Wearry v. Perrilloux

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

MICHAEL WEARRY

CIVIL ACTION

VERSUS

18-594-SDD-SDJ

SCOTT M. PERRILLOUX and

MARLON KEARNEY FOSTER

RULING

Before the Court is the Motion to Dismiss Pursuant to Rule 12(c)1 filed by

Defendant, Marlon Kearney Foster (“Foster”). Plaintiff Michael Wearry (“Wearry”) filed an

Opposition,2 to which Foster filed a Reply.3 Foster’s co-defendant, Scott M. Perrilloux

(“Perrilloux”), also filed a Reply to Wearry’s Opposition.4 Additionally, Perrilloux has filed

his own Motion to Dismiss Pursuant to Rule 12(c),5 adopting the arguments set forth in

Foster’s Motion to Dismiss. Wearry opposes Perrilloux’s Motion to Dismiss as well.6 For

the reasons that follow, the Court finds that the Motions7 shall be denied.

The question presented by Foster’s Motion is whether a Livingston Parish Sheriff’s

Office Detective, acting in concert with a local prosecutor, is entitled to absolute immunity

for allegedly pulling a 14-year-old boy out of school on at least six occasions to intimidate

him into offering false testimony at a murder trial – false testimony concocted wholesale

by that detective and prosecutor and carefully rehearsed, the child’s compliance ensured

1 Rec. Doc. No. 49.

2 Rec. Doc. No. 66.

3 Rec. Doc. No. 73.

4 Rec. Doc. No. 71.

5 Rec. Doc. No. 51. Perrilloux previously filed a Motion to Dismiss under FRCP 12(b)(6) and now brings a

Motion to Dismiss under Rule 12(c), supported by a me-too memo that “re-asserts, re-alleges, and re-avers

each and every argument set forth in Doc. 49-1 and pleads same herein by reference, as if copied in

extenso.”

6 Rec. Doc. No. 67.

7 Rec. Doc. Nos. 49 and 51.

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with scare tactics like taking him to view the murder victim’s bloody car.8 Such are the

allegations in the Complaint, which, on this 12(c) motion, the Court is bound to accept as

true.9 This question, and these facts, are not an issue of first impression for this Court. In

June 2019, this Court denied a Motion to Dismiss by Foster’s co-Defendant Scott

Perrilloux, who was (and is today) the District Attorney for the 21st Judicial District in

Livingston Parish, finding that he was not entitled to absolute prosecutorial immunity.10

Foster argues that “absolute immunity is afforded to prosecutors and other state

official [sic] acting as advocates for the state.”11 Foster seeks absolute prosecutorial

immunity, as opposed to the qualified immunity which is most often advanced by law

enforcement officers, because “Plaintiff has specifically plead the motive and reasoning

for defendants’ alleged fabrication of evidence and coercion of witness testimony, and

that motive was purely prosecutorial in nature.”12 Foster maintains that “[t]hese actions

were not taken, according the allegations in the Complaint, in any form of investigatory

role. . .”13 “Rather, according to plaintiff, the coercion of Jeffrey Ashton to provide false

testimony was solely driven by a concern that evidence was insufficient to convict plaintiff

of murder.”14 In other words, because the function was prosecutorial, Foster claims

absolute prosecutorial immunity.

The Fifth Circuit has held that “the proper focus should not be the identity of the

8 Rec. Doc. No. 1, pp. 4-6.

9 Johnson v. Johnson, 385 F.3d 503, 529 (5th Cir. 2004).

10 A more thorough presentation of the factual and procedural history of this case can be found in this

Court’s previous Ruling at Rec. Doc. No. 44.

11 Rec. Doc. 49-1, p. 3.

12 Id. at p. 7.

13 Id.

14 Id.

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party claiming the immunity, but rather his ‘role in the context of the case.’”15 The

allegations against Foster are essentially identical to the allegations against Perrilloux. In

fact, Foster himself states that he “took the exact same actions as Perrilloux.”16 Those

actions centered around Defendants’ alleged attempt to falsely implicate Plaintiff Michael

Wearry for an unsolved murder. The allegations are as follows:

1) Perrilloux and Foster allegedly “made an intentional and deliberate decision to

fabricate a narrative . . . in order to procure Wearry’s conviction and death

sentence”;17

2) Identified Jeffery Ashton, a 14 year old child who was “subject to juvenile court

proceedings at the time and was vulnerable to intimidation by authorities.”18 Foster

