     Case: 12-10440       Document: 00512187101         Page: 1     Date Filed: 03/26/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          March 26, 2013
                                     No. 12-10440
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

TRACY RHINE,

                                                  Plaintiff-Appellant

v.

DR. JOHN SCHMIDT,

                                                  Defendant-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:12-CV-64


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Tracy Rhine, federal prisoner # 38612-177, appeals the dismissal of her 42
U.S.C. § 1983 complaint against Dr. John Schmidt. She complained of the lack
of medical treatment for her knee and lower back. The district court dismissed
the complaint with prejudice pursuant to 28 U.S.C. § 1915A(b)(1) for failure to
state a claim on which relief may be granted.
       Prior to the filing of the instant complaint, Rhine raised the same claim
against Dr. Schmidt in Rhine v. City of Mansfield, No. 4:11-CV-76 (N.D. Tex.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 12-10440     Document: 00512187101      Page: 2   Date Filed: 03/26/2013

                                  No. 12-10440

Aug. 25, 2011). This claim was dismissed for failure to state a claim on which
relief may be granted, and Rhine’s appeal of that judgment is pending.
      The district court shall dismiss a civil action seeking redress from an
employee of a governmental entity if the court determines that the action is
malicious. § 1915A(b)(1). Because the instant complaint was duplicative of a
previously filed claim in another case, the complaint should have been dismissed
without prejudice as malicious. See Pittman v. Moore, 980 F.2d 994, 994-95 (5th
Cir. 1993).   Although the district court did not dismiss the complaint as
malicious, we may affirm the district court’s judgment on any ground that is
supported by the record. See Sojourner T v. Edwards, 974 F.2d 27, 30 (5th Cir.
1992). Accordingly, we affirm the judgment but modify the dismissal to be
without prejudice to Rhine’s prosecution of her claim in the prior-filed action.
See Pittman, 980 F.2d at 995.
      The district court’s dismissal of Rhine’s § 1983 complaint counts as a strike
under § 1915(g). See § 1915(g); Adepegba v. Hammons, 103 F.3d 383, 387-88
(5th Cir. 1996). Rhine has two other strikes. Rhine v. City of Mansfield, No.
4:11-CV-76 (N.D. Tex. Feb. 22, 2012); Rhine v. Deaton, No. 4:11-CV-26 (N.D. Tex.
Apr. 8, 2011). Because Rhine has accumulated at least three strikes, she may
not proceed in forma pauperis in any civil action or appeal filed in a court of the
United States while she is incarcerated or detained in any facility unless she is
under imminent danger of serious physical injury. See § 1915(g). She is also
warned that any future frivolous or repetitive filings in this court or any court
subject to this court’s jurisdiction will subject her to additional sanctions. She
should review all pending matters to ensure that they are not frivolous.
      AFFIRMED AS MODIFIED; § 1915(g) BAR IMPOSED.




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