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Ford v. Parish

United States District Court, W.D. Louisiana, Shreveport Division

December 28, 2017

GLENN FORD, et al.

          S. Maurice Hicks, JR. Magistrate Judge Karen Hayes Judge



         Before this Court is Defendant, the Estate of George McCormick's (“McCormick”) Federal Rule of Civil Procedure 12(b)(6) Motion to Dismiss (Record Document 121) Plaintiff, Andrea Armstrong's (“Armstrong”), allegations in her First Amended Complaint (Record Document 86) of federal constitutional violations under 42 U.S.C. § 1983 by McCormick in his individual capacity. Armstrong serves as the Executrix of the Estate of Glenn Ford (“Ford”). For the reasons which follow, McCormick's Rule 12(b)(6) Motion to Dismiss is GRANTED.


         In 1984, Ford was convicted of first degree murder and sentenced to death November 5, 1983 for the armed robbery and murder of Isadore Rozeman. His conviction and sentence were affirmed on appeal. State v. Ford, 489 So.2d 1250 (La.1986); Record Document 86 at 23, ¶ 95. Throughout a thirteen year period, Ford sought post-conviction relief based on the alleged suppression of exculpatory evidence. Id. at 24, ¶ 97. However, on October 19, 2009, the state district court denied Ford's post-conviction relief and on February 4, 2011, the Louisiana Supreme Court affirmed the lower court's decision. See Id. at 25, ¶ 102. In late 2013, the Caddo Parish District Attorney's Office stated that it had obtained credible evidence that Ford “was neither present at, nor a participant in, the robbery and murder of Isadore Rozeman, ” and filed a motion to vacate Ford's conviction and sentence. Id. at 25-26, ¶ 103. On March 10, 2014, the trial court granted the State's motion. Id. Ford was released the following day after spending nearly thirty years on death row. See Id. at 26, ¶ 106. On June 10, 2014, the State dropped all charges against Ford. Id. at ¶ 107

         On March 9, 2015, Ford filed suit under 42 U.S.C. § 1983 and amended his complaint September 8, 2015, naming as Defendants the City of Shreveport, several now-retired or deceased members of the Shreveport Police Department (“Law Enforcement Defendants”), Paul Carmouche (“Carmouche”), the former District Attorney of Caddo Parish at the time of Ford's arrest and conviction, Dale Cox[2] (“Cox”), in his official capacity as the then current District Attorney for Caddo Parish, George McCormick (“McCormick”), who testified in the Ford trial as an expert forensic pathologist and was the Coroner of Caddo Parish, Caddo Parish, (the alleged employer of McCormick), and ABC Insurance Companies, unknown insurance companies. See Id. at 4-6, ¶¶ 11-19. During the period of filing the initial Complaint and the Amended Complaint, Ford passed away. Armstrong as the Executrix of the Estate of Glenn Ford was substituted in his place. See Record Document 83.

         Armstrong's Amended Complaint alleges violations of Ford's Fourth, Fifth, Sixth, and Fourteenth Amendment rights. The Amended Complaint contains at least seventeen allegations concerning the manufacturing and suppression of evidence by Law Enforcement Defendants. See Record Document 86 at 9-14. As the Amended Complaint relates to McCormick, Armstrong alleges that McCormick, a self-described “public witness” and the Caddo Parish Coroner never examined the body of Rozeman, but testified as an expert forensic pathologist. Id. at 5 and 21, ¶¶ 17 and 85. At trial, McCormick delivered opinions for the prosecution on two crucial issues: (1) the gunman's dominant hand and (2) the victim's time of death. Id. Armstrong first contends that McCormick fabricated evidence that Rozeman was killed by a left-handed gunman. Id. at 21, ¶ 86. Armstrong alleges Ford was left handed and both the Robinson brothers, who Armstrong believes murdered Rozeman, were right-handed. Id. Thus, in agreement with the prosecution and Law Enforcement Defendants, McCormick testified that Rozeman was murdered by a left-handed gunman in order to frame Ford. See Id. at 21 and 22, ¶¶ 86 and 90. Next, Armstrong argues that McCormick fabricated evidence that Rozeman was deceased longer than an hour and probably two or more hours before paramedics found the body at 3:30 p.m. Id. at 22, ¶ 87. In support of this contention, Armstrong alleges that Law Enforcement Defendants suppressed initial police reports that identified that Rozeman was alive at 2:30 p.m. based on a telephone call between Rozeman and Dr. Ebrahim. Id. at 12, ¶ 5. Armstrong argues that Ford had an alibi defense for the murder that happened after 2:30 p.m. and at trial, in order to rebut Ford's alibi, the State's time of death theory changed. Id. at 12, ¶ 55. At trial, prosecutors argued that the murder of Rozeman happened between 12:00 p.m. and 1:00 p.m. in an effort to disintegrate Ford's alibi and find him guilty of the murder of Rozeman. Id. Furthermore, witnesses testified that Ford was near the scene of the crime at 1:00 p.m., therefore the time of death was “consistent with the time the [Ford] was at the scene of the crime.” See id. at 13, ¶ 58, id. at 22, ¶ 87. According to Armstrong, the State directed McCormick to testify that Rozeman had been dead longer than an hour and probably two or more hours when paramedics found the body at 3:30 p.m. See id. at 22, ¶ 87. Essentially, Armstrong is alleging that the State directed McCormick's testimony in order to support the State's time of death theory, which in turn destroyed Ford's alibi defense and based on witness testimony placed him at the scene of the crime. According to Armstrong's allegations, this alleged fabricated testimony ultimately assisted the State in achieving the first degree murder conviction of Ford.

         Armstrong alleges eight separate claims against McCormick in his individual capacity:

1.) Violation of Due Process under 42 U.S.C. § 1983;

2.) Federal Malicious Prosecution Claim under 42 U.S.C. § 1983;[3]

3.)Failure to Intervene under 42 U.S.C. § 1983;

4.) Conspiracy to Deprive Ford of his Constitutional Rights under 42 U.S.C. § 1983;

5.) State Law Malicious Prosecution Claim;

6.)Intentional Infliction of Emotional Distress;

7.) Negligence under La. Civ. Code Art. 2315; and

8.) Violations of the Louisiana Constitution of 1974. See Record Document 86 at 23-45.


Pleading Standards and the Rule 12(b)(6) Standard

         Rule 8(a)(2) of the Federal Rules of Civil Procedure governs the requirements for pleadings that state a claim for relief, requiring that a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief." The standard for the adequacy of complaints under Rule 8(a)(2) is now a "plausibility" standard found in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955 (2007), and its progeny. Under this standard, "factual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 555-56, 127 S.Ct. at 1965. If a pleading only contains "labels and conclusions" and "a formulaic recitation of the elements of a cause of action, " the pleading does not meet the standards of Rule 8(a)(2). Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (citation omitted).

         Federal Rule of Civil Procedure 12(b)(6) allows parties to seek dismissal of a party's pleading for failure to state a claim upon which relief may be granted. In deciding a Rule 12(b)(6) motion to dismiss, a court generally "may not go outside the pleadings." Colle v. Brazos Cty., Tex., 981 F.2d 237, 243 (5th Cir. 1993). However, a court may also rely upon "documents incorporated into the complaint by reference and matters of which a court may take judicial notice" in deciding a motion to dismiss. Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008); see Fed.R.Evid. 201. Additionally, courts must accept all allegations in a complaint as true. See Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949. However, “the complaint must contain either direct allegations on every material point necessary to sustain a recovery ... or contain allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial.” Campbell v. City of San Antonio, 43 F.3d 973, 975 (5th Cir. 1995) (citation omitted). Moreover, “conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.” Id. at 975, (quoting Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir.1993)). Courts considering a motion to dismiss under Rule 12(b)(6) are only obligated to allow those complaints that are facially plausible under the Iqbal and Twombly standard to survive such a motion. See id. at 678-79, 129 S.Ct. at 1949. If the complaint does not meet this standard, it can be dismissed for failure to state a claim upon which relief can be granted. See id. Such a dismissal ends the case "at the point of minimum expenditure of time and money by the parties and the court." Twombly, 550 U.S. at 558, 127 S.Ct. at 1966.

         II. Absolute Witness Immunity as to Federal Claims ...

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