Truong v. Stitt

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 6, 2022
• Docket: 22-6144
• Status: Unpublished

Opinion

Appellate Case: 22-6144 Document: 010110778069 Date Filed: 12/06/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 6, 2022 _________________________________ Christopher M. Wolpert Clerk of Court MAC TRUONG,

Plaintiff - Appellant,

v. No. 22-6144 (D.C. No. 5:22-CV-00491-R) KEVIN STITT; GREG MCCORTNEY; (W.D. Okla.) CHARLES MCCALL; JIM OLSEN; DONALD TRUMP; VIRGINIA THOMAS; SAMUEL A. ALITO; AMY CONEY BARRETT; NEIL GORSUCH; BRETT KAVANAUGH; CLARENCE THOMAS,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT * _________________________________

Before TYMKOVICH, KELLY, and ROSSMAN, Circuit Judges. ** _________________________________

Plaintiff-Appellant, Mac Truong, appearing pro se, appeals from the district

court’s dismissal of his pro se complaint against various state and federal public

officials and others as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B). Our review is

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. ** After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Appellate Case: 22-6144 Document: 010110778069 Date Filed: 12/06/2022 Page: 2

de novo. Carter v. Wyo. Dep’t of Corr., No. 22-8044, 2022 WL 7238406, at *2 (10th

Cir. Oct. 13, 2022). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

In his complaint, Plaintiff alleges that Okla. Stat. tit. 63, § 1-731.4 (2022)

(Oklahoma Senate Bill 612 (SB 612)), which restricts abortion, violates the United

States Constitution. See R. 23. He further alleges that another recent provision,

Okla. Stat. tit. 63, § 1-745.39 (2022), violates his copyrighted material because it

permits civil actions by private citizens against abortion providers. See id. at 23–24.

The district court found Mac Truong lacked Article III standing to challenge

SB 612 as he is a male citizen residing in New Jersey who has not alleged he is

subjected to the challenged statute. R. 131–32. 1 Moreover, his arguments that he

does have standing because 1) he is a naturalized U.S. citizen, 2) his daughter is of

child-bearing age and is concerned about anti-abortion legislation, 3) he loves to have

sex without worrying about pregnancy, and 4) he invented a machine that allows

people to have sex without being physically close were found unavailing by the

district court. R. 132. As for the copyright claim, the district court dismissed the

claim by determining that Mac Truong’s idea of using community civic officers to

enforce city regulations and ordinances (“the CCO Network”), is precisely that — an

idea — and not subject to copyright. R. 132–33.

1 Moreover, the district court held that to the extent Plaintiff challenges SB 612 in light of Roe v. Wade, 410 U.S. 113 (1973), the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022), has rendered that challenge moot. R. 132. 2 Appellate Case: 22-6144 Document: 010110778069 Date Filed: 12/06/2022 Page: 3

To establish Article III standing, a plaintiff must demonstrate that “(1) he or

she has suffered an injury in fact; (2) there is a causal connection between the injury

and the conduct complained of; and (3) it is likely that the injury will be redressed by

a favorable decision.” Phelps v. Hamilton, 122 F.3d 1309, 1326 (10th Cir. 1997).

Further, the injury must be (1) “concrete and particularized,” and (2) “actual or

imminent, not ‘conjectural’ or ‘hypothetical.’” Lujan v. Defenders of Wildlife, 504

U.S. 555, 560 (1992) (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). On

appeal, rather than challenging the district court’s rejection of his standing to

challenge SB 612, Mac Truong states the Eleventh Amendment does not bar his suit

as he is not suing the state of Oklahoma. Aplt. Br. at 4–5. While this court construes

pro se pleadings liberally, we “cannot take on the responsibility of serving as the

litigant’s attorney in constructing arguments and searching the record.” Garrett v.

Selby Connor Maddux & Janner, 425 F.3d 836, 840 (10th Cir. 2015). Since Mac

Truong fails entirely to address why the district court erred in denying him standing,

he provides no basis for reversal. In any event, for substantially the same reason

given by the district court, Mac Truong does not have standing to challenge SB 612.

R. 131–32.

As for Mac Truong’s copyright claim, he alleges he has a copyright interest in

his idea — the CCO Network — because he has expressed it in a document and in his

four-hour movie. Aplt. Br. at 6. However, copyright protection does not “extend to

any idea . . . [or] concept . . . regardless of the from in which it is described,

explained, illustrated, or embodied in such work.” 17 U.S.C. § 102(b). In other

3 Appellate Case: 22-6144 Document: 010110778069 Date Filed: 12/06/2022 Page: 4

words, copyright law “protects the expression of ideas rather than the underlying

ideas themselves.” Enter. Mgmt. Ltd., Inc. v. Warrick, 717 F.3d 1112, 1117 (10th

Cir. 2013). Thus, while Mac Truong could arguably allege a copyright interest in his

movie, he cannot assert such interest in the mere idea of employing private citizens to

enforce certain laws and regulations even if expressed in a tangible form.

AFFIRMED. We DENY Mac Truong’s request to strike Defendant-Appellee

Kevin Stitt’s response brief. Aplt. Reply Br. at 2–3. We further DENY Mac

Truong’s motion to proceed in forma pauperis because he has “failed to show the

existence of a reasoned, nonfrivolous argument on the law and facts in support of the

issues raised on appeal.” Rolland v. Primesource Staffing, L.L.C., 497 F.3d 1077,

1079 (10th Cir. 2007).

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge