Raymond Flanks v. The City of New Orleans, et al.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

RAYMOND FLANKS CIVIL ACTION

VERSUS NO. 23-6897

THE CITY OF NEW ORLEANS, ET AL. SECTION: “G”(4)

ORDER AND REASONS

This litigation arises from Plaintiff Raymond Flanks’s (“Plaintiff”) wrongful conviction

for first-degree murder in 1985. Plaintiff names as Defendants the City of New Orleans (the

“City”); Jason Williams, in his official capacity as Orleans Parish District Attorney (“Williams”);

Anne Kirkpatrick, in her official capacity as Superintendent of the New Orleans Police Department

(“Kirkpatrick”); and John Dillmann, in his individual capacity (“Dillmann”).1

Before the Court is the City, Kirkpatrick, and Dillmann’s (collectively, “the City

Defendants”) Motion for Judgment on the Pleadings or Alternatively for Summary Judgment,

which seeks dismissal of all claims pending against the City Defendants.2 Plaintiff opposes the

motion.3 In a prior order, the Court addressed multiple issues raised in this motion, and granted

Dillmann qualified immunity on any state or federal constitutional claims brought against him.4

The remaining claims include state law claims against Dillmann for intentional or reckless

infliction of emotional distress and negligence and/or gross negligence.5 Further, Plaintiff brings

1 See Rec. Doc. 27.

2 Rec. Doc. 74.

3 Rec. Doc. 90.

4 Rec. Doc. 161

5 Rec. Doc. 27 at 56.

the state law claims of negligence and/or gross negligence, and violations of due process under the

Louisiana State Constitution directly against the City, and seeks to hold the City vicariously liable

for Dillmann’s tortious conduct.6 Additionally, Plaintiff brings Monell claims under 42 U.S.C. §

1983, against the City, Kirkpatrick, and Williams.7 This Order addresses all of the remaining

claims brought by Plaintiff, which are listed above. Having considered the motion, the memoranda

in support and opposition, the record, and the applicable law, the Court grants the motion in part

and denies the motion in part.

I. Background

In May 1985, a jury found Plaintiff guilty of first-degree murder in the death of Martin

Carnesi (“Mr. Carnesi”).8 This was Plaintiff’s second trial after the first trial in August 1984

resulted in a mistrial when the jury was unable to reach a verdict.9 At both trials, Mr. Carnesi’s

wife, Faye Carnesi (“Mrs. Carnesi”), testified to the circumstances of her husband’s death,

including identifying Plaintiff as the suspect who shot her husband.10

According to the Amended Complaint, Mr. Carnesi was shot by the Actual Perpetrator

(“Actual Perpetrator”) on December 17, 1983, in a robbery gone wrong.11 At the time, Mr. Carnesi

was walking Mrs. Carnesi to her car that was parked in front of their home.12 After Mr. Carnesi

6 Id. at 56, 58.

7 Rec. Doc. 27 at 51–53.

8 Rec. Doc. 27 at 12–13.

9 Id. at 11–12.

10 Id. at 12–13.

11 Id. at 8–9.

12 Id. at 9.

was shot, Mrs. Carnesi threw her purse at the Actual Perpetrator and ran away.13 Initially, Mrs.

Carnesi represented that the Actual Perpetrator was a Black man in his late twenties, about 5’10”

and 150 pounds, with a medium build, brown skin, and a light mustache.14 Mrs. Carnesi also

reported that the Actual Perpetrator was wearing a shower cap and sped off in an aged, light blue

car.15 Approximately a week after the crime, New Orleans Police Department (“NOPD”)

detectives, including Dillmann, visited Mrs. Carnesi at her home and showed her a photo lineup

for identification.16 Mrs. Carnesi narrowed it down to two photos, Plaintiff and one other

individual.17 According to the Amended Complaint, Dillmann then suggested to Mrs. Carnesi that

Plaintiff was the perpetrator.18

Mrs. Carnesi testified before the grand jury and identified Plaintiff as the perpetrator, based

on her identification of him when Dillmann suggested that Plaintiff was the perpetrator.19 Mrs.

Carnesi testified that the Actual Perpetrator had a “little white blotch on the side of his cheek, a

little white mark, like discolored looking,” but rationalized her selection of Plaintiff from the photo

lineup because she “didn’t think they showed the side of his face with that mark in the photo.”20

13 Id.

14 Id.

15 Id.

16 Id. at 11.

17 Id.

18 Id.

19 Id.

20 Id.

Plaintiff’s first trial began on August 28, 1984.21 Mrs. Carnesi identified Plaintiff and

testified that the car he was arrested in resembled the car she saw fleeing the scene.22 The Orleans

Parish District Attorney (“OPDA”) prosecutors also presented testimony from an NOPD

technician who testified that Mr. Carnesi was shot with the same gun as the gun in Plaintiff’s

possession.23 This first trial resulted in a hung jury.24 After the first trial, the Bureau of Alcohol,

Tobacco, and Firearms conducted independent ballistics testing and determined that neither the

bullets used to kill Mr. Carnesi nor the casing found at the scene matched Plaintiff’s gun.25 At the

second trial, Mrs. Carnesi testified that she “knew ‘it was him’” and also testified that Dillmann

did not suggest to her who to identify during the photo lineup.26 The jury returned a guilty verdict

for first-degree murder at this second trial.27

Nearly 37 years later, on November 17, 2022, Plaintiff’s first-degree murder conviction

was vacated.28 At the November 17, 2022 exoneration hearing, the “OPDA stated that ‘the State

agrees that Mr. Flank’s [sic] conviction was obtained in violation of Brady v. Maryland’ because

‘the State failed to disclose … materials [that] are favorable, and under circumstances of the State’s

case against Mr. Flank[s], material.’”29 Plaintiff notes the OPDA specifically “acknowledged that

21 Id.

22 Id. at 12.

23 Id.

24 Id.

25 Id.

26 Id.

27 Id. at 13.

28 Id. at 14.

29 Id.

‘there is a reasonable likelihood that had [Mrs. Carnesi’s] prior testimony been disclosed, it could

have affected the judgment of the jury’ and ‘defense counsel would have been able to present a

compelling case that Mrs. Carnesi was innocently mistaken when presented with the wrong

suspect, that Mr. Flank[s] did not resemble[] the perpetrator, and that the car he was arrested in

did not fit the one at the crime scene.’”30

Plaintiff brings numerous state law and 42 U.S.C. § 1983 claims, including Monell claims,

against the City Defendants.31 Plaintiff asserts that:

[t]hroughout the 1970s, 1980s, and 1990s, the NOPD maintained a

widespread practice of promoting, facilitating, and/or condoning

improper, illegal, and unconstitutional investigative techniques,

including, but not limited to: (a) creation and presentation of false

or materially misleading evidence; and (b) failure to document and

disclose exculpatory and impeachment evidence to prosecutors,

defense counsel, and courts; as well as engaging in the affirmative

and/or passive concealment of those types of misconduct.32

Plaintiff further alleges that the NOPD’s policymakers maintained a policy, custom, or

pattern and practice of condoning official misconduct, including by failing to train, supervise, and

discipline police officers.33 According to Plaintiff, because he and his counsel “were not aware of

the NOPD records showing inconsistencies between Mrs. Carnesi’s initial description of the

Actual Perpetrator and Mr. Flanks’[s] appearance, the NOPD records showing a string of similar

crimes with a consistently described perpetrator, or Mrs. Carnesi’s grand jury testimony regarding

the photo array and her initial identification of Mr. Flanks,” this exculpatory material was unusable

30 Id.

31 Rec. Doc. 27 at 45–56.

32 Id. at 16.

33 Id. at 15.

at trial.34 Plaintiff contends that the NOPD and OPDA’s “policies, customs, and practices directly

and proximately caused the violations of Mr. Flanks’[s] constitutional rights described herein and

his wrongful conviction, imprisonment, and other damages.”35

On September 30, 2025, the City Defendants filed the instant Motion for Judgment on the

Pleadings or Alternatively for Summary Judgment.36 On October 24, 2025, Plaintiff opposed37 the

motion, but consented to the dismissal of multiple claims.38 On October 31, 2025, the City

Defendants filed a reply brief in further support of the motion.39 On December 11, 2025, the Court

granted Dillmann qualified immunity on any state or federal constitutional claims brought against

him.40 This Order addresses the state law claims against Dillmann and the claims against the City

and Kirkpatrick.

