Williams v. Connick et al

Filing 123

ORDER & REASONS denying 83 Motion for Summary Judgment and granting 92 Motion to Set Aside 84 Order on Motion to Compel, to the extent that the request is not moot. Signed by Judge Martin L.C. Feldman on 1/15/2014. (caa, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MICHAEL WILLIAMS

CIVIL ACTION

v.

NO. 12-1274

DISTRICT ATTORNEY
PAUL CONNICK, JR., ET AL.

SECTION "F"

ORDER AND REASONS
Before the Court are two motions: (1) a motion for summary
judgment by defendants Sheriff Newell Normand and former Detective
Grey Thurman; and (2) the plaintiff's motion to set aside the
magistrate judge's ruling denying his motion to compel discovery
from Normand and Thurman.

For the reasons that follow, the

defendants' motion is DENIED and the plaintiff's motion is GRANTED.
Background
This civil rights case arises out of a wrongful conviction
in which a man charged with murder was tried, convicted, and
sentenced to life in prison, where he served 15 years before his
conviction was shown to be wrongful.
The facts of this case, as alleged by Michael Williams, are
more completely set forth in this Court's February 28, 2013 Order
and Reasons. A summary of those facts most pertinent to resolution
of the pending motions follows.
1

Michael Williams served over 15 years in prison for murdering
Michelle Gallagher before Christopher Landry -- the only witness to
testify to facts inculpating Williams -- recanted his testimony and
admitted to lying to the grand jury and at trial to the judge
during Williams’ murder trial.

The State’s case against Williams

hinged on the testimony of Landry, a known crack addict, whose
testimony, Mr. Williams alleges, was actively shaped by police and
prosecutors in advance of trial; no physical evidence linked
Williams to the crime.

In a recanting affidavit, Landry stated

that he had lied because Detective Grey Thurman had threatened to
charge Landry with the crime unless he inculpated Mr. Williams.
At 10:45 p.m. on March 6, 1996 Michelle Gallagher was
discovered lying in the middle of the street just outside the
Kennedy Heights subdivision.

She had been stabbed through her

navel and died a short time after arriving at the hospital.
Jefferson

Parish

Sheriff’s

Office

and

its

lead

The

investigator,

Detective Grey Thurman, led the investigation.
For the first two weeks of the investigation, Detective
Thurman had several leads to possible suspects, whom he ruled out.
Soon thereafter, Detective Thurman received a tip that Christopher
Landry,

who

lived

in

witnessed the murder.

the

Kennedy

Heights

neighborhood,

had

(Landry was a habitual drug user, who had

had run-ins with the law, including a drug conviction).

When

Detective Thurman met with Landry, he told him that Landry would be

2

charged with murder if he did not give a statement saying that
Michael Williams had murdered Michelle Gallagher.1
Landry, who became the State’s key witness at Williams’
trial, was the only State witness who claimed to have witnessed the
crime. Through Landry, the State presented the following theory of
the murder: Landry witnessed Williams drive Gallagher around the
Kennedy Heights neighborhood, argue with her, and then dump her
body in the middle of River Road.

But the State failed to disclose

the following pieces of exculpatory evidence that directly undercut
the State’s theory at trial:
a)

b)

c)

d)

The first time Landry gave a recorded statement to Defendant
Thurman, Landry did not claim Williams killed Gallagher.
Detective Thurman failed to turn over this statement to the
prosecution.2 During Williams’ post-conviction proceedings,
a microcassette containing this recorded statement was found
in
JPSO’s
files.
Neither
the
microcassette
nor
a
transcription thereof appeared in JPDA’s files.
Landry made two additional statements prior to trial that
were inconsistent with his trial testimony: a second
statement made to Detective Thurman a few hours after
Landry’s first recorded statement, and testimony before the
grand jury. The State did not disclose either statement to
the defense.
Landry only implicated Williams because he felt threatened.
The State did not disclose documents and statements revealing
that Landry was treated as a suspect during the investigation
of Gallagher’s murder.
A witness named Lori Ramsey told police that she saw the
victim hitchhiking more than a mile from Kennedy Heights,
where Landry claimed to have seen her with Williams during
the same time period. The State did not disclose this
witness’s statement to the defense.

1

Detective Thurman denies coercing or threatening Landry.

2

Detective Thurman disputes this fact; he says he made
all evidence available to the prosecution.
3

e)

Detective Thurman had interviewed several other potential
suspects before settling on Williams, including Haley Sapia
and Earl Parker. Prior to interviewing Sapia and Parker,
Detective Thurman had both suspects sign a “Rights of
Arrestee or Suspects”form. Detective Thurman recorded the
details surrounding the investigation of these suspects in
his Supplemental Report. The State did not disclose the
“Rights of Arrestee or Suspects” forms for Sapia or Parker
to the defense, nor did it disclose Detective Thurman’s
Supplemental Report.
At trial in 1997, the State presented its theory, primarily

through Landry, that on the night of the murder, Williams drove
Gallagher around the Kennedy Heights neighborhood, they smoked
crack and argued, and then Williams stabbed Gallagher and dumped
her body along River Road outside of Kennedy Heights, where several
motorists saw her body.
One of the motorists who saw Gallagher lying in the street
was a newspaper deliveryman named Dewey Bruce; he testified that he
had first seen Gallagher outside the Waggaman subdivision, where
she had been staggering along the road. After Bruce saw Gallagher,
he continued on his paper route through the Waggaman subdivision.
He encountered Gallagher again when he saw her lying in the street
just outside the Kennedy Heights subdivision, only 15 minutes later
and 2.5 miles from where he had just seen her.