“picked him up from school, [drove] him to Perrilloux’s office, and then, without a

parent present . . . intimidated him”19 and “provided [him] with a completely

fabricated story to adopt and repeat”20 that implicated Wearry in the murder;

3) Foster and Perrilloux included Wearry on a list of people Ashton identified from a

photo array, even though “Ashton told them he did not” recognize Wearry and, in

fact, “had no personal knowledge connecting Wearry to Walber’s death”;21

4) Foster and Perrilloux “[C]oached Ashton in at least six separate meetings to perfect

the falsified story”;22

15 O'Neal v. Mississippi Bd. of Nursing, 113 F.3d 62, 65 (5th Cir.1997) (quoting Mays v. Sudderth, 97 F.3d

107, 110 (5th Cir.1996)).

16 Rec. Doc. No. 49-1, p. 17.

17 Rec. Doc. No. 44, p. 3.

18 Id.

19 Rec. Doc. No. 44, p. 3.

20 Id.

21 Id.

22 Id.

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5) Persuaded Ashton that he had previously provided “details about the night of

Walber’s murder that Ashton had never actually provided”;23

6) And, after the United States Supreme Court vacated Wearry’s conviction, allegedly

instructed Livingston Parish Sheriff’s Deputy Ben Ballard to “coerce Ashton into

perpetuating his false testimony,”24 including “promis[ing] favors in exchange for

favorable trial testimony”25 at the new trial.

In his Motion, Foster acknowledges that this Court already denied extending

absolute immunity to Perrilloux based on the above allegations.26 Foster suggests that

the Court’s prior Ruling was wrongfully decided because “neither the parties nor the Court

cited or discussed” the 2003 United States Court of Appeals for the Fifth Circuit case

Cousin v. Small,27 which, Foster argues, “is controlling precedent.”28 Cousin is Fifth Circuit

precedent, but the Court disagrees that absence of citation to Cousin in its Ruling on

Perrilloux’s Motion renders it wrongly decided on the question of absolute immunity for

Defendants. Indeed, the Fifth Circuit’s recent opinion in Singleton v Canizzaro,29 which

examines the scope and contours of absolute prosecutorial immunity, suggests that this

Court’s prosecutorial immunity analysis is correct. After reviewing the parties’ briefs and

the relevant case law, this Court concludes that Foster is not entitled to absolute immunity,

for the same reasons outlined in this Court’s previous Ruling – reasons that are only

strengthened by the Circuit’s most recent decision Singleton v Canizzaro.30

23 Id.

24 Rec. Doc. No. 44, p. 4.

25 Id.

26 Rec. Doc. No. 49-1, p. 12.

27 325 F.3d 627 (5th Cir. 2003).

28 Rec. Doc. No. 49-1, p. 12.

29 Singleton v. Cannizzaro, 956 F.3d 773 (5th Cir. 2020).

30 Id.

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I. MOTIONS UNDER FEDERAL RULE OF CIVIL PROCEDURE 12(C)

The standard for deciding a motion under Rule 12(c) is the same as the one for

deciding a motion under Rule 12(b)(6).31 “[T]he central issue is whether, in the light most

favorable to the plaintiff, the complaint states a valid claim for relief.”32 When deciding a

Rule 12(b)(6) motion to dismiss, “[t]he ‘court accepts all well-pleaded facts as true,

viewing them in the light most favorable to the plaintiff.’”33 The Court may consider “the

complaint, its proper attachments, documents incorporated into the complaint by

reference, and matters of which a court may take judicial notice.”34 “To survive a Rule

12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state a claim to relief

that is plausible on its face.’”35

In Twombly, the United States Supreme Court set forth the basic criteria necessary

for a complaint to survive a Rule 12(b)(6) motion to dismiss. “While a complaint attacked

by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a

plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than

labels and conclusions, and a formulaic recitation of the elements of a cause of action will

not do.”36 A complaint is also insufficient if it merely “tenders ‘naked assertion[s]’ devoid

of ‘further factual enhancement.’”37 However, “[a] claim has facial plausibility when the

plaintiff pleads the factual content that allows the court to draw the reasonable inference

31 Johnson v. Johnson, 385 F.3d 503, 529 (5th Cir. 2004).

32 Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008) (quoting Hughes v. The Tobacco Inst., Inc., 278

F.3d 417, 420 (5th Cir. 2001)).

33 In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007) (quoting Martin v. Eby Constr.

Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)).

34 Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011).

35 In re Katrina Canal Breaches Litigation, 495 F.3d at 205 (quoting Martin v. Eby Constr. Co. v. Dallas Area

Rapid Transit, 369 F.3d at 467).

36 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and brackets omitted).

37 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted).

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that the defendant is liable for the misconduct alleged.”38 In order to satisfy the plausibility

standard, the plaintiff must show “more than a sheer possibility that the defendant has

acted unlawfully.”39 “Furthermore, while the court must accept well-pleaded facts as true,

it will not ‘strain to find inferences favorable to the plaintiff.’”40 On a motion to dismiss,

courts “are not bound to accept as true a legal conclusion couched as a factual

allegation.”41

II. ABSOLUTE PROSECUTORIAL IMMUNITY

As it did in denying District Attorney Perrilloux’s immunity motion, the Court begins

with the precept that “a functional analysis of the role a prosecutor is fulfilling when the

alleged misconduct occurs is the touchstone to determining the type of immunity

available.”42 Absolute immunity, the court reasons, attaches only to “conduct . . . that is

intimately associated with the judicial phase of the criminal process and for a prosecutor's

acts in initiating a prosecution and in presenting the state's case.”43 Considering the

allegations against Perrilloux, this Court questioned whether they fell within a prosecutor’s

“traditional role[] as [an] advocate for the state,”44 writing, “[a]lthough the breadth of

discretion granted to district attorneys under Louisiana law is vast, and federal courts in

Louisiana have held that prosecutors can be entitled to absolute immunity even when

they act ‘maliciously, wantonly or negligently,’ the scope of prosecutorial immunity is not

infinite.”45

38 Twombly, 550 U.S. at 570.

39 Iqbal, 556 U.S. at 678.

40 Taha v. William Marsh Rice University, 2012 WL 1576099 at *2 (quoting Southland Sec. Corp. v. Inspire

Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004).

41 Twombly, 550 U.S. at 556 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).

42 Knapper v. Connick, 96-0434 (La. 10/15/96), 681 So. 2d 944, 950.

43 Id. at 949.

44 Id. at 950.

45 Rec. Doc. No. 44, p. 14.

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This Court has already addressed the question: Was Perrilloux’s conduct

advocatory, as he claims, or was it more in the nature of evidence-gathering investigatory

conduct, for which only qualified immunity would apply?46 In denying absolute

prosecutorial immunity to District Attorney Perrilloux, this Court consulted Fifth Circuit

jurisprudence, including Loupe v. O’Bannon,47 and a handful of cases outside the Fifth

Circuit, where courts probed the line between investigatory and advocatory conduct. In

Moore v. Valder, for example, the D.C. Circuit held that “[i]ntimidating and coercing

witnesses into changing their testimony is not advocatory. It is rather a misuse of

investigative techniques.”48 This Court also took guidance from Barbera v. Smith,49 where

the Second Circuit held that “acquiring evidence which might be used in a prosecution”50

– as opposed to the “organization, evaluation, and marshalling”51 of such evidence – was

activity of a “police nature” and was therefore not entitled to absolute immunity.

Relying on Cousin, Foster would have this Court apply a bright line test and find

that, because the allegedly fabricated testimony coerced from a minor was secured after

Wearry was charged and was eventually presented at trial, it was necessarily advocatory.

However, in Singleton v. Cannizzaro, the Fifth Circuit quickly rejected this bright line

application of the temporal test, explaining that “[t]he Supreme Court has never held that

the timing of a prosecutor’s actions controls whether the prosecutor has absolute

immunity. Instead, the Court focuses on the function the prosecutor was performing.”52

46 Rec. Doc. No. 44, p. 21.

47Loupe v. O'Bannon, 824 F.3d 534, 536 (5th Cir. 2016), recently cited with approval in Singleton v.

Cannizzaro, 956 F.3d 773, 782 (5th Cir. 2020).

48 65 F.3d 189, 194 (D.C. Cir. 1995)(emphasis in original).

49 836 F.2d 96 (2d Cir. 1987).

50 Id. at 100.

51 Id.

52 Singleton, 956 F.3d at 783 (emphasis added).

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Other Circuits similarly look to function and not just timing in determining the scope of

absolute prosecutorial immunity. As noted by this Court in its prior Ruling53 denying

absolute prosecutorial immunity to Perrilloux, the Seventh Circuit in Fields v. Wharrie held

that a prosecutor who fabricated trial evidence was not entitled to absolute immunity: “A

prosecutor cannot retroactively immunize himself from conduct by perfecting his wrong-

doing through introducing the fabricated evidence at trial. That would create a ‘license to

lawless conduct.’”54 The Court reiterates that “allowing Perrilloux to claim absolute

immunity simply because his alleged actions can be characterized as ‘preparation for trial’

would create a license for prosecutors to use intimidation to fabricate evidence, knowing

they would be shielded by immunity.”55 The same reasoning applies to Detective Foster,

who worked in concert with Perrilloux to coerce a minor into providing false testimony.

