DmtT MacTruong v. Abbott

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Dmt MacTruong, also known as Mac Dr. Truong, Plaintiff-Appellant v. Greg Abbott, Governor; Dan Patrick, Lieutenant Governor; Dade Phelan, Representative; Donald J. Trump; Clarence Thomas, Justice; Brett M. Kavanaugh, Justice; Neil M. Gorusch, Justice; Amy Coney Barrett, Justice; Samuel Alito, Justice, Defendants-Appellees.

No. 22-51024

United States Court of Appeals, Fifth Circuit

August 1, 2023

Appeal from the United States District Court for the Western District of Texas USDC No. 1:22-CV-476

Before STEWART, GRAVES, and OLDHAM, Circuit Judges.

PER CURIAM: ^[*]

Dmt MacTruong, proceeding pro se, moves for leave to proceed in forma pauperis (IFP) on appeal from the district court's dismissal, pursuant to 28 U.S.C. § 1915(e)(2)(B), of his civil action in which he alleged that the defendants were involved in either passing, enacting, or upholding the Texas Heartbeat Act (THA), which he contends was drafted using his copyrighted material and was unconstitutional under Roe v. Wade, 41 U.S. 113 (1973), which has been overturned by Dobbs v. Jackson Women's Health Org., 142 S.Ct. 2228 (2022).

Contrary to MacTruong's assertion otherwise, the district court was entitled to dismiss the action sua sponte upon a finding that the action was frivolous under § 1915(e). See § 1915(e)(2)(B). To the extent MacTruong contends that the district court acknowledged that the Texas legislation was unconstitutional when it denied his complaint without prejudice, this argument is not supported by the record and does not present a nonfrivolous issue for appeal. See, e.g., In re Great Lakes Dredge &Dock Co. LLC, 624 F.3d 201, 209 (5th Cir. 2010).

MacTruong argues that the THA is unconstitutional and violates federal law, that Dobbs was wrongly decided and does not overrule Roe, and that he has standing to sue based on the unconstitutionality of the THA because (1) the State of Texas is not a defendant; (2) the Constitution does not forbid a United States citizen from suing another United States citizen for the alleged violation of federal laws; (3) the required injury need not be physical and may be physical or emotional; and (4) because he and/or his grandchildren would have the legal duty to fight in a civil war regarding the Texas anti-abortion legislation. However, he has not raised a nonfrivolous issue for appeal because he fails to allege that he, as a man who admittedly resides in New Jersey, has any personal stake in the outcome of the legislation. See Diamond v. Charles, 476 U.S. 54 66-67 (1996). He also argues that the district court had jurisdiction over his claims regarding the constitutionality of the THA because the federal court had jurisdiction over his inextricably intertwined copyright claim under 17 U.S.C § 102. However, he provides no indication, beyond his unsupported assertions, how such pendent jurisdiction would have been proper. See Pickett v. Texas Tech Univ. Health Sciences Ctr., 37 F.4th 1013, 1027 (5th Cir. 2022). Although he additionally argues that the district court erred in dismissing his copyright claims and challenges the district court's determination that his copyright claims are fantastical and completely lacking merit, these claims are so obviously devoid of merit that they do not involve a federal controversy, and thus the federal courts lack jurisdiction to consider them. See Atakapa Indian de Creole Nation v Louisiana, 943 F.3d 1004, 1006-07 (5th Cir. 2019). MacTruong has not provided any specific facts or arguments challenging the district court's determinations that each of the defendants had immunity from his civil claims, and thus he has abandoned any challenge to these determinations. See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999); Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).

In light of the foregoing, MacTruong fails to raise a nonfrivolous argument challenging the district court's dismissal of his complaint. Accordingly, the IFP motion is DENIED, and the appeal is DISMISSED as frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 n.24 (5th Cir. 1997); Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983); ...