Adams v. City of New Orleans, et al, No. 2:2015cv01543 - Document 131 (E.D. La. 2016)
Court Description: ORDER AND REASONS denying 76 77 78 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. 131 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 are three m otions to dism iss filed by Defendants Frank Ruiz, J erry Ursin, an d Martin Venezia, respectively. 1 For the reasons that follow, Defendants’ m otions are D EN IED . 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. 76 (Ruiz); R. Doc. 77 (Ursin); R. Doc. 78 (Ven ezia). The followin g facts derive from Adam s’ am ended com plaint. 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 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 Defen dant Bodenheim er and Assistant District Attorney 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, Ruiz, Ursin, and Venezia (collectively, “Movants”) filed m otions to dism iss, arguing they are entitled to qualified im m unity with respect to each cause of action asserted against them . 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 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. 76 (Ruiz); R. Doc. 77 (Ursin); R. Doc. 78 (Ven ezia). 34 R. Doc. 85. 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 plaintiff’s com plaint, the facts of which judicial notice m ay be taken, m atters of public 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 Venezia, Ruiz, and Ursin in their individual capacities 45 and brings the following claim s against them : 1. Count 1: Brady violation under § 1983 against Venezia and Ruiz; 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 ¶¶ 29, 31, 32. 5 2. Count 3: Coerced confession and m anufactured evidence under § 1983 against Venezia, Ruiz, and Ursin; 3. Count 5: Conspiracy under § 1983 against Venezia, Ruiz, and Ursin ; and 4. Count 10 : Intentional infliction and/ or negligent infliction of em otional distress under state law against Venezia, Ruiz, and Ursin. 46 Movants argue they are entitled to qualified im m unity on all of Adam s’ claim s against them . 47 I. Counts 1, 3, and 5: Brady , Manufactured Evidence and Coerced Confession, and Conspiracy Adam s’ causes of action for Movants’ alleged Brady violation, m anufactured eviden ce and coerced confession, an d conspiracy arise under 42 U.S.C. § 1983. 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 The qualified im m unity defense serves to shield governm ent officials perform ing discretionary functions “from liability for civil dam ages in sofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”49 When considering a qualified im m unity defense raised in the context of a Rule 12(b)(6) m otion to dism iss, the Court m ust determ ine whether “the plaintiff’s pleadings assert facts which, if true, would overcom e the defense of qualified im m unity.”50 “Thus, a plaintiff seeking to overcom e qualified im m unity m ust plead specific facts that both allow the court to draw the reasonable inference that the defendant 46 R. Doc. 71. R. Docs. 76, 77, 78 . 48 Atteberry v . N ocona Gen. Hosp., 430 F.3d 245, 252– 53 (5th Cir. 20 0 5). 49 Kinney v. W eaver, 367 F.3d 337, 349 (5th Cir. 20 0 4). 50 Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 20 12); Jordan v. City of N ew Orleans, No. 15-1922, 20 16 WL 633666, at *2 (E.D. La. Feb. 17, 20 16). 47 6 is liable for the harm he has alleged and that defeat a qualified im m unity defense with equal specificity.”51 When evaluating a claim of qualified im m unity, the Court m ust determ ine whether the facts alleged show the officer’s conduct violated a constitutional right and whether the officer was acting under color of state law at the tim e of the alleged incident. 52 If there is a constitutional violation and state action, the Court m ust then determ ine whether the right was clearly established in light of the specific context of the case. 53 For a right to be “clearly established,” “[t]he contours of the right m ust be sufficiently clear that a reasonable official would understand that what he is doing violates that right.”54 Whether the right was clearly established at the tim e the defendant acted “requires an assessm ent of whether the official’s conduct would have been objectively reasonable at the tim e of the incident.”55 A. “Under Color of State Law” To state a claim under 42 U.S.C. § 1983, the plaintiff m ust show the alleged violation of the Constitution or of federal law was com m itted by som eone acting under color of state law. 56 As a threshold m atter, the Court addresses whether Movants were acting under color of state law during the incident. 