LaVergne v. Stutes ( 2023 )

Case: 22-30475 Document: 00516907448 Page: 1 Date Filed: 09/25/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
September 25, 2023
No. 22-30475 Lyle W. Cayce
____________ Clerk
Brandon S. LaVergne,
Plaintiff—Appellant,
versus
Keith Stutes, District Attorney Louisiana 15th Judicial District Court;
Michael Harson, Former District Attorney Louisiana 15th Judicial
District Court; Herman Clause, Former District Court Judge Louisiana
15th Judicial District Court; N. Burl Cain, Former Louisiana State Prison
Warden; James M. LeBlanc, Secretary, Department of Public Safety and
Corrections; Burliegh Doga, Assistant District Attorney Louisiana 15th
Judicial District Court; J. Clay Lejeune; Doug Welborn, Clerk of
Court Louisiana 19th Judicial District Court; Daniel M. Landry, III,
Assistant District Attorney; Alan Haney, Assistant District Attorney;
Roger Hamilton, Assistant District Attorney; Darrel Vannoy,
Warden, Louisiana State Penitentiary; Taylor Curtier; Paul Smith;
Kevin Benjamin, Former Warden of Security,
Defendants—Appellees,
______________________________
Brandon S. LaVergne,
Plaintiff—Appellant,
versus
Keith Stutes, District Attorney Louisiana 15th Judicial District Court,
Individual and Official Capacity; Michael Harson, Former District
Case: 22-30475 Document: 00516907448 Page: 2 Date Filed: 09/25/2023
Attorney Louisiana 15th Judicial District Court, Individual and Official
Capacity; N. Burl Cain, Former Louisiana State Prison Warden, Individual
Capacity; Herman Clause, Former District Court Judge Louisiana 15th
Judicial District Court, Official Capacity,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Middle District of Louisiana
USDC Nos. 3:17-CV-1696, 3:18-CV-693
______________________________
Before Jones, Stewart, and Duncan, Circuit Judges.
Stuart Kyle Duncan, Circuit Judge:
Pro se plaintiff Brandon LaVergne pled guilty to two counts of first-
degree murder in 2012 and received a life sentence at the Louisiana State
Penitentiary (“LSP”). He has since filed a stream of state and federal
lawsuits against numerous officials, which we have detailed previously. See
LaVergne v. Stutes, 2021 WL 2877789, at *1 (5th Cir. July 8, 2021) (per
curiam). In a prior appeal, we partially remanded for the district court to
consider LaVergne’s 42 U.S.C. § 1983 claims against James LeBlanc, the
Secretary of the Louisiana Department of Public Safety and Corrections, and
Burl Cain, the former Warden of LSP, and specifically those officials’
invocation of qualified immunity and prescription. See id. at *4 (remanding
those claims “for consideration of . . . defendants’ raised defenses”).
LaVergne claims LeBlanc and Cain should be personally liable under
42 U.S.C. § 1983 for his conditions of confinement from August 2012 to June
2017, which he alleges violated the Fourteenth and Eighth Amendments. We
recite the allegations pertinent to those claims from our prior opinion.
“During his time at the LSP, LaVergne has been housed in both ‘restricted
custody,’ also known as solitary confinement, and the LSP dorms. Beginning
in 2012, he was initially assigned to restricted custody, where he had limited
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access to the law library, legal materials, and counsel.” Id. at *1. LaVergne
was “moved into the LSP dorms in June 2017,” where he encountered what
he claimed were objectionable conditions, including inmate drug use,
overcrowding, and uncleanliness. Ibid. In 2018, LaVergne tried to escape,
was unsuccessful, and “[a]s a result, he was re-assigned to restricted custody
in October 2018.” Ibid.
On remand, the district court directed the parties to file supplemental
memoranda addressing qualified immunity and prescription and referred the
matter to a magistrate judge. In a thorough opinion, the magistrate judge
recommended dismissal for failure to state a claim. 1 Over LaVergne’s
objections, the district court adopted the magistrate judge’s
recommendation and dismissed LaVergne’s claims against LeBlanc and Cain
with prejudice. LaVergne now appeals.
We review a dismissal for failure to state a claim de novo. See, e.g.,
Norsworthy v. Houston Indep. Sch. Dist., 70 F.4th 332, 336 (5th Cir. 2023);
Fed. R. Civ. P. 12(b)(6). A complaint must be dismissed if it fails to plead
facts allowing the reasonable inference that the defendant is liable for the
alleged misconduct. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). While we accept well-pled facts
as true and in a light favoring the plaintiff, we do not accept “conclusory
allegations, unwarranted factual inferences, or legal conclusions.” Heinze v.
Tesco Corp., 971 F.3d 475, 479 (5th Cir. 2020) (citation omitted). 2 Relatedly,
when a defendant invokes qualified immunity, the plaintiff must show the
defendant (1) violated a constitutional right, (2) which was then clearly
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1
The magistrate judge did not address whether LaVergne’s claims were
prescribed.
2
Pro se pleadings like LaVergne’s are to be liberally construed. See Jeanty v. Big
Bubba’s Bail Bonds, 72 F.4th 116, 119 (5th Cir. 2023).