Defendant Foster urges the Court to follow Beckett v. Ford,56 a 2010 case where

the Sixth Circuit granted absolute immunity to a prosecutor on allegations of fabrication

of witness testimony very similar to the allegations herein. Apposite though it may be,

Beckett is not binding authority, and this Court finds it unpersuasive insofar as it arrives

at its conclusion by reasoning that, because the fabrication occurred in preparation for

trial, it was advocatory; this is the bright line approach called into question by the Fifth

Circuit in Singleton v Cannizzarro. Even the Beckett court acknowledged that “it is

possible for a prosecutor who engages in a conspiracy to manufacture false evidence [to]

not to be acting as an advocate for the state when he does so.”57 For reasons discussed

53 Rec. Doc. No. 44.

54 Fields v. Wharrie, 740 F.3d 1107, 1109 (7th Cir. 2014).

55 Rec. Doc. No. 44, p. 16.

56 Beckett v. Ford, 384 F. App'x 435 (6th Cir. 2010).

57 Id. at 451.

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in its previous Ruling and infra, this Court rejects the notion that the label “preparation for

trial” is capable of bestowing immunity upon any and all prosecutorial conduct.

In short, Foster’s Motion, and Perrilloux’s re-urged Motion, will be denied for the

same reasons previously given by this Court. Perrilloux’s and Foster’s alleged conduct

was not advocatory in function. The Court’s rationale, which carefully considered the

difference between investigatory and advocatory conduct, has since been looked upon

with favor by the Fifth Circuit in the Singleton v. Cannizzaro decision (see discussion,

infra). Foster concedes that his conduct was the “exact same” as Perrilloux’s but argues

that the Court should reach a different result because of Cousin v. Small.58 In Cousin, the

Fifth Circuit drew a hard “temporal” line between investigatory and advocatory conduct,

where advocatory conduct is anything that a prosecutor does after the identification of a

suspect and the development of probable cause to arrest him. This “temporal” approach

comes from the United States Supreme Court via Imbler59 and Buckley60 (discussed more

thoroughly in this Court’s previous Ruling at Record Document Number 44).

Cousin is factually analogous to the instant case. The prosecutor in Cousin was

alleged to have “told [a witness] to implicate Cousin falsely in the murder and coached

him on how to testify.”61 Applying the “temporal” test, the Fifth Circuit held that the

prosecutor was “acting as an advocate rather than as an investigator. The interview

[where the witness was coached to lie] was intended to secure evidence that would be

used in the presentation of the state's case at the pending trial of an already identified

58 Cousin v. Small, 325 F.3d 627 (5th Cir. 2003).

59 Imbler v. Pachtman, 424 U.S. 409 (1976).

60 Buckley v. Fitzsimmons, 509 U.S. 259 (1993).

61 Cousin, 325 F.3d at 635.

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suspect, not to identify a suspect or establish probable cause.”62 The court noted that the

investigatory/advocatory question entirely “turns on whether Cousin had been identified

as a suspect at the time [the witness] was interviewed and whether the interview related

to testimony to be presented at trial.”63

Applying Cousin strictly to the facts of the instant case arguably yields a different

result than this Court reached in its previous Ruling. Perrilloux’s and Foster’s alleged

conduct did occur after a suspect had been arrested – indeed, their coercion and

fabrication of testimony from a minor is alleged to have been an effort to strengthen their

case and ensure a successful prosecution of that suspect. But, even in Cousin, the Fifth

Circuit cautioned against this formalistic “temporal” test, explaining that even though

“many, perhaps most, such interviews are likely to be advocatory rather than

investigative,”64 the Supreme Court in Buckley “did not explicitly hold that all witness

interviews conducted after indictment are advocatory in nature.”

