                                                              [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                           FILED
                      -------------------------------------------U.S. COURT OF APPEALS
                                   No. 07-13125                    ELEVENTH CIRCUIT
                                                                    FEBRUARY 1, 2008
                             Non-Argument Calendar
                     -------------------------------------------- THOMAS K. KAHN
                                                                      CLERK

                  D.C. Docket No. 07-00038-CV-1-MP-AK

JAMES HARMON, III,
                                                   Plaintiff-Appellant,

                                     versus

JUDGE PETER D. WEBSTER,
EDWARD T. BARFIELD,
MARGUERITE DAVIS, Appellate Judge,
First District Court of Appeal,
EDWARD C. HILL, JR.,
                                                        Defendants-Appellees.
            ----------------------------------------------------------------
                 Appeal from the United States District Court
                       for the Northern District of Florida
            ----------------------------------------------------------------

                           (February 1, 2008)

Before EDMONDSON, Chief Judge, BLACK and MARCUS, Circuit Judges.

PER CURIAM:
      Plaintiff-Appellant James Harmon, III, a Florida prisoner proceeding pro se,

appeals the district court’s dismissal of his 42 U.S.C. § 1983 complaint against

three judges of the Florida First District Court of Appeals and a prosecutor with

the Florida State Attorney General’s Office (collectively the “Defendants”) for

failure to state a claim upon which relief may be granted under 28 U.S.C. §

1915A(b)(1). The district court concluded that Harmon’s complaint was barred by

res judicata, and directed that the dismissal be classified as a second “strike” for

purposes of 28 U.S.C. § 1915(g). No reversible error has been shown; we affirm.

      Harmon, relying on Denton v. Hernandez, 112 S.Ct. 1728 (1992), argues

that his previous section 1983 complaint against Defendants, filed in forma

pauperis (“IFP”), was dismissed as frivolous under the court’s discretionary

power. Such a dismissal, he argues, is not “on the merits,” and thus, does not have

a res judicata effect on the filing of a later paid complaint against the same

Defendants raising the same allegations.

      We review de novo a district court’s sua sponte dismissal for failure to state

a claim under 28 U.S.C. § 1915A(b)(1), using the same standards that govern

Fed.R.Civ.P. 12(b)(6) dismissals. Leal v. Ga. Dep’t of Corr., 254 F.3d 1276,

1278-79 (11th Cir. 2001). We review a district court’s application of res judicata




                                           2
principles de novo. Kizzire v. Baptist Health Sys., Inc., 441 F.3d 1306, 1308 (11th

Cir. 2006).1

       Res judicata will bar a later action if the following requirements are met: (1)

the prior decision was rendered by a court of competent jurisdiction; (2) there was

a final judgment on the merits; (3) the parties were identical in both suits; and (4)

the prior and present causes of action are the same. Jang v. United Tech. Corp.,

206 F.3d 1147, 1149 (11th Cir. 2000) (citation omitted).

       Harmon previously filed a section 1983 complaint against the same

Defendants alleging the identical claims about their acts in his criminal

proceedings as the instant complaint. The district court dismissed this previous

complaint for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii) because

Defendants were entitled to absolute immunity. This prior dismissal satisfies the

elements of res judicata. A court of competent jurisdiction rendered a final

judgment on the merits, and the present complaint raises the same claims against

the same parties. See Jang, 206 F.3d at 1149; see also NAACP v. Hunt, 891 F.2d

1555, 1560 (11th Cir. 1990) (a dismissal for failure to state a claim under

Fed.R.Civ.P. 12(b)(6) is an adjudication on the merits for res judicata purposes).


  1
   In addition, we liberally construe pro se pleadings. See Tannenbaum v. United States, 148 F.3d
1262, 1263 (11th Cir. 1998).

                                               3
      Harmon’s reliance on Denton is misplaced. In Denton, the United States

Supreme Court construed a prior version of the IFP statute, 28 U.S.C. § 1915(d),

which granted district courts broad discretion in dismissing complaints as

frivolous and allowed them to dismiss an IFP complaint “if satisfied that the action

[was] frivolous or malicious.” Denton, 112 S.Ct. at 1733-34. The Court explained

that a section 1915(d) dismissal was not on the merits, but instead, was an exercise

of the court’s discretion under the IFP statute such that the dismissal did not

prejudice the filing of a later paid complaint making the same allegations. Id. at

1734. But Harmon’s previous complaint was not dismissed as frivolous pursuant

to the discretionary power afforded by section 1915(d). Instead, it was dismissed

for failure to state a claim under the mandatory language of section 1915(e)(2),

which provides that a district court shall dismiss a case at any time if, among other

things, it fails to state a claim upon which relief may be granted.

See § 1915(e)(2)(B)(ii) (emphasis added); see also Bilal v. Driver, 251 F.3d 1346,

1349 (11th Cir. 2001) (noting changes made to the IFP statute by the Prison

Litigation Reform Act, including mandatory dismissal and the addition of




                                          4
dismissal for failure to state a claim). So, Harmon’s contention that the prior

dismissal was discretionary is incorrect, and Denton is not applicable here.2

       Harmon also argues that it was error for the district court to assign him a

second “strike” under section 1915(g) because his prior section 1983 complaint

was dismissed as frivolous, and thus, was without prejudice.

       We review a district court’s determination of qualifying strikes under

section 1915(g) de novo. Rivera v. Allin, 144 F.3d 719, 723 (11th Cir. 1998),

abrogated in part on different grounds by Jones v. Bock, 127 S.Ct. 910, 920-21

(2007). Section 1915(g) provides the following rule:

       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 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.

28 U.S.C. § 1915(g).

       Under the plain language of section 1915(g), both the prior and instant

dismissals qualify as “strikes” because both complaints were dismissed for failure

to state a claim under section 1915(e)(2)(B)(ii) and section 1915A(b)(1). See §


   2
    In its order dismissing the instant complaint, the district court indicated that the court’s prior
dismissal was discretionary. This was incorrect because the prior complaint was dismissed under
the mandatory language of the revised IFP statute.

                                                  5
1915(g). Harmon’s argument that a discretionary determination of frivolity does

not qualify as a “strike” is without consequence because, as noted, his prior

complaint was dismissed for failure to state a claim under a mandatory provision,

not as frivolous under a discretionary provision.

      In sum, the district court correctly determined that Harmon’s instant section

1983 complaint failed to state a claim upon which relief may be granted because it

was barred by res judicata, and correctly classified this dismissal as a second

“strike” for purposes of section 1915(g). Accordingly, we affirm the dismissal.

      AFFIRMED.




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