57 51 Backe, 691 F.3d at 648. See also Babb v. Dorm an, 33 F.3d 472, 475 n.5 (5th Cir. 1994) (“To survive a m otion to dism iss in cases where the qualified im m unity defense is raised, a plaintiff m ust state facts, which if proven , would defeat the defense.”); Jackson v. City of Beaum ont Police Dep’t, 958 F.2d 616, 620 (5th Cir. 1992). 52 Brow n v. Miller, 519 F.3d 231, 236 (5th Cir. 20 0 8). 53 Id. 54 Anderson v. Creighton, 48 3 U.S. 635, 640 (1987). 55 Kinney , 367 F.3d at 350 (quoting Conroe Creosoting Co. v . Montgom ery County , 249 F.3d 337, 340 (5th Cir. 20 0 1)). 56 Atteberry v . N ocona Gen. Hosp., 430 F.3d 245, 252– 53 (5th Cir. 20 0 5). 57 Movants do not dispute that they were actin g under color of state law at the tim e of the incident. See R. Docs. 76, 77, and 78 . 7 Whether an officer acted under color of state law depends on (1) whether the officer m isused or abused his official power, and (2) whether there is a nexus between the victim , the im proper conduct, and the officer’s perform ance of official duties. 58 “If an officer pursues personal objectives without using his official power as a m eans to achieve his private aim , he has not acted under color of state law.”59 However, “[i]f an individual is possessed of state authority and purports to act under that authority, his action is state action. It is irrelevant that he m ight have taken the sam e action had he acted in a purely private capacity.”60 Adam s alleges Venezia “was at all relevant tim es a detective em ployed by the NOPD” and that he and Gebbia “were the lead detectives assigned to investigate the m urder of Cathy Ulfers.”61 Adam s alleges Ruiz and Ursin were “at all relevant tim es . . . detective[s] em ployed by the NOPD and/ or . . . investigator[s] em ployed by or acting as . . . agent[s] of the DA’s Office” and that they “were the lead investigators for the DA’s Office assigned to the J une 1980 burglary of Seafood City.”62 The allegations against them in the am ended com plaint all pertain to their role as detectives or investigators in the burglary or m urder. 63 The officers clearly were acting under color of state law. 58 Id. at 464– 65; Tow nsend v. Moy a, 291 F.3d 859, 865 (5th Cir. 20 0 2). Bustos, 599 F.3d at 465. 60 United States v. Causey , 185 F.3d 40 7, 414 (5th Cir. 1999) (quoting Griffin v. M ary land, 378 U.S. 130 , (1964)). 61 R. Doc. 71 at ¶¶ 29, 30 . 62 Id. at ¶¶ 31, 32. 63 See generally R. Doc. 71. 59 8 B. Violations of Constitutional or Federal Law 1. Count 1: Brady Claim against Venezia and Ruiz a. Violation of a Constitutional Right to Due Process Adam s brings a Brady claim against Venezia and Ruiz. 64 Under Brady , a state actor “deprives a crim inal defendant of his right to due process when [the state actor] suppresses or withholds evidence that is both favorable to the defendant and m aterial to his defense.”65 Evidence is m aterial if prejudice ensued as a result of its non-disclosure. 66 Adam s alleges there were two supplem ental police reports containing exculpatory inform ation that were never disclosed to the defense. 67 The first supplem ental report, authored by Venezia, detailed the investigation of the Ulfers m urder and was located in the DA’s office file for the Seafood City burglary, and not in the Ulfers m urder file. 68 The first supplem ental report had inform ation about the m urder weapon that was recovered from an individual with no connection to Adam s. 69 It also contained inform ation regarding the fact that the property allegedly stolen from the Ulfers hom e on the day of the m urder was recovered by police from two individuals with no connection to Adam s. 70 Adam s alleges Venezia and Ruiz were aware of the exculpatory inform ation contain ed in the first supplem ental report but did not disclose it to Adam s or his counsel. 