McCann, Demetrius v. Mangialardi, Sam

In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 02-2409 & 02-3021

DEMETRIUS MCCANN,

Plaintiff-Appellee/

Cross-Appellant,

v.

SAM A. MANGIALARDI,

Defendant-Appellant/

Cross-Appellee.

____________

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 94 C 5156—Harry D. Leinenweber, Judge.

____________

ARGUED FEBRUARY 10, 2003—DECIDED JULY 22, 2003

____________

Before POSNER, MANION, and KANNE, Circuit Judges.

MANION, Circuit Judge. Otis Moore operated a cocaine

trafficking business in Chicago Heights, Illinois. One of

his top assistants was Demetrius McCann. Also on the

payroll was Sam Mangialardi, the deputy chief of the

Chicago Heights police department, who not only pro-

tected Moore’s operation but also investigated and arrested

many of Moore’s competitors. At some point, Mangialardi

and Moore suspected McCann of being a federal informant,

and they agreed that Moore should get rid of him. Moore

set McCann up for arrest by having cocaine planted in a

2 Nos. 02-2409 & 02-3021

car McCann was driving, then notified Mangialardi of

McCann’s location. Mangialardi ordered police to stop,

search and arrest McCann. After his arrest McCann

pleaded guilty, was sentenced, and served time in pris-

on. After his release on parole, McCann discovered that

Mangialardi had been prosecuted and that Moore, testify-

ing for the government, disclosed he had planted cocaine

in the car McCann was driving when arrested. McCann

filed suit against the City of Chicago Heights, its police

department, and a number of government officials, in-

cluding Mangialardi. Ultimately, the litigation boiled

down to McCann’s claims against Mangialardi for false

arrest under the Fourth Amendment and a Fourteenth

Amendment violation of his due process rights. Mangialardi

moved to dismiss McCann’s Fourth Amendment claim on

the pleadings, which the district court granted. Mangialardi

then moved for summary judgment of McCann’s due

process claim on the ground that he was entitled to qual-

ified immunity. The district court denied the motion,

and Mangialardi appeals. McCann cross-appeals the dis-

trict court’s dismissal of his Fourth Amendment false ar-

rest claim. We reverse in part and affirm in part.

I.

From 1988 until 1990, Demetrius (“Trent”) McCann was

a “lieutenant” in a narcotics trafficking organization oper-

ated by Otis Moore, holding the position of “overseer.”

During this time period, McCann sold cocaine for Moore’s

organization. As part of the operation, Moore paid protec-

tion money to Sam Mangialardi, who at that time was the

deputy chief of the Chicago Heights police department.

Mangialardi’s “duties” were to protect Moore’s operation

from police interference and to arrest any drug competi-

tors whom Moore wanted out of the way. At some point

Nos. 02-2409 & 02-3021 3

in 1990, Mangialardi told Moore that he suspected McCann

might be working for the Federal Bureau of Investiga-

tion (“FBI”) as an informant, and advised him to “get rid

of that guy.” In November of that same year, Ray Cooper,

one of Moore’s subordinates, found an FBI or IRS business

card while searching through some of McCann’s personal

belongings. Cooper relayed this information to Moore,

who in turn advised Mangialardi of the discovery.

Shortly thereafter, Moore and Mangialardi met to dis-

cuss how to best deal with McCann. During the meeting,

Moore told Mangialardi that McCann “would have drugs

in his car shortly,” to which Mangialardi responded, “I

will be at the station. Just give me a call.” On November

20, 1990, Moore instructed another subordinate, Johnson

Lee, to “bring his black Cutlass” so that he could plant

“100 dime bags of cocaine . . . under the springs of the

driver’s side seat.” After Moore planted the drugs, the

black Cutlass was parked near McCann’s residence. Moore

then ordered Lee to direct Terrell Jones, yet another subor-

dinate, to ask McCann to follow him in the black Cutlass

under the pretense that Jones’s car was about to run out

of gas. Jones made the request, and McCann agreed to

follow him in the Cutlass (unaware that Moore had planted

the drugs). Upon seeing the two cars depart from McCann’s

house, Moore—who was carefully watching events tran-

spire from a safe distance with binoculars—immediately

called Mangialardi at the police station to tell him that

“it was going down, that they were moving westbound on

14th street.” Moore then followed Jones and McCann in his

car, and, shortly thereafter, called Mangialardi back to

advise him of “the location where they was [sic] and the

direction they was [sic] moving in.” Mangialardi advised

police officers of the “tip,” and in short order the police

surrounded the car McCann was driving. When the police

were unable to find any drugs, Moore called the police

4 Nos. 02-2409 & 02-3021

station again, this time speaking with Officer Tony Murphy.

