order dismissing the action is a mixed dismissal that doesn't count as a strike but here that's not what we have we have the action was proceeding and the final order that disposed of the action was proceed on was the it was the claims against the defense who in fact were served so that action was proceeding along vengefully got to the end point where the entire the entirety of the action as it was in case this court instructed that we should look to the order of dismissal that dismissed the action to determine whether the action was dismissed for failure state a claim and here but for that order of dismissal in other words the that went when the courts who respond to dismiss that one defendant for lack of service mr harris could have said look i think this action should proceed on all the defendants including this one who i couldn't serve and i think the service was ineffectual added by the tried made more of an effort to locate that offending than serve him and then so that his action as he intended could have proceeded without the fed it instead he said are it that the defendants are not being served no longer part of the action no your honor what washington would have instructed him was then the the order of dismissing that defendant for lack of service wasn't a final order but it was an order that dismissed the action so he's got he's choosing to proceed with the action as it stands so if later on he gets an order dismissing the entire action if that order that final order is dismissed or for one of the qualifying reasons washington would have instructed him that still could count as a strike when in reality as as indicate you as as he correctly described the case initially prison doctor was sued this was an eighth amendment federal civil rights claim case against the talk there for a delay in receiving his eyeglasses  without prejudice without leave to amend because plaintiff quote failed to state a claim against the nurse and any member of the medical staff which would include the person doctor and this court recently addressed very similar situation in harris river didn't dismiss those claves those claims court merely took a step back said we're not even going to determine whether we have subject matter jurisdiction or supplemental jurisdiction over those claims at all instead we're going to dismiss the action what this action was discussion of that doctrine really bolsters i think the d c circuits decision and four star because again you're dealing with whether be younger whether it be called whether it be a twelve b one dismissal you're dealing with a district court not really addressing the merits of an act complaint even if you were just dealing with what was apparent on the face of the complaint the district never gets there we don't have that resolution as to that issue i guess as to the effort to distinguish washington on the ground that it was the final or you know the very last order  know i think in some respects you know an action is nothing more than the sum of its claims of defendants and whether one is dismiss you know preceding the other whether all this mess at the same time i don't think is it is a distinction with a difference