IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-30033

Summary Calendar

GLORIA A. WIGGINS, 

 Plaintiff – Appellant,

v.

LOUISIANA STATE UNIVERSITY- HEALTH CARE SERVICES DIVISION, 

And its Board of Supervisors in their Capacity as Supervisors to the 

University Medical Center in Lafayette (Formerly Known as Lafayette 

Charity Hospital), 

 Defendant – Appellee.

Appeal from the United States District Court 

for the Middle District of Louisiana

USDC No. 3:16-CV-515

Before REAVLEY, PRADO, and GRAVES, Circuit Judges.

PER CURIAM:*

Plaintiff–Appellant Gloria Wiggins appeals pro se the district court’s

grant of Defendant–Appellee Louisiana State University, Healthcare Services 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

October 6, 2017

Lyle W. Cayce

Clerk

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Division’s (“LSU-HCSD”) Motion to Dismiss. For the following reasons, we 

AFFIRM.

I. FACTS AND PROCEDURAL BACKGROUND

This case arises out of a 42 U.S.C. § 1983 civil rights action filed by 

Wiggins against LSU-HCSD. In her complaint, she alleges that at some point 

between 1960 and 2002,1 her mother received electroconvulsive therapy 

(“ECT”) administered at Lafayette Charity Hospital in Lafayette, Louisiana 

without her consent and without an order from a Louisiana state court. She 

also appears to allege that her mother died as a result of the unwarranted ECT. 

Wiggins filed suit on August 1, 2016, and the district court granted her Motion 

to Proceed in forma pauperis. Wiggins seeks damages against LSU-HCSD in 

the amount of $3,000,000.00. 

After Wiggins filed suit, Defendant–Appellee LSU-HCSD filed a Motion 

to Dismiss under Federal Rule of Civil Procedure 12(b)(1), arguing that the 

district court lacked jurisdiction to hear Wiggins’s claims because (1) LSUHCSD does not have capacity to be sued and thus is not the proper party 

defendant in the lawsuit, and (2) LSU-HCSD is entitled to immunity under the 

Eleventh Amendment. Wiggins filed a response arguing that her claim against 

LSU-HCSD was valid. On December 14, 2016, the district court entered 

judgment in favor of LSU-HCSD and dismissed Wiggins’s claims. The district 

court held that while “the court would normally allow plaintiff to amend to 

attempt to state a claim against the proper party defendant—the Louisiana 

Board of Supervisors—the plaintiff’s claims are frivolous and any attempts at 

amendment would be futile.” Wiggins requested that the dismissal be without 

 

1 According to the documentation accompanying her complaint, Wiggins identifies 

“[d]uring the 1960 through 2000 era.” Wiggins’s mother died in June 2002. 

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prejudice, but the district court denied her motion. On January 13, 2017, 

Wiggins timely appealed. 

II. DISCUSSION

On appeal, Wiggins’s sole argument is that the district court abused its 

discretion by dismissing her complaint without affording her an opportunity to 

amend. “We review the district court’s denial of leave to amend the complaint 

for abuse of discretion.” United States ex rel. Willard v. Humana Health Plan 

of Tex. Inc., 336 F.3d 375, 379 (5th Cir. 2003) (citing Hypes v. First Commerce 

Corp., 134 F.3d 721, 727–28 (5th Cir. 1996)). “A district court acts within its 

discretion when dismissing a motion to amend that is frivolous or futile.”

Martin’s Herend Imports, Inc. v. Diamond & Gem Trading United States of 

Am. Co., 195 F.3d 765, 771 (5th Cir. 1999) (footnote omitted). Pursuant to 28 

U.S.C. § 1915(e)(2), the district court “shall dismiss the case at any time” if it 

determines that the in forma pauperis complaint if frivolous or fails to state a 

claim. A claim may be dismissed as frivolous “if it does not have an arguable 

basis in fact or law.” Brewster v. Dretke, 587 F.3d 764, 767 (5th Cir. 2009)

(citation omitted).

