1 

RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 14a0055p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

_________________ 

JOE D'AMBROSIO, 

Plaintiff-Appellant, 

v. 

CARMEN MARINO, et al., 

Defendants-Appellees. 

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No. 13-3118 

Appeal from the United States District Court 

for the Northern District of Ohio at Cleveland 

No. 1:11-cv-00933—Dan A. Polster, District Judge. 

Argued: January 23, 2014 

Decided and Filed: March 27, 2014 

Before: SUHRHEINRICH, GRIFFIN, and KETHLEDGE. 

_________________ 

COUNSEL 

ARGUED: David E. Mills, THE MILLS LAW OFFICE LLC, Cleveland, Ohio, for Appellant. 

Alejandro V. Cortes, CITY OF CLEVELAND DEPARTMENT OF LAW, Cleveland, Ohio, for 

Appellee City of Cleveland. Stephen W. Funk, ROETZEL & ANDRESS, LPA, Akron, Ohio, 

for Appellee Allen. Edmund W. Searby, BAKER & HOSTETLER LLP, Cleveland, Ohio, for 

Cuyahoga County Appellees. ON BRIEF: David E. Mills, THE MILLS LAW OFFICE LLC, 

Cleveland, Ohio, for Appellant. Shawn M. Mallamad, CITY OF CLEVELAND 

DEPARTMENT OF LAW, Cleveland, Ohio, for Appellee City of Cleveland. Stephen W. Funk, 

ROETZEL & ANDRESS, LPA, Akron, Ohio, for Appellee Allen. Edmund W. Searby, BAKER 

& HOSTETLER LLP, Cleveland, Ohio, for Cuyahoga County Appellees. 

 

>
13-3118 D’Ambrosio v. Marino, et al. Page 2 

_________________ 

OPINION

_________________ 

GRIFFIN, Circuit Judge. Plaintiff Joe D’Ambrosio spent twenty years on Ohio’s death 

row before he was granted unconditional habeas corpus relief on the grounds that the Cuyahoga 

County prosecutor violated his obligations under Brady v. Maryland, 373 U.S. 83 (1963). After 

his release, D’Ambrosio filed this civil rights action pursuant to 42 U.S.C. § 1983, claiming that 

defendants violated his constitutional rights. The district court granted defendants’ motions for 

judgment on the pleadings, concluding that D’Ambrosio’s second amended complaint failed to 

plausibly allege any viable constitutional claims. D’Ambrosio appeals. We affirm. 

I. 

D’Ambrosio’s complicated circumstances have been previously recounted by our court. 

In brief, D’Ambrosio was convicted in 1989 in Ohio state court of murdering Anthony Klann 

and was subsequently sentenced to death. In 2008, a panel of this court affirmed the district 

court’s grant of a conditional writ of habeas corpus based on the prosecution’s failure to disclose 

material exculpatory evidence to D’Ambrosio, in violation of Brady. See D’Ambrosio v. Bagley 

(D’Ambrosio I), 527 F.3d 489, 493 (6th Cir. 2008). 

The conditional writ required the state either to set aside D’Ambrosio’s conviction and 

sentence or retry him. See D’Ambrosio v. Bagley (D’Ambrosio II), 656 F.3d 379, 381 & n.1 (6th 

Cir. 2011). The state attempted to reprosecute D’Ambrosio through mid-2009, but it continued 

to fail to disclose exculpatory evidence and failed to alert D’Ambrosio or the state court that its 

key witness had died in the interim. Ultimately, the district court granted an unconditional writ 

of habeas corpus, citing the “extraordinary circumstances” of the case and barring Ohio from 

reprosecuting D’Ambrosio. D’Ambrosio v. Bagley, 688 F. Supp. 2d 709, 728 (N.D. Ohio 2010). 

The state appealed the grant of the unconditional writ, arguing that the district court 

lacked subject-matter jurisdiction to enter the order granting the writ. In August 2011, a split 

panel of this court affirmed, reasoning that the district court had retained subject-matter 

jurisdiction over the case because the state had not complied with the conditional writ: 
13-3118 D’Ambrosio v. Marino, et al. Page 3 

D’Ambrosio had not been retried, and his state conviction had not been vacated before the grant 

of the unconditional writ. See D’Ambrosio II, 656 F.3d at 388. The state sought a writ of 

certiorari in the Supreme Court but was unsuccessful. See Bobby v. D’Ambrosio, 132 S. Ct. 

