FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

April 30, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-13699

Non-Argument Calendar

________________________

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.
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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
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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
Thibeaux stated in his notice of appeal that he was appealing both orders of the district 1

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.

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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.” Id. at 11. 1

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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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.