Adams v. City of New Orleans, et al, No. 2:2015cv01543 - Document 130 (E.D. La. 2016)
Court Description: ORDER AND REASONS granting in part and denying in part 74 Motion to Dismiss for Failure to State a Claim, as per herein. Signed by Judge Susie Morgan on 8/12/16. (cg)
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Adams v. City of New Orleans, et al Doc. 130 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A REGIN ALD AD AMS, Plain tiff CIVIL ACTION VERSU S N O. 15-154 3 CITY OF N EW ORLEAN S, ET AL., D e fe n d an ts SECTION : “E” ( 3 ) ORD ER AN D REAS ON S Before the Court is a m otion to dism iss filed by Defendant Ronald Bodenheim er. 1 For the reasons that follow, Defendant’s m otion is GRAN TED IN PART and D EN IED IN PART. BACKGROU N D 2 This case arises from the wrongful conviction and im prisonm ent of Plaintiff Reginald Adam s for the m urder of Cathy Ulfers. On October 7, 1979, Cathy Ulfers, the wife of a form er police officer with the New Orleans Police Departm ent (“NOPD”), was shot seven tim es at her hom e. 3 Defendants Martin Venezia and Sam Gebbia, detectives with the New Orleans Police Departm ent (“NOPD”), were assigned to investigate the Ulfers m urder. 4 On August 4, 1980 , Detective Venezia of the NOPD and Frank Ruiz, a detective em ployed by the NOPD and/ or an investigator em ployed by or acting as agent of the Orleans Parish District Attorney’s office, launched a “join t investigation” into the m urder. 5 1 R. Doc. 74. The followin g facts derive from Adam s’ am ended com plaint. R. Doc. 71. 3 R. Doc. 71 at ¶ 36. 4 Id. at ¶ 37. 5 R. Doc. 71 at ¶ 79. 2 1 Dockets.Justia.com On J une 20 , 1980 , the Seafood City restaurant in New Orleans was robbed. 6 Defendants Frank Ruiz an d J erry Ursin, detectives em ployed by the NOPD an d/ or investigators em ployed by or acting as agent of the Orleans Parish District Attorney’s office, 7 were assigned to investigate the burglary. 8 On J uly 31, 1980 , Adam s was arrested in connection with the Seafood City burglary. 9 On Septem ber 19, 1980 , Ursin, Ruiz, and Venezia questioned Adam s “for several hours late into the evening of the 19th and into the early m orning of the 20 th” without Adam s’ counsel present. 10 Adam s alleges that Detectives Venezia an d Ruiz began asking Adam s about the Seafood City burglary around 11:30 p.m . on Septem ber 19, 198 0 . 11 Around 1:0 0 a.m . on Septem ber 20 , Detective Ruiz, in the presence of Detective Venezia, gave Adam s at least two valium pills. 12 The detectives then began questioning Adam s about the Ulfers m urder. 13 Although Adam s said he knew nothing about the m urder, Detective Venezia repeatedly suggested Adam s was involved in the Ulfers m urder. 14 At around 4:15 a.m . on Septem ber 20 , 1980 , Adam s falsely confessed to m urdering Cathy Ulfers. 15 At approxim ately 6:0 0 a.m ., Detectives Venezia, Ursin and Ruiz transported Adam s to the Ulfers’ hom e an d, along the way, stopped an d purchased beer an d sn acks which they shared with Adam s. 16 6 Id. at ¶ 64. Id. at ¶¶ 30 – 31. 8 Id. 9 Id. at ¶ 77. 10 Id. at ¶¶ 90 – 91. 11 Id. at ¶ 92. 12 Id. at ¶ 96. 13 Id. at ¶ 97. 14 Id. at ¶¶ 98 – 99. 15 Id. at ¶ 10 2. 16 Id. at ¶ 111. 7 2 Around 7:0 0 a.m ., Detectives Venezia, Ursin and Ruiz questioned Adam s in the parking lot of the Orleans Parish Prison an d elicited a second false confession. 17 On October 9, 1980 , Adam s was indicted for first-degree m urder of Ulfers. 18 These charges were the result of a year-long joint investigation by the NOPD, the Orleans Parish Sheriff’s Office and the District Attorney’s office. 19 The District Attorney’s Office is defin ed in the allegations as including Bodenheim er. 20 After a jury trial, prosecuted by Bodenheim er and Harold Gilbert, assistant district attorneys in Orleans Parish, 21 Adam s was convicted for the m urder of Cathy Ulfers in 1983. 22 The Louisiana Suprem e Court reversed that conviction in 1989. 23 In 1990 , the Orleans Parish DA’s office retried Adam s for second-degree m urder of Cathy Ulfers, but Bodenheim er did not prosecute the case, as he was no longer working for the Orleans Parish DA’s Office. 