Mac Truong v. Kevin Stitt

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
MAC TRUONG,
Plaintiff - Appellant,
v.
KEVIN STITT; GREG MCCORTNEY;
CHARLES MCCALL; JIM OLSEN;
DONALD TRUMP; VIRGINIA
THOMAS; SAMUEL A. ALITO; AMY
CONEY BARRETT; NEIL GORSUCH;
BRETT KAVANAUGH; CLARENCE
THOMAS,
Defendants - Appellees.
No. 22-6144
(D.C. No. 5:22-CV-00491-R)
(W.D. Okla.)
_________________________________
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* This order and judgment is not binding precedent, except under the doctrines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.
FILED
United States Court of Appeals
Tenth Circuit
December 6, 2022
Christopher M. Wolpert
Clerk of Court
Appellate Case: 22-6144 Document: 010110778069 Date Filed: 12/06/2022 Page: 1

-- 1 of 4 --

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.
Appellate Case: 22-6144 Document: 010110778069 Date Filed: 12/06/2022 Page: 2

-- 2 of 4 --

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

-- 3 of 4 --

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

-- 4 of 4 --