Summary Calendar BUI PHU XUAN, also known as Phu Xuan Bui v. Fort Worth Star Telegram

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-11272
Summary Calendar
BUI PHU XUAN, also known as Phu Xuan Bui
Plaintiff - Appellant
v.
FORT WORTH STAR TELEGRAM
Defendant - Appellee
Appeal from the United States District Court
for the Northern District of Texas, Amarillo
No. 2:07-CV-218
Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Plaintiff Bui Phu Xuan (“Plaintiff”), currently serving ninety-nine years
in state prison on a 1998 first degree murder conviction, appeals the district
court’s judgment dismissing with prejudice his complaint filed in forma pauperis
against defendant Fort Worth Star-Telegram (“Defendant” or the “Star-
Telegram”) as frivolous and for failure to state a claim. We AFFIRM.
United States Court of Appeals
Fifth Circuit
F I L E D
May 6, 2008
Charles R. Fulbruge III
Clerk

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I.
Plaintiff originally filed suit in Texas state court on April 7, 2005, alleging
libel, a state-law claim, against the Star-Telegram arising from the publication
of two articles in the February 12 and 13, 2005, editions of the paper, which
stated that Plaintiff was a “reputed Asian gang leader,” and “was known by gang
officers and Tarrant County prosecutors as a gang leader.” The state trial court
granted the Star-Telegram’s motion for summary judgment on May 4, 2006. The
state appellate court affirmed the trial court’s judgment. Bui v. Fort Worth Star
Telegram, No. 2-06-206, 2007 Tex. App. LEXIS 1333 (Tex. App.—Fort Worth
Feb. 22, 2007, pet. denied). The Texas Supreme Court denied Plaintiff’s petition
for review, Bui v. Fort Worth Star Telegram, No. 07-0191, 2007 Tex. LEXIS 576
(Tex. June 22, 2007), and his motion for rehearing, Bui v. Fort Worth Star
Telegram, No. 07-0191, 2007 Tex. LEXIS 692 (Tex. Aug. 10, 2007). Plaintiff did
not petition the United States Supreme Court for certiorari.
Instead, on October 17, 2007, Plaintiff filed a new complaint, along with
a notice of removal, in federal district court. In his federal complaint, Plaintiff
renewed his libel claim, and essentially alleged (1) that the Texas state courts
failed to enforce his constitutional rights and denied him Equal Protection of the
law and protection against Double Jeopardy by granting summary judgment to
Defendant, and (2) that the Star-Telegram itself violated his constitutional
rights “within the meaning of the Fifth, Eighth, and Fourteenth Amendments
to the United States Constitution.” The district court liberally construed
Plaintiff’s complaint as a civil rights complaint under 42 U.S.C. § 1983. After
reviewing the complaint, the district court dismissed Plaintiff’s suit as frivolous
under 28 U.S.C. §§ 1915A, 1915(e)(2), and 42 U.S.C. § 1997e(c)(1). Plaintiff’s
motion for rehearing was denied on November 13, 2007, and this timely appeal
followed.

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No. 07-11272
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II.
Generally, the “claim of one seeking in forma pauperis status must cross
the threshold of litigation worthiness.” James v. Alfred, 835 F.2d 605, 606 (5th
Cir. 1988) (emphasis omitted). The district court is directed to dismiss a
complaint filed in forma pauperis at any time if, among other reasons, the
complaint is frivolous or fails to state a claim upon which relief may be granted.
28 U.S.C. § 1915(e)(2)(B); see also 28 U.S.C. § 1915A(b)(1) (calling for dismissal
of any civil action filed by a prisoner against a governmental entity, officer, or
employee that a district court finds is “frivolous, malicious, or fails to state a
claim upon which relief may be granted”); 42 U.S.C. § 1997e(c)(1) (authorizing
the dismissal of any suit brought by a prisoner with respect to prison conditions,
whether in forma pauperis or not, if it is “frivolous, malicious, [or] fails to state
a claim upon which relief can be granted . . . .”).
Because the district court dismissed Plaintiff's claims as both frivolous and
for failure to state a claim, our review is de novo. See Geiger v. Jowers, 404 F.3d
371, 373 (5th Cir. 2005). A complaint is “frivolous” if it lacks “an arguable basis
in law or fact.” Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999). To state a
claim upon which relief may be granted, “the plaintiff must plead ‘enough facts
to state a claim to relief that is plausible on its face.’” In re Katrina Canal
Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atl. Corp. v.
Twombly, 127 S. Ct. 1955, 1974 (2007)).
First, in considering Plaintiff’s attempt to remove his state libel suit
against the Star-Telegram to federal court, we must determine whether the
district court correctly concluded as a matter of law that the claim was not
properly before it. We review a district court’s conclusions on questions of law,
including questions founded on removal jurisdiction under 28 U.S.C. § 1441, de
novo. See Hart v. Bayer Corp., 199 F.3d 239, 243 (5th Cir. 2000).

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Generally, subject to exceptions not relevant here, the removal statute
provides that:
[A]ny civil action brought in a State court of which the
district courts of the United States have original
jurisdiction, may be removed by the defendant or the
defendants, to the district court of the United States for
the district and division embracing the place where
such action is pending . . . .
28 U.S.C. § 1441(a) (emphasis added).
As the district court explained, the plain language of the removal statute
prohibited it from exercising jurisdiction as a matter of law over Plaintiff’s libel
claim. To begin, the district court did not “have original jurisdiction,” id., over
Plaintiff’s state tort libel suit because it is a state law claim and complete
diversity did not exist between the parties, see 28 U.S.C. §§ 1331 & 1332. Next,
the statute provides for removal “by the defendant . . . .” Id. Here, it is Plaintiff
attempting to remove the case that he filed in state court to federal court.
Finally, the statute permits defendants to remove cases that are “pending,” id.,
in state court. After the Texas Supreme Court denied Plaintiff’s motion for
rehearing on August 10, 2007, his suit was no longer pending in state court.
Thus, the district court was correct in denying Plaintiff’s request to remove his
state libel suit to federal court.
Second, Plaintiff’s constitutional claims against both the Texas state court
system and the Star-Telegram, liberally construed by the district court as filed
pursuant to § 1983, were also properly dismissed as frivolous. With respect to
Plaintiff’s claims that the Texas courts denied him his constitutional rights, we
have long held that “litigants may not obtain review of state court actions by
filing complaints about those actions in lower federal courts cast in the form of
civil rights suits.” Hale v. Harney 786 F.2d 688, 690–91 (5th Cir. 1986) (citing
Kimball v. Fl. State Bar, 632 F.2d 1283, 1284 (5th Cir. 1980)). As we stated in

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Kimball, the “proper forum for the relief [the plaintiff] now seeks was the United
States Supreme Court.” 632 F.2d at 1284. So, too, was it in this case. See 28
U.S.C. § 1257(a).
Turning to Plaintiff’s claims that the Star-Telegram’s alleged libel violated
his rights under the Fifth, Eighth, and Fourteenth Amendments, it is axiomatic
that to “state a claim under § 1983, a plaintiff must allege the violation of a right
secured by the Constitution and laws of the United States, and must show that
the alleged deprivation was committed by a person acting under color of state
law.” Rosborough v. Mgmt. & Training Corp., 350 F.3d 459, 460 (5th Cir. 2003)
(quoting West v. Atkins, 487 U.S. 42, 48 (1988)) (internal quotation marks
omitted). Put another way, acts of private parties, such as the Star-Telegram,
“even if wrongful, do not fall under the ambit of the” Constitution. See United
States v. Sealed Juvenile 1, 255 F.3d 213, 216 (5th Cir. 2001). Thus, Plaintiff’s
constitutional claims also lack any basis in law and were correctly dismissed by
the district court as frivolous.
III.
For the foregoing reasons, we AFFIRM the judgment of the district court
dismissing Plaintiff’s complaint with prejudice.

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