1150 (2012) (denying certiorari). 

Meanwhile, in May 2011, D’Ambrosio filed this 42 U.S.C. § 1983 civil rights action 

against several of the individuals and entities involved in his state prosecution. Count One of 

D’Ambrosio’s second amended complaint (the “complaint”) asserted a claim against Cuyahoga 

County prosecutors Carmen Marino and William Mason in their official capacities, and a Monell

v. Dep’t of Social Servs., 436 U.S. 658 (1978), claim against Cuyahoga County. According to 

the complaint, Marino and Mason failed to disclose material exculpatory evidence to 

D’Ambrosio during his trial and also, by virtue of their roles as “final and official policymakers 

for the Prosecutor’s Office,” “created and maintained an official policy, practice, and/or custom” 

of violating criminal defendants’ constitutional rights both with respect to D’Ambrosio 

specifically and to criminal prosecutions handled by the office in general. 

Count Two of the complaint alleged a claim against Cleveland Police Detective Leo 

Allen—the lead detective who had investigated the case—in his individual and official 

capacities, and a Monell claim against the City of Cleveland. According to the complaint, 

Detective Allen violated D’Ambrosio’s constitutional rights when he “failed to disclose 

exculpatory evidence to D’Ambrosio prior to, during, and after his trial.”1 

Each of the defendants moved for judgment on the pleadings, which the district court 

ultimately granted. Although the district court rejected defendants’ assertion that D’Ambrosio’s 

action was barred by the two-year statute of limitations, it ruled that the complaint failed to 

allege either that Detective Allen and the City of Cleveland violated D’Ambrosio’s constitutional 

rights or that Cuyahoga County and the prosecutors caused him compensable constitutional 

injury. D’Ambrosio now appeals the district court’s entry of judgment against his claims. 

 1

The complaint also alleged two other counts against additional defendants, but D’Ambrosio has not 

appealed their dismissal. 
13-3118 D’Ambrosio v. Marino, et al. Page 4 

II. 

The same de novo standard of review is applicable to the district court’s orders granting a 

motion for judgment on the pleadings and granting a Rule 12(b)(6) motion to dismiss. See

Marais v. Chase Home Fin. LLC, 736 F.3d 711, 713 (6th Cir. 2013). For a complaint to survive 

such motions, it must—when the record is construed in the light most favorable to the nonmoving party and when all well-pled factual allegations are accepted as true—contain “either 

direct or inferential allegations respecting all material elements necessary for recovery under a 

viable legal theory.” Philadelphia Indem. Ins. Co. v. Youth Alive, Inc., 732 F.3d 645, 649 (6th 

Cir. 2013) (citation and internal quotation marks omitted). Still, this court “need not accept as 

true legal conclusions or unwarranted factual inferences, and conclusory allegations or legal 

conclusions masquerading as factual allegations will not suffice.” Terry v. Tyson Farms, Inc., 

604 F.3d 272, 275–76 (6th Cir. 2010) (citation and quotation marks omitted). “[A] plaintiff’s 

obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and 

conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Republic 

Bank & Trust Co. v. Bear Stearns & Co., Inc., 683 F.3d 239, 246–47 (6th Cir. 2012) (quoting 

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Rather, ‘[t]o survive a motion to 

dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to 

relief that is plausible on its face.’” Id. at 247 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009)). 

III. 

D’Ambrosio argues that his complaint sufficiently alleged three distinct claims: (1) a 

Monell claim against Cuyahoga County, based on the conduct of Marino; (2) a claim against 

Detective Allen for failing to disclose exculpatory evidence; and (3) a Monell claim against the 

City of Cleveland, based on Detective Allen’s conduct. Although we agree with D’Ambrosio 

that his claims are not barred by the statute of limitations, he is nevertheless incorrect that his 

allegations are sufficient to state a claim for relief. 

A. 

As a threshold matter, each of the defendants contends that D’Ambrosio filed his 

complaint after the applicable limitations period had already concluded. The parties agree that 
13-3118 D’Ambrosio v. Marino, et al. Page 5 

the applicable period is two years, see Cooey v. Strickland, 479 F.3d 412, 416 (6th Cir. 2007), 

but they disagree on when the cause of action accrued. 