71 The secon d supplem ental report, authored by Venezia, also contained exculpatory inform ation regarding the investigation. For exam ple, the second supplem ental report explained that 64 R. Doc. 71 at ¶¶ 214– 20 . Truvia v. Con nick, 577 F. App’x 317, 321– 22 (5th Cir. 20 14), cert. denied, 135 S. Ct. 1550 , 191 L. Ed. 2d 637 (20 15) (citin g Sm ith v. Cain, 132 S. Ct. 627, 630 (20 12)). 66 Banks v. Dretke, 540 U.S. 668, 691 (20 0 4). 67 R. Doc. 71 at ¶ 123– 28. 68 Id. at ¶ 124. 69 Id. at ¶¶ 40 – 46, 123. 70 Id. at ¶¶ 39, 54– 62, 123. 71 Id. at ¶ 124. Adam s also alleges Ursin kn ew of the exculpatory inform ation but did not bring this Brady claim against Ursin . See R. Doc. 71 at ¶¶ 214– 20 . 65 9 Adam s’ fingerprints did not m atch those collected on the night of the m urder. 72 Copies of the secon d supplem ental report were located in the DA’s Office files for both the Seafood City burglary and the Ulfers m urder. 73 Adam s alleges Movants knew of the secon d supplem ental report and the exculpatory inform ation contained therein but deliberately withheld the report from Adam s and his counsel. 74 Moreover, Adam s alleges Movants had knowledge of additional exculpatory eviden ce but never disclosed it to Adam s’ counsel. 75 For exam ple, Adam s alleges Movants knew of evidence 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. 76 The evidence allegedly withheld from Adam s and his counsel was clearly favorable to Adam s, as it im plicated another suspect in the m urder and dem onstrated the weakness in the connection between evidence of the crim e and Adam s. Considering the wellpleaded allegations of the com plaint, the Court finds Movants withheld evidence that was both favorable to Adam s and m aterial to his defense, and thus Adam s has sufficiently pleaded a claim for a Brady violation of his constitutional right to due process. b. Clearly Established Concealing exculpatory evidence was a clearly established constitutional violation at the tim e of the investigation and Adam s’ first and second m urder trials. 77 Taking the 72 Id. at ¶ 127. Id. at ¶ 128. 74 Id. 75 Id. at ¶¶ 131– 153. 76 Id. at ¶¶ 142, 147, 148 . 77 See Brow n v. Miller, 519 F.3d 231, 238 (5th Cir. 20 0 8) (“A police officer’s deliberate concealm ent of exculpatory evidence violates this sam e right, and can give rise to liability under § 1983. By 1967, a public official’s concealm ent of exculpatory evidence was a constitutional violation in this circuit.”); Burge v. Par. of St. Tam m an y , 187 F.3d 452, 48 0 n .11 (5th Cir. 1999) (“Twenty-one years before Geter [v. Fortenberry , 849 F.2d 1550 (5th Cir. 1988 )], this court declared that suborn ing perjury and concealing exculpatory 73 10 well-pleaded allegations of the com plaint as true, the Court finds that an objectively reasonable officer would have realized that the evidence withheld from the defense was favorable to Adam s and m aterial to his defense. Accordingly, Movants are not entitled to qualified im m unity on Adam s’ Brady claim under § 1983, and the m otion to dism iss Count 1 is denied. 2. Count 3: Manufactured Evidence and Coerced Confession against Venezia, Ruiz, and Ursin a. Violation of a Constitutional Right to Due Process and a Fair Trial “[A] conviction obtained through use of false eviden ce, known to be such by representatives of the State, m ust fall under the Fourteenth Am endm ent.”78 Indeed, “‘fram ing’ som eone for a crim e that he did not com m it deprives that person of his constitutional rights.”79 Further, courts recogn ize that a coerced false confession m ay provide the basis for a claim under § 1983 if there is a reasonable likelihood that, without the use of the confession, the defen dant would not have been convicted. 80 Adam s alleges Movants coerced the false confession of Adam s. 81 Adam s alleges that, after Adam s was arrested for the burglary of Seafood City, 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. 82 Adam s alleges that Detectives Venezia and Ruiz began asking Adam s about the Seafood City burglary around 11:30 p.m . 