Quintez Talley v. PUSHKALAI PILLAI, Psychiatrist, SCI Greene

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 20-1013
____________
QUINTEZ TALLEY,
Appellant
v.
PUSHKALAI PILLAI, Psychiatrist, SCI Greene;
PA. DEPARTMENT OF CORRECTIONS; U/K MHM1;
JOHN E. WETZEL; CAPTAIN SHREDDER;
LT. MORRIS; U/K DEFENDANTS
____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 2-18-cv-1060)
District Judge: Honorable Cynthia R. Eddy
____________
Argued on May 20, 2024
Before: RESTREPO, FREEMAN, and MCKEE, Circuit
Judges
(Opinion filed: September 6, 2024)

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Quintez Talley
Camp Hill SCI
P.O. Box 8837
2500 Lisburn Road
Camp Hill, PA
Pro Se Appellant
Natasha R. Khan [Argued]
Regina Wang
Brian S. Wolfman
Alyssa Greenstein
Ender McDuff
Tae Min Kim
Andrea Ojeda
Tate Rosenblatt
Carly Sullivan
Georgetown University Law Center
Appellate Courts Immersion Clinic
600 New Jersey Avenue, Suite 312
Washington, D.C. 20001
Court-Appointed Amicus Curiae
Cassidy L. Neal [Argued]
Frank X. Petrini, III
Baum O’Connor Cullen Chmiel
912 Fort Duquesne Boulevard
Pittsburgh, PA 15222
Counsel for Appellee Pushkalai Pillai

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Michael J. Scarinci [Argued]
Office of the Attorney General of Pennsylvania
Strawberry Square, 15th Floor
Harrisburg, PA 17120
Daniel B. Mullen
Office of the Attorney General of Pennsylvania
1251 Waterfront Place, Mezzanine Level
Pittsburgh, PA 15222
Counsel for Appellees PA Department of Corrections,
John E. Wetzel, Captain Shredder, and
Lieutenant Morris
_______________
OPINION OF THE COURT
_______________
FREEMAN, Circuit Judge.
Appellant Quintez Talley seeks in forma pauperis (IFP)
status, which would enable him to proceed in this appeal
without prepaying his filing fees. Appellees contend that the
“three strikes” provision of the Prison Litigation Reform Act
(PLRA) bars Talley from proceeding IFP. Under that
provision, a prisoner accrues a “strike” when, on a “prior
occasion[],” the prisoner 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.” 28
U.S.C. § 1915(g). Appellees contend that decisions in three of
Talley’s cases constitute strikes that were in effect when he
filed his notice of appeal. As discussed below, only one of

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those decisions qualifies as a strike, so we will grant Talley’s
motion to proceed IFP.
I
Litigants who cannot afford to prepay the full cost of
court fees may move to proceed IFP. 28 U.S.C. § 1915(a)(1).
Incarcerated plaintiffs who proceed IFP must still pay the fees,
but they may do so in increments over the course of the
litigation. Id. § 1915(b). The PLRA, however, imposes special
restrictions on prisoners who seek IFP status. Under the
statute’s “three strikes” provision, a prisoner is prohibited from
proceeding IFP if, on three or more prior occasions while
incarcerated, he has had a lawsuit “dismissed” for being
“frivolous, malicious, or fail[ing] to state a claim.” Id.
§ 1915(g). The only exception to this rule is if the plaintiff is
“under imminent danger of serious physical injury.” Id.1
In order for a dismissal to qualify as a strike, “the entire
action or appeal” must have been dismissed on one of the three
enumerated § 1915(g) grounds. Byrd v. Shannon, 715 F.3d
117, 126 (3d Cir. 2013). Therefore, a “mixed dismissal”—
where some claims were dismissed on enumerated grounds but
the remaining claims were dismissed on other grounds—does
not count as a strike. Talley v. Wetzel, 15 F.4th 275, 280 (3d
Cir. 2021).
1 After Talley appealed the instant case, he moved to invoke
the imminent danger exception. Because that exception comes
into play only if a litigant has accrued three strikes, and because
Talley has only accrued one, we will deny the imminent danger
motion as moot.

