Case: 15-30452 Document: 00513545773 Page: 1 Date Filed: 06/13/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 15-30452
Fifth Circuit
FILED
Summary Calendar June 13, 2016
Lyle W. Cayce
BRANDON SCOTT LAVERGNE, Clerk
Plaintiff-Appellant
v.
TRENT BRIGNAC; BRENT COREIL; EDDIE SOILEAU; JUDGE GARY
ORTEGO, Evangeline Parish; LARRY VIDRINE, former Judge, Evangeline
Parish; J. CRAIG ORTEGO; RAYMOND LEJEUNE,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:14-CV-2835
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
In February 2000, Brandon Scott Lavergne, Louisiana prisoner
# 424229, pleaded guilty to aggravated oral sexual battery and was sentenced
to ten years of imprisonment. He completed his sentence and now has filed a
civil rights complaint, seeking injunctive and declaratory relief and monetary
damages, alleging that the defendants violated his constitutional rights, in
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-30452 Document: 00513545773 Page: 2 Date Filed: 06/13/2016
No. 15-30452
part, by failing to disclose a statement from the victim in his aggravated oral
sexual battery conviction. The district court dismissed Lavergne’s complaint
as frivolous and for failure to state a claim upon which relief could be granted,
determining, in part, that the claims were barred by Heck v. Humphrey, 512
U.S. 477 (1994).
A district court is required to dismiss a prisoner's civil rights complaint
if it is frivolous, malicious, or fails to state a claim upon which relief could be
granted. 28 U.S.C. § 1915A(b)(1); 28 U.S.C. § 1915(e)(2)(B)(i) & (ii). We review
de novo the district court’s dismissal of Lavergne’s § 1983 complaint as
frivolous and for failure to state a claim under § 1915A and § 1915(e). See
Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005).
Lavergne renews his claims against the defendants and contends that
the district court erred in dismissing his complaint. Contrary to Lavergne’s
assertions, he has not overcome the Heck bar. See Sojourner T v. Edwards,
974 F.2d 27, 30 (5th Cir. 1992). Lavergne’s claims arise out of the aggravated
oral sexual battery prosecution, and they reflect his view that his prosecution
and guilty plea for aggravated oral sexual battery was tainted by the
defendants’ actions. If the district court were to award Lavergne relief as to
any of these claims, it would implicitly call into question the validity of his
2000 conviction for aggravated oral sexual battery. See Heck, 512 U.S. at 487.
Additionally, Heck is applicable even though Lavergne has served the entirety
of his aggravated oral sexual battery sentence. See Randell v. Johnson, 227
F.3d 300, 301 (5th Cir. 2000). Accordingly, Lavergne has not shown that the
district court erred in dismissing his § 1983 complaint.
Lavergne’s appeal lacks an arguable basis in law or fact, and, thus, it is
DISMISSED as frivolous. See 5TH CIR. R. 42.2. Lavergne’s motion for leave to
file a supplemental brief in which he attempts to submit new evidence and
2
Case: 15-30452 Document: 00513545773 Page: 3 Date Filed: 06/13/2016
No. 15-30452
raise new issues is DENIED. See Theriot v. Parish of Jefferson, 185 F.3d 477,
491 & n.26 (5th Cir. 1999).
Section 1915(g) provides that
[i]n no event shall a prisoner bring a civil action or
appeal a judgment in a civil action or proceeding . . . if
the prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an
action or appeal in a court of the United States that
was dismissed on the grounds that it is frivolous,
malicious, or fails to state a claim upon which relief
may be granted, unless the prisoner is under
imminent danger of serious physical injury.
The district court’s dismissal of Lavergne’s complaint counts as one strike, and
the dismissal of this appeal as frivolous counts as an additional strike under
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.1996).
Lavergne previously filed § 1983 complaints that the district court dismissed
as frivolous and for failure to state a claim, which counted as strikes. He now
has accumulated at least three strikes for purposes of § 1915(g) and is
prohibited from proceeding in forma pauperis in any civil action or appeal that
is filed while he is incarcerated or detained in any facility unless he is under
imminent danger of serious physical injury. See § 1915(g). Additionally, we
WARN Lavergne that future frivolous, repetitive, or otherwise abusive filings
will result in the imposition of sanctions, including dismissal, monetary
sanctions, and restrictions on his ability to file pleadings in this court or any
court subject to this court’s jurisdiction. See Coghlan v. Starkey, 852 F.2d 806,
817 n.21 (5th Cir. 1988). Lavergne is advised to review any pending appeals
and actions and move to dismiss any that are frivolous, repetitive, or otherwise
abusive.
APPEAL DISMISSED AS FRIVOLOUS; MOTION DENIED; 28 U.S.C.
§ 1915(e) BAR IMPOSED; SANCTION WARNING ISSUED
3