The Jefferson

Parish District Attorney relied on Landry to fill in the missing
timeline in Bruce’s testimony.
a)

b)

Landry offered this testimony:

At approximately 10:30 on the night of Gallagher’s murder,
he saw Gallagher in the passenger seat of Williams’ white
Mustang as they drove by Landry in the Kennedy Heights
neighborhood.
Landry stole a bicycle from the yard of a nearby house and
4

c)

d)

rode the bike to follow Williams and Gallagher. (Gallagher
was thought to be a prostitute, and Landry followed Williams
and Gallagher because he suspected that they were going to
have sex and he wanted to watch.)
Landry followed the Mustang on the stolen bike across the
Kennedy Heights subdivision to an abandoned lot approximately
one mile away. Once there, he watched Williams and Gallagher
smoke crack and then argue because Gallagher refused to have
sex with Williams.
Williams then drove off with Gallagher, and Landry again
followed on the stolen bike, taking more or less the same
route as Williams. The car stopped on River Road shortly
thereafter, and Landry watched as Williams exited the car,
walked around to the passenger side door, opened it, dumped
Gallagher’s body to the ground on River Road, and then drove
away.

The State, through then-Assistant District Attorney Ken Dohre,
elicited

testimony

from

Landry

that

his

trial

testimony

was

consistent with every account of the events that he had previously
provided to the police.
In closing argument, the State argued that Landry’s testimony
dovetailed with Bruce’s testimony: everything Landry described
could have taken place between the time Bruce saw Gallagher outside
the Waggaman neighborhood and when he saw her body 15 minutes later
outside Kennedy Heights.

The State also emphasized that Landry’s

story had not changed since he first spoke to police, and that
Landry had consistently described the route Williams took out of
the Kennedy Heights neighborhood after arguing with Gallagher. The
State argued that Landry had no reason to lie and in fact put
himself at risk by testifying against Williams.
After a five-minute recess following the State’s rebuttal
argument (in which the State re-emphasized Landry’s consistent
5

description of the route taken by Williams), the judge agreed with
the State and found Williams guilty of second-degree murder.
Williams, then 31 years old, was sentenced to life without parole.
In fact, Landry had lied.
In February 2009 Landry gave a sworn affidavit stating that
he gave false statements against Williams concerning the death of
Michelle Gallagher to JPSO and the grand jury.

He stated that he

was offered a deal to receive a lesser sentence on a pending drug
charge in exchange for testifying against Williams.

Landry stated

that JDPA told him that he (Landry) would serve a life sentence
instead of Williams if he did not testify against Williams.
Several months later in September 2009, Landry provided
another sworn affidavit to lawyers for the Innocence Project of New
Orleans.

He stated that his statements to police and in court

about the death of Gallagher “was a lie.”

He “did not see Michael

Williams in a car with Michelle Gallagher on the night she was
killed,” “did not get on a bike and follow them,” “did not see them
smoke crack,” “did not see them get in an argument,” and “did not
see Michael Williams dump Michelle Gallagher’s body from his car.”
Landry said that he “made up all of this.”

He stated that he was

“high on crack” when the police showed up at his house to take him
in for questioning.

He stated that the police told him if he “did

not give a statement saying that Michael Williams murdered Michelle
Gallagher, they would charge [him] with the murder.”

6

Landry was

“scared” so he “told police what they wanted to hear.”
After Landry recanted his testimony in 2009, IPNO discovered
numerous pieces of evidence -- none of which had been disclosed to
Williams

or

his

defense

counsel

at

trial

--

that

directly

contradicted or undercut Landry’s fabricated testimony at trial, as
well as the State’s argument that Landry adhered to a consistent
story throughout the course of the State’s investigation.

The

newly discovered evidence includes at least 10 statements from
witnesses taken during the course of the investigation, including
statements from Landry.

Although Williams’ trial counsel had

requested notice “of the existence of any oral statements which the
state

has

in

its

possession

regarding

the

case,

including

information as to when, where, and to whom such oral statements
were

made,”

JPDA

referred

defense

transcribed statement to police.
requested

“copies

of

audio

counsel

only

to

Williams’

Williams’ trial counsel had also

or

video

recordings

or

written

statements prepared or signed by every State witness,” such as
Landry.
At trial, Assistant District Attorney Dohre and the JPDA
elicited testimony from Landry that they knew to be false: that
Landry had not changed his story at any time since he first spoke
to police.

And, in closing argument, Dohre referred to Detective

Thurman’s testimony at trial to argue that Landry testified at
trial to the same route he gave when he spoke to police only two

7

weeks after the murder.
Assistant District Attorney Dohre and the JPDA failed to
provide the defense with transcribed exculpatory statements from
other witnesses, including Lori Ramsey, Mark Shane Billiot, Philipe
Billiot, Bruce Kelsey (two statements), Chad Chimento, Brenda
Robinson, Gary Miller, and Earl Parker. Nor did Dohre and the JPDA
provide the defense with evidence relating to other suspects that
were considered during the JPSO’s investigation, including the
Rights of Arrestee or Suspects form signed by Haley Sapia, a
witness who was with the victim on the night she was murdered, and
the Rights of Arrestee or Suspects form signed by Earl Parker, a
suspect JPSO investigated pursuant to an anonymous tip it received
indicating that Parker was heard bragging about the murder.
though

information

relating

to

the

transcribed

Even

exculpatory

statements from Lori Ramsey, Mark Shane Billiot, Philipe Billiot,
Bruce Kelsey, Chad Chimento, Brenda Robinson, Gary Miller, and Earl
Parker, as well as the Rights of Arrestee or Suspects forms signed
by Haley Sapia and by Parker, was contained in the Supplemental
Report of Detective Thurman, which Dohre and the JPDA had in their
possession, they failed to disclose it to the defense.
In addition to withholding material exculpatory evidence from
the

defense,

Williams

alleges

that

the

defendants

actively

manufactured evidence prior to trial and presented false and
misleading evidence at trial to build a case around Landry’s

8

testimony.

In his noon statement, Landry did not implicate

Williams in Gallagher’s murder; he only told Detective Thurman that
the last time he saw Williams and Gallagher on the night of her
murder they were heading toward Avondale Garden Road and Gallagher
was still alive.

But instead of transcribing Landry’s noon

statement and providing it to the JPDA, Detective Thurman provided
the JPDA a synopsis of the case describing an interview in which
Landry witnessed Williams remove Gallagher from her car and saw her
fall to the road.

