Omar Saunders-El v. Eric Rohde

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 14-1570

OMAR SAUNDERS-EL,

Plaintiff-Appellant,

v.

ERIC ROHDE, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Western Division.

No. 10 C 50063 — Frederick J. Kapala, Judge.

____________________

ARGUED DECEMBER 5, 2014 — DECIDED JANUARY 30, 2015

____________________

Before FLAUM, EASTERBROOK, and KANNE, Circuit

Judges.

FLAUM, Circuit Judge. Subsequent to his acquittal by a

jury on burglary charges, Omar Saunders-El sued mem-

bers of the Rockford, Illinois police department, alleging

that they planted his blood at the crime scene in an at-

tempt to frame him. His complaint included a 42 U.S.C.

§ 1983 claim—contending that by fabricating evidence,

the officers offended his due process rights—and Illinois

2 No. 14-1570

state law claims for malicious prosecution and intention-

al infliction of emotional distress. The district court

granted summary judgment for the officers on the federal

claim and dismissed the state law claims without preju-

dice to refiling in state court. In the district court’s view,

fabricating evidence does not violate a defendant’s due

process rights and cannot support a § 1983 action; such

an allegation must instead be brought as a state law claim

for malicious prosecution, the district court reasoned.

That holding is mistaken. A criminal defendant’s due

process rights may be violated—actionable by way of 42

U.S.C. § 1983—when the evidence against him is fabri-

cated. However, due process is not implicated when, as

here, the defendant is released on bond following his ar-

rest and acquitted at trial. And this rule cannot be cir-

cumvented, as Saunders-El attempts to do, simply by re-

framing such an allegation as a Brady claim—that is, by

alleging that the police officers who supposedly fabricat-

ed the evidence failed to reveal their misconduct to the

prosecution. Accordingly, we affirm the judgment of the

district court, but on other grounds.

I. Background

Omar Saunders-El was arrested, released on bond,

charged, and ultimately stood trial for a burglary that oc-

curred on August 10, 2006 at the Sports Dome retail store

in Rockford, Illinois. Rockford police officers claimed

that they spotted Saunders-El on the store’s roof, ob-

served him jump off the building, and apprehended him

following a foot chase. According to the prosecution,

Saunders-El broke into the Sports Dome by carving a

hole in the roof and ceiling and, in the process, cut him-

No. 14-1570 3

self on jagged metal, leaving his blood at the scene.1

Saunders-El, however, insists that he was minding his

own business that evening, when a Rockford police of-

ficer stopped him on the street to question him about the

break-in. While they spoke, Saunders-El says, another

officer bludgeoned him over the head, splitting open his

skull and knocking him out. While unconscious, he be-

lieves, the officers collected his blood in order to smear it

at the crime scene and frame him for the burglary. De-

spite the ostensible strength of the evidence against him,

a jury acquitted Saunders-El. He then sued various Rock-

ford police officers based on his allegations of evidence

fabrication, asserting a due process claim by way of 42

U.S.C. § 1983, as well as Illinois state claims of malicious

prosecution and intentional infliction of emotional dis-

tress.

With respect to the § 1983 claim, the district court

granted summary judgment in the officers’ favor, holding

that an allegation of evidence fabrication cannot support

a constitutional tort claim and is only redressable in Illi-

nois as a state law claim for malicious prosecution. The

district court relinquished jurisdiction over the state law

claims and dismissed them without prejudice to refiling

in state court. On appeal, Saunders-El focuses the bulk of

his attention on the issue of whether a district court

properly may find in favor of defendants at summary

judgment on the ground that a plaintiff has not stated a

legally cognizable claim. In his view, the court may do so

1  The blood purportedly recovered on the roof matched Saunders-

El’s DNA profile—a profile that is expected to occur in 1 in 57 quad-

rillion black individuals.

4 No. 14-1570

only on a Rule 12(b)(6) motion, and, therefore, impermis-

sibly ruled against him. On the merits, Saunders-El ar-

gues that the fabrication of evidence, as well as the fail-

ure of police officers to inform the prosecution of that

fabrication, violates a criminal defendant’s due process

rights and, as such, that his case should be reinstated.

II. Discussion

We review the district court’s grant of summary

judgment de novo. Huang v. Cont’l Cas. Co., 754 F.3d 447,

450 (7th Cir. 2014). We first address Saunders-El’s claim

of impropriety regarding the district court’s dismissal of

his case at summary judgment for failing to state a consti-

tutional claim. Summary judgment is appropriate where

there is no genuine issue of material fact and the movant

is entitled to judgment as a matter of law. Fed. R. Civ. P.