II. Parties’ Arguments

A. The City Defendants’ Arguments in Support of the Motion

The City Defendants first argue that they are entitled to judgment on the pleadings under

Rule 12(c).41 Alternatively, the contend they are entitled to summary judgment.42

34 Id. at 13.

35 Id. 22–23.

36 Rec. Doc. 74.

37 Rec. Doc. 90.

38 Rec. Doc. 90 at 2, n. 2.

39 Rec. Doc. 101.

40 Rec. Doc. 161. The Court also dismissed several claims that Plaintiff did not oppose dismissing.

41 Id.

42 Id. Because the Court previously determined that the instant motion is subject to a summary judgment

standard and the City Defendants’ arguments for Rule 12(c) and Rule 56 dismissal are redundant. This summary of

the parties’ arguments imputes the City Defendants’ assertions that Plaintiff has both failed to plead sufficient facts

or put forth sufficient evidence to support his claims.

1. Claims Against Dillmann

The City Defendants assert that Plaintiff has not stated a negligence claim against Dillmann

because, even if Plaintiff suffered damages from his imprisonment, Plaintiff has failed to establish

that Dillmann breached his duty of care and that this breach caused his injuries.43 The City

Defendants assert that Mrs. Carnesi never identified Dillmann as the detective that allegedly

encouraged her to identify Plaintiff in the photograph lineup.44 Further, the City Defendants point

out that Plaintiff has not alleged any facts which would suggest that Dillmann ever testified

inconsistently, let alone falsely, or that Dillmann failed to turn over reports to the State.45

Additionally, the City Defendants contend that Plaintiff has not put forth plausible facts to show

that Dillmann was a cause-in-fact of Plaintiff’s allegedly wrongful conviction.46 Thus, the City

Defendants argue that Plaintiff has failed to plead any facts which would support Dillmann having

breached any standard of care, so the negligence claim should fail.47

The City Defendants assert that Plaintiff has pleaded no facts which would allow the Court

to draw any inference to Dillmann’s state of mind or intention at any relevant point in time, which

is a requirement for an intentional or reckless infliction of emotional distress (“IIED”) claim.48

Further, the City Defendants contend that Plaintiff has failed to plead any facts which would

establish Dillmann carrying out extreme and outrageous conduct.49 Therefore, the City Defendants

43 Rec. Doc. 74-1 at 20.

44 Id.

45 Id.

46 Id. at 21.

47 Id.

48 Id.

49 Id. at 21–22.

argue that neither element of the IIED claim is met, and the Court should dismiss it for the same

reasons as the negligence claim.50

2. Claims Against the City and Kirkpatrick

The City Defendants assert that Plaintiff’s Monell claims against Kirkpatrick and the City

are based off his contention that:

NOPD’s unlawful policies, customs, and practices include: (1)

“suppressing and failing to timely disclose material exculpatory

evidence,” (2) “fabricating evidence, including but not limited to

false witness statements,” and (3) “engaging in the affirmative

concealment of such misconduct.” [Plaintiff] further alleges that the

City and NOPD’s failure to train and supervise their employees

caused this misconduct to occur, and ultimately led to Flanks’

wrongful conviction.51

The City Defendants argue that Plaintiff has failed to plead plausible facts that satisfy the elements

of these claims under Monell.52

First, the City Defendants assert that Plaintiff has not pleaded sufficient facts to allege that

the City or NOPD policy was the “moving force” that deprived him of a constitutional right.53 The

City Defendants contend that Plaintiff neither alleges the existence of any written unconstitutional

municipal policy, nor does he allege that his rights were violated by the person in charge of

policymaking.54 The City Defendants also contend that Plaintiff has not cited the requisite amount

50 Id. at 22.

51 Id. at 28.

52 Id.

53 Id.

54 Id. at 29.

of “very similar violations” that would provide “notice” to policymakers of a custom giving rise

to their deliberate indifference.55

The City Defendants attempt to distinguish the four wrongful convictions cases cited by

Plaintiff that involve alleged misconduct by Dillmann by asserting that none of those cases

involved allegations of improper photo identification procedure, which is the central matter of this

case.56 Further, the City Defendants point out that all of those cases were vacated after Plaintiff

was convicted, and thus could not have provided notice to policymakers of a pattern of violations.57

Regarding the wrongful conviction cases cited by Plaintiff that did not involve Dillmann, the City

Defendants highlight that only two of those cases involve findings of due process violations by an

NOPD officer prior to Plaintiff’s conviction in 1985.58 Further, the City Defendants distinguish

those two cases, because they both related “to the conduct of a single NOPD officer who

encouraged eyewitness[es] to leave the State in advance of a criminal trial.”59

Second, the City Defendants allege that, even if Plaintiff is found to have established the

requisite municipal rights-depriving policy, he has not identified the policymaker who would have

promulgated it.60 The City Defendants contend that the only Defendant named by Plaintiff who

has authority “over the administration and supervision of the NOPD” is Anne Kirkpatrick, the

55 Id. (citing Jason v. Tanner, 938 F.3d 191, 198 (5th Cir. 2019)).

56 Id. at 30; See Floyd v. Vannoy, No. 11-2819, 2017 WL 1837676 (E.D. La. May 8, 2017), aff'd, 887 F.3d

214 (5th Cir. 2018); Kyles v. Whitley, 514 U.S. 419 (1995); State v. Knapper, 579 So. 2d 956 (La. 1991); State v.

Seward, 509 So. 2d 413 (La. 1987).

57 Id.

58 Id. at 31 (citing Clark v. Blackburn, 632 F.2d 531, 535 (5th Cir. 1980); Lockett v. Blackburn, 571 F.2d 309

(5th Cir. 1978)).

