Steidle, Gordon R. v. Fermon, Steven M.

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 06-2017

GORDON STEIDL,

Plaintiff-Appellee,

v.

STEVEN M. FERMON, DIANE CARPER,

CHARLES E. BRUEGGEMANN, et al.,

Defendants-Appellants.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 05-2127—Harold A. Baker, Judge.

____________

ARGUED DECEMBER 5, 2006—DECIDED JULY 18, 2007

____________

Before FLAUM, WOOD, and EVANS, Circuit Judges.

WOOD, Circuit Judge. Gordon “Randy” Steidl spent

more than seventeen years in jail for a double homicide

that he insists he did not commit. What makes this even

worse is the fact (according to Steidl) that from the

outset Illinois state police officers knowingly possessed

and concealed evidence of his innocence, and they never

disclosed this evidence to him, throughout his trial, his

appeals, and most of his post-conviction proceedings.

Steidl was finally released in 2004 after a federal district

court, concluding that “acquittal was reasonably probable

if the jury had heard all of the evidence,” granted his

2 No. 06-2017

petition for a writ of habeas corpus. Steidl v. Walls, 267

F. Supp. 2d 919, 940 (C.D. Ill. 2003). Following his re-

lease from prison, Steidl brought a suit under 42 U.S.C.

§ 1983 against Illinois police officers Steven M. Fermon,

Diane Carper, Charles E. Brueggemann, Andre Parker

and Kenneth Kaupus and others for violating his due

process right to be told about exculpatory evidence in

accordance with Brady v. Maryland, 373 U.S. 83 (1963).

The wrinkle in this case is the fact that the present five

defendants (to whom we refer as the ISP Officials) were

not involved in Steidl’s case during its earlier stages.

While Steidl’s post-conviction proceeding was pending

in state appellate court, however, they did learn about the

existing exculpatory evidence and that the state had

possessed this evidence all along. Rather than advise the

state appellate court that the state had prosecuted the

wrong man, the defendants kept mum and took steps

actively to conceal the exculpatory evidence.

Faced with Steidl’s § 1983 suit, the defendants moved

to dismiss on the basis of qualified immunity; the dis-

trict court denied their motion; and this interlocutory

appeal followed. As things now stand, Steidl is relying

on two theories for recovery: in Count II he claims that

he was deprived of a fair trial and was wrongfully con-

victed because the ISP Officials concealed exculpatory

evidence from the courts during his post-conviction

proceedings; in Count III he claims that he was denied

proper access to the courts. We agree with the district

court that the Brady line of cases has clearly established

a defendant’s right to be informed about exculpatory

evidence throughout the proceedings, including appeals

and authorized post-conviction procedures, when that

exculpatory evidence was known to the state at the time

of the original trial. Steidl is thus entitled to proceed under

his first theory. We conclude, however, that the

ISP Officials were entitled to qualified immunity on the

access-to-courts theory.

No. 06-2017 3

I

We begin, as we frequently do, with the question of our

jurisdiction over this appeal. “ ‘Under the collateral order

doctrine the district court’s denial of [a] motion for sum-

mary judgment based on qualified immunity is an im-

mediately appealable ‘final decision’ within the meaning

of 28 U.S.C. § 1291 to the extent that it turns on legal

rather than factual questions.’ ” Via v. La Grand, 469 F.3d

618, 622 (7th Cir. 2006), quoting from Wernsing v. Thomp-

son, 423 F.3d 732, 741 (7th Cir. 2005). As we explained

in Borello v. Allison, 446 F.3d 742 (7th Cir. 2006),

[t]he Court’s jurisdiction extends to interlocutory

appeals such as this one challenging a district court’s

determination that a set of facts demonstrate a vio-

lation of “clearly established” constitutional law and

preclude the defendants from proffering a qualified

immunity defense. When deciding whether a public

official is entitled to qualified immunity, we simply

assume the disputed facts in the light most favorable

[to the plaintiff], and then decide, under those facts,

whether the [defendants] violated any of [the plain-

tiff ’s] clearly established constitutional rights.

Id. at 747 (internal citations and quotations omitted). See

also Saucier v. Katz, 533 U.S. 194, 201 (2001).

