PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 19-3055

_____________

QUINTEZ TALLEY,

Appellant

v.

JOHN E. WETZEL; ATTORNEY GENERAL’S OFFICE; 

DEPARTMENT OF CORRECTIONS; 

BRUCE R. BEEMER; SHARON K. ROGERS; JESSICA S. 

DAVIS; CALEB ENERSON; ROBERT D. GILMORE; 

TRACY SHAWLEY; MINDY ANDRETTI; 

TAMMY FERGUSON; RODNEY CHISM; DAVID LINK; 

KEVIN MCELWAIN; ROBERT WILLIAMSON; 

MICHAEL WORSTELL; MICHAEL LEFEBVRE; 

RONALD HAGG; DUSTIN POPE; DEAN BOWMAN; 

THOMAS SUCHTA; JOSHUA GLESSNER; DANIEL 

MOSES; ROBERT SMITH; GERALD CRISWELL

_____________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 3-18-cv-00868)

District Judge: Honorable James M. Munley

______________
2

Argued July 15, 2021

______________

Before: McKEE, GREENAWAY, JR., and RESTREPO, 

Circuit Judges.

(Opinion Filed: September 27, 2021)

Quintez Talley

Fayette SCI

50 Overlook Drive

LaBelle, PA 15450

Appellant

Josh Shapiro, Attorney General

Michael J. Scarinci [ARGUED]

Nicole R. Ditomo

Office of Attorney General of Pennsylvania

Strawberry Square

Harrisburg, PA 17120

Attorneys for Appellees

Andrew M. Buttaro [ARGUED]

Jonathan M. Albano

Morgan Lewis & Bockius

One Federal Street

Boston, MA 02110

Court Appointed Amicus Curiae

______________

OPINION

______________
3

GREENAWAY, JR., Circuit Judge.

In Major League Baseball, an umpire calls a “strike.” 

Three strikes and the batter is out. Similarly, the in forma 

pauperis (“IFP”) statute, 28 U.S.C. § 1915, which provides 

that prisoners may proceed in federal court without 

prepayment of filing fees, contains a “three-strikes rule.” 

Courts may call a strike when a prisoner’s “action or appeal . . .

was dismissed on the grounds that it is frivolous, malicious, or 

fails to state a claim upon which relief may be granted[.]” 28 

U.S.C. § 1915(g). Three strikes and the prisoner cannot 

proceed IFP unless other conditions are present. See id. 

The threshold question presented by the instant appeal

is whether Appellant Quintez Talley has accrued three strikes. 

Appellees1contend that Talley has at least three strikes based 

on prior “mixed dismissals” where various district courts 

dismissed Talley’s federal claims on grounds enumerated in 

§ 1915(g) and declined to exercise supplemental jurisdiction 

over Talley’s state law claims. We hold that such mixed 

dismissals are not strikes. 

1 The following individuals are Appellees: John E. Wetzel, the 

Pennsylvania Office of Attorney General, the Pennsylvania 

Department of Corrections, Bruce Beemer, Sharon Rogers,

Jessica Davis, Caleb Enerson, Robert Gilmore, Tracy Shawley,

Mindy Andretti, Tammy Ferguson, Rodney Chism, David 

Link, Kevin McElwain, Robert Williamson, Michael Worstell,

Michael Lefebvre, Ronald Hagg, Dustin Pope, Dean Bowman,

Thomas Suchta, Joshua Glessner, Daniel Moses, Robert Smith,

and Gerald Criswell.
4

Although we are not umpires, we conclude that Talley 

has not struck out. We will grant his motion for IFP status. 

On the merits of his appeal, Talley objects to the District 

Court’s grant of Appellees’ motion to dismiss and its denial of 

his motion to amend. We will affirm the District Court’s 

judgment.

I. Background

Talley is a prisoner currently incarcerated in a state

prison in Pennsylvania. The instant suit arises out of the 

settlement of two of Talley’s prior suits: Talley v. Glessner

(Talley I), No. 15-cv-00407 (M.D. Pa.); and Talley v. Wetzel

(Talley II), No. 15-cv-01170 (M.D. Pa.). Talley signed a 

settlement agreement resolving both cases (the “Settlement 

Agreement”). He alleges that the Settlement Agreement was 

fraudulent because Jessica Davis and Sharon Rogers, both of 

whom are attorneys, had not entered a “‘proper’ appearance” 

on behalf of Michael Worstell, a defendant in Talley II. Compl. 

¶¶ 22, 23. Talley also alleges that another attorney, Caleb 

Enerson, breached the Settlement Agreement when he filed the 

Settlement Agreement as an exhibit to a motion in Talley II. 

Talley asserts a claim for violations of the Racketeer 

Influenced and Corrupt Organizations Act (“RICO”), 18 

U.S.C. § 1961, et seq., as well as claims for violations of the

First, Fourth, Eighth, and Fourteenth Amendments of the 

Constitution. Talley also brings numerous state law claims: 

defamation, breach of contract, conversion, promissory 

estoppel, fraud/deceit, coercion, and legal malpractice. Talley 

alleges that Appellees engaged in a conspiracy to violate

federal and state law. 
5

Appellees moved to dismiss Talley’s complaint 

pursuant to Federal Rule of Civil Procedure 12(b)(6) and 

Talley moved to amend. In a report and recommendation, 

Magistrate Judge Karoline Mehalchick recommended that the 

District Court grant the motion to dismiss and deny the motion 

to amend. Overruling Talley’s objections, the District Court 

adopted the Magistrate Judge’s recommendations, finding that 

(1) Talley’s claims related to the alleged falsity of the 

Settlement Agreement were subject to dismissal because Davis 

had entered a permissible appearance on behalf of Worstell by 

signing and filing an answer on behalf of Worstell and other 

defendants, and (2) Talley’s RICO and constitutional claims 

were meritless because the Settlement Agreement was never 

actually filed on the docket. The District Court denied Talley 

leave to amend his federal claims, finding that because the

claims were meritless, amendment of Talley’s complaint 

would be futile. The District Court declined to exercise 

supplemental jurisdiction over Talley’s state law claims, 

dismissing them without prejudice. This timely appeal 

followed. 

