     Case: 17-30033      Document: 00514187114         Page: 1    Date Filed: 10/06/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit

                                    No. 17-30033                                  FILED
                                  Summary Calendar                          October 6, 2017
                                                                             Lyle W. Cayce
                                                                                  Clerk
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                   No. 17-30033
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) LSU-
HCSD 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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                                  No. 17-30033
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 LSU-
HCSD 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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