59 Id.

60 Id. at 32.

current Superintendent of the NOPD.61 Further, the City Defendants assert that Kirkpatrick has

held her current position for less than two years, therefore she did not promulgate any policy of

the NOPD at the time of Plaintiff’s conviction in 1985.62

Third, the City Defendants contend that Plaintiff merely offers conclusory allegations that

the City and NOPD “failed to conduct any in-service or advanced training for supervisors; failed

to ensure that its supervisors had the training and resources to supervise investigations, including

of murders; and failed to document and enforce disciplinary investigations.”63 Moreover, the City

Defendants assert that Plaintiff pleads no specific facts that could plausibly establish the causation

of his alleged constitutional deprivations.64 Although Plaintiff cites reports published by the

International Association of Chiefs of Police and the Louisiana National Guard that found a lack

of training at the NOPD, the City Defendants point out that these reports were published in 1991

and 1994 respectively, thus could not have provided notice of a pattern of the alleged constitutional

violations for Plaintiff’s criminal conviction in 1985.65 Therefore, the City Defendants claim the

Plaintiff has not satisfied the elements necessary for his failure to train, supervise and discipline

claims.66 In sum, the City Defendants argue that because Plaintiff has failed to allege facts that

satisfy any of the elements of a cognizable Monell claim, that count of the indictment should be

dismissed.67

61 Id.

62 Id.

63 Id. at 33–34.

64 Id. at 34.

65 Id.

66 Id.

67 Id.

With respect to the state law claims against the City, the City Defendants submit that

Plaintiff seeks to hold the City vicariously liable for Dillmann’s alleged wrongdoing.68 The City

Defendants do not dispute that Dillmann was acting within the course and scope of his employment

when he participated in the Carnesi murder investigation and testified at trial.69 However, the City

Defendants, as described above, assert that Dillmann is not liable individually, thus there is no

liability to vicariously transfer to his employer the NOPD.70 Therefore, the City Defendants argue

that the vicarious liability claim should be dismissed by the Court.71 Thus, the City Defendants

argue that they are entitled to summary judgment as to all claims against it.72

B. Plaintiff’s Arguments in Opposition to Motion

1. Claims Against Dillmann

Plaintiff contends that the state law claims against Dillmann based on Dillmann’s

fabrication of evidence, or in the alternative failure to intervene, and failure to comply with his

Brady obligations should not be dismissed.73 Regarding the fabrication of evidence claim, Plaintiff

submits that the evidence plausibly demonstrates that during the photo lineup identification with

Mrs. Carnesi, Dillmann shook his head, indicated the photo of Plaintiff, and said “that’s him.”74

Further, Plaintiff alleges that “[t]he City Defendants’ argument on this point boils down to what

68 Id. at 35.

69 Id.

70 Id.

71 Id.

72 Id.

73 Rec. Doc. 90 at 7.

74 Id. at 7–8.

Mrs. Carnesi’s grand jury testimony means and the inferences a factfinder may draw from it.”75

Plaintiff asserts that such questions regarding the factual interpretation of the grand jury testimony

is a matter for the jury to decide.76 Additionally, Plaintiff contends that the City Defendants’

assertion that if the photo lineup procedure was tainted a different detective may have been

responsible is irrelevant, because “Dillmann would still be liable because the conduct occurred in

his presence and he neither intervened nor disclosed it.”77

Regarding Dillmann’s alleged negligence for failing to disclose Brady evidence, Plaintiff

asserts that in the complaint, he plausibly alleges that Dillmann withheld from the prosecution and

the defense: “(1) the fact that he directed Mrs. Carnesi to identify [Plaintiff], (2) police reports

discussing the string of robberies related to the Carnesi murder, and (3) information and facts

illustrating inconsistencies between Mrs. Carnesi’s description of the Perpetrator and [Plaintiff’s]

appearance.”78 Plaintiff maintains that a reasonable juror could conclude that Dillmann

intentionally or recklessly withheld this information from the OPDA.79

Further, Plaintiff asserts that Dillmann’s alleged actions: “(1) breached his duty of care, (2)

caused Plaintiff’s injuries stemming from his wrongful conviction, and (3) acted in an extreme and

outrageous manner knowing that severe emotional distress would be certain or substantially certain

75 Id. at 9.

76 Id.

77 Id. at 9–10.

78 Id. at 11.

79 Id. at 12.

to result from his conduct.”80 Hence, Plaintiff contends that the state law claims against Dillmann

of negligence and/or gross negligence, and IIED should survive summary judgment.81

2. Claims Against the City and Kirkpatrick

Plaintiff submits that he has raised valid Monell claims against the City and Kirkpatrick.82

Plaintiff first contends that he has adequately identified the relevant City policymakers.83 Plaintiff

rebuts the City Defendants’ assertion that Plaintiff “has not made clear who the policymaker was”

at the NOPD by referring to the identification of Kirkpatrick and her “predecessors in office” in

the complaint.84 Moreover, Plaintiff offers the names of Kirkpatrick’s predecessors to contend that

there is not a genuine dispute about who these policymakers were.85 Plaintiff contends that he is

only required to allege sufficient facts to put the City Defendants on notice about who the final

policymaker was at the NOPD, which he did.86

Second, Plaintiff maintains that the City and NOPD had unconstitutional official policies,

customs, and practices.87 In support, Plaintiff offers three theories to establish Monell liability:

(1) that NOPD’s formal policy on identification procedures was a

proximate cause of the constitutional injury in this case; (2) that

NOPD maintained an unconstitutional custom driven by a

“pervasive culture of indifference to Brady” and the fabrication of

evidence; and (3) that the NOPD Superintendents, having

80 Id. at 13.

81 Id.

82 Id. at 16.

83 Id.

84 Id. at 17.

85 Id. The Kirkpatrick predecessors listed by Plaintiff include former NOPD Superintendents: Warren

Woodfork, from in or around 1985 to in or around 1991; Henry M. Morris, from in or around 1980 to in or around

1985; James C. Parsons, from in or around 1978 to in or around 1980; and Clarence B. Giarrusso, from in or around

1970 to in or around 1978.

86 Id. at 18.

87 Id. at 19.

knowledge of multiple instances in which NOPD employees

suppressed material exculpatory evidence and presented false

testimony, fostered practices constituting deliberate indifference

toward Brady violations and the fabrication of evidence.88

Regarding the theory that NOPD had constitutionally deficient identification procedures,

Plaintiff offers the expert report of William G. Brooks, a retired police chief with expertise on

identification procedures.89 Brooks opines that NOPD’s photo array identification policy was

improper, because it did not have a requirement that “[n]othing shall be said or done which might

prompt a witness or victim to identify a particular person in the lineup.”90 Plaintiff also references

Mr. Brooks’s opinion that the lack of that requirement in the policy could be seen as intentionally

permitting suggestive behavior during photo arrays.91

Regarding the second theory of Monell liability, Plaintiff alleges that NOPD had a

“persistent, widespread practice” of withholding exculpatory evidence and knowingly presenting

false evidence in violation of the Fifth and Fourteenth Amendments that was “so common and well

settled as to constitute a custom that fairly represents municipal policy.”92 Relatedly, Plaintiff

advances his third theory of Monell liability by alleging that the “NOPD Superintendents had

constructive knowledge of repeated fabrication of evidence and Brady violations because such

violations ‘occurred for so long [and] so frequently that the course of conduct warrants the

88 Id.

89 Id.

90 Id. at 19–20.

91 Id. at 20.

92 Id. (quoting Marshall v. Webre, No. 23-1319, 2023 U.S. Dist. LEXIS 162031, at *7 (E.D. La. Sept. 13,

2023)).

attribution to [the NOPD Superintendents] of knowledge that the objectionable conduct is the

expected, accepted practice.’”93

In support of the latter two theories, Plaintiff cites expert witness Professor Levenson’s

report where she identified 57 cases in New Orleans over a period of 45 years in which a court

found Brady violations, 22 of which occurred in the 18 years prior to Plaintiff’s conviction.94

Moreover, Plaintiff cites to Dillmann’s testimony that allegedly establishes that NOPD did not

train its employees regarding their Brady obligations, that secretaries prepared and provided

documents to OPDA without oversight from detectives, that officers did not include all

exculpatory evidence in their reports, and that officers regularly did not review or follow written

NOPD policy.95 Additionally, Plaintiff references a 1975 report on citizen complaints at NOPD by

McManis Associates, Inc. that warned that NOPD “suffers from the absence of clearly defined and

enforced ground rules of behavior,” and observed that “police personnel feel free to behave as they

wish in most instances.”96 Further, Plaintiff posits that because Brady and fabrication of evidence

are acts of concealment or inaction there may be many more violations committed by the NOPD

that have not come to light.97 Plaintiff contends that this evidence taken together illustrates

