PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                 _____________

                     No. 19-1684
                    _____________

                  CASEY DOOLEY,
                                        Appellant

                           v.

         JOHN WETZEL; KEVEN KAUFMAN;
               RICHARD A. GOSS


     On Appeal from the United States District Court
         for the Middle District of Pennsylvania
           (District Court No.: 3-18-cv-01310)
      District Judge: Honorable James M. Munley


              Argued November 12, 2019

             (Opinion Filed: April 27, 2020)

Before: JORDAN, SCIRICA, and RENDELL, Circuit Judges
Amir H. Ali
Roderick & Solange MacArthur Justice Center
777 6th Street N.W.
11th Floor
Washington, DC 20001

Bradley N. Garcia (Argued)
Meaghan M. VerGow
O’Melveny & Meyers
1625 I Street N.W.
Washington, DC 20006
                    Counsel for Appellant

Josh Shapiro
J. Bart DeLone
Michael J. Scarinci (Argued)
Office of Attorney General of Pennsylvania
Strawberry Square
Harrisburg, PA 17120
                     Counsel for Appellees




                       OPINION


RENDELL, Circuit Judge:

      Appellant Casey Dooley challenges the District Court’s
sua sponte dismissal of his Complaint without leave to amend




                             2
as well as the Court’s declaration that the dismissal constituted
a “strike” for purposes of the Prison Litigation Reform Act
(PLRA). Because we agree that the District Court erred in both
respects, we will vacate the District Court’s Order and remand
for further proceedings.

   I.     Background

        This case arises out of Dooley’s pro se challenge to the
refusal of the Department of Corrections (DOC) to assign him
the mental classification associated with the greatest mental
health resources. Specifically, Dooley argues that he should
be listed as a D Stability Code inmate and receive the mental
health resources that accompany that status. The DOC
Officials’ refusal to designate him D Stability Code, in
Dooley’s view, violated his Eighth Amendment rights. On
appeal, Dooley contends that the District Court erred when it
dismissed his Eighth Amendment claim and that the Court at
least should have granted him leave to amend. Dooley also
argues that the Court erred when it determined that the
dismissal of the suit constituted a “strike” under the PLRA. We
discuss each issue in turn.

          a. D Stability Code and Guilty but Mentally Ill
             Inmates

        The D Stability Code that Dooley seeks applies to
inmates who have the most significant mental health needs and
entitles them to the greatest amount of mental health resources
available. Pa. DOC Reg. § 13.8.1(1)(B)(2)(g)(1)(d). DOC
policy specifies that certain inmates should be listed on the “D
Roster,” including those who have been found guilty but




                               3
mentally     ill     (GBMI).             Pa.   DOC        Reg.
§ 13.8.1(2)(A)(1)(a)(4)(d), (J)(3)(a).

       When a jury renders a GBMI verdict in Pennsylvania,
the court must hear testimony and make a finding as to whether
the defendant is, at the time of sentencing, “severely mentally
disabled,” requiring treatment under the Mental Health
Procedures Act. 42 Pa. Cons. Stat. § 9727(a). Some aspects
of DOC policy differentiate between inmates found GBMI and
determined to be severely mentally disabled (Category I) and
those found GBMI but determined not to be severely mentally
disabled (Category II). See Pa. DOC Reg. § 13.8.1(2)(J)(1)(b).
All GBMI inmates must be placed on the D Roster when they
first arrive at the DOC and subsequently receive regular
psychiatric evaluation.

13.8.1(2)(J)(3).

          b. Dooley’s GBMI Status and Grievances Seeking
             D Stability Code

        The parties’ conflict turns in part on a disagreement,
reflected throughout the grievance process, about whether
Dooley should be considered a GBMI inmate. Although the
outcome of that factual dispute does not dispose of the
questions before us, the issue warrants some explanation for
the sake of context.

