Wearry v. Perrilloux et al

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
MICHAEL WEARRY
CIVIL ACTION
VERSUS 	18-594-SDD-RLB
SCOTT M. PERRILLOUX and
MARLON KEARNEY FOSTER
RULING
Before the Court is a Rule 59(e) Motion to Alter or Amend Judgment and
Reconsider Summary Judgment Ruling filed by Plaintiff Michael Wearry (“Plaintiff” or
“Wearry”).1 Defendants Paulette H. Foster, Kearney Matthew Foster, William Aaron
Foster, and Annette Foster Alford, as the Personal Representatives of Marlon Kearney
Foster (“Foster”), (collectively, “Defendants”) oppose the motion. 2 Plaintiff has filed a
reply. 3 The Court has considered the law, arguments, and submissions of the parties and
is prepared to rule. For the following reasons, Plaintiff’s motion is denied.
I. 	BACKGROUND
This case arises out of the 1998 murder of Albany High School student Eric Walber
(“Walber”). A Livingston Parish, Louisiana jury convicted Wearry of murdering Walber in
the first degree and sentenced him to death in 2002. 4 Wearry appealed his conviction to
the Louisiana Supreme Court, which found no merit in any of the 38 assignments of error
presented and affirmed Wearry’s conviction and sentence. 5 Later, Wearry’s defense
1 Rec. Doc. 176.
2 Rec. Doc. 179.
3 Rec. Doc. 182.
4 See State v. Weary [sic], 2003-3067 (La. 4/24/06), 931 So. 2d 297.
5 Id.
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counsel became aware of certain “belatedly revealed information [that] would have
undermined the prosecution and materially aided Wearry’s defense at trial.”6
In 2016, after Wearry’s attempts to obtain postconviction relief at the state level
were unsuccessful, the United States Supreme Court granted the petition for writ of
certiorari that Wearry filed from Death Row at the Louisiana State Penitentiary.7 Calling
the state’s evidence against Wearry a “house of cards” 8 and finding that “the prosecution’s
failure to disclose material evidence violated Wearry’s due process rights,”9 the Supreme
Court vacated Wearry’s conviction and remanded the case for a new trial.
On May 30, 2018, pending a new trial, Wearry filed this lawsuit against Scott M.
Perrilloux (“Perrilloux”), the District Attorney in the 21st Judicial District of Louisiana for
Livingston Parish where Wearry was convicted, and Foster, a former Livingston Parish
Sheriff’s Office detective. 10 On December 26, 2018, pending the new trial on the criminal
charges against him, Wearry pled guilty to the charge of manslaughter of Walber.11
Wearry asserts the following claims: (1) a 42 U.S.C. § 1983 claim for fabrication
of evidence during an investigation in violation of the Fourteenth Amendment’s Due
Process Clause against Perrilloux, in his official and individual capacities, and Foster, in
his individual capacity; 12 (2) a 42 U.S.C. § 1983 claim for intentional use of perjured
testimony in violation of the Fourteenth Amendment’s Due Process Clause against
Perrilloux only, in his official capacity; 13 and (3) a supplemental state law claim for
6 Wearry v. Cain, 136 S. Ct. 1002, 1004 (2016).
7 Id. at 1006.
8 Id. at 1006.
9 Id. at 1002.
10 Rec. Doc. 1, ¶¶ 2–3.
11 Rec. Doc. 139-3.
12 Rec. Doc. 1; Id. at ¶¶ 66–82.
13 Id. at ¶¶ 83–96.
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malicious prosecution in violation of La. Civ. Code art. 2315 against Perrilloux, in his
official and individual capacities, and Foster, in his individual capacity.14 All claims against
Perrilloux were voluntarily dismissed on January 8, 2025. 15 The Court granted summary
judgment as to the remaining Defendants on July 15, 2025. 16 The Court found that under
the Supreme Court’s decision in McDonough v. Smith, Plaintiff’s due process fabrication
of evidence claim did not accrue until there was a favorable termination of his prosecution,
and that the Supreme Court’s vacate, and that the remand order was not a favorable
termination within the meaning of Heck v. Humphrey, thus the criminal charges against
the Plaintiff were pending re-trial when he filed this suit. 17 In other words the criminal case
was ongoing and the Heck bar applied.