“persistent, widespread, customs that evince a ‘pervasive culture of indifference to Brady.”98

Supported by the same evidence, Plaintiff avers he has alleged a plausible claim “that the need for

training, supervision, and discipline was so obvious that failure to act was ‘deliberate indifference’

93 Id. (citing Guillot v. Lopinto, No. 20-1604, 2022 U.S. Dist. LEXIS 40383, at *17 (E.D. La. Mar. 8, 2022)).

94 Id. at 21.

95 Id.

96 Id. at 22.

97 Id.

98 Id. (citing Connick v. Thompson, 563 U.S. 51, 73 (2011)).

on behalf of the relevant policymakers.”99 Accordingly, Plaintiff asserts that he has established

that the City had unconstitutional official policies, customs, and practices requisite for Monell

claims.100

Plaintiff contends that the final prong of the Monell claims is met, because the NOPD’s

customs and practices of permitting, encouraging, and failing to prevent Brady violations and the

fabrication of evidence were the moving force behind Plaintiff’s injuries.101 Specifically, Plaintiff

reiterates that said customs and practices of the NOPD violated Plaintiff’s Fifth and Fourteenth

Amendment due process rights.102 Further, Plaintiff asserts that the City Defendants have cited no

caselaw to support their argument that NOPD’s practices and customs were not the moving force

behind Plaintiff’s alleged constitutional right violations.103

Finally, Plaintiff argues that the vicarious liability claim against the City should survive,

because the City has allegedly conceded that Dillmann “was in the course and scope of his

employment when he participated in the Carnesi murder investigation and testified at trial.”104

Further, Plaintiff asserts that the City Defendants’ only argument against this claim is that there

was no tortious conduct from Dillmann, thus there can be no vicarious transfer of Dillmann’s non-

99 Id. (citing City of Canton v. Harris, 489 U.S. 378, 388 (1989)).

100 Id. at 22–23.

101 Id. at 23.

102 Id. (citing Jauch v. Choctaw County, 874 F.3d 425, 435–36 (5th Cir. 2017) (finding it “obvious” that

“policy whereby certain arrestees were indefinitely detained” was the moving force behind “due process violation [of]

indefinite detention”); Arnold v. Alvarado, No. 22-3332, 2024 U.S. Dist. LEXIS 67077, at *12–13 (E.D. La. Apr. 12,

2024) (finding allegations “clear” that failure to “enforce the policies that are meant to govern the use of force” led to

the use of excessive force against plaintiff); Durant v. Gretna City, No. 19-147, 2020 U.S. Dist. LEXIS 8422, at *75–

76 (E.D. La. Jan. 17, 2020) (arrest pursuant to unconstitutional ordinance established that unconstitutional ordinance

itself “obvious[ly]” caused plaintiff’s injury).

103 Id.

104 Id. at 24 (citing Rec. Doc. 74-1 at 35).

existent individual liability.105 Plaintiff reasserts that, as explained above, Dillmann is liable for

constitutional violations, through withholding exculpatory evidence and fabrication Mrs. Carnesi’s

identification of Plaintiff.106 Therefore, Plaintiff contends that the vicarious liability claim has been

adequately plead and evidenced, and should not be dismissed.107

C. The City Defendants’ Further Arguments in Support of the Motion

1. Claims Against Dillmann

First, the City Defendants assert that Plaintiff’s fabrication of evidence claim against

Dillmann “rests upon the unreasonable interpretation of a few sentences in the grand jury

testimony by Mrs. Carnesi.”108 Regarding Plaintiff’s Brady violation claims, the City Defendants

assert that Plaintiff cannot prove that Dillmann concealed exculpatory evidence from both the

prosecution and defense, or that the alleged concealment affected the outcome of Plaintiff’s trial.109

2. Claims Against the City and Kirkpatrick

The City Defendants also respond to Plaintiff’s opposition to the dismissal of the Monell

claims.110 The City Defendants reassert that no underlying constitutional violation occurred, but if

there was a constitutional violation NOPD policies were not the moving force behind the alleged

suggestive lineup.111 The City Defendants cite Dillmann’s testimony where he explained that he

105 Id.

106 Id. at 24–25.

107 Id.

108 Rec. Doc. 101 at 1.

109 Id. at 4.

110 Id. at 8.

111 Id.

was aware that both subtle and direct suggestion during a photo lineup was impermissible.112

Further, while Plaintiff points to the NOPD policy for non-photo identification procedures in effect

in 1983, the City Defendants contend that this policy is not relevant to the procedures for photo

array identification procedures.113

Additionally, the City Defendants aver that Plaintiff has not proven a sufficient pattern or

practice to establish that NOPD officers regularly used suggestive identification procedures to

fabricate evidence.114 Further, the City Defendants allege that Plaintiff improperly attempts to

“pass [the] alleged Brady violations by OPDA as evidence of Brady violations by NOPD.”115 The

City Defendants contend that Plaintiff solely bases this argument on Laurie Levenson’s report, but

the report only concerns Brady violation by the OPDA, rather than the NOPD.116 Moreover, the

City Defendants submit that even if Plaintiff could offer evidence of NOPD Brady violations

occurring in the seven specified cases Plaintiff relies on, those cases occurred over a 46 year

period.117 Hence, the City Defendants argue that a mere seven cases involving potential Brady

violations over 46 years, when thousands of murders were investigated by the NOPD is insufficient

to conclude that there was a pattern or custom.118

112 Id.

113 Id.

114 Id.

115 Id. at 9.

116 Id.

117 Id. The City Defendants refer to criminal cases cited by Plaintiff in the complaint involving Bobbie Jean

Johnson, Larry Hudson, Calvin Duncan, Roland Gibson, and Curtis Kyles.

118 Id. at 9–10.

III. Legal Standard

The City Defendants move for judgment on the pleadings under Rule 12(c) or for summary

judgment under Rule 56. Federal Rule of Civil Procedure 12(c) provides that “[a]fter the pleadings

are closed—but early enough not to delay trial—a party may move for judgment on the

pleadings.”119 A motion under Rule 12(c) “is designed to dispose of cases where the material facts

are not in dispute and a judgment on the merits can be rendered by looking to the substance of the

pleadings and any judicially noticed facts.”120 The City Defendants rely on documents outside the

pleadings which are not subject to judicial notice, such as testimonial evidence and numerous

exhibits.121 Hence, the Court will consider the full record, construe the City Defendants’ motion

as one for summary judgment, and evaluate the arguments contained therein under Rule 56.

Summary judgment is proper when “there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.”122 The court must view the evidence in the

light most favorable to the nonmovant.123 Initially, the movant bears the burden of presenting the

basis for the motion; that is, the absence of a genuine issue as to any material fact or facts.124 The

burden then shifts to the nonmovant to come forward with specific facts showing there is a genuine

119 Fed. R. Civ. P. 12(c).

120 Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir. 2002) (quoting

Hebert Abstract Co. v. Touchstone Props., Ltd., 914 F.2d 74, 76 (5th Cir. 1990)).

