Opinion
CIVIL ACTION NO. 11-2240
03-26-2013
JOHN A. MORAN v. HARRY CONNICK, SR., ET AL.
ORDER AND REASONS
Presently before the Court is the "Motion to Dismiss Second Amended Complaint and, Alternatively, for More Definite Statement Pursuant to Rule 9" (Rec. Doc. 35) filed by Defendants Harry Connick, Sr., in his prior official capacity as the District Attorney for the Parish of Orleans, and individually; Leon Cannizzaro, Jr., in his official capacity as the current District Attorney for the Parish of Orleans; the Orleans Parish District Attorney's Office; Donna R Andrieu, in her official capacity as an Assistant District Attorney for the Parish of Orleans, and individually; Camille Buras, in her prior official capacity as an Assistant District Attorney for the Parish of Orleans, and individually; Stephen Laiche, in his official capacity as an Assistant District Attorney for the Parish of Orleans, and individually; Jack Peebles, in his prior official capacity as an Assistant District Attorney for the Parish of Orleans, and individually; and Valentin Solino, in his prior official capacity as an Assistant District Attorney for the Parish of Orleans, and individually (hereinafter collectively referred to as the "DA Defendants"). The Court rules on the motion as stated herein.
On November 29, 2011, Plaintiff dismissed any claims asserted against Camille Buras in her capacity as a judge. See Rec. Docs. 14 and 15.
BACKGROUND
In 1983, following a jury trial in Louisiana state court, Plaintiff, John Moran, was found to be guilty of the murder of Janelle Cuccia, and sentenced to life imprisonment. The Louisiana Fourth Circuit Court of Appeal affirmed his conviction; the Louisiana Supreme Court denied writs. See State v. Moran, 451 So. 2d 48 (La. Ct. App. 4th Cir.), writ denied, 456 So. 2d 165 (La. 1984). Thereafter, Plaintiff filed a number of unsuccessful applications for post-conviction relief in state court, as well as at least one unsuccessful application for relief, pursuant to 28 U.S.C. §2254, in federal court. Although an additional application for post-conviction relief, filed in 2011, is pending in state court, Plaintiff's conviction presently is intact and he remains incarcerated.
See Moran v. Stalder, No. 96-707 (E.D. La. 1996).
Plaintiff's submission of docket information for the pending state court action ends on November 15, 2011. See Second Amended Complaint (Rec. Doc. 33), ¶25 and Exhibit 5 (Rec. Doc. 33-5). The Orleans Parish Criminal District Court's Docket Master, however, reveals a number of events occurring thereafter, including a post-conviction hearing held, and post-hearing briefing ordered, on February 5, 2013. See Docket Master for State v. John A. Moran, Case No. 293918, Criminal District Court, Parish of Orleans, State of Louisiana, which is attached hereto as Exhibit "A". Plaintiff filed his post-evidentiary hearing memorandum on March 19, 2013; a response apparently is due within 30 days thereafter. Id.
In the instant matter, Plaintiff seeks an award of monetary damages under 42 U.S.C. § 1983 and Louisiana tort law. In support of his claim, Plaintiff contends that he did not commit the crime of which he was convicted, and that Defendants, intentionally and by conspiracy, suppressed exculpatory evidence in connection with his trial, appeal, and applications for post-conviction relief, in violation of his constitutional rights.
LAW AND ANALYSIS
Despite Plaintiff having twice amended his complaint, the Court finds his allegations against the DA Defendants still fail to state a claim for which legal relief can be provided. As presented, Plaintiff's allegations, if true, call into question the legal validity of his conviction. As such, his claims under §1983 remain premature unless and until such time that his conviction is "reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus." Heck v. Humphrey, 512 U.S. 477, 486-87 (1994); Hudson v. Hughes, 98 F.3d 868, 872-73 (5th Cir. 1996); Johnson v. Louisiana, No. 09-55, 2010 WL 996475, *5-6 (W.D. La. 3/16/10); Wilkerson v. Lanier, No. 06-3044, 2006 WL 2135224, *8-7 (E.D. La. 7/27/06).
