   17-1920
   Greene 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 ASUMMARY ORDER@).     A
PARTY CITING TO 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 19th of July, two thousand eighteen.

   PRESENT:
            DENNIS JACOBS,
            REENA RAGGI,
            PETER W. HALL,
                 Circuit Judges.
   _____________________________________

   CY GREENE,
        Plaintiff–Appellant,

        -v.-                                             17-1920

   CITY OF NEW YORK, NEW YORK CITY
   TRANSIT AUTHORITY, MICHAEL
   NORRITO, DETECTIVES OR FORMER
   DETECTIVES, SHIELD NO. 3736,
   JOSEPH TUMBARELLO, SHIELD NO.
   883, in his individual and
   official capacities, CHARLES J.
   HYNES, DISTRICT ATTORNEY, KINGS
   COUNTY, in his official


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capacity,
     Defendants–Third-Party Plaintiffs–Appellees,

ROBERT SULLIVAN, former
Assistant District Attorney, in
his individual and official
capacities,
     Defendant–Third-Party Plaintiff,

JOHN DOES, 1, 2, 3, etc., whose
identities are unknown but who
are or formerly were Police
Officers and/or supervisory
personnel of the New York City
Police Department and/or Transit
Authority Police Department, all
being sued in their individual
and official capacities,
     Defendants–Appellees,

U.S. MARSHAL (EDNY) CHARLES DUNNE,
     Respondent,

LEWIS COHEN,
     Third-Party Defendant.
__________________________________

FOR PLAINTIFF-APPELLANT:     JOHN F. SCHUTTY III, Law Office of
                             John F. Schutty, P.C.,
                             Eastchester, NY.

FOR DEFENDANTS–THIRD-PARTY
PLAINTIFFS–APPELLEES:        AARON M. BLOOM (with Richard P.
                             Dearing and Claude S. Platton on
                             the brief), of Counsel, for
                             Zachary W. Carter, Corporation
                             Counsel of the City of New York,
                             New York, NY.


     Appeal from a judgment of the United States District
Court for the Eastern District of New York (Donnelly, J.).



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     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is
AFFIRMED.

     Cy Greene, whose 1985 murder conviction was vacated in
2006 on the basis of ineffective assistance of counsel,
appeals from an order of the United States District Court
for the Eastern District of New York (Donnelly, J.)
granting summary judgment for the defendants in Greene’s
civil suit against the City of New York and certain
detectives and prosecutors who participated in the murder
investigation and trial. Greene challenges the grant of
summary judgment as to only some of his § 1983 fair trial
claims. On de novo review, see Sousa v. Marquez, 702 F.3d
124, 127 (2d Cir. 2012), we affirm. We assume the parties’
familiarity with the underlying facts, the procedural
history, and the issues presented for review.

     1. Greene contends that Detective Michael Norrito
fabricated evidence when he reported to prosecutors that a
witness named Eric Head identified Eric Tidwell1 as a
possible participant in the crime, whereas (Greene argues)
Head allegedly identified Lenny Best instead. To prevail
on that claim, Greene must establish that Norrito knowingly
created false evidence that was likely to influence the
jury and forwarded it to prosecutors, resulting in a
deprivation of Greene’s liberty. See Dufort v. City of New
York, 874 F.3d 338, 355 (2d Cir. 2017). As the district
court determined, Greene cannot make this showing.

     As to falsehood, the sole evidentiary basis for
Greene’s claim is that Norrito’s report states that Head
identified “Joseph Ross, Ronald Blanding, and Eric

    1 Both the district court and the appellant’s brief
variously refer to this individual as either “Eric Tidwell”
or “Eric Tisdale,” while the appellees’ brief consistently
refers to him as “Eric Tidwell.” We understand these names
to refer to the same individual, and we refer to him as
“Eric Tidwell.”

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[Tidwell],” whereas Detective Joseph Tumbarello’s notes
from the same interview reflect that Head identified
“Joseph Ross, Ronald Blanding, and Lenny Best.” Greene v.
City of New York, No. 08CV00243AMDCLP, 2017 WL 1030707, at
*25 (E.D.N.Y. Mar. 15, 2017) (internal quotation marks
omitted). Greene’s assertion that Tumberello’s account “is
surely correct,” id. at *25 n.47 (internal quotation marks
omitted), and that Norrito’s account is therefore false, is
entirely unsubstantiated. A plaintiff cannot defeat a
motion for summary judgment with conclusory allegations or
conjecture of that sort. See Fujitsu Ltd. v. Federal
Express Corp., 247 F.3d 423, 428 (2d Cir. 2001).