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II2
Talley is a frequent litigant in the federal courts. From
among his various civil actions, appellees have identified three
potential strikes relevant to this appeal:3
1. Talley v. Pillai, No. 18-cv-1060, 2019 WL 6701346
(W.D. Pa. Dec. 9, 2019) (“Pillai”), the instant case,
where the District Court dismissed a Pennsylvania
medical malpractice claim for failure to comply with
state procedural rules and dismissed the remaining
claims on other grounds;
2. Talley v. Pennsylvania Department of Corrections,
No. 18-cv-5087, 2018 WL 6571426 (E.D. Pa. Dec.
12, 2018) (“DOC I”), where the District Court
dismissed the entire action for failure to state a
claim, granted leave to amend within thirty days,
and did not receive Talley’s amended complaint
until after the deadline passed; and
3. Talley v. Pennsylvania Department of Corrections,
No. 19-cv-1687, 2019 WL 6050744 (E.D. Pa., Nov.
14, 2019) (“DOC II”), where the District Court
dismissed each claim for failure to state a claim but
2 The District Court had jurisdiction pursuant to 28 U.S.C.
§§ 1331, 1343, and 1367. We have jurisdiction pursuant to 28
U.S.C. § 1291.
3 Because the PLRA speaks of “prior” dismissals, we only
count strikes accrued before the date of the notice of appeal.
Parker v. Montgomery Cnty. Corr. Facility/Bus. Off. Manager,
870 F.3d 144, 153 (3d Cir. 2017).

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provided alternative reasoning (failure to comply
with state procedural rules) for dismissing the
medical malpractice claim.
We appointed amicus counsel to address all three
potential strikes.4 We exercise “plenary review with respect to
the proper interpretation of the PLRA and its three strikes
rule.” Dooley v. Wetzel, 957 F.3d 366, 376 (3d Cir. 2020)
(citation omitted).
A
We begin with Pillai. Talley brought claims against
various defendants for violations of state and federal law
arising from events in a state prison. The parties agree that the
District Court dismissed the sole federal claim for failure to
state a claim, which is indisputably a strike-qualifying ground.
However, as relevant here, the Court dismissed Talley’s
medical malpractice claim for failure to comply with a
Pennsylvania procedural rule. That was not a dismissal on a
ground enumerated by the PLRA’s three-strikes provision.
Because the entire action was not dismissed on strike-
qualifying grounds, Pillai does not constitute a strike. See
Byrd, 715 F.3d at 126; Wetzel, 15 F.4th at 280.
1
In August 2016, Talley was on suicide watch in a
psychiatric observation cell (POC) at Pennsylvania’s State
4 Amicus counsel—the faculty and students of Georgetown
University Law Center’s Appellate Courts Immersion Clinic—
have fulfilled their charge admirably, and we thank them for
their assistance.

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Correctional Institution (SCI) at Greene.5 Because “his
ongoing solitary confinement was causing him to suffer major
depression,” he requested a transfer to the Mental Health Unit.
J.A. 11. The prison’s psychiatrist, Dr. Pushkalai Pillai, denied
the transfer request and told Talley that if he continued to be
suicidal, she would move him to the Restricted Housing Unit
(RHU)—a unit not designed for suicidal inmates. Pillai
subsequently directed corrections officers to relocate Talley to
a camera-equipped cell in the RHU. Talley initially refused to
leave the POC and complained to an officer that Pillai was
punishing him for reporting his suicidality. He eventually
acquiesced to the move after officers threatened to forcibly
extract him.
In August 2018, Talley sued Pillai and various prison
employees. Among other claims, he asserted that Pillai was
liable for medical malpractice under Pennsylvania law.
2
Under Pennsylvania’s Rules of Civil Procedure,
medical malpractice plaintiffs must submit a certificate of
merit (COM) “with the complaint or within sixty days after”
filing the complaint. 231 Pa.R.Civ.P. 1042.3(a). The COM
must either state that a licensed medical professional sees merit
in the claim or that expert testimony from a licensed
professional is unnecessary to prosecute the claim. Id.
Because Talley did not submit a COM, Pillai filed a notice of
her intention to seek a judgment on that basis in January 2019.
5 We recount the facts of each case as alleged in Talley’s
complaints.

