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        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                 No. 13-30589                  United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
EARL TRUVIA,                                                     August 8, 2014
                                                                 Lyle W. Cayce
             Plaintiff - Appellant                                    Clerk

v.

HARRY F CONNICK, in his capacity as District Attorney for the Parish of
Orleans; GEORGE HEATH, Detective, Individually and in his official
capacity as Officer of the City of New Orleans Police Department; JOSEPH
MICELI, Detective, Individually and in his official capacity as Officer of the
City of New Orleans Police Department; CITY OF NEW ORLEANS; EDDIE
JORDAN,

             Defendants - Appellees

________________________________________________________________________

GREGORY BRIGHT,

             Plaintiff - Appellant

v.

HARRY F CONNICK, in his capacity as District Attorney for the Parish of
Orleans; GEORGE HEATH, Detective; JOSEPH MICELI, Detective; CITY
OF NEW ORLEANS; EDDIE JORDAN,

             Defendants – Appellees


                Appeal from the United States District Court
                   for the Eastern District of Louisiana
                   USDC Nos. 2:04-CV-680, 2:04-CV-682
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                                      No. 13-30589


Before REAVLEY, JONES and GRAVES, Circuit Judges.
EDITH H. JONES, Circuit Judge: *
       Gregory Bright and Earl Truvia, previously convicted in Louisiana state
court for the 1975 murder of Elliot Porter, appeal the district court’s denial of
various civil rights and constitutional claims against the City of New Orleans,
the New Orleans Police Department, former officers and detectives, and former
Orleans Parish district attorneys. After due consideration, we AFFIRM the
district court’s dismissal of their claims.
                        I.     FACTS AND PROCEEDINGS
       Gregory Bright and Earl Truvia (“Appellants”) were convicted in
Louisiana state court for the October 31, 1975 murder of Elliot Porter. Each
was sentenced to life imprisonment without parole. Nearly three decades later,
in 2002, a state court vacated Appellants’ convictions upon finding that the
State of Louisiana had suppressed exculpatory evidence in violation of Brady
v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), during Appellants’ criminal
trial. Specifically, the court found that the State had suppressed (1) a police
report and “attached statements” showing that before arresting Appellants for
Porter’s murder, the police were pursuing two other suspects based on a “drug
deal gone bad” murder theory; and (2) evidence concerning the mental history
and reputation for truthfulness of the State’s sole eyewitness, Sheila Caston
Robertson. In March 2003, the Louisiana Supreme Court denied the State’s
application for a writ of certiorari. See State v. Truvia, 839 So. 2d 35 (La. 2003).




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.

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The State dismissed the criminal charges filed against Appellants, who were
subsequently released from custody.
       In 2004, Appellants filed suit against the City of New Orleans (“the
City”); the New Orleans Police Department (“NOPD”); five former NOPD
officers and detectives, including detectives Joseph Miceli and George Heath;
former Orleans Parish district attorneys Harry Connick and Eddie Jordan; and
two former assistant district attorneys. 1 Appellants asserted claims under
42 U.S.C. §§ 1983, 1985, and 1988, and alleged violations of the Fourth, Sixth,
Eighth, and Fourteenth Amendments of the United States Constitution. In
2007, Connick and Jordan, the City, Miceli, and Heath (collectively
“Appellees”) filed two separate motions for summary judgment. Eventually,
the district court granted both motions and entered judgment in Appellees’
favor on September 11, 2012. Appellants filed a Motion for Reconsideration
and/or to Alter/Amend Judgment, which the district court denied, and
Appellants timely appealed.
                                    II.     DISCUSSION
       Appellants raise three issues on appeal. Appellants assert that they
suffered a constitutional violation caused by either the DA’s policy of
withholding exculpatory evidence from criminal defendants in violation of
Brady v. Maryland, or the office’s deliberate indifference to Brady violations,



       1 Claims against the two assistant district attorneys and against Connick in his
individual capacity were dismissed by the district court in 2004. Connick remains subject to
the present suit only in his official capacity as the former district attorney for Orleans Parish.
Similarly, Jordan was subject to suit only in his official capacity as former district attorney
and was named as a defendant for the sole reason that he was successor to Connick as
Orleans Parish district attorney. Appellants voluntarily dismissed their claims against three
of the five former NOPD officers and detectives, leaving Heath and Miceli as the only
detective defendants.

