* 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 complaintfiled in forma pauperis

against defendant Fort Worth Star-Telegram (“Defendant” or the “StarTelegram”) 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
No. 07-11272

2

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 ofthe

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. 
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). 
No. 07-11272

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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 theTexas 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
No. 07-11272

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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.