district court granted plaintiffs granted defense motion for summary judgment and dismissed the action because it held that mr andrews had accumulated three so called strikes what's remarkable about the district court's decision and the thing without anything else we just send it back on an order time that's one of these strikes you look at the record the guy files an appeal something's obviously not appealable obviously it was to file it at that point look at it we say out of here right now that's the question why wouldn't that is that not a strike if i understand the court's question i believe you referring to the appeal in crocker to which one the district court cited was frivolous because this court held that there was no jurisdiction over the appeal because mr mr andrews to take an appeal from a dismissal with leave to amend that seems to me pretty clear seems to me very clear that that is not it's not a frivolous appeal and that can not constitute a strike us mr anderson for a number of reasons first of all the fact that an appeal from a motion to dismiss with leave to amend does not lie was not and  settled law there is dispute across the courts of appeals on whether an appeal and such circumstances can be taken this court in the year rash decisions held expressly that a plaintiff need not amend a complaint in response to  and said look there's no jurisdiction that's before this this if anything ever goes up that is true that is before this appeal my point is simply that this is not an issue that is obvious or frivolous for a pr we should go through the cases very quickly the court should have i hope the on the panel has a very simple demonstrative that we put forward i have spoken with opposing counsel they have no objection courts do as opposed to assuming district courts don't do it they're supposed to i take your correction to my statement of law on this point you are correct however in the rabbits case what's centrally important is that there is nothing the record indicating that that dismissal was with prejudice so given that this was brought on summary judgment the only inference that me drawn is that the case was brought was dismissed without prejudice and in any failure to prosecute which is not for being frivolous malicious or for failures to claim so there are no strikes in this record much less three strikes defendants now argue on appeal that he is petitions dismissal of he's petitions to be construed as streitz and that is something the district court correctly rejected because the only courts every court to consider that proposition has said that no  a bunch of stripes tell me why you know the court certainly could raise as it can raise almost any issues to us martin but in this case the court did not raise this point it was raised by me not only that but i'm just saying i'm talking about burdens answer question i just want to make one other thing clear which is that defendants themselves agree that at the very least they have a burden of production and without dwelling on it we do talk about in our papers clearly they didn't meet that burden in this case as to the ultimate burden of proof it seems to me clear that that should lie as a matter of policy because it is a matter of policy for this court to decide it should lie upon the defendants the state and its prison officials for the same reasons that this court held in y and v terrilyn and that the burden of persuasion on same way that exhaustion is not a pleading acquirement the second is from a policy perspective you look at who is best able to bring to the district courts the evidence the proof the material necessary for this report to reach an accurate decision it is clearly going to be prison officials and the twenty general's office a prisoner has no access to pacer has no access to court records has no way to pull all the court records has no way to maintain court records a prisoner is in this is in the record in this circumstance mr andrews is  limited to six feet possessions there is no way he could maintain the court records for all of his cases cases brought before the passage on one hundred fifteen which are three of the five cases that we're discussing here he had no reason at that time to retain those court orders prison officials by contrast with the current attorney general's office has access to pacer they have the ability to pull court records and they have legal research facilities so just as a practical matter if you put the burden on a prisoner is very i e to print them out of the computer which doesn't seem to be an enormous burden they were able to file these papers within twenty days less than three weeks of being served with the complaint so prison officials and state governments are fully capable of bringing these kinds of issues to the courts attention for these reasons the burden of proof should be with the defendants with prison officials and the state prison system in one hundred fifteen  please the court my name is maria chan deputy attorney general on behalf of defendant i have is not a constitutional right it is a privilege and the legislature determines that were an inmate let it can't abuse a privilege our abuse is a judicial we knew he had i'm sorry that's what the county journal what they had access to to the pacer docket sheets we could have gone through the archives and possibly found the actual underlying order but given the time that we have to respond to this type of  the record shows in this case the district court in ruling on the burden of proof they didn't focus so much on the summary judgment standard because initially the burden of proof to prove i s p should rest with the plaintiff he's the one who has the knowledge of what rockets other cases may require a further inquiry into the underlying orders leading to the dismissal but i think that once the defendant established that he had these actions out there that could qualify strikes it was plain to burden to them bring back i would agree that it would be a difficult process however that is the cost or that is the price of litigating it has always been the burden on the plaintiff to prove i have the qualification and it's always been the burden on