                                         PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                   ______

                     No. 11-1744
                       ______

                 HADDRICK BYRD,
                            Appellant

                          v.

 ROBERT SHANNON, Superintendent SCI-Frackville;
      V. STANISHEFSKI, Corrections Health
        Care Administrator SCI-Frackville;
 JACK ROBINSON, Supervising Nurse SCI-Frackville;
       H. SPENCER, Nurse SCI-Frackville;
               DORINA VARNER,
      Chief Grievance Officer, Camp Hill, PA
                     ______

    On Appeal from the United States District Court
        for the Middle District of Pennsylvania
               (D.C. No. 1-09-cv-01551)
     District Judge: Honorable Sylvia H. Rambo
                       ______

              Argued October 3, 2012
Before: FUENTES, FISHER and COWEN, Circuit Judges.

               (Filed: March 11, 2013)
Haddrick Byrd
Frackville SCI
1111 Altamont Boulevard
Frackville, PA 17931
      Pro Se Appellant

Richard H. Frankel, Esq.
Drexel University
Earle Mack School of Law
3320 Market Street
Philadelphia, PA 19104

Alexandra Scanlon (ARGUED)
Drexel University
Earle Mack School of Law
L324
3320 Market Street
Philadelphia, PA 19104

Rebecca Trela (ARGUED)
Drexel University
Earle Mack School of Law
L324
3320 Market Street
Philadelphia, PA 19104
      Amicus Appellant / Court
      Appointed Amicus Curiae




                           2
Raymond W. Dorian, Esq. (ARGUED)
Pennsylvania Department of Corrections
Office of Chief Counsel
1920 Technology Parkway
Mechanicsburg, PA 17050
       Counsel for Appellees

                           ______

                OPINION OF THE COURT
                        ______

FISHER, Circuit Judge.

       Haddrick Byrd, a prisoner at SCI-Frackville, filed a
pro se complaint under 42 U.S.C. § 1983 in the Middle
District of Pennsylvania alleging that various Pennsylvania
Department of Corrections (“DOC”) employees violated his
Eighth Amendment rights and were negligent under state law.
Byrd appeals the District Court‟s order granting summary
judgment to DOC employees V. Stanishefski, Jack Robinson,
and H. Spencer, and the District Court‟s refusal to reconsider
its order granting a motion to dismiss for DOC employees
Robert Shannon and Dorina Varner. Instead of paying a
docketing fee on appeal, Byrd filed a motion to proceed in
forma pauperis (“IFP”). For the reasons set forth below, we
will deny Byrd‟s request to proceed IFP.

                              I.

      At all times material to this appeal, Byrd was an
inmate at SCI-Frackville. Byrd‟s pro se complaint of August

                              3
13, 2009 named the following defendants: (1) Robert
Shannon, the Superintendent of SCI-Frackville; (2) V.
Stanishefski, the Corrections Health Care Administrator at
SCI-Frackville; (3) Jack Robinson, the Supervising Nurse at
SCI-Frackville; (4) H. Spencer, a nurse at SCI-Frackville; and
(5) Dorina Varner, the Chief Grievance Officer for the DOC.
Byrd specifically alleges that these DOC employees showed
deliberate indifference to his serious medical needs by failing
to provide him with prescription eye drops for his glaucoma,
thus depriving him of his Eighth Amendment rights and
committing negligence under state law.

       Byrd proceeded IFP in the District Court after his
application to do so was granted on September 9, 2009. The
District Court, on February 22, 2010, granted defendants‟
motion to dismiss in part, dismissing Shannon and Varner.
On February 28, 2011, the District Court granted the
remaining defendants‟ motion for summary judgment.

        On April 5, 2011, Byrd filed a motion to proceed IFP
on appeal. That same day, the Clerk‟s Office notified Byrd
that he had “three strikes” under 28 U.S.C. § 1915(g) and had
to file a motion showing that he was in imminent danger of
serious physical injury in order to be eligible for IFP status.
Byrd‟s three potential strikes included two cases that were
clearly dismissed for failure to state a claim: (1) Byrd v.
Parris, No. 99-cv-00769 (E.D. Pa. Oct. 15, 1999) and
(2) Byrd v. City of Philadelphia, No. 06-cv-01957 (E.D. Pa.
Aug. 10, 2006). The other potential strike, Byrd v. Gillis,
C.A. No. 01-3868 (3d Cir. July 30, 2002), was an appeal that
was dismissed by this Court under 28 U.S.C. § 1915(e)(2)(B)
because it was “without merit.”          In response to the

                              4
notification by the Clerk‟s Office, Byrd did not file a motion
alleging imminent danger; instead, he submitted a response
on April 19, 2011, arguing that the Clerk‟s Office made a
mistake in determining that he had three strikes. Byrd noted
that, although he brought two prior actions that were
dismissed for failure to state a claim, he did not proceed IFP
in those actions.

