welcome to the court of appeals for the sixth circuit before we begin i wish to assure you that the panel is prepared for the cases this morning we have read and reviewed your briefs because we are prepared we would prefer to  please spend your time not reading from your briefs not reciting the statement of facts in your case but rather arguing the most critical issues in the case we will assume that that issues that are not argued today that you rely upon the arguments contained in your briefs finally if your counsel for appellant and wish to reserves in time for rebuttal we so indicate to me and also to our court officer with that you may call the first case for very well thank you for your honors this appeal obviously in its essence boils down to it ball of twine and how they apply here and what i want to start out with right away is an explanation of why the complaint in this case is actually worlds apart from the is insufficient complaints in twamley nippon it really boils down to one fundamental reason that's  follows joe d'ambrosio complain in this case is built upon proven repeated misconduct by the county prosecutor's office not to early carmen marino who handled this trial it is built upon that prove in court found misconduct that there is no doubt occurred and what her complaint simply asks were simply alleges is that there's a plausible inference that inference that the misconduct in this case may be evidence of a policy customer practice that's what you're saying yes the question is is there a plausible inference that in light of the documented repeated misconduct in this case is that a plausible inference that that misconduct plausibly extends to some extent you made any factual allegations to that effect in the compl yes we have made some factual allegations that extent rather than just conclude yes part of it of course is you're in a situation where you need discovery to ferret out as much of those facts as you can get what we have at this point in addition to the documented findings of the courts in the hague is proceedings of the misconduct in terms of specific indications of policy of misconduct from that office one example you have the documented finding by the federal court that mr marino's policy and there's no indication that it was limited to him was that defense attorneys did not have full access to the documents in the case but that the prosecutor instead read selected portions to the defense counsel mrs judge kathleen o'malley noted that this was merinos policy but i mean isn't it true though that if you have  you know some sort of official who has himself a policy of doing something even if it's not subject to review by supervisors then that doesn't seem to be enough to establish a policy for the whole organization you know for the whole county right well there's two two sort of points we need to be very clear on that your question raises one is that you can establish municipal liability the county's liability base one that they have had a pattern or practice through their actions which may be shown through prosecutor marino through other prosecutors through various misconduct and you separately could establish that municipal liability based on even single actions of a policymaker and if your question is going to the policy made yes yeah ok and just because nobody was supervising him in this practice of his own you know to me i'm not i don't see how that makes the you know accounting policy i want to give you a chance to well explain in an we point out in the  in our opening brief we point out a couple cases where even assistant prosecutors which merinos that was marina's official title very high level prosecutor but not the prosecutor for the county in the case a show that it  depends on the facts including such facts as how much discretion that prosecutor really had how much administrative control the prosecutor had including control over other prosecutors but those cases show that when you allege sufficient facts indicating that that person is running the prosecution in committing misconduct that you have at least the plausible inference and potential for facts that this person is actually acting with such discretion that they speak for the county now we point out a couple  cases where the courts say yes you have at least enough to proceed to summary judgment so that we can see what those facts really bear out about that particular prosecutor's discretion the defendants in this case don't respond to those cases so are they post probably cases i believe there's two in there post it ball your honor and so this is sort of the second avenue by which the entity itself can be liable here that is that mr marino is at least arguably at this pleading stage of fission discretion to be considered a policy maker for the county i would add however  frankly believe there is a stronger way to hold the county liable i think that route is very strong because the defendants don't counter the cases i just mentioned but the fundamental aspect that this repeated proven misconduct which i think is incredibly unusual at this stage of a civil case you have an incredible havey us record here of undisputed misconduct in this prosecutor coming out of this county and again the question is did the three of you have in your mind the idea that there's a plausible inference that all that misconduct could extend into that county office and that's very and in what sense other actors other cases by marino that we don't know about i mean how how far does this have to missteps to size or whatever that word is before you have mono a lot of ability well i think that question is is the heart of  it's what plausible inference can you make based on what we know now about how far things extended into that office and i think the policy i mentioned before the idea of reading these documents and things like that there's no indication that this is limited to marino and i think what you all so far doesn't have to go is what i'm asking well how far do i have to infer that this might go in order for you to cross the law i think you need to infer that that there's a for the you have to