Moore advised Murphy that the drugs were “up under the

driver’s side seat,” and Murphy relayed this information

to the officers on the scene, who promptly found the planted

drugs and arrested McCann.

On December 21, 1990, McCann was indicted for posses-

sion of a controlled substance and for possession of a

controlled substance with the intent to distribute. Faced

with the prospect of a 30-year prison sentence, McCann

pleaded guilty on January 31, 1991, receiving a five-year

term of imprisonment. In December 1991, Moore was

arrested by federal law enforcement officers, and there-

after indicted for tax evasion, participating in a criminal

enterprise, money laundering, and conspiracy. In return

for a lighter sentence, Moore agreed to testify as part of the

government’s prosecution of Mangialardi, who had also

been indicted for similar criminal acts. During Moore’s

testimony, which he gave on March 24, 1994, he admitted

to orchestrating the arrest of McCann on November 20,

1990, and claimed that sometime after the arrest he in-

formed Mangialardi that McCann was not on a routine drug

delivery at the time of his arrest, but instead Moore’s people

1

had planted drugs in the car McCann was driving.

During Mangialardi’s trial, McCann was apparently on

parole and soon learned of Moore’s admission to plant-

ing drugs in the car McCann was driving on the day of his

arrest. On August 24, 1994, McCann filed a complaint

against the City of Chicago Heights and numerous govern-

ment officials and police officers (including Mangialardi),

alleging, inter alia, that they violated his rights under the

1

Mangialardi was subsequently convicted of racketeering,

“conspiracy against rights,” tax evasion, and intimidation of a

witness.

Nos. 02-2409 & 02-3021 5

Fourth and Fourteenth Amendments to the United States

Constitution. A great deal of procedural wrangling then

ensued, but eventually the litigation was narrowed to two

parties, McCann and Mangialardi, and two claims, a Fourth

Amendment false arrest claim and a Fourteenth Amend-

2

ment due process claim. On February 16, 2001, the dis-

trict court dismissed McCann’s Fourth Amendment

false arrest claim on the pleadings, holding that the claim

was time-barred. On November 2, 2001, Mangialardi filed

a motion for summary judgment on McCann’s due proc-

ess claim, asserting that he had not violated McCann’s

constitutional right to due process and that he was en-

titled to qualified immunity from the claim. The district

court denied this motion on April 24, 2002, which

Mangialardi appeals. McCann cross-appeals the district

court’s dismissal of his Fourth Amendment false arrest

claim.

II.

The first question before us on appeal is whether the

district court erred in concluding that Mangialardi was

not entitled to qualified immunity from McCann’s due

process claim. Mangialardi is authorized to bring this

interlocutory appeal because he is raising the question as

to whether, based on the facts taken in the light most

favorable to McCann, he should have prevailed on his

defense of qualified immunity. Mitchell v. Forsyth, 472 U.S.

511, 526-27 (1985); Cavalieri v. Shepard, 321 F.3d 616, 618 (7th

2

On April 30, 2002, pursuant to an agreement between McCann

and the City of Chicago Heights to indemnify Mangialardi,

McCann agreed to dismiss the City and all named defendants

other than Mangialardi from the lawsuit.

6 Nos. 02-2409 & 02-3021

Cir. 2003). We must resolve a qualified immunity issue

as early as possible in the proceedings because it is an

“ ‘immunity from suit rather than a mere defense to liabil-

ity.’ ” Saucier v. Katz, 533 U.S. 194, 200-01 (2001) (emphasis

in original) (citation omitted). In evaluating whether a claim

for qualified immunity is well founded, a court must

undertake a two-step inquiry. Saucier, 533 U.S. at 201. First,

we must consider whether the facts alleged by the plain-

tiff demonstrate that the officer’s conduct violated a con-

stitutional right. Id. If the plaintiff cannot make such a

showing, our inquiry is finished and summary judgment

must be entered in favor of the government official. Id. If,

on the other hand, the facts alleged by the plaintiff, viewed

in their most favorable light, show the violation of a consti-

tutional right, the next step is to determine whether that

right was clearly established at the time the violation

occurred. Id.