       In 2002, Dooley was tried for five counts of attempted
murder, five counts of aggravated assault, possession of an
instrument of a crime, and reckless endangerment of another
person, and the jury found him GBMI on all charges. Dooley
has cited the jury’s GBMI finding in grievances requesting the
D Stability Code designation as well as his Complaint. On
August 13, 2017, Dooley filed a grievance complaining that he




                               4
was “not being treated as a D Code,” despite having been found
guilty but mentally ill by the jury. App. at 149. He noted that
he had previously written staff about the issue. He submitted
a second grievance on August 24, in which he claimed that an
official told him in an annual review that, because the jury’s
verdict had been changed, he was not GBMI and therefore was
not a D Stability Code. Dooley filed the grievance to object to
this determination, contending the jury’s GBMI finding should
have been credited.

       Although there is no dispute that the jury found Dooley
GBMI, the DOC Officials repeatedly represented to Dooley
that his court documents no longer identified him as GBMI,
and that he therefore should not be labeled D Stability Code.
It is unclear what the sentencing judge determined or what
evaluations were performed, as that aspect of the record has not
been provided to us. The only portion of the sentencing
transcript before us consists of three pages that Dooley
attached to his Complaint, in which defense counsel briefly
referenced the jury’s GBMI verdict, and the sentencing court
noted that Dooley “needs some psychiatric assistance,” before
going on to state Dooley’s sentence without any specific
reference to mental health treatment. App. at 62–63.
Otherwise, all we know is what the various DOC officials have
represented as noted below.

        On August 29, DOC Official Richard Goss denied the
first grievance. Goss wrote:

       I have reviewed your claims in this grievance and
       we have discussed this at length previously. I
       have also spent considerable time researching




                               5
       this for you. You are not GBMI nor a D stability
       Code.

       You were found Guilty But Mentally Ill by the
       jury. At that time, the judge entered a temporary
       sentencing order pending a Psychiatric
       evaluation to address the GBMI. The result of
       the evaluation did not support the GBMI
       designation and it was deleted from the final
       order.

       This grievance has no merit and is denied.

App. at 151. On appeal, DOC Official Kevin Kauffman upheld
this decision. He reiterated that, although a jury found Dooley
GBMI, the “judge entered a temporary sentencing order
pending a psychiatric evaluation to address the GBMI verdict.
The evaluation did not support the GBMI designation and it
was deleted from the final order.” App. at 152. He then
concluded, “you are not a stability D inmate” and
recommended that Dooley address any concerns to the
sentencing judge. App. at 152.
       Dooley appealed to the Chief Grievance Officer, Dorina
Varner, who upheld the previous decisions. Her response
followed the recommendation of the Acting Director of the
Psychology Office, who noted that “Inmate Dooley’s court
documents were reviewed and found to not identify him as
‘Guilty but Mentally Ill.’” App. at 141. Chief Grievance
Officer Varner’s decision read:

       It has been found that your court documents were
       reviewed and found to not identify you as




                              6
      “Guilty but Mentally Ill”. Because you do not
      like or agree with the interpretation of your court
      documents does not give any further merit to
      your claims. If you do not agree with the court
      documents, this should be addressed with the
      Judge and the court. Therefore, this office
      upholds the responses provided to you and your
      requested relief is denied.

App. at 140. The denials of Dooley’s grievance and appeals
seeking D Stability Code classification were thus consistently
premised on his purported lack of GBMI status.

        The District Court seems to have credited the DOC
Officials’ assertion that the GBMI designation was “deleted.”
App. at 5. Dooley, however, maintains that his GBMI status
continued to apply and supported his claim that he was entitled
to the more intensive mental health treatment offered to D
Stability Code inmates. On appeal, the DOC Officials do not
argue that the sentencing court removed the GBMI finding
altogether; they merely assert that the court found Dooley was
not severely mentally disabled under 42 Pa. Cons. Stat. §
9727(a).
        Given the foregoing facts, Dooley’s contention that he
retained the GBMI designation, at least to some extent, is not
baseless. If, as the DOC Officials contend, a jury found Dooley
GBMI and a sentencing judge concluded that Dooley was not
severely mentally disabled, that would not have eliminated his
GBMI status. Under current DOC policy, it would have placed
him in Category II of GBMI inmates, which would have
required that he be placed on the D Roster and that he
subsequently receive regular psychiatric evaluation. See Pa.
DOC Reg. § 13.8.1(2)(J)(1)(b)(2), (3). Although the current




