     Case: 14-30252      Document: 00512904396         Page: 1    Date Filed: 01/15/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-30252                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                         January 15, 2015
BRANDON SCOTT LAVERGNE,                                                    Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellant,
v.

DATE LINE NBC; STEVEN BAJAT,

                                                 Defendants-Appellees.




                   Appeal from the United States District Court
                          Western District of Louisiana
                              U.S.D.C. 6:13-cv-2118


Before STEWART, Chief Judge, and ELROD and HIGGINSON, Circuit
Judges.
PER CURIAM:*
       Louisiana state prisoner #424229 Brandon Scott Lavergne filed suit pro
se in federal court against Defendant NBCUniversal Media, LLC, (“NBC”), 1



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
       1 Lavergne’s complaint names “Dateline NBC” as the defendant in these proceedings,
however, Defendant submits on appeal that no such entity exists and that “‘Dateline’ NBC”
is a television news program produced by NBC News, a division of NBCUniversal Media,
LLC. Accordingly, Defendant will be listed as “NBCUniversal Media, LLC” and hereinafter
referred to as “NBC” for purposes of this appeal.
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asserting various state and federal law tort claims, requesting punitive and
actual damages. 2         The district court dismissed Lavergne’s claims with
prejudice. We affirm.
                                                I.
        Brandon Scott Lavergne is currently incarcerated in the Louisiana State
Penitentiary in Angola, Louisiana, where he is serving two life sentences
following his August 2012 convictions for the murders of Michaela Shunick and
Lisa Pate.      On January 29, 2013, NBC broadcast an episode of its news
magazine program “Dateline NBC,” entitled “Missing Mickey,” which focused
on the Lafayette Police Department’s investigation of Shunick’s disappearance
and the subsequent arrest of Lavergne for her murder. Neither party disputes
that Shunick’s disappearance and murder garnered national media attention.
       After the episode aired, Lavergne filed suit in federal district court
pursuant to 42 U.S.C. § 1983 seeking actual and punitive damages for libel and
slander and alleged violations of his constitutional rights. More specifically,
Lavergne alleged that the television show contained defamatory, false, and
misleading statements with respect to: (1) Lavergne’s use of escort services; (2)
Lavergne’s close pursuit of Shunick prior to her murder; (3) Lavergne’s
tendencies to seduce women and maintain multiple girlfriends at a time; (4)
the implication that Lavergne’s murder of two women could lead one to
conclude that he could kill other women; (5) the conclusion that Shunick’s


