Wearry v. Perrilloux, CIVIL ACTION 18-594-SDD-RLB

391 F.Supp.3d 620

Michael WEARRY

v.Scott M. PERRILLOUX and Marlon Kearney Foster

CIVIL ACTION 18-594-SDD-RLB

United States District Court, M.D. Louisiana.

Signed June 3, 2019

James William Craig, Emily Mottiel Washington, Eric Andrew Foley, Roderick & Solange MacArthur Justice Center, New Orleans, LA, for Michael Wearry.

Christopher M. Moody, Albert David Giraud, Moody Law Firm, Hammond, LA, for Scott M. Perrilloux.

Cullen J. Dupuy, Druit George Gremillion, Jr., Katherine M. Cook, Breazeale, Sachse & Wilson, L.L.P., Baton Rouge, LA, for Marlon Kearney Foster.

RULING

CHIEF JUDGE SHELLY D. DICK, UNITED STATES DISTRICT COURT

Before the Court is the Motion to Dismiss, Purusant [sic] to FRCP Rule 12(b)(6), For Failure to State a Claim Upon Which Relief Can Be Granted¹ filed by Defendant, Scott M. Perrilloux ("Perrilloux"), District Attorney for the 21st Judicial District of Louisiana. Plaintiff Michael Wearry ("Wearry") has filed a Memorandum in Opposition.² Perrilloux also filed a Supplemental Memo in Support of Motion to Dismiss.³ For the reasons that follow, the Court finds that the Motion should be denied.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case arises out of the 1998 murder of Albany High School student Eric Walber. Plaintiff Michael Wearry was questioned during the initial homicide investigation, but in June 1998, law enforcement officials told the media that Wearry had an alibi and was not considered a suspect in the murder.⁴ The case remained stubbornly unsolved and became the subject of national media attention. Then, in 2000, "an incarcerated man named Sam Scott"⁵ came forward and implicated Michael Wearry in the crime. In 2002, a jury in Livingston Parish, Louisiana convicted Wearry of first-degree murder and sentenced him to death.⁶ Wearry appealed his conviction to the Louisiana Supreme Court, which found no merit in any of the 38 assignments of error presented and affirmed Wearry's conviction and sentence.⁷

Later, Wearry's defense counsel became aware of certain "belatedly revealed information [that] would have undermined the prosecution and materially aided Wearry's defense at trial."⁸ In 2016, after Wearry's attempts to obtain postconviction relief at the state level were unsuccessful, the United States Supreme Court granted the petition for writ of certiorari that Wearry filed from Death Row at the Louisiana State Penitentiary. Calling the state's evidence against Wearry a "house of cards"⁹ and finding that "the prosecution's failure to disclose material evidence violated Wearry's due process rights,"¹⁰ the Supreme Court vacated Wearry's conviction and remanded the case for a new trial.

On May 30, 2018, while awaiting his new trial, Michael Wearry filed this lawsuit against Scott M. Perrilloux, who was the District Attorney in the 21st Judicial District of Louisiana for Livingston Parish when Wearry was convicted. In his Complaint , Wearry alleges that Perrilloux secured his conviction by "knowingly and deliberately fabricat[ing] the account of an adolescent witness who falsely implicated [him]."¹¹ More specifically, Wearry alleges that Perrilloux was "concerned" that the testimony of the inmate who came forward "would not be sufficient to secure a conviction and death sentence against Wearry," so he did the following:¹²

1) "made an intentional and deliberate decision to fabricate a narrative ... in order to procure Wearry's conviction and death sentence"¹³ ;

2) Identified Jeffery Ashton, a minor who was "subject to juvenile court proceedings at the time and was vulnerable to intimidation by authorities,"¹⁴ "picked him up from school, [drove] him to Perrilloux's office, and then, without a parent present ... intimidated him"¹⁵ and "provided [him] with a completely fabricated story to adopt and repeat"¹⁶ that implicated Wearry in the murder;

3) Included Wearry on a list of people Ashton identified from a photo array even though "Ashton told them he did not"¹⁷ recognize Wearry and, in fact, "had no personal knowledge connecting Wearry to Walber's death"¹⁸ ;

4) "[C]oached Ashton in at least six separate meetings to perfect the falsified story";¹⁹

5) Persuaded Ashton that he had previously provided "details about the night of Walber's murder that Ashton had never actually provided";²⁰

6) And, after the Supreme Court vacated Wearry's conviction, allegedly instructed Livingston Parish Sheriff's Deputy Ben Ballard to "coerce Ashton into perpetuating his false testimony,"²¹ including "promis[ing] favors in exchange for favorable trial testimony"²² at the new trial.

Based on these allegations, Wearry brings two claims under 42 U.S.C. § 1983, arising out of Perrilloux's alleged "fabrication of false evidence"²³ and "intentional use of perjured testimony."²⁴ Additionally, Wearry brings a malicious prosecution claim under Louisiana Civil Code article 2315. On these three counts, Wearry prays for an award of damages, including punitive damages, fees, and costs.

Now, Perrilloux asks this Court to dismiss the official capacity claims against him for two reasons: first, because Wearry "makes no allegations of an official custom or policy"²⁵ in support of his 42 U.S.C. § 1983 claims, as required by the relevant jurisprudence;²⁶ and second, because Perrilloux argues he is entitled to absolute prosecutorial immunity with respect to the state law claim for malicious prosecution.

II. LAW AND ANALYSIS

A. Rule 12(b)(6) Motion to Dismiss

When deciding a Rule 12(b)(6) motion to dismiss, "[t]he ‘court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.’ "²⁷ The Court may consider "the complaint, its proper attachments, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice."²⁸ "To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state a claim to relief that is plausible on its face.’ "²⁹ In Twombly , the United States Supreme Court set forth the basic criteria necessary for a complaint to survive a Rule 12(b)(6) motion to dismiss. "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do."³⁰ A complaint is also insufficient if it merely "tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ "³¹ However, "[a] claim has facial plausibility when the plaintiff pleads the factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."³² In order to satisfy the plausibility standard, the plaintiff must show "more than a sheer possibility that the defendant has acted unlawfully."³³ "Furthermore, while the court must accept well-pleaded facts as true, it will not ‘strain to find inferences favorable to the plaintiff.’ "³⁴ On a motion to dismiss, courts "are not bound to accept as true a legal conclusion couched as a factual allegation."³⁵

B. Federal Claims under 42 U.S.C. § 1983

The Civil Rights Act of 1866, 42 U.S.C. § 1983, creates a private right of action for redressing the violation of federal law by those acting under color of state law.³⁶ It provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.³⁷

" Section 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a method for vindicating federal rights conferred elsewhere.’ "³⁸

To prevail on a Section 1983 claim, a plaintiff must prove that a person acting under the color of state law deprived him of a right secured by the Constitution or laws of the United States.³⁹ A Section 1983 complainant must support his claim with specific facts demonstrating a constitutional deprivation and may not simply rely on conclusory allegations.⁴⁰

1. Official Capacity Claims/Monell Liability

A suit against a government official in his official capacity is the equivalent of filing suit against the government agency of which the official is an agent.⁴¹ Accordingly, the claims against District Attorney Perrilloux in his official capacity are, in effect, claims against the municipal entity he represents, namely, the Livingston Parish District Attorney's Office.⁴² A plaintiff asserting a Section 1983 claim against a municipal official in his official capacity or a Section 1983 claim against a municipality "must show that the municipality has a policy or custom that caused his injury."⁴³ To establish an "official policy, " a plaintiff must allege either of the following:

1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality's lawmaking officers or by an official to whom the lawmakers have delegated the policymaking authority; or

2. A persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the municipality or to an official to whom that body had delegated policy-making authority.⁴⁴

To sustain a claim for municipal liability, the policymaker must have final policymaking authority.⁴⁵ "[W]hether a particular official has final policymaking authority is a question of state law. "⁴⁶ Moreover, "each and any policy which allegedly caused constitutional violations must be specifically identified by a plaintiff" for the necessary determination to be made on the policy's relative...