Defendants claim that, in cases like D’Ambrosio’s, a § 1983 action accrues at the 

moment that a plaintiff’s conviction or sentence has been “called into question by a federal 

court’s issuance of a writ of habeas corpus.” Heck v. Humphrey, 512 U.S. 477, 487 (1994). 

According to defendants, D’Ambrosio’s state conviction was “called into question” when the 

district court granted the conditional writ of habeas corpus in 2006, making D’Ambrosio’s 2011 

lawsuit more than three years late. D’Ambrosio, by contrast, argues that the statute of limitations 

does not begin to run until after the state court criminal proceedings against the plaintiff have 

“terminated” in the plaintiff’s favor—which, in D’Ambrosio’s view, does not occur as long as 

the state retains the ability to retry the plaintiff. See DiBlasio v. City of New York, 102 F.3d 654, 

658 (2d Cir. 1996) (“Although in some instances a habeas court may terminate a criminal 

proceeding in the defendant’s favor, the reversal of a conviction and remand for a new trial does 

not constitute such a termination.”). 

Both of these positions are incorrect. The “standard rule” is that a cause of action accrues 

“when the plaintiff has a complete and present cause of action, that is, when the plaintiff can file 

suit and obtain relief.” Wallace v. Kato, 549 U.S. 384, 388 (2007) (internal quotation marks, 

citations, and alterations omitted). Because an action generally accrues “when the plaintiff 

knows or has reason to know that the act providing the basis of his or her injury has occurred,” 

we typically determine the accrual of a § 1983 action by “look[ing] to the event that should have 

alerted the typical lay person to protect his or her rights.” Cooey, 479 F.3d at 416 (citations 

omitted). Here, application of the general rule would indicate that D’Ambrosio’s cause of action 

accrued—and the limitations period began—when D’Ambrosio discovered that the exculpatory 

evidence in question had not been disclosed to him. 

Heck, however, recognized that permitting a § 1983 action to proceed where success in 

the action would necessarily imply the invalidity of a criminal conviction might result in 

conflicting parallel litigation “arising out of the same . . . transaction” and would essentially 

permit a “collateral attack on the conviction through the vehicle of a civil suit.” Heck, 512 U.S. 

at 484 (citations omitted). As a result, Heck modified the general rule of accrual for § 1983 
13-3118 D’Ambrosio v. Marino, et al. Page 6 

actions by “delay[ing] what would otherwise be the accrual date of a tort action until the setting 

aside of an extant conviction which success in that tort action would impugn.” Wallace, 

549 U.S. at 393. Under Heck, “a cause of action under § 1983 that would imply the invalidity of 

a conviction does not accrue until the conviction is reversed or expunged, and therefore the 

statute of limitations does not begin to run until such an event occurs, if ever.” Wolfe v. Perry, 

412 F.3d 707, 714 (6th Cir. 2005) (citation, internal quotation marks, and alteration omitted). 

“What might happen in a subsequent prosecution is neither here nor there; the claim accrues as 

soon as the only obstacle to the litigation—the adverse judgment—has been lifted.” Del Real v. 

Gomez, 330 F. App’x 110, 111 (7th Cir. 2009) (unpublished order). 

D’Ambrosio’s argument that Heck tolls the accrual of his claims until the state cannot 

possibly retry him runs flatly counter to the Supreme Court’s decision in Wallace, which rejected 

the argument that “an action which would impugn an anticipated future conviction cannot be 

brought until that conviction occurs and is set aside.” 549 U.S. at 393. Wallace rebuffed 

concerns that filing a § 1983 action prior to trial might result in an adjudication that would 

conflict with a subsequent conviction, noting that district courts may “stay the civil action until 

the criminal case or the likelihood of a criminal case is ended.” Wallace, 549 U.S. at 394. And 

the fact that the amount of damages recoverable by a § 1983 plaintiff may vary widely depending 

on whether he is convicted at a later trial did not sway Wallace, either: “The cause of action 

accrues even though the full extent of the injury is not then known or predictable.” Id. at 391 

(citation omitted). 