Plaintiff now moves the Court to reconsider its Summary Judgment Ruling. 18 He
argues that the Court committed manifest errors of law and fact by relying on McDonough
because (1) his fabrication of evidence claim is based in substantive due process; 	and
(2) he never analogized his claim to the state law tort of malicious prosecution. 19 Plaintiff
likewise argues that the Court erred in finding that his manslaughter plea was “likely not”
a favorable termination of his prosecution. 20 In opposition, Defendants argue that the
Court properly applied McDonough and correctly concluded that Plaintiff did not meet
Heck’s favorable termination requirement.
14 Id. at ¶¶ 97–104.
15 Rec. Doc. 168.
16 Rec. Doc. 173.
17 Id. at pp. 7–8.
18 Rec. Doc. 176.
19 Rec. Doc. 176-1, pp. 3–9.
20 Id. at 9.
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II. 	LEGAL STANDARD
To prevail on a motion to alter or amend a judgment under Federal Rule of Civil
Procedure 59(e), the moving party must show: (1) an intervening change in controlling
law; (2) the availability of new evidence not previously available; or (3) a manifest error of
law or fact. 21 A Rule 59(e) motion is “not the proper vehicle for rehashing evidence, legal
theories, or arguments that could have been offered or raised before the entry of
judgment.” 22 When considering a motion to alter or amend a judgment, “[t]he court must
strike the proper balance between two competing imperatives: (1) finality, and (2) the
need to render just decisions on the basis of all the facts.”23 A Rule 59(e) motion to alter
a judgment “is an extraordinary remedy” that should be granted “sparingly.” 24
III. 	LAW AND ANALYSIS
A. Fabrication of Evidence Post-McDonough
As the Court noted in its Summary Judgment Ruling:
In McDonough v. Smith, the United States Supreme Court found that
“malicious 	prosecution 	is 	the 	most 	analogous 	common-law 	tort” 	to
fabrication of evidence. As such, a fabrication of evidence claim “accrues
only once the underlying criminal proceedings have resolved in the plaintiff’s
favor.” The Court went on to hold that the plaintiff in that case “could not
bring 	his 	fabricated-evidence 	claim 	under 	§ 	1983 	prior 	to 	favorable
termination of his prosecution.” In support of its holding, the Court drew
heavily from its prior decision in Heck v. Humphrey[.]25
Plaintiff assigns error, arguing that the Court did not directly address his argument
that his fabrication of evidence claim is based in substantive due process rather than
21 See Alexander v. Wells Fargo Bank, N.A., 867 F.3d 593, 597 (5th Cir. 2017) (citing Schiller v. Physicians
Res. Grp., Inc., 342 F.3d 563, 567 (5th Cir. 2003)).
22 Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004)
23 Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 355 (5th Cir. 1993).
24 Matthews v. Tidewater, Inc., 108 F.4th 361, 371 (5th Cir. 2024) (citing Templet, 367 F.3d at 479 (quoting
Waltman v. Int'l Paper Co., 875 F.2d 468, 473 (5th Cir. 1989)).
25 Rec. Doc. 173, p. 6 (quoting McDonough, 588 U.S. at 116–17).
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procedural due process. 26 He argues that the constitutional right at issue in McDonough
was “the Due Process Clause ‘right not to be deprived of liberty as a result of the
fabrication of evidence by a law enforcement officer’” and that the McDonough plaintiff
analogized his fabrication of evidence claim to the common-law tort of malicious
prosecution. 27 The Plaintiff maintains that McDonough applies only to fabrication of
evidence claims based in procedural due process, not substantive due process like
Plaintiff’s. 28
In support of Plaintiff’s argument, he points the Court to McDonough’s footnote 2,
which states:
In accepting the Court of Appeals’ treatment of McDonough's claim as one
sounding in denial of due process, we express no view as to what other
constitutional provisions (if any) might provide safeguards against the
creation or use of fabricated evidence enforceable through a 42 U.S.C. §
1983 action. See Soldal v. Cook County, 506 U.S. 56, 70, 113 S.Ct. 538,
121 L.Ed.2d 450 (1992) (“Certain wrongs affect more than a single right
and, 	accordingly, 	can 	implicate 	more 	than 	one 	of 	the 	Constitution's
commands”). 	Moreover, 	because 	the 	Second 	Circuit 	understood
McDonough's due process claim to allege a deprivation of liberty, we have
no occasion to consider the proper handling of a fabricated-evidence claim
founded on an allegation that the use of fabricated evidence was so
egregious as to shock the conscience, see, e.g., County of Sacramento v.
