Quintez Talley v. John E. Wetzel

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
______________
 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
______________

2
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.
Appellees1 contend 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.

3
 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.

4
 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

5
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.

6
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.).

7
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

8
 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

9
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 non-
IFP actions or appeals.” Id. at 123. We rejected the prisoner’s

10
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.

11
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

12
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

13
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 strike-
proof 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,

14
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

15
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

16
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

17
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

18
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))).

19
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.

20
(“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

21
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

22
 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)).

23
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

24
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)

25
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.

26