83 Ursin was “in and out of the room over the course of the evidence by police officers were constitutional violations.” (citin g Luna v. Beto, 391 F.2d 329, 332 (5th Cir.1967)). 78 United States v. O’Keefe, 128 F.3d 8 85, 893 (5th Cir. 1997). 79 Young v. Biggers, 938 F.2d 565, 570 (5th Cir. 1991). 80 See, e.g., Halsey v. Pfeiffer, 750 F.3d 273, 294 (3d Cir. 20 14). 81 See R. Doc. 71 at ¶¶ 85– 118 . 82 Id. at ¶¶ 90 – 91. 83 Id. at ¶ 92. 11 evening.”84 The detectives “m ade threats against [Adam s] and his fam ily.”85 Around 1:0 0 a.m . on Septem ber 20 , Detective Ruiz gave Adam s at least two Valium pills. 86 The detectives then began questioning Adam s about the Ulfers m urder. 87 Although Adam s said he knew nothing about the m urder, Detective Venezia threatened Adam s and repeatedly suggested Adam s was involved in the Ulfers m urder, feeding him details about the crim e. 88 For exam ple, Adam s alleges, Venezia told Adam s that the victim was related to an NOPD officer, described the location of the crim e, an d told Adam s that the victim had been shot. 89 At around 4:0 0 a.m . on Septem ber 20 , 1980 , Adam s falsely confessed to m urdering Cathy Ulfers. 90 Adam s alleges the false confession contained num erous inaccuracies. 91 Adam s alleges Movants then “sought to m anufacture additional evidence to bolster the credibility of Mr. Adam s’s obviously false confession.”92 At 6:0 0 a.m ., Venezia, Ursin, Ruiz, and another officer allegedly took Adam s to the Ulfers hom e. 93 Adam s alleges Ursin drove to the hom e and, on the way, stopped to purchase beer and snacks, which they shared with Adam s. 94 Movants walked Adam s through the Ulfers hom e and provided him with details about the m urder while there. 95 Afterward, around 7:0 0 a.m ., Movants took Adam s back to the Orleans Parish Prison, where they questioned him further. 96 Adam s 84 Id. Id. at ¶ 7. 86 Id. at ¶ 96. 87 Id. at ¶ 97. 88 Id. at ¶¶ 98 – 99. 89 Id. at ¶ 10 0 . 90 Id. at ¶ 10 2. 91 See id. at ¶ 130 . 92 Id. at ¶ 110 . 93 Id. at ¶ 111. 94 Id. 95 Id. at ¶ 115. 96 Id. at ¶ 116. 85 12 alleges Venezia, Ursin, and Ruiz “continued to prod Mr. Adam s about his involvem ent in the Ulfers m urder and suggest facts for Mr. Adam s to incorporate in to his statem ents.”97 Adam s alleges that, as a direct result of the m anufactured evidence, Adam s was falsely tried and convicted of m urder and served nearly 34 years in prison for a crim e he did not com m it, and Movants’ actions deprived Adam s of his right to due process an d a fair trial. 98 Adam s has sufficiently alleged that Movants m anufactured evidence, coerced Adam s’ confession, and, as a result, violated Adam s’ constitutional rights. b. Clearly Established “[T]he right of crim in al defen dants to be free from false or fabricated evidence was well settled by 1959 or earlier.”99 It is clear in this case that Movants’ alleged con duct violated Adam s’ clearly established constitutional rights by coercin g his confession and m anufacturing evidence. “Under the Fifth Am en dm ent’s privilege again st self-incrim in ation, when a person confesses in custodial interrogation, courts determ in e whether such a suspect’s confession is coerced or involuntary by exam ining the totality of the circum stances surrounding the . . . interrogation.”10 0 Factors such as the length of the interrogation, the conduct of the officers, including m aking threats to the defendant, the defendant’s m ental state, and the presence of counsel are relevant to determ ining whether a confession is coerced. 10 1 Moreover, as the Seventh Circuit explained in United States v. Villalpando, 97 Id. at ¶ 117. Id. at ¶ 237. 99 Brow n v. Miller, 519 F.3d at 237. 10 0 Edm onds v . Oktibbeha Cty ., Miss., 675 F.3d 911, 914 (5th Cir. 20 12) (alteration in original) (internal quotation m arks om itted). 