Rayfield Joseph Thibeaux v. U.S. Atty. Gen. ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
April 30, 2008
No. 07-13699 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-60742-CV-WJZ
RAYFIELD JOSEPH THIBEAUX,
Plaintiff-Appellant,
versus
U.S. ATTORNEY GENERAL,
Michael B. Mukasey,
U.S. INSPECTOR GENERAL,
Glen A. Fine,
OFFICE OF PROFESSIONAL RESPONSIBILITY,
Marshall H. Jarrett, Counsel,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 30, 2008)
Before BIRCH, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Rayfield Thibeaux, a non-prisoner proceeding pro se, appeals the dismissal
of his 42 U.S.C. § 1983 complaint. Thibeaux argues that the district court should
have compelled the defendants, who are federal employees acting within the scope
of their official duties, to investigate and prosecute his underlying complaints. We
AFFIRM.
I. BACKGROUND
Rayfield Thibeaux filed a pro se § 1983 action in forma pauperis in the
Southern District of Florida against Alberto R. Gonzales as U.S. Attorney General,
Glen A. Fine as U.S. Inspector General, and Marshall H. Jarrett as Counsel for the
Office of Professional Responsibility. The complaint alleged that the named
defendants violated Thibeaux’s constitutional rights. In particular, the complaint
cites 18 U.S.C. § 245 (“in violation of Federally Protected Activities”) and 18
U.S.C. § 242 (“Deprivation of Rights”) and describes how the defendants refused
to investigate Thibeaux’s allegations of fraud and misconduct regarding the U.S.
District Court for the Western District of Louisiana, the Clerk’s Office for the Fifth
Circuit Court of Appeals, and two federal judges. R1-1 at 3. Specifically,
Thibeaux alleged that a federal judge had wrongfully dismissed his complaint
regarding a false arrest that took place in Texas, and that another federal judge had
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dismissed his subsequent complaints “without any other court proceeding.” Id. at
2. Thibeaux appealed these dismissals to the Fifth Circuit Court of Appeals, which
“filed their own back-office opinions,” affirming the lower court’s dismissals. Id.Thibeaux further complains that he filed a subsequent complaint and paid the filing
fee, but that the assigned judge dismissed the complaint and refused to return the
filing fee to Thibeaux. Thibeaux then wrote a letter to U.S. Attorney Katherine
Vincent regarding the fact that the courts had taken his money and refused to
address his complaints, but he was told that “her office would do nothing about any
of the suits filed.” Id. at 2-3.
The Florida district court dismissed without prejudice Thibeaux’s § 1983
complaint because it failed to state a claim and was frivolous, pursuant to 28
U.S.C. § 1915(e)(2). The court also denied Thibeaux’s motion to proceed in forma
pauperis. Specifically, the court explained that “there is no private right secured by
the Constitution and made actionable through § 1983 to have a person’s complaints
concerning the nation’s Article III Courts investigated and prosecuted by the
executive branch of the government.” R1-4 at 2. The district court further
observed that the power to investigate and prosecute a complaint is vested solely in
the executive branch and that the judiciary branch cannot compel such action. Id.
at 2-3.
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Within ten business days, Thibeaux filed a motion for judgment, a motion
for crime victims’ assistance and appointment of attorney, a motion to
amend/correct the motion for judgment, and another motion for judgment. In his
amended motion for judgment, Thibeaux alleged a conflict of interest because
President George W. Bush had been governor of Texas when Thibeaux was
allegedly unlawfully incarcerated there. Thibeaux also further explained his
allegations of “Fraud Upon the Court,” as follows: (1) the U.S. District Court in
Lafayette, Louisiana, granted his motion to have the defendants served but then
dismissed his lawsuit without conducting any other court proceedings; (2) another
district court granted permission to Thibeaux to proceed in forma pauperis but
denied his motions to have the defendants served and dismissed his complaints; (3)
a district court entered an order limiting Thibeaux’s ability to initiate further court
proceedings by requiring him first to pay all past fees and provide a written request
to file suit in that courthouse; and (4) as a result of that order, the appellate court
and district court retained Thibeaux’s filing fees for a subsequently filed appeal
and complaint, even though those cases were dismissed. R1-8 at 1. Thibeaux
explained that, when the U.S. Attorney refused to do anything about “this illegal
court matter,” he filed complaints with the U.S. Inspector General and the Office of
Professional Responsibility; he did not receive a response from either office. Id. at
4
3.