       In the January 12, 2012 order appointing amicus
curiae, this Court instructed amicus to address whether
dismissals of non-IFP actions and appeals can count as strikes
under § 1915(g), or whether only IFP actions and appeals can
count as strikes. The Court also stated that “[a]micus counsel
may wish to address the relevance, if any, of the fact that 28
U.S.C. section 1915(e) and section 1915(g) use similar
phrasing . . . that varies slightly from the language of Fed. R.
Civ. P. 12(b)(6).”

       On February 28, 2012, amicus requested to expand the
scope of its appointment. Specifically, amicus sought leave
to address whether this Court‟s dismissal of one of Byrd‟s
previous cases, Byrd v. Gillis, C.A. No. 01-3868 (3d Cir. July
30, 2002), constituted a strike. On March 8, 2012, this Court
granted in part and denied in part amicus‟s motion to expand
the scope of its representation. The Court permitted amicus
to argue, with respect to Byrd v. Gillis, that “when an action is
dismissed for a reason that is unclear, that dismissal does not
count as a strike.”

                               II.



                               5
        We have jurisdiction of this matter as an appeal of a
final decision in the District Court. 28 U.S.C. § 1291. The
District Court did not address whether Byrd‟s eligibility for
IFP status was foreclosed by the three strikes provision of 28
U.S.C. § 1915(g). We now address this issue as a matter of
first impression.1

                             III.

                              A.

        In order to determine Byrd‟s IFP eligibility, we must
decide whether “strikes” under 28 U.S.C. § 1915(g) can be
accrued in actions or appeals where the prisoner has prepaid
the filing fee, or whether “strikes” can only be accrued in IFP
actions or appeals. Section 1915(g), enacted as a part of the
Prison Litigation Reform Act of 1996 (“PLRA”), states:

       1
          Because we hold that Byrd is not entitled to IFP
status due to the three strikes provision of 28 U.S.C.
§ 1915(g), and Byrd has not paid the docketing fee, we do not
reach the merits of Byrd‟s appeal. See Hafed v. Fed. Bureau
of Prisons, 635 F.3d 1172, 1176 (10th Cir. 2011) (“The „three
strikes‟ provision of the [IFP] statute applicable to indigent
prisoners requires so-called „frequent filer‟ prisoners to
prepay the entire filing fee before federal courts may consider
their civil actions and appeals.”). If Byrd pays the docketing
fee within 14 days of the issuance of the order in this case,
see 3d Cir. L.A.R. 3.3, L.A.R. Misc. 107.1, the appeal shall
be returned to this panel for further consideration of the
merits.


                              6
      “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 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.”

       Three of our sister courts of appeals have held that
strikes may be accrued in actions or appeals regardless of
whether the prisoner has prepaid the filing fee or is
proceeding IFP. See Burghart v. Corr. Corp. of Am., 350
Fed. App‟x 278, 279 (10th Cir. 2009); Hyland v. Clinton, 3
Fed. App‟x 478, 479 (6th Cir. 2001); Duvall v. Miller, 122




                              7
F.3d 489, 490 (7th Cir. 1997). No court of appeals has held
that strikes may only be accrued in IFP actions or appeals.2

       This situation presents an issue of statutory
interpretation. Our task is to give effect to the will of
Congress, and where Congress‟s will has been expressed in
language that has a reasonably plain meaning, that language
must ordinarily be regarded as conclusive. Negonsott v.
Samuels, 507 U.S. 99, 104 (1993); see also Caraco Pharm.
Labs., LTD v. Novo Nordisk, 132 S. Ct. 1670, 1680 (2012)
(“We begin where all such inquiries must begin: with the
language of the statute itself.”). If the language of the statute
has a reasonably plain meaning, then our sole function is to
       2
          This Court, in appointing amicus, expressed its
understanding that there was a circuit split on this issue
because the U.S. Court of Appeals for the Tenth Circuit had
implied that only IFP actions or appeals could be counted as
strikes under § 1915(g). See Jennings v. Natrona Cnty. Det.
Ctr. Med. Facility, 15 F.3d 775, 780-81 (10th Cir. 1999)
(listing only dismissals under § 1915(e)(2)(B), a provision
that only applies to IFP actions or appeals, as the types of
dismissals that count as strikes). Amicus, in a commendable
act of candor, brought to our attention the fact that the Tenth
Circuit, in subsequent cases, rejected the argument that
§ 1915(g) strikes could only be accrued in IFP actions or
appeals. See Hafed, 635 F.3d at 1177 (holding that dismissals
under § 1915A, a provision that is not limited to IFP actions
or appeals, can count as strikes); Burghart v. Corr. Corp. of
Am., 350 Fed. App‟x 278, 279 (10th Cir. 2009) (explicitly
holding that non-IFP actions or appeals can count as strikes).


                               8
enforce the statute‟s language. United States v. Ron Pair
Enters., Inc., 489 U.S. 235, 241 (1989).