Lewis, 523 U.S. 833, 849, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), or
caused harms exclusively to “interests other than the interest in freedom
from physical restraint,” Albright v. Oliver, 510 U.S. 266, 283, 114 S.Ct. 807,
127 L.Ed.2d 114 (1994) (Kennedy, J., concurring in judgment); see also,
e.g., W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on
Law of Torts § 119, p. 870 (5th ed. 1984) (Prosser & Keeton) (“[O]ne who
is wrongfully prosecuted may suffer both in reputation and by confinement”).
Accordingly, we do not address what the accrual rule would be for a claim
rooted in other types of harm independent of a liberty deprivation, as no
such claim is before us. See 898 F.3d 259, 266 (CA2 2018). 29
26 Rec. Doc. 176-1, pp. 6–9.
27 Id. at p. 3 (quoting McDonough, 588 U.S. at 115).
28 Id. at pp. 6–7.
29 McDonough, 588 U.S. at 115, n.2.
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Plaintiff argues that he brought a substantive due process fabrication of evidence
claim. However, his Complaint only generally alleges a “Fourteenth Amendment Due
Process Violation” with respect to Perrilloux and Foster “intentionally and deliberately
coerc[ing] and intimidate[ing] Ashton, a minor, into fabricating false evidence implicating
Wearry in the Walber murder.”30 Plaintiff alleged that “Perrilloux’s and Foster’s conduct in
manufacturing and perpetuating Ashton’s false witness account violated [his] due process
rights[,]”31 which caused him to suffer “significant damages, including but not limited to
his wrongful conviction and death sentence, and his incarceration on death row for almost
15 years.”32
The “accrual analysis begins with identifying ‘the specific constitutional right
alleged’ to have been infringed.” 33 Plaintiff suggests that identifying the constitutional right
infringed as substantive due process yields a different result than if the identified
constitutional right is procedural due process. The Court disagrees. Like in McDonough,
Plaintiff’s allegations herein “seek[] to vindicate a right not to be deprived of liberty as a
result of the alleged fabrication of evidence by a government officer.”34 Plaintiff disputes
that his fabrication of evidence claim is analogous to the common-law tort of malicious
prosecution for purposes of determining accrual. But tellingly, he pled a supplemental
state law claim for malicious prosecution, wherein he re-alleged and incorporated by
reference all allegations previously pled, including those related to his fabrication of
evidence claim. 35 The Court sees no substantial difference between Plaintiff’s claims here
30 Rec. Doc. 1, p. 10.
31 Id. at ¶ 73.
32 Id. at ¶ 80.
33 McDonough at 115, citing Manuel v. Joliet, 137 S.Ct.911, 912 (1994) (plurality)
34 Id.
35 Rec. Doc. 1, ¶ 97.
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and those asserted in McDonough.