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or the DA’s failure to train its prosecutors to enforce Brady.        Similarly,
Appellants contend that the City maintained a police department policy of
withholding exculpatory evidence from criminal defendants and failed to train
NOPD officers on Brady requirements, thereby violating Appellants’
constitutional rights. In addition to pursuing relief under Section 1983 based
on municipal liability, Appellants assert that NOPD detectives Heath and
Miceli violated Appellants’ constitutional rights by withholding exculpatory
evidence material to their criminal trial.
                              A. Standard of Review
      We review the district court’s grant of summary judgment de novo.
DePree v. Saunders, 588 F.3d 282, 286 (5th Cir. 2009). This court applies the
same standards as the district court, granting summary judgment where there
is no genuine issue as to any material fact and the movant is entitled to
judgment as a matter of law. Id.; see Fed. R. Civ. P. 56(c). “A genuine issue of
material fact exists ‘if the evidence is such that a reasonable jury could return
a verdict for the non-moving party.’” Crawford v. Formosa Plastics Corp., La.,
234 F.3d 899, 902 (5th Cir. 2000) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248, 106 S. Ct. 2505 (1986)). The evidence in the record is
reviewed in the light most favorable to and with all reasonable inferences
drawn in favor of the non-moving party. Thorson v. Epps, 701 F.3d 444, 445
(5th Cir. 2012). However, the non-movant must go beyond the pleadings and
present specific facts indicating a genuine issue for trial in order to avoid
summary judgment.         Celotex Corp. v. Catrett, 477 U.S. 317, 324,
106 S. Ct. 2548, 2553 (1986). Summary judgment is appropriate if the non-
movant “fails to make a showing sufficient to establish the existence of an
element essential to that party's case.”          Celotex, 477 U.S. at 322,
106 S. Ct. at 2552. This court may affirm summary judgment on any ground
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supported by the record and raised in the district court, “even if it is different
from that relied on by the district court.” Holtzclaw v. DSC Commc’ns Corp.,
255 F.3d 254, 258 (5th Cir. 2001).
                  B. Section 1983 Claim Against the DA’s Office
      Appellants challenge the district court’s ruling that rejected their claim
under 42 U.S.C. § 1983 against the Orleans Parish district attorney’s office
under Connick. “To state a section 1983 claim, a plaintiff must (1) allege a
violation of a right secured by the Constitution or laws of the United States
and (2) demonstrate that the alleged deprivation was committed by a person
acting under color of state law.”      Whitley v. Hanna, 726 F.3d 631, 638
(5th Cir. 2013) (quotation marks omitted). Appellants assert here, as they did
before the district court, that they suffered a constitutional violation within
the meaning of Section 1983 due to Connick’s policy of withholding exculpatory
evidence from criminal defendants in violation of Brady v. Maryland.
      Under Brady, a local government entity, including a district attorney’s
office (“DA office”), deprives a criminal defendant of his right to due process
when it suppresses or withholds evidence that is both favorable to the
defendant and material to his defense. See, e.g., Smith v. Cain, 132 S. Ct. 627,
630 (2012). In order to establish that a DA’s office is liable under Section 1983,
plaintiffs “must prove that action pursuant to official municipal policy caused
their injury.” Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011) (quotations
and citation omitted). “Official municipal policy includes the decisions of a
government’s lawmakers, the acts of its policymaking officials, [or] practices so
persistent and widespread as to practically have the force of law.” Id. at 1359.




