Shahram Shakouri v. Glen Whitfield , 923 F.3d 407 ( 2019 )

Case: 17-20738 Document: 00514938691 Page: 1 Date Filed: 05/01/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-20738
FILED
May 1, 2019
Lyle W. Cayce
SHAHRAM SHAKOURI, Clerk
Plaintiff–Appellant,
v.
LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION; KELLI WARD;
MELODEE BLALOCK; BOBBIE TURNER-PARKER,
Defendants–Appellees.
Appeal from the United States District Court
for the Southern District of Texas
Before OWEN, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:
Shahram Shakouri appeals the district court’s denial of his motion to
remand and the dismissal of his claims. We affirm.
I
Shakouri sued eleven individuals associated with the Texas prison
system, alleging that they violated his rights under the First, Thirteenth, and
Fourteenth Amendments to the United States Constitution as well as the
Texas Constitution and a Texas statute. Shakouri’s claims are based on
repercussions that he asserts he endured because of his religiously motivated
decision not to participate in an unpaid prison work program. According to
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No. 17-20738
Shakouri, those repercussions violated his First Amendment right to freedom
of religion and his Fourteenth Amendment right to equal protection of the law,
as well as his right to be free from retaliation for exercising his constitutional
rights. Shakouri also alleges that the unpaid prison work program violates the
Thirteenth Amendment.
Shakouri filed his complaint in Texas state court. Glen Whitfield, one of
the named defendants, removed the case to the United States District Court
for the Southern District of Texas. Shakouri filed a motion to remand the case,
which was denied. The district court transferred Shakouri’s claims against
certain defendants to the Western District of Texas then dismissed all of
Shakouri’s claims against the remaining defendants. Shakouri appeals the
district court orders denying his motion to remand and dismissing his case.
II
Shakouri contends that the district court erred when it denied his motion
to remand because Whitfield’s notice of removal was untimely under 28 U.S.C.
§ 1446(b)(1). Section 1446(b)(1) requires notices of removal to be filed within
thirty days of “the date on which [the moving defendant] is formally served
with process.” 1 If a defendant is never properly served, the thirty-day limit for
filing a notice of removal does not commence to run. 2 We apply Texas law to
determine whether Whitfield was properly served. 3 The only evidence in the
record of any service of process is a Citation for Personal Service addressed to
the Attorney General of Texas, not Whitfield. Under Texas law, “[a] state
1 Thompson v. Deutsche Bank Nat’l Tr. Co., 775 F.3d 298, 303 (5th Cir. 2014) (citing
Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-48 (1999)); 28 U.S.C.
§ 1446(b)(1).
2 Thompson, 775 F.3d at 304.
3 Id. (quoting City of Clarksdale v. BellSouth Telecomms., Inc., 428 F.3d 206, 210 (5th
Cir. 2005)).
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employee is not served through service on the state attorney general.” 4
Accordingly, there is no evidence that Whitfield was properly served and,
consequently, no evidence that Whitfield’s notice of removal was untimely
under § 1446(b)(1).
Shakouri also contends that the defendants did not comply with
§ 1446(b)(2)(A), which requires “all defendants who have been properly joined
and served [to] join in or consent to the removal of the action.” 5 By its terms,
§ 1446(b)(2)(A) does not impose any requirements on defendants who were not
properly served. As discussed, there is no evidence that any defendants were
properly served. Accordingly, removal did not violate § 1446(b)(2)(A) even
though no defendants joined Whitfield’s notice of removal or filed consents to
removal. The district court did not err when it denied Shakouri’s motion to
remand.
III
The district court dismissed Shakouri’s First and Fourteenth
Amendment claims as “malicious.” The district court determined that it had
the authority to do so under 28 U.S.C. § 1915(e)(2)(B)(i), which states,
“Notwithstanding any filing fee . . . that may have been paid, the court shall
dismiss the case at any time if the court determines that . . . the action or
appeal . . . is frivolous or malicious.” 6 This court has not determined whether
§ 1915(e)(2)(B)(i), which is included in a section titled “Proceedings in forma
pauperis,” 7 applies when the plaintiff is not proceeding in forma pauperis.
