17-2180-cv Nunez v. City of New York 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 PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DA TABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Cour t of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New York, on the 5 th day of June, two thousand eighteen.
PRESENT: ROBE RT D. SACK, REENA RAGGI, Circuit Judges , PAUL G. GARDEPHE, District Judge. *

---------------------------- ---------------------------- -------------- FRANCISCO NUNEZ, Plaintiff-Appellant , v. No. 17-2180-cv CITY OF NEW YORK, A MUNICIPAL ENTITY, DETECTIVE DAMIAN DIED RICK, SHIELD #923769 IN THEIR INDIVIDUAL A ND OFFICIAL CAPACITY, DETECTIVE CLIFF ACOSTA, SHIELD #982718 IN THEIR INDIVIDUAL AND OFFICIAL CAPACITY, DETECTIVE RENE NARVAEZ , SHIELD #900942 IN THEIR INDIVIDUAL AND OFFICIAL CAPACITY, DETECTIVE STEVE ALEJANDRO, SHIELD #912873 IN THEIR INDIVIDUAL A ND OFFICIAL CAPACITY, LIEUTENANT JOHN ROGAN , SHIELD #902945 IN THEIR INDIVIDUAL AND OFFICIAL CAPACITY,

* Judge Paul G. Gardephe, of the United States District Court for the Southern District of New York, sitting by designation.2 ASSISTANT DISTRICT ATTORNEY CLEOPATRA TAKANTZAS, IN HER INDIVIDUAL AND OFFICIAL CAPACITY, DISTRICT ATTORNEY ROBERT JOHNSON, BRONX COUNTY IN HIS OFFICIAL CAPACITY, Defendants-Appellees , JOHN AND/OR JANE DOES NOS. 1, 2, 3, ETC., (WHOSE IDENTITIES ARE UNKNOWN BUT WHO ARE KNOWN TO BE POLICE OFFICERS OF THE NEW YORK CITY POLICE DEPARTMENT), ALL OF WHOM ARE SUED INDIVI DUALLY AND IN THEIR OFFICIAL CAPACITIES , RICHARD AND/OR RACHEL ROES NOS. 1, 2, 3, ETC., (WHOSE IDENTITIES ARE UN KNOWN BUT WHO ARE KNOWN TO BE SUPERV ISORY PERSONNEL OF THE NEW YORK CITY POLICE DEPARTMENT), ALL OF WHOM ARE SUED INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES, Defendants

.

---------------------------- ---------------------------- -------------- APPEARING FOR APPELLANT: CHUK WUEMEKA NWOKORO, Nwokoro & Associates, P.C., New York, New York. APPEARING FOR APPELLEES: ERIC LEE (R ichard Dearing, Jane L. Gordon, Benjamin Welikson, on the brief ), for Zachary W. Carter, Corporation Co unsel of the City of New York, New York, New York. Appeal from a judgment of the United St ates District Court for the Southern District of New York (Richard J. Sullivan, Judge ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERE D, ADJUDGED, AND DECREED that the judgment entere d on June 21, 2017, is AFFIRMED. Plaintiff Francisco Nunez brought this action under 42 U.S.C. § 1983 and New York State law, to recover damages from the City of New York (“City”), various City police officers, Bronx District Attorney (“DA ”) Robert Johnson, and Assistant District3 Attorney (“ADA”) Cleopatra Ta kantzas for false arrest and malicious prosecution, and from one officer in particular, Detective Damian Diedrick, for these violations as well as for the excessive use of force. The distri ct court dismissed the complaint against all defendants except Diedrick. See Nunez v. City of New York , No. 14-cv-4182 (RJS), 2016 WL 1322448 (S .D.N.Y. Mar. 31, 2016). Fo llowing discovery, it awarded Diedrick partial summary ju dgment on Nunez’s false arrest and malicious prosecution claims, see Nunez v. Diedrick , No. 14-cv-4182 (RJS), 2017 WL 2257350 (S .D.N.Y. May 19, 2017), after which a jury returned a verdic t in Diedrick’s favor on the excessive force claim. Nunez now appeals the dismissal of his claims against the City, Detective Cliff Acosta, DA Johnson, and ADA Takantzas, as well as the award of partial summary judgment to Diedrick. We review both the dismissal of a comp laint and an award of summary judgment de novo. In reviewing dismissal, we accept all fa ctual allegations in the complaint as true and draw all reasonable infe rences in plaintiff’s favor. See Trustees of Upstate N.Y. Eng’rs Pension Fund v. Ivy Asset Mgmt. , 843 F.3d 561, 566 (2d Cir. 2016). In reviewing summary judgment , we resolve all ambiguities and draw all reasonable inferences in favor of the no n-movant, and we will affirm only if the record reveals no genuine dispute of material fact. See Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby,
Inc. , 477 U.S. 242, 247 (1986); Cross Commerce Media, Inc. v. Collective, Inc. , 841 F.3d 155, 162 (2d Cir. 2016). Applying these standards here, we discuss only Nunez’s federal claims because he conced es that if these fail, so do his parallel state claims. We4 assume the parties’ fa miliarity with the facts and proce dural history of this case, which we reference only as necessary to explain our decision to affirm substantially for the reasons stated by the district c ourt in its two thorough opinions.
1. Claims Against Acosta The district court dismissed Nunez’s fals e arrest and malicious prosecution claims against Detective Acosta for failure to plea d the requisite personal involvement in such violations. See Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010) (recognizing “personal involvement of defendants in alleged constitu tional deprivations” as “prerequisite to an award of damages under § 1983” (internal quot ation marks omitted)). Nunez argues that Acosta’s alleged role in the ph oto identification leading to N unez’s arrest is sufficient to demonstrate personal involvement. The argume nt fails because Nunez does not plead that this identification procedure was itself suggestiv e. Thus, even if other defendants arrested or prosecuted Nunez despite ha ving reason to question the identification’s reliability, Nunez fails to plead facts showing Acosta ’s personal involvement in those “alleged constitutional deprivations.” Id. ; see Provost v. City of Newburgh , 262 F.3d 146, 155 (2d Cir. 2001) (stating that law requires “personal participation by one who has knowledge of the facts that rendered the cond uct illegal”; “innocent participa tion” in arrest cannot make party liable for its illegality). 1

