1 17-3436 (L) Kroemer v. Tantillo et al. 

### UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROC EDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMEN T FILED WITH THIS CO URT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATA BASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPR ESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Fole y Square, in the City of New York, on the 17 th day of December, two thousand eighteen.
Present: R OBERT D. S ACK , D EBRA A NN L IVINGSTON , D ENNY C HIN , Circuit Judges

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_____________________________________ K ENT A. K ROEMER , Plaintiff-Appellant , v. 17-3436; 18-1006
R. M ICHAEL T ANTILLO , R OGER S MITH , AND M ARK T. F ISCHER Defendants-Appellees

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_____________________________________ For Plaintiff-Appellant: K ENT A. K ROEMER , pro se , East Rochester, New York. For Defendant-Appellee R. Michael Tantillo: M EGHAN E. M ASLYN , Ontario County Attorney’s Office, Canandaigua, New York. For Defendants-Appellees Roger Smith, Mark T. Fischer: P ATRICK W OODS , Assistant Solicitor General for the State of New York (Andrea Oser, Deputy Solicitor2 General, on the brief ), for Barbara D. Underwood, Attorney General of the State of New York, Albany, New York. Appeal from the judgment of the United States District Court for the Western District of New York (Crawford, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Plaintiff-Appellant Kent A. Kroemer appeal s from the June 16, 2017 decision and order of the district court dismissing his complaint for failu re to state a claim. Kroemer also appeals the district court’s September 21, 2017, Octobe r 18, 2017, December 28, 2017, and March 14, 2018 decisions and orders denying his post-judgment motions brought under Federal Rules of Civil Procedure 59(e) and 60(b). “We review the grant of a motion to dismiss under Rule 12(b)(6) de novo , construing the complaint liberally, accepting all factual allegati ons in the complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.” Elias v. Rolling Stone LLC , 872 F.3d 97, 104 (2d Cir. 2017) (internal quotation marks omitted). To w ithstand a Rule 12(b)(6) motion to dismiss, the complaint must plead “enough facts to state a clai m to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal , 556 U.S. 662, 678-79 (2009). “Threadbare recita ls of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal , 556 U.S. at 678–79. We review the denial of Kroemer’s postjudgment motions under Federal Rules 59(e) and 60(b), for abuse of discretion. See Stevens v. Miller , 676 F.3d 62, 67 (2d Cir. 2012); Munafo v. Metro. Transp. Auth. , 381 F.3d 99, 105 (2d Cir. 2004). A district court abuses its discretion “when (1) its decision re sts on an error of law (such as application of the wrong legal prin ciple) or a clearly e rroneous factual finding, or (2) its decision—3 though not necessarily the product of a legal erro r or a clearly erroneous factual finding—cannot be located within the range of permissible decisions.” Zervos v. Verizon N.Y., Inc. , 252 F.3d 163, 169 (2d Cir. 2001) (footnote omitted). This consolidated appeal presents the latest in a string of act ions in state and federal court brought by Kroemer in the wake of his conviction on two counts of criminal sale of a controlled substance in the first degree and two counts of crim inal possession of a controlled substance in the first degree, in violation of New York Penal Law §§ 220.21 and 220.43. We assume the parties’ familiarity with the underlying facts, the procedur al history of the case, and the issues on appeal.
I. Claims Against Defendan ts Smith and Fischer Kroemer challenges the dismissal of his cl aims that Defendants Roger Smith and Mark Fischer violated his fa ir trial rights under Brady v. Maryland , 373 U.S. 83 (1963), by withholding from prosecutors and the defendant material exculpatory evidence. “A Brady violation occurs when the government fails to disclose evidence materially favorable to the accused.” United States v. Triumph Capital Grp., Inc ., 544 F.3d 149, 161 (2d Cir. 2008) (quoting Youngblood v. West Virginia , 547 U.S. 867, 869 (2006)). Evidence is material if “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Fuentes v. T. Griffin , 829 F.3d 233, 246 (2d Cir. 2016) (quoting United States v. Bagley , 473 U.S. 667, 682 (1985)). A “reasonable probabil ity” of a different result “is a probability sufficient to undermine conf idence in the outcome.” United States v. Madori , 419 F.3d 159, 169 (2d Cir. 2005) (internal quotation ma rks omitted). “When reviewing alleged Brady violations, we examine the record de novo to determine whether the information in question is material as a matter of law.” United States v. Rowland , 826 F.3d 100, 112 (2d Cir. 2016) (internal quotation marks omitted).4 Here, we agree with the district court’s c onclusion that Kroemer failed to adequately establish the materiality of the supposedly suppressed evidence. Kroe mer first asserts that he could have used the favorable evidence to impeach the G overnment’s witness (David Miles) at trial and thereby undermine his testimony that Kroemer sold him cocaine on a certain date. Even assuming arguendo that the evidence he identifi es in his complaint was suppr essed, however, we conclude that Kroemer has not alleged and cannot allege a reasonable probability that this evidence would have produced a different result at Kroemer’s trial. The issue of the date of the cocaine transaction was effectively litigated during Kr oemer’s trial, and the additional evidence he now relies on, such as Miles’s wife’s involvement in dealing drugs, would have provided only minor, tangential lines of attack on Miles’s testimony. For similar reasons, we reject Kroemer’s clai m that the allegedly s uppressed evidence was material because it could plausibl y have allowed him to prevail on an entrapment defense, a theory he did not pursue at his original trial. As the court below noted, the evidence against Kroemer at trial was “strong.” App. at 156. Moreover, Kroemer admits in his complain t that he openly and knowingly dealt cocaine until October 1988. Given Kroemer’s admitted predisposition to sell drugs, it was not reasonably likely that an entrap ment theory, even if bolstered by the allegedly suppressed evidence at issue here, would have prevailed. See N.Y. Penal Law § 40.05 (providing that an entrapment defense requ ires a showing by a preponderance of the evidence that a public servant or person acting in cooperation with a public servant “create[d] a substantial risk that the offense would be committed by a person not otherw ise disposed to commit it”). Accordingly, the district court properl y dismissed the claims against Defendants Smith and Fischer.5 II. The Claim Against Assistant District Attorney Tantillo Kroemer also argues that the dist rict court erred in dismissing his fabrication of evidence claim under 42 U.S.C. § 1983 against Defendant Tant illo, the Assistant Di strict Attorney who prosecuted his case. We disagree. Th e district court correctly conclude d that Tantillo is entitled to absolute immunity. “Prosecutorial immunity fr om § 1983 liability is broadly defined, covering virtually all acts, regardless of motivation, associ ated with [the prosecu tor’s] function as an advocate.” Hill v. City of New York , 45 F.3d 653, 661 (2d Cir. 1995) (internal quotation marks omitted). “These functions include deciding whethe r to bring charges and presenting a case to a grand jury or a court, along with the tasks genera lly considered adjunct to those functions, such as witness preparation, witness se lection, and issuing subpoenas.” Simon v. City of New York , 727 F.3d 167, 171 (2d Cir. 2013)

