* Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

February 13, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-10265

Conference Calendar

RICKEY DEAN MCINTIRE,

Plaintiff-Appellant,

versus

NFN HANNIGAN, Grand Prairie Detective #210; 

NFN ZACHARIAS, Grand Prairie Police Officer #290;

NFN STEELMAN, Officer #266 of the Grand Prairie Police

Department; NFN CHERRY, Seargent #143 of the Grand Prairie

Police Deparmtent; NFN HOGAN, Officer #275 of the Grand Prairie 

Police Department; NFN ANGUIANO, Officer #225 of the Grand

Prairie Police Department; NFN BROWN, Officer #134 of the Grand 

Prairie Police Department; NFN GIBSON, Officer #237 of the Grand 

Prairie Police Department; NFN FRYSINGER, Officer, Grand Prairie 

Police Department; STEPHANIE ALVARADO, Magistrate Judge,

Grand Prairie; MIKE SHAW, Chief of Police, Grand Prairie

Police Department; GRAND PRAIRIE POLICE FORCES CONFIDENTIAL

INFORMANT CITIZEN SHAWN; TARRANT COUNTY JAIL ADMINISTRATOR;

DALLAS COUNTY; CITY OF GRAND PRAIRIE; CITY OF FORT WORTH;

DEE ANDERSON, Sheriff of Tarrant County,

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:06-CV-107

--------------------

Before BARKSDALE, GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

Rickey Dean McIntire, Texas prisoner # 808172, appeals the

district court’s dismissal of his 42 U.S.C. § 1983 complaint as
No. 06-10265

-2-

malicious pursuant to 28 U.S.C. § 1915A(b)(1). The dismissal of

a complaint under § 1915A is reviewed de novo. Velasquez v.

Woods, 329 F.3d 420, 421 (5th Cir. 2003). 

McIntire does not dispute that this lawsuit raises

substantially the same claims that he raised in McIntire v. Grand

Prairie Police Dep’t, No. 4:04-CV-951-A (N.D. Tex. 2005), but he

argues that the dismissal of this complaint was error because

No. 4:04-CV-951-A was dismissed without prejudice and his claims

are still timely under Texas law. 

Our records do not support McIntire’s contention that

No. 4:04-CV-951-A was dismissed without prejudice. The district

court dismissed No. 4:04-CV-951-A pursuant to 28 U.S.C. 

§ 1915(e). Although the order of dismissal did not specifically

state that the complaint was dismissed with prejudice, a

dismissal pursuant to § 1915(e) is deemed to be with prejudice

unless the district court specifies otherwise. Marts v. Hines,

117 F.3d 1504, 1506 (5th Cir. 1997) (en banc). 

We therefore conclude that this appeal is without arguable

merit and that it should be dismissed as frivolous. 5TH CIR.

R. 42.2; Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). 

The dismissal of No. 4:04-CV-951-A, the dismissal of the

current complaint by the district court, and the dismissal of

this appeal all count as strikes under 28 U.S.C. § 1915(g). 

Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). As

McIntire now has accumulated at least three strikes under
No. 06-10265

-3-

§ 1915(g), he is barred from proceeding in forma pauperis in any

civil action or appeal filed while he is incarcerated or detained

in any facility unless he is under imminent danger of serious

physical injury. § 1915(g).

APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED.