Walter v. New Orleans City

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

SULLIVAN WALTER, CIVIL ACTION

Plaintiff

VERSUS NO. 23-4352

CITY OF NEW ORLEANS, ET AL., SECTION: “E” (2)

Defendant

ORDER AND REASONS

Before the Court are Defendants, Anne Kirkpatrick (“Kirkpatrick”), in her official

capacity as Superintendent of the New Orleans Police Department (“NOPD”), the City of

New Orleans (“the City”), and Harry O’Neal (O’Neal”) (Kirkpatrick, the City and O’Neal

sometimes collectively referred to as “the City Defendants”).1 The City Defendants filed a

Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.2

Plaintiff, Sullivan Walter, opposes the motion.3 The City Defendants filed a reply.4

Plaintiff also filed two notices of supplemental authority.5

BACKGROUND

I. Factual Background

This case arises out of the wrongful conviction and incarceration of Plaintiff,

Sullivan Walter.6 On May 10, 1986, L.S. was sexually assaulted in her home.7 Immediately

after the assault, L.S. called the police and was taken to the hospital, where a resident

1 The NOPD is not a defendant in this action. NOPD “is not recognized as a legal entity or person capable of

being sued.” Littlejohn v. New Orleans City, 493 F. Supp. 3d 509 (E.D. La. 2020) (quoting Thomas v. City

of New Orleans, 883 F. Supp. 2d 669, 691 (E.D. La. 2012)). Any references to the NOPD in the parties’

briefing are in effect references to the City.

2 R. Doc. 90; FED. R. CIV. P. 12(b)(6).

3 R. Doc. 93.

4 R. Doc. 94.

5 R. Doc. 95; R. Doc. 97.

6 R. Doc. 85.

7 Id. at p. 9.

physician performed an examination and preserved the evidence in rape kit collecting

several swabs.8 That night, L.S. also provided a description of the perpetrator to the

police.9 She described the perpetrator as a Black man who was “5’11, slender, 18-20 years

old, with thick eyebrows, jerri curl ringlets, [and was] wearing a backwards baseball

hat.”10 L.S. stated that the man’s baseball hat was blue, and he wore a face covering during

the assault.11 A sketch artist prepared a composite drawing of the perpetrator.12

The Orleans Parish Coroner’s Office performed serological testing on the vaginal

swabs recovered from L.S.13 Plaintiff alleges that serological testing “is used to determine

whether a person’s body secretes ABO blood group antigens into their bodily fluids, such

as saliva, sweat, and semen.”14 Persons who secrete blood group antigens are known as

“secretors,” while those who do not are referred to as “non-secretors.”15 The testing

revealed that the seminal fluid came from a perpetrator who was a non-secretor.16

Separately, Harry O’Neal (“O’Neal”), a criminalist in the New Orleans Police Crime Lab

at the time,17 serologically tested a semen sample retrieved from L.S.’s shorts.18 This

testing also revealed that the perpetrator was a non-secretor.19

On June 23, 1986, Plaintiff—who was seventeen, of an average build, had cropped

8 Id. at p. 10.

9 Id.

10 Id. at p. 10.

11 Id. at pp. 9. L.S. stated that the face covering dropped several times during the assault, which made her

believe she could identify him.

12 Id. at p. 11.

13 Id.

14 Id. at p. 10.

15 Id. Serological testing of bodily fluids from secretors reveals the blood type of the person who was the

source of the fluid. When someone is a non-secretor, their blood type is not determinable from their bodily

fluids. Plaintiff asserts that this distinction “allows laboratories to investigate evidentiary bodily fluids other

than blood to eliminate persons of interest as the source.” Id. at pp. 10-11.

16 Id. at p. 11.

17 Id. at p. 8.

18 Id. at p. 11.

19 Id.

natural hair, sparse eyebrows, and was without facial hair at the time—was arrested for

an unrelated simple burglary.20 Plaintiff was wearing a blue hat when he was arrested.21

The police identified him as a potential match to the composite drawing.22 On June 26,

1986, the police presented L.S. with a photo lineup of seven individual photographs, one

of which was a photo of Plaintiff wearing a blue hat.23 Plaintiff alleges he was the only

man in the photos who was wearing a hat.24 Plaintiff alleges “L.S. made a cross-racial

identification and incorrectly identified Mr. Walter as the perpetrator.”25

On November 13, 1986, Plaintiff was charged with two counts of aggravated crimes

against nature, one count of aggravated rape, and one count of aggravated burglary.26 On

December 1, 1986, he was arraigned and pleaded not guilty.27

Plaintiff alleges that, while they were preparing his defense, he and his counsel

were unaware of the serological testing that had been performed.28 Plaintiff alleges that

“neither [he] nor his attorney received the lab report before the morning of trial. As a

result, this evidence was unusable at trial, and Mr. Walter was deprived of an opportunity

to obtain and present any evidence regarding his own secretor status or the implication

of his secretor status.”29

At the trial, L.S. testified and identified Plaintiff as the perpetrator.30 Detective

20 Id.

21 Id.

22 See id.

23 Id.

24 Id.

25 Id.

26 Id. at p. 12.

27 Id.

28 Id.

29 Id.

30 Id. Plaintiff alleges L.S.’s testimony contradicted the prior statement she gave to police because she

testified that the perpetrator did not have much hair, while her prior statement described the perpetrator

as having thick eyebrows, curly hair, and stubble.

O’Neal testified that the serological testing of the seminal fluid revealed that the

perpetrator was a non-secretor but did not explain the significance of this finding:

“In this particular case, examination of seminal fluid revealed no secretor

activity which would indicate that the individual who left seminal fluid

stains was a non-secretor. In other words, they did not secrete their blood

type.31

Plaintiff alleges that O’Neal confirmed the perpetrator was a non-secretor during

his cross-examination.32 Following the three-hour trial, a twelve-member jury found

Plaintiff guilty on all counts.33 Plaintiff was sentenced to thirty-five years in prison.34

Plaintiff appealed his conviction, arguing that OPDA violated his constitutional

due process rights and violated its discovery duties because it withheld the serological

testing reports until the day of trial.35 In October 1987, the Louisiana Fourth Circuit Court

of Appeal, finding OPDA violated its discovery duties, remanded the case to the trial court

to allow for Plaintiff to present his Brady36 claims.37 On January 13, 1988, serological

testing was ordered, which revealed that Plaintiff was a secretor and secreted Blood Type

B antigens.38 Plaintiff alleges that this testing confirmed that Plaintiff could not have been

the perpetrator of the crimes against L.S.39

Plaintiff moved for a new trial.40 On April 29, 1988, the criminal district court held

an evidentiary hearing on Plaintiff’s motion for a new trial.41 Plaintiff alleges that the

31 Id.

32 Id. at p. 13.

33 Id. at p. 12.

34 Id. at p. 13.

35 Id.

36 Brady v. Maryland, 373 U.S. 83 (1963).

37 R. Doc. 85, p. 13.

38 Id.

39 Id. at p. 14.

40 Id.

41 Id.

prosecution’s only witness at the hearing was O’Neal.42 Plaintiff alleges that

prior to . . . [O’Neal’s] testimony, one or more agents of the OPDA directed

Defendant O’Neal to lie about the secretor status testing and significance.

In the OPDA’s words, the OPDA “asked its criminalist [O’Neal] to come in

and ‘fudge’” his testimony. “And that’s what he did.”43

In the alternative, Plaintiff alleges that Detective O’Neal intentionally falsified his

testimony on his own and concealed the fact that he gave false testimony from OPDA.44

At the hearing, Detective O’Neal testified that the serological testing did not

necessarily exclude Mr. Walter as a potential perpetrator.45 Detective O’Neal also testified

that the serological testing of the rape kit swabs did not conclusively establish whether

the perpetrator was a secretor.46 Plaintiff alleges that this testimony was false and directly

contradicted Detective O’Neal’s testimony at the first trial.47

Plaintiff alleges that O’Neal’s testimony was the “sole basis for the criminal district

court to deny [Plaintiff’s] motion for a new trial,” as no other witness testified at the

hearing.48 Plaintiff appealed, and the Fourth Circuit Court of Appeal affirmed the denial

of the motion for a new trial.49

In October 2021, the Innocence Project New Orleans (“IPNO”) took on Plaintiff’s

case.50 IPNO contacted the Civil Rights Division of OPDA, which began conducting its

own investigation into Plaintiff’s case.51 On August 23, 2022, OPDA and IPNO attorneys

42 Id.

43 Id.

44 Id.

45 Id. at p. 14.

46 Id.

47 Id.

48 Id. at p. 15.

49 Id. Plaintiff alleges the Fourth Circuit applied the incorrect legal standard to evaluate whether the newly

discovered evidence would have changed the result of the trial. The Louisiana Supreme Court granted Mr.

Walter’s writ and remanded for the Fourth Circuit to apply the correct standard. The Fourth Circuit again

affirmed Mr. Walter’s conviction. Id. at p. 15.

50 Id.

51 Id.

filed a “Joint Agreement and Motion to Vacate” Plaintiff’s conviction.52 At the motion

hearing on August 25, 2022, OPDA “stated that ‘the serology evidence’ disclosed on the

morning of Mr. Walter’s trial ‘show[ed] that’ Mr. Walter ‘did not commit the crime.’”53

After the hearing, a criminal district court judge vacated Plaintiff’s conviction and ordered

his release from prison.54

Plaintiff filed the instant civil lawsuit, seeking to recover compensatory damages,

punitive damages, and an award of costs and attorneys’ fees for violations of his civil rights

under 42 U.S.C. §§ 1983 and 1988, the Fifth and Fourteenth Amendments of the United

States Constitution, the Louisiana Constitution, and other Louisiana state law.55 Plaintiff

seeks to hold OPDA, the City, O’Neal, and other unnamed agents of the OPDA/the

City/NOPD liable for violations of his civil rights, which resulted in his wrongful

incarceration for over 35 years.56 Plaintiff alleges that Defendants violated his Fifth and

Fourteenth Amendment rights by “fabricating evidence; suppressing exculpatory

evidence; suborning and committing perjury; and creating and maintaining unlawful

policies, customs, and practices that caused the wrongful and unconstitutional acts

. . . .”57

Plaintiff brings § 1983 individual capacity claims against both O’Neal and

“John/Jane Does #1-20,” employees of the NOPD or OPDA acting under the color of state

law, alleging the following violations: (1) deprivation of liberty without due process of law,

in violation of the Fifth and Fourteenth Amendments; (2) violations of due process that

