United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE.
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).
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).
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. ¶¶
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).
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).
September 26, 2019, Wearry filed a motion to stay the
proceeding until resolution of the underlying criminal
action. (R. Doc. 17).
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).
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).
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).
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).
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).