On September 27, 2019, Talley moved to proceed IFP 

in this appeal. Appellees opposed Talley’s motion, arguing 

that Talley had accumulated three strikes under § 1915(g). A 

two-judge panel appointed amicus curiae on behalf of Talley

to address “whether a strike accrues where a district court 

dismisses a prisoner’s federal claims on one or more grounds 

covered by § 1915(g) but declines to exercise supplemental 
6

jurisdiction over the prisoner’s state-law claims.”2 Talley’s 

IFP motion was referred to this merits panel. 

II. Jurisdiction 

The District Court had jurisdiction over Talley’s RICO 

and constitutional claims pursuant to 28 U.S.C. §§ 1331 and 

1337, and supplemental jurisdiction over Talley’s state law 

claims pursuant to 28 U.S.C. § 1367. We have jurisdiction 

pursuant to 28 U.S.C. § 1291. 

III. Discussion

Before we address the merits of Talley’s appeal, we 

must determine whether he can proceed IFP. 

A. Talley’s IFP

Appellees contend that Talley accumulated a strike in

each of the following matters:

3

2 We thank amicus curiae, Andrew M. Buttaro, Esq. and 

Jonathan M. Albano, Esq. for their superb advocacy in this 

case.

3

In their initial response to Talley’s IFP motion, Appellees also

argued that Talley accrued a strike in Talley v. Clark, No. 18-

5316 (E.D. Pa.). Talley appealed the district court’s dismissal,

and we reversed and remanded the district court’s order. See 

Talley v. Clark, No. 20-1298, 2021 WL 1400911, at *5 (3d Cir. 

Apr. 14, 2021). Appellees, accordingly, no longer rely on the 

district court’s disposition of that case as a strike. 
7

1. Talley v. Varner (“Varner I”), No. 3:17-cv-965 (M.D. 

Pa.), in which the “district court dismissed all of [Talley’s] 

federal law claims with prejudice for failure to state a claim 

under Rule 12(b)(6), but, ‘to the extent that the amended 

complaint assert[ed] any state law causes of action,’” the 

district court declined to exercise jurisdiction over those causes 

of action. Appellees’ IFP Resp. 7 (quoting Varner I, No. 3:17-

cv-965, 2019 WL 1405403, at *5 (M.D. Pa. Mar. 28, 2019)). 

2. Talley v. Varner (“Varner II”), No. 19-1827 (3d Cir.) in 

which we summarily affirmed the district court’s dismissal of 

Talley’s federal claims in Varner I. See Talley v. Varner, 786 

F. App’x 326 (3d Cir. 2019). 

3. Talley v. Mazzocca, No. 19-00161 (W.D. Pa.), in which 

the district court dismissed Talley’s federal claims with 

prejudice for “failure to state a claim pursuant to the screening 

provisions of 28 U.S.C. §§ 1915(e)(2) and 1915A” and 

dismissed his state law claims without prejudice for “want of 

jurisdiction.” Appellees’ Merits Br. 11; Talley v. Mazzocca,

No. CV 19-161, 2019 WL 2024829, at *1 (W.D. Pa. May 8, 

2019). 

Appellees describe the dismissals in the instant suit, 

Varner I, and Talley v. Mazzocca as “mixed dismissals” and 

contend such dismissals are strikes.4 Appellees’ Merits Br. 11. 

The question before us is whether mixed dismissals—where a 

district court dismisses a prisoner’s federal claims on grounds 

4 Appellees contend that Talley has three other strikes resulting 

from mixed dismissals in: Talley v. Pa. Dep’t of Corr., No. 18-

cv-1685 (W.D. Pa.); Talley v. Clark, No. 18-5315 (E.D. Pa.); 

and Talley v. Pa. Dep’t of Corr., No. 19-1589 (E.D. Pa.). 
8

enumerated in § 1915(g) and declines to exercise supplemental 

jurisdiction over the prisoner’s state law claims—count as 

strikes. Appellees’ IFP Resp. 8–9. 

Amici explain that the text of § 1915(g) “plainly states

what qualifies as a strike—a prior ‘action or appeal’ brought 

by the prisoner ‘that was dismissed on the grounds that it is 

frivolous, malicious, or fails to state a claim upon which relief 

may be granted.’” Amicus Br. 12 (quoting 28 U.S.C. §

1915(g)). Because “these three grounds are the only grounds 

that can render a dismissal a strike,” Talley’s prior mixed 

dismissals should not count as strikes. Amicus Br. 12–13. 

Talley advances the same argument. We agree with Amici and 

Talley. 