. While “the party claiming absolute immunity . . . bears the burden of establishing its applicab ility,” once a court determines that absolute immunity applies, “the actor is shielded from liability for damages regardless of the wrongfulne ss of his motive or the degree of injury caused.” Bernard v. Cty. of Suffolk , 356 F.3d 495, 503 (2d Cir. 2004) (internal quotation marks omitted). Here, Kroemer claims that Tantillo fraudulently amended his indictment and then fabricated evidence to support that amendment by coaching a witness. But Tantillo’s conduct in seeking an amended indictment and preparing a witness for trial during a pending criminal proceeding falls squarely within the prosecutor’s role as advocate and therefore remains protected by absolute immunity. We also reject Kroemer’s contention that the district court erred in dismissing his claim against Tantillo to the extent that Kroemer seek s declaratory or injuncti ve relief. Section 1983, “while broad in its equitable and legal remedies [,] does not recognize a declaration of innocence, standing alone, as a cognizable form of relief.” Teichmann v. New York , 769 F.3d 821, 826 (2d6 Cir. 2014) (per curiam). The dist rict court correctly c oncluded that the inj unctive relief sought by Kroemer is tantamount to a request for a declarat ion of innocence or a declaration that his state conviction is invalid. Therefore, we affirm the dist rict court’s dismissal of Kroemer’s claim against Tantillo in its entirety.
III. Kroemer’s Post-Judgment Motions We also affirm the district court’s denial of Kroemer’s multiple Rule 59(e) motions to alter or amend the judgment. A court may grant a motion to alter or amend a judgment under Rule 59(e) where (1) there is an intervening change in the controlling law; (2) new evidence previously not available comes to light; or (3) it becomes necessa ry to remedy a clear error of law or to prevent manifest injustice. Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992). Because no such circumstan ces have occurred here, Kroemer’s motions were properly denied. For similar reasons, we affirm the district co urt’s denial of Kroemer’s Rule 60(b) motion seeking relief from judgment. “Rul e 60(b) allows a party to seek re lief from a final judgment . . . under a limited set of circumstances including fra ud, mistake, and newly discovered evidence.” Gonzalez v. Crosby , 545 U.S. 524, 528 (2005). Such a motion is “generally not favored and is properly granted only upon a showin g of exceptional circumstances.” United States v. Int’l Bhd. of Teamsters , 247 F.3d 370, 391 (2d Cir. 2001). A “motion to reconsider should not be granted where the moving party seeks solely to relitigate an issu e already decided.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). Because all of Kroemer’s motions for postjudgment relief merely sought to relitigate issu es “already decided,” he plainly failed to demonstrate the “exceptional circumstances” that coul d merit the exercise of the district court’s discretion to grant relief from its prior decision. In fact, we co nclude that Kroemer’s repeatedly re-7 litigated claims have nearly risen to the level of frivolity, and we caution against his continued use of federal forums to bring such claims.
* * * We have considered Kroemer’s remaining argu ments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk