Brandon Lavergne v. Acadia Parish, et al

Filing

UNPUBLISHED OPINION FILED. [14-30248 Affirmed] Judge: PEH , Judge: EHJ , Judge: SAH. Mandate pull date is 02/18/2015; denying motion to appoint counsel filed by Appellant Mr. Brandon Scott Lavergne [7775259-2] [14-30248]

Case: 14-30248

Document: 00512914827

Page: 1

Date Filed: 01/26/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-30248
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
January 26, 2015

BRANDON SCOTT LAVERGNE,
Plaintiff-Appellant

Lyle W. Cayce
Clerk

v.
SHERIFF’S OFFICE ACADIA PARISH; KEITH LATHOLIS,
Defendants-Appellees
Appeals from the United States District Court
for the Western District of Louisiana
USDC No. 6:13-CV-2140
Before HIGGINBOTHAM, JONES, and HIGGINSON, 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 the
Acadia Parish Sheriff’s Office and Detective Keith Latholis. The district court
dismissed Lavergne’s claims directed at events that occurred in 2000, 2005,
and 2008 as frivolous and events connected with the 2012 murder

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-30248

Document: 00512914827

Page: 2

Date Filed: 01/26/2015

No. 14-30248
investigations of Shunick and Pate and the subsequent state criminal
proceeding as barred by Heck v. Humphrey, 512 U.S. 477 (1994). Alternatively,
the district court dismissed Lavergne’s claims against the Sheriff’s Office for
failure to state a claim because the Sheriff’s Office is not an entity capable of
being sued under 42 U.S.C. § 1983.

The district court also dismissed

Lavergne’s state law claims.
This court reviews the dismissal of a complaint 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) (per curiam). A dismissal
as frivolous under § 1915(e)(2)(B)(i) is reviewed for an abuse of discretion. Id.
at 734.
In his brief, Lavergne contends that his claims concerning events that
occurred in 2000, 2005, and 2008 were not untimely filed and that Heck does
not apply because his claims are not grounds to overturn his convictions and
because the false statements of Kent Kloster and Claire Higgingbottom were
not used in the statement of facts or factual basis for his guilty plea convictions.
Even if his claims were not time barred, 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. 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 Cnty., Tex., 446 F.3d
572, 573 (5th Cir. 2006) (per curiam); see also Lavergne v. Sanford, 570 F. App’x
385 (5th Cir. 2014) (per curiam). In this same vein, the district court did not
abuse its discretion in denying his motion to appoint counsel or his motions to
amend his complaint because the amendments were futile. See Heck, 512 U.S.

2

Case: 14-30248

Document: 00512914827

Page: 3

Date Filed: 01/26/2015

No. 14-30248
at 487; 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 Williams v. Ballard, 466 F.3d 330, 335
(5th Cir. 2006) (per curiam).
Lavergne’s motion to appoint counsel is DENIED, and the judgment of
the district court is AFFIRMED.

3