By omitting critical facts from his synopsis,

Detective Thurman led JPDA to believe that there was a case against
Williams when, in fact, the entire case was premised on the false
testimony

of

Landry,

obtained

after

he

was

threatened

with

prosecution for Gallagher’s murder.
Landry testified before the grand jury that Williams dropped
something out of his car but he had no idea what it was; but at
Williams’

trial,

Landry

testified

that

he

saw

Williams

drop

Gallagher’s body to the ground. During his 3 p.m. statement Landry
told Detective Thurman that he saw Williams dump Gallagher’s body
on George Street.

Detective Thurman responded: “Is it possible

that he dumped her in the River Road and not on George St.?”
Landry agreed it could be possible and, at trial, Landry testified
that Williams dumped Gallgher’s body on River Road (where her body
was actually found).

Williams alleges that Detective Thurman

manufactured evidence against Williams by feeding a critical fact

9

of the case to Landry, who actually had no first-hand knowledge of
the murder.
Williams

also

alleges

that

the

defendants

evidence concerning Landry’s bicycle route.

manufactured

The JPDA and JPSO had

within their files a copy of Landry’s 3 p.m. statement in which he
claimed to have taken an implausible and circuitous route on his
bike to follow Williams and Gallagher after they allegedly smoked
crack and argued.

IPNO obtained evidence from JPDA’s files after

Landry’s recantation of his trial testimony that included three
color-coded maps of the Kennedy Heights neighborhood.

Williams

alleges that these maps were created to coach Landry in his trial
testimony because of concerns he would not stick to his story. Two
of the color-coded maps show Landry’s bicycle route as he explained
it in the 3 p.m. statement while the third map shows the more
direct route to which Landry testified at trial.
Williams also alleges that, to succeed in their efforts to
manufacture evidence against Williams, Landry was threatened by the
defendants. Landry has stated in a sworn affidavit that the police
told him that if he “did not give a statement saying that Michael
Williams murdered Michelle Gallagher, they would charge [him] with
the murder.”

Landry also stated that the police brought his

girlfriend in for questioning and he was “scared that the police
were going to do something to her if I did not tell them what they
wanted to hear.”

Landry also stated that he was informed by the

10

JPDA that if he did not testify against Williams at trial, he
“would be the one serving a life sentence instead of Mr. Williams.”
Because he was scared, Landry said he agreed to testify against
Williams.

It is Williams’ position that the district attorney

defendants coached Landry’s testimony to fit their theory of the
case, including the timeline established by Bruce’s two sightings
of the victim the night she was murdered.
Thus, approximately 12 years after Williams’ conviction, in
2009, Landry recanted his testimony against Williams; he admitted
in two sworn affidavits that his testimony inculpating Williams was
a complete fabrication, and that he had been coerced by the police
and prosecutors to inculpate Williams.

Landry stated that he

testified against Williams because he was “scared” after the police
and JPDA told him that he would be prosecuted for Gallagher’s
murder if he did not give a statement inculpating Williams and
testify against him at trial.
Shortly after Landry’s recantation, Williams filed a pro se
application for post-conviction relief on the basis that the
recantation exonerated him and he was entitled to a new trial.
Williams, through counsel later learned that Detective Thurman,
Assistant

District

Attorney

Ken

Dohre,

the

Jefferson

Parish

Sheriff’s Office, and the Jefferson Parish District Attorney’s
Office had withheld multiple pieces of material exculpatory and
impeachment evidence from Williams’ trial counsel and manufactured

11

Landry’s testimony.
On the basis of newly discovered evidence, Williams filed a
second application for post-conviction relief with the assistance
of Innocence Project New Orleans.

On November 17, 2011 the

district court for th 24th Judicial District granted a joint motion
filed by JPDA and Williams to vacate the conviction.

That same

day, the JPDA dismissed the indictment against Williams.

After

spending more than 15 years in prison, Williams was released in
2011.

It is Williams’ position that his ordeal was no mistake; he

claims that it was the result of a concerted bad faith effort by
the police and district attorney, acting under color of state law,
to cut out of whole cloth a case against Williams that had no
factual basis, and to falsely convict him of murder in violation of
his constitutional rights and rights under state law.
To seek redress for this unlawful conduct, on May 16, 2012
Williams sued Jefferson Parish District Attorney Paul Connick, Jr.,
in his official capacity; former Jefferson Parish District Attorney
John Mamoulides, in his official capacity; Detective Grey Thurman,
in his individual capacity; Sheriff Newell Normand, in his official
capacity as Sheriff of the Jefferson Parish Sheriff’s Office; the
Jefferson Parish Sheriff’s Office, the Jefferson Parish District
Attorney’s Office; former Jefferson Parish Assistant District
Attorney

Ken

Dohre,

unidentified parties.

in

his

individual

capacity;

and

various

On September 11, 2012 Williams filed an

12

amended complaint.

He asserts various civil rights and state law

claims against the defendants: a § 1983 claim against Detective
Thurman for his wrongful suppression of Brady materials, and for
concealing and manufacturing evidence which he says violated his
right to due process and a fair trial under the Fifth, Sixth, and
Fourteenth Amendments to the U.S. Constitution, as well as articles
of the state constitution, and various state law claims; a § 1983
claim

against

Assistant

District

Attorney

Ken

Dohre

and

unidentified Jefferson Parish District Attorney Office employees
for

failure

to

disclose

exculpatory

Brady

materials

and

for

evidence manufacturing, which he says violated his right to due
process and a fair trial under the Fifth, Sixth, and Fourteenth
Amendments to the U.S. Constitution, as well as articles of the
state constitution; a municipal liability claim under § 1983
against the Jefferson Parish District Attorney’s Office, Paul
Connick, Jr. and John Mamoulides, in their official capacities, for
failure to train and for maintaining an unconstitutional custom and
deliberate indifference with respect to the discharge of Brady
obligations; a § 1983 against Sheriff Normand for the Jefferson
Parish Sheriff’s Office’s maintenance of an unconstitutional policy
and

custom

of

manufacturing
malicious

failing
evidence;

prosecution

to

disclose

various

and

exculpatory

state

law

evidence

claims,

intentional/negligent

and

including

infliction

of

emotional distress alleged against the Jefferson Parish District

13

Attorney’s

Office,

Dohre,

and

unidentified

parties,

and

a

defamation claim asserted against Detective Thurman, Ken Dohre, and
unidentified parties; and a direct action pursuant to La.R.S. §
22:1269(B) against unnamed insurance companies.

