     Case: 15-20114      Document: 00513430724         Page: 1    Date Filed: 03/21/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit

                                      No. 15-20114                         FILED
                                                                      March 21, 2016
                                                                      Lyle W. Cayce
HASSAN ALI PEJOUHESH,                                                      Clerk

                                                 Plaintiff-Appellant

v.

CAPITAL ONE BANK,

                                                 Defendant-Appellee


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:14-CV-2060


Before DAVIS, JONES and HAYNES, Circuit Judges.
PER CURIAM: *
       Hassan Ali Pejouhesh, federal prisoner # 78128-279, moves for leave to
proceed in forma pauperis (IFP) to appeal the dismissal of his civil complaint
for failure to state a claim on which relief can be granted. The district court
denied his motion to appeal IFP and certified that his appeal was not taken in
good faith pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rule of Appellate
Procedure 24(a)(3). By moving this court for leave to proceed IFP, Pejouhesh
is challenging the district court’s certification decision. See Baugh v. Taylor,


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                   No. 15-20114

117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into an appellant’s good faith
“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 citation omitted).
         Pejouhesh asserts that the district court improperly dismissed his claims
for breach of contract and a violation of due process. He has not set forth any
facts to support a claim for a breach of contract. See Lewis v. Bank of America,
N.A., 343 F.3d 540, 544-45 (5th Cir. 2003). While he alleges that he had a valid
and active lease agreement with Capital One for a safe deposit box, he has not
proffered the agreement, identified the terms of the agreement, or set forth the
provisions that Capital One did not follow. He also has failed to assert facts to
support that Capital One breached any duties under the agreement or that any
damages are attributable to a breach. See id. Likewise, he has not alleged any
facts to support his assertion that Capital One violated his due process rights
because he has not set forth any bases for the conduct of Capital One, a private
party, to be deemed state action. See Daniel v. Ferguson, 839 F.2d 1124, 1131
(5th Cir. 1988).
         He additionally maintains that the district court wrongly dismissed his
complaint without first conducting a pretrial conference under Federal Rule of
Civil Procedure 16. However, Rule 16(a) suggests that a pretrial conference is
not mandatory and, in this case, the district court effectively concluded that a
pretrial conference was unnecessary because Pejouhesh’s complaint failed to
allege sufficient facts to state a plausible claim for relief. See FED. R. CIV.
P. 16(a); Ashcroft v. Iqbal, 566 U.S. 662, 678 (2009). Regardless, Pejouhesh
has not alleged that the district court’s failure to hold a pretrial conference
affected his ability to state a claim or otherwise harmed him. See FED. R. CIV.
P. 61.



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                                  No. 15-20114

      Pejouhesh argues that Capital One fraudulently moved the district court
for an extension of time to file a responsive pleading by misstating the deadline
to respond. He contends that Capital One, which removed this case to federal
court on the basis of diversity jurisdiction, did not inform the district court that
the deadline was determined by the date on which the complaint was served
in state court. However, because the complaint was properly removed, it was
subject after removal to the Federal Rules of Civil Procedure. FED. R. CIV.
P. 81(c)(1); Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427 (1996).
Under the applicable federal rules, Capital One correctly represented in its
motion for extension of time that its response was due no later than seven days
after the notice of removal was filed. FED. R. CIV. P. 81(c).
      Also, Pejouhesh argues that the district court wrongly concluded that his
claims alleging negligence, negligent misrepresentation, and a violation of the
Texas Deceptive Trade Practices Act were untimely. He further suggests that
his attempts to seek timely relief were frustrated by Capital One. The district
court concluded that the untimeliness of Pejouhesh’s claims was an alternative
basis for dismissal; the district court also determined that Pejouhesh’s claims
were inadequately pled because he failed to allege sufficient facts to support
them. Pejouhesh has not briefed any argument contesting the district court’s
findings regarding the sufficiency of his allegations and, thus, has not shown
that his claims, even if timely, were wrongly dismissed. See FED. R. CIV. P. 61;
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
      He further argues that he correctly served his complaint on Capital One.
Although Capital One argued insufficient service of process as a basis on which
Pejouhesh’s complaint should be dismissed, the district court did not dismiss
the complaint on this basis. Instead, the district court dismissed the complaint
for failure to state a claim. Thus, the argument is effectively inapposite.



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                                  No. 15-20114

      Additionally, Pejouhesh maintains that the district court wrongly denied
his motions for extensions of time to amend his complaint. The record reflects
that district court gave Pejouhesh ample opportunity to amend his complaint,
considered his belated motion for leave to amend, and dismissed the complaint
with prejudice only after concluding that the pleading deficiencies in the initial
complaint had not been rectified. To the extent that the district court denied
Pejouhesh’s motion to amend his complaint to add non-diverse parties whose
inclusion would destroy diversity, the denial was not an abuse of discretion.
See Fahim v. Marriott Hotel Servs., Inc., 551 F.3d 344, 347 (5th Cir. 2008); 28
U.S.C. § 1447(e); Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987).
      Finally, Pejouhesh asserts that the district court erred in finding that he
did not make the required showing for the appointment of counsel. He has not
shown exceptional circumstances warranting the appointment of counsel. See
Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). Thus, the district court
did not abuse its discretion in denying him appointed counsel. See Baranowski
v. Hart, 486 F.3d 112, 126 (5th Cir. 2007).
      Because Pejouhesh has failed to demonstrate that his appeal involves a
nonfrivolous issue, we deny his motion to proceed IFP and dismiss the appeal
as frivolous. See Baugh, 117 F.3d at 202 & n.24; Howard, 707 F.2d at 220; 5TH
CIR. R. 42.2. His motion for the appointment of counsel is likewise denied.
      Both the district court’s dismissal of the complaint for failure to state a
claim and our dismissal of this appeal count as strikes for purposes of 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
We caution Pejouhesh that, if he accumulates three strikes, he will not be able
to 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).



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                             No. 15-20114

    MOTIONS DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.




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