52 Id.

53 Id. at p. 16.

54 Id.

55 See generally R. Doc. 85.

56 R. Doc. 85, p. 3.

57 Id. at p. 3.

shock the conscience, in violation of the Fourteenth Amendment; and (3) a civil rights

conspiracy claim.58 Plaintiff brings a “failure to intervene” claim solely as to John/Jane

Does #1-20.59 Plaintiff alleges the individual Defendants, acting individually, jointly,

and/or in conspiracy, improperly suppressed and failed to timely disclose material

exculpatory evidence, fabricated evidence, and engaged in the affirmative concealment of

such misconduct, thereby depriving Mr. Walter of his right not to be deprived of liberty

without due process of law.”60 Plaintiff also asserts state law claims against the individual

Defendants: claims for malicious prosecution, wrongful conviction and wrongful

imprisonment, negligence and/or gross negligence, intentional and/or reckless infliction

of emotional distress, and violations of the Louisiana State Constitution.61

Plaintiff brings an official capacity claim under Monell v. Department of Social

Services62 against the City, through OPDA and NOPD. Plaintiff alleges that

[b]oth the NOPD and the OPDA maintained unlawful policies, customs, and

practices during Mr. Walter’s investigation, arrest, and trial. In executing

these unlawful policies, customs, and practices, the NOPD and OPDA

violated the constitutional rights of criminal suspects and defendants,

including Mr. Walter. In Mr. Walter’s case, these unlawful policies,

customs, and practices enabled Defendant O’Neal and other members,

servants, employees, and agents of the City, NOPD, and OPDA to violate Mr.

Walter’s constitutional rights. The policymaking officials acting on behalf of

the City, NOPD, and OPDA were deliberately indifferent to the likelihood

that their agencies’ unlawful policies, customs, and practices would cause

constitutional violations like Mr. Walter’s. As a result, the City and

Defendants Williams and Kirkpatrick, sued in their official capacities,

caused and are liable for Mr. Walter’s injuries.63

58 Id. at pp. 8, 51-55.

59 Id. at p. 54.

60 Id. at p. 52.

61 Id. at pp. 58-62.

62 436 U.S. 658 (1978).

63 R. Doc. 85, pp. 5-6.

II. Procedural History

The City Defendants filed their first motion to dismiss on November 12, 2024.64

The Court granted Plaintiff leave to amend his complaint a third time in response to the

arguments raised in the City Defendants’ first motion to dismiss.65 Plaintiff filed a third

amended complaint and attached the expert report prepared by Professor Laurie L.

Levenson, which discusses OPDA’s policies, customs, and practices and whether they

complied with Brady.66 As a result, the Court denied the first motion to dismiss without

prejudice.67 The City Defendants filed their second motion to dismiss on January 27,

2025.68

The City Defendants argue that Plaintiff’s claims against O’Neal in his individual

capacity should be dismissed.69 Defendants invoke the defense of qualified immunity and

argue that Plaintiff fails to demonstrate that O’Neal violated Plaintiff’s constitutional

rights.70 The City Defendants further argue that, to the extent Plaintiff’s claims against

O’Neal are predicated solely on O’Neal’s testimony, these claims are barred by absolute

immunity.71 Finally, Defendants argue that Plaintiff has failed to adequately plead the

requisite elements of his Monell claim against the City and Anne Kirkpatrick, in her

official capacity as NOPD Superintendent.72 Defendants argue that Plaintiff fails to allege

facts demonstrating the City had a custom or policy, particularly as to facilitating perjury,

64 R. Doc. 73.

65 R. Doc. 78. The Court previously denied without prejudice two motions to dismiss filed by Jason Williams,

on behalf of OPDA. See R. Docs. 37, 68.

66 R. Doc. 85.

67 R. Doc. 86.

68 R. Doc. 90.

69 In a footnote, Defendants argue that the Court should dismiss Plaintiff’s state law claims against O’Neal

because Plaintiff ‘repeats and realleges’ the facts he has plead in support of [his] federal claims.” R. Doc.

90-1, p. 17.

70 Id. at pp. 8-15.

71 Id. at pp. 15-17.

72 Id. at pp. 17-18.

resulting in a violation of Plaintiff’s rights under Monell to demonstrate Defendants’

deliberate indifference.73 Defendants further argue Plaintiff has failed to plead facts in

support of his failure to train, supervise, and discipline claims.74

LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a district court may dismiss

a complaint for failure to state a claim upon which relief may be granted if the plaintiff

has not set forth factual allegations in support of his claim that would entitle him to

relief.75 “To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”76 “A claim

has facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.”77

The Court, however, does not accept as true legal conclusions or mere conclusory

statements, and “conclusory allegations or legal conclusions masquerading as factual

conclusions will not suffice to prevent a motion to dismiss.”78 Indeed, “threadbare recitals

of elements of a cause of action, supported by mere conclusory statements” or “naked

assertion[s] devoid of further factual enhancement” are not sufficient.79

“[W]here the well-pleaded facts do not permit the court to infer more than the

mere possibility of misconduct, the complaint has alleged—but it has not show[n]’—that

the pleader is entitled to relief.”80 However, “legal conclusions can provide the framework

73 Id. at pp. 20-25.

74 Id. at p. 24.

75 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.

2007).

76 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).

77 Id.

78 S. Christian Leadership Conf. v. Sup. Ct. of the State of La., 252 F.3d 781, 786 (5th Cir. 2001) (citing

Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993)).