Ordinarily, “a pro se litigant should be offered an opportunity to amend 

his complaint before it is dismissed.” Brewster, 587 F.3d at 767–68 (citation 

omitted). Rule 15(a) provides that leave to amend shall be “freely” given “when 

justice so requires.” Fed. R. Civ. P. 15(a). “[T]he language of this rule ‘evinces 

a bias in favor of granting leave to amend.’” Legate v. Livingston, 822 F.3d 207, 

211 (5th Cir. 2016) (quoting Lyn–Lea Travel Corp. v. Am. Airlines, Inc., 283 

F.3d 282, 286 (5th Cir. 2002)). Granting leave to amend, however, is not 

required if the plaintiff has already pleaded her “best case.” Brewster, 587 F.3d 

at 768 (citing Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998)). A plaintiff 

has pleaded her best case after she is “apprised of the insufficiency” of her 

complaint. Dark v. Potter, 293 F. App’x 254, 257 (5th Cir. 2008) (unpublished) 

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(citing Morrison v. City of Baton Rouge, 761 F.2d 242, 246 (5th Cir. 1985) 

(“[T]he plaintiffs in this case have been apprised of the insufficiency of their 

conclusory allegations . . . and have been afforded an opportunity to plead facts 

that would overcome the bar of Imbler immunity. We can assume, therefore, 

that the specific allegations of the amended complaint constitute the plaintiffs’

best case . . . .”)). A plaintiff may indicate she has not pleaded her best case by 

stating material facts that she would include in an amended complaint to 

overcome the deficiencies identified by the court. See Brewster, 587 F.3d at 

767–68. Similarly, a district court need not grant a futile motion to amend. 

Legate, 822 F.3d at 211 (citing Stripling v. Jordan Prod. Co., 234 F.3d 863, 

872–73 (5th Cir. 2000)). “Futility is determined under Rule 12(b)(6) standards, 

meaning an amendment is considered futile if it would fail to state a claim 

upon which relief could be granted.” Id.

Wiggins never filed a formal Motion to Amend, but she argues on appeal 

that the district court erred by dismissing her complaint without granting her 

the opportunity to amend her claim. The district court denied Wiggins the 

opportunity to amend after determining that “any attempts at amendment 

would be futile.” The district court granted LSU-HCSD’s Motion to Dismiss 

under Rule 12(b)(1), finding that the court lacked jurisdiction to hear her 

claims because LSU-HCSD was not an entity subject to suit and because LSUHCSD was entitled to immunity under the Eleventh Amendment. 

Wiggins fails to substantively address or otherwise contest these issues. 

She does not dispute that LSU-HCSD was not the proper party or that it was 

not entitled to immunity under the Eleventh Amendment. Indeed, Wiggins 

appears to concede the merits of LSU-HCSD’s Motion to Dismiss. While this 

Court liberally construes pro se briefs, pro se litigants must still brief the 

arguments in order to preserve them. Yohey v. Collins, 985 F.2d 222, 225 (5th 

Cir. 1993). Issues not raised or argued in the brief are considered waived and 

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thus will not be noticed or entertained by this Court on appeal. Melton v. 

Teachers Ins. & Annuity Ass’n of Am., 114 F.3d 557, 561 (5th Cir. 1997). 

Because Wiggins failed to identify an error in the district court’s dismissal of 

her claims, she has waived these issues on appeal, and we need not address 

them. 

Instead, Wiggins asserts that she was not given a chance to present her 

“best case.” However, she has not identified any material facts she would 

include in an amended complaint if given the opportunity to overcome the 

deficiencies identified by the district court. She does not provide any additional 

facts indicating she could state a claim against LSU-HCSD, nor does she argue 

that she could amend her complaint to name a proper plaintiff. “[P]ro se briefs 

are afforded liberal construction” by this Court. Mapes v. Bishop, 541 F.3d 582, 

584 (5th Cir. 2008). But Wiggins does not present a viable § 1983 claim. See 

Raj v. La. State Univ., 714 F.3d 322, 328–29 (5th Cir. 2013) (“[W]e agree with 

the district court’s finding—which [plaintiff] fails to challenge on appeal—that 

the LSU Board is an arm of the state and is immune from suit under the 

Eleventh Amendment.”). Thus, the district court did not err by finding that 

any attempt at amendment would be futile.

III. CONCLUSION

For the foregoing reasons, the district court did not abuse its discretion 

by dismissing Wiggins’s complaint without granting her leave to amend. 

Accordingly, the district court’s ruling is AFFIRMED. 

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