     Nor can Greene establish that the alleged fabrication
would have been “likely to influence [the] jury’s
decision.” Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123,
130 (2d Cir. 1997). Prosecutors were aware of the
discrepancy between Norrito’s and Tumberello’s accounts of
the Head interview; they were aware that Lenny Best might
have information about the murder; and detectives other
than Norrito and Tumberello spoke with Best the day after
the Head interview. While it was ultimately discovered
that Eric Tidwell had been in prison at the time of the
murder, it is undisputed that at least one other witness
identified him as a possible participant “through a photo
identification.” Appellant’s Br. at 49 n.32. Moreover,
Head, Best, and Tidwell did not testify at Greene’s murder
trial, and Greene’s trial attorney has testified that he
specifically chose not to call “[Best] and Tidwell and the
rest of them” as a matter of trial strategy. App’x at 902.
There is therefore no record support for the assertion that
the jury’s decision would have been affected if Norrito’s
account of the Head interview had listed Best rather than
Tidwell.

     2. Greene contends that Detectives Norrito and
Tumbarello suppressed evidence that was favorable to the
defense. The government is required to disclose to defense
counsel “evidence [that is] . . . favorable to the accused,
either because it is exculpatory, or because it is

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impeaching.” United States v. Rivas, 377 F.3d 195, 199 (2d
Cir. 2004). However, police officers satisfy their
disclosure obligations “when they turn [the relevant]
evidence over to the prosecutors,” because “prosecutors,
who possess the requisite legal acumen, [are ultimately]
charged with the task of determining which evidence . . .
must be disclosed to the defense.” Walker v. City of New
York, 974 F.2d 293, 299 (2d Cir. 1992); see also Bermudez
v. City of New York, 790 F.3d 368, 376 n.4 (2d Cir. 2015)
(“Police officers can be held liable . . . under § 1983 if
they withhold exculpatory evidence from prosecutors.”
(emphasis added)). Of Greene’s claims that the detectives
suppressed evidence, all but one fail as a matter of law
because they concern evidence that the detectives turned
over to prosecutors.

     The remaining claim is that Norrito withheld from
prosecutors the particulars of his interview with two
individuals seen leaving the murder scene in a cab. That
claim fails because it concerns evidence that was not
actually “suppressed.” Rivas, 377 F.3d at 199. “Evidence
is not ‘suppressed’ [for disclosure purposes] if the
defendant either knew . . . or should have known . . . the
essential facts permitting him to take advantage of [that]
evidence.” United States v. LeRoy, 687 F.2d 610, 618 (2d
Cir. 1982) (citations omitted); see Lewis v. Conn. Comm’r
of Correction, 790 F.3d 109, 121 (2d Cir. 2015) (internal
quotation marks omitted) (same). The record discloses that
Greene’s defense counsel knew (or should have known) the
essential facts pertaining to the passengers in the cab--
namely, that they were seen running from the scene of the
crime; that they told the driver they were having a problem
and needed to be taken away immediately, even though the
driver had explained to them that he was off-duty; that one
of them was wearing a brown shirt (and the government’s
principal eye-witness had described the killer as wearing a
brown shirt); that they were tall (whereas Greene is
short); and that they spoke Spanish (whereas Greene does
not speak Spanish). These facts--which are largely
duplicative of those allegedly withheld by Norrito--were

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sufficient to alert Greene’s counsel to the opportunity to
develop a defense theory based on the possible role of the
passengers (as opposed to Greene) in the murder.

     Greene’s counsel, however, elected not to interview the
cab driver, and he made no attempt to locate or speak with
the passengers. Cf. United States v. Stewart, 513 F.2d
957, 960 (2d Cir. 1975). Ultimately, counsel’s failure in
this regard formed a basis of the ineffective-assistance
finding that led to the vacatur of Greene’s conviction.
But Greene cannot impose civil liability on Detective
Norrito for defense counsel’s failure to effectively
utilize the evidence in his possession.2 Accordingly,
Greene’s claim fails.