24 The prosecutors in the 1990 retrial, Dan Rowan and Darryl Roberts, were not aware of the exculpatory evidence. 25 The exculpatory evidence was known to ADA Bodenheim er and Detectives Venezia, Gebbia, Ruiz an d Ursin. 26 Prior to the 1990 trial, Rowan and Roberts consulted with Bodenheim er, who failed to inform the new prosecutors of the exculpatory evidence, 27 in particular the first supplem ental police report which was in the Seafood City burglary trial but not in the Cathy Ulfers m urder file. 17 Id. at ¶ 116-117. Id. at ¶ 120 . 19 Id. at ¶119. 20 Id. at ¶ 16. 21 Id. at ¶ 15. 22 Id. at ¶ 139. 23 State v. Adam s, 550 So. 2d 595 (La. 1989). 24 R. Doc. 71 at ¶¶ 33, 222, 228. 25 Id. at ¶ 150 . 26 Id. at ¶ 145-147. 27 Id. at ¶ 151. 18 3 Adam s was again convicted in J uly 1990 and senten ced to life without parole. 28 The secon d conviction was affirm ed on appeal in 1992, and the Louisiana Suprem e Court denied Adam s’ writ in 1994. 29 Adam s was exonerated in 20 14. 30 Following Mr. Adam s’s release, the DA’s Office issued a press release stating that Defendant Bodenheim er and ADA Gilbert “were fully aware of the additional suspects as well as the recovery of the m urder weapon and other physical evidence and that their handling of the case am ounts to intentional prosecutorial m isconduct.”31 On May 5, 20 15, Adam s filed this suit against Venezia, Gebbia, Ruiz, Ursin, and Bodenheim er in their individual capacities; current Orleans Parish District Attorney Leon Cannizzaro, J r. in his official capacity; and the City of New Orleans. 32 On Decem ber 14, 20 15, Bodenheim er filed a m otion to dism iss, arguing he is entitled to absolute im m unity with respect to each cause of action asserted again st him . 33 Adam s filed a response in opposition on J anuary 15, 20 16. 34 The Court held oral argum ent on February 26, 20 16. 35 STAN D ARD OF LAW When deciding a m otion to dism iss, the Court accepts all well-pleaded facts as true and views those facts in the light m ost favorable to the plaintiff. 36 The Court m ay consider only the pleadings, the docum ents attached to or incorporated by reference in the plaintiff’s com plaint, the facts of which judicial notice m ay be taken, m atters of public 28 Id. at ¶ 149. Id. 30 Id. at ¶ 84. 31 Id. at ¶ 19. 32 R. Doc. 1. Adam s filed an am ended com plaint on Novem ber 12, 20 15. R. Doc. 71. 33 R. Doc. 74. 34 R. Doc. 83. 35 See R. Doc. 97. 36 W hitley v. Hanna, 726 F.3d 631, 637 (5th Cir. 20 13), cert. denied, 134 S. Ct. 1935, 188 (20 14). 29 4 record, 37 and docum ents attached to a m otion to dism iss “when the docum ents are referred to in the pleadings and are central to a plaintiff’s claim s.”38 If the Court accepts m aterials outside of the pleadings that do not fit within these param eters, the Court m ust treat the Rule 12(b)(6) m otion as a m otion for sum m ary judgm ent pursuant to Rule 56. 39 For the com plaint to survive a m otion to dism iss, the facts taken as true m ust state a claim that is plausible on its face. 40 A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the m isconduct alleged.”41 “The plausibility standard is not akin to a probability requirem ent, but it asks for m ore than a sheer possibility that a defendant has acted unlawfully.”42 A com plaint is insufficient if it contains “only labels and conclusions, or a form ulaic recitation of the elem ents of a cause of action.”43 The Court cannot grant a m otion to dism iss under Rule 12(b)(6) “unless the plaintiff would not be entitled to relief under any set of facts that he could prove consistent with the com plaint.”44 AN ALYSIS Adam s sues Bodenheim er in his individual capacity 45 and brings the following claim s against him : 1. Count 2 Brady violation under § 1983: Boden heim er knowingly and intentionally concealed exculpatory evidence before the 1990 retrial of Adam s for the m urder of Ulfers; 37 See U.S. ex rel. W illard v. H um ana Health Plan of Texas Inc., 336 F.3d 375, 379 (5th Cir. 20 0 3); Lovelace v. Softw are Spectrum Inc., 78 F.3d 10 15, 10 17– 18 (5th Cir. 1996); Baker v . Putn al, 75 F.3d 190 , 196 (5th Cir. 1996). 38 Brand Coupon N etw ork, L.L.C. v . Catalina Marketing Corp., 748 F.3d 631, 635 (5th Cir. 20 14). 39 F ED . R. CIV. P. 12(d). 