                              7
DOC policies may not have been in effect at the time of
Dooley’s initial incarceration, they support the view that, even
if the sentencing judge found him not severely mentally
disabled, his GBMI verdict did not disappear or lose all
significance.1
           c. Complaint

       In May 2018, Dooley filed a pro se complaint in the
Court of Common Pleas for Huntingdon County against Goss,
Kauffman, and John Wetzel, the Secretary of DOC. The
Complaint alleged, under 42 U.S.C. § 1983, that the DOC
Officials violated Dooley’s Eighth Amendment rights through
deliberate indifference to his serious mental health needs. The
Complaint cited the GBMI verdict as a primary reason why
Dooley should be categorized as D Stability Code and entitled

1
  The record does not indicate specifically what policies for
mental health classification were in place at the time of
Dooley’s incarceration in 2002. As Dooley points out,
however, the Pennsylvania DOC adopted the current mental
health classification system, which includes the D Stability
Code, in 2015 in response to a Department of Justice
investigation into the DOC’s mistreatment of mentally ill
inmates, including problems with classification. See Letter
from David Hickton, U.S. Attorney, W.D. Pa. to Tom Corbett,
Governor of Pa. (May 31, 2013) (announcing statewide
expansion        of      investigation),       available     at
https://www.justice.gov/sites/default/files/crt/legacy/2013/06/
03/cresson_findings_5-31-13.pdf; Letter from David Hickton,
U.S. Attorney, W.D. Pa. to Tom Corbett, Governor of Pa. (Apr.
14, 2016) (announcing decision to close investigation in light
of      improvements       by      DOC),         available   at
https://www.justice.gov/opa/file/841061/download.




                               8
to the resources associated with that status. Dooley also
attached to the Complaint pages from the sentencing hearing
transcript, which included a remark by the judge about
Dooley’s need for psychiatric assistance. The Complaint
stated that Dooley “has suffered agonizing mental health pain
and trauma and serious depression, lack of sleep, being
paranoid throughout the day, nightmares, and physical abuse
because of his mental illness.” App. at 49. It noted that Dooley
“suffers from acute/serious depression sometimes bordering on
manic-depression” requiring treatment. App. at 50.

        Dooley claimed that, despite his mental health
problems, the DOC Officials refused to provide him adequate
mental health treatment, specifically the treatment afforded to
D Stability Code inmates. This allegedly caused him to
“suffer[ ] severe harm.” App. at 48. He noted that, as the basis
for refusing to provide him D Code treatment, the officials
simply asserted that he was not found GBMI because the
sentencing judge changed the verdict. By denying him
adequate mental health treatment, the Complaint contended,
the DOC officials were deliberately indifferent to Dooley’s
serious medical needs in violation of his Eighth Amendment
rights.
            d. Federal Court Proceedings

        Shortly after Dooley filed his Complaint, the DOC
Officials removed the action to federal court, and the case
was referred to Magistrate Judge Joseph F. Saporito, Jr. The
DOC Officials quickly filed a Motion to Dismiss or for
Summary Judgment. They argued only that Dooley had
failed to exhaust his administrative remedies.




                               9
       In his Report and Recommendation (R&R), the
Magistrate Judge concluded that Dooley did exhaust his
administrative remedies but recommended the District Court
dismiss the Complaint as frivolous and for failure to state a
claim. He concluded that Dooley had alleged no personal
involvement by any of the defendants, finding the review
and/or denial of a grievance insufficient to show personal
involvement. The R&R recommended that the District Court
sua sponte dismiss the Complaint and that it do so without
leave to amend because amendment would be futile. The R&R
also included a “Three Strikes Warning.” App. at 36–37. That
warning stated that adoption of the recommendation to dismiss
the suit would result in a strike under 28 U.S.C. § 1915(g) and
that accumulation of three strikes would preclude Dooley from
proceeding in forma pauperis in subsequent cases.