56(a); Bluestein v. Cent. Wisc. Anesthesiology, S.C., 769 F.3d

944, 951 (7th Cir. 2014). Naturally, then, if Saunders-El’s

claim had no legal grounding, the district court not only

was permitted to dismiss it, it was required to do so.

Where a claim has no legal basis, there can be no genuine

issue of material fact and the movant, by definition, is en-

titled to judgment as a matter of law.

Saunders-El suggests that the officers—by arguing

that his § 1983 claim was legally insufficient—styled

what should have been brought as a motion to dismiss as

a motion for summary judgment, and that they did so to

skirt Rule 12(b)’s requirement that motions to dismiss for

failure to state a claim be made prior to the filing of an

answer. See Fed. R. Civ. P. 12(b) (“A motion asserting

[failure to state a claim upon which relief can be granted]

must be made before pleading if a responsive pleading is

No. 14-1570 5

allowed.”). But “[a] motion to dismiss made after the fil-

ing of an answer serves the same function as a motion for

judgment on the pleadings and may be regarded as one.”

Schy v. Susquehanna Corp., 419 F.2d 1112, 1115 (7th Cir.

1970). And Rule 12(h)(2) expressly authorizes a party to

file a motion to dismiss for failure to state a claim pursu-

ant to Rule 12(c), which permits the filing of a motion for

judgment on the pleadings “[a]fter the pleadings are

closed—but early enough not to delay trial.” Fed. R. Civ.

P. 12(c), (h)(2). Therefore, Saunders-El’s effort to charac-

terize defendants’ motion as a motion to dismiss mas-

querading as a motion for summary judgment is futile.

No matter the label or the rule under which defendants’

motion was filed, the district court was required to dis-

miss any legally untenable claims.

On the merits, Saunders-El maintains that allegations

of evidence fabrication can support a due process claim

under § 1983. We agree with him. In its two-page opin-

ion, the district court did not address our recent case law

in this area and, instead, focused on our prior decisions

in Fox v. Hayes, 600 F.3d 819 (7th Cir. 2010); Brooks v. City

of Chicago, 564 F.3d 830 (7th Cir. 2009); and Newsome v.

McCabe, 256 F.3d 747 (7th Cir. 2001)—interpreting them

as an edict from this court that evidence fabrication–

based due process claims can never form the basis of a

constitutional tort. That reading, not uncommon among

district courts in this circuit it seems, is inaccurate and

requires clarification. In Newsome, we established that the

existence of a state law claim for malicious prosecution

renders unavailable § 1983 as a vehicle for bringing a

federal malicious prosecution claim. 256 F.3d at 750. In

Brooks, we affirmed the dismissal of plaintiff’s allegation

6 No. 14-1570

that “criminal proceedings were instituted against him

based on false evidence or testimony,” remarking that

“such a claim ‘is, in essence, one for malicious prosecu-

tion, rather than a due process violation.’” 564 F.3d at 833

(quoting McCann v. Mangialardi, 337 F.3d 782, 786 (7th

Cir. 2003)). Finally, in Fox, we counseled against “shoe-

horning into the more general protections of the Four-

teenth Amendment claims for which another amendment

provides more specific protection.” 600 F.3d at 841.

There, we deemed the plaintiff’s allegation that the de-

fendants violated his due process rights by causing him

to be falsely arrested, imprisoned, and prosecuted by

“deliberately fabricat[ing] false statements and . . . ob-

struct[ing] justice” to be a hybrid of a malicious prosecu-

tion claim and a Fourth Amendment claim, rather than a

due process claim. Id. at 841.