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                    1. Policy or Practice
      Appellants offer several pieces of evidence as proof that Connick’s DA
office had a policy or a persistent and widespread practice of violating criminal
defendants’ Brady rights in the 1970s. First, they allege the DA office failed
to turn over material exculpatory or impeachment evidence in their case about
the State’s only eyewitness, Sheila Caston Robertson. They further allege that
in response to their pre-trial request for Brady material, the State replied that
it had none or that the defendants were not entitled to such material. Second,
they allege that the State gave similar “no possession or no entitlement”
responses to pretrial Brady requests in other unrelated cases between 1974
and 1976. Third, they contend that in Smith v. Cain—a case unrelated to the
one at hand—counsel for the Orleans Parish DA office admitted during oral
argument that its policy was to refuse to turn over Brady evidence when the
prosecutor determined that the evidence was not material. Fourth, they allege
that Connick’s DA office had a “policy” of not obtaining witness statements,
police reports, and witness rap sheets from police files. Finally, they offered
the affidavit of former Orleans Parish Assistant District Attorney Bill
Campbell as evidence that the DA office had a policy in 1975 and 1976 of
withholding exculpatory evidence.
      Like the district court, we assume, arguendo, that the evidence
Appellants claim was suppressed in their case was material and a Brady
violation occurred. (The existence of a violation, we note, is disputed by the
DA office.) 2 Nevertheless, appellants must go beyond their specific case and
demonstrate that a pattern or policy of purposefully withholding exculpatory



      2    The issues Appellants raise to cast doubt upon Robertson’s credibility did not
manifest, according to their own evidence, until several years after their trial.
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evidence from criminal defendants existed within the DA office during the
relevant time period. The existence of a single Brady violation is insufficient
to support a government entity’s liability under Section 1983 for an
unconstitutional policy or practice. Thompson, 131 S. Ct. at 1356.
      Appellants thus direct our attention to discovery requests made by
various counsel in other, unrelated cases around the time of their criminal trial
and to the State’s similar “no possession or no entitlement” responses. They
have not, however, pointed to case law preceding their convictions that held
the DA’s office responsible for committing Brady violations or that upheld
other criminal defendants’ claims of Brady violations. In addition, as noted by
the district court, facsimiles of requests for production and DA office responses
thereto, without something more, do not show that Brady violations actually
occurred in those cases, let alone that the DA’s office had an unconstitutional
policy or practice. This evidence does not create a triable fact issue as to
whether the DA office had a policy of withholding Brady evidence from
criminal defendants.
      Appellants’ focus on the oral argument before the Supreme Court in
Smith likewise fails, because there was no “admission” that the DA office had
a policy of refusing to turn over Brady evidence. To the contrary, counsel’s
statements concerned whether the State believed that a Brady violation had
occurred when the State failed to turn over a particular prior inconsistent
statement that was favorable to a single criminal defendant’s defense. See
Transcript of Nov. 8, 2011, oral argument for Smith v. Cain, No. 10-8145, at
43-53, http://www.supremecourt.gov/oral_arguments/argument_transcripts/




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10-8145.pdf (last visited July 31, 2014). Accordingly, the oral argument in
Smith does not advance the position that a policy of withholding exculpatory
evidence was in force around the time of Appellants’ criminal trial.
      With respect to the claim that the DA office had a “policy” against
prosecutors’ reviewing certain police files in search of Brady material, the only
evidence advanced by Appellants is a reference to testimony of the prosecutor
in their case, Henry Julien. On its face, the testimony concerns Julien’s views,
relates to their sole case, and cannot create a fact issue concerning the office’s
policy.
      Finally, the district court correctly excluded Campbell’s affidavit from
evidence based on his lack of personal knowledge and hearsay. Campbell’s
affidavit purported to address the status of the DA office’s Brady policy before
Campbell began serving as an intern there in 1977. “[Federal Rule of Civil
Procedure] 56(e) requires statements in affidavits to be based on personal
knowledge and not based on information and belief.”            Bolen v. Dengel,
340 F.3d 300, 313 (5th Cir. 2003). Because the district court did not abuse its
discretion by excluding Campbell’s affidavit as inadmissible, we do not
consider it here.
      Because the only probative evidence Bright and Truvia present relates
exclusively to their case, the district court correctly held that Bright and
Truvia have failed to establish the existence of a policy, custom, or practice in
Connick’s office in 1975 and 1976 of violating criminal defendants’ Brady
rights.   However, in limited circumstances, a failure to train prosecutors
regarding their Brady duties may rise to the level of official municipal policy.
Thompson, 131 S. Ct. at 1359.