We see no reason not to apply Wallace’s pretrial principles to the retrial context, as 

D’Ambrosio’s position requires the same “speculat[ion] about whether a prosecution will be 

brought, whether it will result in conviction, and whether the pending civil action will impugn 

that verdict” that was fatal to the petitioner’s position in Wallace. Id. at 393. Contrary to 

D’Ambrosio’s argument, the possibility that his § 1983 claims “might impugn an anticipated 

future conviction d[oes] not trigger the Heck rule for deferred accrual.” Fox v. DeSoto, 489 F.3d 

227, 235 (6th Cir. 2007); see also Eidson v. Tenn. Dep’t of Children’s Servs., 510 F.3d 631, 

639–41 (6th Cir. 2007). 
13-3118 D’Ambrosio v. Marino, et al. Page 7 

By a similar token, though, defendants improperly ignore the requirement that § 1983 

claims like D’Ambrosio’s, which imply the invalidity of a prior conviction, accrue only when the 

conviction “is reversed or expunged.” Wolfe, 412 F.3d at 714; see also Wallace, 549 U.S. at 393 

(noting that, under Heck, a § 1983 action accrues only after a conviction is “set[ ] aside”). In 

support of their argument that D’Ambrosio’s cause of action accrued the moment that the district 

court granted the conditional writ of habeas corpus, defendants cite Smith v. Gonzalez, 222 F.3d 

1220 (10th Cir. 2000). But Smith does not support defendants’ position. There, the Tenth 

Circuit held that the statute of limitations began when the plaintiff’s state conviction was 

“vacated” in a § 2254 proceeding, at which point the success of a § 1983 action would not call 

the plaintiff’s prior conviction into question. Id. at 1222. Smith is therefore perfectly consistent 

with the requirement that a § 1983 plaintiff’s underlying conviction must be reversed or vacated 

before civil rights claims implicating the conviction accrue. See Wallace, 549 U.S. at 393; 

Wolfe, 412 F.3d at 714. See also Poventud v. City of New York, F.3d , 2014 WL 182313, at 

*10 (2d Cir. Jan. 16, 2014) (noting that Heck does not bar a § 1983 suit “where the underlying 

conviction has already been expunged,” even if the defendant is subject to retrial). 

Application of this rule to D’Ambrosio’s case is straightforward. Until the vacatur of 

D’Ambrosio’s state conviction became final, Heck barred his § 1983 claims, which clearly 

implied the invalidity of his conviction. See Wallace, 549 U.S. at 393; Wolfe, 412 F.3d at 714. 

Crucially, a panel of this court held that D’Ambrosio’s state conviction had not been vacated 

before the grant of the unconditional writ, which occurred—at earliest—in 2010. See

D’Ambrosio II, 656 F.3d at 388. His § 1983 suit was filed in 2011. Because D’Ambrosio’s civil 

rights claims did not accrue until his state conviction was vacated and the Heck bar was lifted, 

the two-year statute of limitations does not bar his current claims. 

B. 

Acknowledging that the individual prosecutors involved in his case “have absolute 

immunity from civil liability for the non-disclosure of exculpatory information at trial,” 

D’Ambrosio first contends that the district court erred in dismissing his Monell claim against 

Cuyahoga County, which employed them. Koubriti v. Convertino, 593 F.3d 459, 467 (6th Cir. 

2010). “[U]nder § 1983, local governments are responsible only for their own illegal acts. They 
13-3118 D’Ambrosio v. Marino, et al. Page 8 

are not vicariously liable under § 1983 for their employees’ actions.” Connick v. Thompson, 

131 S. Ct. 1350, 1359 (2011) (internal citation and quotation marks omitted). Instead, a 

municipality is liable under § 1983 only if the challenged conduct occurs pursuant to a 

municipality’s “official policy,” such that the municipality’s promulgation or adoption of the 

policy can be said to have “cause[d]” one of its employees to violate the plaintiff’s constitutional 

rights. Monell, 436 U.S. at 692. 

“Official municipal policy includes the decisions of a government’s lawmakers, the acts 

of its policymaking officials, and practices so persistent and widespread as to practically have the 

force of law.” Connick, 131 S. Ct. at 1359. To properly allege a municipal liability claim, a 

plaintiff must adequately allege “(1) the existence of an illegal official policy or legislative 

enactment; (2) that an official with final decision making authority ratified illegal actions; (3) the 

existence of a policy of inadequate training or supervision; or (4) the existence of a custom of 

tolerance [of] or acquiescence [to] federal rights violations.” Burgess v. Fischer, 735 F.3d 462, 

478 (6th Cir. 2013). 

