### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 13-10042 Summary Calendar

RHONDA FLEMING, Plaintiff-Appellant
v. UNITED STATES OF A MERICA; LESLIE P O W E R S; THE GEO GROUP, INCORPORATED; UNITED STATES M ARSHAL SERVICE; CHRISTOPHER C. STR I C K LAND; MAJOR DURHAM; CYNDEE OATES, D.U.S.M.S; DR. CABELLE R O ; MYRA WOMACK; PHARMACY TECH BROWN; KEEFE COMMISSARY NETWORK SALES; COMMISSARY MANAGER VILLAREAL; ARAMARK C ORPORATION; CYNTHIA MOSLEY; JENNIFER C ALDWELL; MONTGOMERY COUNTY SHERIFF’S OFFICE; R. C HRIS TOPHER GOLDSMITH; $1,846,668.98, Defendants-Appellees

Appeal from the United States District Court f or the Northern District of Texas USDC No. 4:12-CV-452

B e fo re H IG G IN B O T H A M , O W E N , a n d S O U T H W IC K , C ircu it J u d g e s. PER CURIAM: * Rhonda Fleming, federal prisoner # 20446-009, appeals the district court’s dismissal of her pro se and in forma pauperis complaint. We AFFIRM. U n i t e d S t a te s C o u r t o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Aug ust 7, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 13-10042 Document: 00512334479 Page: 1 Date Filed: 08/07/2013No. 13-10042 FACTS AND PROCEDURAL HISTORY Fleming w as convicted of conspiracy to commit health care fraud and wire fraud. She was also convicted of money laundering. She is currently serving a 360-month sentence based on these convictions. Fleming filed a pro se complaint in a state district court, a lleging various clai m s related t o the conditions of the facility where she w as housed as a pretrial d etainee. 1 She also sought relief from a civil forfeiture judgment obtained against h er property during the underlying criminal action. Fleming asked to proceed in forma pauperis

. The government removed the case to federal district court pursuant to 28 U.S.C. §§ 1441 a nd 1442. The government then filed a motion to dismiss based

on the t hree-strikes rule found in 28 U.S.C. § 1915(g). 2 Fleming responded to the motion, arguing that the provision did not apply t o h er b ecause she did not “bring” her lawsuit in federal c ourt; instead, the government removed the action to federal court. I n i t s r e ply, the government argued that dismissal was

n o n e t heless a ppropriate under 28 U.S.C. § 1915A because Fleming’s claims w e r e time-barred. The d i s t rict court agreed a nd dismissed Fleming’s claims under Section 1915A. The court explained that all of the claims in Fleming’s c o mplaint

were alleged to have occurred between 2007 and 2 009. Fleming’s c omplaint was

1 Sp ecif ically, Flem ing alleged cons titutional v iolations und er Bi v ens v
. S i x U nknow n N a m ed A gents of t he Federa l Burea u of N a rcoti cs , 403 U

. S. 388 ( 1971) and civil rights claim s und er 28 U

. S. C. § 1983. She als o s ought relief und er the Fed eral T ort Claim s Act ( “FTCA”) and the Am ericans w ith D is abilities Act ( “AD A”)

.

2 28 U

. S. C. § 1915( g ) p rovid es :
In no event s hall a p ris oner bring a civil action or ap p eal a jud gm ent in a civil action or p roceed ing und er this s ection i f t h e pris oner has , on 3 or m ore p rior
o c cas ions , while incarcerated or d etained in any f acility, brought an a c t i o n o r ap p eal in a court of the U nited States that w as d is mis sed on the ground s that it is f rivolous , m alicious , or f ails to s tate a claim up on whi c h relief m ay be granted , unles s t h e p ris oner is und er im m inent d anger of s erious p hys ical injury. 2 Case: 13-10042 Document: 00512334479 Page: 2 Date Filed: 08/07/2013No. 13-10042

not filed until 2012, w hich was beyond the applicable statute of limitations. The distric t c o u r t a l s o c o n c l u d e d t h a t S e c t i o n 1915(g)’s three-strikes provision did not apply because the government had removed the case to federal court. Fleming filed a motion to reconsider. In i ts order addressing the motion, t h e d istrict court stated that upon further consideration, i t was uncertain whether Section 1915(g) barred Fleming’s co m p l a i n t

. Accordingly, the court order e d a d d i t i onal briefing on the issue. In its s upplemental brief, the government argued that Section 1915(g) should b ar Fleming from proceeding in forma pauperis given that s he was an inmate who had three o r more cases or appeals dismissed as frivolous and was attempting to file a new case against federal agencies and employees without paying a filing fee. The dis t r i c t c o urt entered a second order that continued to hold that dismissal under S e ction 1915A was appropriate, but it held that an additional

reason for dismissal was that Fleming’s claims were barred by the three-strikes provision in Section 1915(g). In r esponse, Fleming filed a letter with the district court, advising that she was p repared to pay t he filing f ee and asking t he court to order the fee d e d u c t e d f r om h er prison trust account a nd forwarded to the district c lerk. The district court construed the letter a s a motion to alter or amend the judgment pursuant to Rule 59(e) of the F edera l R u l e s of Civil Procedure. The court denied the motion, e xplaining that because Fleming had initially sought to circumvent the three-strikes provision of S ection 1915(g) and avoid paying t he filing fee by filing her complaint in state court, her d esire now to pay the fee was not a basis for relief under Rule 59(e). DISCUSSION We review dismissals under Section 1915A de novo
. Velasquez v. Woods , 329 F.3d 420, 421 (5th Cir. 2003). Because Fleming is a prisoner seeking redress from g overnment entities and government employees, her complaint is subject to preliminary screening by t he district court. 28 U.S.C. § 1915A(a). As part of