121 Rec. Doc. 27.

122 Fed. R. Civ. P. 56(a).

123 Coleman v. Hous. Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997).

124 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

dispute.125 “A dispute about a material fact is ‘genuine’ if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.”126

IV. Analysis

The instant motion attempts to dismiss the claims which arise from the allegations that

NOPD Detective Dillmann fabricated and/or concealed exculpatory evidence from the prosecution

and defense in Plaintiff’s criminal trial in violation of Brady. To begin with, all claims arising

under the Louisiana Constitution have been dismissed except for the due process claims against

the City. Because Plaintiff merely states a conclusory theory for the City’s direct liability under

the Louisiana Constitution’s due process clause, the Court dismisses this claim on summary

judgment.127 For the same reasons, the Court dismisses the direct liability negligence claim against

the City.128 The Court proceeds to address the remaining claims against Dillmann, the City, and

Kirkpatrick in turn.

A. Whether the Claims Against Dillmann Should be Dismissed

1. Negligence or Gross Negligence

Plaintiff alleges that Dillmann “failed to take due care, and instead [was] negligent and/or

grossly negligent in suppressing and failing to timely disclose material exculpatory evidence to

[Plaintiff] and in fabricating evidence against [Plaintiff].”129 The City Defendants contend that

Plaintiff has not alleged plausible facts to establish that: Mrs. Carnesi identified Dillmann as the

125 See Fed. R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986).

126 Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 956 (5th Cir. 1993) (internal citation omitted).

127 Rec Docs. 27, 90. Plaintiff does not discuss a factual theory or put for the any evidence of the City’s

direct liability under the Louisiana due process clause in either of the relevant filings.

128 Id.

129 Rec. Doc. 27 at 56.

detective who allegedly encouraged her to identify Plaintiff’s photograph in the lineup; Dillmann

ever testified inconsistently, let alone falsely; and Dillmann or anyone at the NOPD failed to turn

over their reports to the State in violation of Brady.130

The determination of liability in a negligence case usually requires proof of five separate

elements: (1) proof that the defendant had a duty to conform his conduct to a specific standard (the

duty element); (2) proof that the defendant’s conduct failed to conform to the appropriate standard

(the breach element); (3) proof that the defendant’s substandard conduct was a cause-in-fact of the

plaintiff's injuries (the cause-in-fact element); (4) proof that the defendant’s substandard conduct

was a legal cause of the plaintiff’s injuries (the scope of liability or scope of protection element);

and (5) proof of actual damages (the damages element).131

The City Defendants only dispute the breach and causation elements of the negligence

claim.132 The negligence claim against Dillmann is based primarily on Mrs. Carnesi’s grand jury

testimony. Mrs. Carnesi testified before the grand jury as follows:

Q. OK. Do you remember about a week later, uh, the detectives

came to your house and showed you some pictures?

A. Yes.

Q. Were you able to pick a picture out of those pictures that they

showed you?

A. Yes.

Q. And the picture you picked, was that the individual who had shot

your husband?

A. He had five of them. As soon as I looked I took three and pushed

them on the side. And I had one here and one here. And I looked at

this one. And I told my daughter, I said, “Get me a flashlight. I want

to make sure that it’s him if it’s here.” So I looked at this one and I

130 Rec. Doc. 74-1 at 20.

131 Detraz v. Lee, 2005-1263 (La. 1/17/07), 950 So 2d 557, 562.

132 Rec. Doc. 74-1 at 20–21.

put it down, and I took the one on this side and looked at it. And I

kept looking and I recognized him. Then I told the detectives, I said,

“I remember one thing about this man. He had a little white blotch

on the side of his cheek, a little white mark, like discolored looking.”

And then the three detectives looked at one another, and he shook

his head and said, “That’s him.” But I don’t think they showed the

side of his face with that mark, but I happened to remember it

because I was looking him in his face twice, you see, and I

remembered.

Q. Are you sure that the man you picked out in the pictures is the

man that killed your husband?

A. Yes.133

Thus, because Dillmann was present and Mrs. Carnesi does not indicate what actions were

specific to him, the Court finds that there is a genuine dispute of material facts as to whether

Dillmann negligently fabricated evidence by shaking his head and saying “[t]hat’s him” during the

identification. Further, Plaintiff has pointed to evidence suggesting that OPDA may not have had

NOPD reports relating to similar robberies; handwritten or daily reports; Mrs. Carnesi’s comment

about a “white blotch” on the perpetrator’s face; and her description of the vehicle that sped off as

“old” in Plaintiff’s criminal case file. Thus, there are facts in dispute regarding whether Dillmann

breached a duty owed to Plaintiff. Because this information was not considered by the jury at

Plaintiff criminal trial there are also genuine disputes of material fact as to whether these alleged

breaches caused Plaintiff’s incarceration. Hence, the Court denies summary judgment as to the

state law negligence and/or gross negligence claims against Dillmann.

2. Intentional or Reckless Infliction of Emotional Distress

The City Defendants assert that the IIED claims should be dismissed because Plaintiff has

“pleaded no facts which would allow the Court to draw any inference related to Dillmann’s state

133 Rec. Doc. 90-3 at 6–7.

of mind or intention at any point during the homicide investigation.”134 In a conclusory fashion,

Plaintiff asserts that Dillmann desired to inflict severe emotional distress on [Plaintiff] or knew

that severe emotional distress would be certain or substantially certain to result from [his]

conduct.”135

In order to recover for intentional infliction of emotional distress, a plaintiff must establish

(1) that the conduct of the defendant was extreme and outrageous; (2) that the emotional distress

suffered by the plaintiff was severe; and (3) that the defendant desired to inflict severe emotional

distress or knew that severe emotional distress would be certain or substantially certain to result

from his conduct.136 Further, “the conduct must be so outrageous in character, and so extreme in

degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly

intolerable in a civilized community.”137

Determining whether Dillmann’s alleged conduct was “extreme and outrageous,” or

whether Plaintiff suffered “severe” emotional distress are plausible questions of fact. However,

the Court agrees with the City Defendants that Plaintiff has not presented any evidence to establish

that Dillmann “desired” to inflict the alleged emotional distress or knew that it would result. In

fact, Plaintiff has not presented any evidence which could reasonably establish Dillmann’s state of

mind. Therefore, the Court grants summary judgment as to the intentional or reckless emotional

distress claim.

134 Rec. Doc. 74-1 at 21.

135 Rec. Doc. 27 at 57.

136 White v. Monsanto Co., 585 So. 2d 1205, 1209 (La. 1991).

137 King v. Phelps Dunbar, LLP, 98-C-1805, (La. 2/7/24), 743 So. 2d 181, 186.

B. Whether the Vicarious Liability and Monell Claims Against the City and Kirkpatrick

Should be Dismissed

1. State Law Claims

The Louisiana Supreme Court allows a plaintiff to recover for the negligence against a

municipality under a theory of respondeat superior.138 Under Louisiana law, an employer is liable

for the torts an employee committed while acting within the course and scope of his

employment.139 Louisiana courts have generally determined vicarious liable by examining four

factors: “(1) whether the tortious act was primarily employment rooted; (2) whether the [act] was

reasonably incidental to the performance of the employee’s duties; (3) whether the act occurred on

the employer’s premises and (4) whether it occurred during the hours of employment.”140 As a

prerequisite the employee must have been found “liable in the first instance.”141

The City Defendants do not dispute that the elements of vicarious liability are met, except

to argue that Dillmann is not liable in the first place. As discussed above, Plaintiff has laid out

plausible factual allegations and evidence in support of his claim of negligence against Dillmann.

Further, all allegations against Dillmann stem from his actions performed in an investigatory

capacity for NOPD. Therefore, there are genuine disputes of material fact as to whether the City

is vicariously liable for Dillmann’s actions. Thus, the Court denies summary judgment on

Plaintiff’s vicarious liability claims under Louisiana law.

138 Mathieu v. Imperial Toy Corp., 94-0952 (La. 11/30/94), 646 So. 2d 318, 320 (citing La. Civ. Code art.

2315).