40 Brand, 748 F.3d at 637– 38 . 41 Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9). 42 Culbertson v. Ly kos, 790 F.3d 60 8, 616 (5th Cir. 20 15) (citation om itted) (internal quotation m arks om itted). 43 W hitley , 726 F.3d at 638 (citation om itted) (internal quotation m arks om itted). 44 Johnson v. Johnson, 385 F.3d 50 3, 529 (5th Cir. 20 0 4). 45 R. Doc. 71 at ¶ 33. 5 2. Count 4 Manufactured evidence under § 1983: Bodenheim er conspired with the NOPD defendants to fabricate probable cause and elicit a coerced and false confession from Adam s regarding the Ulfers m urder; 3. Count 5 Conspiracy under § 1983: Boden heim er conspired with others to intentionally, m aliciously, and with reckless disregard and deliberate indifference violate Adam s’ right to due process and a fair trial under the U.S. and Louisiana constitutions; 4. Count 9 Malicious prosecution under state law: Bodenheim er m aliciously prosecuted Adam s for the m urder of Cathy Ulfers despite knowing the case was based on a dem onstrably false confession and despite having in his possession exculpatory evidence; and 5. Count 10 Intentional infliction and/ or negligent infliction of em otional distress under state law: Bodenheim er intentionally, m aliciously, and with reckless disregard and deliberate indifference to Adam s’ rights engaged in extrem e and outrageous conduct in connection with the investigation and prosecution of Adam s. 46 Bodenheim er argues he is entitled to absolute im m unity on each of Adam s’ claim s against him . 47 I. § 1983 Claim s and Absolute Im m unity To state a claim under 42 U.S.C. § 1983, “a plaintiff m ust first show a violation of the Constitution or of federal law, and then show that the violation was com m itted by som eone acting under color of state law.”48 Adam s alleges that Boden heim er violated his Fourteenth and Sixth Am endm ent rights to due process of law and a fair trial. Prosecutors enjoy absolute im m unity from liability in suits brought under § 198 3 “for those activities ‘intim ately associated with the judicial phase of the crim inal process.’”49 The official seeking absolute im m unity bears the burden of showing that absolute im m unity is justified for the function in question. 50 Absolute im m unity “does 46 R. Doc. 71. R. Doc. 74. 48 Atteberry v . N ocona Gen. Hosp., 430 F.3d 245, 252– 53 (5th Cir. 20 0 5). 49 Kerr v. Ly ford, 171 F.3d 330 , 336 (5th Cir. 1999) (quoting Im bler v. Pachtm an, 424 U.S. 40 9, 430 (1976)). 50 Buckley v. Fitzsim m ons, 50 9 U.S. 259, 269 (1993). 47 6 not extend beyond its scope that existed at com m on law in 1871, when § 1983 was enacted, nor does it persist unless the policy behind the com m on-law rule is still applicable.”51 Even when there is a com m on-law tradition of absolute im m unity for a given function, courts consider “whether § 1983’s history or purposes nonetheless counsel against recognizing the sam e im m unity in § 1983 actions.”52 “Not surprisingly, [courts] have been ‘quite sparing’ in recognizing absolute im m unity for state actors in this context.”53 “[T]he absolute im m unity that protects the prosecutor’s role as an advocate is not grounded in any special esteem for those who perform these functions, and certainly not from a desire to shield abuses of office, but because any lesser degree of im m unity could im pair the judicial process itself.”54 Thus, when determ in ing whether absolute im m unity applies, courts exam ine “‘the nature of the function perform ed, not the identity of the actor who perform ed it.’”55 A. Count 2: Brady Violation Bodenheim er argues he is entitled to absolute im m unity on Adam s’ § 1983 claim that Bodenheim er knowingly and intentionally concealed exculpatory eviden ce from the prosecutors assigned to the 1990 trial of Adam s for the m urder of Ulfers. 56 Bodenheim er’s only argum ent in support of his contention that he is entitled to absolute im m unity on 51 Lam pton v. Diaz, 639 F.3d 223, 226 (5th Cir. 20 11). Buckley , 50 9 U.S. at 269. 53 Id. (quotin g Forrester v . W hite, 484 U.S. 219, 224 (198 8)). 54 Kalina v. Fletcher, 522 U.S. 118, 127 (1997) (internal quotation m arks om itted). 55 Id. (quotin g Forrester v . W hite, 484 U.S. 219, 229 (198 8)). 56 R. Doc. 74-1 at 6– 7. Bodenheim er notes “[a]t the onset” that Adam s “has previously conceded Bodenheim er’s absolute im m unity for his alleged failure to disclose exculpatory evidence to the defense . . . .” Id. at 6 n .1. Adam s previously conceded that Bodenheim er “is likely entitled to absolute im m un ity for his failure to dispose exculpatory eviden ce to the defense” and Adam s agreed to dism iss his Brady claim against Boden heim er. See R. Doc. 52 at 6 n.11. Adam s also stated, however, that, “[s]hould Mr. Adam s becom e aware of facts to support [a Brady ] allegation, he intends to seek leave to am end his Com plaint accordingly.” Id. Adam s subsequently filed an am ended com plaint and realleged a Brady claim against Boden heim er, noting that “[i]n 1990 , when Defendant Bodenheim er concealed this exculpatory inform ation from [the] ADAs . . . , Defendant Boden heim er was no lon ger em ployed by the DA’s office.” R. Doc. 71 at ¶ 228; see generally R. Doc. 71 at ¶¶ 221– 31. 52 7 Adam s’ Brady claim is the following: “The allegations set forth in ¶’s 221– 231 [of Adam s’ am ended com plaint 57] allege a Brady violation while Bodenheim er was perform ing a prosecutorial function as Assistant District Attorney. As such, he enjoys absolute im m unity and the Brady violation . . . should be dism issed by Order of this Honorable Court. 58 Bodenheim er’s argum ent focuses on Brady violations during the 198 3 trial of Adam s, when Bodenheim er was the prosecutor and entitled to absolute im m unity, but Count 2 is directed at Bodenheim er’s Brady violations in connection with the retrial in 1990 . Adam s alleges there were two supplem ental police reports containing exculpatory inform ation that were never disclosed to the defense. 59 The first supplem ental report, detailing the investigation of the Ulfers murder, was located in the DA’s office file for the Seafood City burglary, but not in the Ulfers m urder file. 60 Adam s alleges Bodenheim er was aware of the exculpatory inform ation contained in the first supplem ental report but did not disclose it to the prosecutors assigned to the 1990 m urder trial. 61 The second supplem ental report also contained exculpatory inform ation regarding the investigation. Copies of the second supplem ental report were located in the DA’s Office files for both the Seafood City burglary and the Ulfers m urder. 62 Adam s alleges these are the two reports deliberately withheld from Adam s and his counsel. Adam s alleges Bodenheim er, who had access to and was fam iliar with the files for both the Seafood City burglary and the Ulfers m urder, had knowledge of the exculpatory 57 R. Doc. 71. R. Doc. 74-1 at 7. 59 R. Doc. 71 at ¶ 123– 28. 60 Id. at ¶ 124. 61 Id. 62 Id. at ¶ 128. 58 8 eviden ce, including eviden ce im plicating Cathy Ulfers’ husband in her m urder, inform ation tracing the gun connected to the crim e to individuals with no connection to Adam s, and ballistics testing confirm ing that the gun was the weapon used in the m urder. 63 Adam s alleges that when the prosecutors in the 1990 Ulfers m urder trial consulted with Boden heim er, he concealed the exculpatory inform ation of which he was aware. 64 When the prosecutors in the 1990 murder trial consulted with Bodenheim er, seven years after Adam s was convicted, Bodenheim er had no involvem ent with the case, as an advocate or otherwise. Indeed, he left the Orleans Parish DA’s Office in 1984, 65 and there is no allegation or evidence suggesting Bodenheim er had any prosecutorial or advocacy function with respect to Adam s after the 1983 conviction. 66 Prosecutorial im m unity does not extend to a defendant’s conduct after he is no longer em ployed as a prosecutor and is no longer acting as an advocate for the state. 67 “[W]here the role as advocate . . . has concluded, absolute im m unity does not apply.”68 Accordingly, Bodenheim er is not entitled to absolute im m unity for the alleged suppression of Brady m aterial when discussing the case with the prosecutors assigned to the 1990 Ulfers m urder trial. The m otion to dism iss Count 2 is den ied. 63 R. Doc. 71 at ¶ 142, 145. Id. at ¶ 150 – 51. 