None of these decisions—individually or as a collec-

tion—stands for the proposition that fabricating evidence

does not violate a defendant’s due process, actionable

pursuant to § 1983. Instead, they merely establish that

allegations that sound in malicious prosecution must be

brought pursuant to state law. To the extent that these

decisions may have rendered the law in this area uncer-

tain, our more recent decisions have been explicit. In

Whitlock v. Brueggemann, 682 F.3d 567, 580 (7th Cir. 2012),

we expressly stated that “a police officer who manufac-

tures false evidence against a criminal defendant violates

due process if that evidence is later used to deprive the

defendant of [his] liberty in some way.” We have reiterat-

ed this position several times since then. For instance, just

two weeks before the district court issued its opinion in

this case, we decided Fields v. Wharrie, 740 F.3d 1107 (7th

No. 14-1570 7

Cir. 2014) (“Fields II”), wherein we made clear that fabri-

cating evidence, including witness testimony, violates a

clearly established constitutional right, such that quali-

fied immunity does not shield the manufacturers of such

evidence from liability. Id. at 1114; see also Petty v. City of

Chicago, 754 F.3d 416, 422 (7th Cir. 2014) (“In Fields II, we

stated that a prosecutor who falsely creates evidence

against a defendant violates the defendant’s due process

right.”). Accordingly, the district court erred in holding,

categorically, that a claim of evidence fabrication cannot

form the basis of a due process claim under § 1983 and

must instead be brought as a state law malicious prosecu-

tion claim.

Not every act of evidence fabrication offends one’s

due process rights, however—a point we elucidated in

Alexander v. McKinney, 692 F.3d 553, 557 (7th Cir. 2012).

There, the plaintiff, who had been acquitted by a jury in

his criminal case, alleged that the prosecutor and investi-

gators conspired “to manufacture false evidence and

bring trumped-up charges.” Id. at 554. We held, though,

that the plaintiff’s acquittal foreclosed his claim:

[In Whitlock] we held that a prosecutor act-

ing in an investigatory capacity who fabri-

cates evidence that is used to obtain a

wrongful conviction violates a convicted

defendant’s clearly established due process

rights. There, the plaintiffs, Whitlock and

Steidl, alleged that police officers and pros-

ecutors used fabricated evidence, such as

pressuring witnesses to concoct stories of

having witnessed the crime, to convict the

8 No. 14-1570

two of a high-profile double homicide.

Whitlock and Steidl spent the next seven-

teen and twenty-one years in prison, re-

spectively . . . . In both [Zahrey v. Coffey, 221

F.3d 342 (2d Cir. 2000), a case highlighted

by Alexander] and Whitlock, the alleged lib-

erty deprivation came not from the initial

arrest, but from the time spent in confine-

ment after arrest—the eight months Zahrey

spent in jail after having his bail revoked

and the numerous years Whitlock and

Steidl spent in prison after being wrongful-

ly convicted. Zahrey and Whitlock are inap-

posite because the only liberty deprivation

Alexander alleges stems from his initial ar-

rest—he was released on bond that same

day.

Id. at 557 (citations omitted). We added: “Nor does the

burden of appearing in court and attending trial, in and

of itself, constitute a deprivation of liberty. It would be

anomalous to hold that attending a trial deprives a crim-

inal defendant of liberty without due process of law,

when the purpose of the trial is to effectuate due process.”

Id. at 557 n.2 (citations omitted).

Saunders-El, released on bond following his arrest

and acquitted at trial, falls squarely within our holding in

Alexander, and, accordingly, cannot make out an evidence

fabrication–based due process violation. He may have an

Illinois state law malicious prosecution claim, the ele-

ments of which are: (1) the defendants commenced judi-

cial proceedings, (2) for which there was no probable

No. 14-1570 9

cause, (3) the proceeding were instituted or continued

maliciously, (4) the proceedings were terminated in the

plaintiff’s favor, and (5) the plaintiff sustained an injury.

Sneed v. Rybicki, 146 F.3d 478, 480–81 (7th Cir. 1998). But,

as outlined above, that claim must be brought in state

court. See Newsome, 256 F.3d at 750.

At oral argument, counsel for Saunders-El clarified

that—despite the opaque presentation of the issue in his

briefing and the district court’s contrary interpretation of

the complaint—Saunders-El’s due process claim is dual-

pronged: he alleges both that the fabrication of evidence

violated his constitutional rights and, separately, that the

police officers’ failure to admit their misdeeds to the

prosecution amounts to a withholding of exculpatory ev-

idence in violation of Brady v. Maryland, 373 U.S. 83

(1963). A criminal defendant’s Brady right is one that “the

Constitution provides as part of its basic ‘fair trial’ guar-

antee.” United States v. Ruiz, 536 U.S. 622, 626 (2002). “A

Brady violation occurs when the government fails to dis-

close evidence materially favorable to the accused.” Mos-

ley v. City of Chicago, 614 F.3d 391, 397 (7th Cir. 2010). The

Supreme Court has said that to demonstrate a Brady

claim, a plaintiff must make a “showing that the favora-

ble evidence could reasonably be taken to put the whole

case in such a different light as to undermine confidence

in the verdict.” Kyles v. Whitley, 514 U.S. 419, 435 (1995);