1 Alvarez v. County of Orange , 95 F. Supp. 3d 385 (S.D.N.Y. 2015), cited by Nunez, does not control this court and is, in any even t, distinguishable insofar as the defendant there was alleged not only to have “directly participated in th e investigation,” but also to have “directed the investigation” as a whole and to have “instructed [another officer] to5 Accordingly, the district court correctly dismissed Nunez’s claims against Acosta.
2. Claims Against Takantzas Nunez does not challenge the district cour t’s determination that absolute immunity compelled dismissal of his claims against ADA Takantzas for alle ged misconduct before the grand jury and in Nunez’ s subsequent prosecution. See Simon v. City of New York , 727 F.3d 167, 171 (2d Cir. 2013) (affording prosecutors absolute immunity when performing as “advocate in connection with a j udicial proceeding” for “all acts intimately associated with the judicial phase of the criminal process” (internal quotation marks omitted)). Rather, he argues that such immunity did not shie ld Takantzas’s investigative actions. See id. at 172. The challenge fails becaus e the only conceivably investigative action by Takantzas—a point we do not here decide—w as her interview inquiry of another suspect, Ramon Ferreira, as to his association with Nunez, to which Ferreira replied that he knew Nunez but did not associate with hi m. That questioning did not itself cause Nunez any constituti onal injury. To the extent Nunez faults Takantzas for not revealing Ferreira’s response to the grand jury, the state court, or Nunez’s attorney, that alleged misconduct pertains to Takant zas’s role as an ad vocate in judicial proceedings for which she has absolute immunity. Accordingly, the claims against Takantzas were correctly dismissed.

arrest” the plaintiff. Id. at 399 n.1. Nunez’s comp laint makes no comparable allegations as to Acosta.6 3. Claims Against the City and DA Johnso n for Failing To Train and Supervise Nunez appeals the dismissal of his § 1983 claim against the City and DA Johnson, arguing that the failure of the Bronx District Attorney’s Office to train and supervise prosecutors to avoid the misconduct alleged here showed a deliberate indifference to persons’ rights amounting to a municipal policy or custom. See Monell v. Dep’t of Soc.
Servs. , 436 U.S. 658, 694 (1978) (requiring showing of official policy or custom resulting in constitutional violation to maintain § 1983 claim against municipality); Wray v. City of New York , 490 F.3d 189, 195 (2d Cir. 2017) (holding that “failure to train or supervise city employees may constitute an official policy or custom if the failure amounts to deliberate indifference to the rights of those with whom the city employees interact” (internal quotation marks omitted)). The claim fails for several reasons. First, because prosecutors are not constitu tionally required to disclose exculpatory material to th e grand jury, see United States v. Williams , 504 U.S. 36, 51–52 (1992); United States v. Regan , 103 F.3d 1072, 1081 (2d Cir. 1997), Nunez cannot complain of a failure of training or supe rvision in that regard. Second, insofar as Nunez complains of a failure to train prosecutors in their obligations to disclose facts impeaching an eyewitness identification, he fails to demonstrate a constitutional obliga tion to do so before trial. See United States v. Coppa , 267 F.3d 132, 146 (2d Cir. 2001) (holding that “as a general rule, Brady and its progeny do not require immediate disclosu re of all exculpatory and impeachment material upon request by a defendant”; C onstitution requires only that government7 disclose impeachment evid ence “in time for its effective use at trial”); cf. United States v. Ruiz , 536 U.S. 622, 633 (2002) (holding th at “Constitution does not require the Government to disclose mate rial impeachment ev idence prior to entering a plea agreement with a criminal defendant” becaus e “impeachment information is special in relation to the fairness of a trial ” (emphasis in original)). In any event, as the district court observe d, the cited 48 instances of prosecutorial misconduct over 23 years involve sufficiently different conduct from that alleged here—non-disclosure of impeachment mate rials and the alleged maintenance of a prosecution in the absence of reliable ev idence—that they cannot plausibly plead misconduct “sufficiently persistent or widesp read” as to indicate a pattern “acquir[ing] the force of law.” Reynolds v. Giuliani , 506 F.3d 183, 19 2 (2d Cir. 2007); see Amnesty Am. v. Town of West Hartford , 361 F.3d 113, 128 (2d Ci r. 2004) (holding that policymaking official must have had no tice of “potentially serious problem of unconstitutional conduct, such that the need for corrective action or supervision was ‘obvious’”). 2 Thus, Nunez’s municipal clai ms were properly dismissed as against both the City and its alleged polic y maker, DA Johnson. 3