65 R. Doc. 71 at ¶ 228. Boden heim er left the Orleans Parish DA’s Office in 198 4 an d was working for the J efferson Parish DA’s Office when the assistant district attorneys assigned to the second m urder trial consulted him . See id. at ¶ 33. 66 Boden heim er was not the prosecutor assign ed to Adam s’ appeal of his first conviction . See State v. Adam s, 537 So. 2d 1262, 1263 (La. Ct. App. 1989); State v. Adam s, 550 So. 2d 595 (La. 1989). 67 See Douglas v. Miller, 864 F. Supp. 2d 120 5, 1216 (W.D. Okla. 20 12); Yarris v. Cty . of Delaw are, 465 F.3d 129, 137 (3d Cir. 20 0 6) (“It is well settled that prosecutors are entitled to absolute im m un ity from claim s based on their failure to disclose exculpatory evidence, so long as they did so w hile functioning in their prosecutorial capacity .” (em phasis added)); Houston v. Partee, 978 F.2d 362, 368 (7th Cir. 1992) (declinin g “to extend absolute prosecutorial im m unity from claim s by people whom the prosecutors are no longer prosecutin g”). Cf. Spivey v. Robertson, 197 F.3d 772, 776 (5th Cir. 1999) (fin ding absolute im m un ity applied “[b]ecause the prosecutors were acting as advocates”). 68 Spurlock v. Thom pson, 330 F.3d 791, 799 (6th Cir. 20 0 3). 64 9 B. Count 4: Manufactured Evidence Bodenheim er alleges he is entitled to absolute im m unity on Adam s’ § 1983 claim for m anufacturing of evidence because no allegations were m ade that Bodenheim er participated in the in vestigation, as opposed to the prosecution, of Adam s. 69 Adam s alleges, and there is no dispute, that Boden heim er was the assistant district attorney assigned to the Boden heim er case. 70 Adam s alleges that, beginning in October 1979, the Orleans Parish DA’s Office, including Bodenheim er, and the NOPD conducted a joint investigation into the m urder of Cathy Ulfers. 71 Thus, all the allegations concerning the joint investigation are m ade with respect to Bodenheim er, as well as with respect to the NOPD detectives. Adam s further alleges, “Bodenheim er conspired with the NOPD Defendants in the investigation of Mr. Adam s, which included fabricating probable cause and eliciting a coerced and false confession from Mr. Adam s.”72 Based on these allegations, the Court m ay reasonably infer that Boden heim er is liable for the m iscon duct alleged in Count 4. “[T]he actions of a prosecutor are not absolutely im m une m erely because they are perform ed by a prosecutor.”73 It is well established that “prosecutors are not entitled to absolute im m unity when perform ing ‘acts of investigation or adm in istration.’”74 Indeed, “[w]hen a prosecutor perform s the investigative functions norm ally perform ed by a detective or police officer, it is neither appropriate nor justifiable that, for the sam e act, 69 R. Doc. 74-1 at 7– 9. R. Doc. 71 at ¶ 15. 71 Id. at ¶ 84. Adam s defin es the DA’s office to include Bodenheim er. Id. at ¶ 16. 70 72 Id. at ¶ 244. Buckley , 50 9 U.S. at 273. 74 Lew is v. Mills, 677 F.3d 324, 330 (7th Cir. 20 12) (quoting Buckley , 50 9 U.S. at 270 ). 73 10 im m unity should protect the one and not the other.”75 Moreover, a prosecutor is not an advocate “before he has probable cause to have anyone arrested.”76 Adam s has m ade sufficient factual allegations regarding Boden heim er’s involvem ent in the investigation of the Ulfers m urder to support his claim against Bodenheim er for the m anufacturing of eviden ce. Bodenheim er is not entitled to absolute im m unity with respect to the investigation of the Ulfers m urder. The m otion to dism iss Count 4 is denied. C. Count 5: Conspiracy Adam s alleges Boden heim er conspired with Venezia, Gebbia, Ruiz, Ursin, and others “to intentionally, m aliciously, and, with reckless disregard and deliberate indifference, violate Mr. Adam s’s right to due process and a fair trial.”77 Adam s alleges the defendants, including Bodenheim er, com m itted overt acts in furtherance of the alleged conspiracy, including coercing his confession and m anufacturing evidence again st him , participating in the joint investigation, ignoring suspects, eliciting a coerced and false confession, concealing and suppressing exculpatory evidence at the tim e of the 1990 retrial, and choosing to focus the investigation on Adam s despite the lack of evidence linking him to the Ulfers m urder. 