79 Iqbal, 556 U.S. at 663, 678 (citations omitted).

80 Id. at 679 (quoting FED. R. CIV. P. 8(a)(2)).

of a complaint, [if] they [are] supported by factual allegations.”81 “Determining whether

a complaint states a plausible claim for relief [is] . . . a context-specific task that requires

the reviewing court to draw on its judicial experience and common sense.”82 “Although

detailed factual allegations are not required,” “[d]ismissal is appropriate when the

complaint ‘on its face show[s] a bar to relief.’”83 Whether a plaintiff “will be able to offer

sufficient proof to support [his or her] claims is more appropriate in the context of a

motion for summary judgment or a trial on the merits” rather than in a motion to

dismiss.84 “[I]ntensive disputes of material fact . . . are usually more appropriate for

summary judgment . . . .”85

For plaintiffs alleging municipal liability claims, the complaint’s “description of a

policy or custom and its relationship to the underlying constitutional violation . . . cannot

be conclusory; it must contain specific facts.”86 In the Fifth Circuit, “courts should not

‘grant motions to dismiss for failing to plead [a] specific identity [of the policymaker].’

Rather, ‘the complaint need only allege facts that show an official policy, promulgated or

ratified by the policymaker, under which the municipality is said to be liable.’”87 To

sufficiently allege a widespread practice under a failure to train or discipline claim, “to

survive dismissal, plaintiffs must cite sufficiently numerous prior incidents, each of which

includes specific facts that are sufficiently similar to those alleged . . . .”88

81 Id. “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly,

550 U.S. at 555.

82 Iqbal, 556 U.S. at 679.

83 Cutrer v. McMillan, 308 F. App’x 819, 820 (5th Cir. 2009) (per curiam) (citations omitted).

84 Smith v. GE Healthcare, Inc., No. 3:19-CV-00492, 2019 WL 4565246, at *7 (W.D. La. Sept. 4, 2019).

85 Dong Phuong Bakery, Inc. v. Gemini Soc'y, LLC, No. CV 21-1109, 2022 WL 898750, at *5 (E.D. La. Mar.

28, 2022).

86 Pena v. City of Rio Grande City, 879 F.3d 613, 622 (5th Cir. 2018).

87 Id. at 622-23 (citing Groden v. City of Dallas, 826 F.3d 280, 284, 286 (5th Cir. 2016)).

88 Verastique v. City of Dallas, 106 F.4th 427, 432 (5th Cir. 2024).

LAW AND ANALYSIS

I. Plaintiff’s claims against the unidentified Defendants will be

dismissed.

Plaintiff asserts a “failure to intervene” claim against “John/Jane Does #1-20” in

his third amended complaint.89 Defendants argue in their motion to dismiss that

Plaintiff’s third amended complaint “purportedly asserts claims against twenty-one

defendants in their individual capacities, but he names only one: NOPD Criminalist Harry

O’Neal.”90 Defendants argue that Plaintiff fails to make any specific factual allegations as

to how these unnamed Defendants violated Plaintiff’s civil rights.91 Defendants argue

Plaintiff has failed to plead facts demonstrating that any person “failed to intervene” while

Plaintiff’s constitutional rights were violated.92 Defendants further argue Plaintiff alleges

facts which are specific only to O’Neal.93 Plaintiff does not address Defendants’ arguments

as to the unnamed John/Jane Does in opposition to the motion to dismiss.94 At the status

conference in this matter, counsel for Plaintiff represented to the Court that no other law

enforcement officers had been identified. As a result, the Court will dismiss Count Three

of Plaintiff’s complaint as to the John/Jane Doe Defendants without prejudice.95 The

Court also will dismiss any other individual capacity claim against unnamed Defendants,

to the extent they are stated in the third amended complaint.

89 R. Doc. 85, p. 54.

90 R. Doc. 90-1, p. 9.

91 Id.

92 Id. at pp. 12-13.

93 R. Doc. 90-1, p. 9.

94 See generally R. Doc. 93.

95 See Phillips v. Whittington, 497 F. Supp. 3d 122, 149 (W.D. La. 2020) (dismissing failure to intervene

claim after plaintiff conceded dismissal).

II. O’Neal is absolutely immune from suit for any claim related to his

testimony and/or his pretrial conspiracy to commit perjury.

“Witnesses are entitled to absolute immunity against § 1983 suits based on their

testimony in a criminal trial.”96 “[A] police officer is entitled to absolute immunity when

testifying as a witness in a criminal legal proceeding.”97 The Fifth Circuit has further held

that absolute witness immunity extends to “pre-trial conspiracy to commit perjury”

because “allowing such conspiracy suits would permit most § 1983 perjury suits to be

restyled as § 1983 claims for conspiracy to commit perjury, [as] ‘a witness rarely prepares

her testimony on her own.’”98

In Count One of his third amended complaint, Plaintiff alleges that, while acting

individually, jointly, and/or in conspiracy, “Defendants caused Defendant O’Neal to

commit perjury and falsely testify that the serological testing of the fluids recovered from

the victim did not conclusively establish whether the perpetrator is a secretor” in violation

of Plaintiff’s Fifth and Fourteenth Amendment rights.99 Plaintiff alleges either “one or

more agents of the OPDA directed Defendant O’Neal to lie about the secretor status

testing and significance” at the hearing, or, in the alternative, O’Neal independently

decided to falsify his testimony “to say that the lab results did not necessarily exclude Mr.

