Brandon Lavergne v. Kent Kloster , 583 F. App'x 411 ( 2014 )

Case: 14-30307 Document: 00512823744 Page: 1 Date Filed: 11/03/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 14-30307 November 3, 2014
Summary Calendar
Lyle W. Cayce
Clerk
BRANDON SCOTT LAVERGNE,
Plaintiff-Appellant
v.
KENT DAVID KLOSTER,
Defendant-Appellee
Appeals from the United States District Court
for the Western District of Louisiana
USDC No. 6:13-CV-2145
Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Brandon Scott Lavergne, Louisiana prisoner # 424229, pled 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 Kent Kloster.
The district court dismissed the complaint as frivolous, for failure to state a
claim, as barred by Heck v. Humphrey, 512 U.S. 477 (1994), and for lack of
jurisdiction.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-30307 Document: 00512823744 Page: 2 Date Filed: 11/03/2014
No. 14-30307
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).
In his brief, Lavergne contends that his claims were not untimely filed
and that Heck does not apply because his claims for libel and slander are not
grounds to overturn his convictions and because Kloster’s false statements
were not used in the factual basis for his guilty plea convictions. Even if his
claims were not all 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 by Kloster’s 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 Cnty., Tex., 446 F.3d 572, 573 (5th Cir. 2006); see also Lavergne v.
Sanford, 570 F. App’x 385 (5th Cir. 2014). Nor was it error for the district
court to dismiss the Heck-barred claims with prejudice. See Johnson v.
McElveen, 101 F.3d 423, 424 (5th Cir. 1996).
Neither did the district court abuse its discretion in denying his motion
to appoint counsel or his motion to amend his complaint because the
amendments were futile in light of the Heck bar. 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 Williams 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.
2