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See id. 1042.6(a). Talley then had thirty additional days to file
a COM, see id. 1042.7(a)(4), but he failed to do so.
In her motion to dismiss, Pillai argued that Talley’s
medical malpractice claim should be “dismissed due to his
failure to file [a] certificate of merit.” J.A. 47. Talley opposed
the motion by asserting that expert testimony was unnecessary
to prosecute the malpractice claim. The District Court held that
Talley’s belated assertion did not comply with the COM rule:
his “failure to provide the requisite certificate as required by
Rule 1042.3 [therefore] require[d] [the claim’s] dismissal.”
Pillai, 2019 WL 6701346, at *6.
Amicus contends that this dismissal was not for failure
to state a claim because it did not discuss the claim’s factual
sufficiency and required that the District Court look beyond the
pleadings. We agree.
A complaint is properly dismissed for failing to state a
claim “if, accepting all well-pleaded allegations in the
complaint as true and viewing them in the light most favorable
to the plaintiff, a court finds that [the] plaintiff’s claims lack
facial plausibility.” Warren Gen. Hosp. v. Amgen Inc., 643
F.3d 77, 84 (3d Cir. 2011) (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555–56 (2007)). The District Court
never determined that Talley’s complaint failed to state a
medical malpractice claim. Instead, its dismissal was based
solely on the lack of a COM. A COM, however, is not part of
the complaint or its allegations.
In Chamberlain v. Giampapa, we examined a New
Jersey malpractice rule that is nearly identical to
Pennsylvania’s COM rule. 210 F.3d 154 (3d Cir. 2000). We
held that the required affidavit of merit “is not a pleading, is

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not filed until after the pleadings are closed, and does not
contain a statement of the factual basis for the claim.” Id. at
160. Thus, its absence did not “render[] pleadings insufficient
that would otherwise be sufficient.” Id. We reached this
conclusion despite the state statute’s stipulation that a failure
to submit an affidavit “shall be deemed a failure to state a cause
of action.” Id. (quoting N.J. Stat. Ann. § 2A:53A–29).
We later applied Chamberlain’s holding to
Pennsylvania’s COM rule, emphasizing that the COM “does
not have any ‘effect on what is included in the pleadings of a
case or the specificity thereof.’” Liggon-Redding v. Est. of
Sugarman, 659 F.3d 258, 263 (3d Cir. 2011) (quoting
Chamberlain, 210 F.3d at 160). Therefore, failing to file a
COM “can form the basis for a motion for summary judgment”
but it cannot form the basis for a Rule 12(b)(6) motion to
dismiss for failure to state a claim. Schmigel v. Uchal, 800
F.3d 113, 122 (3d Cir. 2015).6
6 Appellees argue that a COM “amounts to a pleading,” Dep’t
of Corr. Br. 31, but if that were true, it would conflict with Rule
8 of the Federal Rules of Civil Procedure by heightening
pleading standards for Pennsylvania medical malpractice
claims. See Chamberlain, 210 F.3d at 159–60. As a result,
federal courts sitting in diversity would be required to
disregard the COM rule. Id. at 159 (noting that the rule of Erie
Railroad Co. v. Tompkins, 304 U.S. 64, 78 (1938)—that a
federal court sitting in diversity must apply state substantive
law and federal procedural law—“may not be ‘invoked to void
a Federal Rule’ of Civil Procedure” (quoting Hanna v. Plumer,
380 U.S. 460, 470 (1965))).

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Because a COM is not part of the pleadings, the District
Court necessarily looked beyond the factual allegations to
resolve Talley’s malpractice claim for failure to file a COM.7
The proper resolution in such situations is a grant of summary
judgment based on the absence of extra-pleading material—
not a dismissal on the pleadings for failure to state a plausible
claim. Accordingly, Talley’s malpractice claim was not
resolved on a strike-accruing ground. And because a strike
accrues only “if the entire action or appeal is . . . dismissed
explicitly” on strike-accruing grounds, Byrd, 715 F.3d at 126,
the dismissal of the Pillai complaint is not a PLRA strike.8
7 In narrow circumstances, a court may rely on extra-pleading
materials in a motion to dismiss when the extrinsic document
is “integral to or explicitly relied upon in the complaint.” In re
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d
Cir. 1997) (internal quotation marks and emphasis omitted).
This exception, however, does not apply here because it
requires that the claim actually be “‘based’ on an extrinsic
document.” Id.; see Fallon v. Mercy Catholic Med. Ctr. of Se.
Pa., 877 F.3d 487, 493 (3d Cir. 2017) (permitting the
consideration of a full essay where the plaintiff quoted portions
of it in his complaint); CardioNet, Inc. v. Cigna Health Corp.,
751 F.3d 165, 168 n.2 (3d Cir. 2014) (permitting the
consideration of contracts in a contract dispute case). A
Pennsylvania malpractice claim is not “based” on a COM.
8 Our role at this stage is to assess whether the District Court’s
dismissal in Pillai was on a statutorily enumerated ground.
Coleman v. Tollefson, 575 U.S. 532, 537 (2015) (“A prior
dismissal on a statutorily enumerated ground counts as a strike

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B
We hold in the alternative that DOC I is not a strike.9,10
The parties dispute whether a § 1915(g) dismissal with leave
to amend generates a strike when the deadline to amend has
passed but the District Court has not formally closed the case.
It does not.
even if the dismissal is the subject of an appeal.”). We hold
that it was not, but we do not address the validity of the
judgment. Indeed, upon merits review, this Court may affirm
a district court’s judgment on any basis supported by the
record. TD Bank N.A. v. Hill, 928 F.3d 259, 270 (3d Cir. 2019).
We express no view on the merits of the Pillai appeal.
9 Because Pillai is not a strike, Talley may proceed with IFP
status for the instant appeal. But Talley has numerous
additional matters pending in the federal courts, including
several appeals in this Court where Talley’s IFP eligibility is
disputed. We have stayed eleven of his appeals while we
resolve this IFP motion, because the potential strikes in those
appeals overlap with the potential strikes here. Further,
counsel have briefed all three potential strikes and addressed
them at oral argument. Therefore, in the interest of judicial
economy, we proceed to consider the other two possible
strikes.
10 “We note that this portion of the opinion is an alternative
holding, not a dictum: ‘where a decision rests on two or more
grounds, none can be relegated to the category of obiter
dictum.’” Phila. Marine Trade Ass’n-Int’l Longshoremen’s
Ass’n Pension Fund v. Comm’r, 523 F.3d 140, 147 n.5 (3d Cir.
2008) (quoting Woods v. Interstate Realty Co., 337 U.S. 535,
537 (1949)).

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1
In November 2018, while at SCI Graterford, Talley
sued the Department of Corrections under 42 U.S.C. § 1983
and Title II of the ADA in relation to his conditions of
confinement. In December 2018, the District Court dismissed
the complaint for failure to state a claim but granted Talley
leave to file an amended ADA claim within thirty days. Talley
did not file an amended complaint by the deadline, and the
Court closed the case in January 2019.
Talley filed a Rule 60(b) motion to reopen the case,
explaining that he never received a copy of the dismissal order.
The District Court granted the motion in November 2019. It
permitted Talley another thirty days (until December 16, 2019)
to file an amended complaint, but he again failed to do so
before the deadline passed. This time, however, the Court did
not issue an order closing the case anew. Therefore, when
Talley filed his notice of appeal in Pillai on December 19,
2019, DOC I remained open.
2
In Lomax v. Ortiz-Marquez, the Supreme Court
specified that the PLRA’s three-strikes provision “does not
apply when a court gives a plaintiff leave to amend his
complaint” because “the suit continues.” 140 S. Ct. 1721, 1724
n.4 (2020). In such situations, “the court’s action falls outside
of Section 1915(g) and no strike accrues.” Id.; see also Wetzel,
15 F.4th at 282 (recognizing the Lomax “carveout” where “a
strike is not called when the district court grants the prisoner
leave to amend the complaint”).
Here, the District Court’s December 2018 dismissal of
DOC I did not produce a strike because the Court permitted