Walter.”100 Plaintiff alleges “O’Neal’s false testimony at the hearing provided the sole basis

for the Criminal District Court to deny Mr. Walter’s motion for new trial.”101 In Count

Four of his third amended complaint, Plaintiff asserts a civil rights conspiracy claim

96 Mowbray v. Cameron Cnty., 274 F.3d 269, 277 (5th Cir. 2001) (quoting Briscoe v. LaHue, 460 U.S. 325,

329–31 (1983)); Castellano v. Fragozo, 352 F.3d 939, 958 (5th Cir. 2003) (It is a “well-established rule that

prosecutors and witnesses, including police officers, have absolute immunity for their testimony at trial.”).

97 Wearry v. Foster, 33 F.4th 260, 272 (5th Cir. 2022) (citing Briscoe, 460 U.S. at 345-46) (“[I]n that

situation, he is not acting as a police officer, but rather as ‘any other witness sworn to tell the truth.’”).

98 Id. (citing Franklin v. Terr, 201 F.3d 1098, 1101–03 (9th Cir. 2000)).

99 R. Doc. 85, pp. 51-52.

100 Id. at pp. 14-15.

101 Id. at p. 15.

against individual Defendants, including O’Neal, for “acting in concert to fabricate

evidence, including but not limited to false witness statements; and acting in concert to

affirmatively conceal such misconduct.”102

To the extent Plaintiff asserts claims against O’Neal in his individual capacity based

on his alleged perjury and/or any conspiracy with others to commit perjury and testify

falsely, O’Neal is entitled to absolute immunity from suit.103 These claims will be

dismissed with prejudice.

III. The Court will permit discovery as to Plaintiff’s Fourteenth

Amendment due process claims against O’Neal in his individual

capacity.

Defendants raise the defense of qualified immunity as to Plaintiff’s remaining

claims against O’Neal in his individual capacity.104 Defendants argue Plaintiff has failed

to establish that O’Neal’s actions deprived Plaintiff of any constitutional right.105

“Qualified immunity is a defense available to government officials in their

individual capacities under 42 U.S.C. § 1983.”106 “Qualified immunity is an ‘immunity

from suit rather than a mere defense to liability.’”107 “Qualified immunity protects

‘government officials performing discretionary functions’ from liability for civil damages

so long as their ‘conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.’”108

102 Id. at p. 55.

103 See supra note 95. See, e.g., Coleman v. Smith, No. 2:16-CV-60-KS-MTP, 2016 WL 6242818 (S.D. Miss.

Sept. 26, 2016), report and recommendation adopted, No. 2:16-CV-60-KS-MTP, 2016 WL 6238601 (S.D.

Miss. Oct. 25, 2016).

104 R. Doc. 90-1, pp. 8-9.

105 Id. at p. 10.

106 Livingston v. Ward, 4:20-CV-00474-SDJ-CAN, 2021 WL 3480007, at *5 (E.D. Tex. June 4, 2021).

107 Id. (quoting Pearson v. Callahan, 555 U.S. 223, 237 (2009)).

108 Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

“[A] defendant's entitlement to qualified immunity must be determined ‘at the

earliest possible stage of the litigation.’”109 “In Saucier v. Katz, the Supreme Court set

forth a two-part framework for analyzing whether a defendant was entitled to qualified

immunity.”110 Saucier instructs that the Court conduct the inquiry as follows:

First, the Court asks “taken in the light most favorable to the party asserting

the injury, do the facts alleged show the officer’s conduct violated a

constitutional right?” Second, the Court considers whether the allegedly

violated right is “clearly established” in that “it would be clear to a

reasonable officer that his conduct was unlawful in the situation he

confronted.” The Court does not have to address these questions

sequentially; it can proceed with either inquiry first.111

“Once a defendant invokes the defense of qualified immunity, the plaintiff carries

the burden of demonstrating its inapplicability.”112 “In the context of a motion to dismiss,

‘a district court must first find ‘that the plaintiff’s pleadings assert facts which, if true,

would overcome the defense of qualified immunity.’”113 “Thus, a plaintiff seeking to

overcome qualified immunity must plead specific facts that both allow the court to draw

the reasonable inference that the defendant is liable for the harm he has alleged and that

defeat a qualified immunity defense with equal specificity.”114 “If the defendant’s conduct

did not violate a plaintiff’s constitutional rights under the first prong, or his conduct was

objectively reasonable under the second prong, he is entitled to qualified immunity.”115

Mere “conclusory allegations will not suffice to prevent dismissal for failure to state a

claim.”116

109 Carswell v. Camp, 54 F.4th 307, 310 (5th Cir. 2022).

110 Woodall, 78 F. App’x at 954 (citing 535 U.S. 194 (2001)).

111 Id. (quoting Saucier, 535 U.S. at 201-02) (internal citations omitted).

112 Id.

113 Id. at *15 (quoting Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012)).

114 Id. (quoting Backe, 691 F.3d at 648).

115 Blackwell v. Laque, 275 F. App’x 363, 366 (5th Cir. 2008).

116 Penley v. Sandoval, No. Civ.A. 4:04CV24, 2005 WL 3970822, at *6 (E.D. Tex. Mar. 8, 2005).

“After the district court finds a plaintiff has so pled, if the court remains ‘unable to

rule on the immunity defense without further clarification of the facts,’ it may issue a

discovery order ‘narrowly tailored to uncover only those facts needed to rule on the

