Brandon Lavergne v. Busted in Acadiana

Filing

UNPUBLISHED OPINION FILED. [14-30275 Affirmed ] Judge: JES , Judge: PRO , Judge: JEG Mandate pull date is 11/17/2014; denying motion to appoint counsel filed by Appellant Mr. Brandon Scott Lavergne [7751735-2] [14-30275]

Case: 14-30275

Document: 00512815181

Page: 1

Date Filed: 10/27/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-30275
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
October 27, 2014
Lyle W. Cayce
Clerk

BRANDON SCOTT LAVERGNE,
Plaintiff-Appellant
v.
BUSTED IN ACADIANA,
Defendant-Appellee
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:13-CV-2202
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 a

website, Busted in Acadiana. The district court treated Lavergne’s complaint
as arising under 42 U.S.C. § 1983 and dismissed it for failure to state a claim
as Busted in Acadiana was not an entity capable of being sued and

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-30275
alternatively was not a state actor. 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). Questions of federal jurisdiction are likewise
reviewed de novo. Davoodi v. Austin Indep. Sch. Dist., 755 F.3d 307, 309 (5th
Cir. 2014).
Lavergne asserts that the district court erred in determining that the
private website Busted in Acadiana was not an entity capable of being sued
under § 1983. Even if Busted in Acadiana was an entity capable of being sued,
or even if Lavergne could have identified the proper defendant related to this
private website, he has not shown that the defendant was a state actor for
§ 1983 purposes. To state a cause of action under § 1983, the plaintiff must
allege that a person or entity acting under color of law has deprived him of a
federal right. Cinel v. Connick, 15 F.3d 1338, 1342 (5th Cir. 1994). For a
private party to be held liable under § 1983, “the plaintiff must allege and prove
that the [non-state actor] conspired with or acted in concert with state actors.”
Mylett v. Jeane, 879 F.2d 1272, 1275 (5th Cir. 1989; see also Castro Romero v.
Becken, 256 F.3d 249, 355 (5th Cir. 2001). 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 any conspiracy or other action involving a state actor. See

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Priester, 354 F.3d at 420. Although Lavergne has alleged that the defendant
made false statements about him, he has not alleged an agreement between
Busted in Acadiana and the police, or any other state actor, to commit an illegal
act, or allege specific facts to show an agreement to commit an illegal act. Thus,
the district court did not err when it dismissed Lavergne’s § 1983 claims for
failure to state a claim. Id.
Additionally, with the benefit of liberal construction, Lavergne seems to
allege that his claims of libel and slander raise a federal question because the
defendant’s statements reached across state lines. Lavergne’s argument is
unavailing. Claims of libel and slander are quintessentially state law claims.
Cf. Phelan v. Norville, 460 F. App’x 376 (5th Cir. 2012) (upholding the district
court’s decision not to exercise supplemental jurisdiction over claims of libel
and slander). The fact that Busted in Acadiana’s alleged statements crossed
state lines does not support federal question jurisdiction.
Accordingly, the district court did not err when it dismissed the
complaint. In this same vein, the district court did not abuse its discretion in
denying his motions to amend his complaint because the amendments were
futile. See Leal v. McHugh, 731 F.3d 405, 417 (5th Cir. 2013). 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 district court’s
judgment is AFFIRMED.

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