This Court rejects the simplistic view that once charges are filed, all conduct is

advocatory and thus absolutely shielded. The statement that many, or even most, post-

indictment witness interviews are advocatory in nature clearly allows for the possibility

that some are not – in other words, for the possibility that some post-indictment witness

interviews are investigatory. This is especially true in light of the Fifth Circuit’s recent

ruling in Singleton v. Cannizzaro, which places the otherwise strict temporal test within

the context of a broader “functional approach.”65

62 Id.

63 Id. at 633.

64 Id. (emphasis added).

65 Singleton v. Cannizzaro, 956 F.3d 773, 780 (5th Cir. 2020).

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III. SINGLETON V. CANNIZZARO

In Singleton, the Fifth Circuit denied absolute immunity to the Orleans Parish

District Attorney and several assistant district attorneys for allegedly using “fake

‘subpoenas’ to pressure crime victims and witnesses to meet with them.”66 The facts of

Singleton are not directly analogous to the facts of this case, but the Fifth Circuit’s

rationale and application of the absolute prosecutorial immunity doctrine bears directly

upon it.

The prosecutor defendants in Singleton argued “that creating and issuing the fake

subpoenas was protected prosecutorial conduct because it ‘relate[d] to the core

prosecutorial function of preparing evidence and testimony for trial.’”67 Moreover, the

defendants asserted that, because their actions took place after charges had already

issued against suspects in the underlying criminal cases, the temporal test dictates that

those actions were advocatory. The Fifth Circuit quickly rejected this bright line application

of the temporal test, explaining that “[t]he Supreme Court has never held that the timing

of a prosecutor’s actions controls whether the prosecutor has absolute immunity. Instead,

the Court focuses on the function the prosecutor was performing.”68

That being said, the Singleton court did distinguish Cousin in a footnote, pointing

out that the facts of Singleton “are not governed by Cousin” because “there the actions

occurred during a pending trial and were designed to shape a witness’s testimony at that

trial. Here, by contrast, [the defendants’] alleged use of the fake subpoenas on Plaintiffs

occurred earlier in the process.”69 The fake subpoenas in question were used to elicit

66 Id. at 777.

67 Id. at 782.

68 Id. at 783 (emphasis added).

69 Id. at 782, n. 5 (emphasis added).

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information “while related criminal cases were pending.”70 Foster’s and Perrilloux’s

alleged actions, like those of the Canizzarro defendants, occurred after the arrest of a

suspect and in the months leading up to trial. The Singleton court characterized the

conduct in Cousin as occurring “during a pending trial.”71 This Court does not find these

categories – “while related criminal cases were pending” versus “during a pending trial” –

to be especially clear, nor is it obvious to the Court where the conduct in this case,

occurring as it did several months before trial, belongs on that continuum. This

underscores the difficulty in applying a purely temporal test.

The Fifth Circuit’s discussion in Singleton of the outer limits of what reasonably

constitutes the “prosecutorial function” provides meaningful support to the analysis in this

Court’s previous Ruling and is equally applicable to the instant Motion. The Singleton

court’s reasoning as to why the prosecutors’ alleged conduct was arguably not advocatory

even though it occurred post-indictment and was, in a technical sense, part of the

prosecutor’s preparation for trial, applies with equal force to Perrilloux’s and Foster’s

alleged conduct in this case.

First, the Fifth Circuit explains, the Singleton defendants’ alleged conduct was less

“intimately associated with the judicial phase of the criminal process”72 and more

investigatory because:

Defendants allegedly used the [fake] subpoenas to gather information from

crime victims and witnesses outside of court. Investigation has historically

and by precedent been regarded as the work of police, not prosecutors, and

it does not become a prosecutorial function merely because a prosecutor

has chosen to participate. Defendants’ information-gathering is more

analogous to investigative police work than advocatory conduct.73

70 Id.

71 Id. at 782, n. 5 (emphasis added).

72 Id. at 782.

73 Id. at 782–83 (5th Cir. 2020)(emphasis added)(some internal citations and quotations omitted).

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The physical context of the prosecutorial misconduct -- outside of court -- is treated as

relevant by the Fifth Circuit, as it was by this Court in its previous Ruling:

Here, Wearry alleges, Perrilloux “picked [Ashton] up from school, drove him

to Perrilloux’s office, and then, without a parent present . . . intimidated him

into falsely implicating Wearry in the Walber murder.” These alleged actions

occurred not, as in Imbler, during a courtroom recess at trial, which would

place them much more squarely in the prosecutorial sphere. Instead,

Perrilloux’s alleged actions began when he went to Ashton’s school in

December 2001, three months before Wearry’s March 2002 trial. . .74

Moreover, the Fifth Circuit’s observation that information-gathering is more investigatory

than advocatory bolsters this Court’s reasoning in its denial of absolute immunity as to

Perrilloux and Foster. This Court previously distinguished between a prosecutor’s “effort

to control the presentation of [a] witness' testimony”75 (which the Imbler Court held to be

prosecutorial in nature and entitled to absolute immunity) and the wholesale fabrication

of testimony. The mental gymnastics required to conclude that inventing fake testimony

and coercing a minor to recite it at trial is simply “an effort to control the presentation of

testimony” are difficult to fathom. Securing a witness statement has traditionally been

considered an investigatory police function; securing false witness testimony by inventing

it and coercing its delivery is not conduct advocatory in nature.