immunity claim.’”117 The “purpose is only to allow the district court to rule on the

defendant's assertion of QI; its purpose is not to provide a backdoor for plaintiffs to

circumvent the defendant's immunity from suit.”118 “[W]here the QI-asserting official

determines that any pre-ruling discovery sought or ordered in the district court crosses

the line from permissible Lion Boulous discovery to impermissible vitiation of the

official's immunity from suit, the collateral order doctrine authorizes an immediate

appeal . . . .”119

As stated above, the Court will dismiss all individual capacity claims against O’Neal

based on allegations that he testified falsely at the hearing or acted in conspiracy with

others to do so based on absolute witness immunity. The Court will consider only

Plaintiff’s remaining claims that O’Neal violated Plaintiff’s Fourteenth Amendment due

process rights by suppressing, concealing, or withholding exculpatory evidence.

“[T]he suppression by the prosecution of evidence favorable to an accused upon

request violates due process where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of the prosecution.”120 To prevail

on a Brady claim, the party must show “(1) the [actor] suppressed evidence; (2) the

evidence is favorable to the defense; and (3) the evidence is material to guilt or

117 Backe, 691 F.3d at 648; Zapata v. Melson, 750 F.3d 481, 485 (5th Cir. 2014); Lion Boulos v. Wilson, 834

F.2d 504, 508–09 (5th Cir. 1987).

118 Carswell, 54 F.4th at 311.

119 Id. (citing Ramirez v. Guadarrama, 3 F.4th 129, 133 (5th Cir. 2021) (per curiam)).

120 Brady v. Maryland, 373 U.S. 83, 87 (1963).

punishment.”121 In the Fifth Circuit, “when the claim is untimely disclosure of Brady

material, [courts] have looked ‘to whether [the defendant] was prejudiced by the tardy

disclosure,’” and “a defendant is not prejudiced if the evidence is received in time for its

effective use at trial.”122

“Although civil claims brought under § 1983 for denial of Fourteenth Amendment

due process rights based on a public officer's alleged concealing of exculpatory evidence

may be considered in the context of Brady, due process civil claims are not always strictly

limited by the criminal rules of the Brady framework.”123 “[A] police officer cannot avail

himself of a qualified immunity defense if he . . . deliberately conceals exculpatory

evidence, for such activity violates clearly established constitutional principles.”124 “[A]

police officer violates clearly established constitutional rights when he conceals

exculpatory evidence, including when he fails to disclose such evidence to the prosecuting

attorney's office.”125

The Court first assesses whether Plaintiff pleads specific facts that allow the Court

to draw the reasonable inference that O’Neal violated Plaintiff’s Fourteenth Amendment

due process rights, as alleged, that would be sufficient to defeat a qualified immunity

defense with equal specificity.126 In Counts One and Two of his third amended complaint,

Plaintiff alleges the individual Defendants, including O’Neal, “improperly suppressed and

failed to timely disclose material exculpatory evidence, fabricated evidence, and engaged

121 Miller v. Dretke, 431 F.3d 241, 245 (5th Cir. 2005) (citing Brady, 373 U.S. at 87).

122 Powell v. Quarterman, 536 F.3d 325, 335 (5th Cir. 2008).

123 Rodriguez v. City of Houston, No. CIV A H-06-2650, 2007 WL 1189639, at *3 (S.D. Tex. Apr. 19, 2007)

(citing Mowbray v. Cameron Cnty., 274 F.3d 269, 278 n.5 (5th Cir. 2001)).

124 Geter v. Fortenberry, 849 F.2d 1550, 1559 (5th Cir. 1988).

125 Williams v. Connick, No. CIV.A. 12-1274, 2014 WL 172520, at *11 (E.D. La. Jan. 15, 2014); Burge v. Par.

of St. Tammany, 187 F.3d 452, 480 n. 11 (5th Cir. 1999).

126 Id.

in the affirmative concealment of such misconduct, thereby depriving Plaintiff of his right

not to be deprived of liberty without due process of law.”127 Plaintiff alleges O’Neal

“continu[ed] to hide”128 and “concealed . . . critical exculpatory information including

scientific evidence that conclusively excluded Mr. Walter as the perpetrator of the crime

. . . .”129 Plaintiff alleges O’Neal performed serological testing of the crime scene evidence

before Plaintiff’s trial.130 Plaintiff alleges that neither he nor his counsel received the

serological testing the NOPD Crime Lab performed until the morning of trial, which made

the evidence unusable.131 Plaintiff further alleges that, after the Louisiana Fourth Circuit

Court of Appeal remanded the case to the trial court to investigate Plaintiff’s Brady claim

based on the suppressed serological testing, O’Neal performed Mr. Walter’s serological

tests.132 Plaintiff alleges “O’Neal reported that (a) the blood sample showed Mr. Walter

was Blood Type B, and (b) the saliva sample showed Blood Type B secretor activity.”133 As

a result, Plaintiff argues the evidence was favorable to the defense and material to guilt or

punishment

Drawing all inferences in the light most favorable to Plaintiff and taking the

allegations in the third amended complaint as true, the Court finds Plaintiff pleads

specific facts to plausibly allege that Plaintiff’s due process rights were violated by

O’Neal’s concealment, suppression, and/or withholding of exculpatory evidence prior to

trial—that is, the serological report and corresponding evidence. “[A] police officer cannot

avail himself of a qualified immunity defense if he . . . deliberately conceals exculpatory

127 R. Doc. 85, p. 52.

128 Id. at p. 4.

129 Id. at p. 1.

130 Id. at pp. 11-12, 13-14.

131 Id. at p. 12.

132 Id. at p. 13.

133 Id.

evidence, for such activity violates clearly established constitutional principles.”134

Plaintiff plausibly alleges that, (1) O’Neal suppressed the serological evidence, (2) without

the serological testing evidence, he was unable to use this evidence to assist his defense

or obtain serological testing of his own, and (3) this failure prejudiced him at trial.

