IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-20738

SHAHRAM SHAKOURI, 

 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 

United States Court of Appeals

Fifth Circuit

FILED

May 1, 2019

Lyle W. Cayce

Clerk

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2

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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