139 See La. Civ. Code art. 2320.

140 Valenza v. Santos, No. 16-1058, 2016 WL 7210347, at *3 (E.D. La. Dec. 13, 2016)

141 Chatman v. Plaquemines Par., No. 23-1688, 2025 WL 270627 at *2 (E.D. La. Jan. 22, 2025).

2. Monell Claims

Turning to the Monell claims, Plaintiff asserts that NOPD’s “unlawful policies, customs,

and/or practices included” suppressing and failing to timely disclose exculpatory evidence and

fabricating evidence.142 The City Defendants contend that Plaintiff “cannot offer evidence which

would support a claim that an official City policy was the moving force behind the deprivation of

any of his rights.”143 Further, even assuming that a Brady violation by Dillmann occurred, the City

Defendants argue that Plaintiff’s Monell claims fail because Plaintiff cannot present competent

evidence to show: (1) that NOPD adopted and implemented an unconstitutional policy concerning

Brady disclosures; (2) that NOPD’s relevant policymakers acted with deliberate indifference to

the rights of criminal defendants; or (3) that NOPD’s relevant policymakers conduct directly

caused the alleged suppression of evidence in Plaintiff’s criminal case.144

As an initial matter, the City Defendants contend that Plaintiff has not made clear who the

policymaker was who would have promulgated the alleged policies.145 However, the Fifth Circuit

has held that “the specific identity of the policymaker is a legal question that need not be pled; 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.”146 Therefore, the Court finds that

Plaintiff’s identification of the City, the NOPD, and Kirkpatrick sufficient to allege that the

142 Rec. Doc. 27 at 51–52.

143 Rec. Doc. 74-1 at 44.

144 Id. at 28–34. Because Plaintiff has not shown an official policy, pattern, or custom of constitutional

violations by the NOPD, the Court does not reach the issue of whether a constitutional violation occurred.

145 Rec. Doc. 74-1 at 32.

146 Groden v. City of Dallas, 826 F.3d 280 (5th Cir. 2016).

superintendents of NOPD leading up to Plaintiff’s conviction were the relevant policy makers

(“Superintendent”).

To succeed on a Monell claim, Plaintiff must present facts to establish the Superintendent

had actual or constructive knowledge of an official policy, practice, or custom of similar

constitutional violations. Plaintiff argues that he has put forth sufficient evidence to support Monell

liability under three distinct theories:

(1) that NOPD’s formal policy on identification procedures was a

proximate cause of the constitutional injury in this case; (2) that

NOPD maintained an unconstitutional custom driven by a

‘pervasive culture of indifference to Brady’ and the fabrication of

evidence; and (3) that the NOPD Superintendents, having

knowledge of multiple instances in which NOPD employees

suppressed material exculpatory evidence and presented false

testimony, fostered practices constituting deliberate indifference

toward Brady violations and the fabrication of evidence.147

Establishing an official policy, practice, or custom can be done in one of three ways. First,

there may be a policy that is “officially adopted and promulgated” by the municipality or an official

within the municipality with policymaking authority.148 Second, there may be a “persistent,

widespread practice of city officials or employees, which, although not authorized by officially

adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly

represents municipal policy.”149 A persistent, widespread practice may include allegations that a

policymaker failed to act affirmatively, “if the need to take some action to control the agents of

the local governmental entity ‘is so obvious, and the inadequacy [of existing practice] so likely to

result in the violation of constitutional rights, that the policymake[r] … can reasonably be said to

147 Rec. Doc. 90 at 19.

148 Burge v. Par. of St. Tammany (Burge II), 336 F.3d 363, 369 (5th Cir. 2003).

149 Id.

have been deliberately indifferent to the need.’”150 A policymaker with policy-making authority

must have actual or constructive knowledge of the custom.151 Third, “a single decision by a policy

maker may, under certain circumstances, constitute a policy for which a municipality may be

liable.”152 In this case, Plaintiff argues that there is evidence to support a Monell claim under the

first and second options.153

a. Official Policy

Plaintiff asserts that “NOPD’s actual policy on identification procedures was

constitutionally deficient.”154 Specifically, Plaintiff alleges that “NOPD’s [in person] lineup policy

dictated that ‘[n]othing shall be said or done which might prompt a witness or victim to identify a

particular person in the lineup,’ while its photo array policy omitted that requirement.”155 Further,

Plaintiff’s expert witness Chief Brooks, opined that this rule “is the most important of all the rules

listed for lineup procedures[.]”156 The City Defendants contend that Plaintiff has not alleged “the

existence of any written unconstitutional policy nor does he allege that his rights were violated by

the person in charge of policymaking.”157

150 Burge v. Par. of St. Tammany (Burge I), 187 F.3d 452, 471 (5th Cir. 1999) (quoting City of Canton v.

Harris, 489 U.S. 378, 390 (1989)).

151 Valle v. City of Houston, 613 F.3d 536, 542 (5th Cir. 2010) (internal citations omitted).

152 Id. (quoting Brown v. Bryan Cnty., OK, 219 F.3d 450, 462 (5th Cir. 2000)).

153 Plaintiff does not assert a theory of “single-incident liability,” a path foreclosed in the Brady context by

the Supreme Court’s opinion in Thompson, 563 U.S. at 62–72.

154 Rec. Doc. 90 at 19.

155 Id. at 20 (citing Rec. Doc. 90-40 at 7).

156 Rec. Doc. 90-40 at 7.

157 Rec. Doc. 74-1 at 29.

Plaintiff has not identified an official adopted or promulgated policy of conducting

improper identification procedures that could lead to fabricated evidence. At most, NOPD’s policy

was deficient by not including additional language to prevent misidentifications. “Liability for

failure to promulgate policy . . . require[s] that the defendant acted with deliberate indifference.”158

“A failure to adopt a policy can be deliberately indifferent when it is obvious that the likely

consequences of not adopting a policy will be a deprivation of constitutional rights.”159 Plaintiff

has not demonstrated that fabrication of evidence was a likely consequence of the NOPD failing

to adopt a written policy stating nothing shall be said or done which might prompt a witness or

victim to identify a particular person in the photo array. Plaintiff also has not presented any

competent summary judgment evidence to show that the failure to adopt such a policy was

deliberately indifferent.

Further, Plaintiff has merely offered threadbare evidence to support a Monell claim against

the City and Kirkpatrick under the alleged fabrication of evidence through the persistent,

widespread practice or custom, or failure to train prongs. Thus, the Court grants summary

judgment on the Monell claims stemming from the alleged fabrication of evidence, against the City

and Kirkpatrick in her official capacity as the superintendent of NOPD.

b. Persistent, Widespread Practice or Custom

Plaintiff also argues that NOPD had “a persistent, widespread practice’ of withholding

exculpatory evidence . . . that was ‘so common and well settled as to constitute a custom that fairly

158 Porter v. Epps, 659 F.3d 440, 446 (5th Cir. 2011).

159 Id.

represents municipal policy.’”160 Plaintiff claims “that officers were so widely permitted to violate

Brady, . . . and violated Brady so often and with such brazenness, that NOPD effectively adopted

a policy of permitting and encouraging such violations.”161 In response, the City Defendants assert

that most of the cases cited by Plaintiff deal with Brady allegations against the OPDA rather than

the NOPD.162 Further, the City Defendants argue that only 2 of the 38 cases cited by Plaintiff

“Norman Clark and Raymond Lockett, involve findings of due process violations by an NOPD

officer prior to [Plaintiff’s] conviction in 1985.”163 Additionally, the City Defendants point out

that both of those cases dealt with an NOPD officer encouraging an eyewitness to leave the State

in advance of trial.164 Lastly, the City Defendants offer that the other three cases relied on by

