1 16-2901-cv O’Neal v. Morales 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 10 th day of February, two thousand seventeen. PRESENT: BARRINGTON D. PARKER, REENA RAGGI, CHRISTOPHER F. DRONEY, Circuit Judges

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---------------------------- ---------------------------- -------------- JOHNNIE O’NEAL, Plaintiff-Appellant , v. No. 16-2901-cv JOSE MORALES, NEW YORK CITY HOUSING AUTHORITY, Defendants-Appellees , JOHN DOE, 1 through 10, Indi vidually (the names John and Jane Doe being fictitious , as the true names are presently unknown, JANE DOE, 1 through 10, individually (the names John and Jane Doe being fictitious, as the true names are presently unknown), CITY OF NEW YORK, Defendants.

---------------------------- ---------------------------- -------------- APPEARING FOR APPELLANT: JASON LEVENTHAL, Leventhal Law Group, P.C., Brooklyn, New York.2 APPEARING FOR APPELLEES: PATRIC K J. LAWLESS, Wilson Elser Moskowitz Edelman & Di cker LLP, New York, New York. Appeal from a judgment of the United St ates District Court for the Southern District of New York (John G. Koeltl, Judge ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERE D, ADJUDGED, AND DECREED that the July 25 , 2016 judgment of the district court is AFFIRMED. Plaintiff Johnnie O’Neal, whose 1985 st ate rape and robber y convictions were vacated in 2013 after reinves tigation by the New Yo rk City District A ttorney, appeals the dismissal of his claim for denial of a fair trial brought under 42 U.S.C. § 1983 against Jose Morales, a New York City Housing Authority Police Depart ment detective who originally investigated t hose crimes. We review de novo a district court’s dismissal of a complaint pursuant to Fed. R. Civ. P. 12(b )(6), accepting all factual allegations in the complaint as true and drawing all reasonabl e inferences in the plaintiff’s favor. See Flagler v. Trainor , 663 F.3d 543, 546 n.2 (2d Cir. 20 11). The complaint must plead “enough facts to state a claim to re lief that is plausible on its face,” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007 ), and we will not accept as true allegations that amount to “legal conclusions,” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). We assume the parties’ familiarity with the facts and r ecord of prior proceedings, which we reference only as necessary to explain our decision to affirm. O’Neal challenges the district court’s de termination that Morales was entitled to both absolute prosecutorial and testimonial immunity. See O’Neal v. City of New York , --- F. Supp. 3d ----, 2016 WL 4035 522, at *5–7 (S.D.N.Y. 2016). We need not address3 testimonial immunity because we conclude th at Morales’s challenged actions undertaken at the behest of the Assistant District Atto rney (“ADA”) are shielded by prosecutorial immunity. “Prosecutorial immunity from § 1983 liability is br oadly defined, covering virtually all acts, regardless of motivation, asso ciated with the prosecutor’s function as an advocate,” including “evaluatin g and organizing evidence fo r presentation at trial.” Hill v. City of New York , 45 F.3d 653, 661 (2 d Cir. 1995) (internal qu otation marks omitted). By contrast, only qualified immunity atta ches “[w]hen a prosecutor performs the investigative functions normally performed by a detective or police officer,” such as “searching for the clues and corroboration th at might give . . . probable cause.” Buckley v. Fitzsimmons , 509 U.S. at 273; accord Simon v. City of New York , 727 F.3d 167, 172 (2d Cir. 2013). “Drawing th[e] line between ‘advocacy’ and ‘investig ative’ functions is vexed” insofar as investiga tive work may be entitled to ab solute immunity when it is “integral to the overarching advocacy function.” Warney v. Monroe County , 587 F.3d 113, 121, 124 (2d Cir. 2009). Further, ab solute immunity extends not only to prosecutors “performing discretionary acts of a judicial nature, but also [to] individual employees who assist such [pro secutor] and who act under that [prosecutor’s] direction in performing functions closely tied to the judicial process.” Hill v. City of New York , 45 F.3d at 660. Two weeks before trial in this case, the prosecutor requested that Morales visit the rape victim’s 10th-floor apartment to asce rtain specific information relevant to anticipated testimony, specif ically, whether—as the victim and her mother would4 testify—facial features of passers-by on the street could be discerned from their apartment window. While fiel d fact-gathering is consiste nt with the investigatory function, the timing of the prosecutor’s request and the ultimate use of the information so obtained as trial testimony esta blish that the investigative ac tivity here was in furtherance of the advocacy function of prepar ing for judicial proceedings. See Buckley v. Fitzsimmons , 509 U.S. at 273; see also DiBlasio v. Novello , 344 F.3d 292, 300–01 (2d Cir. 2003) (recognizing importance of timi ng in determining whether function is advocacy). Indeed, O’Neal’s allegations adm it of no other inference than that the ADA asked Morales to determine what could be discerned from the 10th-floor window for purposes of “evaluating and orga nizing” direct identificati on evidence by the victim and her mother. Hill v. City of New York , 45 F.3d at 661. No different conclusion is warranted because the prosecutor then called Morales to testif y to what he had been able to see from the victim’s window. See Imbler v. Pachtman , 424 U.S. 409, 431 n.33 (1976) (noting prosecutor’s prepara tion for trial “may require the obtaining , reviewing, and evaluating of evidence” (e mphasis added)). In sum, because Morales was carrying out activity “intimately associ ated with the judicial phas e of the criminal process,” id. at 430, at the specific direction of the prosecutor, see Simon v. City of New York , 727 F.3d at 171–72; Hill v. City of New York , 45 F.3d at 660, the principle enunciated in Hill applies here. O’Neal’s attempt to distinguish Hill on the grounds that Morales and the ADA “were not working together,” but performi ng “separate, distinct, and independent functions,” Appellant’s Br. 18, lacks support in the pleadings. Although Morales was5 not an employee of the ADA, he investigat ed what could be seen from the victim’s apartment only because the ADA requested that he do so shortly before trial, and only to obtain a specific piece of information relevant to anticipated trial testimony. These allegations do not admit a plausible inference th at, in going to the vi ctim’s apartment and reporting back to the prosecutor on what wa s visible therefrom, Morales was carrying out an independent, “specific, non-discretionary , investigatory function . . . separate and distinct from the prosecutor’s function as an advocate.” Id. at 21. Rather, the pleadings demonstrate that Morales was acting in concert with the ADA in preparing for trial. We have considered O’Neal ’s remaining arguments and conclude that they are without merit. Accordingly, the July 25, 2016 judgment of the district court is
AFFIRMED. FOR THE COURT: CATHERINE O’HAGAN WOLF E, Clerk of Court