With respect to his state law claims, Plaintiff purportedly brings "causes of action under [Louisiana Civil Code Articles] 2315, 2316, et seq., including but not limited to tort claims, fraud, deceit, fraudulent conspiracy, and consummation of fraudulent conspiracy." See Second Amended Complaint (Rec. Doc. 33), ¶13. Such a general allegation, however, does not provide sufficient notice of Plaintiff's state law claims. To the extent that Plaintiff asserts claims premised upon a termination of another legal proceeding in Plaintiff's favor, e.g., malicious prosecution, such claims likewise are premature as long as Plaintiff's conviction remains in place. Additionally, Plaintiff's allegations of ongoing fraud, as presently presented, fail to provide sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face. " Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
As explained by the Supreme Court:
[Facial plausibility exists] when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Factual allegations that are "merely consistent with a defendant's liability, stop short of the line between possibility and plausibility of entitlement to relief, and thus are inadequate. Rather, a complaint's allegations must make relief plausible, not merely conceivable, when taken as true.Iqbal, 556 U.S. at 678. Although Plaintiff's allegations are lengthy, often unnecessarily repetitive, and in some respects, very detailed, key information regarding the essential "who, what, when, where, and how" of the alleged fraud, and resulting injury, appears to be missing or, in any event, is stated in such a manner that it is, as a practical matter, unintelligible. See, e.g., United States ex rel. Steury v. Cardinal Health, Inc., 625 F.3d 262, 266 (5th Cir. 2010)(Rule 9(b) of the Federal Rules of Civil Procedure generally require a party alleging fraud to set forth the "who, what, when, where, and how" of the alleged fraud; see also Sullivan v. Leor Energy, LLC, 600 F.3d 542, 550-51 (2010) (claimant must "specify the statements contended to be fraudulent, identify the speaker, state when and where the statements were made, and explain why the statements were fraudulent").
For instance, Plaintiff complains about the alleged unlawful and secret release of trial evidence to a third party, which purportedly prevented him from ordering DNA testing in connection with his appeal. See First and Second Amended Complaints (Rec. Docs. 7 and 33). Plaintiff's allegations on this subject, however, do not indicate whether Plaintiff was aware of this evidence during the trial, or whether Plaintiff sought DNA testing prior to his conviction, and if not, why. Pertinent dates regarding Plaintiff's appeal, including the completion of briefing, likewise are not apparent. Nor is it clear to the Court how an order granting a motion seeking release of evidence could be both "executed" and "kept [] secret" from the judge and never revealed to Plaintiff or his counsel." See Second Amended Complaint (Rec. Doc. 33) at ¶¶ 1-13. Finally, the Court is not apprised of the specific contents of the alleged motion or order.
Similarly, Plaintiff avers that on November 18, 2011, certain DA Defendants produced some items of Brady evidence that, if produced in 2005, would have proven Plaintiff's innocence and allowed his release from prison. See Second Amended Complaint (Rec. Doc. 33) at ¶¶ 15-4, 38-43. Although fraud may be alleged on information and belief if the "facts relating to the fraud are peculiarly within the perpetrator's knowledge," the complaint nevertheless "must set forth a factual basis for such belief." United States ex rel. Thompson v. Columbia/HCA Healthcare Corp., 125 F.3d 899, 903 (5th Cir. 1998). It is not clear to the Court whether Plaintiff previously had any awareness of the existence of this particular information or asked for it. Plaintiff's pleadings likewise do not indicate whether any explanation was given by pertinent DA Defendants as to why the evidence in question never was previously produced, what that explanation was, and why the evidence purportedly was not previously found in the prosecution's files. Presumably some, if not all, of this information either has been or will be fleshed out during the course of Plaintiff's ongoing state court proceeding for post-conviction relief. As mentioned in note 3, supra, however, Plaintiff has provided the Court with very little information, particularly as to more recent developments, concerning that action.
Brady v. Maryland, 373 U.S. 83 (1963).