        Both parties objected to the R&R, but the District Court
overruled the objections. The Court first considered and
overruled Dooley’s objections. It found that Dooley failed to
state an Eighth Amendment violation because he did not
sufficiently allege that he had been deprived of “life’s
necessities,” such as “food, clothing, shelter, medical care and
reasonable safety.” App. at 9–10 (citations omitted). The
Court further concluded that the Complaint was insufficiently
detailed and did not particularly allege the DOC Officials’
personal involvement. It then declined to consider the
officials’ objections as to exhaustion, as they were rendered
moot because of the dismissal of the Complaint on the merits.
The Court adopted the R&R’s recommendation to deny the
Motion to Dismiss or for Summary Judgment but to sua sponte
dismiss the Complaint without leave to amend as frivolous and




                              10
for failure to state a claim.2 The Court did not address whether
leave to amend would be inequitable or futile. The Order
included a statement that the dismissal as frivolous and for
failure to state a claim constituted a “strike” under 28 U.S.C. §
1915(g).

    II.   Discussion

       Dooley raises multiple challenges to the District Court’s
rulings. First, Dooley contends that the District Court erred
when it dismissed his Eighth Amendment claim and that, at a
minimum, the Court should have granted leave to amend the
Complaint. Next, Dooley argues that the Court lacked the
authority to determine whether the dismissal of the suit
constituted a “strike” under the PLRA and that, even if it had
such authority, the Court erroneously labeled his suit a “strike.”
We address each challenge in turn.3

2
  The District Court predominantly applied the standard for
evaluating whether a pleading has stated a claim, but rather
than simply concluding that Dooley’s Complaint failed to state
a claim, the Court further declared that the Complaint was
“frivolous under the law.” App. at 10. The Court’s Order
purported to dismiss the Complaint “as frivolous,” but another
part of the Order referred to “the dismissal of this action as
frivolous and for failure to state a claim.” App. at 3. The
Memorandum cited the statutory provisions for both grounds.
We therefore assume that the District Court dismissed the
Complaint both as frivolous and for failure to state a claim.
3
   The District Court had jurisdiction over Dooley’s claim
pursuant to 28 U.S.C. §§ 1331 and 1441. We have jurisdiction
under 28 U.S.C. § 1291 over the Court’s final decision
dismissing the Complaint.




                               11
          a. Dismissal of Dooley’s Eighth Amendment
             Claim
        We first address the District Court’s decision to dismiss
Dooley’s Complaint as frivolous and for failure to state a claim
under 28 U.S.C. §§ 1915A, 1915(e)(2) and 42 U.S.C.
§ 1997e(c). Although we agree that Dooley failed to
adequately state a claim against these specific individuals
under 42 U.S.C. § 1983, we do not find the Complaint so
baseless as to be frivolous. Further, the District Court made no
finding as to whether amendment would be inequitable or
futile, and thus erred in dismissing the Complaint without leave
to amend.

        We exercise plenary review over the District Court’s
sua sponte dismissal of the Complaint under 28 U.S.C.
§§ 1915A, 1915(e)(2), and 42 U.S.C. § 1997e(c). It is well
settled that we consider dismissals for failure to state a claim
de novo. Allah v. Seiverling, 

, 223 (3d Cir. 2000);
see also Castleberry v. STI Grp., 

, 262–63 (3d Cir.
2017). We apply the same standard to the Complaint’s
dismissal as frivolous. Mitchell v. Horn, 

, 530 (3d
Cir. 2003). In assessing the Complaint, we are mindful of our
“obligation to liberally construe a pro se litigant’s pleadings,”
Higgs v. Att’y Gen., 

, 339 (3d Cir. 2011),
particularly where the pro se litigant is imprisoned. Mala v.
Crown Bay Marina, Inc., 

, 244–45 (3d Cir. 2013).

       Dooley’s Complaint failed to state an adequate § 1983
claim because it did not demonstrate personal involvement by
any of the defendants in the complained-of conduct. In
advancing any § 1983 claim against prison officials, a plaintiff
may not rely solely on a respondeat superior theory of liability.