2 Poventud v. City of New York , No. 07 Civ. 3998 (DAB), 2015 WL 1062186, at *13–15 (S.D.N.Y. Mar. 9, 2015), and Bailey v. City of New York , 79 F. Supp. 3d 424, 438–39 (E.D.N.Y. 2015), cited by Nunez, reach no different conclusion because the cases plaintiffs there relied on to support the a lleged pattern involved the same constitutional violation being ascribed to defendants.

3 Insofar as Johnson is sued in his official capacity for his own prosecutorial actions in8 4. Claims Against Diedrick Nunez challenges the grant of summary judgm ent to Diedrick based on the district court’s determination that the false arrest an d malicious prosecution claims were defeated as a matter of law by record evidence of probable cause. See Manganiello v. City of New York , 612 F.3d 149, 160–61 ( 2d Cir. 2010). Nunez argues that to the extent probable cause was based on identifications by the eyewitness Brian Perez, the district court failed to consider circumstances ca lling into question Perez’s reliability. See Fabrikant v. French , 691 F.3d 193, 216 (2d Cir. 2012) (observing that law enforcement officer generally has probable cause to arrest based on information received from putative victim or eyewitness unless “circumstances raise doubt as to the person’s veracity” (internal quotation marks omitted)). In fact, the record shows that the di strict court carefully considered the circumstances cited by Nunez. It explained that they could not bear much weight on summary judgment because Nu nez failed to adduce eviden ce supporting some of the impeaching allegations pleaded in his comp laint or evidence showing Diedrick’s knowledge of the impeaching circumstances. See Savino v. City of New York , 331 F.3d 63, 74 (2d Cir. 2003) (stating th at collective knowledge doctri ne cannot be used to impute to officer facts known to other officers that exonerate an arrestee). In the absence of such evidence, the district cour t concluded that Diedrick had probable cause, or at least this case, Nunez does not dispute his ent itlement to immunity under the Eleventh Amendment. See Ying Jing Gan v. City of New York , 996 F.2d 522, 536 (2d Cir. 1993) (holding that where district atto rney acts as prosecutor, he is “deemed to be an official of New York State . . . entitled to inv oke Eleventh Amendment immunity”).9 arguable probable cause, to arrest N unez supporting qualified immunity. Cf. Betts v. Shearman , 751 F.3d 78, 83 (2d Cir. 2014) (holding that eyewitness’s history of false accusations did not undermine arguable probable cause where plaintiff did not allege officers’ knowledge of past accusa tions at time of arrest). On de novo review, we reach the same conclusion as the district court. Moreover, where, as here, at least arguable probable cause to arrest existed and the plai ntiff has failed to demo nstrate that Diedrick learned of any intervening facts between the arrest and initiation of prosecution, a claim of malicious prosecution cannot survive. See Lowth v. Town of Cheektowaga , 82 F.3d 563, 571 (2d Cir. 1996) (“In or der for probable cause to di ssipate [between arrest and prosecution], the groundless nature of th e charges must be made apparent by the discovery of some in tervening fact.”). Accordingly, the district court correc tly awarded Diedrick partial summary judgment.
3. Conclusion We have considered Nunez’s other argumen ts and conclude that they are without merit. Accordingly, we AFFIRM th e judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court