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Wearry v. Perrilloux

United States District Court, M.D. Louisiana

September 27, 2019

MICHAEL WEARRY
v.
SCOTT M. PERRILLOUX, ET AL.

          ORDER

          RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE.

         Before the Court is defendant Marlon Kearney Foster’s (“Foster”) Motion to Stay Discovery (R. Doc. 50) and defendant Scott M. Perrilloux’s (“Perrilloux”) Motion to Stay Discovery (R. Doc. 52). The motions are opposed. (R. Doc. 61).

         I. Background

         This civil rights action arises out of the 1998 death of Eric Walber for which Michael Wearry (“Plaintiff” or “Wearry”) was convicted of first-degree murder and sentenced to death. (R. Doc. 1, “Compl.”). The U.S. Supreme Court vacated the conviction and remanded the case for a new trial in light of “the prosecution’s failure to disclose material evidence violated Wearry’s due process rights.” Wearry v. Cain, 136 S.Ct. 1002, 1002 (2016). Wearry has named Perrilloux, the prosecuting District Attorney, and Foster, a former Livingston Parish Sherriff’s Office Detective, as the defendants. (Compl. ¶¶ 2-4).

         Wearry seeks recovery from Perrilloux and Foster under 42 U.S.C. §§ 1983 and 1998 on the basis that they fabricated evidence of the underlying homicide by coercing false testimony in violation of Wearry’s right to due process of law under the Fourteenth Amendment. (Compl. ¶¶ 66-82). Wearry also seeks to recover from Perrilloux and Foster under state law for malicious prosecution under Louisiana Civil Code article 2315. (Compl. ¶¶ 97-104).[1]

         More specifically, Weary alleges that the defendants fabricated corroborating evidence in light of weaknesses in the key witness’s testimony. (Compl. ¶¶ 19-20). Weary alleges that they coerced Jeffry Ashton, at the time a minor subject to juvenile court proceedings, into providing false testimony by pulling him out of school without his mother’s permission and bringing him Perrilloux’s office to discuss the case without any opportunity to leave. (Compl. ¶¶ 21-23). Wearry alleges that the defendants then coached Jeffry Ashton in at least six separate meetings to perfect a falsified story implicating Wearry. (Compl. ¶¶ 31-35).

         Perrilloux sought dismissal of the claims brought against him pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, raising the defense of absolute immunity. (R. Doc. 14). Foster filed an Answer, but did not raise the defenses of qualified immunity or absolute immunity. (R. Doc. 15).

         On September 26, 2019, Wearry filed a motion to stay the proceeding until resolution of the underlying criminal action. (R. Doc. 17).

         On February 13, 2019, the Court denied Wearry’s motion to stay as moot when the parties confirmed that the criminal charges had been resolved with a plea of guilty to manslaughter. (R. Doc. 30). The Court has not set a scheduling order or set any deadlines in this action. (See R. Doc. 36).

         On March 13, 2019, defense counsel sought consent for Foster to amend his answer to assert an eighteenth affirmative defense of qualified immunity and absolute immunity. (R. Doc. 37-1 at 3). Plaintiff’s counsel replied that Wearry would consent if Foster agreed “not to seek a stay of full merits discovery” in light of the new assertions of immunity. (R. Doc. 37-1 at 2). Defense counsel did not agree to this condition for consent. (R. Doc. 37-1 at 2).

         On March 18, 2019, Foster filed a Motion for Leave to File Amended Answer to Plaintiff’s Complaint. (R. Doc. 33), which sought leave to assert the affirmative defenses of qualified immunity and absolute immunity in light of information obtained in the process of investigating Wearry’s claims. (R. Doc. 33). In granting the motion, the Court noted that simply because “discovery may be limited in light of the qualified immunity defense or that a Rule 12 motion may be filed in light of the immunity defenses is not a basis for concluding that Wearry is prejudiced by the amendment.” (R. Doc. 46).

         On June 3, 2019, the district judge denied Perrilloux’s Motion to Dismiss, concluding that absolute immunity did not shield Plaintiff’s malicious prosecution claim against Perrilloux in both his individual and official capacities. (R. Doc. 44). Perrilloux filed an Answer raising the defenses of qualified immunity and absolute immunity. (R. Doc. 45). Foster’s First Amended Answer also raises the defenses of qualified immunity and absolute immunity. (R. Doc. 47).

         Defendants then filed Motions to Dismiss pursuant to Rule 12(c) of the Federal Rules of Civil Procedure on the basis that they are both entitled to absolute immunity on all claims brought against them. (R. Docs. 49, 51). Defendants simultaneously filed the instant motions to stay discovery pending resolution of the foregoing dispositive motions. (R. Docs. 50, 52). Plaintiff opposes the motion to the extent he has sued Perrilloux in his official capacity. (R. Doc. 61).

         II. ...


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