                               12
Rode v. Dellarciprete, 

, 1207 (3d Cir. 1988).
Rather, a plaintiff must aver facts to show the defendants’
personal involvement in the alleged misconduct.

requires particular “allegations of personal
direction or of actual knowledge and acquiescence.”

Complaint does not specifically allege
personal involvement by any of the defendants. The only
evidence to which Dooley points to show Wetzel knew of
Dooley’s mental health needs is the fact that he sent Wetzel a
copy of documents reflecting his GBMI verdict and request for
D Code designation and Wetzel’s lack of any response or
action. But this evidence does not demonstrate the personal
direction or actual knowledge required under Rode, and
Dooley’s allegations of Wetzel’s involvement are insufficient.
See 

–08. Similarly, as to Kauffman and
Goss, the only involvement alleged in the Complaint is their
review and denial of Dooley’s grievance. We therefore agree
that Dooley failed to state a claim and conclude that the District
Court did not err in dismissing the Complaint on that ground.


       The District Court erred, however, when it dismissed
the Complaint as frivolous and without leave to amend. It is
well understood that “a complaint filed in forma pauperis is
not automatically frivolous . . . because it fails to state a claim.”
Neitzke v. Williams, 

, 331 (1989); see also
Grayson v. Mayview State Hosp., 

, 112 (3d Cir.
2002). Rather, a claim is frivolous only where it depends “on
an ‘indisputably meritless legal theory’ or a ‘clearly baseless’
or ‘fantastic or delusional’ factual scenario.” 

(quoting 

–28). Here,
Dooley advanced a valid legal theory, and particularly given




                                 13
our liberal pro se pleading standards, the factual scenario
alleged was not clearly baseless or delusional.

       Dooley’s Complaint, construed liberally, laid out a
plausibly valid theory for a § 1983 Eighth Amendment claim.
Prison officials violate an inmate’s Eighth Amendment rights
when they are deliberately indifferent to an inmate’s serious
medical need. See Estelle v. Gamble, 

, 106 (1976).
A serious medical need exists where “failure to treat can be
expected to lead to substantial and unnecessary suffering,” and
a doctor has diagnosed the condition, or the need for treatment
would be obvious to a lay person. Colburn v. Upper Darby
Twp., 

, 1023 (3d Cir. 1991). Officials are
deliberately indifferent to such needs when they are actually
aware of a substantial risk of serious harm and disregard that
risk. See Farmer v. Brennan, 

, 837 (1994).
Dooley’s Complaint turned on this Eighth Amendment legal
theory, and the facts supporting it were not baseless, fantastic,
or delusional. See 

.

       The factual scenario in Dooley’s Complaint alleged a
medical need in the form of serious mental health problems.
Dooley’s claimed depression, pain, trauma, lack of sleep,
nightmares, paranoia, and related mental health issues could
constitute the requisite serious medical need if diagnosed or if
the need for greater treatment would be obvious to a lay person.
See Palakovic v. Wetzel, 

, 222, 227 (3d Cir. 2017);
Inmates of the Allegheny Cty. Jail v. Pierce, 

, 763
(3d Cir. 1979). The jury’s GBMI finding and the sentencing
judge’s comment about his mental health needs may show that,
at one point, Dooley’s mental health problems were obvious to




                               14
lay people.4 Additional facts in an amended complaint might
provide greater specificity necessary to demonstrate a serious
medical need. Thus, the currently alleged facts are not so
clearly baseless as to make the claim frivolous.

        Similarly, if the prison officials were actually aware or
knew of a substantial risk of serious harm when they allegedly
failed to provide Dooley with D Code resources, and they
disregarded that risk, then that could constitute deliberate
indifference to a serious medical need. See 

. Dooley did allege inaction on the part of the DOC
Officials in the face of his repeated complaints about
inadequate mental health treatment. He alleged that the
officials simply told him that he was not GBMI and therefore
not a D Stability Code inmate. We do not know whether the