Williams requests

a jury trial and a judgment awarding him compensatory and punitive
damages, as well as costs and reasonable attorneys’ fees pursuant
to 42 U.S.C. § 1988.
Jefferson Parish District Attorney Paul Connick, Jr., former
District Attorney John Mamoulides, the Jefferson Parish Attorney’s
Office, and former Assistant District Attorney Ken Dohre -- the
Prosecutor Defendants -- requested dismissal of Williams’ claims
against them, invoking various theories of immunity and on the
ground that Williams has failed to state a claim upon which relief
may be granted.

On February 28, 2013 the Court granted in part and

denied in part the motion to dismiss, as follows: the defendants'
request to dismiss the plaintiff's claims against the JPDA Office
and former JPDA John Mamoulides was granted, JPDA Dohre's request
to dismiss the claims against him on the ground of absolute
prosecutorial immunity was granted; the defendants' request that
the Court dismiss claims against them on the ground of sovereign
immunity

was

denied,

and

Connick's

request

to

dismiss

the

plaintiff's § 1983 claims against him in his official capacity on
the theories of unconstitutional custom and failure-to-train was

14

also denied.3
Discovery in this case is ongoing.

Mr. Williams served

discovery requests on the police defendants in May 2013.

The

police defendants have obtained discovery from Mr. Williams, but
have refused to meaningfully respond to Mr. Williams' discovery
requests.

After private efforts failed, Mr. Williams filed a

motion to compel on September 5, 2013.

When Magistrate Judge

Knowles heard oral argument in October 2013, he asked whether
Normand and Thurman intended to seek summary relief on the ground
of qualified immunity; he stated that, if they filed such a
request, he would stay their discovery obligations.4
Sheriff Normand and former Detective Thurman now seek summary
relief, dismissing the plaintiff's civil rights claims against
them.

The plaintiff opposes the defendants' motion for summary

judgment,

and

also

requests

that

this

Court

set

aside

the

magistrate judge's ruling denying the plaintiff's motion to compel
discovery from Normand and Thurman.5

3

Thus, in addition to the plaintiff’s Monell claim
against Connick, which survived the Prosecutor Defendants’ motion
to dismiss, his remaining claims include those not addressed by the
Prosecutor Defendants’ motion: Williams’ claims against Detective
Thurman and Sheriff Normand and his claims against various
unidentified parties.
4

Those defendants never submitted a request to stay their
discovery obligations.
5

This motion for summary relief was filed two days after
argument before the magistrate judge. Thereafter, Magistrate Judge
Knowles denied the plaintiff's motion to compel discovery as to the
15

I.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as to
any material fact such that the moving party is entitled to
judgment as a matter of law.

No genuine issue of fact exists if

the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party.

See Matsushita Elec. Indus. Co.

v. Zenith Radio., 475 U.S. 574, 586 (1986).

A genuine issue of

fact exists only "if the evidence is such that a reasonable jury
could return a verdict for the non-moving party."

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
motion.

See

id.

Therefore,

"[i]f

the

evidence

is

merely

colorable, or is not significantly probative," summary judgment is
appropriate.

Id. at 249-50 (citations omitted).

Summary judgment

is also proper if the party opposing the motion fails to establish
an essential element of his case.
477 U.S. 317, 322-23 (1986).

See Celotex Corp. v. Catrett,

In this regard, the non-moving party

must do more than simply deny the allegations raised by the moving
party.

See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d

646, 649 (5th Cir. 1992).

police officer
immunity.

defendants,

Rather, he must come forward with

pending
16

resolution

of

qualified

competent evidence, such as affidavits or depositions, to buttress
his claims.

Id.

Hearsay evidence and unsworn documents that

cannot be presented in a form that would be admissible in evidence
at trial do not qualify as competent opposing evidence.

Martin v.

John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.
1987); Fed.R.Civ.P. 56(c)(2).

Finally, in evaluating the summary

judgment motion, the Court must read the facts in the light most
favorable to the non-moving party.

Anderson, 477 U.S. at 255.

II.
A.
Title 42, U.S.C. § 1983 creates a damages remedy for the
violation of federal constitutional or statutory rights under color
of state law; 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 ...
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.
To establish § 1983 liability, the plaintiff must satisfy three
elements:
(1)
(2)
(3)

deprivation of a right secured by the U.S.
Constitution or federal law,
that occurred under color of state law, and
was caused by a state actor.

Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004)
(citation omitted).

17

B.
1.
When

a

plaintiff

seeks

money

damages

from

government

officials for alleged violations of constitutional or statutory
rights, officials sued in their individual capacities may invoke
the defense of qualified immunity.

Because it is an immunity from

suit and not a defense to liability, courts are advised to resolve
the issue “at the earliest possible stage in litigation.”

Hunter

v. Bryant, 502 U.S. 224, 227 (1991)(per curiam).
“Qualified immunity shields government officials from civil
damages liability,” the U.S. Supreme Court has reiterated, “unless
the official violated a statutory or constitutional right that was
clearly established that the time of the challenged conduct.”
Reichle v. Howards, 132 S.Ct. 2088, 2093 (2012)(citing Ashcroft v.
al-Kidd, 563 U.S. ---, 131 S.Ct. 2074, 2080 (2011); Harlow v.
Fitzgerald,

457

U.S.

800,

818

(1982)(This

doctrine

protects

government officials against individual civil liability “insofar as
their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.”).

“Qualified immunity balances two important interests –

the need to hold public officials accountable when they exercise
power

irresponsibly

and

the

need

to

shield

officials

from

harassment, distraction, and liability when they perform their
duties

reasonably.”

Pearson

18

v.

Callahan,

555

U.S.

223

(2009)(noting that “[t]he protection of qualified immunity applies
regardless of whether the government official’s error is ‘a mistake
of law, a mistake of fact, or a mistake based on mixed questions of
law and fact.’”).

In fact, “[q]ualified immunity represents the

norm” and “is designed to shield from civil liability all but the
plainly incompetent or those who violate the law.”