have a reasonable inference that generally speaking that county through i would say a substantial maybe  possibly majority of the people in there either acquiesced or actually practiced this sort of misconduct what i mean by this month misconduct in very plain terms is a sense of cutting corners or cheating to win the things that happen and kicked out this guy was at the top not the very top but he was the big deal prosecutor and when it got to a point where they were naming awards after the guy then they had to scratch his name off because of the disc race of that office now you're sure you've basically got two possibilities here with with merinos conduct and the conduct of the county over these years you've got the possibility that the defendants posit we've got a bad apple got a bad apple who's been here for a long long time he's cut corners in a lot of cases and it's been it's had disastrous consequences or you've got the possibility that actually that bad apple was there for so many years doing doing these things repeatedly in the entity itself didn't have a problem with it or condone it or continued and extended those actions the point about it beyond twamley that i think it goes to this point about what is really a reasonable inference here and that's what it comes down to court pointed out that's perfectly consistent with proper conduct by the defendants we're not going to make the analytical leap to say it's conceivable that your theory is a plaintiff could fit that miss that those facts with misconduct here completely different we have documented proven egregious misconduct by this office over a period of years and the only question is is there a fair inference that based on all n the reference i made there was really having in mind the supreme court statements about judges and of course this is a dyno review assessing in their own common sense and judicial experience that's why the references do you believe there is a plausible inference for us through our really asking for at this stage of course is do we have enough here that maybe we should take some depositions and find out what was really going on but let me ask you i mean let's say hypothetically that reno is not a policymaker for purposes of the county liability but we've got a record where reno you know agreed to sleep violates brady in this case there's another case two years before apparently where that also involved brady violations you've got ten other cases where i gather and first of all of those ten other cases referenced in the complaint they are  ok i gather that there is you're saying there were the wrist cheating quote unquote in those cases but not necessarily brady violations correct right so but he's that look i fed a clean he's not the top policymaker but if this is going on for an extended period of time and there's some reason to think that his boss would have known about it is that would that acquiescence somehow give rise to more no liability i think it definitely it definitely would and how i mean how would that be well if if the facts are as you as you posit and we assume reno is not actually a policy maker himself but he's doing all these things number one if there's a high level person who knows this is going on and it would just be the prosecutor him or herself at this point  of yet my my best knowledge on it again and previous governor would be the prosecutor at the time that elected prosecutor if that person says marino is up to it again or good job with we got the wind that's that's an unbelievable clear cut case of the county basically saying this is how we do business and i think that's a clear mon el claim they're ok county when you read the second amended complaint drafted by my colleague it's written as if they believe that liability on the part of the county and other municipal entities would derive simply from showing the carmen marino was a bad guy and it is this court knows the fundamental law in this area is there is no response superior or liability let's say common reno's doing this for fifteen years everybody knows it and whoever his boss was didn't do anything about it does that state a claim of income well let's talk about what the this is because in the complaint in paragraph eighty four of the second m complaint they have a bare conclusory statement that what that these is is a policy or practice of not disclosing exculpatory evidence now my colleague kevin last wants to stand up and make thought well this is a pleading running we don't ask for proof you know well it's just whether we can infer that there is a basis for liability plausible right but what if paul tells us is we need sufficient facts to take it from the speculative to the plausible and your question goes to exactly what's missing in the second amended complaint essentially what they do is they plead the brady violation in this case and one other case larkin's and here we're guided by conic in conic the court said that is a matter of law that for prior brady violations was not enough to put  that governmental entity on notice of the need to train so if for prior brady have a need to train clearly many more this case doing well they played it but they haven't pursued they've abandoned it right but the point i'm getting to is that logically if four is not enough to put a county on notice to really one other one is not enough to establish what they need to establish which is a custom or policy that is so persistent and widespread in the words of the supreme court in conic or permanent and well settled in the words of the supreme court i'm on now as to have the force a law so for doesn't put you onto a notice to doesn't i give rise to any plausible inference it's simply not enough or go to this court's decision in pete where they said look three arrests without probable cause is not enough to establish a custom or practice to violate the law so when you look at what they need to plead which is in it's paragraph joke they don't get to that point of notice and acquiescence so there's a basic quantitative problem in what they plead but they're not exactly that point yeah i mean you know it's hard not