Even analyzing the constitutional right infringed as a substantive due process
fabrication of evidence claim, McDonough still applies. Following McDonough, the Fifth
Circuit, sitting en banc in Wilson v. Midland County, Texas, thoroughly discussed Heck’s
favorable termination requirement. 36 It explained that the Supreme Court’s decision in
Edwards v. Balisok—decided three years after Heck—“made clear all § 1983 suits
challenging tainted convictions and sentences must run Heck's favorable-termination
gauntlet—regardless of whether the alleged taint is procedural or substantive.” 37 The Fifth
Circuit then explained how “[t]he Supreme Court recently reaffirmed this interpretation of
Heck’s 	favorable-termination 	element” 	in 	McDonough. 38 	The 	court 	interpreted
McDonough to “echo[] Heck’s and Edwards’s teaching that plaintiff must prove favorable
termination whenever they challenge a tainted conviction or sentence, regardless of the
specific underlying constitutional claim.” 39
Though Wilson did not involve a fabrication of evidence claim, its analysis of Heck,
Edwards, 	and 	McDonough 	is 	instructive 	and 	lays 	the 	foundation 	for 	analyzing
constitutional violation claims that emanate from allegations of fabrication of evidence in
criminal cases. The Eastern District of Louisiana’s recent decision in Cerdes v. United
States is on point. 40 There, the plaintiff alleged specifically alleged both procedural due
process and substantive due process fabrication of evidence claims.41 With respect to
substantive due process, the plaintiff specifically alleged a “Fourteenth Amendment
36 Wilson v. Midland Cnty., Tex., 116 F.4th 384, 393–96 (5th Cir. 2024).
37 Id. at 394 (citing Edwards v. Balisok, 520 U.S. 641 (1997)).
38 Id. at 395.
39 Id.
40 Cerdes v. United States, No. 24-2866, 2025 WL 2444137 (E.D. La. Aug. 25, 2025).
41 Id. at *8.
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substantive due process claim based on actions that shock the conscience.” 42 The court
found that the plaintiff’s procedural due process claim fell squarely within the contours of
McDonough. 43 As to substantive due process, the court found that McDonough did not
specifically address substantive due process claims based on actions that shock the
conscience 44 , 	but 	that 	those 	claims 	must 	too 	meet 	Heck’s 	favorable 	termination
requirement.45
In its analysis, the Cerdes court explained that to prove a substantive due process
fabrication of evidence claim a plaintiff must prove the following: “(1) that the officers
fabricated evidence (2) for the purpose of falsely obtaining a charge and (3) that the
42 Id.
43 Id.
44 County. of Sacramento v. Lewis, 118 S.Ct. 1708, 1716–17, 523 U.S. 833, 845–46 (1998) provides a
thorough analysis and historical review of Due Process.
The touchstone of due process is protection of the individual against arbitrary action of
government,” Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 2976, 41 L.Ed.2d 935 (1974),
procedural due process guarantee protects against “arbitrary takings”), or in the exercise of power
without any reasonable justification in the service of a legitimate governmental objective, see, e.g.,
Daniels v. Williams, 474 U.S., at 331, 106 S.Ct., at 664 (the substantive due process guarantee
protects against government power arbitrarily and oppressively exercised). While due process
protection in the substantive sense limits what the government may do in both its legislative, see,
e.g., Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), and its executive
capacities, see, e.g., Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), criteria
to identify what is fatally arbitrary differ depending on whether it is legislation or a specific act of a
governmental officer that is at issue.
Our cases dealing with abusive executive action have repeatedly emphasized that only the most
egregious official conduct can be said to be “arbitrary in the constitutional sense,” Collins v. Harker
Heights, 503 U.S., at 129, 112 S.Ct., at 1071, thereby recognizing the point made in different
circumstances by Chief Justice Marshall, “ ‘that it is a constitution we are expounding,’ ” Daniels v.
Williams, supra, at 332, 106 S.Ct., at 665 (quoting M'Culloch v. Maryland, 17 U.S. 316, 4 Wheat.
316, 407, 4 L.Ed. 579 (1819) (emphasis in original)). Thus, in Collins v. Harker Heights, for example,
we said that the Due Process Clause was intended to prevent government officials “ ‘ “from abusing
[their] power, or employing it as an instrument of oppression.” ’ ” 503 U.S., at 126, 112 S.Ct., at
1069 (quoting DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S., at 196, 109 S.Ct.,
at 1003 (in turn **1717 quoting Davidson v. Cannon, 474 U.S., at 348, 106 S.Ct., at 670–671).
To this end, for half a century now we have spoken of the cognizable level of executive abuse of
power as that which shocks the conscience.
45 Id. at *8–*10.
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evidence influenced the decision to charge” and that “the defendants intentionally or
knowingly presented false evidence or fabricated evidence, [such that] their actions shock
the conscience.’” 46
The Cerdes court found that if the plaintiff’s “criminal conviction was still standing,
the validity of his conviction would be undermined if he secured a civil judgment in his
favor on [the] substantive due process claim.”47 Moreover:
Cerdes's claim that Martin fabricated evidence in a way that shocks the
conscience is not materially dissimilar to his other constitutional injury
theories 	to 	which 	Heck 	applies. 	Cerdes 	must 	still 	prove 	that 	Martin
fabricated evidence to prove his procedural due process claim, and the
Supreme Court has determined that those fabricated evidence claims are
most analogous to the common law tort of malicious prosecution, which has
a favorable-termination element. McDonough, 588 U.S. 118-20. It is true
that “some claims do fall outside of Heck’s ambit when a conviction is merely
‘anticipated.’ ” 12 McDonough, 588 U.S. at 119 (quoting and discussing
Wallace v. Kato, 549 U.S. 384, 393 (2007)). But “[t]here is not a ‘complete
and present cause of action’ to bring a fabricated-evidence challenge to
criminal proceedings while those criminal proceedings are ongoing.” Id.
(quoting Wallace, 549 U.S. at 388). The Court sees no reason to apply
different reasoning here just because Cerdes has an additional burden to
prove that Martin's conduct shocks the conscience. 48
Considering the foregoing, the Court finds no error in its application of McDonough
to Plaintiff’s fabrication of evidence claim, be it procedural or substantive due process..
Plaintiff’s motion is therefore denied as to this issue.
B. Favorable Termination
Plaintiff alternatively argues that, even if the Court correctly applied McDonough,
the Court erred in finding that his guilty plea to a manslaughter charge was “likely not” a
46 Id. (alteration in original) (quoting Rogers v. Lee Cnty., Miss., 684 F. App'x 380, 390 (5th Cir. 2017)
(internal references omitted) (emphasis added)).
47 Id. at *9.
48 Id.
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favorable termination of his prosecution. 49 Plaintiff misconstrues the Court’s Ruling. As
the Court explained, Plaintiff’s “fabrication of evidence claim hinges on whether there was
a ‘favorable termination of his prosecution’ prior to the filing of the instant suit.”50 The
Court found that the Supreme Court vacating Plaintiff’s conviction and remanding his case
for a new trial was not a favorable termination within the meaning of Heck.51 Therefore,
there needed to be some other event that constituted a favorable termination prior to
Plaintiff filing suit. 52 Accrual commence “when the plaintiff has ‘a complete and present
cause of action’.” 53 If the plaintiff is ultimately convicted. . . and a civil suit would impugn
that conviction, Heck will require dismissal.” 54 The Supreme Court in plainly instructs55 :
We hold that, in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid, a § 1983
plaintiff must prove that the conviction or sentence has been reversed on
direct appeal, expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called into question by a
federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A
claim for damages bearing that relationship to a conviction or sentence that
has not been so invalidated is not cognizable under § 1983.
The Court the finds no error in its favorable termination analysis. The Plaintiff
stands convicted of manslaughter. His manslaughter conviction has not been “reversed
on direct appeal, expunged by executive order, declared invalid by a state tribunal
authorized to make such determination, or called into question by a federal court's
49 Rec. Doc. 176-1.
50 Rec. Doc. 173, p. 7.
51 Id.
52 Id. at 7-8.
53 Wallace v. Kato, 549 U.S. 384, 388 (2007)
54 Id, citing Edwards v. Balisok, 520 U.S. 641, 649, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997); Heck, 512 U.S.
at 487.
55 Heck, 512 U.S. at 487 (emphasis added)
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CHIEF JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
issuance of a writ of habeas corpus”. 56 The Court finds that his fabrication of evidence
claim would call into question the manslaughter conviction and is therefore barred by
Heck. Plaintiff’s motion is therefore denied as to this issue.
IV. 	CONCLUSION
For the foregoing reasons, the Rule 59(e) Motion to Alter or Amend Judgment and
Reconsider Summary Judgment Ruling57 filed by Plaintiff Michael Wearry is DENIED.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana on February 26, 2026.
56 Id.
57 Rec. Doc. 176.
S
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