Brady v. Fort

Bend County, 58 F.3d 173, 174 (5th Cir. 1995).
In resolving a government official’s qualified immunity
defense, courts have traditionally applied the two-prong process
articulated in Siegert v. Gilley, 500 U.S. 226 (1991) and confirmed
by the Supreme Court again in Saucier v. Katz, 533 U.S. 194 (2001).
First, the Court must determine whether the plaintiffs have shown
a violation of a constitutional right.

Id. at 201.

The second

inquiry requires the Court to consider “whether the right at issue
was ‘clearly established’ at the time of the defendant’s alleged
misconduct.”

Pearson v. Callahan, 555 U.S. 223 (2009).6

6

Although

In Pearson, the Supreme Court receded from Saucier, in
determining that, while the sequence articulated in Saucier is
often appropriate, it is no longer mandatory; accordingly, the
Court may consider these inquiries in any sequence and need not
even consider both. See Pearson, 129 S.Ct. at 818-20 (reasoning
that because the Saucier process sometimes unnecessarily “results
in a substantial expenditure of scarce judicial resources on
difficult questions that have no effect on the outcome of the
case...courts should have the discretion to decide whether that
procedure is worthwhile in particular cases”).
Step two of the qualified immunity analysis requires
courts to determine whether the defendants’ conduct “was
objectively reasonable in light of clearly established law.”
Thompson v. Upshur County, Tex., 245 F.3d 447, 457 (5th Cir.
2001)(citations omitted). “Fair warning” is the touchstone of this
19

the Supreme Court has left to the district court’s discretion the
sequence for undertaking these two inquiries, the Supreme Court has
increasingly indicated a preference for first considering whether
a purported right was clearly established by prior case law
“without resolving the often more difficult question whether the
purported right exists at all.”

See Reichle, 132 S.Ct. at 2093

(“This approach comports with our usual reluctance to decide
constitutional questions unnecessarily.”); see also Camreta v.
Greene, 563 U.S. ---, 131 S.Ct. 2020, 2031 (2011)(observing that
“our usual adjudicatory rules suggest that a court should forbear
resolving this issue”)(emphasis in original); see also Pearson, 555
U.S. at 238-39 (listing circumstances in which courts might be best
served to bypass the first step of the Saucier process, such as
“when qualified immunity is asserted at the pleadings stage, the
precise factual basis for the plaintiff’s claim or claims [is] hard
to identify”).
In other words:

qualified immunity “protects ‘all but the

plainly incompetent or those who knowingly violate the law,’ so we
do not deny immunity unless ‘existing precedent must have placed
the statutory or constitutional question beyond debate.’”

Morgan

v. Swanson, 659 F.3d 359, 370-71 (5th Cir. 2011)(en banc)(internal

analysis.
Bush v. Strain, 513 F.3d 492, 501-02 (5th Cir.
2008)(citations omitted).
“In other words, ‘existing precedent
must have placed the statutory or constitutional question beyond
debate.’” Reichle, 132 S.Ct. at 2093 (quoting Camreta v. Greene,
563 U.S. ---, 131 S.Ct. 2020 (2011)).
20

quotations, citations, and footnotes omitted).

Once a defendant

has invoked the defense of qualified immunity, the burden shifts to
the plaintiff to show that the defense is unavailable. See Collier
v. Montgomery, 569 F.3d 214, 217-18 (5th Cir. 2009); see also
McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002)(en
banc).

"Although qualified immunity is 'nominally an affirmative

defense," the plaintiff bears a heightened pleading burden 'to
negate the defense once properly raised.'"

Newman v. Guedry, 703

F.3d 757, 761 (5th Cir. 2012)(citing Brumfield v. Hollins, 551 F.3d
322, 326 (5th Cir. 2008)).

A plaintiff must establish that the

defendant was either personally involved in the deprivation or that
his wrongful actions were causally connected to the deprivation.
James v. Texas Collin Co., 535 F.3d 365, 373 (5th Cir. 2008).

And,

“each individual defendant’s entitlement to qualified immunity
[should

be

Sheriff’s

examined]
Dept.,

228

separately.”
F.3d

388,

Jacobs
395

v.

West

(5th

Cir.

Feliciana

2000)(citation

omitted).
Former

Detective

Grey

Thurman

invokes

the

defense

of

qualified immunity in his summary judgment papers; he contends that
he is entitled to immunity because no case extends the mandates of
Brady to police officers and, assuming Brady applies, he complied
with his obligation by producing the noon statement, or at least
making it available to prosecutors. He also seeks dismissal of the
plaintiff's evidence-manufacturing and concealment claims on the

21

ground that such claims are not properly before the Court.

The

plaintiff counters that Thurman is not shielded from liability at
this stage because a genuine issue of material fact remains
concerning

whether

constitutional

Thurman's

rights

and

conduct

whether

violated

Thurman's

Williams'

actions

were

unreasonable in light of clearly established law.
Former Detective Thurman is entitled to qualified immunity
on Williams' § 1983 claims concerning withholding of Brady evidence
and concealing or manufacturing of evidence unless (1) Williams
submits sufficient evidence to raise a genuine dispute as to a
material fact suggesting that Thurman's conduct violated an actual
constitutional right; and (2) Thurman's actions were objectively
unreasonable in light of clearly established law at the time of the
alleged misconduct. Mindful of the contours of qualified immunity,
the Court turns to the relevant constitutional rights Williams
asserts Detective Thurman violated:
Brady

evidence

by

withholding

Thurman's failure to produce

Landry's

noon

statement

from

prosecutors and Thurman's concealment and manufacturing of evidence
in violation of the Due Process Clause.
(a) Due Process/Brady and the Noon Statement
Thurman submits his sworn affidavit to support his contention
that he never withheld evidence from the district attorney's
office; he submits that he produced Landry's noon statement, along

22

with the entire investigative file, to prosecutors.7

Williams

disputes this alleged fact, and points to evidence suggesting that
the noon statement was not turned over to prosecutors: Williams'
counsel discovered a recording of the noon statement only in the
JPSO's files, whereas there was no trace of the noon statement in
the JPDA's files; the noon statement was never transcribed, even
though JPSO had a practice of transcribing even immaterial witness
statements (noting that 21 other witness statements and Landry's 3
p.m. statement were transcribed and provided to prosecutors); other
evidence

suggests

that

Thurman

actively

concealed

the

noon

statement from prosecutors (by misleadingly describing the 3 p.m.
statement as the only statement given by Landry that day) and
otherwise hinging the case only on Landry's 3 p.m. statement.
Notably,

Williams

is

not

the

only

party

that

disputes

Thurman's sworn statement that he turned over the noon statement to
prosecutors:

District

Attorney

Paul

Connick

submits

former

Assistant District Attorney Ken Dohre's sworn affidavit, in which
Dohre states that at the time he prosecuted the Williams case, he
was not aware of the noon statement.

