United States Court of Appeals

for the Fifth Circuit

No. 21-30510

Thomas Tate Tunstall, 

Plaintiff—Appellant,

versus

Hope Daigle, formerly known as Hope D. Theriot, 

Defendant—Appellee.

Appeal from the United States District Court 

for the Eastern District of Louisiana

USDC No. 2:20-CV-02773

Before Owen, Chief Judge, and Higginbotham and Elrod, Circuit 

Judges.

Per Curiam:*

Thomas Tunstall asserted various federal and state constitutional 

claims under 42 U.S.C. § 1983 against Hope Daigle, a Louisiana state official, 

after she allegedly pursued an improper child support enforcement action 

against him. The magistrate judge dismissed Tunstall’s claims against Daigle

* 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opinion should not be published and is not precedent except under the limited 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 10, 2022

Lyle W. Cayce

Clerk

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in her official capacity for lack of subject matter jurisdiction and Tunstall’s 

claims against Daigle in her individual capacity on the groundsthat they were

prescribed. We affirm. 

I.

This case involves over a decade of child support proceedings in 

Alabama, Georgia, and Louisiana. In the dispute before us, Tunstall, 

proceeding pro se, asserts various claims pursuant to § 1983 against a single 

defendant—Daigle, a Louisiana Department of Family and Children 

Services official. Accordingly, we focus on Daigle’s conduct giving rise to the 

alleged constitutional violations. 

Tunstall claims that an Alabama state court terminated his child 

support obligations in 2008 as his children had reached the age of majority; 

nevertheless, two Alabama officials “unlawfully altered [Tunstall’s] official 

child support records by interpolating known false information” to make it 

appear as though he owed child support. Later, Daigle used this information 

to pursue an enforcement action against Tunstall in Louisiana. Tunstall 

asserts that Daigle knew he did not actually owe child support. And, without 

Tunstall being given “notice and the opportunity to be heard,” Daigle 

allegedly “fraudulently procured ex parte income assignment and 

withholding orders from the Louisiana court.” As a result, Tunstall claims 

his wages and tax returns were improperly seized. 

Later, Tunstall’s license and passport were suspended. Tunstall 

further alleges that Daigle “provided false and defamatory information that 

[Tunstall] was a ‘Dead Beat Dad’” who owed a substantial amount of child 

support to various credit reporting agencies, which made him unable to

obtain a loan for his business. As a result, Tunstall claims he lost his job and 

benefits. Finally, Tunstall was held in criminal contempt by a Louisiana state 

court, which he attributes to Daigle’s enforcement action against him.

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Tunstall claims that “[a]t all pertinent times Daigle had actual 

knowledge of the orders and judgments [by Georgia and Louisiana state 

courts] decisively demonstrating [Tunstall] and his property were not subject 

to state enforcement action and/or seizure.” Accordingly, he asserts various 

constitutional claims against Daigle in both her individual and official 

capacities.

1 Against Daigle in her official capacity, Tunstall asks the court to 

“[e]nter a permanent injunction compelling Daigle . . . to take any and all 

actions necessary to return all of [Tunstall’s] property seized between 

September 8, 2012–July 6, 2017.” Against Daigle in her individual capacity, 

he seeks monetary damages including “(1) a minimum of $2,226,928.84 in 

actual damages; (2) a minimum of $2,226,928.84 in compensatory damages; 

(3) a minimum of $6,680,786.52 in punitive damages; [and] (4) prejudgment 

interest.”

Both parties consented to the jurisdiction of a magistrate judge. Daigle 

filed a motion to dismiss pursuant to 12(b)(1) and (b)(6) of the Federal Rules 

of Civil Procedure. The magistrate judge granted Daigle’s 12(b)(1) motion 

and dismissed Tunstall’s claims against Daigle in her official capacity without 

prejudice, finding they were barred by the Eleventh Amendment. The 

magistrate judge also granted Daigle’s 12(b)(6) motion and dismissed 

Tunstall’s claims against Daigle in her personal capacity, finding that the 

claims were prescribed at the time the lawsuit was filed. Tunstall appealed. 

1 Specifically, Tunstall asserts that Daigle’s conduct violates the Fourth and 

Fourteenth Amendments to the United States Constitution, as well as Article I of 

Louisiana’s Constitution. 

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II.

We review de novo a lower court’s grant of a Rule 12(b)(1) motion to 

dismiss for lack of subject matter jurisdiction.2 The party asserting 

jurisdiction bears the burden of proof.3

We also review de novo a lower court’s grant of a motion to dismiss 

for failure to state a claim.4 We accept as true all well-pleaded facts in the 

complaint, viewing those facts in the light most favorable to the plaintiff.5 We 

will affirm a grant of a motion to dismiss for failure to state a claim “when the 

plaintiff has not alleged enough facts to state a claim to relief that is plausible 

on its face.”6 “A statute of limitations may support dismissal under Rule 

12(b)(6) where it is evident from the plaintiff’s pleadings that the action is 

barred and the pleadings fail to raise some basis for tolling or the like.”7

III.

Tunstall urges that his claims against Daigle in her official capacity fall 

squarely within the exception to sovereign immunity provided by Ex parte 

Young. “The Eleventh Amendment bars citizens of a state from suing their 

own state or another state in federal court, unless the state has waived its 

sovereign immunity or Congress has expressly abrogated it.”8 Sovereign 

2 Raj v. La. State Univ., 714 F.3d 322, 327 (5th Cir. 2013).

3

Id. 