       In determining whether the language of a particular
statutory provision has a plain meaning, the language shall be
considered in the context of the entire statute. Robinson v.
Shell Oil Co., 519 U.S. 337, 341 (1997) (stating that statutory
interpretation focuses on “the language itself, the specific
context in which that language is used, and the broader
context of the statute as a whole”); see also Abdul-Akbar v.
McKelvie, 239 F.3d 307, 314 (3d Cir. 2001) (en banc)
(interpreting one particular section of the PLRA, 28 U.S.C.
§ 1915(g), in the context of the PLRA as a whole). The plain
meaning of statutory language is not conclusive only when
“the literal application of a statute will produce a result
demonstrably at odds with the intentions of the drafters.” Ron
Pair Enters., 489 U.S. at 242.

       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. In re
Phila. Newspapers, LLC, 599 F.3d 298, 304 (3d Cir. 2010).
Statutory language is ambiguous only where it is “reasonably
susceptible of different interpretations.” Id. (quoting Nat’l
R.R. Passenger Corp. v. Atchinson Topeka & Santa Fe Ry.
Co., 470 U.S. 451, 473 n.27 (1985)).

       Here, 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 non-IFP
actions or appeals. The three strikes provision, § 1915(g),
does not make an explicit exception for previous actions or

                              9
appeals where the prisoner was not granted IFP status. See
Burghart, 350 Fed. App‟x at 279 (“[Plaintiff] argues that
Congress did not intend § 1915(g) to apply to prisoners who
had not filed their earlier cases IFP. However, § 1915(g)
makes no distinction.”); Hyland, 3 Fed. App‟x at 479
(“[Section] 1915(g) does not distinguish between prior in
forma pauperis actions and prior actions in which the fee was
paid.”); Duvall, 122 F.3d at 490 (“[Section 1915(g)] does not
say, „brought an action or appeal in forma pauperis,‟ or
„brought an action or appeal under this section.‟”).

       We acknowledge that this Court, in Santana v. United
States, found the phrase “civil actions” in another part of the
PLRA to “lack a plain meaning.” 98 F.3d 752, 755 (3d Cir.
1996) (interpreting 28 U.S.C. § 1915(b) and holding that the
filing fee requirements of the PLRA with regard to “civil
actions” did not apply to IFP habeas corpus petitions and
appeals). This Court‟s analysis in Santana, however, focused
on the unique nature of habeas corpus actions. Id. at 754. In
contrast to habeas corpus actions, standard non-IFP actions
are not, “in effect, hybrid actions whose nature is not
adequately captured by the phrase „civil action.‟” Id. Thus,
Santana does not compel a conclusion that the phrase “an
action or appeal” in § 1915(g) lacks a plain meaning.

       The same can be said for Grayson v. Mayview State
Hospital, wherein this Court stated that § 1915(e)(2)(B),
which uses language that closely tracks the three strikes
provision of § 1915(g), is limited to IFP actions or appeals.
293 F.3d 103, 109 n.10 (3d Cir. 2002) (“Although the
language of § 1915(e)(2) does not expressly limit the
provision‟s reach to in forma pauperis claims, we believe

                              10
Congress intended it to be so limited.”). We do not find
Grayson to be controlling. First, the finding in Grayson –
that § 1915(e)(2) applies only to IFP actions or appeals – is
dicta; it was not necessary to the Court‟s holding, which was
that the district court was required to grant leave to amend
before dismissing a pro se inmate‟s action for failure to state a
claim. Id. at 114. Second, the Grayson Court based its
finding in part on the fact that any alternative interpretation of
§ 1915(e)(2)(B) would render similar provisions of the PLRA
superfluous. Id. at 109 n.10 (citing Benson v. O’Brian, 179
F.3d 1014, 1017 (6th Cir. 1999) (“[I]f all actions, whether
pursued in forma pauperis or not, are to be screened by the
district court pursuant to § 1915(e)(2), the specific prisoner
complaint screening provision, § 1915A, would be rendered
largely superfluous.”)). In contrast to § 1915(e)(2)(B), if
§ 1915(g) were interpreted to encompass non-IFP actions and
appeals, no other provision of the PLRA, including § 1915A,
would be rendered superfluous.

       Finally, we acknowledge amicus‟s argument that the
language difference between § 1915(g) and Rule 12(b)(6) of
the Federal Rules of Civil Procedure is instructive as to the
meaning of “an action or appeal.” Section 1915(g), just like
the IFP specific provision, § 1915(e)(2)(B), which was the
focus of Grayson, refers to an action that “fails to state a
claim upon which relief may be granted,” while Rule 12(b)(6)
refers to an action that “fails to state a claim upon which
relief can be granted.” Amicus argues that this contrast
between “may” and “can” indicates that Congress used “may”
in § 1915(g) as a signal to reference § 1915(e) dismissals,
which occur only in IFP actions and appeals, as opposed to


                               11
Rule 12(b)(6) dismissals, which occur in both IFP and non-
IFP actions. Although this argument is of some persuasive
effect, it does not render the phrase “an action or appeal” to
be without a plain meaning. The bottom line remains that
Congress could have easily differentiated between IFP and
non-IFP actions or appeals in the language of § 1915(g), but it
did not. It is more rational to suppose that if Congress
intended to make an exception for non-IFP cases in
§ 1915(g), then it would have explicitly done so, rather than
merely using the word “may” instead of “can.”

