### 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, S OUTHWICK , and H IGGINSON , Circuit Judges

. PER CURIAM:
Shahram Shakouri appeals the district court’s den ial of his motion to
remand and the dismiss al of his claims. We affirm.
I Shakouri sued eleven individuals associated with the Texas prison system , alleging that they violat ed his rights under the First, Thirteenth, and
Fourteenth Amendments to the United State s Constitution as well as the
Texas Constitution and a Texas statut e

. 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 Case: 17-20738 Document: 00514938691 Page: 1 Date Filed: 05/01/2019No. 17

- 20738

2 Shakouri, those repercussions violate d 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 h is complaint in Texas state court. Glen Whitfield , one of
the named defendant s, removed the case to the United States District Court for the Southern Dis trict 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 claim s against the remaining defen dants. 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 notice s 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 o f 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 Strin ging, 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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3 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 rem oval 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

. ” Th e 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 ti me 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

. Howe ver, 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. Case: 17-20738 Document: 00514938691 Page: 3 Date Filed: 05/01/2019No. 17

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4 malicious claims brought by a prisoner against a n 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 w as malicious for
abuse of discretion. 9 We have repeatedly stated that a claim qualifies as malicious if it is virtual ly 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 al leging 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

. T he district court did not abuse its
discretion when it dismissed those claims as malicious. 11
In addi tion 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 “fail s 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 th at 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 emp loyees 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). Case: 17-20738 Document: 00514938691 Page: 4 Date Filed: 05/01/2019No. 17

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5 “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
Shako uri 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 discr etion in
declin ing 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 125313 65 , 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 S ee 28 U.S.C. § 1367(c)(3) (“The district courts may decline to exercise supplemental jur isdiction over a cl aim

. . . if

. . . the district court has dismissed all claims over which it has original ju risdiction

. . . . ”). Case: 17-20738 Document: 00514938691 Page: 5 Date Filed: 05/01/2019