3 Case: 13-10042 Document: 00512334479 Page: 3 Date Filed: 08/07/2013No. 13-10042

this review, the district court is a uthorized to dismiss a complaint if the action

“ is frivolous, malicious, or f ails to state a claim upon which relief may b e granted.” 28 U.S.C

. § 1 915A(b)(1). H ere, the district court’s i nitial order dismissed Fleming’s complaint because the claims raised w ere barred by the applicable statute of l i m i tations and were frivolous. In its s econd order of dismissal, the court added the three-strikes provision as an a lternative basis for dismissal. Fleming’s claims related to the conditions of her confinement as a pre-trial detainee and referred to events that occurred between 2007 a nd 2009. A ll of the claims were subject t o a two-year statute of limitations. 3 Fleming did not file her complaint until 2 012. Accordingly, the d istrict court did n o t e r r in dismissing her complaint for failure to state a claim given that a ll of F leming’s claims were barred by the s tatute of l imi t a t i o n s
. We need not reach the d istrict court’s alternative basis for dismissal that Fleming’s claims about the conditions of her confinement were also barred by Section 1915(g)’s three-strikes rule. Fleming also challenged the propriety of an earlier civil forfeiture order. Fleming claims that h er due process rights w e re v i olated b ecause she did not receive the requisite n otice before h er property was forfeited. The district court did not a ddress this issue in its initial order o f dismissal. The c ourt later asked for s upplemental briefing o n the issue in re s ponse to Fleming’s motion for reconsideration. The government argued in its brief that Fleming had already raised this claim in prior l itigated action s and, therefore, it w as barred by res judicata. I n its subsequent order of dismissal, the d istrict court did not address

res judic a t a
. Instead, the court concluded that the civil forfeiture claim was barred by the three-strikes provision of Section 1915(g).

3 See Brow n v
. N

a ti onsba nk Corp

. , 188 F .3d 579, 590 (5th Cir. 1999) ( Bi v ens ) ; Pri ce v
. Ci ty of Sa n A ntoni o , 4 3 1 F

. 3 d 8 9 0 , 8 92 ( 5th Cir. 2005) ( Section 1983) ; 28 U

. S. C

. § 2401( b) ( FTCA) ; H

ol m es v
. Tex. A &M U

ni v
. , 145 F. 3d 681, 684 ( 5th C ir. 1998) ( AD A )

. 4 Case: 13-10042 Document: 00512334479 Page: 4 Date Filed: 08/07/2013No. 13-10042

“Under res judicata, a f inal judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could h ave been raised in that action.” Oreck Direct, LLC v. D yson, Inc. , 560 F.3d 398, 401 (5th Cir. 2 009). Res judicata applies where t hese four elements a r e m e t : “(1) the
p a r t i e s must be identical in the t wo actions; (2) the prior judgment must h a v e been rendered by a court of competent jurisdiction; (3) t here must be a final judgme n t on the merits; and (4) the same claim or cause of a ction must be involved in both cases.” Id. Based o n our review o f the r e c o r d, F leming’s challenges t o the forfeiture were fully litigated i n the United States District Court o f the Southern District of Texas and t h is court. 4 Therefore, h e r claims related to the civil f

orfe i t u r e o r d e r are barred by res judicata. Although the district court did not rely on res judicata as a basis for d ismissal, this c o urt m ay affirm the district court on any grounds supported by the record. B r e w s t e r v. Dretke , 587 F.3d 764, 769 n.3 (5th Cir. 2009). Because r e s j u d i c a t a provides a sufficient basis for d ismissal, we need not address whether Flem ing’s claim is also barred by the three-strikes provision of Section 1915(g). Fleming h as also f

iled a motion to remand the cas e t o t h e district court. As s tated, Fleming attempted to p ay the filing f ee after the district court entered i ts second order dismissing her case under Section 1915(g). The district co u r t refused to accept the fee. S ection 1915A, though, “applies regardless of whether the plaintiff has pa i d a filing fee or is proceeding i n forma pauperis

. ” Ruiz v. United S tates , 160 F.3d 2 73, 274 (5th Cir. 1998). Because Fleming f ails to state

a claim upon which r elief could be granted, her complaint was p r o p erly dismissed under Section 1915A and her attempt now to pay t he filing fee is of no effect. Fleming’s motion to remand is denied AFFIRMED.

4 Flem ing f

iled a m otion to s et as id e the f orf eiture in 2009. The United States D is trict Court in the Southern Dis trict of Texas d e n i e d t h e m otion, and this court af f irm ed

. U

ni ted Sta tes v
. $670, 706. 55 , 367 F

. Ap p ’x 532 ( 5th Cir. 2010)

. 5 Case: 13-10042 Document: 00512334479 Page: 5 Date Filed: 08/07/2013