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Talley to amend his complaint. And the January 2019 closure
of the case is a nullity because the Court vacated that order
when it granted Talley’s Rule 60(b) motion in November 2019.
See Fed. R. Civ. P. 60(b) (explaining that the grant of Rule
60(b) motion “relieve[s] a party or its legal representative from
a final judgment, order, or proceeding”). Once Talley’s case
was reopened, he fell back into the Lomax carveout: because
the District Court permitted him to amend his complaint in
DOC I and did not close the case before he filed his notice of
appeal in Pillai, DOC I is not a strike for purposes of this IFP
motion.
Appellees argue that, even without a formal closure of
the case, Talley accrued a strike by failing to amend his
complaint before the deadline. They rely on the Ninth Circuit’s
decision in Harris v. Mangum, which held that § 1915(g)
dismissals with leave to amend count as strikes when the
plaintiff does not amend within the time limit. 863 F.3d 1133,
1143 (9th Cir. 2017). But for each of the strikes analyzed in
Harris, the district court had issued a formal order closing the
case. See id. at 1141 (recounting that “Harris failed to file
amended complaints within the time designated in the
dismissal orders, and the district court then entered judgment
against him in each case”); Judgment, Harris v. Ariz. State
Prison Health Servs., No. 03-cv-346 (D. Ariz. May 13, 2003);
Judgment, Harris v. Maricopa Cnty. Sheriff’s Off., No. 09-cv-
695 (D. Ariz. June 26, 2009); Order, Harris v. Ariz. Dep’t of
Corr., No. 09-cv-841 (D. Ariz. Aug. 4, 2009); Judgment,
Harris v. Farrugia, No. 09-cv-737 (D. Ariz. Sept. 8, 2009).
The Court in DOC I did not issue any such order by the
relevant date for strike-counting purposes—just three days
after the amendment period expired. See Parker, 870 F.3d at

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153. Without a formal closure, “the suit continues” and the
docket remains open for filings. Lomax, 140 S. Ct. at 1724 n.4.
Appellees also point out that, while DOC I was pending
on appeal, Talley reported that he had “informed the [District]
Court that he wishes to stand on his original complaint.” Talley
v. Pa. Dept. of Corr., No. 20-cv-2093 (3d Cir.), ECF No. 11 at
7. He made that statement to this Court in January 2021—over
a year after the relevant date for strike-counting purposes, and
over a year after he successfully obtained Rule 60(b) relief
permitting him to file an amended complaint in DOC I.
Appellees nonetheless contend that Talley’s statement renders
the District Court’s dismissal of the complaint a final order
under the “stand on the complaint” doctrine. But Talley took
no action to stand on his complaint by December 19, 2019—
the date when three-strikes status is measured. And even if he
had, the “stand on the complaint” doctrine requires a plaintiff
to show “a clear and unequivocal intent to decline amendment
and immediately appeal.” Weber v. McGrogan, 939 F.3d 232,
240 (3d Cir. 2019). The doctrine “cannot rescue the lack of a
final order given [Talley’s] ambiguous actions.” Id.11
Finally, Appellees assert that conditioning strikes on the
formal closure of cases will allow prisoners to file an “endless
stream of frivolous in forma pauperis complaints” by foregoing
the opportunity to amend. Dep’t of Corr. Br. 43 (quoting
11 Because Talley did not unequivocally stand on his complaint
in DOC I before he filed his notice of appeal in Pillai, we need
not address whether a dismissal without prejudice would
become a final strike-producing order if an appellant
effectively stood on his complaint before the relevant date for
strike-counting purposes.

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Harris, 863 F.3d at 1143). But prisoners are not often given
the opportunity to amend their complaints (such as in Pillai).
And even when they are, district courts can prevent this
“endless stream” by closing lawsuits—whether upon request
or by issuing self-executing orders. See Weber, 939 F.3d at
239–40 (discussing self-executing dismissal orders—i.e., non-
final dismissal orders that provide express notice that they will
ripen into final dismissal orders once the time to amend runs
out).
In sum, because Talley was given leave to amend his
complaint in DOC I, and because the case was not formally
closed at the time he filed this appeal, DOC I is not a strike for
the purposes of the present IFP motion.
C
Lastly, we turn to DOC II. There, the District Court
issued an “alternative grounds” dismissal—it relied upon both
a § 1915 and non-§ 1915(g) ground. This amounts to a strike.
1
In January 2018, while at SCI Graterford, Talley told
prison officials that he was suicidal, and the officials watched
him swallow several foreign objects. DOC II, 2019 WL
6050744, at *1–2. Instead of providing him with medical or
psychiatric treatment, officials placed him in a camera-
monitored cell, restrained him, and left him there without
recreational time or shower access for roughly two weeks. Id.
at *2. When he complained that his restraints were too tight, a
nurse tightened them further. Id. In April 2019, Talley sued
under § 1983, the ADA, and the Rehabilitation Act. Id. He
also brought state law claims, including one for medical
malpractice. Id.