       Thus, strikes may be accrued in actions or appeals
regardless of whether the prisoner has prepaid the filing fee or
is proceeding IFP, and Byrd‟s previous non-IFP actions,
which were dismissed for failure to state a claim, count as
strikes for purposes of § 1915(g). Because this literal
application of the statute will not likely increase the incidence
of frivolous suits from prisoners, it will not “produce a result
demonstrably at odds with the intentions of the drafters.” Ron
Pair Enters., 489 U.S. at 242.

                               B.

        Amicus, in support of Byrd, argues that even if non-
IFP actions and appeals can count as strikes, Byrd has only
two strikes, rather than three, because this Court‟s dismissal
of Byrd‟s appeal in Byrd v. Gillis, C.A. No. 01-3868 (3d Cir.
July 30, 2002) under § 1915(e)(2)(B) does not constitute a
strike. We disagree.

       In Byrd v. Gillis, Byrd brought suit in the Middle
District of Pennsylvania against prison officials in their

                               12
individual and official capacities for failing to investigate a
false misconduct report against him. No. 01-cv-0576, slip op.
at 1 (M.D. Pa. Sept. 21, 2001). As a result of the misconduct
report, Byrd was placed in the restrictive housing unit for 60
days. Id. at 5. Byrd alleged that he was “subjected to the
denial of due process, equal protection under the law, denial
of religious practices, retaliation, malfeasance, non-feasance,
and misfeasance.” Id. at 1. The Magistrate Judge3 granted
the defendants‟ motion for summary judgment and concluded
that, except for Byrd‟s due process claim regarding his
misconduct hearing, Byrd failed to exhaust his administrative
remedies. Id. at 6-12. In regard to Byrd‟s due process claim,
the Magistrate Judge held that Byrd‟s placement in the
restricted housing unit did not implicate a protected liberty
interest under Sandin v. Conner, 515 U.S. 472, 483-84
(1995). Id. at 14-16. Additionally, in regard to Byrd‟s
official capacity claims, the Magistrate Judge concluded that
the prison officials were immune from suit. Id. at 13-14.
Byrd‟s state law claims were held to be barred under the
Eleventh Amendment. Id.

       On appeal, this Court held that the Magistrate Judge
properly granted summary judgment. Byrd v. Gillis, C.A. No.
01-3868, slip op. at 4 (3d Cir. July 30, 2002). The Court
explicitly agreed that Byrd failed to exhaust his
administrative remedies, that the alleged conduct did not
implicate a protected liberty interest, and that the Eleventh


      3
        The parties consented to proceed before a Magistrate
Judge pursuant to 28 U.S.C. § 636(c).


                              13
Amendment barred Byrd‟s state law claims.4 Id. at 3-4. The
Court ultimately dismissed the entire appeal under
§ 1915(e)(2)(B) because it was “without merit.” Id. at 4.

      Section 1915(e)(2)(B) provides:

      “[T]he 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.”

The consideration of whether a dismissal under
§ 1915(e)(2)(B) should count as a strike under § 1915(g)
sometimes requires an examination of the § 1915(e)(2)(B)
dismissal. This is because § 1915(e)(2)(B) includes a ground
for dismissal – defendant‟s immunity from suit – that does
not qualify as a strike under § 1915(g), which involves
dismissals for actions or appeals that are “frivolous,
malicious, or fail[] to state a claim upon which relief may be
granted.”

       We decline to adopt a categorical rule that courts, in
dismissing actions and appeals under § 1915(e)(2)(B), must
precisely indicate that the action or appeal is “frivolous or

      4
          The Court did not expressly indicate its agreement
with the Magistrate Judge that the defendants were immune
from suit with regard to Byrd‟s claims against them in their
official capacities.


                               14
malicious” or “fails to state a claim on which relief may be
granted” in order for the dismissal to count as a strike under
§ 1915(g). Instead, we adopt a position similar to that of the
U.S. Court of Appeals for the Tenth Circuit and clarify that
when a court dismisses an action or appeal under
§ 1915(e)(2)(B), without more specificity, our determination
of whether the dismissal constitutes a strike is “not formalistic
or mechanical; rather, we must consider the nature of the
dismissal and . . . whether the dismissal fits within the




                               15
language of § 1915(g).”5 Hafed v. Fed. Bureau of Prisons,
635 F.3d 1172, 1178 (10th Cir. 2011).6

       Our dissenting colleague emphasizes that strikes
should not accrue for “mixed dismissals,” i.e., those
dismissals that are based in part on a § 1915(g) ground, and in
part on other grounds. We agree. In applying this case-