Plaintiff that involve police misconduct were decided after Plaintiff’s conviction, thus could not

have provided notice or given rise to NOPD’s deliberate indifference to that misconduct.165

To succeed on this claim, Plaintiff must demonstrate that there was a “persistent,

widespread practice of city officials or employees, which, although not authorized by officially

adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly

represents municipal policy,” and proving the Superintendent had actual or constructive

knowledge of that custom.166 Where an alleged custom or practice “is unconstitutional on its face,

it necessarily follows that a policymaker was not only aware of the specific policy, but was also

160 Rec. Doc. 90 at 20.

161 Id.

162 Rec. Doc. 74-1 at 30–31.

163 Id. at 31.

164 Id.

165 Id.

166 Burge II, 336 F.3d at 369.

aware that a constitutional violation will most likely occur.”167 However, where the alleged custom

or practice “is facially innocuous, establishing the requisite official knowledge requires that a

plaintiff establish that [the custom or practice] was ‘promulgated with deliberate indifference to

the ‘known or obvious consequences’ that constitutional violations would result.”168 The alleged

custom or practice at issue here––withholding exculpatory evidence––is unconstitutional on its

face. Therefore, a finding of deliberate indifference is not required. Moreover, even if a finding of

deliberate indifference is required, Plaintiff has not presented sufficient facts upon which a

reasonable jury could find deliberate indifference.169

“A customary policy consists of actions that have occurred for so long and with such

frequency that the course of conduct demonstrates the governing body’s knowledge and

acceptance of the disputed conduct.”170 A plaintiff must demonstrate “a pattern of abuses that

transcends the error made in a single case.”171 Establishing a pattern “requires similarity and

specificity; ‘prior indications cannot simply be for any and all bad or unwise acts, but rather must

point to the specific violation in question.”172 “A pattern also requires ‘sufficiently numerous prior

incidents’ as opposed to ‘isolated instances.’”173

167 Id. at 370 (quoting Piotrowski v. City of Houston, 237 F.3d 567, 579 (5th Cir. 2001)).

168 Id. (quoting Piotrowski, 237 F.3d at 579).

169 See Cousin v. Small, 325 F.3d 627, 637 (5th Cir. 2003) (“To satisfy the deliberate indifference prong, a

plaintiff usually must demonstrate a pattern of violations. . . .’”). As discussed in great detail herein, there is not

sufficient evidence upon which a reasonable juror could rely to find a pattern of similar violations by NOPD.

170 Zarnow v. City of Wichita Falls, Tex., 614 F.3d 161, 168 (5th Cir. 2010).

171 Peterson v. City of Fort Worth, Tex., 588 F.3d 838, 850–51 (quoting Piotrowski, 237 F.3d at 582).

172 Id. (citation and quotation marks omitted).

173 Id. (citation and quotation marks omitted).

Plaintiff’s expert, Laurie Levenson, has identified 47 cases in which a court found that

OPDA’s nondisclosure of material exculpatory evidence violated the defendant’s constitutional

rights, 22 of which occurred in the 18 years prior to Plaintiff’s conviction. Six of the cases

Levenson identifies were tried after Harry Connick left office in 2003. Therefore, in ruling on the

motion for summary judgment regarding OPDA, the Court relied on 41 cases as relevant

circumstantial evidence of the unconstitutional policy, practice, or custom in place at OPDA during

Plaintiff’s prosecution.

Levenson also identifies eight additional cases where she finds that OPDA’s conduct

amounted to an admission of Brady claims, three of which predate Plaintiff’s conviction; seven

additional cases involving credible Brady claims against OPDA that were resolved on other

grounds, four of which predate Plaintiff’s conviction; and 22 additional cases in which OPDA has

subsequently admitted to a Brady violation, including three that predate Plaintiff’s conviction. The

Court did not rely on these cases in ruling on the motion for summary judgment regarding OPDA

because Levenson’s methodology is also the subject of a pending Daubert motion.

Levenson states in the introduction of her report that her assessment is focused on the

OPDA, without mention of the NOPD.174 Levenson’s report addresses multiple instances of OPDA

not receiving relevant reports from NOPD, she also notes that “it was not NOPD’s practice to

supply the entire contents of the police file to prosecutors; their practice instead was to filter

witness statements and evidence into a supplemental report, based on what the detective deemed

to be pertinent.”175 She further states that there “was not one word in the Operations Manual for

174 Rec. Doc. 90-4 at 2.

175 Id. at 30.

NOPD regarding providing Brady materials to the prosecutors.”176 Plaintiff asserts that many of

the cases cited by Levenson

involve allegations of similar misconduct by NOPD, including cases where police

handwritten notes with exculpatory evidence were withheld (Bobbie Jean Johnson,

Larry Hudson), where police reports with prior inconsistent statements of witnesses

were withheld (Calvin Duncan, Hayes Williams, Roland Gibson), and where a

witness provided a description to the police that was misstated or simply not

provided to the defense (Curtis Lee Kyles, John Floyd).177

However, Plaintiff has not provided evidence to support these allegations or demonstrated

that the courts in those cases made findings that would support Plaintiff’s reliance on them. Even

assuming that every case Plaintiff has identified as supporting a pattern of NOPD’s de facto policy

is accurate, Plaintiff has only identified nine cases that involve alleged misconduct of NOPD.178

As discussed above, a de facto policy must be a “persistent, widespread practice of city officials

or employees” that is “so common and well settled as to constitute a custom that fairly represents

municipal policy.”179 The reason for this, of course, is to ensure that “a municipality cannot be

held liable solely because it employs a tortfeasor.”180 Requiring a persistent, widespread practice

ensures that a municipality is not held liable unless the injury is caused by the execution of a

custom made by those “whose edicts or acts may fairly be said to represent official policy.”181

Repeated conduct is necessary to “demonstrate[s] the governing body’s knowledge and acceptance

176 Id.

177 Rec. Doc. 90 at 21.

178 Norman Clark, Raymond Lockett, Bobbie Jean Johnson, Larry Hudson, Calvin Duncan, Hayes Williams,

Roland Gibson, Curtis Lee Kyles, and John Floyd.

179 Piotrowski, 237 F.3d at 579

180 Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 690 (1978).

181 Id. at 694.

of the disputed conduct.”182 Although similar, repetitive conduct is required in order to

demonstrate the municipality’s knowledge and acceptance of the conduct, the Fifth Circuit has

often stated that it has “no rigid rule regarding numerosity to prove a widespread pattern of

unconstitutional acts.”183

In determining the numerosity of Brady violations to meet this Monell prong, the

Thompson Court suggested 4 cases in a 10-year period would not be enough to support notice of

similar constitutional violations.184 The Armstrong Court implied 9 cases in a 24-year period would

not be enough.185 Plaintiff points to 9 cases in a 17-year period.186 Thus, the numerosity that

Plaintiff alleges is at best a marginal difference from the Thompson and Armstrong cases. Further,

as discussed above that analysis is predicated on the Plaintiff having supported his reliance on

those 9 cases, which he has not.

Again, on a motion for summary judgment the Court must view the evidence in the light

most favorable to Plaintiff, as the non-moving party, and draw all reasonable inferences in his

favor.187 Even so construed, based on the lack of evidence discussed above, the Court finds that a

reasonable jury could not find that the Brady violation resulted from a persistent, widespread

182 Zarnow, 614 F.3d at 168.

183 Jackson v. Valdez, 852 F. App’x 129, 135 (5th Cir. 2021).

184 Thompson, 563 U.S. at 62.

185 Armstrong v. Ashley, 60 F.4th 262, 278 (5th Cir. 2023).

186 The earliest case considered is Larry Hudson (December 1967 trial). The latest case considered is Calvin

Duncan (January 1985 trial).