A. Procedural Due Process Claims

McCann argues that Mangialardi violated his right to

procedural due process under the Fourteenth Amendment

by: (1) “purposefully creating false evidence for the pur-

pose of procuring [his] criminal conviction and imprison-

ment”; (2) depriving him of the right to a fair trial “even

though he plead guilty and no trial occurred”; and (3)

failing to disclose exculpatory evidence of his innocence

to prosecutors, defense counsel, and the court before the

entry of his guilty plea.

McCann cites no authority to support his assertion that

his right to procedural due process was violated by

Mangialardi allegedly manufacturing evidence for the

purpose of having him prosecuted, convicted and impris-

oned, and, therefore, the claim is waived. Gable v. City of

Nos. 02-2409 & 02-3021 7

Chicago, 296 F.3d 531, 538 (7th Cir. 2002) (holding that

arguments not developed on appeal are waived). Even

in the absence of such a waiver, however, McCann’s first

“due process” claim still fails because it is nothing more

than a recast of his Fourth Amendment false arrest

claim—which we address in Section II (B)—in the guise

of a substantive (rather than procedural) due process

violation. The Supreme Court has made it clear that a

substantive due process claim may not be maintained when

a specific constitutional provision (here the Fourth Amend-

ment) protects the right allegedly violated. United States

v. Lanier, 520 U.S. 259, 272 n.7 (1997); Graham v. Conner,

490 U.S. 386, 394 (1989). Moreover, to the extent McCann

maintains that Mangialardi denied him due process by

causing him to suffer “[a] deprivation of liberty from a

prosecution and a contrived conviction . . . deliberately

obtained from the use of false evidence,” his claim is, in

essence, one for malicious prosecution, rather than a

due process violation. As we emphasized in Newsome v.

McCabe, 256 F.3d 747 (7th Cir. 2001), “the existence of a tort

claim under state law knocks out any constitutional

theory of malicious prosecution,” id. at 750, and Illinois

has a common law tort action for malicious prosecution.

Miller v. Rosenberg, 749 N.E.2d 946, 951-52 (Ill. 2001). Thus,

any claim McCann had against Mangialardi for malicious

prosecution should have been brought under Illinois law.

Newsome, 256 F.3d at 750. In sum, McCann cannot do an

end run around the foregoing precedent by combining

what are essentially claims for false arrest under the

Fourth Amendment and state law malicious prosecution

into a sort of hybrid substantive due process claim under

the Fourteenth Amendment.

McCann’s second due process claim is that, notwith-

standing his guilty plea, Mangialardi deprived him of the

right to a fair trial. Aside from the fact that he did not

8 Nos. 02-2409 & 02-3021

have a trial, McCann waived this argument by failing to

first present it to the district court for its consideration.

United States v. Shorty, 159 F.3d 312, 313 (7th Cir. 1998)

(holding that the “ ‘failure to raise an issue before the dis-

trict court results in a waiver of that issue on appeal’ ”)

(citation omitted).

Although waived, McCann’s assertion that he was de-

nied a fair trial is essentially subsumed into his third and

final due process claim. McCann alleges that Mangialardi

violated his right to procedural due process by failing

to disclose to prosecutors, defense counsel, and the court,

prior to the entry of his guilty plea, that the drugs found

in the car he was driving on the day of his arrest were

planted without his knowledge. In Brady v. Maryland, 373

U.S. 83 (1963), the Supreme Court held that during trial

the government is constitutionally obligated to disclose

evidence favorable to the defense when the evidence is

material to either the guilt or punishment of the defendant.

Id. at 87. The Court has yet to address, however, whether

the Due Process Clause requires such disclosures outside

the context of a trial. See United States v. Tadros, 310 F.3d

999, 1005 (7th Cir. 2002) (holding that “[a] violation of

the Brady rule occurs only when the government with-

holds evidence which, had it been disclosed, creates a

reasonable probability that the result of the trial would

have been different”); United States v. Nash, 29 F.3d 1195,

1202-03 n.5 (7th Cir. 1994) (refraining from addressing the

issue of whether “Brady may be invoked to challenge

the voluntariness of the plea where a defendant’s (other-

wise voluntary plea) was given without knowledge of . . .

undisclosed exculpatory evidence”).