In support of his amended motion for judgment, Thibeaux cited Federal Rule
of Civil Procedure 60(b), explaining that it does “not limit the power of the court
. . . to relieve a party from a judgment or order”; the Seventh Amendment,
explaining that it “preserves a plaintiff’s right to sue”; and Bulloch v. United
States, 721 F.2d 713 (10th Cir. 1983), asserting that “[a] [f]ederal [c]ourt may
investigate question as to whether there was fraud in procurement of judgment.”
Id. In his motion for crime victims’ assistance, Thibeaux explained that he was a
victim of a crime because the courts had taken his money unlawfully and had
“conspired to keep [him] out of court.” R1-6 at 1. He based his motion and
entitlement to relief on 18 U.S.C. §§ 3771(a)(1)-(4) and 3006A(a)(1)(I), and on 42
U.S.C. §§ 10606 and 10607.
In an omnibus order, the district court denied all of these motions as moot
because Thibeaux had not paid a filing fee. The district court also noted that the
“Southern District of Florida is not the proper venue for filing actions concerning
torts allegedly committed in Texas.” R1-9 at 2. The court also addressed
Thibeaux’s motion for crime victim’s assistance, explaining that the statutes cited
by Thibeaux do not support the relief sought and do not provide crime victims with
the right to a court-appointed attorney. Thibeaux filed a timely notice of appeal of
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the district court’s orders, and the district court granted his motion to appeal in
forma pauperis.
On appeal, Thibeaux argues that the Department of Justice has discriminated
against him and “[c]reat[ed] a [c]onflict of [i]nterest.” Appellant’s Br. at 5. He
also asserts that the Department of Justice does not allow him a “logical way to
aggrieve misconduct.” Id. Thibeaux more specifically asserts that the U.S.
Department of Justice investigates allegations of “treason being conducted within
this country,” and that the defendants refused to investigate Thibeaux’s complaints,
which amounts to “Fraud Upon the Court” and “One Hundred Percent Treason.”
Id. at 6. Thibeaux also asserts that the federal district judges named as defendants
ought to have disqualified themselves from his cases as insufficiently impartial
pursuant to 28 U.S.C. § 455. He implies that their failure to do so makes these
judges “guilty of misprision of treason.”1 Id. at 11.
II. DISCUSSION
The federal statute governing in forma pauperis actions is codified at 28
U.S.C. § 1915. Hughes v. Lott, 350 F.3d 1157, 1159 (11th Cir. 2003). Under 28
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Thibeaux stated in his notice of appeal that he was appealing both orders of the district
court. However, a legal claim or argument not addressed in the briefs is deemed abandoned and
we will not address its merits. Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1330
(11th Cir. 2004). Thibeaux’s brief presents no argument as to why the court’s omnibus order
dismissing his amended motion for judgment and other motions was improper. Because he has
thereby failed to address the dismissal of his motions on appeal, he has waived that claim. See
id. 6
U.S.C. § 1915(e)(2)(B), a district court must dismiss an in forma pauperis action if
the court determines that the action is “frivolous or malicious; fails to state a claim
on which relief may be granted; or seeks monetary relief against a defendant who
is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). We review de
novo a district court’s sua sponte dismissal for failure to state a claim under
§ 1915(e)(2)(B)(ii), viewing the allegations in the complaint as true. Hughes, 350
F.3d at 1159-60. We review for abuse of discretion a district court’s sua sponte
dismissal for frivolity under § 1915(e)(2)(B)(i). Id. at 1160. “A claim is frivolous
if it is without merit either in law or fact.” Bilal v. Driver, 251 F.3d 1346, 1349
(11th Cir. 2001).