He also submits that the JPDA

Williams case file contained a "Supplemental Report" prepared by
Detective Thurman, that the report was detailed and contained 21

7

In subsequent papers, Thurman suggests that perhaps he
merely made available to prosecutors the noon statement, as opposed
to affirmatively producing it, but he suggests that the Court
should not get mired down in the semantics of whether he made the
statement available or physically delivered it to the prosecution.
23

witness statements, one of which is Landry's 3 p.m. statement, but
that the report did not mention, let alone contain, a transcript or
tape recording of any so-called noon statement taken by Detective
Thurman of Landry.

Dohre states that he "was never aware of the

existence of the so-called 'noon statement' until it was brought to
my attention by...The Innocence Project...in 2011."
The Court is satisfied that a genuine dispute of material
fact exists respecting whether or not Thurman failed to produce to
prosecutors Landry's noon statement in violation of Thurman's duty
under Brady.

Accordingly, the Court turns to consider whether the

constitutional due process right (Brady) was clearly established at
the time of the incident and, if so, whether Thurman's conduct was
objectively unreasonable in light of that then clearly established
law.
Citing a law review article, Thurman contends that "there is
no case that expressly extends the mandates of Brady to the police
officers as a blanket rule";8

he also invokes policy reasons for

not extending Brady to police officers.

The Court disagrees.

As

Williams points out, the Fifth Circuit has repeatedly held, before
and after Thurman's conduct at issue here, that when a police
officer

conceals

exculpatory

evidence,

established constitutional principles.

8

he

violates

clearly

Accordingly, Thurman's

See generally Michael Avery, Paying for Silence: The
Liability of Police Officers under Section 1983 for Suppressing
Exculpatory Evidence, 13 Temple Pol & Civil Rts. L. Rev. 1 (2003).
24

argument that he was not obligated by Brady and Due Process to
produce to the prosecution evidence favorable to Williams must
fail.
In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court
held that an individual's constitutional right to a fair trial
obligates the prosecution in a criminal case to turn over evidence
to the defense in certain circumstances: "[u]nder Brady, the State
violates a defendant's right to due process if it withholds
evidence that is favorable to the defense and material to the
defendant's guilt or punishment."
630 (2012).

Smith v. Cain, 132 S.Ct. 627,

Even though Detective Thurman does not now challenge

whether Landry's noon statement constitutes Brady evidence, the
Court finds it useful to summarize the somewhat analogous context
presented by Smith:
Juan Smith was charged with killing five people during an
armed robbery.

Id. at 629.

At his trial, a single eyewitness,

Larry Boatner, linked Smith to the crime.

Id.

Boatner testified

at trial that he was at a friend's house when Smith and two others
entered the home, demanded money and drugs, and then began firing
shots, killing five of Boatner's friends.

Id.

Also during trial,

Boatner suggested that being face to face with Smith in the house
facilitated his ability to identify Smith as the first gunman. Id.
Smith was convicted of five counts of first-degree murder, a
conviction

that

ultimately

withstood

25

appeal

to

the

Louisiana

Supreme Court.
During

Id.
Smith's

state

post-conviction

proceedings,

Smith

obtained files from the police investigation of his case, including
those of Detective John Ronquillo, the lead investigator.

Id.

Ronquillo's notes, which were not turned over to Smith for trial,
contained statements by Boatner that conflicted with his testimony
in identifying Smith as a perpetrator.

Id.

That is, the notes

from the night of the murder state that Boatner "could not...supply
a description of the perpetrators other then [sic] that they were
black males."

Id.

In a handwritten account of a conversation he

had with Boatner five days after the crime, Ronquillo noted that
Boatner "could not ID anyone because [he] couldn't see faces" and
"would

not

know

them

if

[he]

saw

them."

Id.

at

629-30.

Additionally, Ronquillo's typewritten report of that conversation
states that Boatner told him that he "could not identify any of the
perpetrators of the murder."
The

State

of

Id. at 630.

Louisiana

did

not

dispute

that

Boatner's

statements in Ronquillo's notes were favorable to Smith and that
those statements were not disclosed to him.

Id.

Thus, the sole

question before the U.S. Supreme Court was whether Boatner's
statements were material to the determination of Smith's guilt.
Id.

The Supreme Court answered in the affirmative, reasoning that

while "evidence impeaching an eyewitness may not be material if the
State's other evidence is strong enough to sustain confidence in

26

the verdict...[t]hat is not the case here[, where] Boatner's
testimony was the only evidence linking Smith to the crime[; a]nd
Boatner's

undisclosed

statements

directly

contradict

his

testimony." Id. (noting that, with respect to the State's argument
that Boatner also made statements on the night of the murder that
he could identify the first gunman, "[t]hat merely leaves us to
speculate about which of Boatner's contradictory declarations the
jury would have believed").
There is no dispute that the State must turn over evidence
that is favorable to the defense and material to the defendant's
guilt.