A recent decision by the Supreme Court, however,

indicates that such a claim might be viable in certain cases.

In United States v. Ruiz, 536 U.S. 622 (2002), the Court

addressed an issue similar to the one before us: “whether

Nos. 02-2409 & 02-3021 9

the Constitution requires . . . preguilty plea disclosure of

impeachment information.” Id. at 629. (emphasis added).

Ruiz held that such disclosures were not mandated by

the Due Process Clause, but in doing so noted that “im-

peachment information is special in relation to the fairness

of the trial, not in respect to whether a plea is voluntary

(’knowing,’ ‘intelligent,’ and ‘sufficient[ly] aware’).” Id.

(emphasis in original). In contrast, the exculpatory evidence

at issue in this case—i.e., Mangialardi’s alleged knowl-

edge of McCann’s factual innocence—is entirely different.

Thus, we have a question not directly addressed by Ruiz:

whether a criminal defendant’s guilty plea can ever be

“voluntary” when the government possesses evidence

that would exonerate the defendant of any criminal wrong-

doing but fails to disclose such evidence during plea

negotiations or before the entry of the plea.

The Supreme Court’s decision in Ruiz strongly sug-

gests that a Brady-type disclosure might be required

under the circumstances of this particular case. In hold-

ing that the Due Process Clause does not require the

government to disclose impeachment information prior

to the entry of a criminal defendant’s guilty plea, the

Court in Ruiz reasoned that it was “particularly difficult

to characterize impeachment information as critical infor-

mation of which the defendant must always be aware prior to

pleading guilty . . . .” 536 U.S. at 630 (emphasis added). The

Court also noted that “the proposed plea agreement at

issue . . . specifies the Government will provide ‘any

information establishing the factual innocence of the de-

fendant,’ ” id. at 631, and “[t]hat fact, along with other

guilty-plea safeguards . . . diminishes the force of [defen-

dant’s] concern that, in the absence of the impeachment

information, innocent individuals accused of crimes will

plead guilty.” Id. Thus, Ruiz indicates a significant distinc-

tion between impeachment information and exculpatory

10 Nos. 02-2409 & 02-3021

evidence of actual innocence. Given this distinction, it is

highly likely that the Supreme Court would find a viola-

tion of the Due Process Clause if prosecutors or other

relevant government actors have knowledge of a criminal

defendant’s factual innocence but fail to disclose such

information to a defendant before he enters into a guilty

plea.

We need not resolve this question, however, because

even if such disclosures of factual innocence are constitu-

tionally required, McCann has not presented any evidence

that Mangialardi knew about the drugs being planted

in McCann’s car prior to the entry of his guilty plea.

To begin with, during the proceedings in the district

court, McCann failed to answer the following request for

admission submitted by Mangialardi: “In regard to the

November 20, 1990 arrest, Plaintiff has no evidence from

any source that Sam Mangialardi or any other Chicago

Heights police officer withheld any exculpatory evidence

from Plaintiff, the state’s attorneys, or Plaintiff’s attorney

prior to the date when Plaintiff pled guilty on January 31,

1991.” This default admission is, in and of itself, fatal to

McCann’s final due process claim. Fed. R. Civ. P. 36(a)

(a party who fails to respond to requests for admission

within 30 days is deemed to have admitted those re-

quests); Walsh v. McCain Foods Ltd., 81 F.3d 722, 726 (7th

Cir. 1996) (same). We also note that McCann made no

attempt to withdraw the admission by petitioning the court

3

for such withdrawal under Fed. R. Civ. P. 36(b), and,

3

Federal Rule of Civil Procedure 36(b) provides that:

Any matter admitted under this rule is conclusively estab-

lished unless the court on motion permits withdrawal or

amendment of the admission. Subject to the provision of

Rule 16 governing amendment of a pretrial order, the court

(continued...)

Nos. 02-2409 & 02-3021 11

therefore, it is “conclusively established” for purposes of

this litigation that he has no evidence that Mangialardi

withheld exculpatory evidence from him prior to the

entry of his guilty plea. United States v. Kasuboski, 834 F.2d

1345, 1350 (7th Cir. 1987) (holding that “[a]dmissions

made under Rule 36, even default admissions, can serve

as the factual predicate for summary judgment”). The

district court erred by not analyzing this admission and

giving it preclusive effect.

