     Case: 13-30301          Document: 00512396088       Page: 1    Date Filed: 10/03/2013




              IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                       Fifth Circuit

                                                                            FILED
                                                                          October 3, 2013
                                       No. 13-30301
                                     Summary Calendar                      Lyle W. Cayce
                                                                                Clerk

CHARLES H. THIBODEAUX,

                                                   Plaintiff-Appellant

v.

LESTER TAMASHIRO, Federal Bureau of Investigation; MARVIN
OPOTOWSKY, United States Prosecuting Attorney; E. DE PAULA, Probation
Officer; MR. WILLIAMS, Probation Officer; KERRY P. CUCCIA, Attorney for
Plaintiff; DEPARTMENT OF JUSTICE

                                                   Defendants-Appellees


                      Appeals from the United States District Court
                          for the Eastern District of Louisiana
                                 USDC No. 2:12-CV-2080


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
         This is an appeal by Charles Thibodeaux (“Thibodeaux”) challenging two
district court orders dismissing his Bivens1 action against defendants for failure
to state a claim. In his complaint, Thibodeaux alleges that defendants committed


         *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
         1
             Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971)
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                                      No. 13-30301

various unlawful acts related to his criminal prosecution and conviction in
1992–93. All of the conduct alleged in the complaint occurred during that time.
       Thibodeaux claims that defendants Lester Tamashiro, an FBI Agent, and
Marvin Opotowsky, a former United States Attorney, searched his residence
without a warrant or probable cause in 1992.2 He further alleges that Tamashiro
lied to a United States Magistrate Judge in order to obtain a warrant, and that
Opotowsky violated the ex post facto provision of the United States Constitution
by charging him with a crime.
       Thibodeaux alleges that defendant Kerry Cuccia, his attorney at the time,
told him to plead guilty although he was innocent, and refused to represent him.
He also claims that defendant Elizabeth DePaula, a United States Probation
Officer, shared information with his employer that lead to Thibodeaux’s forced
resignation. Finally, Thibodeaux asserts that defendant Patrick Williams, also
a United States Probation Officer, warned Thibodeaux not to report the incident
with De Paula or he would “spend the rest of his life in a Mental Institution.”
       The government moved to dismiss Thibodeaux’s claims against
Opotowsky, De Paula, and Williams, in their individual capacities, as well as
Thibodeaux’s claims against the Department of Justice. On March 6, 2013, the
district court granted the motion, and dismissed Thibodeaux’s claims against
these defendants for various reasons. The court dismissed the claims against the
De Paula and Williams as time-barred under the relevant statute of limitations;
it dismissed the claims against Opotowsky under the doctrine established in
Heck v. Humphrey, 512 U.S. 477 (1994), because they necessarily imply the
invalidity of his underlying conviction; and it dismissed the claims against the
DOJ as barred by sovereign immunity. See Fed. Deposit Ins. Corp. v. Meyer, 510
U.S. 471, 486 (1994).



       2
       The district court dismissed Thibodeaux’s claims against Tamashiro for lack of service
on February 14, 2013.

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                                     No. 13-30301

       Also in its order on dismissal, the district court notified Thibodeaux that
it intended to dismiss his claims against his attorney Kerry Cuccia sua sponte
because the claims were barred by Heck and the relevant statute of limitations,
and because it did not appear that Cuccia was acting under color of law. The
court instructed him to file an opposition to such a dismissal no later than
March 15, 2013. Thibodeaux filed an “error in dismissal” on March 12, 2013, and
the Court, unpersuaded by his arguments, issued an order dismissing his claims
against Cuccia on March 14, 2013.
       After careful review, we find no error in the district court’s decisions. For
the reasons explained by the district court in its orders of dismissal, we hereby
AFFIRM.3




       3
      In addition, Thibodeaux’s motion for the issuance of a Default Final Decree is hereby
DENIED.

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