Michael Wearry v. Scott M. Perrilloux and Marlon Kearney Foster

• Court: District Court, M.D. Louisiana
• Decided: February 27, 2026
• Docket: 3:18-cv-00594
• Status: Unknown

Opinion

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. 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. 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. 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). 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. 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. 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. 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 conscience44, 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. 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. 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) 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.

S

CHIEF JUDGE SHELLY D. DICK UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

56 Id. 57 Rec. Doc. 176.