78 To state a claim for conspiracy under § 1983, a plaintiff m ust allege (1) the defendants reached an understanding or agreem ent that they would deny the plaintiff of one of his constitutional rights, and (2) the conspiracy resulted in an actual denial of on e of his constitutional rights. 79 The claim ant m ust state specific facts, not m erely conclusory 75 Kalina, 522 U.S. at 126. See also Genzler v . Longanbach, 410 F.3d 630 , 638 – 39 (9th Cir. 20 0 5). Cousin v. Sm all, 325 F.3d 627, 633 (5th Cir. 20 0 3) (quoting Buckley , 50 9 U.S. at 274). 77 R. Doc. 71 at ¶ 248. 78 Id. at ¶ 251. 79 W eiland v. Palm Beach Cty . Sheriff’s Office, 792 F.3d 1313, 1327 (11th Cir. 20 15); Carr v . Montgom ery County , Tex., 59 F. Supp. 3d 787, 80 5 (S.D. Tex. 20 14); DiLosa v. City of Kenner, No. 0 3-0 310 , 20 0 4 WL 2984342, at *16 (E.D. La. Dec. 16, 20 0 4). 76 11 allegations 80 ; “[p]laintiffs who assert conspiracy claim s un der civil rights statutes m ust plead the operative facts upon which their claim is based.”81 Bodenheim er argues the am en ded com plaint fails to allege an agreem ent am ong the defendants. 82 As a result, Bodenheim er argues, the am ended com plaint does not give rise to a claim for conspiracy for which the Court can grant relief. 83 Adam s alleges the Orleans Parish DA’s Office, including Bodenheim er, and the NOPD conducted a joint investigation of the Ulfers m urder 84 and that Ursin and Ruiz, assigned to investigate the Seafood City burglary, were working with both the NOPD and the DA’s Office, including Boden heim er. 85 Adam s further alleges Bodenheim er conspired with the NOPD Defendants in the investigation of Adam s, including fabricating probable cause and eliciting a coerced and false confession. 86 After Adam s’ conviction was reversed, Adam s alleges, Defendants Bodenheim er, Venezia, Ruiz, and Gebbia had knowledge of but concealed exculpatory evidence from the prosecutors assigned to the second Ulfers m urder trial in 1990 . 87 Adam s has sufficiently alleged operative facts in the am ended com plaint to give rise to a reasonable inference that Bodenheim er conspired with the other defen dants to deprive Adam s of his due process rights and right to a fair trial. 88 80 Hale v. Harney , 786 F.2d 688 , 690 (5th Cir. 1986) (citations om itted) (internal quotation m arks om itted). 81 Young v. Biggers, 938 F.2d 565, 569 (5th Cir. 1991). 82 R. Doc. 74-1 at 9. 83 Id. at 10 . 84 See, e.g., R. Doc. 71 at ¶¶ 36– 53. 85 Id. at 30 – 31. 86 Id. at ¶ 244. 87 See, e.g., R. Doc. 71 at ¶¶ 148, 151– 52,. 88 Mey er v. Foti, 720 F. Supp. 1234, 1243 (E.D. La. 1989) (Parker, C.J .) (“To state a conspiracy claim under the civil rights statutes, plaintiff m ust plead ‘operative facts’ from which one m ay reasonably infer a prior illegal agreem ent.” (quotin g W ay v . Mueller Brass Co., 840 F.2d 30 3, 30 8 (5th Cir. 1988 )). See also W hisenant v. City of Haltom City , 10 6 F. App’x 915, 917 (5th Cir. 20 0 4) (per curiam ); W ashington v. State of La. Dep’t of Public Safety & Corrections, No. 0 4-2314, 20 0 5 WL 711598, (E.D. La. Mar. 22, 20 0 5) (Barbier, J .). 12 Bodenheim er argues he is entitled to absolute im m unity, but when the “underlying activity at issue is covered by absolute im m unity, the ‘plaintiff derives no ben efit from alleging a conspiracy.”’89 The Court, however, has already determ ined that the underlying conduct, regarding m anufactured evidence and suppression of evidence from the prosecutors assigned to the second Ulfers trial, is not protected by absolute im m unity. Accordingly, Bodenheim er is not entitled to absolute im m unity on Adam s’ claim that Bodenheim er conspired to com m it such conduct. The m otion to dism iss Count 5 is denied. II. State-Law Claim s In Knapper v. Connick, the Louisiana Suprem e Court recognized that “prosecutors are entitled to absolute im m unity for conduct within the course and scope of their prosecutorial functions.”90 Absolute im m unity is granted “only in those instances where the function being served is advanced by the extension of im m unity.”91 Therefore, Louisiana courts em ploy a functional analysis to determ ine whether the prosecutor is entitled to absolute imm unity with respect to the alleged m isconduct giving rise to a cause of action. 