from the United States District Court for the Southern
District of Texas
OWEN, SOUTHWICK, and HIGGINSON, Circuit Judges.
Shakouri appeals the district court's denial of his
motion to remand and the dismissal of his claims. We affirm.
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 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.
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.
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." If a defendant is
never properly served, the thirty-day limit for filing a
notice of removal does not commence to run. We apply Texas
law to determine whether Whitfield was properly
served. 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 employee is not served
through service on the state attorney
general."Accordingly, there is no evidence that
Whitfield was properly served and, consequently, no evidence
that Whitfield's notice of removal was untimely under
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." 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.
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." This court has not determined whether
§ 1915(e)(2)(B)(i), which is included in a section
titled "Proceedings in forma pauperis,
" 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 malicious claims brought by a
prisoner against an employee of a governmental
entity. Accordingly, Shakouri's claims were
subject to dismissal if they qualified as malicious.
review a district court's determination that a claim was
malicious for abuse of discretion. 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. 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
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." 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. Shakouri
failed to state a claim for a violation of his Thirteenth
Amendment rights because "inmates sentenced to
incarceration cannot state a viable Thirteenth Amendment
claim if the prison system requires them to
work." Shakouri's retaliation claim fails