MacTruong v. Abbott et al

Filing 20

REPORT AND RECOMMENDATIONS re #15 Motion to proceed In Forma Pauperis on Appeal filed by Dmt MacTruong. Signed by Judge Susan Hightower. (dm)

Case 1:22-cv-00476-LY Document 20 Filed 11/17/22 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
DMT MACTRUONG a/k/a
MAC DR. TRUONG,
Plaintiff
v.
GREG ABBOTT, DAN PATRICK,
DADE PHELAN, DONALD J.
TRUMP, CLARENCE THOMAS,
BRETT M. KAVANAUGH, NEIL M.
GORSUCH, AMY CONEY
BARRETT, and SAMUEL ALITO,
Defendants

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Case No. 1:22-CV-00476-LY

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE

Now before the Court is Plaintiff-Appellant Pro Se MacTruong’s Application to Proceed with
Appeal In Forma Pauperis, filed November 10, 2022 (Dkt. 15). The District Court referred the
Application to the undersigned Magistrate Judge, pursuant to 28 U.S.C. § 636(b)(1)(A), Federal
Rule of Civil Procedure 72, and Rule 1(c) of Appendix C of the Local Rules of the United States
District Court for the Western District of Texas. Dkt. 19.
I.

Background

Plaintiff filed this lawsuit on May 9, 2022, against Texas Governor Greg Abbott, Texas
Lieutenant Governor Dan Patrick, Speaker of the Texas House of Representatives Dade Phelan,
former President Donald Trump, and Supreme Court Justices Clarence Thomas, Brett Kavanaugh,
Neil Gorsuch, Amy Coney Barrett, and Samuel Alito (collectively, “Defendants”). In his
Complaint, Plaintiff alleges that he is an inventor of “Tele-Sex or Tele-Mining on Jupiter and other

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planets of the Solar System,” and appears to assert a claim for copyright infringement and
constitutional violations. Specifically, Plaintiff alleges that Defendants: (1) “plagiariz[ed] [his]
copyrighted invention of the CCO-Network,” which is a legislative proposal involving the
recruitment of “private citizens to help democratically-elected government officials to enforce the
law”; (2) conspired to violate women’s constitutional rights before Roe v. Wade, 410 U.S. 113
(1973), was overruled by Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022); and
(3) conspired to “commit offenses against the vast majority of people of the United State of
America.” Dkt. 1 ¶¶ 31, 51, 53, 55.
On August 31, 2022, the undersigned Magistrate Judge issued an Order granting Plaintiff
in forma pauperis status and a Report and Recommendation that the District Court dismiss
Plaintiff’s lawsuit as frivolous under 28 U.S.C. § 1915(e)(2). Dkt. 6. On October 18, 2022, the
District Court overruled Plaintiff’s objections, approved and accepted the Report and
Recommendation, and dismissed Plaintiff’s lawsuit. Dkt. 12. Plaintiff filed a Notice of Appeal to
the Fifth Circuit Court of Appeals on November 10, 2022. Dkt. 14. Plaintiff now moves to proceed
in forma pauperis on appeal.
II.

Analysis

Leave to proceed in forma pauperis on appeal is governed by Rule 24 of the Federal Rules of
Appellate Procedure and 28 U.S.C. § 1915(a)(3). Pursuant to Rule 24(a)(1), a party to a district
court action who desires to proceed in forma pauperis on appeal must file a motion in the district
court. The movant is required to attach to the motion an affidavit that shows in detail the movant’s
inability to pay the appeal costs and fees; claims an entitlement to redress; and states the issues the
movant intends to present on appeal. Id. Pursuant to Rule 24(a)(3), because Plaintiff was permitted

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to proceed in forma pauperis before the District Court, he may proceed in forma pauperis on
appeal without further authorization, unless:
(A) the district court—before or after the notice of appeal is filed—
certifies that the appeal is not taken in good faith or finds that the
party is not otherwise entitled to proceed in forma pauperis and
states in writing its reasons for the certification or finding. . . .
FED. R. APP. P. 24(a)(3)(A). An appeal is taken in good faith if a litigant seeks appellate review of
any issue that is not frivolous. Howard v. King, 107 F.2d 215, 220 (5th Cir. 1983). Accordingly,
in addition to demonstrating that his financial condition qualifies him to proceed under the statute,
Plaintiff also must demonstrate that his appeal involves nonfrivolous issues. Carson v. Polley, 689
F.2d 562, 586 (5th Cir. 1982).
The Court finds that Plaintiff is financially qualified for in forma pauperis status. But based
on a review of his opening brief (Dkt. 18), the Court finds that Plaintiff has presented no
nonfrivolous grounds for appeal.
In his brief, Plaintiff makes fantastical allegations, stating, for example, that “Defendants are
dangerous liars, criminals, traitors and co-conspirators.” Dkt. 18 at 31. He further states that
Supreme Court Justices Alito, Thomas, Gorsuch, Kavanaugh, and Barrett “deserve the death
penalty or at least to be disbenched from the U.S. Supreme Court.” Dkt. 18 at 40.
Moreover, Plaintiff’s legal claims are frivolous. First, a district court must dismiss an action if
it finds that it lacks subject matter jurisdiction. Wolcott v. Sebelius, 635 F.3d 757, 762 (5th Cir.
2011). Plaintiff’s contention that Defendants must assert immunity as an affirmative defense is
meritless. See Danos v. Jones, 652 F.3d 577, 581 (5th Cir. 2011) (holding that federal courts have
no subject matter jurisdiction over claims against officers of the United States in their official
capacities); see also Price v. United States, 823 F. App’x 275, 276 (5th Cir. 2020) (affirming
dismissal of claims as frivolous because defendants had judicial immunity). Plaintiff’s argument

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that his claims are not barred because Defendants are United States citizens does not address the
doctrine of sovereign immunity. Similarly, Plaintiff’s contention that he has standing to sue
because he is a United States citizen ignores the standing requirements of Article III of the United
States Constitution. His second and third issues challenge findings that the District Court did not
make and therefore are not proper grounds for appeal.
III.

Recommendation

Based on the foregoing, the undersigned Magistrate Judge RECOMMENDS that the District
Court certify that Plaintiff’s appeal is not taken in good faith pursuant to Federal Rule of Appellate
Procedure 24(a)(3)(A) and DENY Plaintiff-Appellant Pro Se MacTruong’s Application to
Proceed with Appeal In Forma Pauperis (Dkt. 15).
It is FURTHER ORDERED that the Clerk REMOVE this case from the Magistrate Court’s
docket and RETURN it to the docket of the Honorable Lee Yeakel.
IV.

Warnings

The parties may file objections to this Report and Recommendation. A party filing objections
must specifically identify those findings or recommendations to which objections are being made.
The District Court need not consider frivolous, conclusive, or general objections. See Battle v.
United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987). A party’s failure to file written
objections to the proposed findings and recommendations contained in this Report within fourteen
(14) days after the party is served with a copy of the Report shall bar that party from de novo
review by the District Court of the proposed findings and recommendations in the Report and,
except on grounds of plain error, shall bar the party from appellate review of unobjected-to
proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C.

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§ 636(b)(1); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass’n,
79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
The Clerk is directed to mail Plaintiff a copy of this Report and Recommendation by certified
mail, return receipt requested.
SIGNED on November 17, 2022.
SUSAN HIGHTOWER
UNITED STATES MAGISTRATE JUDGE

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