187 Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (quoting Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).

practice of NOPD, much less that Superintendent had actual or constructive knowledge of that

custom.

c. Failure to Train

Finally, Plaintiff contends that a reasonable juror could conclude that the Superintendent

fostered practices constituting deliberate indifference toward Brady violations.188 Plaintiff asserts

that the evidence demonstrating that NOPD failed to train, supervise, and discipline its employees

regarding their obligations under Brady and that these failures amounted to deliberate indifference

to the known or obvious risk that criminal defendants’ rights would be violated.189

“It is well-established that a municipality’s failure to train its [] officers can give rise to

§ 1983 liability.”190 To establish a failure to train claim, a plaintiff must show “(1) that the

municipality’s training procedures were inadequate, (2) that the municipality was deliberately

indifferent in adopting its training policy, and (3) that the inadequate training policy directly caused

the violations in question.”191 “Deliberate indifference is ‘more blameworthy than negligence’ but

less blameworthy than purposeful harm.”192 “The standard is ‘stringent’ and requires that the

supervisory actor disregarded a known consequence of his action.”193 “To satisfy the deliberate

indifference prong, a plaintiff usually must demonstrate a pattern of violations and that the

188 Rec. Doc. 90 at 22.

189 Id.

190 Westfall v. Luna, 903 F.3d 534, 552 (5th Cir. 2018).

191 Zarnow, 614 F.3d at 170.

192 Id. at 169 (quoting Farmer v. Brennan, 511 U.S. 825, 835 (1994)).

193 Id. at 169–70 (citing Southard v. Tex. Bd. of Crim. Justice, 114 F.3d 539, 551 (5th Cir. 1997)).

inadequacy of the training is ‘obvious and obviously likely to result in a constitutional

violation.’”194

In the complaint, Plaintiff cites a 1991 report, from the International Association of Chiefs

of Police citing a “‘stunning lack of training’ at the NOPD and finding that the NOPD’s training

record was ‘not nearly in compliance with professional expectations.’ The report concluded that

the NOPD’s failure to keep training records ‘leaves the department dangerously defenseless

against failure-to-train based allegations and lawsuits.’”195 Further, the report allegedly concluded

that the NOPD is failing with respect to criminal investigations in almost every crime category.196

Additionally, Plaintiff cites a 1994 report by the Louisiana National Guard which found that:

[a] great deal has been written about the state of training within the

NOPD. Year after year it does not seem to improve. It is clearly

apparent that the city and department leaders do not understand, or

simply choose to ignore, the importance of training for police

officers and police civilians engaged in supporting police officers. .

. . Unfortunately, even after three previous reports criticizing

training within the NOPD, very little action has been taken to

improve the situation.197

Plaintiff also relies on a 1973 report by McManis Associates, Inc. that found NOPD “suffers from

the absence of clearly defined and enforced ground rules of behavior” and that “police personnel

feel free to behave as they wish in most instances.”198 The McManis Associates report is the only

one that predates the conduct at issue in this case. In sum, Plaintiff cites numerous articles and

reports finding that NOPD’s training procedures were generally inadequate. However, as

194 Cousin, 325 F.3d at 637.

195 Rec. Doc. 27 at 16.

196 Id.

197 Id. at 17.

198 Rec. Doc. 90-41 at 6.

mentioned above when addressing the Plaintiff’s persistent and widespread practice or custom

theory for Monell liability, Plaintiff has not cited a sufficiently numerous amount of cases which

would provide NOPD with notice of a trend of Brady violations. For the same reason, the Court

finds that Plaintiff has not established NOPD’s deliberate indifference to “a pattern of violations”

which would provide NOPD with notice that the “inadequacy of the training” was “obviously

likely to result in a constitutional violation.”199 Plaintiff cites: (1) evidence regarding alleged Brady

violations by NOPD in the 1970s and 1980s;200 (2) several instances of a failure to turn over

exculpatory evidence by the NOPD;201 and (3) one report that generally alleges that NOPD officers

were poorly trained prior to Plaintiff’s arrest and conviction. Nevertheless, this evidence when

considered collectively, is not sufficient to meet Plaintiff’s burden demonstrating a “pattern of

violations” where courts have found NOPD officers committed Brady violations.202 At most,

Plaintiff has shown that NOPD’s training procedures were generally deficient during the relevant

time period. Because Plaintiff has not met his burden to establish Monell liability under the official

policy; persistent, widespread practice or custom; or failure to train prongs, the Court need not

address the secondary moving force portion of the Monell analysis. Hence, the Court grants

summary judgment dismissing the Monell claims asserted against the City and Kirkpatrick.

199 Cousin, 325 F.3d at 637.

200 See Floyd v. Vannoy, No. 11-2819, 2017 WL 1837676 (E.D. La. May 8, 2017), aff'd, 887 F.3d 214 (5th

Cir. 2018); Kyles v. Whitley, 514 U.S. 419 (1995); State v. Knapper, 579 So. 2d 956 (La. 1991); State v. Seward, 509

So. 2d 413 (La. 1987); Clark v. Blackburn, 632 F.2d 531, 535 (5th Cir. 1980); Lockett v. Blackburn, 571 F.2d 309

(5th Cir. 1978).

201 Rec. Docs. 90-4, 90-8, 90-35, 90-42.

202 Zarnow, 614 F.3d at 170.

V. Conclusion

There are facts in dispute precluding summary judgment on the state law negligence claim

against Dillmann. Further, there are facts in dispute precluding summary judgment on the City’s

vicarious liability for Dillmann’s negligence. However, summary judgment is appropriate for all

other remaining claims against the City Defendants including Monell claims brought against the

City and Kirkpatrick in her official capacity. Plaintiff has not presented sufficient evidence to show

that NOPD maintained an official policy in violation of Brady. Nor has Plaintiff presented

sufficient evidence to establish a custom of withholding exculpatory witness testimony within

NOPD. Finally, Plaintiff has not provided enough evidence for a reasonable juror to find NOPD

failed to train, supervise, and discipline its employees regarding their obligations under Brady and

that these failures amounted to deliberate indifference to the “known or obvious” risk that criminal

defendants’ rights would be violated.

Accordingly,

IT IS HEREBY ORDERED that the City Defendants’ Motion to for Judgment on the

Pleadings or Alternatively for Summary Judgment203 is GRANTED IN PART and DENIED IN

PART. The motion is granted to the extent that it seeks dismissal of the state law intentional or

reckless infliction of emotional distress claim against Dillmann, the direct negligence and

Louisiana due process claims against the City, and the Monell claims against the City and

Kirkpatrick. The motion is denied to the extent it seeks dismissal of the negligence claim against

Dillmann and the vicarious liability claim against the City.

IT IS FURTHER ORDERED that the state law intentional or reckless infliction of

emotional distress claim is DISMISSED.

203 Rec. Doc. 74.

IT IS FURTHER ORDERED that the direct negligence and Louisiana due process claims

against the City are DISMISSED.

IT IS FURTHER ORDERED that the Monell claims against the City and Kirkpatrick in

her official capacity as the Superintendent of NOPD are DISMISSED.

NEW ORLEANS, LOUISIANA, this 19th day of December, 2025.

NANNETTE ~obue BROWN

UNITED STATES DISTRICT JUDGE

38