Plaintiff has sufficiently pleaded that O’Neal suppressed material, exculpatory evidence

in violation of his Fourteenth Amendment due process rights.

As explained above, “if the court remains ‘unable to rule on the immunity defense

without further clarification of the facts,’ it may issue a discovery order ‘narrowly tailored

to uncover only those facts needed to rule on the immunity claim.’”135 “[F]ailure to limit

discovery [is] tantamount to [a] denial of qualified immunity . . . . [Fifth Circuit]

jurisprudence strongly favors limited discovery in a case like this where a plaintiff alleges

facts to overcome the defense of qualified immunity.”136 Accordingly, the Court finds

limited discovery is necessary for it to rule on O’Neal’s qualified immunity defense. Courts

must examine each official’s actions independently to determine whether he or she is

entitled to qualified immunity.137 The Court finds carefully limited discovery regarding

O’Neal’s role in processing and testing the serological evidence, providing this evidence

to OPDA, and providing this evidence to Plaintiff on the morning of trial, is necessary for

the Court to rule on O’Neal’s invocation of qualified immunity.

134 Geter v. Fortenberry, 849 F.2d 1550, 1559 (5th Cir. 1988).

135 Backe, 691 F.3d at 648 (quoting Lion Boulos, 834 F.2d at 507–08).

136 Asante-Chioke v. Dowdle, 103 F.4th 1126 (5th Cir. 2024), cert. denied, 145 S. Ct. 1051 (2025) (citing

Carswell, 54 F.4th at 312; Lion Boulos, 834 F.2d at 507–08).

137 Newman v. Guedry, 703 F.3d 757, 762 (5th Cir. 2012) (citing Meadours v. Ermel, 483 F.3d 417, 421–22

(5th Cir. 2007)).

IV. Plaintiff’s civil rights conspiracy claim will be dismissed.

In Count IV of his third amended complaint, Plaintiff asserts a “civil rights

conspiracy” claim against all the individual defendants, including Plaintiff.138 As stated

above, the Court will dismiss all individual capacity claims against O’Neal based on

allegations that he testified falsely at the hearing or acted in conspiracy with others to do

so based on absolute witness immunity. The claims in Count IV of the third amended

complaint are based on the failure to disclose exculpatory evidence and not on false

testimony.

Plaintiff’s allegations in Count IV are that the individual defendants acted in

concert to fail to disclose material exculpatory evidence, acted in concert to fabricate

evidence, and acted in concert to conceal such misconduct.139 The Plaintiff alleges that an

unknown agent of the OPDA directed O’Neal to lie about the secretor status testing and

its significance and asked him to “fudge his testimony.”140

As the Defendant points out, the Plaintiff has provided no allegations about which

agent of the OPDA made this statement. Nor has Plaintiff disclosed on what he bases this

allegation.141 “To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”142 “A claim

has facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.”143

138 R. Doc. 85 at p. 55.

139 Id.

140 Id. at p. 14.

141 R. Doc. 94 at p. 5.

142 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).

143 Id.

The Court, however, does not accept as true legal conclusions or mere conclusory

statements, and “conclusory allegations or legal conclusions masquerading as factual

conclusions will not suffice to prevent a motion to dismiss.”144 Indeed, “threadbare

recitals of elements of a cause of action, supported by mere conclusory statements” or

“naked assertion[s] devoid of further factual enhancement” are not sufficient.145

The Court finds the Plaintiff has set forth only naked assertions devoid of factual

enhancements in support of Count IV. Plaintiff’s allegations with respect to Count IV are

threadbare and conclusory. As a result, the Plaintiff has not stated a claim to relief that is

plausible on its face.146 This claim will be dismissed with prejudice.

V. Plaintiff has sufficiently pleaded a Monell claim against the City.

Plaintiff asserts a Monell claim against the City for fabrication, suppression, and

concealment of evidence, and for the City’s failure to train, discipline, or supervise as to

these issues. The City Defendants argue that Plaintiff has “failed to plead plausible facts

that satisfy the elements necessary to sustain” his Monell claim.147 Defendants argue

Plaintiff has failed to identify a policymaker at the City and has failed to plead the requisite

amount of similar prior incidents to constitute a “pattern” and to put the policymaker on

notice to establish deliberate indifference.148

In his third amended complaint, Plaintiff identifies three “policy, custom, and/or

practice[s]” of the City, through NOPD:149

a. Suppressing and failing to timely disclose material exculpatory evidence;

144 S. Christian Leadership Conf. v. Sup. Ct. of the State of La., 252 F.3d 781, 786 (5th Cir. 2001) (citing

Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993)).

145 Iqbal, 556 U.S. at 663, 678 (citations omitted).

146 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.

2007).

