Brandon Lavergne v. Claire Higgingbottom

Filing

REVISED UNPUBLISHED OPINION FILED. [7644871-2] [14-30225]

Case: 14-30225

Document: 00512656724

Page: 1

Date Filed: 06/09/2014

REVISED JUNE 5, 2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 14-30225
Summary Calendar

FILED
May 29, 2014
Lyle W. Cayce
Clerk

BRANDON SCOTT LAVERGNE,
Plaintiff–Appellant

v.

CLAIRE GIANFALA HIGGINGBOTTOM,
Defendant–Appellee

Appeal from the United States District Court
for the Western District of Louisiana
USDC. No. 6:13-CV-2122
Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
Plaintiff–Appellant Brandon Scott Lavergne (“Lavergne”), proceeding
pro se, appeals the district court’s dismissal with prejudice of his civil rights
case under 42 U.S.C. § 1983 against Defendant–Appellee Claire Gianfala
Higgingbottom (“Higgingbottom”), a private citizen residing in Louisiana.

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
*

Case: 14-30225

Document: 00512656724

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No. 14-30225
Lavergne is currently serving consecutive sentences of life imprisonment,
having pled guilty to two murders. In essence, Lavergne seeks damages from
Higgingbottom for false statements she allegedly made to the police, the media,
and the grand jury in connection with the murder investigation that
culminated in Lavergne’s conviction.
The district court dismissed his complaint with prejudice. The court
concluded Lavergne failed to state a claim under § 1983 because he did not
allege Higgingbottom, a private citizen, was a state actor acting under color of
state law nor did he allege his conviction was invalid. The court declined to
exercise supplemental jurisdiction over his state law defamation and libel
claims under 28 U.S.C. § 1367(c)(3) and entered judgment for Higgingbottom.
We have jurisdiction under 28 U.S.C. § 1291. “We review a district court’s
dismissal under Rule 12(b)(6) de novo, ‘accepting all well-pleaded facts as true
and viewing those facts in the light most favorable to the plaintiffs.’” Doe ex
rel. Magee v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th Cir.
2012) (en banc) (citation omitted).
On appeal, Lavergne asserts the district court violated his due process
rights under the Fourteenth Amendment because (1) it took “no action” from
June 2013 through February 2014 on his complaint, (2) the magistrate judge
denied Lavergne’s request for leave to amend and motion to recuse together
after issuing his findings and recommendations, which Lavergne contends
constituted “rul[ing] on his own motion to recuse.” To the extent Lavergne
attempts to raise other issues through this appeal, we do not decide those
issues because they were inadequately briefed. See Grant v. Cuellar, 59 F.3d
523, 524 (5th Cir. 1995) (“Although we liberally construe briefs of pro se
litigants and apply less stringent standards to parties proceeding pro se than
to parties represented by counsel, pro se parties must still brief the issues and
reasonably comply with the standards of Rule 28.” (footnote omitted)).
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Here, the district court correctly concluded Lavergne failed to plead
sufficient facts to state a claim for violation of § 1983. “To state a cause of
action under section 1983 the appellant must allege that the person who
deprived him of a federal right was acting under color of law.” Priester v.
Lowndes Cnty., 354 F.3d 414, 420 (5th Cir. 2004). As the district court correctly
observed, Higgingbottom is not a state actor or otherwise acted “under color of
law” within the meaning of § 1983. Moreover, we find no error in the procedure
in the district court. After a year without activity in the case, the court
appropriately screened his pro se complaint under 28 U.S.C. § 1915(e)(2). See
Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990).

The magistrate judge was

under no obligation to recuse himself from Lavergne’s request for leave to
amend, and did not abuse discretion in refusing to do so. See Matassarin v.
Lynch, 174 F.3d 549, 571 (5th Cir. 1999) (affirming denial of a motion to recuse
because the record “falls . . . short of ‘such a high degree of favoritism or
antagonism as to make fair judgment impossible.’” (quoting Liteky v. United
States, 510 U.S. 540, 555 (1994)).
Accordingly, the district court did not err when it dismissed Lavergne’s
complaint for failure to state a claim, and therefore we AFFIRM.

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