4
  In arguing that Dooley cannot state an Eighth Amendment
claim, Appellees as well as the Magistrate Judge have
emphasized that the jury’s GBMI finding is not a medical
diagnosis and does not operate as a legal requirement of
specific mental health treatment. This misunderstands the
relevance of the GBMI verdict. The fact that the GBMI finding
may not alone establish a serious medical need or give rise to
an obligation to provide specific treatment does not preclude
its relevance as a fact that demonstrates the obviousness and
seriousness of Dooley’s specifically pled psychiatric problems.
In addition to demonstrating that a jury recognized Dooley’s
mental illness, the GBMI verdict shows that Dooley, even if
not found severely mentally disabled, had mental health needs
that were serious enough to require—under current DOC
policy—at least temporary D Code status and regular
psychiatric     evaluation.     See     Pa.     DOC        Reg.
§ 13.8.1(2)(J)(1)(b)(2), (3).




                               15
officials ever considered whether Dooley was receiving
appropriate mental health care or provided further evaluation
to determine what level of treatment Dooley required.5
Officials became aware of his contention that he required D
Stability Code treatment at least by the time Dooley availed
himself of the grievance process. Goss further acknowledged
involvement and knowledge of the situation beyond his role in
the grievance process, and Dooley’s objections to the R&R
raised new facts about the officials’ awareness of his situation
and failure to intervene. Although the Complaint, as pled, is
lacking specific facts regarding the officials’ actions or
inaction to show deliberate indifference, additional detail could
satisfy that standard. The factual scenario described by
Dooley, particularly if he were permitted to amend his
Complaint, could support a legally valid theory for an Eighth
Amendment claim. The District Court therefore should not
have dismissed the Complaint as frivolous and instead should
have permitted Dooley to amend.
        Moreover, the Court made no finding that amendment
would be inequitable or futile. We have held that district courts
should dismiss complaints under the PLRA with leave to
amend “unless amendment would be inequitable or futile.”

, 110; see also Shane v. Fauver, 213


5
  The DOC Officials repeatedly emphasize that “the jury’s
nearly 20-year-old GBMI verdict” cannot be equated “with a
current diagnosis by a doctor.” Appellees’ Br. at 24. But the
same would be true of a sentencing judge’s nearly 20-year-old
determination that a defendant was not “severely mentally
disabled” so as to need continuing treatment. Whether or not
Dooley needed D Stability Code treatment in 2002 does not
determine the appropriateness of such treatment now.




                               

, 116 (3d Cir. 2000).6 That determination generally
lies within the discretion of the District Court, and we thus
review a district court’s decision not to grant leave to amend
for abuse of discretion. Travelers Indem. Co. v. Dammann &
Co., Inc., 

, 243 (3d Cir. 2010); 

. We have held, however, that “outright refusal to grant
the leave without any justifying reason [i.e., inequity or futility]
. . . is not an exercise of discretion; it is merely abuse of that
discretion.” 

(emphasis added)
(alteration in original). Here, the District Court engaged in no
discussion about whether amendment would be inequitable or
futile before adopting the R&R’s recommendation to dismiss
without leave to amend.7 We conclude that amendment would
not be clearly futile, and the District Court should have




6
   Appellees argue that the District Court implicitly found
amendment futile when it determined the claim to be frivolous.
We have noted that “dismissals of frivolous claims do not
require leave to amend due to the long tradition of denying
leave to amend . . . when amendment is inequitable or futile.”

–13. But where, as here, the
Complaint was properly dismissed, not as frivolous, but for
failure to state a claim, plaintiffs “are entitled to amend their
complaint unless doing so would be inequitable or futile.”

7
  The R&R determined that leave to amend was not appropriate
because it found the Complaint “legally frivolous” and because
the GBMI finding serves as a “legally operative factual
finding, not a medical diagnosis.” App. at 35–36. As noted
above, we conclude that Dooley’s Complaint is not legally
frivolous.




                                17
permitted Dooley to amend the Complaint. We will therefore
vacate its order and remand for further proceedings.8

          b. Determination that the Dismissal Constitutes a
             PLRA “Strike”

       Dooley next objects to the District Court’s
determination that the dismissal of his Complaint amounted to
a “strike” under the Prison Litigation Reform Act (PLRA),
specifically 28 U.S.C. § 1915(g). We exercise “plenary review
with respect to the proper interpretation of the PLRA and its
three strikes rule.” Millhouse v. Heath, 

, 156 (3d
Cir. 2017). Dooley contends that the District Court lacked the
authority to prospectively label the dismissal a strike under the
PLRA. We agree.