Our analysis of whether mixed dismissals count as 

strikes “begins, and pretty much ends, with the text of Section 

1915(g).” Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1724 

(2020). We begin, as we must, with the statutory text. See A.A. 

v. Att’y Gen. United States, 973 F.3d 171, 180 (3d Cir. 2020)

(“We ‘presume[] that Congress expresse[d] its intent through 

the ordinary meaning of its language,’ so ‘every exercise of 

statutory interpretation begins with an examination of the plain 

language of the statute.’” (alterations in original) (quoting 

Murphy v. Millennium Radio Grp. LLC, 650 F.3d 295, 302 (3d 

Cir. 2011))). 

Section 1915(g) reads:

In no event shall a prisoner bring a civil action or 

appeal a judgment in a civil action or proceeding 

under this section if the prisoner has, on 3 or 

more prior occasions, while incarcerated or 

detained in any facility, brought an action or 
9

appeal in a court of the 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, unless the prisoner is 

under imminent danger of serious physical 

injury.

28 U.S.C. § 1915(g) (emphasis added). The emphasized 

statutory language has a plain meaning and permits only one 

interpretation—a strike accrues when an “action or appeal” 

was dismissed on one or more of the three enumerated 

grounds: if the action or appeal is (1) “frivolous,” (2) 

“malicious,” or (3) “fails to state a claim upon which relief may 

be granted.” 28 U.S.C. § 1915(g). 

Thus, the plain text of § 1915(g) precludes Appellees’

view that a mixed dismissal is a strike. That is because a mixed 

dismissal is not a dismissal of the action on one or more of the 

three enumerated grounds. Rather, a mixed dismissal is a 

dismissal of a portion of the action on enumerated grounds and 

dismissal of the remainder of the action on grounds other than 

the enumerated grounds. In other words, a mixed dismissal 

does not comply with the rule we announced in Byrd v. 

Shannon, “a strike under § 1915(g) will accrue only if the 

entire action or appeal is . . . dismissed explicitly because it is 

‘frivolous,’ ‘malicious,’ or ‘fails to state a claim[.]’” 715 F.3d 

117, 126 (3d Cir. 2013) (emphasis added) (quoting 28 U.S.C. 

§ 1915(g)). 

The D.C. Circuit and the Ninth Circuit have reached the 

same conclusion—a mixed dismissal is not a strike. See 

Fourstar v. Garden City Grp., Inc., 875 F.3d 1147, 1150–51 

(D.C. Cir. 2017); Harris v. Harris, 935 F.3d 670, 674 (9th Cir. 

2019). Four other Circuit Courts have considered whether a 
10

dismissal on grounds enumerated in § 1915(g), in part, and 

grounds not enumerated in § 1915(g), in part, are not strikes. 

See Turley v. Gaetz, 625 F.3d 1005, 1012 (7th Cir. 2010); 

Tolbert v. Stevenson, 635 F.3d 646, 652 (4th Cir. 2011); Brown 

v. Megg, 857 F.3d 287, 291 (5th Cir. 2017); Escalera v. 

Samaritan Vill., 938 F.3d 380, 382 (2d Cir. 2019).

Despite the plain text of § 1915(g), our holding in Byrd, 

and the weight of authority from our sister Circuits, Appellees

advance four unpersuasive arguments in support of their view 

that a mixed dismissal is a strike. We address each in turn.

First, Appellees contend that when a district court 

dismisses a prisoner’s federal claims, “the ‘entire action’ has 

been dismissed, because, under this Court’s jurisprudence, the 

district court has lost jurisdiction over any pendent state law 

claims and any assertion to the contrary would itself be 

frivolous.” Appellees’ IFP Resp. 3–4; see Appellees’ Merits 

Br. 21–22 (clarifying that their use of the phrase “entire action”

is a reference to Byrd). Appellees’ interpretation of the phrase 

“entire action,” in effect, invites us to limit the statutory phrase 

“an action or appeal” to only refer to a prisoner’s federal 

claims. But we have previously interpreted the meaning of “an 

action or appeal” more broadly and rejected a party’s attempt 

to limit the plain meaning of the text. See Byrd, 715 F.3d at 

121. 

In Byrd, the prisoner argued that two prior actions, 

which were dismissed for failure to state a claim, were not 

strikes because he did not proceed IFP in those actions. 715 

F.3d at 121. We found that “the statutory language has a 

reasonably plain meaning—‘an action or appeal’ is not limited 

to an IFP action or appeal; rather, it refers to both IFP and nonIFP actions or appeals.” Id. at 123. We rejected the prisoner’s 
11

argument because the text of § 1915(g) did not allow for his 

proffered interpretation. Id. at 124 (“Congress could have 

easily differentiated between IFP and non-IFP actions or 

appeals in the language of § 1915(g), but it did not.”). Here, 

we reach the same conclusion—“an action or appeal” has a 

reasonably plain meaning, which does not allow for Appellees’ 

proposed limitation. 