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established. See Keller v. Fleming, 952 F.3d 216, 221 (5th Cir. 2020). A court
may address either or both prongs. See Pearson v. Callahan, 555 U.S. 223, 242
(2009). Here, the magistrate judge limited his ruling to prong one by
dismissing LaVergne’s claims for failure to state a claim.
LaVergne’s handwritten pro se brief confusingly raises numerous
issues beyond the scope of our prior remand. Like the magistrate judge,
however, we limit our analysis to whether LeBlanc and Cain are entitled to
qualified immunity from LaVergne’s Fourteenth and Eighth Amendment
claims. We see no reversible error in the magistrate judge’s well-reasoned
opinion.
As to the Fourteenth Amendment, the magistrate judge correctly
stated that restrictive confinement like LaVergne’s is grounds for a due
process claim only if it “imposes atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner,
515 U.S. 472, 484 (1995). Applying that standard, the judge properly
considered the severity and duration of the confinement. See Wilkerson v.
Goodwin, 774 F.3d 845, 854–55 (5th Cir. 2014); Bailey v. Fisher, 647 F. App’x
472, 476–77 (5th Cir. 2016). The judge compared those elements of
LaVergne’s confinement to cases where a due process violation had been
found, reasonably finding that LaVergne’s conditions were not “sufficiently
severe to give rise to a liberty interest under Sandin.”
For instance, although LaVergne alleged he was confined to a cell
twenty-three hours per day from August 2012 to June 2017, he was
nonetheless “permitted two contact visits per month,” “was able to make
phone calls, cook food, or exercise” an hour per day, “was permitted outdoor
recreation for three hours per week, albeit in a limited space,” and was not
“deprived of conversation or communication with other inmates.” Cf.
Wilkinson v. Austin, 545 U.S. 209, 223–24 (2005) (involving a “supermax
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facility” where placement was indefinite, almost all contact was prohibited,
and placement disqualified the prisoner for parole consideration); Wilkerson,
774 F.3d at 855 (involving thirty-nine-year confinement in solitary
confinement) 3; Bailey, 647 F. App’x at 474–75 (involving a prisoner kept
twenty-three to twenty-four hours per day in a cell with solid steel door and
minimum visitation). The magistrate judge committed no reversible error in
dismissing LaVergne’s Fourteenth Amendment due process claim.
As to LaVergne’s Eighth Amendment claim, the magistrate judge
correctly stated that such a claim requires showing both that a prisoner faces
conditions so dire as to deprive him of “the minimal civilized measure of
life’s necessities,” and that the responsible prison officials were
“deliberately indifferent” to the inmate’s health or safety. See generally
Farmer v. Brennan, 511 U.S. 825, 834–36 (1994); Wilson v. Seiter, 501 U.S.
294, 296–303 (1991); Hutto v. Finney, 437 U.S. 678, 685–87 (1978). The
magistrate judge properly applied these standards, concluding that “[t]he
conditions alleged by [LaVergne], alone or in combination, do not evidence
deprivation of a basic human need.” For instance, the court reasoned that
LaVergne’s allegations concerning restrictions on his visiting privileges and
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3
In Carmouche v. Hooper, we recently rejected the view that Wilkerson set “a 30–
month threshold” before administrative segregation becomes “atypical.” 77 F.4th 362, 367
(5th Cir. 2023). We explained that, instead, “courts should apply a nuanced analysis
looking at the length and conditions of confinement on a case-by-case basis,” as required
by Sandin. Ibid. (citation omitted). Carmouche does not require reversal for three reasons.
First, Carmouche does not suggest that 10 additional months in administrative segregation
(the duration alleged there) necessarily shows atypicality, particularly where the record
contained no evidence about the plaintiff’s conditions of confinement. Second, unlike here,
Carmouche reversed a dismissal for frivolousness under 28 U.S.C. §§ 1915(e) and 1915A,
and accordingly no factual development of the plaintiff’s claim had occurred. See id. at 365.
Third, the magistrate judge here did not recommend dismissal of LaVergne’s due process
claim based on some durational threshold but instead properly analyzed the nature and
duration of LaVergne’s confinement under Sandin.
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email access did not rise to the level of an Eighth Amendment violation.
See, e.g., Thorne v. Jones, 765 F.2d 1270, 1273 (5th Cir. 1985) (holding that,
for convicted prisoners, visitation privileges “are a matter subject to the
discretion of prison officials”) (citation omitted). Nor did confinement to a
cell for twenty-three hours per day violate the Eight Amendment where the
inmate nonetheless could converse with other inmates, receive visitors, and
engage in some form of exercise or other recreation. See, e.g., Escobarrivera v.
Whitaker, 2022 WL 17352178, at *4 (5th Cir. Dec. 1, 2022); Argue v.
Hofmeyer, 80 F. App’x 427, 429–30 (6th Cir. 2003); Hill v. Pugh, 75 F. App’x
715, 721 (10th Cir. 2003). The magistrate judge committed no reversible error
in dismissing LaVergne’s Eighth Amendment claim. 4
AFFIRMED.
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4
Having dismissed all of LaVergne’s federal claims, the magistrate judge declined
to exercise supplemental jurisdiction over his state claims under 28 U.S.C. § 1367(c)(3).
We see no abuse of discretion in that decision. See Manyweather v. Woodlawn Manor, Inc.,
40 F.4th 237, 242 (5th Cir. 2022) (reviewing such a decision for abuse of discretion).
6