Taking the facts in that light, the following story

emerges. Steidl is innocent of the crimes for which he was

convicted in 1987. He spent 17 years in prison, includ-

ing 12 on death row, for the July 1986 murders of Dyke

and Karen Rhoads and for arson. The investigation that

led to his conviction was conducted by police chief Gene

Ray of Paris, Illinois, with the help of lead detective

James Parrish, Edgar County State’s Attorney Michael

McFatridge, and Illinois State Police investigator Jack

Eckerty. These men are defendants in this case, but they

are not parties to this interlocutory appeal. Together, they

4 No. 06-2017

ignored evidence that would have demonstrated Steidl’s

innocence, including especially a credible lead pointing to

an influential Paris businessman (called John Doe here)

and some of his employees as the guilty parties. Ray,

Parrish, McFatridge, and Eckerty based their case

against Steidl on the coerced testimony of two unstable

witnesses. Ray and his team also elicited false inculpatory

statements from other witnesses, including a compensated

jailhouse informant. No one turned over any exculpatory

evidence to Steidl throughout his trial, appeal, or post-

conviction proceeding. Some of the available evidence

would have shredded the state’s case, such as the fact

that one of the state’s witnesses named “Jim and Ed” as

the perpetrators.

In April 2000, the Illinois State Police assigned Lieuten-

ant Michale Callahan to review the Rhoads murders.

Callahan discovered much of the evidence in the file that

had been available to Eckerty and the other original

investigators and recognized immediately that it was

exculpatory. In a memorandum on May 17, 2000, he

listed fact after fact that undermined the credibility of

the state’s witnesses and identified John Doe as the

suspect who “was at one time and should still be the

focus of the investigation.” Doe, Callahan’s memo noted,

had made significant campaign contributions to high-

ranking elected officials in the area. Neither the informa-

tion Callahan uncovered nor his memorandum was

disclosed to Steidl, despite the fact that the post-trial

proceedings in Steidl’s case were not yet over. Instead,

Callahan circulated the memo to three of the present

appellants: Carper, Parker and Fermon. Callahan wrote

additional memos to those three in July 2000 and August

2001; these too spelled out exculpatory evidence in the

state’s possession. Defendant Brueggemann was in-

formed about some of the exculpatory evidence at this

time. The memos admitted that the exculpatory evidence

No. 06-2017 5

was never disclosed to Steidl because “McFatridge did not

want any negative reports.” At one point during his

investigation, Callahan interviewed Eckerty’s wife, who

offered him a houseboat to spare Eckerty’s career.

Carper, Parker, Fermon, and Brueggemann, newly

aware of the exculpatory evidence, actively blocked a

full investigation into Doe and instructed Callahan to

focus on other work. They also enlisted defendant

Kaupas to help discredit Callahan’s conclusions. As be-

fore, neither Steidl nor his lawyers learned anything of

this.

In 2002, Steidl petitioned the Governor of Illinois for a

pardon on the basis of actual innocence. In January 2003,

the Governor’s office called Callahan and told him that

Steidl would be pardoned if Callahan’s investigation had

revealed his actual innocence. Callahan was ready to

make that representation, but he needed the consent of

the Illinois State Police before he could do so. He made

a presentation to defendants Fermon, Carper, and

Brueggemann in which he reported his conclusion that the

jury never heard the truth and that Steidl was in fact

innocent. He was persuaded, through his investigation,

that the only trial witnesses against Steidl had been

utterly discredited, that there were no other witnesses

or other credible evidence implicating Steidl in the mur-

ders, and that the available information suggested in-

stead that Doe was a more likely suspect. Callahan also

found evidence of wrongdoing by the initial investigating

team. After hearing Callahan’s presentation, defendants

Fermon, Carper, and Brueggemann decided not to allow

him to tell the Governor that he had concluded, based on

his investigation, that Steidl was innocent.

Steidl’s next step was his habeas corpus petition in the

district court. As we noted earlier, he was finally success-

ful there. After his petition was granted, on May 27, 2005,

6 No. 06-2017

Steidl filed this § 1983 action against the City of Paris,

Illinois, numerous police officers, and State’s Attorney

McFatridge. The ISP Officials filed a motion to dismiss

on the basis of qualified immunity, among other things. On

March 31, 2006, the district court rejected their immunity

defense, and this appeal followed.

II

The Supreme Court has established a two-step analysis

for assessing claims of qualified immunity. Saucier, 533

U.S. at 201. First, the court must determine whether the

official’s conduct violated a constitutional right. Second,

the court must determine whether the right was clearly

established at the time of the conduct. The second in-

quiry, the Court has stressed, must be conducted at the

correct level of specificity. It must be “clear to a reason-

able [official] that his conduct was unlawful in the situa-

tion he confronted” before immunity can be denied. Id.; see

also Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Davis

v. Sherer, 468 U.S. 183, 191 (1984).

The defendants offer two reasons why their conduct did

not meet these standards. First, they claim that Brady

does not apply to post-conviction proceedings; and second,

they urge that Brady applies only to prosecutors, not to

police officials, and whatever duty police officers may

have to disclose exculpatory evidence is limited to a duty

to disclose to the prosecutor. Both arguments relate to

the first Saucier step—whether the facts demonstrate a

constitutional violation at all—and so we begin our

analysis there. We then consider whether the rule on

which Steidl is relying was clearly established at the

relevant time.