      5
          In adopting this position, we do not condone a
reviewing court holding that a previous dismissal constitutes
a strike under § 1915(g) merely because frivolousness is
suspected or the phrase “without merit” was used in the
dismissal.       Instead, a case-specific, non-mechanical
examination of the dismissal – which could lead to a strike
being accrued where the dismissing court did not precisely
indicate that the action or appeal was frivolous, malicious, or
failed to state a claim – is warranted only when the action or
appeal was dismissed generally under a PLRA provision,
such as § 1915(e)(2)(B), without more specificity, as was the
case in Byrd v. Gillis.
      6
         The Hafed case is instructive. There, a district court
ambiguously dismissed a prisoner‟s complaint under 28
U.S.C. § 1915A(b) without clearly indicating whether it was
relying on § 1915A(b)(1) for frivolousness, or § 1915A(b)(2)
for suing an immune defendant. The Court of Appeals
determined that even though the district court mentioned the
defendant‟s immunity, “the immunity ground for dismissal
was subsumed in frivolousness.” The Court thus counted the
dismissal as a strike for purposes of § 1915(g). Hafed, 635
F.3d at 1178.


                              16
specific, non-mechanical approach, we consider the nature of
the § 1915(e)(2)(B) dismissal and determine whether the
entire dismissal fits within the language of § 1915(g). See
Tolbert v. Stevenson, 635 F.3d 646, 651-52 (4th Cir. 2011)
(“[Section] 1915(g) requires that a prisoner‟s entire „action or
appeal‟ be dismissed on enumerated grounds in order to count
as a strike”).

       In Byrd v. Gillis, in addition to affirming that Byrd
failed to exhaust his administrative remedies and failed to
identify a protected liberty interest, the Court agreed with the
Magistrate Judge‟s conclusion that the Eleventh Amendment
barred Byrd‟s state law claims. The Court, however, did not
indicate that it was relying on § 1915(e)(2)(B)(iii)
(concerning immunity) to dismiss any part of the appeal.
Instead, in dismissing the appeal in its entirety, the Court
stated generally that it was relying on § 1915(e)(2)(B)
because the appeal was “without merit.” Consequently, we
must determine whether the dismissal of the appeal under
§ 1915(e)(2)(B) because it was “without merit” fits within the
language of § 1915(g).

       In making this determination, we reiterate that a
dismissal under § 1915(e)(2)(B) occurs because the action or
appeal (1) is frivolous or malicious; (2) fails to state a claim;
or (3) seeks monetary damages from a defendant who is
immune from suit. With regard to an appeal of summary
judgment, such as in Byrd v. Gillis, the reason for a dismissal
under § 1915(e)(2)(B) is necessarily limited to either the
appeal‟s frivolous or malicious nature or the defendant‟s
immunity from suit. For the following reasons, we believe
that the Court‟s dismissal of Byrd‟s appeal under

                               17
§ 1915(e)(2)(B) because it was “without merit” is
appropriately viewed as a dismissal for frivolousness, rather
than as a dismissal for suing an immune defendant.

        First, the Court dismissed the entire appeal as being
“without merit,” and a dismissal based on the appeal‟s
frivolous nature addresses the entire appeal, whereas a
dismissal based on the defendants‟ immunity addresses only
some of Byrd‟s claims; namely, his state law claims and his
claims against the defendants in their official capacities.
Second, the phrase “without merit” and similar variations are
often associated with the word “frivolous” in the context of
§ 1915. See Deutsch v. United States, 67 F.3d 1080, 1085 (3d
Cir. 1995) (finding that a prisoner‟s “claim based on an
indisputably meritless legal theory may be dismissed as
frivolous [under § 1915]”) (emphasis added). This is true in
other areas of our jurisprudence as well. For example, in
regard to damages for frivolous appeals under Rule 38 of the
Federal Rules of Appellate Procedure, we have held that “[a]n
appeal is frivolous if it is wholly without merit.” Quiroga v.
Hasbro, Inc., 943 F.2d 346, 347 (3d Cir. 1991) (emphasis
added); see also Hilmon Co. (V.I.) v. Hyatt Int’l, 899 F.2d
250, 251 (3d Cir. 1990) (“In this circuit an appeal is
considered frivolous when it is utterly without merit.”)
(emphasis added) (internal quotation marks omitted). Also,
in interpreting the Federal Revenue Code, we have held that a
civil penalty is warranted when “the taxpayer assert[s] a
position that is frivolous, i.e., meritless, from the perspective
of the tax laws.” Kahn v. United States, 753 F.2d 1208, 1214
(3d Cir. 1985) (emphasis added).



                               18
        Therefore, this Court‟s dismissal of the appeal in Byrd
v. Gillis under § 1915(e)(2)(B) because it was “without merit”
constitutes a strike for purposes of § 1915(g). Byrd has three
strikes and is ineligible for IFP status.

                             IV.

       For the foregoing reasons, we will deny Byrd‟s request
to proceed IFP in this appeal.7




      7
         We express gratitude to the director and students of
the Appellate Litigation Clinic at the Earle Mack School of
Law at Drexel University for an excellent presentation of the
issues as court-appointed amicus curiae.