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                  2. Failure to Train
      Under a failure-to-train theory, Appellants must prove “both (1) that
Connick, the policymaker for the district attorney’s office, was deliberately
indifferent to the need to train the prosecutors about their Brady disclosure
obligation . . . and (2) that the lack of training actually caused the Brady
violation in this case.” Thompson, 131 S. Ct. at 1358. “For an official to act
with deliberate indifference, the official must both be aware of facts from which
the inference could be drawn that a substantial risk of serious harm exists, and
he must also draw the inference.” Estate of Davis ex rel. McCully v. City of N.
Richland Hills, 406 F.3d 375, 381 (5th Cir. 2005) (quotation marks omitted).
“Without notice that a course of training is deficient in a particular respect,
decisionmakers can hardly be said to have deliberately chosen a training
program that will cause violations of constitutional rights.”         Thompson,
131 S. Ct. at 1360. In failure-to-train cases “culpability . . . is at its most
tenuous,” for the failure to train must amount to “deliberate indifference to the
rights of persons with whom the [untrained employees] come into contact.” Id.
(quotation and citation omitted).
      In Connick v. Thompson, the Supreme Court most recently rejected a
municipal liability claim that arose from a Brady violation perpetrated by an
assistant Orleans Parish DA in the 1980’s. Thompson held that a district
attorney’s office may not be held liable under Section 1983 for failure to train
based on a single Brady violation. Moreover, as the Court noted, “[a]ttorneys
are trained in the law and equipped with the tools to interpret and apply legal
principles, understand constitutional limits, and exercise legal judgment.”
Id. at 1361. “A district attorney is entitled to rely on prosecutors’ professional
training and ethical obligations in the absence of specific reason, such as a
pattern of violations, to believe those tools are insufficient to prevent future
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constitutional violations in the usual and recurring situations with which the
prosecutors must deal.” Id. at 1363 (quotation and citation omitted). It is not
enough to show that “because Brady has gray areas and some Brady decisions
are difficult, prosecutors will so obviously make wrong decisions that failing to
train them amounts . . . to a decision by the city itself to violate the
Constitution.” Id. at 1365 (quotation and citation omitted). It is in this light
that we review Appellants’ Section 1983 claim for failure to train.
       To prove that Connick’s office was deliberately indifferent to the need to
train prosecutors on Brady requirements, Appellants contend that various
Orleans Parish prosecutors committed multiple Brady violations in other
cases, and the DA office did not have a policy to ensure assistant district
attorneys immediately obtained witness statements from police in every case.
None of this evidence shows that Connick’s office was deliberately indifferent
to a need for Brady training before Appellants’ criminal trial in 1976. First,
the Brady “violations” Appellants refer to are not proven Brady violations;
instead, they are the same discovery requests made by counsel in other,
unrelated cases to which the prosecutors responded by denying possession of
Brady material. This evidence, as previously discussed, fails to show actual
Brady violations, much less an unconstitutional pattern or policy. Second,
Appellants’ citations to over a dozen federal and state cases to show a
“continuum” of Brady violations are not probative because the vast majority of
them occurred after Appellants were convicted in July 1976. The two cases
that predated July 1976, Davis v. Heyd, 479 F.2d 446 (5th Cir. 1973), overruled
by Garrison v. Maggio, 540 F.2d 1271 (5th Cir. 1976), and State v. Carney,
334 So. 2d 415 (La. 1976), surely did not convey the requisite notice under a
failure-to-train theory. See Thompson, 131 S. Ct. at 1360 (holding that not
even “four reversals could . . . have put Connick on notice that the office’s Brady
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training was inadequate”) (emphasis added).         Third, Appellants have not
provided any authority to support their assertion that the DA office was
required, above and beyond Brady, to have a policy for obtaining all witness
statements from police files.
      Because Appellants have not shown that Connick was on actual or
constructive notice of the necessity of Brady training for the office’s attorneys
prior to their convictions, the district court correctly held that that Connick is
entitled to judgment as a matter of law.
                      C. Section 1983 Claim Against the City
      Appellants contend that the City had a custom or policy of withholding
exculpatory evidence from criminal defendants and failed to train NOPD
officers on Brady requirements.          Because Appellants’ terse argument
