REVISED JUNE 5, 2014

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-30225

Summary Calendar

BRANDON SCOTT LAVERGNE,

Plaintiff–Appellant

v.

CLAIRE GIANFALA HIGGINGBOTTOM,

Defendant–Appellee

Appeal from the United States District Court

for the Western District of Louisiana

USDC. No. 6:13-CV-2122

Before REAVLEY, JONES, and PRADO, Circuit Judges.

PER CURIAM:*

Plaintiff–Appellant Brandon Scott Lavergne (“Lavergne”), proceeding 

pro se, appeals the district court’s dismissal with prejudice of his civil rights 

case under 42 U.S.C. § 1983 against Defendant–Appellee Claire Gianfala 

Higgingbottom (“Higgingbottom”), a private citizen residing in Louisiana. 

* 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

May 29, 2014

Lyle W. Cayce

Clerk

 

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No. 14-30225

Lavergne is currently serving consecutive sentences of life imprisonment, 

having pled guilty to two murders. In essence, Lavergne seeks damages from 

Higgingbottom for false statements she allegedly made to the police, the media, 

and the grand jury in connection with the murder investigation that 

culminated in Lavergne’s conviction.

The district court dismissed his complaint with prejudice. The court 

concluded Lavergne failed to state a claim under § 1983 because he did not 

allege Higgingbottom, a private citizen, was a state actor acting under color of 

state law nor did he allege his conviction was invalid. The court declined to 

exercise supplemental jurisdiction over his state law defamation and libel 

claims under 28 U.S.C. § 1367(c)(3) and entered judgment for Higgingbottom. 

We have jurisdiction under 28 U.S.C. § 1291. “We review a district court’s 

dismissal under Rule 12(b)(6) de novo, ‘accepting all well-pleaded facts as true 

and viewing those facts in the light most favorable to the plaintiffs.’” Doe ex 

rel. Magee v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th Cir. 

2012) (en banc) (citation omitted).

On appeal, Lavergne asserts the district court violated his due process 

rights under the Fourteenth Amendment because (1) it took “no action” from 

June 2013 through February 2014 on his complaint, (2) the magistrate judge 

denied Lavergne’s request for leave to amend and motion to recuse together 

after issuing his findings and recommendations, which Lavergne contends 

constituted “rul[ing] on his own motion to recuse.” To the extent Lavergne

attempts to raise other issues through this appeal, we do not decide those 

issues because they were inadequately briefed. See Grant v. Cuellar, 59 F.3d 

523, 524 (5th Cir. 1995) (“Although we liberally construe briefs of pro se 

litigants and apply less stringent standards to parties proceeding pro se than 

to parties represented by counsel, pro se parties must still brief the issues and 

reasonably comply with the standards of Rule 28.” (footnote omitted)).

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No. 14-30225

Here, the district court correctly concluded Lavergne failed to plead 

sufficient facts to state a claim for violation of § 1983. “To state a cause of 

action under section 1983 the appellant must allege that the person who 

deprived him of a federal right was acting under color of law.” Priester v. 

Lowndes Cnty., 354 F.3d 414, 420 (5th Cir. 2004). As the district court correctly 

observed, Higgingbottom is not a state actor or otherwise acted “under color of 

law” within the meaning of § 1983. Moreover, we find no error in the procedure 

in the district court. After a year without activity in the case, the court 

appropriately screened his pro se complaint under 28 U.S.C. § 1915(e)(2). See 

Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990). The magistrate judge was 

under no obligation to recuse himself from Lavergne’s request for leave to 

amend, and did not abuse discretion in refusing to do so. See Matassarin v. 

Lynch, 174 F.3d 549, 571 (5th Cir. 1999) (affirming denial of a motion to recuse 

because the record “falls . . . short of ‘such a high degree of favoritism or 

antagonism as to make fair judgment impossible.’” (quoting Liteky v. United 

States, 510 U.S. 540, 555 (1994)).

Accordingly, the district court did not err when it dismissed Lavergne’s 

complaint for failure to state a claim, and therefore we AFFIRM.

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