147 R. Doc. 90-1, pp. 17-19.

148 See id. at pp. 21-24.

149 Plaintiff also states the same causes of action against ODPA.

b. Fabricating evidence, including but not limited to false witness

statements; and

c. Engaging in the affirmative concealment of such misconduct.150

Plaintiff alleges the City maintained policies, customs, and/or practices of “failing

to adequately train, monitor, and supervise their [sic] employees regarding the

constitutional duties to disclose exculpatory evidence and not to fabricate evidence,”

despite the obviousness that this lack of training would result in constitutional

violations.151 Plaintiff further alleges the City maintained a policy, custom, and/or practice

of failing to supervise and discipline misconduct.152 Plaintiff provides examples in his

complaint as to NOPD’s failure to train police officers on Brady requirements.153 He

points to testimony given by NOPD detectives that there was no policy on Brady in effect

at NOPD, that they did not know what Brady v. Maryland or exculpatory evidence was,

as well as other evidence pertaining to NOPD’s failure to train.154 Plaintiff asserts the

same number of prior incidents of Brady violations relevant to the claims against OPDA

as to the City.

Plaintiff provides at least eight cases which are examples of detectives, including

O’Neal, providing false serological testimony155 and other false testimony favorable to the

prosecution’s case at the time of Plaintiff’s conviction that are sufficiently similar to this

case. The Court finds that Plaintiff has sufficiently alleged facts to state a plausible claim

that a City policymaker, through NOPD’s superintendent, had knowledge of NOPD’s

custom or practice during the relevant time period of suppressing or concealing

150 R. Doc. 85, p. 56.

151 Id. at pp. 56-57.

152 Id. at p. 57.

153 Id. at p. 29.

154 Id. at pp. 28-29.

155 Id. at p. 47 (1983 trial of Brent Washington, in which O’Neal presented false serological testimony to the

jury).

exculpatory evidence and/or fabricating unfavorable evidence, and failed to train,

supervise, or discipline with respect to this custom, and that this custom was the moving

force behind the constitutional violations in this case. The Court construes the allegations

in Plaintiff’s complaint as sufficient to put the policymaker on notice to constitute

deliberate indifference. As recognized by other sections of this court, these allegations are

“sufficient – though barely – to survive a motion to dismiss”156 at this stage.

Accordingly;

CONCLUSION

IT IS ORDERED that the Motion to Dismiss157 is GRANTED IN PART and

DENIED IN PART.

The Motion is GRANTED with respect to Plaintiff’s individual capacity claims

against Defendants John/Jane Does #1-20. These claims are DISMISSED WITHOUT

PREJUDICE.

The Motion is GRANTED with respect to Plaintiff’s individual capacity claim

against O’Neal for perjury, false testimony, and conspiracy to commit perjury but only to

the extent the claim is based on O’Neal’s alleged perjury and/or any conspiracy with

156 See Moses v. City of New Orleans, No. 24-1768, 2025 WL 816296, at *8 n.90 (E.D. La. Mar. 14, 2025)

(“This Court is aware that there are only nine examples of evidence fabrication . . . listed in [plaintiff]'s

amended complaint for the 20-year period from 1974 to 1994, and that this number may not itself be

sufficient to establish a custom or practice as a matter of law. Cf. Armstrong v. Ashley, 60 F.4th 262, 277-

78 (5th Cir. 2023) (upholding dismissal of Monell claim against a district attorney where plaintiff listed

only nine cases over a 24-year period as examples of the district attorney's Brady violations). But because

instances of the fabrication . . . of evidence . . . may not be as easily uncovered as instances of Brady

violations by a district attorney, the Court accepts the lower number as a sufficiently pleaded plausible

allegation of a custom or practice at this juncture to see if discovery may reveal a higher number of such

instances more in line with prior decisions finding that a custom or practice was established. Whether

[plaintiff]'s Monell claim . . . will survive a summary-judgment motion, then, is a decision for a different

day.”) (internal citations omitted). This case also involves allegations of Brady violations. The Court finds

that, in this case, discovery may be beneficial to reveal more instances of “suppressing and failing to timely

disclose material exculpatory evidence; [f]abricating evidence, including but not limited to false witness

statements; and [e]ngaging in the affirmative concealment of such misconduct to establish a custom or

practice” to establish a custom or practice and deliberate indifference.

157 R. Doc. 90.

others to commit perjury and testify falsely. This claim is DISMISSED WITH

PREJUDICE.

The Motion is GRANTED with respect to Plaintiffs individual capacity claim

against O’Neal for civil rights conspiracy. This claim is DISMISSED WITH

PREJUDICE.

IT IS FURTHER ORDERED that, to uncover those facts necessary for the Court

to rule on O’Neal’s qualified immunity defense, on or before August 11 2025 the parties

shall complete limited discovery on the issue of O’Neal’s entitlement to qualified

immunity, specifically O’Neal’s role in processing, testing, and providing Plaintiffs

serological evidence to Plaintiff and the OPDA. On or before August 18 2025, Plaintiff

may file a supplemental opposition to the City Defendants’ motion to dismiss Plaintiffs

claims that O’Neal violated his Fourteenth Amendment due process rights by

suppressing, concealing, or withholding exculpatory evidence. The City Defendants may

file a response on or before August 25 2025.

IT IS FURTHER ORDERED that the Motion is DENIED with respect to

Plaintiffs Monell claim against the City.

New Orleans, Louisiana, on this 17th day of June, 2025.

Seti

SUSIE MORG,

UNITED STATES DISTRICT JUDGE

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