D’Ambrosio first asserts that prosecutor Marino was a “policymaking official” of 

Cuyahoga County, such that the county may be liable for the decisions that Marino made with 

respect to D’Ambrosio’s prosecution. See Pembaur v. City of Cincinnati, 475 U.S. 469, 480 

(1986) (“[M]unicipal liability may be imposed for a single decision by municipal policymakers 

under appropriate circumstances.”); Flagg v. City of Detroit, 715 F.3d 165, 175 (6th Cir. 2013). 

But this court has previously held that Ohio prosecutors act as arms of the state—not of a 

municipality—when prosecuting state criminal charges, meaning that their “actions in 

prosecuting the charge . . . [may] not be attributed to the [municipality].” Pusey v. City of 

Youngstown, 11 F.3d 652, 659 (6th Cir. 1993). See also Cady v. Arenac Cnty., 574 F.3d 334, 

342 (6th Cir. 2009) (“[C]ity prosecutors are considered state officials under Ohio law when they 

are responsible for prosecuting state criminal charges.” (citation and internal quotation marks 

omitted)). Because he was acting as an agent of the state when prosecuting D’Ambrosio, 

Marino’s conduct cannot have established a county policy, unconstitutional or otherwise. See 

Burley v. Gagacki, 729 F.3d 610, 619 (6th Cir. 2013) (conduct of municipal employee while he 

was deputized to work as a federal agent cannot have implicated a municipal policy). 
13-3118 D’Ambrosio v. Marino, et al. Page 9 

D’Ambrosio nevertheless contends that his complaint identified an unconstitutional 

county policy. Explicitly conceding that he is not pursuing an argument that the county failed to 

properly train its prosecutors about their Brady obligations, D’Ambrosio instead argues that his 

complaint adequately alleged that county prosecutors habitually ignored criminal defendants’ 

constitutional rights in a manner that was “so persistent and widespread as to practically have the 

force of law.” Connick, 131 S. Ct. at 1359. In this respect, he appears to be arguing not that the 

prosecutors themselves established a policy of treating criminal defendants unconstitutionally, 

but that they were simply acting in accordance with a preexisting and ubiquitous county practice 

that can fairly be deemed to have originated with or at some point been adopted by the 

municipality. See Burgess, 735 F.3d at 478. 

But this argument is belied by the allegations of the complaint. The complaint focuses on 

Marino’s rather storied history of improper conduct, alleging that “Marino had a policy of not 

allowing defense attorneys to copy relevant documents regarding the case,” that “Marino and 

Mason . . . created and maintained an official policy” to prosecute D’Ambrosio “without concern 

for his constitutional rights,” that “Marino and Mason . . . created and maintained an official 

policy . . . of failing to adequately train” their fellow prosecutors about their Brady obligations, 

and that Marino has a “shameful track record of breaking rules to win convictions.” Other than 

that, the complaint alleges only that “[t]he general practice of withholding exculpatory evidence 

. . . was so common and well settled as to constitute an official policy” of the Prosecutor’s 

Office. In support of this assertion, the complaint alleges that one other prosecutor believed that 

the entire Prosecutor’s Office possessed a view of Brady obligations that was as “similarly 

limited” as Marino’s. The complaint also alleges that this prosecutor handled D’Ambrosio’s 

case in the same manner that he has handled all of the other cases that he has prosecuted. 

These allegations are insufficient to plausibly allege the existence of an official county 

policy of violating criminal defendants’ constitutional rights. The thrust of the complaint is that 

Marino—and perhaps one or two other members of the Prosecutor’s Office—instigated and 

implemented habitually unconstitutional practices, not that they were following municipal policy 

in doing so. Municipal liability attaches only where the policy or practice in question is 

“attributable to the municipality,” Heyerman v. Cnty. of Calhoun, 680 F.3d 642, 648 (6th Cir. 
13-3118 D’Ambrosio v. Marino, et al. Page 10 

2012), but D’Ambrosio’s complaint contains no allegations that the practice at issue here was 

acquiesced to or informed by municipal actors rather than by prosecutors who had adopted the 

strategy in order to win criminal convictions. See City of Oklahoma City v. Tuttle, 471 U.S. 808, 

