Vafaiyan v. City of Wichita Falls Texas , 317 F. App'x 406 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 25, 2009
No. 08-10179
Summary Calendar Charles R. Fulbruge III
Clerk
REZA VAFAIYAN
Plaintiff-Appellant
v.
CITY OF WICHITA FALLS TEXAS; NORTH TEXAS DRUG TASK FORCE;
CHRISTOPHER L TAYLOR, Police Officer; MARK BALL, Department of Public
Safety; WALGREENS; GREG WARREN, Walgreens Manager
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:06-CV-45
Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Reza Vafaiyan, Texas prisoner # 1361129, seeks leave to proceed in forma
pauperis (IFP) on appeal from the district court’s denial of his F ED. R. C IV.
P. 60(b) motion for reconsideration of the dismissal of his 42 U.S.C. § 1983
complaint. The district court certified that the appeal was not taken in good
faith. Vafaiyan argues that the district court erred by denying his motion for the
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-10179
appointment of counsel and when it dismissed defendant Walgreen Co. from the
litigation. He also argues that his failure to timely serve the remaining
defendants was due to inadvertence or excusable neglect and therefore the
district court erred by denying Rule 60(b) relief.
Our inquiry “is limited to whether the appeal involves legal points
arguable on their merits (and therefore not frivolous).” Howard v. King, 707
F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and citations omitted).
If we uphold the district court’s certification that the appeal is not taken in good
faith and the appeal is frivolous, we may dismiss the appeal sua sponte under
5 TH C IR. R. 42.2. See Baugh v. Taylor, 117 F.3d 197, 202 and n.24 (5th Cir.
1997). Vafaiyan’s motion for reconsideration was filed more than 10 days after
the entry of the district court’s January 9, 2007, order dismissing his case. This
appeal therefore does not include an appeal of the January 9, 2007, judgment of
dismissal. See F ED. R. A PP. P. 4(A)(1)(A), 4(a)(4)(A); Edwards v. City of Houston,
78 F.3d 983, 995 (5th Cir. 1996)(en banc).
Vafaiyan fails to explain how the district court’s denial of his motion for
the appointment of counsel relates to his appeal of the denial of his Rule 60(b)
motion. As Vafaiyan did not move for the appointment of counsel in the district
court in connection with his Rule 60(b) motion, his argument to this court
regarding whether the district court should have appointed counsel raises an
issue that is not relevant to the instant appeal, which, as discussed above, solely
involves Vafaiyan’s appeal of the denial of his Rule 60(b) motion. Also, Vafaiyan
does not argue, and the record does not suggest, that this case presents
exceptional circumstances warranting the appointment of counsel. See Ulmer
v. Chancellor, 691 F.2d 209, 212-13 (5th Cir. 1982). Thus, Vafaiyan’s argument
regarding the appointment of counsel does not raise a nonfrivolous issue. See
Howard, 707 F.2d at 220.
Also, Vafaiyan’s argument regarding Walgreen Co. is simply a challenge
to the district court’s January 9, 2007, dismissal of his claims against Walgreen
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No. 08-10179
Co. pursuant to F ED. R. C IV. P. 12(b)(1) and (6) for lack of subject matter
jurisdiction and for failure to state a claim. Vafaiyan did not challenge this
portion of the January 9, 2007, judgment in his Rule 60(b) motion, which
challenged the district court’s determination that the complaint should be
dismissed for failing to timely serve the remaining defendants. Vafaiyan does
not provide an explanation of how the dismissal of Walgreen Co. provides a basis
for his challenge to the district court’s denial of his Rule 60(b) motion. His
argument regarding Walgreen Co. thus does not set forth a nonfrivolous issue
for appeal. See Howard, 707 F.2d at 220; see also Brinkmann v. Dallas County
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987); Grant v. Cuellar, 59
F.3d 523, 524-25 (5th Cir. 1995).
Finally, the record establishes that the district court expressly advised
Vafaiyan of the rules governing timely service and granted Vafaiyan an
extension of time to properly serve the defendants. Moreover, prior to
dismissing the case for failure to properly serve the defendants, the district court
provided Vafaiyan an opportunity to explain why he was unable to serve the
defendants in a timely fashion. The district court did not abuse its discretion by
dismissing the complaint pursuant to F ED. R. C IV. P. 4(m), and Vafaiyan’s
argument regarding his inability to serve the defendants does not establish that
the district court abused its discretion when it denied Rule 60(b) relief. See
Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 353 (5th Cir. 1993) (indicating
that ignorance of the law is an insufficient basis for Rule 60(b)(1) relief); Peters
v. United States, 9 F.3d 344, 345 (5th Cir. 1993) (observing that ignorance of the
rules does not suffice for good cause for failure to comply with the service
requirements of F ED. R. C IV. P. 4); Systems Signs Supplies v. United States Dep’t
of Justice, 903 F.2d 1011, 1013 (5th Cir. 1990) (observing that pro se status does
not excuse a litigant’s failure to effect service); see also Berry v.
CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992) (discussing heightened
standard of review of a F ED. R. C IV. P. 41(b) motion to dismiss for failure to
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No. 08-10179
prosecute where the dismissal was effectively with prejudice due to operation of
the statute of limitations).
Vafaiyan has failed to demonstrate that this appeal raises an issue that
has arguable merit. His appeal is dismissed as frivolous. See King, 707 F.2d at
220; 5 TH C IR. R. 42.2. Vafaiyan is hereby informed that the dismissal of this
appeal as frivolous counts as a strike for purposes of 28 U.S.C. § 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Vafaiyan is cautioned
that once he accumulates three strikes, he may not proceed IFP 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. See § 1915(g).
IFP DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.
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