                              19
FUENTES, Circuit Judge, concurring in part and dissenting
in part:

        As noted by the majority, under the “three strikes”
provision of 28 U.S.C. § 1915(g), once a prisoner has, on
three occasions, “brought an action or appeal . . . that was
dismissed on the grounds that it is frivolous, malicious, or
fails to state a claim upon which relief may be granted,” that
prisoner is barred from bringing any further civil actions
under the Prison Litigation Reform Act of 1996 (“PLRA”).
28 U.S.C. § 1915(g). In my view, the primary question in this
appeal is whether an action that is not explicitly dismissed for
being “frivolous, malicious, or fail[ing] to state a claim upon
which relief may be granted” can count as a strike under
§ 1915(g). The majority holds that it can. I respectfully
disagree.

        At issue is our dismissal of Byrd‟s appeal in Byrd v.
Gillis, which we dismissed as being “without merit . . .
pursuant to 28 U.S.C. § 1915(e)(2)(B).” C.A. No. 01-3868,
slip op. at 4 (3d Cir. July 30, 2002). I disagree with the
majority that this dismissal counts as Byrd‟s second strike.
Section 1915(e)(2)(B) of the PLRA provides that a court shall
dismiss an action or appeal at any time if it “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.” 28 U.S.C. § 1915(e)(2)(B). Thus, while the first two
prongs of § 1915(e)(2)(B) track the language of § 1915(g),
the third prong – defendant‟s immunity from suit – is not a
basis for a strike under § 1915(g).
       In dismissing Byrd‟s appeal in Gillis, we did not
specify which prong of § 1915(e)(2)(B) we relied on.
However, as the majority notes, “[w]ith regard to an appeal of
summary judgment, such as in Byrd v. Gillis, the reason for a
dismissal under § 1915(e)(2)(B) is necessarily limited to
either the appeal‟s frivolous or malicious nature or the
defendant‟s immunity from suit.” Majority Op. at 17. It is
undisputed that the Gillis court found that Byrd‟s state law
claims were foreclosed by the Eleventh Amendment because
the prison officials involved were immune from suit.
Furthermore, while it ultimately determined that Byrd‟s
appeal lacked merit, the Gillis court made no explicit finding
that the claims foreclosed by immunity were “frivolous,
malicious, or fail[ed] to state a claim upon which relief may
be granted.”

        As the Seventh Circuit has noted, “we cannot read into
[a court‟s] decision a ground for dismissal that [it] did not
state, and which would also substantially limit [the prisoner‟s]
ability to file a lawsuit.” Haury v. Lemmon, 656 F.3d 521,
523 (7th Cir. 2011). Because the dismissal in Gillis was not
explicitly and entirely based on grounds covered by
§ 1915(g), I would hold that the 2002 dismissal in Gillis does
not qualify as a strike. Accordingly, I respectfully dissent
with respect to Part III.B of the majority opinion.

        The weight of circuit authority indicates that “mixed
dismissals” – those based in part on a § 1915(g) strike
ground, and in part on other grounds – do not count as
strikes.1 In Thompson v. Drug Enforcement Administration,

1
 See Tolbert v. Stevenson, 635 F.3d 646, 647, 651-52 (4th
Cir. 2011); Haury v. Lemmon, 656 F.3d 521, 523 (7th Cir.




                               2
the D.C. Circuit held that “actions containing at least one
claim falling within none of the three strike categories . . . do
not count as strikes.” 492 F.3d 428, 432 (D.C. Cir. 2007).
The Thompson court reasoned that “[s]ection 1915(g) speaks
of dismissal of „actions and appeals,‟ not „claims.‟” Id.
Furthermore, in Tolbert v. Stevenson, 635 F.3d 646 (4th Cir.
2011), the Fourth Circuit concluded that, “consistent with the
view of the majority of circuits to consider the issue, [] the
plain language of § 1915(g) applies only to actions dismissed
entirely as frivolous, malicious, or for failing to state a
claim.” Id. at 647 (emphasis in original). See also Haury,
656 F.3d at 523 (“Because the district court . . . did not
dismiss the entirety of [the prisoner‟s] earlier case for one of
the three bases listed in § 1915(g), the district court erred in
part on grounds of immunity.”). In light of this authority, I
would agree with the view that, to count as a strike, a
dismissal must rest entirely on grounds set forth in § 1915(g).



2011); Thompson v. Drug Enforcement Admin., 492 F.3d 428,
432, 440 (D.C. Cir. 2007); see also Mayfield v. Texas Dep’t
of Criminal Justice, 529 F.3d 599, 617 (5th Cir. 2008)
(finding that prisoner did not incur a strike because some of
his claims should have survived through the summary
judgment stage); Powells v. Minnehaha Cnty. Sheriff Dep’t,
198 F.3d 711, 713 (8th Cir.1999) (“The reversal as to some of
Powells‟s claims in No. 98-4160 eliminates one of the „three
strikes‟ that was the basis for the District Court‟s dismissal of
the two later-filed cases.”). But see Pointer v. Wilkinson, 502
F.3d 369, 376 (6th Cir.2007) (“[W]here an entire complaint is
dismissed, in part for failure to exhaust and in part for one of
the grounds stated in § 1915(g), the dismissal should count as
a strike.”).