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Further, in addition to the problems described above, Plaintiff's §1983 claims against the DA Defendants in their individual capacities, as presently stated, are legally barred by absolute prosecutorial immunity. See, e.g., Van de Kamp v. Goldstein, 555 U.S. 335, 340-49 (2009)(quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)(prosecutor absolutely immune from individual liability under §1983 regarding conduct "intimately associated with the judicial phase of the criminal process," including supervision and training of junior prosecutors regarding disclosure of potential impeachment evidence); see also, e.g.,Cousin v. Small, 325 F.3d 627, 631-37 (5th Cir.), cert. denied, 540 U.S. 825 (2003); Hudson, 98 F.3d at 873; Carter v. Burch, 34 F.3d 257, 263 (4th Cir. 1994), cert. denied, 513 U.S. 1150 (1995); Johnson v. Louisiana, No. 09-55, 2010 WL 996475, *9-10 (W.D. La. 3/16/10); Smith v. City of New Orleans, No. 95-0821, 1996 WL 39424, *2-3 (E.D. La. 1/30/96). The same is true with respect to Plaintiff's state law claims against the DA Defendants, in both their official and individual capacities. See Spikes v. Phelps, 131 Fed. Appx. 47, 49, 2005 WL 984224, *1 (5th Cir. 2005)(unpub.); Burrell v. Adkins, No. 01-2689, 2007 WL 4699169, *14-15 (W.D. La. 10/23/07)(Report and Recommendation), adopted as modified by 2008 WL 130800 (W.D. La. Jan 10, 2008); Knapper v. Connick, 681 So.2d 944, 946-50 (La. 1996); Godfrey v. Reggie, 94 So.3d 82, 91-92 (La. Ct. App. 3rd Cir. 2012); Sinclair v. Louisiana Dept. of Corrections, 769 So. 2d 1270, 1271-72 (La. Ct. App. 1st Cir. 2000), writ denied, 806 So. 2d 665 (La. 2002); Connor v. Reeves, 649 So. 2d 803, 804-06 (La. Ct. App. 2nd Cir. 1995)(district attorney sued in individual and official capacities held immune).
Finally, given the foregoing, and on the showing made, even if Plaintiff's conviction eventually is set aside by the Louisiana state courts, and his other pleading shortcomings cured, only the current and former District Attorneys for the Parish of Orleans, solely in their official capacities, would be properly named as DA Defendants relative to Plaintiff's §1983 claim. See, e.g., Kentucky v. Graham, 473 U.S.159, 165-66 (1985) ("an official-capacity [§1983] suit is, in all respects other than name, to be treated as a suit against the [government] entity," which has no personal immunity); Truvia v. Julien, 187 Fed. Appx. 346, 350, 2006 WL 1675116, *3 (5th Cir. 2005)(unpub.)(citing Burge v. Parish of St. Tammany, 187 F.3d 452, 468 (5th Cir. 1999) (Louisiana District Attorneys, not Assistant District Attorneys, are "final policymakers" for purposes of official capacity claims under §1983); Spikes, 131 Fed. Appx. at 48, 2005 WL 984224, *1 (liability in §1983 action, "based on official capacity, runs against the local government entity, not the individual defendant")(citing Monell v. Dept. of Social Services, 436 U.S. 658, 691 (1978)); Johnson, No. 09-55, 2010 WL 996475, *9-13.
Accordingly, for the reasons stated herein, IT IS ORDERED that:
(1) Plaintiff's claims under §1983 against Defendant Harry Connick, Sr., in his prior official capacity as the District Attorney for the Parish of Orleans, and Defendant Leon Cannizzaro, Jr., in his official capacity as the current District Attorney for the Parish of Orleans, are dismissed without prejudice;
(2) Plaintiff's §1983 claims against the DA Defendants in their individual capacities are dismissed with prejudice; and
(3) Plaintiff's state law claims against the DA Defendants, in both their official and individual capacities, are dismissed with prejudice.
New Orleans, Louisiana, this 26th day of March 2013.
_________________
Kurt D. Engelhard
United States District Judge