However, even if § 1915(e)(2)(B)(i) does not apply when a plaintiff is not
proceeding in forma pauperis, § 1915A(b)(1) requires courts to dismiss
4 Matthews v. Lenoir, 439 S.W.3d 489, 497 (Tex. App.—Houston [1st Dist.] 2014, pet.
denied).
5 28 U.S.C. § 1446(b)(2)(A) (emphasis added).
6 Id. § 1915(e)(2)(B)(i).
7 Id. § 1915.
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malicious claims brought by a prisoner against an employee of a governmental
entity. 8 Accordingly, Shakouri’s claims were subject to dismissal if they
qualified as malicious.
We review a district court’s determination that a claim was malicious for
abuse of discretion. 9 We have repeatedly stated that a claim qualifies as
malicious if it is virtually identical to and based on the same series of events
as a claim previously brought by the plaintiff. 10 The district court dismissed
Shakouri’s First and Fourteenth Amendment claims as malicious because
Shakouri had previously brought claims alleging that forcing him to
participate in a prison work program without pay violated his rights to freedom
of religion and equal protection of the law. The district court did not abuse its
discretion when it dismissed those claims as malicious. 11
In addition to requiring district courts to dismiss malicious claims,
§ 1915(e)(2)(B) and § 1915A(b)(1) require district courts to dismiss a cause of
action that “fails to state a claim on which relief may be granted.” 12 The district
court dismissed Shakouri’s retaliation and Thirteenth Amendment claims for
failure to state a claim. We review the district court’s exercise of its § 1915
authority to dismiss for failure to state a claim de novo. 13 Shakouri failed to
state a claim for a violation of his Thirteenth Amendment rights because
8 Id. § 1915A(b)(1).
9 Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997) (citing Graves v. Hampton, 1
F.3d 315, 317 (5th Cir. 1993)) (reviewing a § 1915(e) dismissal for abuse of discretion).
10 Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988).
11 See Shakouri v. Raines, No. 4:11-CV-126-RAJ, 2014 WL 12531365, at *4 (W.D. Tex.
Jan. 27, 2014) (analyzing Shakouri’s claim that a prison official “declined to respect [his]
claimed subjective belief that it was against his religion to work without pay”); Shakouri v.
Raines, 582 F. App’x 505, 506 (5th Cir. 2014) (“[Shakouri] alleged claims against various
prison officials and employees for violating his rights to freedom of religion, equal protection,
and access to courts and for retaliating against him for asserting his right to exercise his
Baha’i faith.”).
12 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1).
13 Legate v. Livingston, 822 F.3d 207, 209 (5th Cir. 2016).
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“inmates sentenced to incarceration cannot state a viable Thirteenth
Amendment claim if the prison system requires them to work.” 14 Shakouri’s
retaliation claim fails because it alleges that the defendants retaliated against
Shakouri for exercising his constitutional right not to participate in the prison
work program, but he has no such right. 15
Having determined that the district court properly dismissed all of
Shakouri’s federal claims, the district court did not abuse its discretion in
declining to exercise supplemental jurisdiction over Shakouri’s state-law
claims. 16
* * *
AFFIRMED.
14 Ali v. Johnson, 259 F.3d 317, 317 (5th Cir. 2001).
15 See id. (explaining that prisoners like Shakouri do not have a Thirteenth
Amendment right not to participate in unpaid prison work programs); Shakouri, 2014 WL
12531365, at *4-5 (W.D. Tex) (explaining why requiring Shakouri to participate in the prison
work program does not violate his First Amendment rights).
16 See 28 U.S.C. § 1367(c)(3) (“The district courts may decline to exercise supplemental
jurisdiction over a claim . . . if . . . the district court has dismissed all claims over which it has
original jurisdiction . . . .”).
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