                               3
A dismissal based in part on grounds not stated in § 1915(g)
should not count as a strike.

       The majority agrees with this assessment, see Majority
Op. at 16, and acknowledges that the Gillis court did not
specify which prong of § 1915(e)(2)(B) it relied on in
dismissing Byrd‟s suit, id. at 17. However, it

       decline[s] to adopt a categorical rule that courts,
       in dismissing actions and appeals under
       § 1915(e)(2)(B), must precisely indicate that the
       action or appeal is “frivolous or malicious” or
       “fails to state a claim on which relief may be
       granted” in order for the dismissal to count as a
       strike under § 1915(g).

Id. at 14-15. Instead, it adopts a position similar to that of the
Tenth Circuit in Hafed v. Federal Bureau of Prisons, and
holds that,

       when a court dismisses an action or appeal
       under § 1915(e)(2)(B), without more
       specificity, our determination of whether the
       dismissal constitutes a strike is “not formalistic
       or mechanical; rather, we must consider the
       nature of the dismissal and . . . whether the
       dismissal fits within the language of § 1915(g).”

Id. at 15-16 (quoting Hafed v. Fed. Bureau of Prisons, 635
F.3d 1172, 1178 (10th Cir. 2011)).

       Applying this holding, the majority concludes that
Gillis does not constitute a “mixed dismissal” (in part of




                                4
grounds of immunity), but “is appropriately viewed as a
dismissal for frivolousness, rather than as a dismissal for
suing an immune defendant.” Id. at 18. In arriving at this
determination the majority reasons that,

       the [Gillis] Court dismissed the entire appeal as
       being “without merit,” and a dismissal based on
       the appeal‟s frivolous nature addresses the
       entire appeal, whereas a dismissal based on the
       defendants‟ immunity addresses only some of
       Byrd‟s claims; namely, his state law claims and
       his claims against the defendants in their
       official capacities.

Id. (emphasis in original). The majority appears to be
operating under the assumption that, because the Gillis court
dismissed Byrd‟s entire appeal under § 1915(e)(2)(B), it must
have dismissed each of the claims brought on appeal under
the same prong of § 1915(e)(2)(B). This is not necessarily so.

       Indeed, it is entirely possible that, in dismissing the
appeal as “without merit” under § 1915(e)(2)(B), the Gillis
court intended to dismiss Byrd‟s state law claims under
§ 1915(e)(2)(B)(iii) as foreclosed by immunity, and the rest
of his claims under § 1915(e)(2)(B)(i) as frivolous. The
majority‟s reliance on the fact that the Gillis court “did not
indicate that it was relying on § 1915(e)(2)(B)(iii)
(concerning immunity) to dismiss any part of the appeal,” id.
at 17, provides little evidence for its position. The Gillis
court also did not indicate that it was relying on
§ 1915(e)(2)(B)(i) (concerning frivolousness) in dismissing
the suit, which it could have – and presumably would have –
if it meant to dismiss the entire suit as frivolous. Instead, it




                               5
dismissed the appeal as “without merit” under
§ 1915(e)(2)(B), which encompasses dismissal on both
frivolousness grounds and immunity grounds.

       In recasting the dismissal in Gillis as one for
frivolousness so that it will fit within the language of
§ 1915(g), the majority contends that “the phrase „without
merit‟” is “often associated with the word „frivolous‟ in the
context of § 1915(g)” as well as “in other areas of our
jurisprudence.” Id. at 18. In my view, the majority
incorrectly equates the words “without merit” with the term
“frivolous.”2 While it is true that a “frivolous” action lacks
merit, it does not follow that an action that is “without merit”

2
  Notably, in each of the cases cited by the majority in support
of its position, the words “without merit” and similar
variations are preceded by a modifier, indicating that lack of
merit alone does not make an action “frivolous.” See Deutsch
v. United States, 67 F.3d 1080, 1085 (3d Cir. 1995) (“a claim
based on an indisputably meritless legal theory may be
dismissed as frivolous under [§ 1915]”) (emphasis added);
Quiroga v. Hasbro, Inc., 943 F.2d 346, 347 (3d Cir. 1991)
(“An appeal is frivolous if it is wholly without merit.”)
(emphasis added) (citation omitted); Hilmon Co. (V.I.), Inc. v.
Hyatt Int’l, 899 F.2d 250, 251 (3d Cir. 1990) (“In this circuit
an appeal is considered frivolous when it is utterly without
merit.”) (emphasis added) (internal quotation marks omitted);
Kahn v. United States, 753 F.2d 1208, 1214 (3d Cir. 1985)
(“the government argues that Emily Kahn‟s claim for a „war
tax refusal‟ credit was wholly without legal foundation and
therefore „frivolous‟ within the meaning of section
6702(a)(2)(A)” of the Internal Revenue Code) (emphasis
added). No such modifier was used in the Gillis opinion.