92 89 Sm ith v. City of N ew Orleans, Dep’t of Police, No. 95-0 821, 1996 WL 39424, at *3 (E.D. La. J an . 30 , 1996) (Vance, J .) (quotin g Pinaud v. County of Suffolk, 52 F.3d 1139, 1148 (2d Cir. 1995)); see also Hollow ay v. W alker, 765 F.2d 517, 522 (5th Cir. 1985) (“It is a well established rule that where a judge’s absolute im m un ity would protect him from liability for the perform ance of particular acts, m ere allegations that he perform ed those acts pursuant to a bribe or conspiracy will not be sufficient to avoid the im m unity.”). 90 Knapper v. Connick, 96-0 434 (La. 10 / 15/ 96), 681 So. 2d 944, 950 . 91 Id. 92 Id. 13 A. Count 9: Malicious Prosecution Bodenheim er argues he is entitled to absolute im m unity on Adam s’ state-law claim for m alicious prosecution because the allegations pertain only to prosecutorial functions. 93 To prevail on a claim for m alicious prosecution under Louisiana law, the plaintiff m ust establish each of the following elem ents: “(1) the com m encem ent or continuance of an origin al crim inal proceeding; (2) its legal causation by the present defendant against a plaintiff who was defendant in the original proceeding; (3) its bona fide term ination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presen ce of m alice therein; (6) dam age conform ing to legal standards resulting to plaintiff.”94 The Louisiana Suprem e Court noted in Kn apper that the “prevailin g view” am ong courts is that “prosecutors are entitled to absolute im m unity from suit for m alicious prosecution when actin g within the scope of their traditional prosecutorial duties.”95 “The Restatem ent (Second) Of Torts § 656 (1970 ) likewise provides that a ‘public prosecutor acting in his official capacity is absolutely privileged to initiate, in stitute, or continue crim in al proceedings.’”96 In Knapper, the Louisiana Suprem e Court held that “a prosecutor acting within the scope of his prosecutorial duties as an advocate for the state is entitled to absolute im m unity from suit for m alicious prosecution as a consequence of 93 R. Doc. 74-1 at 10 – 11. Miller v. E. Baton Rouge Par. Sheriff’s Dep’t, 511 So. 2d 446, 452 (La. 1987). 95 Knapper, 681 So. 2d at 947. 96 Id. See also Miller v . Desoto Reg’l H ealth Sy s., 20 13-639 (La. App. 3 Cir. 12/ 11/ 13), 128 So. 3d 649, 659, w rit denied sub nom . Miller v. Desot Reg’l Health Sy s., 20 14-0 294 (La. 4/ 11/ 14), 138 So. 3d 60 9. 94 14 conduct intim ately associated with the judicial phase of the crim inal process.”97 The Louisiana Suprem e Court relied on the reasoning of the United States Suprem e Court in Im bler v. Pachtm an 98 : “Although the [United States] Suprem e Court [in Im bler] acknowledged that there m ay be cases where prosecutorial m isconduct can be proven to have been intentional and m alicious, nevertheless the disadvantages that would result from any lesser form of im m unity would be so substantial that absolute im m unity is warranted even in cases where there is eviden ce of m alice.”99 Adam s alleges Bodenheim er “m aliciously prosecuted Mr. Adam s for the m urder of Cathy Ulfers despite knowing that the case was based around an erroneous and dem onstrably false confession and despite having in his possession exculpatory evidence that cast doubt on Mr. Adam s’s confession and underm ined an y probable cause for such a proceeding.”10 0 Adam s alleges Boden heim er “furthered this m alicious and wrongful prosecution by eliciting false and perjured testim ony and suppressing exculpatory m aterial from Mr. Adam s’s counsel.”10 1 Adam s’ allegations in support of his claim for m alicious prosecution clearly involve actions of Bodenheim er that are “intim ately associated with the judicial phase of the crim inal process.”10 2 Accordingly, Bodenheim er is entitled to absolute im m unity on Adam s’ state-law claim for m alicious prosecution and the m otion to dism iss Count 9 is granted. B. Count 10 : Intentional or N egligent Infliction of Em otional Distress 97 Id. at 951. 