pertaining to the City is dedicated entirely to the City’s alleged failure to train
NOPD officers, their argument as to a general City policy is waived. See Jason
D.W. by Douglas W. v. Hous. Indep. Sch. Dist., 158 F.3d 205, 210 n.4
(5th Cir. 1998) (even when the appellant listed a legal question in his
statement of issues, his “failure to provide any legal or factual analysis of [the]
issue on appeal waive[d] that issue”).
      Appellants’ failure-to-train theory fails because they have not shown
that the City was deliberately indifferent to a known need for better Brady
training for its police officers. Thompson, 131 S. Ct. at 1358, 1360. As evidence
that the City failed to train its officers, Appellants rely on admissions by
Detectives Heath and Miceli during their depositions that they were unsure as
to the meaning of “exculpatory” and “Brady material.”            Further, NOPD
department regulations between 1972 and 1974 did not include a specific
“policy on the handling and production of exculpatory evidence,” and the daily
reports of NOPD detectives were generally not forwarded to the DA office.
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According to Appellants, the detectives’ daily reports might have included
exculpatory information such as arrests or witness statements. However, even
when viewing this evidence in the light most favorable to Appellants, they have
not demonstrated that, as of 1976, the City knew its Brady training for police
officers was insufficient yet still made a “deliberate or conscious” choice in the
face of such information “to endanger constitutional rights.” Estate of Davis,
406 F.3d at 383; see Thompson, 131 S. Ct. at 1365 (explaining that “deliberate
indifference” requires proof of the defendant’s being on notice that, absent
additional specified training, it was “highly predictable” that the defendant’s
employees would make incorrect Brady decisions). Absent a showing that the
City was deliberately indifferent, there is no issue of fact with respect to the
City’s failure to train NOPD officers on Brady rights.
   The district court correctly rejected Appellants’ claims against the City.
   D. Brady Claims Against Detectives Heath and Miceli
      Appellants also alleged that NOPD detectives Heath and Miceli violated
their constitutional rights by withholding exculpatory evidence during their
criminal trial. The district court found no triable issues of fact that any
evidence was suppressed and alternatively held the officers shielded by
qualified immunity.
      Qualified immunity shields a government official from Section 1983
liability if the official’s acts were objectively reasonable in light of clearly
established law at the time of the official’s conduct. Atteberry v. Nocona Gen.
Hosp., 430 F.3d 245, 253 (5th Cir. 2005) (quotation and citation omitted).
“When a defendant invokes qualified immunity, the burden is on the plaintiff
to demonstrate the inapplicability of the defense.” Id. (citation omitted). We
evaluate qualified immunity under a two-part test: (1) “whether the facts that
a plaintiff has alleged . . . make out a violation of a constitutional right,” and
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(2) “whether the right at issue was clearly established at the time of
defendant’s alleged misconduct.” Pearson v. Callahan, 555 U.S. 223, 232,
129 S. Ct. 808, 816 (2009) (quotation marks omitted). “A right is clearly
established when ‘it would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.’” Hernandez v. United States, --- F.3d
---, 2014 WL 2932598, at *5 (5th Cir. 2014). By the time Appellants’ criminal
trial was underway in 1976, the law in this circuit was clearly established that
a public official’s concealment of material exculpatory evidence was a
constitutional violation. See Brown v. Miller, 519 F.3d 231, 238 (5th Cir. 2008).
      Appellants allege that Heath and Miceli suppressed such evidence in
their case when the detectives: (1) withheld evidence of the arrests of three
other people for the murder and then provided false testimony that one of these
people had not been arrested; (2) withheld evidence that an eyewitness placed
two other murder suspects at the scene of the crime, threatening to harm the
victim over a “drug deal gone bad”; (3) provided misleading evidence/testimony
that there was no credible information about the “drug deal gone bad” theory
by claiming this was merely an unsubstantiated “rumor” with no supporting
eyewitnesses; (4) withheld a background check on eyewitness Robertson which
would have provided impeachment evidence; and (5) manipulated Robertson,
who stated she did not know where the suspects lived, but then took Heath and
Miceli to the suspects’ apartments, and pointed out the incorrect address to
Truvia.
      The district court analyzed all of the proffered evidence and concluded
as to each cited piece that there was no Brady violation by these officers or they
were entitled to qualified immunity. We agree, largely based on the district
court’s careful exposition of the record.