4

Id. at 329–30. 

5

Id. 

6

Id. at 330 (internal quotations and citations omitted).

7 Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003).

8 Raj, 714 F.3d at 328 (internal citations omitted); see also Hans v. Louisiana, 134 

U.S. 1, 16–18 (1890). 

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immunity extends to suits against state officials in their official capacities.9

Where the state or a state official is entitled to sovereign immunity, this Court 

does not have subject matter jurisdiction over the suit.10 However, the

Eleventh Amendment does not bar a suit seeking injunctive or declaratory 

relief brought against a state official in her official capacity acting in violation 

of federal law.11

Tunstall described his claims as claims for “declaratory and injunctive 

relief,” but they still amount to a claim for money damages for retrospective 

harm. Tunstall asks the court to “[e]nter a permanent injunction compelling 

Daigle . . . to take any and all actions necessary to return all of [Tunstall’s]

property seized between September 8, 2012–July 6, 2017.” The property 

Tunstall is referring to is garnished wages.12 His claim is really a request for 

money damages to compensate his retrospective harm. “We do not read Ex 

parte Young . . . to indicate that any form of relief may be awarded against a 

state officer, no matter how closely it may in practice resemble a money 

judgment payable out of the state treasury, so long as the relief may be labeled 

‘equitable’ in nature.”13 Because “[t]he funds to satisfy the award 

[requested] in this case must inevitably come from the general revenues of 

9 Gomez v. Hous. Auth. of the City of El Paso, 148 S.W.3d 471, 477 (Tex. App.—El 

Paso 2004, pet. denied).

10 Moore v. Louisiana Board of Elementary and Secondary Education, 743 F.3d 959, 

963 (5th Cir. 2014).

11 Ex parte Young, 209 U.S. 123, 155–56 (1908). 

12 Tunstall claims Daigle “procure[d] ex parte income assignment and withholding 

orders” from the Louisiana court at this time, which continued until 2017.

13 Edelman v. Jordan, 415 U.S. 651, 666 (1974). 

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the State,”14 Tunstall’s claims against Daigle in her official capacity are 

barred by the Eleventh Amendment.15

Tunstall also seeks to avoid the bar presented by the Eleventh 

Amendment by arguing the underlying merits of his various constitutional 

claims. However, the Eleventh Amendment is a jurisdictional bar to the 

suit.

16 Regardless of the underlying merits of Tunstall’s claims, the Eleventh 

Amendment bars relief for his claims against Daigle in her official capacity. 

We affirm the magistrate judge’s dismissal of Tunstall’s claims against 

Daigle in her official capacity for lack of subject matter jurisdiction. 

IV.

Tunstall next argues that his Fourth Amendment and Fourteenth 

Amendment claims against Daigle in her individual capacity are not 

prescribed. We affirm the magistrate judge’s holding that Tunstall’s claims

against Daigle in her individual capacity are prescribed.

Because “Congress did not establish a statute of limitations or a body 

of tolling rules applicable to actions brought in federal court under § 1983,” 

this Court “borrow[s] the state law of limitations governing an analogous 

cause of action.”17 “The statute of limitations for Section 1983 claims is the 

forum state’s personal-injury limitations period, which in Louisiana is one 

year.”18 While state law determines the length of the prescriptive period, 

14 Id. at 665.

15 Fontenot v. McCraw, 777 F.3d 741, 752–55 (5th Cir. 2015). 

16 Hans, 134 U.S. at 11. 

17 Bd. of Regents v. Tomanio, 446 U.S. 478, 483–84 (1980) (internal quotations 

omitted). 

18 Smith v. Reg’l Transit Auth., 827 F.3d 412, 421 (5th Cir. 2016) (internal 

quotations and citations omitted). 

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federal law determines the accrual date: “a cause of action accrues when the 

plaintiff knows or has reason to know of the injury which is the basis of the 

action.”19

Tunstall asserts that his injury occurred between September 8, 2012

and July 6, 2017, the period in which Daigle allegedly improperly garnished 

his wages. Tunstall knew of his alleged injury during this time period. Even 

accepting the latest date in this period, July 6, 2017, as the accrual date, 

Tunstall did not file suit until October 5, 2020—more than one year after the 

accrual date. Therefore, his claims are prescribed.

Tunstall seeks to avoid prescription by arguing that the “detention” 

of his “seized” property “has not ended” and Daigle’s “post-judgment 

deprivation of his constitutional rights” are ongoing.20 In other words, he 

argues that the statutory period has not run as his harm is ongoing. However, 

adopting Tunstall’s theory would undermine statutory periods of 

limitations.21 The relevant inquiry is not whether Tunstall continues to suffer 

ongoing harm as a result of Daigle’s actions. Rather, the relevant inquiry is 

when Tunstall knew or had reason to know of the injury giving rise to his 

cause of action and whether he filed suit within the prescriptive period from 

that date.

22 Tunstall failed to file suit within one year of the accrual date; 

therefore his claims against Daigle in her individual capacity are prescribed. 

19 Id. (citation omitted). 

20 Because, on appeal, Tunstall does not argue that his state law claims were not 

prescribed, nor does he argue for equitable tolling, “interruption,” or contra non valentem, 

these issues are waived. See Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994).

21 Tomanio, 446 U.S. at 485–86.

22 Smith, 827 F.3d at 421.

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* * * *

We AFFIRM the dismissal of Tunstall’s claims against Daigle. 

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