823 (1985) (“[T]he word ‘policy’ generally implies a course of action consciously chosen from 

among various alternatives.”); Meyers v. City of Cincinnati, 14 F.3d 1115, 1120 (6th Cir. 1994) 

(municipality is liable under § 1983 only for “a pervasive custom or practice, of which the city 

lawmakers know or should know”). Again, state prosecutors’ actions in prosecuting state crimes 

cannot themselves establish municipal policy. Pusey, 11 F.3d at 659; see also Burley, 729 F.3d 

at 619 (municipal employee’s conduct while serving as a federal agent cannot be caused by 

municipal policy). 

Even if D’Ambrosio’s claim was construed as asserting a municipal custom of “inaction” 

in the face of prosecutors’ habitually unconstitutional conduct, D’Ambrosio would have to allege 

(1) “a clear and persistent” pattern of unconstitutional conduct by municipal employees; (2) the 

municipality’s “notice or constructive notice” of the unconstitutional conduct; (3) the 

municipality’s “tacit approval of the unconstitutional conduct, such that [its] deliberate 

indifference in [its] failure to act can be said to amount to an official policy of inaction”; and 

(4) that the policy of inaction was the “moving force” of the constitutional deprivation, such that 

the plaintiff’s constitutional injury was directly caused by the conduct of the municipality rather 

than simply by the conduct of the municipal employee. Doe v. Claiborne Cnty., 103 F.3d 495, 

508 (6th Cir. 1996) (citation omitted). 

D’Ambrosio’s complaint fails to allege such a claim in multiple respects. Instead of 

alleging a “clear and persistent” office-wide pattern of unconstitutional conduct, id., 

D’Ambrosio’s complaint is limited to allegations regarding the repeated failures of only one 

prosecutor: Marino. This pleading deficiency is not redeemed by the lone, conclusory allegation 

that one prosecutor believed that the other prosecutors in the office were similarly dismissive of 

defendants’ constitutional rights. See Twombly, 550 U.S. at 555 (conclusory allegations are 

insufficient to survive a motion to dismiss). 

Nor does the complaint plausibly allege the county’s “notice or constructive notice” of 

habitually unconstitutional conduct. Doe, 103 F.3d at 508. The Supreme Court has stated in the 
13-3118 D’Ambrosio v. Marino, et al. Page 11 

context of a failure-to-train claim that a municipality cannot have acted with the required 

“deliberate ignorance” to the need for a policy change absent its awareness of a prior “pattern of 

similar constitutional violations.” Connick, 131 S. Ct. at 1360. For the Connick Court, four prior 

Brady violations over the course of a decade were not enough to place the prosecutor’s office on 

notice that any sort of action was necessary in order to avoid the Brady violations at issue in 

Connick. Id. Here, D’Ambrosio claims that the county had sufficient notice of an office-wide 

practice of persistent unconstitutional conduct by virtue of only one other Brady violation and 

nine other non-Brady instances of prosecutorial misconduct—all of which were committed by 

Marino over two decades. Of these ten cited examples of misconduct, only three had been ruled 

as improper by the courts prior to D’Ambrosio’s conviction in 1989. See Lott v. Coyle, 366 F.3d 

431, 433 n.1 (6th Cir. 2004) (cataloguing instances of Marino’s misconduct). All three of these 

cases involved Marino’s improper trial comments; they did not involve Brady violations. Id. 

In Connick, four previous Brady violations were insufficient to alert the prosecutor’s 

office that another Brady violation might occur in the future in the absence of corrective action. 

Here, the county’s knowledge of only three prior instances in which only one of its prosecutors 

had made improper comments at trial was less. Connick, 131 S. Ct. at 1360 (noting that only 

“similar” incidents of prior misconduct can put a municipal actor on notice that comparable 

misconduct may occur in the future). This is true even if the county had been aware of Marino’s 

lone other Brady violation before a court had identified it as such. Until the county had notice of 

persistent misconduct, it did not have “the opportunity to conform to constitutional dictates,” nor 

could its inaction have caused the deprivation of D’Ambrosio’s constitutional rights. Id. at 1360 

n.7 (citation omitted). The county cannot have tacitly approved an unconstitutional policy of 

which it was unaware. See Doe, 103 F.3d at 508. 