The Fifth Circuit in Singleton instructs that prosecutorial conduct is less “intimately

associated with the judicial phase of the criminal process”76 when it involves “side-

stepping,” or acting outside of, the judicial process. Creating a false narrative and then

intimidating a minor into parroting that narrative is no less “side-stepping” than issuing

fake subpoenas. The duty to advocate “is limited to legitimate, lawful conduct compatible

74 Rec. Doc. No. 44, pp. 20-21.

75 Singleton, 956 F.3d at 783.

76 Id. at 782.

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with the very nature of a trial as a search for truth.”77 It is notable that that neither Perrilloux

nor Foster argues that he is entitled to qualified immunity – perhaps because it would

strain credibility to argue that the willful fabrication of evidence could be objectively

reasonable.

The Singleton court also quoted the Fifth Circuit’s decision in Loupe v. O’Bannon,

noting that a prosecutor who orders a warrantless arrest

steps outside of his role as an advocate of the state before a neutral and

detached judicial body and takes upon himself the responsibility of

determining whether probable cause exists, much as police routinely do.

Nothing in the procuring of immediate, warrantless arrests is so essential to

the judicial process that a prosecutor must be granted absolute immunity.78

Likewise, nothing in the willful fabrication of witness testimony is so essential to the judicial

process that a prosecutor or law enforcement officer should be granted absolute immunity

when he engages in it. The judicial process is a search for truth. Coercion of untruthful

testimony is not essential to the judicial process; it is the antithesis of the judicial process.

If the underlying prosecution fails without the fabricated testimony, so be it. Surely the

system values honest prosecutions more than obtaining a guilty verdict at any cost. This

Court perceives a common thread between the fake subpoenas and the alleged conduct

herein. In Singleton, the prosecutors used fake subpoenas to coerce and intimidate

witnesses to do what they wanted -- appear for interviews. This scheme worked because

the defendants harnessed the authority of the courts and the justice system to create a

dynamic where the recipient of the fake subpoena felt pressured to submit. Similarly, the

77 Nix v. Whiteside, 475 U.S. 157, 166 (1986); Id. at 171 (“under no circumstance may a lawyer either

advocate or passively tolerate a client's giving false testimony. This, of course, is consistent with the

governance of trial conduct in what we have long called ‘a search for truth’”).

78 824 F.3d 534, 540 (5th Cir. 2016) (emphasis added); Singleton v. Cannizzaro, 956 F.3d 773, 782 (5th

Cir. 2020).

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approach allegedly used by Foster and Perrilloux relied upon flexing the muscle and

power of their respective offices to intimidate a fourteen-year-old child into doing what

they wanted. In both cases, the imprimatur of the courts and the judicial system was

abused in order to distort the information-gathering process. The Fifth Circuit in Singleton

clearly states that such an “attempt to obtain information from crime victims and witnesses

outside the judicial context falls into the category of investigative conduct for which

prosecutors are not immune.”79

Singleton announces a preference for functional over temporal analysis and

appears to allow a wider berth for normative policy considerations when assessing what

falls within the prosecutor’s “traditional” role. Viewed in light of Singleton, the Court finds

that Foster’s Motion to Dismiss on the grounds of absolute immunity shall be DENIED.

Perrilloux’s Motion adopting Foster’s arguments is likewise DENIED.

IV. CONCLUSION

For the reasons set forth above, Foster’s Motion to Dismiss for Failure to State a

Claim Pursuant to Rule 12(c)80 and Perrilloux’s Motion to Dismiss for Failure to State a

Claim81 are both DENIED.

IT IS SO ORDERED.

Signed in Baton Rouge, Louisiana on June 24, 2020.

S

CHIEF JUDGE SHELLY D. DICK

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

79 Id. at 783–84 (citing Hoog-Watson v. Guadalupe Cty., Tex., 591 F.3d 431, 438 (5th Cir. 2009)).

80 Rec. Doc. No. 49.

81 Rec. Doc. No. 51.

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