Appellees’ argument in favor of a limited interpretation 

of “an action or appeal” mistakenly relies on our precedent 

addressing a district court’s exercise of supplemental 

jurisdiction under 28 U.S.C. § 1367(c). We have stated that 

“where the claim over which the district court has original 

jurisdiction is dismissed before trial, the district court must

decline to decide the pendent state claims unless considerations 

of judicial economy, convenience, and fairness to the parties 

provide an affirmative justification for doing so.” Borough of 

W. Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995) 

(emphasis added); Hedges v. Musco, 204 F.3d 109, 123 (3d 

Cir. 2000). Appellees interpret this precedent, particularly the 

use of the word “must,” to “underscore[] the district court’s 

lack of discretion in these circumstances, particularly when the 

dismissal is before trial.” Appellees’ Merits Br. 23. But 

Appellees’ interpretation of our precedent elides a district 

court’s discretion to consider factors of “judicial economy, 

convenience, and fairness to the parties” when deciding 

whether to exercise supplemental jurisdiction. See, e.g., 

Annulli v. Panikkar, 200 F.3d 189, 202 (3d Cir. 1999) (“This 

administrative decision is left to the sound discretion of the 

district court, and we review such determinations for abuse of 

discretion, focusing on whether the dismissal of the pendent 

claims best serves the principles of judicial economy, 

convenience, fairness, and comity.”); N. Sound Cap. LLC v. 
12

Merck & Co., 938 F.3d 482, 494 n.11 (3d Cir. 2019) (leaving 

for the district court to determine whether to exercise 

supplemental jurisdiction over the plaintiffs’ state law claims 

when the suits were pending for more than five years and had 

resulted in two appeals); see also Charles Alan Wright et al., 

13D Fed. Prac. & Proc. § 3567.3 (3d ed. 2019) (“The fact that 

dismissal under § 1367(c) is discretionary—and not 

jurisdictional—is now absolutely clear.”); id. (noting that the 

presumption that a district court will decline supplemental 

jurisdiction when the federal claims are dismissed “is just 

that—a presumption and not a rule”).

Relatedly, Appellees request that we “allow district 

courts to exercise supplemental jurisdiction over state law 

claims.” Appellees’ Merits Br. 29, n.17. This request 

presupposes that there is a rule barring district courts from 

exercising supplemental jurisdiction over state law claims. 

There is no such rule. As discussed above, our precedent 

makes clear that district courts have the discretion to exercise 

supplemental jurisdiction over state law claims so long as 

certain factors justify doing so.

Second, Appellees claim that the combination of a 

textual interpretation of § 1915(g) and the supplemental 

jurisdiction statute will enable a prisoner to make their lawsuits

“strike-proof” by including state law claims in their complaint. 

Appellees’ position is undermined by the discretion district 

courts currently enjoy to exercise supplemental jurisdiction 

over a prisoner’s state law claims and dismiss them on grounds 

enumerated in § 1915(g). Notably, this occurred in at least one 

of Talley’s prior actions. See Talley v. Griesmer, No. CV 19-

1587, 2019 WL 5787983, at *6 (E.D. Pa. Nov. 5, 2019) (“In 

the interest of convenience and judicial economy, we exercise 

our supplemental jurisdiction and consider Talley’s state law 
13

breach of contract claim based upon this same misconduct 

charge.”). Appellees’ strike-proofing argument is overstated 

and not a sufficient basis for us to deviate from the plain 

meaning of § 1915(g). 

Third, Appellees suggest that when there is “no viable 

federal law claim to give a district court jurisdiction, the 

inmate’s assertion of supplemental jurisdiction over the state 

claims should be deemed frivolous, thereby warranting a 

strike.” Appellees’ Merits Br. 27. Appellees argue that this 

approach comports with our decisions in Byrd and Ball v. 

Famiglio, 726 F.3d 448 (3d Cir. 2013), partially abrogated on 

other grounds by Coleman v. Tollefson, 575 U.S. 532 (2015). 

They also contend that this approach is supported by the 

Supreme Court’s recent decision in Lomax v. Ortiz-Marquez, 

140 S. Ct. 1721 (2020). Specifically, Appellees assert that 

after a dismissal of a prisoner’s federal claims for the failure to 

state a claim and in the absence of federal question jurisdiction 

and diversity jurisdiction, a prisoner cannot amend their state 

law claims such that they can bring those claims again in 

federal court. In this situation, Appellees claim that “[i]t is as 

if the state law claims were dismissed without leave to amend, 

at least for purposes of bringing them again in federal court.” 

Appellees’ Merits Br. 29. 

As an initial matter, we note that the decision in Lomax 

was grounded in the text of § 1915(g) and as such provides

little, if any, support for Appellees’ overall position. Lomax, 

140 S. Ct. at 1725 (“[T]his Court may not narrow a provision’s 

reach by inserting words Congress chose to omit.”). In Lomax, 

the Supreme Court held that “[a] dismissal of a suit for failure 

to state a claim counts as a strike, whether or not with 

prejudice.” Id. at 1727. The Lomax Court created a carveout 
14

where a strike is not called when the district court grants the 

prisoner leave to amend the complaint. Id. at 1724 n.4. 

Appellees’ desire to deem a prisoner’s state law claims 

as frivolous runs afoul of our precedent regarding the 

appropriate way to dismiss state law claims when declining to 

exercise supplemental jurisdiction. We have instructed that 

“[i]f a district court decides not to exercise supplemental 

jurisdiction and therefore dismisses state-law claims, it should 

do so without prejudice, as there has been no adjudication on 

the merits.” Kach v. Hose, 589 F.3d 626, 650 (3d Cir. 2009); 

see also Korvettes, Inc. v. Brous, 617 F.2d 1021, 1024 (3d Cir. 

1980) (“A dismissal for lack of jurisdiction is plainly not a 

determination of the merits of a claim. Ordinarily, such a 

dismissal is ‘without prejudice.’”). 

