United States Court of Appeals 

for the Fifth Circuit ____________ 

No. 23-20343 

Summary Calendar 

____________ 

Kent Vu Phan, 

Plaintiff—Appellant, 

versus

The Aurora Medical Center of Colorado, for Doctor Colin 

Buchanan; Doctor Allen Dorsett; Go Imaging MRI, 

Defendants—Appellees. 

______________________________ 

Appeal from the United States District Court 

for the Southern District of Texas 

USDC No. 4:22-CV-4036 

______________________________ 

Before Jones, Higginson, and Ho, Circuit Judges.

Per Curiam:*

Kent Vu Phan seeks to proceed in forma pauperis (IFP) on appeal 

from the dismissal of his complaint for lack of subject matter jurisdiction and 

the dismissal, pursuant to Federal Rule of Civil Procedure 12(b)(6), for 

_____________________ 

*

 Pursuant to 5th Circuit Rule 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should not be published and is not precedent except under the limited circumstances set 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 Circuit Rule 47.5.4. 

United States Court of Appeals 

Fifth Circuit 

FILED 

March 1, 2024 

Lyle W. Cayce 

Clerk 

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No. 23-20343 

2 

failure to state a claim on which relief can be granted. In addition to 

dismissing Phan’s complaint, the district court imposed a pre-filing 

injunction. 

In his pro se brief, Phan asserts that there was subject matter 

jurisdiction because he raised claims under federal statutes. He also 

challenges the determination that he failed to state a claim. 

Although Phan’s complaint cited several federal statutes, “federal 

courts are without power to entertain claims otherwise within their 

jurisdiction if they are ‘so attenuated and unsubstantial as to be absolutely 

devoid of merit,’ ‘wholly insubstantial,’ [or] ‘obviously frivolous.’” Hagans 

v. Lavine, 415 U.S. 528, 536-37 (1974) (internal citations omitted). We do not 

question Phan’s assertions of pain, but his claim that the insurance 

companies he unsuccessfully sued in connection with his automobile 

accident, as an act of retaliation, recruited a doctor to intentionally inflict 

further injury on him during an operation is “wholly insubstantial and 

frivolous,” Southpark Square Ltd. v. City of Jackson, 565 F.2d 338, 343 (5th 

Cir. 1977) (quotation marks omitted), as is Phan’s claim that the images of 

his MRI were altered to make him look like a “bullfrog” as an affront to his 

dignity. Likewise, his claim that his Oxycodone prescription was not refilled 

because he has been placed on some sort of medical care “blacklist” as an act 

of retaliation is “‘obviously frivolous.’” Hagans, 415 U.S. at 537. 

For much the same reasons, Phan’s complaint fails to state a plausible 

claim for relief sufficient to survive a motion to dismiss under Rule 12(b)(6). 

See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The complaint provides 

nothing more than conclusory statements and naked assertions, without 

supporting factual allegations, of a retaliatory injury during surgery, 

intentionally altered and offensive MRI images, and a prescription denied out 

of retaliation on account of his placement on a blacklist. We do not accept 

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3 

such statements and assertions as true. See Franklin v. Regions Bank, 

976 F.3d 443, 447 (5th Cir. 2020).1 Because Phan does not challenge the 

district court’s determination that he should not be granted leave to amend 

his complaint, he therefore waives that issue. See Yohey v. Collins, 985 F.2d 

222, 224-25 (5th Cir. 1993). 

Phan challenges the pre-filing injunction, contending that he is not a 

vexatious litigant and that the magistrate judge and the district court 

discriminated against him. As the magistrate judge noted in making the 

recommendation of a pre-filing injunction, Phan has a long history of filing 

frivolous and duplicative lawsuits. See Phan v. Nat’l Jewish Health, No. 17-

cv-02353-GPG, 2018 WL 10425416, at *1-2, 5 (D. Colo. July 31, 2018) 

(unpublished) (discussing Phan’s previous lawsuits). Phan cannot show 

error in the district court’s consideration of his litigation history. See Baum 

v. Blue Moon Ventures, LLC, 513 F.3d 181, 187 (5th Cir. 2008). 

The instant appeal is without arguable merit and is therefore frivolous. 

See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Accordingly, the 

IFP motion is DENIED, and the appeal is DISMISSED. Baugh v Taylor, 

117 F.3d 197, 202 n.24 (5th Cir. 1997); 5th Cir. R. 42.2. 

Phan is WARNED that additional frivolous or abusive filings in this 

court or the district court will result in the imposition of sanctions, including 

dismissal, monetary sanctions, and restrictions on his ability to file pleadings 

in this court and any court subject to this court’s jurisdiction. Further, Phan 

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1

 We do not consider Phan’s contention that the defendants discriminated against 

him; Phan did not raise this allegation in his complaint, and this court will not consider new 

theories of relief presented for the first time on appeal. See Leverette v. Louisville Ladder 

Co., 183 F.3d 339, 342 (5th Cir. 1999); Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993). 

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is admonished to review any pending appeals and to withdraw any appeals 

that are frivolous. 

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