see also Strickler v. Greene, 527 U.S. 263, 290 (1999). For that

reason, at least the Sixth, Eighth, Tenth, and Eleventh

Circuits have held that a trial that results in an acquittal

can never produce a valid Brady claim. See Mosley, 614

F.3d at 397 (collecting cases); Poventud v. City of New York,

750 F.3d 121, 156 n.4 (2d Cir. 2014) (same). We have yet to

10 No. 14-1570

definitively decide that issue in this circuit (see Mosley,

614 F.3d at 397–98; Bielanski v. Cnty. of Kane, 550 F.3d 632,

644–45 (7th Cir. 2008)), although we have expressed our

doubt “that an acquitted defendant can ever establish the

requisite prejudice for a Brady violation.” Carvajal v.

Dominguez, 542 F.3d 561, 570 (7th Cir. 2008) (citing Strick-

ler, 527 U.S. at 290). We need not address that issue today,

however, because our case law forecloses Saunders-El’s

theory of Brady.

Saunders-El’s Brady claim is premised on the police

officers’ silence following their alleged fabrication of the

evidence—the absence of which would have altered the

prosecutor’s decision to go to trial at all, Saunders-El

suggests. We have dealt on several occasions with similar

Brady claims concerning accusations of police dishonesty.

In Gauger v. Hendle, for instance, we rejected the plaintiff’s

argument that Brady requires police to disclose truthful

versions of statements made during interrogations, find-

ing “the proposed extension of Brady . . . difficult even to

understand,” since “[i]t implies that the state has a duty

not merely to disclose but also to create truthful exculpa-

tory evidence.” 349 F.3d 354, 360 (7th Cir. 2003), overruled

in part on other grounds by Wallace v. City of Chicago, 440

F.3d 421, 423 (7th Cir. 2006). Later, in Sornberger v. City of

Knoxville, we determined that Brady cannot “serve as the

basis of a cause of action against [police] officers for fail-

ing to disclose [the circumstances surrounding a coerced

confession] to [a] prosecutor . . . .” 434 F.3d 1006, 1029

(7th Cir. 2006) (citation and internal quotation marks

omitted). As we said, “[t]he Constitution does not require

that police testify truthfully; rather ‘the constitutional rule

is that the defendant is entitled to a trial that will enable

No. 14-1570 11

jurors to determine where the truth lies.’” Id. (quoting

Buie v. McAdory, 341 F.3d 623, 625–26 (7th Cir. 2003)).

Consequently, in Harris v. Kuba, 486 F.3d 1010, 1017 (7th

Cir. 2007), we upheld the dismissal of a Brady claim

premised on an argument “that an officer is ‘suppressing’

evidence of the truth by making [a] false statement” to a

prosecutor,” noting that “[t]his court has already fore-

closed this extension” of Brady. In the end, Saunders-El

seeks to charge the officers with a Brady violation for

keeping quiet about their wrongdoing, not for failing to

disclose any existing piece of evidence to the prosecution.

But our case law makes clear that Brady does not require

the creation of exculpatory evidence, nor does it compel

police officers to accurately disclose the circumstances of

their investigations to the prosecution. Accordingly,

Saunders-El’s Brady claim is more appropriately charac-

terized as a claim for malicious prosecution—that is, a

claim that the officers commenced his prosecution with-

out probable cause—which cannot form the basis of a

constitutional tort.

In any event, it would be entirely incongruous for us

to endorse Saunders-El’s Brady theory, in light of our

holding in Alexander. Since, as Alexander holds, a police

officer does not violate an acquitted defendant’s due pro-

cess rights when he fabricates evidence, it would defy

any semblance of logic to conclude that the same officer

subsequently violates the defendant’s constitutional

rights simply by remaining silent about that fabrication

(and thus, without taking any additional affirmative ac-

tion). In essence, Saunders-El’s so-called Brady claim is

simply a recast of his evidence fabrication claim, and our

12 No. 14-1570

precedent establishes that such a claim is not cognizable

on account of his acquittal.

III. Conclusion

For the foregoing reasons, we AFFIRM the judgment of

the district court, although on grounds different from

those relied on below.