Civil actions against state officers for violations of federal constitutional
rights are governed by 42 U.S.C. § 1983. The availability of a cause of action
against federal officials for violations of federal constitutional rights was
established in Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388, 395-97, 91 S. Ct. 1999, 2004-05 (1971). Because of the similarity in
the causes of action, we generally apply § 1983 law to Bivens actions. Wilson v.
Blankenship, 163 F.3d 1284, 1288 (11th Cir. 1998). Bivens claims can be brought
against federal officers in their individual capacities only; they do not apply to
federal officers acting in their official capacities. Corr. Servs. Corp. v. Malesko,
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534 U.S. 61, 70-72, 122 S. Ct. 515, 521-22 (2001). The Federal Tort Claims Act
(FTCA) permits claims for certain negligent or wrongful actions by federal
employees within the scope of their official duties. 28 U.S.C. § 1346(b)(1).
However, constitutional claims are not cognizable under the FTCA. FDIC v.
Meyer, 510 U.S. 471, 478, 114 S. Ct. 996, 1001 (1994).
The decision to investigate and prosecute crimes is entrusted to the executive
branch. United States v. Smith, 231 F.3d 800, 807 (11th Cir. 2000); U.S. Const.,
art. II, § 3. Thus, the U.S. Attorney General has “broad discretion” to enforce the
country’s laws. Wayte v. United States, 470 U.S. 598, 607, 105 S. Ct. 1524, 1530
(1985). Under 28 U.S.C. § 1361, the district court has original jurisdiction over a
mandamus action “to compel an officer or employee of the United States or any
agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361.
However, a writ of mandamus may not control prosecutorial discretion. Otero v.
U.S. Att’y Gen., 832 F.2d 141, 141-42 (11th Cir. 1987) (per curiam) (citations
omitted).
Because Thibeaux was suing federal officials, as opposed to state officials,
Thibeaux’s complaint asserted a Bivens action, not a § 1983 action. See Wilson,
163 F.3d at 1288. However, the district court’s misinterpretation of Thibeaux’s
complaint as a § 1983 action is not problematic because we apply § 1983 law to
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Bivens actions. See id. Thibeaux, in alleging that the defendants have failed to
fulfill their official duties to investigate his allegations, is suing them in their
official capacities. Because Bivens actions are only allowed against federal
officers in their individual capacities, Thibeaux has no cause of action under
Bivens. See Malesko, 534 U.S. at 70-72, 122 S. Ct. at 521-22.
Although the FTCA permits certain causes of action to be brought against
federal officers acting in their official capacities, Thibeaux’s constitutional claims
are not cognizable under the FTCA. See Meyer, 510 U.S. at 478, 114 S. Ct. at
1001. Moreover, because “prosecutorial discretion cannot be controlled by a writ
of mandamus,” the court did not err in finding that it could not compel the
defendants to investigate and prosecute Thibeaux’s complaint. See Otero, 832
F.2d at 141-42.
Finally, Thibeaux has referred to 18 U.S.C. §§ 245 and 242 as bases for
relief. However, these sections of Title 18 pertain to criminal law and do not
provide a civil cause of action or any civil remedies. See Hanna v. Home Ins. Co.,
281 F.2d 298, 303 (5th Cir. 1960). Even when we construe Thibeaux’s pro se
pleadings liberally, see Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th
Cir.1998) (per curiam), he has cited no other bases for claims of constitutional
violations by the defendants.
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For these reasons, even accepting as true all allegations in Thibeaux’s
complaint, we conclude that he has failed to state a claim upon which relief could
be granted. Accordingly, the district court did not err in dismissing Thibeaux’s
complaint for failure to state a claim.
III. CONCLUSION
Thibeaux appeals the district court’s dismissal of his § 1983 action.
Although the district court misinterpreted the complaint as a § 1983 action rather
than an action under Bivens, the court did not err in dismissing the complaint
because Thibeaux failed to assert the violation of an existing federal or
constitutional right and thereby to establish a basis for relief. Accordingly, we
AFFIRM.
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