to have some sympathy for the claimant in that respect i mean absent discovery how the heck are they supposed to solve this quantitative problem just sit around and hope that somebody else has a successful hey b s petition you i mean by then their claim is totally time are i mean how they get around that well the fact is that these cases get litigated in haiti is in state post conviction the entire files get turned over in if they're doing what they're supposed to do you know right but i've sat at the other table i've litigated these you get the whole file and you look through and you try to find something that you can argue wasn't turned over so there is a way to prove this but keep in mind the allegation they're making against the county is that the highest policymakers decided sat down and said you know the supreme court says we have to turn over its open tory evidence but we're not we're not going to do that here in county there's nothing in this complaint that would get you there in the supreme court says you have to have rigorous standards of proof otherwise municipal liability simply collapses into responding in superior or all they have is to brady violations involving the very same prosecutor if there was something in cuyahoga county that had the force of law you would have other brady decisions in you know as hard as they've worked they would have found them and cited to them well that's they can say oh it highly speculative really well i don't know if they would've you know if marino did this in twenty other cases that we'd already know about it i have no idea i really don't i mean i'm sure marina is doing everything it can to make sure that doesn't get known by everybody well the evidence that was allegedly that was found to be brady in this case was left in the files no one attempted to  assistant prosecutor and this was a county wide policy custom practice you would think all the other system prosecutors be doing the same thing because that's the point i'm trying to make i mean rather than just want to write how many system prosecutors do they  we're trying to figure out whether this is just a bad actor or whether this is the practice of the prosecutor's office well the fact that all you have is one prosecutor and you know again the supreme court's decision in conic is help on this point you know what what is said in both the current in pinion and the main opinion is that you know brady mistakes are inevitable and anyone who's been a prosecutor knows that mistakes do get made by offices but the fact that all they can cite is one of these is a is one prosecutor in two cases including the case that issue is simply not enough to plead a plausible basis that there was a county policy to violate brady they have another problem under the law of this court that they've never addressed even though we've we've raised a number of times and that's this court's decision in county and what katie combine with the six circuits decision in who see says is that when you're prosecuting state crimes or high all county prosecutors are acting as state officials so the effort on their part to make merinos conduct be proof of the policy it doesn't prove a county policy it only would give rise to an action against the state that would be barred by the eleventh the member so under  county merinos conduct cannot establish the policy and there are other efforts to essentially establish single incident liability under power fails under this court's precedent in  account in addition the statement that they make in there that carmen marino and bill mason were final policy make head final policy making authority is again the type of statement under  purely conclusory and who would not have title to anyway i understand your point i mean who would have it is it who is above the assistant prosecutor in reno is it just the county prosecutor no the in again my my colleague stood up and said a few things are outside the record i'm now speaking i'm now outside the record but yeah as far as i can go to our website there's a whole nother tour of management i mean yeah it's super in the district court's opinion the judge in the district corps was a federal prosecutor in cleveland he understands how the county works so when they pled that these guys in the late eighty's had final policy making authority i mean there was a there's a reaction that's implicit in the order that no that's absolutely not right these guys were assistant county prosecutors so in the end it you know it paul talks about you know not you know they're asking for a chance you know to do discovery just let us do discovery maybe we'll find something his word maybe not mine and it paul talks about you know in that case actually there were stronger allegations of a policy involving the treatment of detainees in a ball than their heart here but you know talks about you know the need to resolve these cases at the pleading stage to avoid subjecting municipalities to the you know very substantial cost in disruption of conducting discovery on what was occurring for decades here it's completely speculative to say that the final policymakers in cuyahoga county ever made a decision to do that i wanted to talk for a moment about the statute of limitations but might my time maybe you want to hear i mean i've read your briefs on that you know and you guys in one argument anyway i mean  alleged against him personally are really based upon a faulty legal theory that he could be held liable for failing to disclose evidence to the defense that this case this court is pretty clear with with a number of decisions that  allege that he failed to disclose evidence to the prosecutor and if you look at the allegations of the second amended complaint there is no allegation that he failed to disclose evidence to the prosecutor except for one sentence in paragraph sixty eight in w is further believed that he even with help document from the prosecutor based upon differences between the prosecutor's island yeah it seems to be your primary argument in your brief and it's a highly materials to the defense it's it almost i mean frankly it seems to me more