But

Thurman

disputes,

incorrectly,

whether

constitutional obligation applies to him as a police officer.
clearly does.

this
It

In 1988, in Geter v. Fortenberry, the Fifth Circuit

held that "a police officer cannot avail himself of a qualified
defense if he...deliberately conceals exculpatory evidence, for
such

activity

violates

clearly

established

constitutional

principles." 849 F.2d 1550, 1559 (5th Cir. 1988) (Geter I). Eleven
years later, the Fifth Circuit noted:
We summarily reject Hale's alternative legal argument
that the law was not "clearly established" because
this court did not extend the Brady obligation to
police officers until 1988, two years after Burge's
first trial, in Geter v. Fortenberry, 849 F.2d 1550
(5th Cir. 1988). Twenty-one years before Geter, this
court declared that suborning perjury and concealing
exculpatory
evidence
by
police
officers
were
constitutional violations. See Luna v. Beto, 391 F.2d
329, 332 (5th Cir. 1967).
Burge v. Parish of St. Tammany, 187 F.3d 452, 480 n.11 (5th Cir.
27

1999).9

9

See also Hernandez v. Terrones, 397 Fed.Appx. 954, 971
(5th Cir. 2010)(unpublished, per curiam), in which the U.S. Court
of Appeals for the Fifth Circuit observed:
Defendants argue that in 1994, Brady did not
extend to police officers. They cite Mowbray
v. Cameron Cnty., 274 F.3d 269 (5th Cir. 2001),
in support of their position.
In Mowbray,
officers
failed
to
provide
exculpatory
evidence to the defendant's counsel. Although
this Court observed that "our research
reveals, no case extending Brady to police
officers...," we also stated that "Mowbray
does not allege, nor do the facts support a
finding that [the officers] elicited false
evidence
and
deliberately
concealed
exculpatory
evidence
from
all
parties,
including the prosecution."
Mowbray then
cited Geter v. Fortenberry, 849 F.2d 1550 (5th
Cir. 1988)(Geter I), which in turn cited
Brady, and held "that a police officer cannot
avail himself of a qualified immunity defense
if he ... deliberately conceals exculpatory
evidence, for such activity violates clearly
established constitutional rights."
Geter,
849 F.2d at 1559. Based on the foregoing, it
was clearly established law in 1994 that Brady
applied to police officers on facts such as
those presented in this case.
And, finally, see Bibbens v. City of Baton Rouge, 489 F. Supp. 2d
562, 573 (M.D. La. 2007):
The court agrees with Bibbens...that his Brady
claim-"withholding of evidence"-can survive
summary judgment.
The Fifth Circuit has
repeatedly recognized the existence of a §
1983 cause of action for a police officer's
suppression of material exculpatory evidence.
Mowbray v. Cameron County, Tex., 274 F.3d 269,
278 (5th Cir. 2001); Sanders v. English, 950
F.2d 1152, 1162 (5th Cir. 1992)(finding a
police officer's "deliberate failure to
disclose ... patently exculpatory evidence to
the prosecuting attorney's office plainly
28

Given these authorities, in 1996 and 1997 when Detective
Thurman led the investigation into Michelle Gallagher's murder, it
was clearly established that a police officer violates clearly
established constitutional rights when he conceals exculpatory
evidence, including when he fails to disclose such evidence to the
prosecuting

attorney's

office.

Because

the

plaintiff

has

identified a genuine dispute as to a material fact regarding
whether Thurman failed to disclose a pre-trial witness statement
(the noon statement), Thurman is not entitled to summary judgment
on qualified immunity.

See Burge, 187 F.3d at 479-80.

(b) Due Process and Manufacturing/Concealing Evidence
Detective Thuman next contends that Williams' claim that
Thurman coerced Landry's pretrial statements in violation of the
Fourteenth Amendment must fail.

It is unclear whether Thurman

attempts to invoke the defense of qualified immunity for the
plaintiff's concealment and manufacturing of evidence claims. Even
assuming he does, the plaintiff has established a genuine issue of
material fact regarding Thurman's concealment and manufacturing of
evidence, and Thurman had a clearly established constitutional duty
to refrain from concealing and manufacturing evidence such that

exposes him to liability under § 1983");
Geter, 849 F.2d at 1559 (holding that a police
officer is liable under § 1983 if he
"deliberately conceals exculpatory evidence,
for such activity violates clearly established
constitutional principles").
29

summary relief in his favor on these issues is inappropriate.10
In identifying a genuine dispute as to a material fact
concerning whether Thurman violated Williams' due process right to
be free from false or fabricated evidence, Williams contends that
a genuine issue of material fact exists regarding whether Thurman
coerced Landry into providing false testimony by threatening him.
The Court finds that Williams has indeed identified a genuine
dispute of material fact with respect to whether Thurman violated
Williams' due process right to be free from false or fabricated
evidence: on the one hand, Thurman submits his affidavit stating
that he did not induce Landry to make any false statements; on the
other hand, Landry's recanting affidavit contradicts Thurman's
submission.

Indeed, Landry stated that the police threatened to

charge him with Gallagher's murder unless he inculpated Williams
and that he was scared that the police would "do something" to his
girlfriend if he did not tell them what they wanted to hear.
factual

controversy

precludes

summary

judgment

to

the

This

extent

Thurman seeks judgment as a matter of law on the issue of his
immunity.
Moreover, there is no dispute as to whether manufacturing
evidence violates a clearly established constitutional right.

10

In

The Court does not pretend to recite and resolve any and
all issues of alleged misconduct by Detective Thurman; it was his
duty in presenting a summary judgment motion to seek specific
relief. The Court merely resolves those issues fairly raised by
the parties.
30

fact, manufacturing evidence is a clear violation of the Due
Process Clause.

Castellano v. Fragozo, 352 F.3d 939, 955 (5th Cir.

2003)(en banc)("[A] state's manufacturing of evidence and knowing
use of that evidence along with perjured testimony to obtain a
wrongful conviction deprives a defendant of his long recognized
right to a fair trial secured by the Due Process Clause"); Good v.
Curtis, 601 F.3d 393, 401 (5th Cir. 2010)("[K]nowing efforts to
secure a false identification by fabricating evidence or otherwise
unlawfully influencing witnesses constitutes a violation of the due
process rights secured by the Fourteenth Amendment."); Young v.
Biggers, 938 F.2d 565, 570 (5th Cir. 1991).

Here, there remains a

genuine factual dispute concerning whether Thurman coerced Landry
to lie; such presumptive conduct violated law that has been clearly
established since before Williams' underlying criminal trial: the
Fifth Circuit has recognized that "the right of criminal defendants
to be free from false or fabricated evidence was well settled by
1959 or earlier."
2008).

Brown v. Miller, 519 F.3d 231, 237 (5th Cir.