him to prove it at the outset of the legislation at the outset of  the litigation even before the attorney general the district court here granted status of the very beginning you're correct and they then you came back and said no not revoke that status he's a three striker that is correct and mr andrews has made this document available to this court to consider in this ruling and we urge this court to look at this record and set to make a ruling that in this case where the district court uses this type of language even where they don't say frivolous malicious this is in fact conduct that is indicative of frivolous and malicious and this is exactly the conduct that congress was targeting when it decided to limit i s p status to from or to take the privilege away from inmates who abuse the system still at all where we're not supposed to be in a position of having a millionth factual determinations i don't know if that's a record that's important to generally speaking when the district judge didn't rule on the basis of that order aside from the fact that you have to do that it probably would be best if you remanded this for consideration by the just right court court the court in their record that was provided to the ninth circuit by the plaintiff on appeal could look and could see that that case was in fact the court went through the analysis about how pros the lead against should be granted the opportunity to amend and in this fifty whether or not they dismissed it with or without prejudice or with or without leave to amend the piece or she actually demonstrates the point of didn't bother to attempt to amend or to even appeal to those who spotted without means which i think means without importantly that was never brought to the district court again this is an issue that was raised for the first time on appeal and we can see that plaintive did at some point inform the court that he had been removed from custody or he had been removed from the country but he never said to the district court i was in i i in as custody when i file these actions these actions i was not a prisoner and then i was deported and in fact we're not even sure why he was deported if that all that should be remanded to the district court for further because it's clear that before he was in custody he was actually in the before he was and i know that he was actually in the department of corrections with custody so there's some overlap there and on this record and because of the way that this was brought up on appeal it's unclear  was facing other criminal charges but it was the role if he was on parole i believe it would not fall within the statute i believe he would not be incarcerated for purposes of the statute by the constitutionality you wouldn't have to reach them if you agreed with mr andrews on his arguments and his other non constitutional arguments but we are not taking a position on that also even if you agree with the state and would otherwise affirm he has raised constitutional challenges and there are and we hear the constitutional challenge to nine hundred fifteen she has already been reached in rodriguez versus cook and this court as well as if rodriguez this correctly decided and it is a few dollars it is binding precedent that it doesn't apply at the whole thing doesn't apply to him because his underlying clean implicates a fundamental right and question that rodriguez left open as an initial matter though it is far from clear that his underlying claim does implicate a fundamental right and for that reason we also don't think the court needs to reach the constitutional issue that is because here he is claiming that the state to them and has made it virtually impossible for prisoners to administrative leave exhaust the remedies and he correctly states that the p l r a requires administrative exhaustion however the statute clearly says that a prisoner must exhaust remedies that are as as a vailable so either a prisoner would be able to show that by their actions or the process that they spelled out that the the state defendants have not made it possible to exhaust in which case the remedies wouldn't if the prisoner stablished that to a court satisfaction the remedies would not be available priest the prisoner would have access to the courts or the prisoner would not be able to establish that in which case there would be no violation of a fundamental right because the procedures which would establ and they would be able to go through that therefore we don't think that the allegations in his complaint adequately set forth a claim raising a fundamental right if nonetheless this court disagrees and work to reach the claim implicates a fundamental right then it does not violate access to the courts and is constitutional so rodriguez didn't reach this question because in rodriguez they help that the prisoner's underlying claim did not implicate a fundamental right the logic and reasoning and rodriguez fully supports an extension of that holding and in for example in rodriguez the court recognize that i have status is not a constitutional right  and that the right of access to the courts is not unlimited it only means that a that a plaintiff get should get reasonable access and they are here nine hundred fifteen g doesn't has that would allow him to proceed and you know that he can save up the money and he could refrain from filing frivolous malicious or legally meritless actions he could borrow the money it's also important to point out that so there are there are ways that prisoners can get into court and we just asked if the court reaches the issue to join the seventies to thank you thank you very much of requires and be able to proceed even without meeting the ip requirements and the only argue that at least i heard they were only arguing that he's going to not raise fundamental right because exhaustion could be raised in another forum and i don't know authority we know of no authority to suggest th just because a claim could be litigated in a different case it does not raise a fundamental right as for the claim the argument about mr andrews being an ins custody that was something that was clearly in the record before the district court