As we recognized in D’Ambrosio’s previous two appeals to this court, there is no 

question that the individual prosecutors involved in D’Ambrosio’s case violated rights secured to 

him by the Constitution. But D’Ambrosio’s complaint amounts to an attempt to hold the county 

liable for what Marino and his colleagues did wrong. And this is insufficient to state a claim 

under Monell. A municipality may not be held liable under § 1983 on a respondeat superior

theory—in other words, “solely because it employs a tortfeasor.” Monell, 436 U.S. at 691. 
13-3118 D’Ambrosio v. Marino, et al. Page 12 

Instead, a municipality is liable under § 1983 only where, “through its deliberate conduct,” it was 

“the ‘moving force’ behind the injury alleged.” Alman v. Reed, 703 F.3d 887, 903 (6th Cir. 

2013) (citation omitted). By focusing almost exclusively on the conduct of Marino, 

D’Ambrosio’s complaint is improperly attempting to impose liability upon the county “simply 

because the municipality hired one ‘bad apple.’” City of Oklahoma City v. Tuttle, 471 U.S. 808, 

821 (1985). Because Monell precludes this theory of liability, we agree with the county that the 

district court correctly granted judgment on the pleadings in its favor. 

C. 

Next, D’Ambrosio argues that the district court erred by dismissing his claim that 

Detective Allen, who was the lead investigator in D’Ambrosio’s criminal prosecution, violated 

Brady in failing to disclose material exculpatory evidence to the defense. 

Generally speaking, D’Ambrosio is correct that Brady requires the disclosure to the 

defense even of “evidence known only to police investigators and not to the prosecutor.” 

Strickler v. Greene, 527 U.S. 263, 280–81 (1999) (internal quotation marks and citation omitted). 

But while a police officer’s concealment of material exculpatory information may ultimately 

result in a Brady violation, the role that a police officer plays in carrying out the prosecution’s 

Brady obligations is distinct from that of a prosecutor. “Police officers do not disclose evidence 

to criminal defendants directly.” Moldowan v. City of Warren, 578 F.3d 351, 379 (6th Cir. 2009) 

(citation omitted). Instead, police officers fulfill their Brady obligations as long as they “inform 

the prosecutor about evidence that undermine[s] the state’s preferred theory of the crime.” Id. at 

378. The prosecutor, by contrast, is the member of the prosecution team that bears the 

responsibility for actually disclosing exculpatory information to the defense. Id. at 381. The fact 

that Brady may require disclosure of evidence known only to the police and not to the prosecutor 

means only that it “imposes upon prosecutors a duty to learn of any favorable evidence known to 

the others acting on the government’s behalf[,] including the police.” Harris v. Lafler, 553 F.3d 

1028, 1033 (6th Cir. 2009) (internal quotation marks omitted). It does not mean that a police 

officer must disclose any sort of information—even information known only to the officer—

directly to the defense. 
13-3118 D’Ambrosio v. Marino, et al. Page 13 

Because Brady obliges a police officer to disclose material exculpatory evidence only to 

the prosecutor rather than directly to the defense, “prosecutors and police officers are capable of 

breaching [the prosecution team’s Brady obligations] in factually different ways.” Moldowan, 

578 F.3d at 380 (citation omitted). And here, that distinction matters. D’Ambrosio’s allegations 

that Detective Allen “was privy to” exculpatory evidence but withheld it “from the defense” and 

failed to disclose it “to D’Ambrosio” are beside the point. Detective Allen was never required to 

do otherwise. 

D’Ambrosio is correct that Detective Allen bore a “‘Brady-derived’ responsibility to turn 

over potentially exculpatory evidence to the prosecutor’s office.” Id. at 381 (quoting White v. 

McKinley, 519 F.3d 806, 814 (8th Cir. 2008)). But this disclosure obligation is limited: Brady 

requires a police officer to disclose evidence to the prosecutor only when its exculpatory value is 

“apparent” to the officer, id. at 384, 388; that is, when the officer is aware that the evidence 

“could form a basis for exonerating the defendant.” Id. at 388 n.14 (quoting Arizona v. 