In short, if a factual controversy persists regarding

whether a police officer "fram[es] someone for a crime he did not
commit", see Young, 938 F.2d at 570 (internal quotations omitted),
the officer is not entitled to summary judgment on qualified
immunity.
However, with respect to Williams' second submitted factual
dispute concerning whether Thurman provided misleading testimony at

31

trial, the Court notes that Thurman appears to be shielded by a
different sort of immunity: the absolute immunity of a trial
witness sued under § 1983 -- an immunity that applies equally to
police-officer witnesses.

See Rehberg v. Paulk, 132 S.Ct. 1497,

1505-07 (2012)(noting that the Supreme Court in Briscoe v. LaHue,
460 U.S. 325 (1983), in extending absolute immunity to police
officer witnesses, "rebuffed two arguments for distinguishing
between law enforcement witnesses and lay witnesses for immunity
purposes").11

2.
Of course "municipalities have no immunity from damages
liability flowing from their constitutional violations."

Owen v.

City of Independence, 445 U.S. 622, 657 (1980). Municipalities are
“persons” within the meaning of § 1983 and may be liable under this
section if the governmental body itself subjects a person to, or

11

Thurman makes no argument on this point.
Thurman's
false testimony at trial is simply an argument that the plaintiff
raised in opposition to Thurman's suggestion that any argument that
Landry's pretrial statements were coerced "is not before the
Court."
In the event the Court was inclined to grant Thurman's
motion, Williams alternatively requests discovery pursuant to
Federal Rule of Civil Procedure 56(d) to examine the circumstances
of the noon statement, its preservation, why the statement was not
transcribed like the 3 p.m. statement. The Court finds that, even
if material facts did not preclude summary judgment on the
qualified immunity defense, the plaintiff has demonstrated
entitlement to discovery pursuant to his amply-supported Rule 56(d)
request.
32

causes a person to be subjected to, a deprivation of rights.
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978).

“[A]

local government may not be sued under § 1983 for an injury
inflicted solely by its employees or agents.

Instead, it is when

execution of a government’s policy or custom ... inflicts the
injury that the government as an entity is responsible under §
1983.”

Id. at 694.
The Fifth Circuit has held that a suit against a sheriff in

his official capacity is a suit against the Parish in which he
sits.

See Jacobs v. W. Feliciana Sheriff's Dep't, 228 F.3d 388,

392 (5th Cir. 2000); see also Corley v. Prator, 290 Fed.Appx. 749,
752 (5th Cir. Aug. 25, 2008)(suit against sheriff in his official
capacity "must be treated as suit against the municipality").
Thus, the plaintiff's official capacity claim against Sheriff
Normand is treated as a suit against Jefferson Parish.12

Sheriff

Normand makes but one argument in support of his request for
summary relief on the plaintiff's Monell claim against Jefferson
Parish:

in a footnote, Normand contends that Williams "has wholly

failed to allege or show an underlying constitutional violation."
Curiously, he does not elaborate or invoke any case literature that

12

The
plaintiff's
allegations
concerning
the
unconstitutional policy, custom, or practice and deliberate
indifference with respect to the discharge of Jefferson Parish's
Brady obligations and obligations to refrain from manufacturing
evidence are contained in paragraphs 144 through
152 of the
plaintiff's amended complaint.
33

might support the conclusory argument he advances.

Quite clearly,

this falls short of carrying the summary judgment burden.
III.
Pursuant to Rule 72(a) and 28 U.S.C. § 636(b)(1)(A), Williams
requests that the Court set aside Magistrate Judge Knowles' October
30, 2013 Order, in which he denied the plaintiff's motion to compel
discovery from Grey Thurman and Newell Normand pending resolution
fo their motion for summary judgment.
A

magistrate

judge

is

afforded

broad

discretion

in

the

resolution of non-dispositive motions. See Fed.R.Civ.P. 72(a); see
also 28 U.S.C. § 636(b)(1)(A).

If a party objects to a magistrate

judge’s ruling on a non-dispositive matter, the Court will disturb
a magistrate’s ruling only when the ruling is “ clearly erroneous
or is contrary to law.”

See Fed.R.Civ.P. 72(a); see also Castillo

v. Frank, 70 F.3d 382, 385 (5th Cir. 1995); Perles v. Kagy, 394 F.
Supp. 2d 68, 70 n.6

(D. D.C. 2005) (agreeing with other district

courts’ application of clearly erroneous standard to magistrate
judge’s denial of a motion to intervene).
Magistrate Judge Knowles denied the plaintiff's motion to
compel discovery from Grey Thurman and Newell Normand pending
resolution of their motion for summary judgment.

In light of the

fact that this Court has now resolved the defendants' motion for
summary judgment, it appears that the plaintiff's request that the
Court set aside the order denying the motion to compel pending

34

resolution

of

the

motion

for

summary

judgment

is

now

moot.

Nevertheless, the Court considers the merits of the plaintiff's
motion.
First, Williams contends that because Sheriff Normand cannot
assert the defense of qualified immunity, there was no basis to
stay discovery against him.

The Court agrees and finds that the

magistrate judge's ruling as to discovery directed toward Normand
was clearly erroneous. Because, as noted above, qualified immunity
does

not

extend

to

state

officials

sued

in

their

official

capacities, Williams was and is entitled to conduct discovery to
pursue his Monell claim against Normand and Jefferson Parish.
Second, Williams contends that Detective Thurman's assertion
of qualified immunity turns on contested factual issues and that
Williams is entitled to discovery at least on these factual issues.
Again, the Court agrees.

However, because the Court has resolved

Thurman's request for qualified immunity in favor the plaintiff,
the summary judgment motion is no longer pending and there is no
longer any impediment to a ruling by Magistrate Judge Knowles on
the issue of the plaintiff's motion to compel discovery from
Detective Thurman.
Accordingly, IT IS ORDERED: that the defendants' motion for
summary judgment is DENIED. With respect to the plaintiff's motion
to set aside the magistrate judge's order denying his motion to
compel discovery, to the extent that the request is not moot, IT IS

35

ORDERED: that the motion is GRANTED.

New Orleans, Louisiana, January 15, 2014
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

36