10 1 See, e.g., Spano v. N ew York, 360 U.S. 315, 322 (finding a confession in voluntary, in part because “the question ing [was not] conducted during norm al business hours, but began in early even ing, continued into the night, and did not bear fruition until the not-too-early m ornin g); Rogers v. Richm ond, 365 U.S. 534, 542 (1961) (concluding the petition er’s confession was not given voluntarily when the interrogating officers threatened to bring the petitioner’s wife in for question ing); United States av. Kreczm er, 636 F.2d 10 8, 111 98 13 “[p]olice conduct that influences a rational person who is innocent to view a false confession as m ore beneficial than being honest is necessarily coercive, because of the way it realigns a suspect’s incentives during interrogation.”10 2 The totality of the circum stances, as alleged by Adam s, including those surrounding the first false confession, those surrounding the secon d false confession, the length of the interrogation, the officers’ providing Adam s with Valium pills an d alcohol, threats m ade by the officers, the absence of Adam s’ counsel, and the officers’ taking Adam s to the crim e scene in the m iddle of the night dem onstrate that Movants coerced Adam s’ confession. Adam s sufficiently alleges Movants also m anufactured evidence to bolster the false confessions. “A reasonable person . . . surely would realize that ‘fram ing’ som eone for a crim e that he did not com m it deprives that person of his constitutional right.”10 3 Accordingly, Movants are not entitled to qualified im m unity on Adam s’ § 198 3 claim that Movants m anufactured evidence and coerced Adam s’ false confessions, and the m otion to dism iss Count 3 is denied. 3. Count 5: Conspiracy against Venezia, Ruiz, and Ursin Adam s alleges Venezia, Ruiz, and Ursin conspired am ong them selves and with Gebbia, Bodenheim er, and others “to intentionally, m aliciously, and, with reckless disregard and deliberate indifferen ce, violate Mr. Adam s’s right to due process and a fair trial.”10 4 Adam s lists several overt acts the defendants com m itted in furtherance of the (5th Cir. 1981) (“A confession is involuntary if the defen dant is so intoxicated by alcohol or other drugs that the confession is not rationally given .”); Grant v. W ainw right, 496 F.2d 10 43, 10 47 (5th Cir. 1974) (considering that the “inten sive interrogation ” lasted seven and a half hours and concluding that the totality of the circum stances dem on strated the confession was involuntary); Holm an v. W ashington, 364 F.2d 618 , 621 (5th Cir. 1966) (“[I]nterrogation without the presence of counsel m ay be considered as one factor (am ong m any others) tending to prove involuntariness.”). 10 2 United States v. Villalpando, 58 8 F.3d 1124, 1128 (7th Cir. 20 0 9). 10 3 Young, 938 F.2d at 570 . 10 4 R. Doc. 71 at ¶ 248. 14 alleged conspiracy, including ignoring suspects and choosing to focus the investigation on Adam s despite the lack of eviden ce linking him to the Ulfers m urder. 10 5 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 con stitutional rights, and (2) the conspiracy resulted in an actual denial of on e of his constitutional rights. 10 6 The claim ant m ust state specific facts, not m erely conclusory allegations 10 7; “[p]laintiffs who assert conspiracy claim s under civil rights statutes m ust plead the operative facts upon which their claim is based.”10 8 Specifically, Adam s alleges the defendants “conspired to violate Mr. Adam s’s rights by coercing his confession and m anufacturing evidence against him to secure probable cause for an arrest and thereafter a conviction for the m urder of Cathy Ulfers.”10 9 Adam s also alleges that, as part of their conspiracy, Venezia, Ruiz, and Gebbia “knowingly and intentionally did not disclose [exculpatory] evidence to the prosecutors who tried Mr. Adam s for m urder in 1990 .”110 Therefore, in essence, Adam s alleges Movants conspired to m anufacture evidence against Adam s, coerce a false confession from Adam s, and withhold exculpatory evidence from Adam s and his counsel. “Defendants are entitled to qualified im m unity from the § 1983 conspiracy claim if they are entitled to qualified im m unity from the underlying § 1983 claim s.”111 The Court has already determ ined that Movants are not entitled to qualified im m unity with respect 10 5 Id. at ¶ 251. 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). 10 7 Hale v. Harney , 786 F.2d 68 8, 690 (5th Cir. 1986) (citations om itted) (internal quotation m arks om itted). 