MacTruong v. Abbott ( 2023 )

Case: 22-51024 Document: 00516841041 Page: 1 Date Filed: 08/01/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-51024
Summary Calendar FILED
____________ August 1, 2023
Lyle W. Cayce
Dmt MacTruong, also known as Mac Dr. Truong, Clerk
Plaintiff—Appellant,
versus
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.
______________________________
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
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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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
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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); 5th Cir. R. 42.2.
In his filings in this court, MacTruong refers to the defendants,
including the five named Supreme Court Justices, as murderers, misogynists,
racists, and criminals; he asserts that the five named Supreme Court Justices,
in particular, are traitors, cheaters, and mass sex abusers who have
committed perjury and treason and who “deserve the death penalty or at
least to be disbenched”; and he labels the district court as misogynist and
criminal and asserts that the court has an “anti-American attitude.” We will
not allow liberal pleading rules and pro se practice to be a vehicle for
presenting documents that are abusive. See Theriault v. Silber, 579 F.2d 302,
303 (5th Cir. 1978). Accordingly, MacTruong is WARNED that future
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filings containing abusive, disparaging, or contemptuous language will result
in the imposition of sanctions. See id.4