Furthermore, even without the default admission, the

record in this case does not support McCann’s assertion

that at the time he entered his guilty plea Mangialardi

was aware that the drugs McCann was charged with

possessing on the day of his arrest had been planted in

the car without his knowledge. McCann’s entire argu-

ment is premised on the testimony of Otis Moore at

Mangialardi’s criminal trial on March 24, 1994. According

to McCann, this testimony supports his contention that

Mangialardi knew that he was innocent of the charges

brought against him by the government because: (1)

Mangialardi conspired with Moore to “cause drugs to be

planted” in the car he was driving and to have him falsely

arrested; or (2) at the very least, Mangialardi learned

that Moore planted the drugs in his car sometime after his

arrest of November 20, 1990, but before he entered a guilty

3

(...continued)

may permit withdrawal or amendment when the presenta-

tion of the merits of the action will be subserved thereby

and the party who obtained the admission fails to satisfy

the court that withdrawal or amendment will prejudice

that party in maintaining the action or defense on the mer-

its. Any admission made by a party under this rule is for

the purpose of the pending action only and is not an admis-

sion for any other purpose nor may it be used against

the party in any other proceeding.

12 Nos. 02-2409 & 02-3021

plea on January 31, 1991. The record supports neither

of McCann’s assertions.

First, Moore’s testimony at Mangialardi’s criminal trial

conclusively demonstrates that Moore did not tell

Mangialardi about planting drugs in McCann’s car until

after McCann had been arrested. Recall that McCann was

a key player in Moore’s drug operation, so drug deliv-

eries were part of his routine. When Mangialardi sus-

pected McCann was an FBI informant, he told Moore to

get rid of him. At Mangialardi’s criminal trial, Moore

testified only that he told Mangialardi, prior to the

arrest, that McCann “would be having drugs in his car

shortly,” to which Mangialardi replied, “I will be at the

station. Just give me a call.” Thus, although Moore’s

testimony shows that he and Mangialardi concocted a

scheme to have McCann arrested, it does not demonstrate

that Mangialardi conspired with Moore to have McCann

falsely arrested. Indeed, with respect to the discussion

Moore and Mangialardi had shortly after McCann’s ar-

rest, Moore testified that he could not recall when he

informed Mangialardi of “how the drugs had gotten into

the car,” but “it was after the conversation” that took

place “shortly after the incident.” The plot was to catch

McCann “dirty” with illegal drugs, but nothing in the

record suggests that Mangialardi expected McCann to be

caught during anything other than a routine drug delivery.

In short, Mangialardi did not need to know how the drugs

got there, and Moore’s undisputed testimony shows that

he did not know about the plant until sometime after the

4

arrest.

4

The text of Moore’s relevant testimony regarding when

Mangialardi became aware of the plant is attached as an ap-

pendix to this opinion.

Nos. 02-2409 & 02-3021 13

Second, Moore’s testimony does not support McCann’s

contention that Mangialardi knew that Moore planted

the drugs on McCann prior to the time he pleaded guilty on

January 31, 1991. At Mangialardi’s trial, Moore was asked

by the government whether he recalled “at any time hav-

ing a conversation with [Mangialardi] in which you in-

formed him of how the drugs got into the car?” Although

Moore answered this question in the affirmative, he could

not recall when that conversation “took place.” In the

absence of evidence demonstrating that Mangialardi

knew on or before January 31, 1991, that Moore planted

drugs in the car McCann was driving, there is no factual

basis upon which McCann can construct the novel due

process claim he advocates on appeal. Borcky v. Maytag

Corp., 248 F.3d 691, 695 (7th Cir. 2001) (holding that mere

speculation is insufficient to withstand a motion for sum-

mary judgment).

McCann attempts to make up for this lack of evidentiary

support by asserting that Moore’s act (and thus knowl-

edge) of planting drugs on him is imputed to Mangialardi

because they were co-conspirators. In support of this

argument, McCann relies heavily on our decision in Jones

v. City of Chicago, 856 F.2d 985 (7th Cir. 1988), where we

held that a government official is liable as a conspirator,

for purposes of establishing liability under § 1983, if he is

“a voluntary participant in a common venture, although

[he] need not have agreed on the details of the conspirato-

rial scheme or even know who the other conspirators are . . .