     3. Greene’s Monell claim against the City of New York
rests on the alleged failure of the Kings County District
Attorney’s Office (“KCDAO”) to adequately train or
supervise its prosecutors with respect to their disclosure
obligations. To prevail on that claim, Greene must
establish both that (1) prosecutors working on his case
violated their disclosure obligations and therefore
violated Greene’s constitutional rights, and (2) at least
one such violation was attributable to the KCDAO’s training
or supervising “policies.” See Segal v. City of New York,

    2 Following oral argument, Greene filed a letter
contesting the defendants’ statement at oral argument that,
prior to the criminal trial, Greene’s counsel was provided
the cab driver’s name and address. However, Greene took--
and successfully litigated--the opposite position in his
fourth state court post-conviction proceeding. See App’x
at 332-33 (“At one of the hearings on [Greene’s fourth
post-conviction motion], [Greene’s] counsel admitted that
he [had] received certain police reports and that he did
not interview any of the persons referred to in those
reports,” including “Mr. James Guerrier, a taxi driver
. . . .”). As a result, no reasonable jury could find that
Greene’s defense counsel was deprived of the cab driver’s
identity.

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459 F.3d 207, 219 (2d Cir. 2006). Greene’s claim fails
because, even assuming arguendo that he can establish an
underlying constitutional violation, he cannot establish
that any such violation resulted from a KCDAO policy.

     “In limited circumstances, a local government’s
decision not to train [or supervise] [its] employees [with
respect to] their legal duty to avoid violating citizens’
rights may rise to the level of an official government
policy for purposes of [liability under] § 1983.” Connick
v. Thompson, 563 U.S. 51, 61 (2011). But a § 1983 claim
against a municipality is at its weakest “where [it] turns
on a[n] [alleged] failure to train [or supervise].” Id.
This is in part because the alleged failure “must amount to
deliberate indifference to the rights of [citizens].” Id.
(emphasis added) (internal quotation marks omitted).

     To prove deliberate indifference, a plaintiff must
prove that the municipality failed to take corrective
measures despite having “actual or constructive notice
that” a deficiency in its “training [or supervising]
program” was “caus[ing] city employees to violate citizens’
constitutional rights.” Id. This generally requires a
plaintiff to prove that the constitutional violation
underlying his claim was preceded by “[a] pattern of
similar constitutional violations.” Id. at 62. When, as
here, the claimed violation concerns the nondisclosure of
evidence, the plaintiff must point to a pattern of prior
violations concerning nondisclosure of the same sort of
evidence. See id. at 62-64 (noting that a claim based on a
municipality’s alleged “[f]ailure to train [or supervise]
prosecutors in their [disclosure] obligations does not fall
within the narrow range of . . . hypothesized single-
incident liability [claims]”). Greene cannot make this
showing.

     Greene’s only evidence that prosecutors in the KCDAO
committed other violations of their disclosure obligations
is a list of 36 court decisions, issued over a 22-year
span, finding such violations. However, all but two of

                             7
those decisions were issued after Greene’s trial. A
plaintiff cannot point to “contemporaneous or subsequent”
violations to “establish a pattern of violations that . . .
provide[d] notice to the cit[y] [that it needed] . . . to
conform [its training or supervising program] to
constitutional dictates.” Id. at 63 n.7 (second alteration
in original) (internal quotation marks omitted). The two
prior violations Greene cites, which occurred in 1975 and
1979, are not enough to sustain his burden. See Jones v.
Town of E. Haven, 691 F.3d 72, 85 (2d Cir. 2012)
(concluding that the plaintiff “fell far short of”
establishing municipal liability where the “evidence showed
[only] two instances, or at the most three, over a period
of several years in which a small number of” city employees
committed violations).

     Even if two violations could constitute a pattern, the
violations Greene cites are inapposite because they do not
concern the nondisclosure of the same sort of evidence at
issue in this case, viz., an alleged deal between the KCDAO
and a potential witness intended to induce his testimony;
an audiotape of an interview with a witness; and notebooks
containing detectives’ notes from interviews with
witnesses. See Connick, 563 U.S. at 62-63 (finding four
prior violations insufficiently “similar to the violation
at issue” to “have put [the city] on notice that specific
training was necessary” because none “involved [the]
failure to disclose blood evidence, a crime lab report, or
physical or scientific evidence of any kind”); see also
Jones v. City of New York, 988 F. Supp. 2d 305, 313
(E.D.N.Y. 2013) (“Although plaintiff’s amended complaint
includes an impressive recitation of past . . . claims
against the [KCDAO], none deal with the specific type of
[evidence] at issue here—ambiguous DNA evidence.”).
Accordingly, Greene’s showing is insufficient as a matter
of law.




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     We have considered Greene’s remaining arguments and
find them to be without merit. For the foregoing reasons,
we AFFIRM the judgment of the district court.

                  FOR THE COURT:
                  Catherine O’Hagan Wolfe, Clerk of Court




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