424 U.S. 40 9, 430 (1976). 99 Knapper, 681 So. 2d at 948. 10 0 R. Doc. 71 at ¶ 289. 10 1 Id. at ¶ 290 . 10 2 Id. at 951. 98 15 Adam s asserts a cause of action against Bodenheim er for intentional infliction of em otional distress and/ or negligent infliction of em otional distress. 10 3 Adam s alleges Bodenheim er “intentionally, m aliciously, and with reckless disregard and deliberate indifference to Mr. Adam s’s rights engage[d] in extrem e and outrageous conduct in connection with the investigation and prosecution of Mr. Adam s.”10 4 Adam s further alleges that Bodenheim er’s conduct was unlawful, extrem e, and outrageous and that Bodenheim er intended to, and did, inflict severe em otional distress on Adam s. 10 5 Prosecutors are entitled to absolute im m unity on a claim for intentional or negligent infliction of em otional distress to the extent it is predicated on acts shielded by absolute im m unity. 10 6 Adam s alleges that Bodenheim er engaged in extrem e and outrageous conduct during the prosecution of Adam s, for exam ple, by presenting false and m isleading argum ents and evidence to courts and juries. 10 7 Nevertheless, Adam s also alleges Boden heim er engaged in extrem e and outrageous conduct in his investigatory role. Adam s’ claim for intentional or negligent infliction of em otional distress is predicated at least in part on Bodenheim er’s alleged suppression of exculpatory evidence when the prosecutors on the 1990 Ulfers m urder trial consulted with Boden heim er and 10 3 R. Doc. 71 at ¶¶ 295– 30 0 . R. Doc. 71 at ¶ 296. 10 5 Id. ¶¶ 297– 99. 10 6 See, e.g., Cousin, 20 0 1 WL 617455, at *9 (“The Court also dism isses plaintiff’s claim s for intentional infliction of em otional distress because it is predicated on acts shielded by absolute im m unity.”); Liverm ore v. Arnold, No. 10 -50 7, 20 11 WL 693569, at *8 (M.D. La. J an. 20 , 20 11), report and recom m endation adopted, 20 11 WL 6918 65 (M.D. La. Feb. 15, 20 11) (Noland, M.J .) (“Louisiana state courts have routinely recognized the reason ing in Im bler and have granted absolute im m un ity to prosecutors, who are actin g within the scope of their prosecutorial duties as advocates for the State, from state law claim s arising “as a consequence of conduct intim ately associated with the judicial phase of the crim inal process.”); Johnson v . Louisiana, No. 0 9-55, 20 10 WL 996475, at *14 (W.D. La. Mar. 16, 20 10 ) (H icks, J .) (sam e). 10 7 R. Doc. 71 at ¶ 296. 10 4 16 on Bodenheim er’s alleged fabrication of probable cause. 10 8 As discussed supra, Bodenheim er is not entitled to absolute im m unity based on these alleged actions. 10 9 Accordingly, Bodenheim er is not entitled to absolute im m unity on the entirety of Adam s’ cause of action for intentional or negligent infliction of em otional distress. The m otion to dism iss Count 10 is den ied insofar as the allegations relate to Bodenheim er’s investigation of the Ulfers m urder and the alleged Brady violation in 1990 . The m otion to dism iss Count 10 is granted insofar as the allegations relate to Bodenheim er’s prosecution of the Ulfers m urder trial. CON CLU SION For the foregoing reasons: IT IS ORD ERED that the m otion to dism iss Counts 2, 4, and 5 is D EN IED , as Bodenheim er is not entitled to absolute im m unity on these counts. IT IS FU RTH ER ORD ERED that the m otion to dism iss Count 9 is GRAN TED and Count 9 is D ISMISSED W ITH PREJU D ICE, as Boden heim er is entitled to absolute im m unity on this claim . 110 IT IS FU RTH ER ORD ERED that the m otion to dism iss Count 10 is GRAN TED insofar as the allegations relate to Bodenheim er’s prosecution of the Ulfers m urder trial, and D EN IED insofar as the allegations relate to Bodenheim er’s investigation of the Ulfers m urder and the alleged Brady violation in 1990 . N e w Orle a n s , Lo u is ian a, th is 12 th d ay o f Au gu s t, 2 0 16 . ________________________________ SU SIE MORGAN U N ITED S TATES D ISTRICT JU D GE 10 8 10 9 110 Id. at ¶¶ 123– 28, 221– 31, 244, 249, 296. See supra Parts I.A, I.B. R. Doc. 71 at ¶¶ 287– 94. 17
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