[so long as he] understand[s] the general objectives of the

scheme, accept[s] them, and agree[s], either explicitly or implic-

itly, to do [his] part to further them.” Id. at 992 (emphasis

added). Section 1983 claims, however, must be premised

on the violation of a constitutional right. Henderson v.

Bolanda, 253 F.3d 928, 932 n.3 (7th Cir. 2001). Here, as

previously noted, Moore testified that Mangialardi did

14 Nos. 02-2409 & 02-3021

not know before the arrest that the drugs were planted,

so they obviously did not conspire to have McCann

falsely arrested. The record shows only that Moore and

Mangialardi schemed to have McCann, a drug dealer,

arrested the next time he was traveling in a car with drugs,

something he routinely did. Although this might con-

stitute a criminal conspiracy to obstruct justice (i.e., inter-

ference with a federal drug investigation), there is simply

no evidence that the general objective of Moore and

Mangialardi’s “conspiracy” was to have McCann falsely

5

arrested, which is the linchpin of McCann’s third and

final due process claim. For all of the foregoing reasons,

McCann cannot demonstrate that Mangialardi violated his

right to due process.

B. Fourth Amendment False Arrest Claim

Finally, we address McCann’s cross appeal of the dis-

trict court’s dismissal of his Fourth Amendment (false

arrest) claim on the ground that the claim was time-barred,

which we review de novo. Hernandez v. City of Goshen,

Indiana, 324 F.3d 535, 537 (7th Cir. 2003). In conducting this

review, we are required to accept all of the well-pleaded

factual allegations in the complaint as true and draw

all reasonable inferences in favor of McCann. Id.

5

McCann also argues that Mangialardi violated his right to

procedural due process by failing to disclose his knowledge of

the planted drugs prior to sentencing. This argument, however,

fails for the same reason as McCann’s primary Brady argument;

because there is no evidence that Mangialardi knew about the

drug plant at the time of sentencing (which took place on January

31, 1999, the same day as the entry of the guilty plea). Moreover,

McCann did not make this argument to the district court, and

therefore may not raise it on appeal. Shorty, 159 F.3d at 313.

Nos. 02-2409 & 02-3021 15

On appeal, McCann argues that the district court erred

in precluding him from asserting the equitable tolling

doctrine with respect to his Fourth Amendment false ar-

rest claim, and in dismissing the claim as time-barred. We

need not address the merits of McCann’s argument, how-

ever, because even if the district court did err in this

regard, the nature of the record makes it unnecessary to

remand the claim for further consideration. In reaching this

conclusion, we recognize that a 12(b)(6) dismissal is only

appropriate when a court, after examining the complaint,

concludes that the plaintiff can prove no set of facts that

would entitle him to relief. Hernandez, 324 F.3d at 537. But

here, we are not just dealing with a stand-alone claim

dismissed under 12(b)(6); we also have before us McCann’s

due process claim, which: (1) has a fully developed rec-

ord; (2) was briefed on the merits both below and on ap-

peal; and (3) is premised upon the same factual allegations

as his Fourth Amendment false arrest claim. It would,

therefore, make little sense, or promote the interests of

judicial economy, to remand the false arrest claim back

to the district court for the purpose of allowing McCann to

conduct a second round of discovery. McCann has already

been given the opportunity to establish a record to support

his allegation that Mangialardi conspired with Moore to

have him falsely arrested by planting drugs in his car

6

without his knowledge, but he failed to do so. He is not

6

We reach this conclusion even though McCann filed a motion

for an extension of time to conduct discovery before the notice of

appeal in this case was docketed. The appropriate time for

McCann to have sought such an extension was before he de-

cided to oppose Mangialardi’s motion for summary judgment.

Federal Rule of Civil Procedure 56(f) “authorizes a district

court to refuse to grant a motion for summary judgment or to

(continued...)