We see no reason to overrule our long-settled precedent 

and hold that a mixed dismissal is a determination that the 

prisoner’s state law claims are frivolous. An adjudication of 

the merits of the prisoner’s state law claims, which is what 

deeming those state law claims as frivolous would be, is 

premature. A district court’s decision to decline to exercise 

supplemental jurisdiction is not a determination of the merits 

of those state law claims.

Fourth, Appellees argue that a literal interpretation of 

§ 1915(g) leads to the “absurd results” of a mixed dismissal not 

being grounds for a strike and a prisoner being able to strikeproof their actions by including a state law claim, so we ought 

to apply the absurdity principle articulated in Holy Trinity 

Church v. United States, 143 U.S. 457 (1892). Appellees’ 

Merits Br. 30, 36. Appellees point us to the approaches taken 

by the Sixth Circuit Court of Appeals in Pointer v. Wilkinson, 
15

502 F.3d 369 (6th Cir. 2007) and the Tenth Circuit Court of 

Appeals in Thomas v. Parker, 672 F.3d 1182 (10th Cir. 2012). 

In Pointer, the Sixth Circuit held “that where a 

complaint is dismissed in part without prejudice for failure to 

exhaust administrative remedies and in part with prejudice 

because ‘it is frivolous, malicious, or fails to state a claim upon 

which relief may be granted,’ the dismissal should be counted 

as a strike under 28 U.S.C. § 1915(g).” 502 F.3d at 377. In 

Thomas, the Tenth Circuit held that a prisoner accrued a strike 

when a district court dismissed two claims for failure to state a 

claim and dismissed the remaining claims for failure to exhaust 

administrative remedies. 672 F.3d at 1183. Both the Sixth and 

Tenth Circuits relied on their view that the purpose of 

§ 1915(g) “would be subverted if prisoners could skirt its 

procedural bar merely by appending unexhausted claims to a 

complaint otherwise subject to summary dismissal on the 

merits[,]” in support of their holdings. Pointer, 502 F.3d at 373 

(quoting Clemons v. Young, 240 F. Supp. 2d 639, 642 (E.D. 

Mich. 2003)); Thomas, 672 F.3d at 1184 (citing and quoting 

Pointer and Clemons). 

We have previously rejected the holdings of Pointer and 

Thomas. In Ball, we addressed “whether dismissal of some 

claims within an action on grounds that would constitute a 

strike, without dismissal of the entire action, causes the 

prisoner to accrue a strike.” 726 F.3d at 463. We relied on our

holding in Byrd as settling the question and requiring the 

dismissal of the entire action or appeal on an enumerated 

ground or a statutory provision that is limited to the same 

grounds. Id. at 464. We stated that this approach was 

consistent “with the plain language of the PLRA’s three strikes 

provision, which refers to dismissals of an ‘action or 

appeal,’ 28 U.S.C. § 1915(g), rather than the dismissal of 
16

individual claims.” Id. Our holding in Ball, accordingly, 

requires us to reject the holdings of Pointer and Thomas as well 

as Appellees’ position that a mixed dismissal should constitute 

a strike. 

Further undermining Appellees’ reliance on Pointer and 

Thomas is the weight of authority from our sister Circuit 

Courts of Appeals suggesting that the holdings in Pointer and 

Thomas are outliers. The D.C. Circuit and the Ninth Circuit 

have answered the question before us and both held that mixed 

dismissals are not strikes. Fourstar, 875 F.3d at 1150–51 

(“Does a case count as a strike when a district court dismisses 

a prisoner’s federal claims for failure to state a claim, or as 

frivolous or malicious, but declines to exercise supplemental 

jurisdiction over the prisoner’s state-law claims? The answer 

is no.”); Harris, 935 F.3d at 674 (“We follow the D.C. Circuit 

and hold that a dismissal due to the district court’s decision not 

to exercise supplemental jurisdiction over state-law claims 

does not qualify the case as a strike under the PLRA.”). 

The Seventh, Fourth, Fifth, and Second Circuits have 

confronted similar questions of whether a strike can be called 

when some of a prisoner’s claims are dismissed for reasons 

enumerated in § 1915(g) and other claims are dismissed for 

reasons not identified in the statute, and each of those courts 

held that such a dismissal was not a strike. See Turley, 625 

F.3d at 1012 (“Our holding today clarifies that a strike is 

incurred under § 1915(g) when an inmate’s case is dismissed 

in its entirety based on the grounds listed in § 1915(g).”); 

Tolbert, 635 F.3d at 651 (concluding that an “‘action’ in 

§ 1915(g) unambiguously means an entire case or suit[,]” and 

“[t]herefore, § 1915(g) requires that a prisoner’s entire ‘action 

or appeal’ be dismissed on enumerated grounds in order to 

count as a strike.”); Brown, 857 F.3d at 291 (finding that a prior 
17

dismissal was not a strike because some of the prisoner’s 

claims were dismissed for failing to state a claim while others 

were dismissed pursuant to Federal Rule of Civil Procedure 56 

because of a lack of evidentiary support); Escalera, 938 F.3d 

at 382 (“We therefore hold, consistent with our sister circuits 

and the plain language of § 1915(g), that a prisoner’s entire 

‘action or appeal’ must be dismissed on a § 1915(g) ground to 

count as a strike under the PLRA. Accordingly, mixed 

dismissals are not strikes under the PLRA.”). 

