Morgan v. Connick et al

Filing 92

ORDER AND REASONS - IT IS ORDERED that Defendant Wayne Tamborella's Motion for Certificate of Appealability (Rec. Doc. 64 ) and Motion for Reconsideration (Rec. Doc. 67 ); and Defendant Leon Cannizzaro's Motion for Leave to Appeal (Rec. Doc. 65 ) and Motion for Reconsideration (Rec. Doc. 66 ) are DENIED, as set forth in document. Signed by Judge Jane Triche Milazzo on 8/28/2018. (sa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JEROME MORGAN

CIVIL ACTION

VERSUS

NO: 17-5319

HARRY CONNICK ET AL

SECTION "H"

ORDER AND REASONS
Before the Court are Defendant Wayne Tamborella’s Motion for
Certificate of Appealability (Doc. 64) and Motion for Reconsideration (Doc. 67);
and Defendant Leon Cannizzaro’s Motion for Leave to Appeal (Doc. 65) and
Motion for Reconsideration (Doc. 66). For the following reasons, the Motions
are DENIED.
BACKGROUND
Plaintiff Jerome Morgan brings claims under 42 U.S.C. § 1983 for
damages caused by his wrongful conviction and 20-year incarceration on
murder charges. Defendants are the Orleans Parish District Attorney Leon A.
Cannizzaro, Jr. in his official capacity and Detective Wayne Tamborella in his
1

personal capacity. Plaintiff’s conviction was vacated for Brady and due process
violations on January 24, 2014. Thereafter, the District Attorney continued to
pursue conviction and re-trial of the charges against him. The charges were
ultimately dismissed on May 27, 2016. Plaintiff brought this action on May 26,
2017.
Defendants Cannizzaro and Tamborella each filed a Motion to Dismiss
arguing, among other things, that Plaintiff’s claims are barred by prescription.
Specifically, Defendants alleged that the statute of limitations for Plaintiff’s §
1983 claim began to run when his conviction was vacated, and it was therefore
untimely when it was filed. At oral argument on these motions, this Court gave
reasons on the record denying Defendants’ motions and holding that Plaintiff’s
claim had not prescribed. Defendants now each file separate Motions for
Reconsideration and Motions for Leave to Appeal that decision.
LEGAL STANDARD
A. Motion for Reconsideration
Federal Rule of Civil Procedure 54(b) states that, “[A]ny order or other
decision, however designated, that adjudicates fewer than all the claims or the
rights and liabilities of fewer than all the parties does not end the action as to
any of the claims or parties and may be revised at any time before the entry of
a judgment adjudicating all the claims and all the parties’ rights and
liabilities.” “Under Rule 54(b), ‘the trial court is free to reconsider and reverse
its decision for any reason it deems sufficient, even in the absence of new

2

evidence or an intervening change in or clarification of the substantive law.’” 1
“‘[T]he power to reconsider or modify interlocutory rulings is committed to the
discretion of the district court, and that discretion is not cabined by the
heightened standards for reconsideration’ governing final orders.’” 2
B. Motion for Leave to Appeal
Pursuant to 28 U.S.C. § 1292, a court can allow for interlocutory appeal
of orders without directing entry of a final judgment on the order.

For an

interlocutory order to be appealable pursuant § 1292(b), three conditions must
be satisfied. The trial judge must certify in writing that the order: (1) involves
a controlling question of law, (2) substantial ground for difference of opinion
on that question of law exists, and (3) immediate appeal from the order may
“materially advance the ultimate termination of [the] litigation.” 3 The moving
party carries the burden of showing the necessity of interlocutory appeal. 4
Interlocutory appeals are “exceptional” and should not be granted “simply to
determine the correctness of a judgment.” 5

Austin v. Kroger Texas, L.P., No. 16-10502, 2017 WL 1379453, at *9 (5th Cir. 2017)
(quoting Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 185 (5th Cir. 1990)).
2 Id. (quoting Saint Annes Dev. Co. v. Trabich, 443 Fed. Appx. 829, 831–32 (4th Cir.
2011)).
3 28 U.S.C. § 1292.
4 Chauvin v. State Farm Mut. Auto. Ins. Co., Nos. 06-7145, 06-8769, 2007 WL
4365387, at *2 (E.D. La. Dec. 11, 2007).
5 Id. (quoting Clark-Dietz & Assocs.-Eng’rs, Inc. v. Basic Constr. Co., 702 F.2d 67, 68–
69 (5th Cir. 1983)).
3
1