       2  Detective Steven Bajat appears on the “Defendants” section of the District Court’s
civil docket sheet and consequently, this court directed him to file a brief in these proceedings.
Det. Bajat, however, has submitted in his appellate brief that he was never joined as a
defendant or named as a defendant in Lavergne’s suit. Additionally, he was never served
with notice of Lavergne’s suit. Moreover, the magistrate judge’s report as adopted by the
district judge notes that “‘Dateline’ NBC” is the sole named defendant in Lavergne’s suit.
Our review of the record confirms these details. Consequently, we hold that Det. Bajat is not
a party to these proceedings and is not bound by any judgment resulting from the litigation
herein. In re Liljeberg Enter., Inc., 304 F.3d 410, 468 (5th Cir. 2002) (citing Zenith Radio
Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110 (1969)).
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                                    No. 14-30252
murder was brutal; (6) Lavergne’s impairment from drugs and/or alcohol on
the night of the murder; and, (7) Lavergne’s “darkside.” Lavergne claims that
these representations of him on the show were false and constituted libel and
slander in violation of his constitutional rights. Lavergne also alleged that
NBC committed “theft” of Lavergne’s intellectual property by showing
photographs that came from his computer and iPhone, and for showing his
driver’s license which displays his status as a sex offender. Lavergne argued
that he was entitled to actual and punitive damages for NBC’s alleged violation
of his constitutional rights.
                                         II.
      Lavergne’s suit was initially referred to a magistrate judge (“MJ”) for
review, report and recommendation of the disposal of Lavergne’s claims to the
district court. The MJ recommended that Lavergne’s claims against NBC be
dismissed. In his report and recommendation, the MJ noted as a preliminary
matter that Lavergne had not been granted post-conviction relief to date.
      In his analysis, the MJ concluded that Lavergne’s civil rights claims
under 42 U.S.C. § 1983 failed to state a claim upon which relief could be
granted because Defendant NBC was not a state actor but rather a private
broadcasting corporation which was in no way “clothed with the authority of
state law.” See United States v. Classic, 313 U.S. 299, 326 (1941). Additionally,
there was no factual basis supporting a claim of conspiracy between NBC and
a state actor to support a claim under § 1983. See Marts v. Hines, 68 F.3d 134,
135-36 (5th Cir. 1995).         Accordingly, the MJ recommended dismissal of
Lavergne’s civil rights claims pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
      Next, the MJ concluded that “[t]o the extent that Lavergne also seeks
monetary damages from NBC for broadcasting alleged falsities, some of which
form the factual basis for Lavergne’s guilty plea for the murders of Shunick
and Pate, for which Lavergne is serving two life sentences,” his claims were
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Heck-barred since Lavergne’s conviction and sentence had never been
reversed, expunged, declared invalid, or called into question by a federal court’s
issuance of a writ of habeas corpus. See Heck v. Humphrey, 512 U.S. 477, 486-
87 (1994).
       The MJ then recommended that Lavergne’s defamation claims under
state law be dismissed because they were not actionable as a matter of law
under the “libel-proof plaintiff doctrine.” See Lamb v. Rizzo, 391 F.3d 1133,
1137-38 (10th Cir. 2004). 3 This doctrine recognizes that certain plaintiffs with
criminal convictions who are notorious for their past criminal acts have such
poor reputations that they are unlikely as a matter of law to recover more than
nominal damages for an allegedly defamatory publication. Id.
       Finally, the MJ concluded in the alternative that the federal courts could
not exercise diversity jurisdiction over Lavergne’s state law claims because the
requisite amount in controversy was lacking in light of Lavergne’s libel-proof
status which permitted an award of, at most, nominal damages. 28 U.S.C. §
1332; Lamb, 391 F.3d at 1137-38.
       The district judge adopted the report and recommendation of the MJ and
dismissed Lavergne’s claims with prejudice. 4 Lavergne filed this appeal.
       On appeal, Lavergne argues that: (1) Heck v. Humphrey does not allow
his claims to be dismissed with prejudice; (2) the “libel-proof plaintiff doctrine”
is unconstitutional and denies equal protection of the law to all citizens; (3) his



       3  The MJ noted that the Louisiana Supreme Court has not yet adopted the “libel-proof
plaintiff doctrine,” but reasoned that, as a federal court sitting in diversity making an “Erie
guess,” the Louisiana Supreme Court would likely adopt the doctrine upon being presented
with Lavergne’s complaint. See Herrmann Holdings Ltd. v. Lucent Techs. Inc., 302 F.3d 552,
558 (5th Cir. 2002).
        4 The district judge noted after dismissing Lavergne’s claims for money damages

against NBC that the claims were subject to reassertion should the requirements of Heck v.
Humphrey be met. Heck, 512 U.S. at 486-87.

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                                  No. 14-30252
case should be remanded for adjudication of his state law claims by the district
court; (4) the federal court does have diversity jurisdiction over his case
because he is seeking more than $75,000 in damages from NBC; (5) this court
should order discovery and an evidentiary hearing to help establish the facts
of his case or order the district court to do so; (6) NBC conspired with state law
enforcement officials to violate his civil rights so he does have a valid claim
under 42 U.S.C. § 1983; (7) the district court mishandled his motion to recuse
itself and denied him of his Fourteenth Amendment right to due process; (8)
he is entitled to damages in the amount of $10,000 per photo shown on the
“Missing Mickey” episode, $500,000 for mental anguish, $1,000,000 for libel
and slander, and punitive damages of $10,000,000; (9) NBC should be ordered
to do an on air retraction of the “Missing Mickey” episode; (10) he should be
allowed to amend his suit and sever any issues that are Heck-barred; (11) he
should be appointed counsel; and, (12) this court should rule that NBC is liable
for libel and slander against him.
                                       III.
      The standard of review for a district court’s dismissal of a complaint
under 28 U.S.C. § 1915(e)(2)(B)(ii) is de novo. See Green v. Atkinson, 623 F.3d
278, 280 (5th Cir. 2010) (citation omitted).
      After considering the parties’ arguments as briefed on appeal, and after
reviewing the record, the applicable law, and the district court’s judgment and
reasoning adopting the magistrate judge’s report and recommendation, we
AFFIRM the district court’s judgment and adopt its analysis in full.




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