SULLIVAN WALTER , Plaintiff v. CITY OF NEW ORLEANS , ET AL., Defendant Civil Action No. 23-4352 United States District Court, E.D. Louisiana SECTION “E” (2) ORDER AND REASONS SUSIE MORGAN , UNITED STATES DISTRICT JUDGE Before the Court are Defendants , Anne Kirkpatrick ( “Kirkpatrick” ) , in her official capacity as Superintendent of the New Orleans Police Department ( “NOPD” ) , the City of New Orleans ( “the City” ) , and Harry O'Neal (O'Neal”) (Kirkpatrick, the City and O'Neal sometimes collectively referred to as “the City Defendants ” ) . [ 1 ] The City Defendants filed a Motion to Dismiss pursuant to Rule 12 (b) (6) of the Federal Rules of Civil Procedure . [ 2 ] Plaintiff , Sullivan Walter , opposes the motion. [ 3 ] The City Defendants filed a reply. [ 4 ] Plaintiff also filed two notices of supplemental authority. [ 5 ] This case arises out of the wrongful conviction and incarceration of Plaintiff , Sullivan Walter . [ 6 ] On May 10, 1986 , L.S. was sexually assaulted in her home. [ 7 ] Immediately after the assault L.S. called the police and was taken to the hospital, where a resident physician performed an examination and preserved the evidence in rape kit collecting several swabs. [ 8 ] That night, L.S. also provided a description of the perpetrator to the police. [ 9 ] She described the perpetrator as a Black man who was “5'11, slender, 18-20 years old, with thick eyebrows, jerri curl ringlets, [and was] wearing a backwards baseball hat.” [ 10 ] L.S. stated that the man's baseball hat was blue, and he wore a face covering during the assault. [ 11 ] A sketch artist prepared a composite drawing of the perpetrator. [ 12 ] The Orleans Parish Coroner's Office performed serological testing on the vaginal swabs recovered from L.S. [ 13 ] Plaintiff alleges that serological testing “is used to determine whether a person's body secretes ABO blood group antigens into their bodily fluids, such as saliva, sweat, and semen.” [ 14 ] Persons who secrete blood group antigens are known as “secretors,” while those who do not are referred to as “non-secretors.” [ 15 ] The testing revealed that the seminal fluid came from a perpetrator who was a non-secretor. [ 16 ] Separately, Harry O'Neal ( “O'Neal” ) , a criminalist in the New Orleans Police Crime Lab at the time, [ 17 ] serologically tested a semen sample retrieved from L.S.'s shorts. [ 18 ] This testing also revealed that the perpetrator was a non-secretor. [ 19 ] On June 23, 1986 , Plaintiff -who was seventeen, of an average build had cropped natural hair, sparse eyebrows, and was without facial hair at the time-was arrested for an unrelated simple burglary. [ 20 ] Plaintiff was wearing a blue hat when he was arrested. [ 21 ] The police identified him as a potential match to the composite drawing. [ 22 ] On June 26, 1986 , the police presented L.S. with a photo lineup of seven individual photographs, one of which was a photo of Plaintiff wearing a blue hat. [ 23 ] Plaintiff alleges he was the only man in the photos who was wearing a hat. [ 24 ] Plaintiff alleges “L.S. made a cross-racial identification and incorrectly identified Mr. Walter as the perpetrator.” [ 25 ] On November 13, 1986 , Plaintiff was charged with two counts of aggravated crimes against nature, one count of aggravated rape, and one count of aggravated burglary. [ 26 ] On December 1, 1986 , he was arraigned and pleaded not guilty. [ 27 ] Plaintiff alleges that, while they were preparing his defense, he and his counsel were unaware of the serological testing that had been performed. [ 28 ] Plaintiff alleges that “neither [ he ] nor his attorney received the lab report before the morning of trial. As a result, this evidence was unusable at trial, and Mr. Walter was deprived of an opportunity to obtain and present any evidence regarding his own secretor status or the implication of his secretor status.” [ 29 ] At the trial, L.S. testified and identified Plaintiff as the perpetrator. [ 30 ] Detective O'Neal testified that the serological testing of the seminal fluid revealed that the perpetrator was a non-secretor but did not explain the significance of this finding: Plaintiff alleges that O'Neal confirmed the perpetrator was a non-secretor during his cross-examination. [ 32 ] Following the three-hour trial, a twelve-member jury found Plaintiff guilty on all counts. [ 33 ] Plaintiff was sentenced to thirty-five years in prison. [ 34 ] Plaintiff appealed his conviction, arguing that OPDA violated his constitutional due process rights and violated its discovery duties because it withheld the serological testing reports until the day of trial. [ 35 ] In October 1987 , the Louisiana Fourth Circuit Court of Appeal , finding OPDA violated its discovery duties, remanded the case to the trial court to allow for Plaintiff to present his Brady [ 36 ] claims . [ 37 ] On January 13, 1988 , serological testing was ordered, which revealed that Plaintiff was a secretor and secreted Blood Type B antigens. [ 38 ] Plaintiff alleges that this testing confirmed that Plaintiff could not have been the perpetrator of the crimes against L.S. [ 39 ] Plaintiff moved for a new trial. [ 40 ] On April 29, 1988 , the criminal district court held an evidentiary hearing on Plaintiff 's motion for a new trial . [ 41 ] Plaintiff alleges that the prosecution 's only witness at the hearing was O'Neal. [ 42 ] Plaintiff alleges that In the alternative, Plaintiff alleges that Detective O'Neal intentionally falsified his testimony on his own and concealed the fact that he gave false testimony from OPDA. [ 44 ] At the hearing, Detective O'Neal testified that the serological testing did not necessarily exclude Mr. Walter as a potential perpetrator. [ 45 ] Detective O'Neal also testified that the serological testing of the rape kit swabs did not conclusively establish whether the perpetrator was a secretor. [ 46 ] Plaintiff alleges that this testimony was false and directly contradicted Detective O'Neal's testimony at the first trial. [ 47 ] Plaintiff alleges that O'Neal's testimony was the “sole basis for the criminal district court to deny [ Plaintiff 's] motion for a new trial ,” as no other witness testified at the hearing. [ 48 ] Plaintiff appealed, and the Fourth Circuit Court of Appeal affirmed the denial of the motion for a new trial . [ 49 ] In October 2021 , the Innocence Project New Orleans ( “IPNO” ) took on Plaintiff 's case. [ 50 ] IPNO contacted the Civil Rights Division of OPDA , which began conducting its own investigation into Plaintiff 's case. [ 51 ] On August 23, 2022 , OPDA and IPNO attorneys filed a “Joint Agreement and Motion to Vacate ” Plaintiff 's conviction. [ 52 ] At the motion hearing on August 25, 2022 , OPDA “stated that ‘the serology evidence' disclosed on the morning of Mr. Walter's trial ‘show [ed] that' Mr. Walter ‘did not commit the crime.' ” [ 53 ] After the hearing, a criminal district court judge vacated Plaintiff 's conviction and ordered his release from prison. [ 54 ] Plaintiff filed the instant civil lawsuit, seeking to recover compensatory damages, punitive damages, and an award of costs and attorneys' fees for violations of his civil rights under 42 U.S.C. §§ 1983 and 1988 , the Fifth and Fourteenth Amendments of the United States Constitution , the Louisiana Constitution , and other Louisiana state law. [ 55 ] Plaintiff seeks to hold OPDA, the City, O'Neal, and other unnamed agents of the OPDA/the City /NOPD liable for violations of his civil rights, which resulted in his wrongful incarceration for over 35 years. [ 56 ] Plaintiff alleges that Defendants violated his Fifth and Fourteenth Amendment rights by “fabricating evidence; suppressing exculpatory evidence; suborning and committing perjury; and creating and maintaining unlawful policies, customs, and practices that caused the wrongful and unconstitutional acts ....” [ 57 ] Plaintiff brings § 1983 individual capacity claims against both O'Neal and “John/ Jane Does #1-20,” employees of the NOPD or OPDA acting under the color of state law, alleging the following violations: (1) deprivation of liberty without due process of law, in violation of the Fifth and Fourteenth Amendments ; (2) violations of due process that shock the conscience, in violation of the Fourteenth Amendment ; and (3) a civil rights conspiracy claim. [ 58 ] Plaintiff brings a “failure to intervene” claim solely as to John/ Jane Does #1-20. [ 59 ] Plaintiff alleges the individual Defendants , acting individually, jointly, and/or in conspiracy, improperly suppressed and failed to timely disclose material exculpatory evidence, fabricated evidence, and engaged in the affirmative concealment of such misconduct, thereby depriving Mr. Walter of his right not to be deprived of liberty without due process of law.” [ 60 ] Plaintiff also asserts state law claims against the individual Defendants : claims for malicious prosecution , wrongful conviction and wrongful imprisonment, negligence and/or gross negligence, intentional and/or reckless infliction of emotional distress, and violations of the Louisiana State Constitution . [ 61 ] Plaintiff brings an official capacity claim under Monell v. Department of Social Services [ 62 ] against the City, through OPDA and NOPD. Plaintiff alleges that Get this document and AI-powered insights with a free trial of vLex and Vincent AI Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant Access comprehensive legal content with no limitations across vLex's unparalleled global legal database Access comprehensive legal content with no limitations across vLex's unparalleled global legal database Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant Access comprehensive legal content with no limitations across vLex's unparalleled global legal database Access comprehensive legal content with no limitations across vLex's unparalleled global legal database Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

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