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      We add a few comments responsive to Appellants reliance on post-
summary judgment evidence offered in their Federal Rule of Civil Procedure
59 motion. As the district court noted in its opinion denying the motion, the
newly proffered evidence would not have changed its conclusion.             First,
according to their depositions, the brief arrest and detention of three other
suspects, including Smith and Navarre, ceased shortly after a phone call to the
victim’s mother, who identified one of them as a relative of the victim. No
material defense value attached to this incident. Second, Alfred Marshall
talked to some policeman (not identified by name) two weeks after the murder
about his encounter with Symms and Johnston the night of the murder. As
Marshall’s deposition developed, it became clear that the local community was
well aware of these individuals’ potential involvement, and defense counsel
actually questioned witnesses about them during the Appellants’ trial. Thus,
this information was not suppressed under Brady because it was ascertainable
by the defense using reasonable diligence. Brown v. Cain, 104 F.3d 744, 750
(5th Cir. 1997) (citation omitted). Finally, the federal court is not bound by the
findings in state habeas court in Appellants’ favor, because that case involved
different issues than municipal entity Section 1983 liability, and the state
court made no finding about Miceli’s or Heath’s alleged suppression of
evidence.
      Accordingly, there was no genuine issue of material fact as to whether
detectives Heath and Miceli violated Appellants’ constitutional rights under
Brady.
   E. Appellants’ Motion for Reconsideration and to Alter/Amend Judgment
      Following the district court’s grant of summary judgment for Appellees,
Appellants filed a motion pursuant to Rule 59(e) for “Reconsideration and/or to
Alter/Amend Judgment,” attaching “newly-discovered evidence” they had not
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previously submitted to the court. The district court denied the motion. We
review the district court’s order denying Appellants’ motion for abuse of
discretion. Ross v. Marshall, 426 F.3d 745, 763 (5th Cir. 2005). “A district
court abuses its discretion if it bases its decision on an erroneous view of the
law or on a clearly erroneous assessment of the evidence.” Id. (quotation marks
omitted).
      Rule 59(e) “serve[s] the narrow purpose of allowing a party to correct
manifest errors of law or fact or to present newly discovered evidence.”
Waltman v. Int’l Paper Co., 875 F.2d 468, 473 (5th Cir. 1989) (quotation marks
omitted). Appellants asserted both grounds. On appeal, Appellants do not
dispute that the allegedly “newly-discovered evidence” was in fact not “new,”
and they offer no reason why this evidence could not have been presented
earlier in opposition to Appellees’ motions for summary judgment. Ordinarily,
an “unexcused failure to present evidence available at the time of summary
judgment provides a valid basis for denying a . . . motion for reconsideration,”
Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004). As we and the
district court noted, however, the newly offered evidence does not alter the
outcome here.
      Further, Appellants have failed to demonstrate a sufficient error of law
or fact that warranted the district court’s reconsideration of its summary
judgment order. Appellants claim that the “manifest error” upon which their
motion was based was the district court’s refusal to afford “full faith and credit”
to Judge Elloie’s decision and by using the testimony of former assistant
district attorney Henry Julien in reaching its conclusion on the summary
judgment motions. However, neither of these points amount to “manifest
error” worthy of Rule 59 reconsideration. The district court expressly indicated
in its summary judgment order that for purposes of ruling on the Appellees’
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summary judgment motions concerning the DA office and NOPD, the court
assumed, without deciding, that a Brady violation occurred in connection with
Appellants’ 1976 criminal trial. Even if the district court did improperly credit
Julien’s deposition testimony when ruling on Appellees’ motions, the district
court’s grant of summary judgment was still proper for the reasons stated
above. Appellants have not shown that the district court abused its discretion
in denying their Rule 59(e) motion.
                                CONCLUSION
      For these reasons, the judgment of the district court is AFFIRMED.




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