Brandon Lavergne v. Public Defender , 583 F. App'x 361 ( 2014 )

Case: 14-30245 Document: 00512814531 Page: 1 Date Filed: 10/24/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-30245
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
October 24, 2014
BRANDON SCOTT LAVERGNE,
Lyle W. Cayce
Clerk
Plaintiff-Appellant
v.
PUBLIC DEFENDER 15TH JUDICIAL DISTRICT COURT; BURLIEGH
DOGA; CLAY LEJEUNE; ELLIOT BROWN,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:13-CV-2139
Before PRADO, 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 the Office
of the Public Defender for the Fifteenth Judicial District, its supervisor, and
two public defenders who represented him on the murder charges. The district
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-30245
court dismissed Lavergne’s 42 U.S.C. § 1983 complaint as barred by Heck v.
Humphrey, 512 U.S. 477 (1994), and, in the alternative, as frivolous and for
failure to state a claim because the public defenders were not state actors
within the meaning of § 1983 and the Public Defender’s Office was not an entity
capable of being sued under § 1983. Lavergne’s state law claims were
dismissed 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 that the district court erred in dismissing his complaint
under Heck because some of his claims against his defense attorneys fall
outside the reach of Heck. We disagree. It is disingenuous of Lavergne to
attempt to carve out portions of the attorneys’ representation as exempt from
the Heck bar. If the district court were to award him damages as to any of his
claims, it would implicitly call into question the validity of his murder
convictions. See Heck, 512 U.S. at 487; Penley v. Collin County, Tex., 446 F.3d
572, 573 (5th Cir. 2006). In this same vein, any error in denying his motions
to amend was harmless because the amendments were futile in light of the
Heck bar. See United States v. Gonzalez, 592 F.3d 675, 681 (5th Cir. 2009).
The district court did not err in dismissing Lavergne’s Heck-barred claims with
prejudice. See Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996). In light
of the foregoing, the district court did not abuse its discretion in denying
Lavergne’s motion to appoint counsel. See 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.
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No. 14-30245
2006). Lavergne’s motion to appoint counsel is DENIED, and the district
court’s judgment is AFFIRMED.
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