Given the clarity of the language of § 1915(g) regarding 

when a court can call a strike and our ability to apply the plain 

meaning of that language to the instant appeal, we need not, as 

Appellees suggest, resort to considerations of statutory purpose 

and legislative history to resolve the question before us. See 

Byrd, 715 F.3d at 123 (“Statutory purpose and legislative 

history may be referenced only if the statutory language is 

without a plain meaning, i.e., if the statutory language is 

ambiguous.”). But if we were to do so, our holding would be 

guided by the canon of expressio unius est exclusio alterius

(the inclusion of one is the exclusion of others). See N.L.R.B. 

v. SW Gen., Inc., 137 S. Ct. 929, 940 (2017). This canon 

suggests that by expressly including three grounds for calling 

a strike in § 1915(g), Congress intend to exclude all other 

grounds as a basis for calling a strike. 

This interpretation of the statute is bolstered by the fact 

that when Congress updated § 1915 to include what is now 

subsection (g), it also added subsection (e)(2), which provides 

that a “court shall dismiss the case at any time if the court 

determines that . . . the action or appeal (i) is frivolous or 

malicious; (ii) fails to state a claim on which relief may be 

granted; or (iii) seeks monetary relief against a defendant who 

is immune from such relief.” Prison Litigation Reform Act of 
18

1995, Pub. L. No. 104-34, § 804, 110 Stat. 1321–73, 74 (1996). 

Because the four grounds for a sua sponte dismissal under 

§ 1915(e)(2) include the same three grounds for calling a 

strike, by negative implication, we could infer that Congress 

intended the three enumerated grounds in § 1915(g) to be the 

exclusive grounds for calling a strike. SW Gen., Inc., 137 S. 

Ct. at 940 (“The force of any negative implication, however, 

depends on context. The expressio unius canon applies only 

when circumstances support a sensible inference that the term 

left out must have been meant to be excluded.”); see also Ball, 

726 F.3d at 460 (“But, like failure to exhaust, immunity is not 

one of the enumerated grounds for a strike under § 1915(g), 

which indicates that Congress did not intend for dismissal on 

immunity grounds to count as a strike.”).

We disagree with Appellees’ view that holding that a 

mixed dismissal is not grounds for a strike would produce an 

absurd result or one at odds with Congress’s intent. The 

language of Section 1915(g) is clear and identifies the grounds 

for calling a strike—a mixed dismissal is not included among 

those grounds. 

* * *

We end where we began, with the text of the statute. 

Section 1915(g) provides that a strike accrues when an “action 

or appeal . . . was dismissed on the grounds that it is frivolous, 

malicious, or fails to state a claim upon which relief may be 

granted[.]” As we stated in Byrd, a strike accrues only if the 

“entire action or appeal is dismissed explicitly” for one or 

more of those three grounds or “dismissed pursuant to a 

statutory provision or rule that is limited solely to dismissals 

for such reasons, including (but not necessarily limited to) 28 

U.S.C. §§ 1915A(b)(1), 1915(e)(2)(B)(i), 1915(e)(2)(B)(ii), or 
19

Rule 12(b)(6) of the Federal Rules of Civil Procedure.” Byrd,

715 F.3d at 126 (emphasis added). We, accordingly, hold that

a mixed dismissal is not grounds to call a strike. 

Given our holding, we conclude that § 1915(g) does not 

bar Talley from proceeding IFP in the instant appeal. The cases 

that Appellees identify as strikes—Varner I, Talley v. 

Mazzocca, and the District Court’s dismissal in the instant 

matter—are mixed dismissals and not strikes.5 We will now 

address the merits of Talley’s appeal. 

B. Talley’s Appeal

The District Court found that Talley’s claims related to 

the alleged false and fraudulent nature of the Settlement 

Agreement were subject to dismissal because Davis had 

entered a permissible appearance on behalf of Worstell by 

signing and filing the answer. The District Court also found 

that Talley’s RICO and constitutional claims were meritless 

because the Settlement Agreement was never actually filed on 

the docket. Because the District Court found that Talley’s 

federal claims were meritless and amendment would be futile, 

it denied Talley leave to amend. The District Court declined 

5 Varner II, a summary affirmance of a mixed dismissal, is also 

not a strike. See Ball, 726 F.3d at 464 (stating that the 

affirmance of a dismissal is not a strike because “[u]nder the 

plain language of the statute, only a dismissal may count as a 

strike, not the affirmance of an earlier decision to dismiss.” 

(quoting Jennings v. Natrona Cnty. Det. Center Med. Facility, 

175 F.3d 775, 780 (10th Cir.1999))). 
20

to exercise supplemental jurisdiction over Talley’s state law 

claims, dismissing them without prejudice.

On appeal, Talley presents several overlapping 

arguments that address two primary issues: (1) whether the 

District Court abused its discretion when denying his motion 

to amend and (2) whether the District Court abused its 

discretion by declining to exercise supplemental jurisdiction 

over his state law claims. We address each issue in turn. 

First, Talley contends that the District Court should 

have granted him leave to amend his complaint because the 

factual and legal basis of some of his claims had changed.6 

Specifically, he argues that his proposed Amended Complaint 

6 We “review a district court’s decision not to grant leave to 

amend for abuse of discretion.” Dooley v. Wetzel, 957 F.3d 

366, 376 (3d Cir. 2020). Federal Rule of Civil Procedure 

15(a)(2) provides that a district court should “freely give leave 

[to amend] when justice so requires.” Despite this “liberal 

standard,” “leave to amend may be denied when there is ‘undue 

delay, bad faith, dilatory motive, prejudice, and futility.’” 