10 8 Young v. Biggers, 938 F.2d 565, 569 (5th Cir. 1991). 10 9 R. Doc. 71 at ¶ 249. 110 Id. at ¶ 251. 111 Hill v. City of Seven Points, 31 F. App’x 835 (5th Cir. 20 0 2). 10 6 15 to the acts underlying Adam s’ conspiracy claim . Moreover, a cause of action for conspiracy to deprive a person of his constitutional rights was clearly established before the officers allegedly conspired to deprive Adam s of his rights. 112 Accordingly, Movants are not entitled to qualified im m unity on Adam s’ conspiracy claim , and the m otion to dism iss Count 5 is denied. II. Count 10 : Intentional or Negligent Infliction of Em otional Distress against Venezia, Ruiz, and Ursin Adam s alleges a cause of action against Movants for intentional or negligent infliction of em otional distress under Louisiana law. 113 “Louisiana law does not recognize an independent tort of negligent infliction of em otional distress.”114 Under Louisiana law, recovery for m ental distress m ay only be based on a breach of contract or a separate tort. 115 Furtherm ore, Adam s did not allege negligent infliction of em otional distress with respect to a physical injury or illness. In Louisiana, there is no liability for m ental disturbance caused by negligence without bodily injury, illness, or other physical consequences. 116 Therefore, Adam s has a claim only for intentional infliction of em otional distress. To recover for intentional infliction of em otional distress, a plaintiff m ust establish three elem ents: “‘(1) that the conduct of the defendant was extrem e and outrageous; 112 See Ry land v. Shapiro, 70 8 F.2d 967, 974 (5th Cir. 198 3) (“[W]e have previously held that ‘if state officers conspire . . . in such a way as to defeat or prejudice a litigant’s rights in state court, that would am ount to a denial of equal protection of the laws by persons acting under color of state law.’” (quoting Dinw iddie v. Brow n , 230 F.2d 465, 469 (5th Cir.), cert. denied, 351 U.S. 971 (1956)). See also Doe v. Dantin , No. 11-467, 20 14 WL 20 45344, at *6 (E.D. La. May 16, 20 14) (Zain ey, J .). 113 R. Doc. 71 at ¶¶ 295– 30 0 . 114 Landrum v. Bd. of Com m ’rs of the Orleans Levee Dist., 95-1591 (La. App. 4 Cir. 11/ 27/ 96), 685 So. 2d 382, 390 (citin g Moresi v . Dep’t of W ildlife & Fisheries, 567 So. 2d 10 81, 10 95– 96 (La. 1990 )). 115 Moresi, 567 So. 2d at 10 95. 116 Id. (“[I]f the defendant’s conduct is m erely negligent and causes only m ental disturbance, without accom panying physical in jury, illness or other physical consequences, the defen dant is not liable for such em otional disturbance.”). 16 (2) that the em otional distress suffered by the plaintiff was severe; and (3) that the defendant desired to inflict severe em otional distress or knew that severe em otional distress would be certain or substantially certain to result from his conduct.’”117 The alleged conduct “m ust be so outrageous in character, and so extrem e in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized com m unity.”118 The conduct m ay arise from an abuse by the actor of a position that “gives him actual or apparent authority over the other, or power to affect his interests.”119 It m ust be intended or calculated to cause severe em otional distress; “som e lesser degree of fright, hum iliation, em barrassm ent, worry, or the like” is insufficient. 120 “The distress suffered m ust be such that no reasonable person could be expected to endure it.”121 As the Fifth Circuit has explained, “Louisiana courts, like courts in other states, have set a very high threshold on conduct sufficient to sustain an em otional distress claim , and the Louisiana Suprem e Court has noted that courts require truly outrageous conduct before allowing a claim even to be presented to a jury.”122 Adam s alleges Movants “intentionally, m aliciously, an d 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, including concealing exculpatory eviden ce; m anufacturing inculpatory evidence; and presenting false an d m isleading argum ents and evidence to courts and juries.”123 Adam s further 117 Rice v . ReliaStar Life Ins. Co., 770 F.3d 1122, 1137 (5th Cir. 20 14) (quoting W hite v. Monsanto Co., 585 So. 2d 120 5, 120 9 (La. 1991)). 