                               6
is necessarily “frivolous.” See, e.g., McCarthy v. Mayo, 827
F.2d 1310, 1318 (9th Cir. 1987) (“An appeal is frivolous
when the result is obvious and the arguments on appeal
wholly lack merit. An appeal that lacks merit is not
necessarily frivolous.” (citation omitted)). Indeed, courts
routinely use the words “without merit” to refer to arguments
advanced by litigants without meaning to say that the
argument is frivolous. The Supreme Court stressed this
distinction in Anders v. California, in which it found that a
California court‟s determination that a petitioner‟s appeal had
“no merit” explicitly did not constitute a “finding of
frivolity.” Anders, 386 U.S. 738, 743 (1967); see id. (“[The
court] failed . . . to say whether [Charles Anders‟ appeal] was
frivolous or not, but . . . simply found the petition to be
„without merit.‟”). See also Martin v. Knox, 502 U.S. 999,
999 (1991) (noting the distinction between “petitions that are
frivolous and those that are merely meritless”) (Stevens, J.
joined by Blackmun, J.) denying cert. to 945 F.2d 395 (Table)
(3d Cir. 1991). Thus, courts have drawn a clear legal
distinction between these terms that is acutely relevant in this
case.

        In any event, the fact that a panel of our Court is
divided as to the meaning of the Gillis court‟s dismissal
indicates the problem with treating it as a strike. Indeed, it is
precisely this sort of uncertainty over the meaning of a prior
court‟s dismissal of an action or appeal that we should seek to
avoid. The majority‟s holding will require reviewing courts
to weed through prior opinions to determine the precise
grounds for a dismissal, and to analyze the decision and
possibly even the pleadings from the underlying case in an
effort to divine what the original court‟s intention may have




                               7
been. Furthermore, it will invite parties to relitigate the issues
in those prior cases, arguing their level of merit.

        I believe that a more appropriate course would be to
conclude that, in order for a dismissal to be counted as a
strike, the decision must explicitly state that the action or
appeal was dismissed entirely for grounds covered by
§ 1915(g). This approach is supported by the D.C. Circuit‟s
reasoning in Thompson. There, the court faced the issue of
whether to treat a dismissal as a strike where no grounds were
given for the dismissal. After “weighing considerations of
fairness, convenience, and probability,” the court held that the
party challenging the in forma pauperis (“IFP”) motion bears
the burden of producing evidence capable of convincing the
court that a prior action or appeal was dismissed on one of
§ 1915(g)‟s enumerated grounds. Id. at 435 In so doing, the
court reasoned that:

       Courts and government agencies have both the
       incentive and experience to ensure that strikes
       are identified as such at the time of dismissal.
       Counting unexplained dismissals as non-strikes
       greatly increases the chance that courts will,
       where appropriate, take the relatively easy step
       of making clear that dismissals rest on section
       1915(g) grounds, if not to preserve their own
       resources, then because government defendants
       will remind them to do so.

Id. at 435; see also Snider v. Melindez, 199 F.3d 108, 115 (2d
Cir. 1999) (stating in dicta that, for the sake of efficiency, a
district court‟s “judgment should clearly state the reasons for
the dismissal, including whether the dismissal is because the




                                8
claim is „frivolous,‟ „malicious,‟ or „fails to state a claim,‟ . . .
or for other reasons”). The Seventh Circuit reached a similar
conclusion in Haury, in which it held that the district court‟s
dismissal for lack of jurisdiction did not qualify as a strike,
even if the district court may have also considered the action
frivolous. As noted earlier in this dissent, the Haury court
concluded, “we cannot read into [the court‟s] decision a
ground for dismissal that [it] did not state, and which would
also substantially limit [the prisoner‟s] ability to file a
lawsuit.” Haury, 656 F.3d at 523.

        Requiring that an action or appeal be explicitly
dismissed on grounds covered by § 1915(g) in order to count
as a strike has the added benefit of clearly informing
prisoners of their IFP status, a benefit that has been
acknowledged by our sister circuits. See, e.g., Paul v.
Marberry, 658 F.3d 702, 706 (7th Cir. 2011) (“[C]lassifying a
dismissal as a strike depends on the grounds given for it;
since most prisoners litigate their civil claims pro se, they
should not be required to speculate on the grounds the judge
could have or even should have based the dismissal on.”).
Furthermore, this holding is in accordance with the “driving
purpose of the PLRA [which] is to preserve the resources of
both the courts and the defendants in prisoner litigation.”
Thompson, 492 F.3d at 438.           That “purpose is best
accomplished by a bright-line rule that avoids the need to
relitigate past cases.” Id.




                                 9
       Accordingly, I respectfully dissent with respect to Part
III.B of the majority opinion.3




3
  I do not disagree with Part III.A of the majority opinion,
which holds that a strike may be accrued in actions or appeals
regardless of whether the prisoner proceeded IFP or not.




                              10