Spartan Concrete Prod., LLC v. Argos USVI, Corp., 929 F.3d 

107, 115 (3d Cir. 2019) (quoting Shane v. Fauver, 213 F.3d 

113, 115 (3d Cir. 2000)). Amendment would be futile when 

“the complaint, as amended, would fail to state a claim upon 

which relief could be granted.” Shane, 213 F.3d at 115. When 

“assessing ‘futility,’ the District Court applies the same 

standard of legal sufficiency as applies under Rule 12(b)(6).” 

Id. Thus, when “a claim is vulnerable to dismissal under Rule 

12(b)(6), but the plaintiff moves to amend,” as occurred here, 

“leave to amend generally must be granted unless the 

amendment would not cure the deficiency.” Id. 
21

(“PAC”) would have addressed his deficient allegations 

regarding Davis’s failing to enter an appearance and thereby

depriving the District Court of personal jurisdiction over 

Worstell. In the PAC, Talley “clarified that it was in fact 

Attorneys Rogers, Davis, and Defendant Worstell’s failure to 

return a waiver of service of summons that divested the District 

Court of authority over Defendant Worstell’s person . . . and 

undermined the District Court’s ability to enter judgment 

against—or, as here, in favor of—Defendant Worstell.” 

Appellant’s Br. 6–7. 

Neither the District Court nor the Magistrate Judge 

addressed Talley’s new allegations regarding the failure to 

return a waiver of service of summons when addressing

whether to grant Talley leave to amend. Nevertheless, the 

Magistrate Judge addressed the substance of this issue because 

Talley raised it as an argument in opposition to Appellees’ 

Motion to Dismiss. See J.A. 27–28 n.9. The Magistrate Judge 

concluded that Talley’s argument was unpersuasive because 

the defendants in Talley II waived any challenge to service and 

personal jurisdiction when they filed an answer in that matter. 

Id.

We agree with the Magistrate Judge and conclude that 

Talley’s new allegations do not cure the deficiencies of his 

complaint. Simply put, Talley’s new allegations do not alter 

the conclusion that by filing an answer to Talley’s complaint 

the defendants in Talley II, including Worstell, could no longer 

raise a challenge to the district court’s personal jurisdiction 

over them. See Fed. R. Civ. P. 12(h) (stating that certain 

defenses, including “lack of personal jurisdiction” are waived 

if not raised in a motion made under Rule 12 or by failing to 

include it in a responsive pleading, such as an answer); see also 

In re Asbestos Prod. Liab. Litig. (No. VI), 921 F.3d 98, 105 (3d 
22

Cir. 2019) (“Precedent of the Supreme Court and this Court 

further holds that the right to assert a personal jurisdiction 

defense can be affirmatively and implicitly waived through 

conduct.”). While Talley also argues that the District Court 

clearly erred when finding that amendment of his complaint 

would have been futile, this argument is based on the Talley II

court’s alleged lack of personal jurisdiction over Worstell and 

fails for the reason just discussed. We, accordingly, find that 

the District Court did not abuse its discretion when denying 

Talley leave to amend. 

Second, Talley argues that the District Court’s dismissal 

of his claims was based on the “faulty” premise that the 

Settlement Agreement was not actually filed in the District 

Court for the Middle District of Pennsylvania.

7

 Appellant’s Br. 

13. Talley is incorrect. 

7 We exercise plenary review over a district court’s grant of a 

motion to dismiss pursuant to Federal Rule of Civil Procedure 

12(b)(6). St. Luke’s Health Network, Inc. v. Lancaster Gen. 

Hosp., 967 F.3d 295, 299 (3d Cir. 2020). “[I]n deciding a 

motion to dismiss, all well-pleaded allegations of the complaint 

must be taken as true and interpreted in the light most favorable 

to the plaintiffs, and all inferences must be drawn in favor of 

them.” McTernan v. City of York, 577 F.3d 521, 526 (3d Cir. 

2009) (internal quotation marks and citation omitted). To 

withstand a Rule 12(b)(6) “motion to dismiss, a complaint 

must contain sufficient factual matter, accepted as true, to state 

a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 

556 U.S. 662, 678 (2009) (internal quotation marks and 

citation omitted). When assessing the complaint, “we are 

mindful of our ‘obligation to liberally construe a pro se

litigant’s pleadings,’ particularly where the pro se litigant is 
23

As the District Court explained, the Settlement 

Agreement (as distinguished from the Motion to File Under 

Seal, which the Settlement Agreement accompanied) was not

filed on the publicly available docket. Rather as a “document 

pending sealing decision,” the Settlement Agreement was 

“submitted to the Clerk with a motion to file the document 

under seal,” and “is kept separate from other documents and is 

not made available for inspection by any person except as 

permitted by order of the court.” LCrR 49(b)(2); J.A. 13. 

While we are required to accept the allegations in 

Talley’s complaint “as true, ‘we are not compelled to accept 

unsupported conclusions and unwarranted inferences, or a 

legal conclusion couched as a factual allegation.’” Morrow v. 