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In November 2019, the District Court dismissed the
action for failure to state a claim. Id. at *1. It discussed each
claim in turn, explaining that Talley did not allege facts
plausibly supporting an entitlement to relief. Id. at *4–10. As
to the malpractice claim, the Court held that the “de minimis
use of force applied by [the nurse] . . . d[id] not constitute . . .
medical malpractice” and that Talley did not suffer the harm
required for a malpractice claim. Id. at *8 n.74. It also
observed that Talley “ha[d] [not] filed a certificate of merit in
support of his medical malpractice claim as required by
Pennsylvania Rule of Civil Procedure 1042.3(a).” Id. The
Court concluded its opinion by stating, “[b]ecause Talley fails
to state any plausible claims for relief, his complaint is
dismissed with prejudice in its entirety pursuant to Federal
Rule of Civil Procedure 12(b)(6).” Id. at *10.
2
The District Court’s dismissal of the action for failure
to state a claim would seem to constitute a strike. See 28
U.S.C. § 1915(g). The only question is whether the Court’s
treatment of the medical malpractice claim alters the strike
analysis.12 It does not.
Amicus contends that the Court “dismissed Talley’s
claim in part for a non-strike reason—meaning that the
dismissal was not ‘entirely’ on a strike ground.” Amicus
Suppl. Ltr. 3 (citing Byrd, 715 F.3d at 125). But Byrd’s mixed
dismissal rule does not extend to alternative grounds for
dismissing a claim. Under the mixed dismissal rule, no strike
12 Amicus contends that the Court’s observation about the
COM was an alternative holding. We assume (without
deciding) that it was.

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accrues unless an “entire action or appeal” is dismissed on
enumerated grounds. Byrd, 715 F.3d at 125. That means there
is no strike when part of an action is dismissed on enumerated
grounds and the remainder is dismissed on other grounds.
Wetzel, 15 F.4th at 280. But when a court dismisses a claim
using two equally sufficient rationales, one of which is strike-
qualifying, that claim has been dismissed on a strike-qualifying
ground and its dismissal counts toward a strike.
Here, the District Court’s alternative holding about the
COM did not affect its independent conclusion that Talley
failed to state a medical malpractice claim. The Court’s Rule
12(b)(6) reasoning was sufficient to resolve the malpractice
claim (as it was with all other claims in DOC II). Because the
Court explicitly relied upon a strike-qualifying basis to dismiss
the entire action (and every claim therein), DOC II counts as a
strike. Byrd, 715 F.3d at 126.13
Our conclusion here aligns with those of our sister
circuits. In O’Neal v. Price, the Ninth Circuit concluded that
alternative-ground dismissals generate strikes where a valid
§ 1915(g) basis is “fully sufficient” to resolve the claim. 531
F.3d 1146, 1156 (9th Cir. 2008). The Second Circuit agreed in
Griffin v. Carnes, stating that a strike accrues “where one of
the grounds for dismissal would independently justify a strike.”
13 DOC II is distinct from Pillai, where the sole basis for
dismissing the malpractice claim was Talley’s failure to file a
COM. See Pillai, 2019 WL 6701346, at *6.

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72 F.4th 16, 19 (2d Cir. 2023).14 Our conclusion is also
consistent with the text of the three-strikes provision. When
an entire complaint is dismissed on alternative grounds, one of
which is strike-qualifying, the “action . . . was dismissed” on
strike qualifying grounds. 28 U.S.C. § 1915(g).
* * *
For the foregoing reasons, we conclude that Talley had
one PLRA strike when he filed his notice of appeal in this case:
DOC II was a strike, but Pillai and DOC I were not. Because
he had fewer than three strikes, we will grant his motion to
proceed in forma pauperis for this appeal.
14 No Court of Appeals has held otherwise in a precedential
opinion. Amicus cites the Fourth Circuit’s unpublished
opinion in Cohen v. Hurson, 623 F. App’x 620, 620–21 (4th
Cir. 2015) (per curiam) (not precedential), for support, but that
reliance is misplaced. There, the district court dismissed a
claim for lack of subject matter jurisdiction before opining that
the claim was also frivolous. Id. Absent jurisdiction, the
court’s alternative merits holding was void and could not count
toward a strike. Id. at 621.

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