17-2180-cv 

Nunez v. City of New York 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND 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 DATABASE (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 Court of Appeals for the Second Circuit, held 

at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New 

York, on the 5th day of June, two thousand eighteen. 

 

PRESENT: ROBERT D. SACK, 

REENA RAGGI, 

Circuit Judges, 

PAUL G. GARDEPHE, 

District Judge.*

 

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FRANCISCO NUNEZ, 

Plaintiff-Appellant, 

v. No. 17-2180-cv 

CITY OF NEW YORK, A MUNICIPAL ENTITY, 

DETECTIVE DAMIAN DIEDRICK, SHIELD #923769 

IN THEIR INDIVIDUAL AND 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 AND 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 INDIVIDUALLY AND IN THEIR 

OFFICIAL CAPACITIES, RICHARD AND/OR 

RACHEL ROES NOS. 1, 2, 3, ETC., (WHOSE 

IDENTITIES ARE UNKNOWN BUT WHO ARE 

KNOWN TO BE SUPERVISORY PERSONNEL OF 

THE NEW YORK CITY POLICE DEPARTMENT), 

ALL OF WHOM ARE SUED INDIVIDUALLY AND IN 

THEIR OFFICIAL CAPACITIES, 

Defendants. 

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APPEARING FOR APPELLANT: CHUKWUEMEKA NWOKORO, Nwokoro & 

Associates, P.C., New York, New York. 

APPEARING FOR APPELLEES: ERIC LEE (Richard Dearing, Jane L. Gordon, 

Benjamin Welikson, on the brief), for Zachary 

W. Carter, Corporation Counsel of the City of 

New York, New York, New York. 

 

Appeal from a judgment of the United States District Court for the Southern 

District of New York (Richard J. Sullivan, Judge). 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the judgment entered 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 District 
3 

Attorney (“ADA”) Cleopatra Takantzas 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 district 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). Following discovery, it awarded 

Diedrick partial summary judgment 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 verdict 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 complaint and an award of summary judgment 

de novo. In reviewing dismissal, we accept all factual allegations in the complaint as 

true and draw all reasonable inferences 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 non-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 concedes that if these fail, so do his parallel state claims. We 
4 

assume the parties’ familiarity with the facts and procedural history of this case, which 

we reference only as necessary to explain our decision to affirm substantially for the 

reasons stated by the district court in its two thorough opinions. 

1. Claims Against Acosta 

The district court dismissed Nunez’s false arrest and malicious prosecution claims 

against Detective Acosta for failure to plead 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 constitutional deprivations” as “prerequisite to an 

award of damages under § 1983” (internal quotation marks omitted)). Nunez argues that 

Acosta’s alleged role in the photo identification leading to Nunez’s arrest is sufficient to 

demonstrate personal involvement. The argument fails because Nunez does not plead that 

this identification procedure was itself suggestive. Thus, even if other defendants arrested 

or prosecuted Nunez despite having 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 conduct illegal”; “innocent participation” 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 event, distinguishable insofar as the defendant 

there was alleged not only to have “directly participated in the investigation,” but also to 

have “directed the investigation” as a whole and to have “instructed [another officer] to 
5 

Accordingly, the district court correctly dismissed Nunez’s claims against Acosta. 

2. Claims Against Takantzas 

Nunez does not challenge the district court’s determination that absolute immunity 

compelled dismissal of his claims against ADA Takantzas for alleged 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 judicial 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 shield Takantzas’s investigative 

actions. See id. at 172. The challenge fails because the only conceivably investigative 

action by Takantzas—a point we do not here decide—was 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 him. That questioning did not 

itself cause Nunez any constitutional 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 Takantzas’s role as an advocate 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 complaint makes no comparable 

allegations as to Acosta. 
6 

3. Claims Against the City and DA Johnson 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 constitutionally required to disclose exculpatory 

material to the 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 supervision 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 obligation 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 disclosure of all exculpatory and impeachment 

material upon request by a defendant”; Constitution requires only that government 
7 

disclose impeachment evidence “in time for its effective use at trial”); cf. United States v. 

Ruiz, 536 U.S. 622, 633 (2002) (holding that “Constitution does not require the 

Government to disclose material impeachment evidence prior to entering a plea 

agreement with a criminal defendant” because “impeachment information is special in 

relation to the fairness of a trial” (emphasis in original)). 

In any event, as the district court observed, the cited 48 instances of prosecutorial 

misconduct over 23 years involve sufficiently different conduct from that alleged 

here—non-disclosure of impeachment materials and the alleged maintenance of a 

prosecution in the absence of reliable evidence—that they cannot plausibly plead 

misconduct “sufficiently persistent or widespread” as to indicate a pattern “acquir[ing] 

the force of law.” Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007); see Amnesty 

Am. v. Town of West Hartford, 361 F.3d 113, 128 (2d Cir. 2004) (holding that 

policymaking official must have had notice of “potentially serious problem of 

unconstitutional conduct, such that the need for corrective action or supervision was 

‘obvious’”).2

Thus, Nunez’s municipal claims were properly dismissed as against both the City 

and its alleged policy 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 alleged 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 in 
8 

4. Claims Against Diedrick 

Nunez challenges the grant of summary judgment to Diedrick based on the district 

court’s determination that the false arrest and 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 calling 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 district court carefully considered the 

circumstances cited by Nunez. It explained that they could not bear much weight on 

summary judgment because Nunez failed to adduce evidence supporting some of the 

impeaching allegations pleaded in his complaint 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 that collective knowledge doctrine cannot be used to impute 

to officer facts known to other officers that exonerate an arrestee). In the absence of 

such evidence, the district court concluded that Diedrick had probable cause, or at least 

 

this case, Nunez does not dispute his entitlement 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 attorney acts as prosecutor, he is “deemed to be an official of 

New York State . . . entitled to invoke Eleventh Amendment immunity”). 
9 

arguable probable cause, to arrest Nunez 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 accusations 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 plaintiff has failed to demonstrate 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 order for probable cause to dissipate [between arrest and 

prosecution], the groundless nature of the charges must be made apparent by the 

discovery of some intervening fact.”). 

Accordingly, the district court correctly awarded Diedrick partial summary 

judgment. 

3. Conclusion 

We have considered Nunez’s other arguments and conclude that they are without 

merit. Accordingly, we AFFIRM the judgment of the district court. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court