LAW AND ANALYSIS
A. Motions for Reconsideration
The question before the Court on Defendants’ Motions to Dismiss was
whether prescription began to run on Plaintiff’s § 1983 claim for Brady
violations when his conviction was vacated or when prosecutors dismissed the
charges against him. In a consolidated oral argument in this case and a matter
raising identical issues, the Court gave the following reasons on the record:
As the parties know, the 1983 statute provides no federal
statute of limitations, and so the courts have directed the courts to
look to the statute of limitations provided in state law. However,
the accrual date for determination of the commencement of that
statute is governed by federal law conforming to common law
principles. And this is Wallace v. Kato, which provides that accrual
occurs when the plaintiff has a complete and present cause of
action.
Clearly Louisiana has a one year statute of limitation; the
only question before this Court, in both of the cases, is the date in
which the statute accrued. This Court believes that we are directed
to look to the question as to what is the most analogous common
law tort. In this case, and in virtually all of the cases that this
Court has read, is that that is the malicious prosecution. The
courts look to malicious prosecution.
In Louisiana, in order to show a valid malicious prosecution
claim, there are six factors that must be presented: First, a
commencement or continuance of an original criminal judicial
proceeding; two, its legal causation by the present defendant in the
original proceeding; third, a bona fide termination; four, the
absence of probable cause for the proceeding; five, the presence of
malice therein; and six, damages.
The Supreme Court, Louisiana Supreme Court just in 2015
in Lemoine v. Wolfe said: A cause of action does not accrue until a
bona fide termination and a nolle prossed [prosequi] constitutes a
bona fide termination. The Court also looks to the Fifth Circuit
case of Brandley v. Keeshan for that. Accordingly, in both of the
4

cases, that is in Morgan v. Cannizzaro, Action No. 17-05319 and
Jones v. Cannizzaro, 18-503, the Court finds that the cases have
not prescribed and may proceed.
Defendants argue that this Court committed manifest error in looking to state
law to determine when Plaintiff’s claim accrued. Defendants correctly point out
that “the accrual date of a § 1983 cause of action is a question of federal law
that is not resolved by reference to state law” and that “[a]spects of § 1983
which are not governed by reference to state law are governed by federal rules
conforming in general to common-law tort principles.” 6 Defendants have not,
however, shown how the common law principles of the accrual of a malicious
prosecution claim differ from the state law accrual principles cited by this
Court. Indeed, the Fifth Circuit has stated that, “[A] malicious prosecution
claim only accrues once the criminal charges are dismissed.” 7 Defendants
instead rehash arguments already considered and rejected by this Court.
Accordingly, this Court declines Defendant’s invitation to reconsider its
holding.
B. Motion for Leave to Appeal
Defendants next ask this Court to certify its denial of their Motions to
Dismiss on prescription grounds for immediate appeal pursuant to 28 U.S.C. §
1292. In order to do so, the Court must certify that the appeal (1) involves a
controlling question of law, (2) substantial ground for difference of opinion on
that question of law exists, and (3) immediate appeal from the order may
“materially advance the ultimate termination of [the] litigation.” 8
Wallace v. Kato, 549 U.S. 384, 388 (2007).
Aly v. City of Lake Jackson, 453 F. App’x 538, 539 (5th Cir. 2011).
8 28 U.S.C. § 1292.
5
6
7

Defendants’ request for certification fails the second prong of this test.
In support of their argument that there is substantial ground for difference of
opinion, Defendants cite to a decision by the Eighth Circuit rejecting the
finding reached by this Court, as well as a Fifth Circuit decision that has been
vacated. This Court and the Fifth Circuit are bound by the decisions of the
Supreme Court and earlier panels of the Fifth Circuit. Even if other circuits
may come to a different conclusion, there is no substantial ground for
difference of opinion here.
The Supreme Court has expressly held that the accrual date of a § 1983
claim are governed by federal rules conforming to common-law tort principles
and occurs when the plaintiff has a complete and present cause of action. 9 “It
is necessary, then, to first determine the common law ‘tort [that] provides the
proper analogy to the cause of action asserted.’” 10 The Supreme Court has held
that “[t]he common-law cause of action for malicious prosecution provides the
closest analogy to claims” arising out of the failure to disclose exculpatory
evidence. 11 It has further held that “a cause of action for malicious prosecution
does not accrue until the criminal proceedings have terminated in the
plaintiff’s favor.” 12 Accordingly, this Court’s decision was governed by Supreme
Court precedent, and there is no substantial ground for disagreement such that
an interlocutory appeal is warranted.

Wallace, 549 U.S. at 388 (2007).
Aly, 453 F. App’x at 539 (quoting Wallace, 549 U.S. at 388).
11 Heck v. Humphrey, 512 U.S. 477, 484 (1994).
12 Id.
6
9

10

CONCLUSION
For the foregoing reasons, Defendants’ Motions are DENIED.
New Orleans, Louisiana this 28th day of August, 2018.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

7