Youngblood, 488 U.S. 51, 58 (1988)). Because an officer’s “destruction or concealment” of 

obviously exculpatory evidence “can never be done in good faith and in accord with [the 

officer’s] normal practice,” id. at 389 (internal quotation marks omitted), this rule is “the 

functional equivalent” of a requirement that the officer act in bad faith. Id. at 407 (Kethledge, J., 

concurring in part and dissenting in part). See also Elkins v. Summit Cnty., 615 F.3d 671, 677 

(6th Cir. 2010) (noting that the relevant test is “whether the exculpatory value of the [evidence] 

would have been apparent to the detectives given the state of the case at the time”). 

Although D’Ambrosio argues that his complaint sufficiently alleges that Detective Allen 

failed to disclose to the prosecution evidence of an obviously exculpatory nature, that is not what 

his complaint says. Instead, the complaint alleges only that Detective Allen “was privy to” 

several pieces of evidence, including some that clearly were incompatible with the prosecution’s 

theory of the case.2

 The complaint does not allege that Detective Allen withheld any of this 

 2

For example, police had received a tip that another individual, Paul Lewis, had a motive to kill Klann 

because Klann was a witness in a rape case that was pending against Lewis. (Marino was also the prosecutor in 

Lewis’s rape case, which was dismissed after Klann was killed.) Lewis had also asked the police whether Klann’s 

hands had been cut, which was not publicly-known information. Officers also possessed information that the 

testimony of Eddie Espinoza, the prosecution’s star witness, was not believable. Espinoza had indicated that 

D’Ambrosio stabbed Klann several times in a creek where Klann’s body was later found, but no blood was present 

at the creek, bloody clothes were found at a separate location, Klann was wearing neither shoes nor underwear, and 

an individual who lived in Lewis’s apartment complex had heard someone say, “Let’s dump the body.” Further, 
13-3118 D’Ambrosio v. Marino, et al. Page 14 

information from the prosecutor, that the prosecutor was ignorant of any of this evidence, or 

anything other than that Detective Allen failed to disclose this evidence to D’Ambrosio himself. 

Again, for D’Ambrosio’s complaint to state a claim against Detective Allen, he must plausibly 

allege that Detective Allen failed to carry out his “Brady-derived responsibility to turn over 

potentially exculpatory evidence to the prosecutor’s office.” Moldowan, 578 F.3d at 381 

(internal quotation marks omitted). Yet the complaint fails to do so: there is no allegation that 

Detective Allen knew about any obviously exculpatory evidence of which the prosecutors were 

ignorant and failed to apprise them of it. Instead, the complaint faults Detective Allen for being 

“privy to” exculpatory information that he did not pass along to D’Ambrosio. But disclosing this 

information to the defense was, as Moldowan made clear, the responsibility of the prosecutors, 

not Detective Allen. Id. at 378–79. As a result, the complaint fails to plausibly allege that the 

suppression of any of the obviously exculpatory evidence in this case was caused by Detective 

Allen’s abdication of his constitutionally required duties. 

The complaint contains only one explicit allegation that Detective Allen knew something 

that the prosecutors did not: an isolated assertion that, “based on differences between the police 

file and prosecutor’s file, . . . Allen even withheld documents from the prosecutor’s office that 

could be revealed to the defense.” But there is no allegation regarding the nature of these 

documents or what information they contained, and there is nothing in the complaint that 

identifies the documents as containing any “apparent[ly]” exculpatory information. Although the 

complaint specifies several obviously exculpatory pieces of evidence that Detective Allen “was 

privy to,” there is no allegation that any of this information was contained in the documents that 

Detective Allen withheld from the prosecutor’s office. 

D. 

This defect in D’Ambrosio’s complaint is also fatal to his claim against the City of 

Cleveland. After all, “[i]f a person has suffered no constitutional injury at the hands of the 

individual police officer, the fact that the [municipality] might have authorized [unconstitutional 

conduct] is quite beside the point.” City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986). 

 although Espinoza claimed that Klann was killed on Friday night after a disturbance at a local bar involving 

D’Ambrosio, police reports and bar management indicated that the disturbance had occurred on Thursday night, as 

D’Ambrosio had claimed. 
13-3118 D’Ambrosio v. Marino, et al. Page 15 

Because D’Ambrosio’s complaint fails to allege a claim against Detective Allen, his claim 

against Cleveland must also fail. 

IV. 

For these reasons, we affirm the judgment of the district court.