like a shorthand for how people describe the wrongful conduct in these cases and you know i had a in opinion in that case as well and the way i phrased it was the violation is the officers concealment of the exculpatory evidence so it's not he provide it to one person or another the violation occurs if he simply conceals it and why isn't that adequately put here i mean that he that there's a difference between the duty to turn over evidence the defense is the prosecutor's duty and that sure it is therefore an officer only could be held liable if they can allege and then prove that he failed to sort of it but if the police officer has a piece of exculpatory evidence and he just says you know what throwing that right in the garbage it's gone and somebody alleges that you know he concealed the evidence the fact that they say he did that they don't say he produced it failed to produce it to the prosecutor i mean that doesn't mean that there's no liability to lie buildings from the concealment but again it's in their complaint they said he didn't turn it over to defense programs sixty two cents to write among other people or after a graph ninety want and they don't say that he did what you said which is just put it into there's nothing in there that specifically says he didn't turn it over to the prosecutor except for paragraph sixty eight and to me that legally that makes all the difference in the world i mean otherwise you know you're you're essentially undercutting the difference between the prosecutor duty and the once said you know withholding evidence whose expose the tory value was apparent i think it kind of merges into the same thing but that is a totally different theory than the sort of theory that they're advocating to the prosecutor and that's obvious from the complaint that it's a different theory i mean some urging anything but i think both of those theories are based upon the duty to turn evidence to the prosecutor because there is no duty to turn evidence over the fence and if you look at very closely at their complaint they are centrally taking the laundry list of evidence that the prosecutor failed to turn over and then essentially blaming mr allen for that saying that he had an obligation over the defense and he didn't is i mean did our court just missed misspeak in malta won when we said that the officer had live below the because of his failure to quote turn over evidence to the defense or is that just a shorthand that people use in describing the injury in these cases i don't think that it misspoke because if you read the opinion it's very clear what the source of the liability was in that case and that was that and again of potential liability because but it was very clear that k that it was the obligation of the officer to turn over to the prosecutor it and so everybody knows that i mean everybody knows that so that's what the if everybody knows that then that's what they should have planned in their complaint in fact there they knew the difference because when they that those allegations do make out a claim for officer liability under this court's decision amol the won in the supreme court's decision and term that your honor i would submit that they have to allege that he concealed evidence from the process and you got to take my hypothetical as i give it to you let's say that is not a valid argument ok would you agree that the nature of the evidence that issue here satisfies the requirements of that cl just questions nothing more on a technicality is there any questions you want i don't have any questions or thank you thank you just really end where i started this case is nothing like the insufficient complaints and ball for the reasons i stated that the conduct alleged there fit perfectly with the defendant have much further to add to the exchanges with judge kest catholics i think that it's a hypertechnical argument and i think at the end of the day if you look past the hyper technicality you're left with the mold of one case and the question of is this exculpatory would it have been apparent to detective allen at the time that for example there was a statement in a police report saying let's dump the body in the basement would that be exculpatory in light of the fact that the whole case against mr d'ambrosio was at the crime occurred in a creek miles away you can see the detective has no duty to your client i can see that in light of moldovan and the case saw that in light of this exchange that the duty is to turn over the documents and of course at the end of that turn over to the to the prosecution to the yeah i have no problem conceding that point a tough case for you i mean you know i mean for instances and it wasn't you know i know it's about training and putting people on notice but you know if part of the theory here is that somebody higher up knew and let this happen it seems like you know thank you by analogy if two instances might not be enough to infer that i want to give you a chance to respond i actually think connick is a great case for us reason that's really critical is because that's the only reason the point about notice is so important it's all about does the entity or the higher ups at the entity have notice of a problem which mean the need to be a number of incidents in the notice and then they can implement the training that's appropriate and in connacht the whole claim is you failed to adequately train and then they say well there wasn't enough notice we're not really even in the conic world because we're not bringing or we're not pushing that failure to train claim appeal we're pushing not a claim that they failed to tell prosecutors here's how you don't cut corners here's how brady worse you affirmatively plowed forward in these cases as an office in reno is the best illustration of it and you said this is how we're going to obtain convictions by any means necessary and so the question is is there enough here to say this bad apple illustrates a really poisonous tree or is it really truly mr moreno was rolled off on his own and no one else in the office did anything like what he did and that's completely different than