16 Nos. 02-2409 & 02-3021

entitled to another bite at the apple. Nor is there any reason

to send the claim back to the district court for further

consideration on the merits, based on the record before us,

when it is abundantly clear that McCann cannot prevail. As

previously noted, McCann’s assertion that Mangialardi

conspired with Moore to plant drugs in his car, or otherwise

sought to have him falsely arrested, is not supported by any

evidence whatsoever. Miller Aviation v. Milwaukee County Bd.

of Supervisors, 273 F.3d 722, 731 (7th Cir. 2001) (holding that

“[w]hen a ‘claim plainly lacks merit, it is better [for the

Court of Appeals] to resolve it on the merits rather than

remand for a determination by the district judge’ . . . .”);

Otto v. Variable Annuity Life Ins. Co., 814 F.2d 1127, 1138

(7th Cir. 1986) (holding that interests of judicial economy

weigh against sending a case back to the district court when

“there is nothing to be gained from a remand”). Because

Mangialardi would be entitled to judgment as a matter

of law on remand, we see no reason to disturb the dis-

trict court’s dismissal of the claim.

6

(...continued)

continue its ruling on such a motion pending further discovery

if the nonmovant submits an affidavit demonstrating why it cannot

yet present facts sufficient to justify its opposition to the motion.”

Woods v. City of Chicago, 234 F.3d 979, 990 (7th Cir. 2000) (empha-

sis added). McCann, however, failed to make such a request.

Instead, he chose to oppose Mangialardi’s motion for summary

judgment based on the existing record. Thus, the fact that he

subsequently requested a discovery continuance is of no con-

sequence. Id. (rejecting party opponent’s argument that district

court’s entry of summary judgment was erroneous because he

had not been given “a fair opportunity to conduct such dis-

covery” on the basis that the party opponent’s failure to file

a Rule 56(f) motion was sufficient, in and of itself, to affirm

the district court’s decision); see also Wallace v. Tilley, 41 F.3d 296,

303 (7th Cir. 1994).

Nos. 02-2409 & 02-3021 17

III.

For the reasons outlined in this opinion, we REVERSE

the district court’s decision denying Mangialardi summary

judgment on McCann’s due process claim(s) and REMAND

the case to the district court with instructions to enter

judgment in favor of Mangialardi, and AFFIRM the court’s

dismissal of McCann’s Fourth Amendment false arrest

claim.

18 Nos. 02-2409 & 02-3021

APPENDIX

At Sam Mangialardi’s criminal trial, the following ex-

change took place between the federal prosecutor and Otis

Moore:

Q. What did you say to Sam Mangialardi at that time?

A. I told him that Ray had did a search of Trent McCa-

nn and he found the card, either the IRS or the FBI

card, on him.

...

Q. What did you say to him and what did he say to

you?

A. I told him that Trent would be having drugs in his

car shortly. And he said, “I will be at the station.

Just give me a call.”

...

Q. After [McCann’s arrest] did you have—ever have

a conversation with [Mangialardi] about what hap-

pened?

A. Yes, I did . . . .

Q. Do you recall, was it that day or was it the next day?

A. It wasn’t that day.

A. Do you recall how many days after it was?

A. It was shortly after the incident.

Q. Where did the conversation take place?

A. I don’t recall the exact place.

Q. Was it in person or over the phone?

A. I don’t recall.

Nos. 02-2409 & 02-3021 19

Q. What did you say to him at that time, to Sam

Mangialardi about Trent McCann?

A. He said, “Yeah, that guy finally got caught dirty,

huh?” And I said, “Yeah.” I said—I just—we just

sort of laughed at it. It was funny between the both

of us. It was sort of like just funny.

Q. During that conversation did you tell him how the

drugs had gotten into the car?

A. I don’t recall.

Q. Do you recall at any time having a conversation

with [Mangialardi] in which you informed him

of how the drugs got in the car?

A. Yes, I do.

Q. Do you recall when that took place.

A. No, I don’t.

Q. Was it before or after the conversation you just

referred to?

A. It was after the conversation.

Q. Do you recall who was present?

A. Me and Sam Mangialardi.

Q. What did you tell him at that time?

A. I just told him it was pretty smooth how I did that.

Q. Did you—what did you tell him then?

A. I told him that, you know, I just—I put it up under

there [i.e., the driver’s side seat] and I just basically

said that Trent didn’t know nothing. He was

just—didn’t even know.

20 Nos. 02-2409 & 02-3021

Q. What did he do—what did Sam Mangialardi say

or do at that time?

A. Nothing.

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—7-22-03