       In examining whether the PLRA allows District Courts
to prospectively—at the time of dismissal—label a dismissal a
“strike” for purposes of future litigation, we turn first to the
language of the statute. 28 U.S.C. § 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

8
  We have not considered Appellees’ exhaustion arguments,
which they raised again on appeal, because the District Court
did not reach them. Nothing in our decision today, however,
prevents the District Court from revisiting the exhaustion issue
on remand.




                               18
             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.

(emphasis added). This language contemplates a prisoner who
attempts to bring a suit after having had three prior suits
dismissed. It thus envisions a determination at the time of the
subsequent suit, in which a future district court evaluates
whether “prior” suits “brought” by the same plaintiff were
dismissed on enumerated grounds.

the statute otherwise would run afoul of
Article III’s case or controversy requirement. Under Article
III, a “claim is not ripe for adjudication if it rests upon
‘contingent future events that may not occur as anticipated, or
indeed may not occur at all.’” Texas v. United States, 

, 300 (1998) (quoting Thomas v. Union Carbide Agric.
Prods. Co., 

, 580–81 (1985)). At the time of the
dismissal of Dooley’s action, the question of whether that
dismissal constituted a strike under § 1915(g) was premature.
It had no immediate consequence because Dooley may never
again seek to file a lawsuit. The question is not ripe for
adjudication unless or until he seeks to file a fourth suit in
forma pauperis. Deleon v. Doe, 

, 95 (2d Cir. 2004);
Lucien v. Jockisch, 

, 469 n.8 (7th Cir. 1998).




                              19
        Leaving the § 1915(g) strike determination to a future
court where the issue is squarely presented further avoids the
risk that dismissing courts will make haphazard or erroneous
determinations to which subsequent courts might defer.

n.1. Appellees contend that strike
determinations are straightforward, requiring no briefing and
carrying little to no risk of harm from erroneous decisions.
That not only misses the point but is in itself questionable. A
strike carries great significance, and the gratuitous calling of a
strike as happened here can clearly be damaging later on. Only
when the strike question has an immediate impact should a
court rule on the issue, with the benefit of briefing by the
parties if necessary. The possibility for error regarding this
important issue is greatly reduced before a future court
considering the strike question at a moment when it carries
immediate significance.9 This practical reality reinforces the
natural reading of the statute, requiring that later courts make
the strike determination only when the issue has become ripe

9
  Here, the District Court did, in fact, err in determining that
the dismissal amounted to a strike under the PLRA. Dooley
brought his suit in state court and the DOC Officials removed
the suit to federal court, but the PLRA speaks only to suits
brought in federal court. The statute applies to prisoners who
“on 3 or more prior occasions . . . brought an action or appeal
in a court of the United States that was dismissed” on an
enumerated ground. 28 U.S.C. § 1915(g) (emphasis added).
We have held that, under the PLRA, “a prisoner has ‘brought
an action’ when he tenders or submits his complaint to the
court.” Brown v. Sage, 

, 661 (3d Cir. 2019).
Dooley submitted his Complaint to the state court, not to “a
court of the United States,” so it did not fall within the scope
of § 1915(g).




                               20
for adjudication. We therefore hold that the District Court
lacked the authority, at the time of dismissal, to declare that the
dismissal constituted a “strike” for purposes of § 1915(g).

   III.    Conclusion

        Although we agree with the District Court that Dooley’s
Complaint failed to state a claim, we find that the District Court
erred in failing to grant leave to amend without determining
whether such leave would be inequitable or futile. The Court
further erred when it prospectively and erroneously declared
the dismissal to constitute a strike under § 1915(g). For the
foregoing reasons, we will vacate the District Court’s Order
dismissing the Complaint without leave to amend and denying
the Motion to Dismiss or for Summary Judgment, and remand
for further proceedings consistent with this opinion.




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