118 W hite, 585 So. 2d at 120 9. 119 Id. at 120 9– 10 . 120 Id. at 1210 . 121 Id. 122 Morris v. Dillard Dep’t Stores, Inc., 277 F.3d 743, 756– 57 (5th Cir. 20 0 1). 123 R. Doc. 71 at ¶ 296. 17 alleges that Movants’ conduct was unlawful, extrem e, and outrageous and that they intended to, and did, inflict severe em otional distress on Adam s. 124 As discussed above, Adam s alleges that Movants coerced Adam s’ confession, in part by interrogating him in the m iddle of the night for at least seven and a half hours, without his attorney present, and gave Adam s Valium pills and alcohol. Adam s further alleges the officers perjured them selves and concealed evidence from Adam s and his counsel, in furtherance of a conspiracy to secure probable cause for an arrest of and a conviction against Adam s for the m urder of Cathy Ulfers. Adam s has sufficiently alleged that Movants engaged in extrem e and outrageous conduct. Adam s also sufficiently alleges Movants intentionally engaged in this conduct in order to secure his arrest and conviction. Taking the allegations as true, Movants’ conduct was atrocious and intolerable. The Restatem ent (Second) of Torts states, “In particular police officers . . . have been held liable for extrem e abuse of their position.”125 It is clear that the em otional distress suffered by Adam s as a result of Movants’ conduct, nam ely his false m urder conviction and false im prisonm ent for nearly 34 years, is sufficiently severe. Thus, Adam s has sufficiently alleged a cause of action against Movants for in tentional infliction of em otional distress. “[Q]ualified im m unity does not apply to Louisiana tort claim s. Instead, Louisiana’s discretionary im m unity statute applies to those claim s.”126 Louisiana’s discretionary function im m unity statute, La. R. S. 9:2798.1 provides that public entities or their officers 124 Id. ¶¶ 297– 99. R ESTATEMENT (SECOND) OF TORTS § 46 (1965). The Louisiana Suprem e Court has found that the state-law cause of action for intentional infliction of em otional distress is “generally in accord with the legal precepts set forth in the Restatem en t text and com m ents.” See W hite, 58 5 So. 2d at 120 9. 126 Randle v. Tregre, 147 F. Supp. 3d 581, 593 (E.D. La. 20 15) (Africk, J .); Glaster v. City of Mansfield, No. 14-627, 20 15 WL 852412, at *10 (W.D. La. Feb. 26, 20 15) (Foote, J .). See also Doss v. Morris, 86 F. App’x 25, 28– 29 (5th Cir. 20 0 4) (noting that there is no “right to qualified im m unity for conduct that exposes an officer to liability under Louisiana tort law.”). 125 18 or em ployees are im m une from suit for discretionary acts perform ed within the course and scope of em ploym ent. 127 La. R.S. 9:2798.1, however, “does not protect against legal fault or negligent conduct at the operational level, but only confers im m unity for policy decisions; i.e. decisions based on social, econ om ic, or political concerns.”128 Adam s’ state-law claim for infliction of em otional distress does not allege “conduct at the operational level,” and Movants fail to offer evidence “‘that their discretionary acts were grounded in social or public policy,’ which is required in order to invoke La. R.S. 9:2798 .1’s protection.”129 Accordingly, Movants are not entitled to im m unity on Adam s’ state-law claim for intentional and/ or negligent infliction of em otional distress, and Movants’ m otion to dism iss Count 10 is denied. CON CLU SION For the foregoing reasons; IT IS ORD ERED that Venezia’s, Ursin’s, and Ruiz’s m otions to dism iss are D EN IED . 130 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 J U D GE 127 LA. R EV. STAT. § 9:2798 .1. Lockett v. N ew Orleans City , 639 F.Supp.2d 710 , 745 (E.D. La. 20 0 9) (Barbier, J .), aff’d, 60 7 F.3d 992 (5th Cir. 20 10 ) (citin g Sain e v. City of Scott, 819 So.2d 496 (La.App. 3 Cir 20 0 2)). 129 Randle, 147 F. Supp. 3d at 594 (quotin g Turner v. Houm a Mun. Fire, No. 99-152, 20 0 2 WL 1467876 at *6 (E.D. La. J uly 8 , 20 0 2) (Zainey, J .)). 130 R. Docs. 76, 77, 78 . 128 19
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