Brandon Lavergne v. Leslie Turk

Case: 14-30288 Document: 00512815326 Page: 1 Date Filed: 10/27/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 14-30288
Fifth Circuit
FILED
Summary Calendar October 27, 2014
Lyle W. Cayce
BRANDON SCOTT LAVERGNE, Clerk
Plaintiff-Appellant
v.
LESLIE TURK; INDEPENDENT MEDIA GROUP,
Defendants-Appellees
Appeals from the United States District Court
for the Western District of Louisiana
USDC No. 6:13-CV-2198
Before SMITH, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
Brandon Scott Lavergne, Louisiana prisoner # 424229, pleaded guilty to
two counts of first degree murder for the murders of Michaela Shunick and
Lisa Pate. Thereafter, Lavergne filed a civil rights complaint against Leslie
Turk and the Independent Media Group. The district court dismissed
Lavergne’s 42 U.S.C. § 1983 claims for failure to state a claim because the
defendants were not state actors for § 1983 purposes and the claims were
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 14-30288
barred by Heck v. Humphrey, 512 U.S. 477 (1994). Additionally, the district
court dismissed Lavergne’s claims he asserted under Louisiana state law
without prejudice.
This court reviews a dismissal for failure to state a claim under 28 U.S.C.
§ 1915(e)(2)(B)(ii) de novo applying the same standard that is used to review a
dismissal under Federal Rule of Civil Procedure 12(b)(6). Black v. Warren, 134
F.3d 732, 733-34 (5th Cir. 1998).
Lavergne argues on appeal that the district court erred in dismissing his
complaint for failure to state a claim because the defendants were state actors.
For a private citizen, such as the instant defendants, to be held liable under
§ 1983, “the plaintiff must allege and prove that the citizen conspired with or
acted in concert with state actors.” Mylett v. Jeane, 879 F.2d 1272, 1275 (5th
Cir. 1989. A plaintiff satisfies this burden by alleging and proving “(1) an
agreement between the private and public defendants to commit an illegal act
and (2) a deprivation of constitutional rights. Allegations that are merely
conclusory, without reference to specific facts, will not suffice.” Priester v.
Lowndes County, 354 F.3d 414, 420 (5th Cir. 2004).
Here, the district court correctly determined that Lavergne’s complaint
failed to allege that the defendants conspired with a state actor. Although
Lavergne alleged that the defendants printed false statements about him, he
failed to allege specific facts to show an agreement between the defendants and
the police, or any other state actor, to commit an illegal act. Accordingly, the
district court did not err when it dismissed Lavergne’s § 1983 claims against
the defendants for failure to state a claim. See Priester, 354 F.3d at 420.
Additionally, Lavergne cannot overcome the Heck bar. Lavergne’s
claims arise out of the Shunick and Pate murder prosecutions, and they reflect
his view that the prosecutions and his resulting guilty pleas were tainted by
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their false statements. If the district court were to award Lavergne damages
as to any of these claims, it would implicitly call into question the validity of
his convictions. See Heck, 512 U.S. at 487; Penley v. Collin County, Tex., 446
F.3d 572, 573 (5th Cir. 2006); Clarke v. Stalder, 154 F.3d 186, 190-91 (5th
Cir.1998) (en banc); see also Lavergne v. Sanford, 570 F. App’x 385 (5th Cir.
2014).
In light of the foregoing, the district court did not abuse its discretion in
denying his motion to appoint counsel or his motions to amend his complaint
as the amendments were futile. See Leal v. McHugh, 731 F.3d 405, 417 (5th
Cir. 2013); Ulmer v. Chancellor, 691 F.2d 209, 212-13 (5th Cir. 1982). To the
extent Lavergne raises new claims on appeal, we do not address them. See
Willard v. Ballard, 466 F.3d 330, 335 (5th Cir. 2006).
Lavergne’s motion to appoint counsel is DENIED, and the judgment of
the district court is AFFIRMED.
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