Balaski, 719 F.3d 160, 165 (3d Cir. 2013), as amended (June 

14, 2013) (en banc) (quoting Baraka v. McGreevey, 481 F.3d 

187, 195 (3d Cir. 2007)). Talley asks us to infer that by filing 

the Motion to File Under Seal with the Settlement Agreement 

as an exhibit, Enerson filed the Settlement Agreement. This 

inference is unwarranted, and we will not draw it in Talley’s 

favor in light of the fact that the Settlement Agreement was not 

filed and remains unavailable on the public docket. We, 

therefore, will affirm the District Court’s dismissal of Talley’s 

claims to the extent they are predicated on the filing of the 

Settlement Agreement. 

Third, Talley contends that the Magistrate Judge and the 

District Court failed to address his allegations regarding the 

disclosure of the Settlement Agreement to Cassidy Neal, an 

imprisoned.” Dooley, 957 F.3d at 374 (citation omitted) 

(quoting Higgs v. Att’y Gen., 655 F.3d 333, 339 (3d Cir. 

2011)). 
24

attorney representing a defendant in Talley II and other actions 

Talley has brought. Talley avers that the District Court’s 

failure to consider whether “the mailing of a true and correct 

copy of” the Settlement Agreement was a breach of a clause of 

the Settlement Agreement and warrants reversal and remand. 

Talley is correct that the District Court and Magistrate 

Judge failed to address his allegations regarding the alleged 

disclosure of the Settlement Agreement to Neal. We, 

nevertheless, will affirm the District Court’s dismissal based 

on our own review of the pleadings. Hughes v. Long, 242 F.3d 

121, 123 n.1 (3d Cir. 2001) (“We may affirm a District Court’s 

judgment on grounds other than those considered by the 

District Court itself.”). Talley does not allege that the 

disclosure of the Settlement Agreement to Neal supports any 

of his federal claims. See Compl. ¶¶ 46–55; PAC ¶¶ 41–53. In 

fact, he only references the disclosure of the Settlement 

Agreement in support of his state law breach of contract claim 

in the Complaint and in support of the breach of contract and 

promissory estoppel claims in the PAC. See Compl. ¶ 56; PAC 

¶¶ 55, 58. Because we, as discussed below, affirm the District 

Court’s dismissal of Talley’s state law claims, we also affirm 

the District Court’s dismissal of Talley’s breach of contract 

claim to the extent it arises out of the alleged disclosure of the 

Settlement Agreement to Neal. 

Fourth, Talley raises several arguments regarding how 

the elements of each of his federal claims, as pled in the PAC, 

are satisfied. But the District Court and Magistrate Judge never 

considered whether the elements of Talley’s federal claims 

were satisfied because “the gravamen of his pleading 

effectively remains unchanged” between the Complaint and 

the PAC. J.A. 35. The Magistrate Judge concluded that the 

claims asserted in the PAC rested “on the fatal propositions 
25

that . . . Worstell did not have an entry of appearance, or waiver 

of service form, filed on his behalf when Talley executed the 

Agreement, and that . . . Enerson attached the [Settlement] 

Agreement to his motion to file under seal.” J.A. 35. 

We agree with the Magistrate Judge’s assessment of the 

PAC and agree that the PAC “fails to otherwise allege any 

additional, well-pled facts that would give rise to a plausible 

legal claim against the [Appellees].” J.A. 35. Accordingly, we 

will affirm the District Court’s denial of Talley’s Motion to 

Amend. 

Fifth, Talley states that we should reverse and remand 

the District Court’s order with instructions for the District 

Court to exercise supplemental jurisdiction over his state law 

claims.8 The basis of this request is Talley’s view that his only 

obligation under the Settlement Agreement was to allow the 

complaints in Talley I and Talley II to be dismissed and that if 

he successfully prosecuted his breach of contract claim, to 

secure relief from that obligation, the District Court would 

have had to reopen Talley I and Talley II. Talley contends that 

if he is not allowed to pursue his state law claims, he will be 

deprived of “constitutionally adequate ‘process’” because no 

state court could compel a federal court to reopen a closed or 

dismissed case. Appellant’s Br. 19.

Talley’s argument fails because Talley’s prayer for 

relief in the Complaint and the PAC did not request that the

8 We review a district court’s decision not to exercise 

supplemental jurisdiction over state law claims for abuse of 

discretion. Maher Terminals, LLC v. Port Auth. of N.Y. & N.J., 

805 F.3d 98, 104 (3d Cir. 2015)
26

District Court reopen Talley I and Talley II. Compl. ¶¶ 64–77; 

PAC ¶¶ 60–77. Talley, instead, only requested an injunction 

voiding the Settlement Agreement. Compl. ¶ 73; PAC ¶ 62. 

Also, if Talley seeks to reopen Talley I and Talley II, he bears 

the burden of seeking relief from the relevant orders or 

judgments in those cases. See Fed. R. Civ. P. 60(b) (providing 

that a “court may relieve a party or its legal representative from 

a final judgment, order, or proceeding for” enumerated 

reasons). The point being that if Talley were to successfully 

prosecute his state law claims, without regard to whether he 

does so in a federal court or a state court, he must take

additional actions in his prior suits if he seeks relief from the 

judgments in those matters. As a result, Talley is incorrect, and 

the District Court did not need to exercise supplemental 

jurisdiction over his state law claims due to the possibility that 

he would prevail on those claims. The District Court, 

therefore, did not abuse its discretion when declining to 

exercise supplemental jurisdiction over Talley’s state law 

claims. 

IV. Conclusion

For the reasons set forth above, we will grant Talley’s 

motion to proceed IFP and affirm the District Court’s order.