No. 06-2017 7

A

1. Applicability of Brady

As we noted earlier, Steidl alleges that the defendants

“withh[eld]” and “suppress[ed]” from “Plaintiff ’s defense

attorneys, and the judges, juries, post trial prosecutors,

and the Governor and his staff, who were involved in

Plaintiff ’s criminal proceedings, the highly exculpatory and

exonerating” evidence and “obstruct[ed] investigations

which would have led to discovery of further exculpatory

evidence.” For present purposes, we must take these

allegations as true. Saucier, 533 U.S. at 201.

The proposition that it is unconstitutional for law

enforcement officers to withhold or suppress exculpatory

evidence finds its roots in Brady. We therefore look at

that case first; it has been on the books since 1963 and

easily qualifies as clearly established law. The Brady

Court began by characterizing its holding as “an extension

of Mooney v. Holohan, 294 U.S. 103, 122 [(1935)],” which,

it noted with approval, had already been expanded in

Pyle v. Kansas, 317 U.S. 213, 215-16 (1942). Brady, 373

U.S. at 86. Pyle held unconstitutional “imprisonment

result[ing] from perjured testimony, knowingly used by

the State authorities to obtain [a] conviction, and from

the deliberate suppression by those same authorities of

evidence favorable to [the defendant].” Brady, 373 U.S. at

86 (quoting Pyle, 317 U.S. at 215-16).

The holding of Brady was not as narrowly confined as

the ISP Officials would have it. The Court there held

that “the suppression by the prosecution of evidence

favorable to an accused upon request violates due process

where the evidence is material either to guilt or to punish-

ment, irrespective of the good faith or bad faith of the

prosecution.” 373 U.S. at 87 (emphasis added). This

holding mirrored the facts of the case. As the Court

recounted those facts, one of the exculpatory state-

8 No. 06-2017

ments “was withheld by the prosecution and did not come

to petitioner’s notice until after he had been tried, con-

victed, and sentenced, and after his conviction had been

affirmed.” Id. at 84 (emphasis added). The Maryland

courts had affirmed Brady’s conviction, and on post-

conviction review had refused to upset his conviction,

though they had ordered further proceedings on the

question of punishment. Id. at 84-85. That was the

posture of the case when the Supreme Court granted

certiorari. On those facts, the Court concluded that the

“suppression of [potentially exculpatory evidence] was a

violation of the Due Process Clause of the Fourteenth

Amendment.” Brady, 373 U.S. at 86. The fundamental

principle at stake, it emphasized, is the “avoidance of

an unfair trial to the accused.” Id. at 87.

The Court has not retreated from these fundamental

principles in the cases that have followed Brady; to the

contrary, it has repeatedly underscored the breadth of the

Brady rule. Thus, for example, it held in United States v.

Bagley, 473 U.S. 667, 676 (1985), that Brady applies to

impeachment evidence as well as to direct evidence of

guilt. It has also made it clear that Brady’s principles

apply to evidence both in the hands of the police and in

the hands of the prosecutors. See Kyles v. Whitley, 514

U.S. 419 (1995).

The defendants point to several decisions from other

courts for support for their argument that Brady does not

extend beyond the original trial. In one of those cases,

however, the court squarely rejected the proposition for

which the defendants are arguing. The only decision from

a court of appeals on which they rely is Gibson v. Superin-

tendent of N.J. Dep’t of Law & Pub. Safety, 411 F.3d 427

(3d Cir. 2005). In that case, plaintiff brought an action

under § 1983 against officials of the New Jersey State

Police claiming that his 1992 arrest on the New Jersey

No. 06-2017 9

Turnpike was racially motivated. 411 F.3d at 431. In

Gibson, however, the critical exculpatory materials were

not uncovered until November 2000. (The court’s opinion

does not clearly identify when the police first had enough

information to detect a pattern of racial profiling, as

opposed to actions by particular officers.) Although the

court commented that there is “no constitutional duty to

disclose potentially exculpatory evidence to a convicted

criminal after the criminal proceedings have concluded

and we decline to conclude that such a duty exists,” id. at

444, that statement must be taken in context. Unlike

Steidl’s case, where the state officials suppressed the

exculpatory evidence throughout every phase of the

state proceeding, in Gibson the state disclosed the ex-

culpatory evidence while his post-conviction proceeding

was on appeal to the Superior Court of New Jersey,

Appellate Division. The court also differentiated the

Gibson defendants’ failure to release general information

that might have been (and in hindsight was) exculpatory

for Gibson from a situation in which officials inten-

tionally suppressed exculpatory evidence known at the

time to be necessary for a convicted felon to obtain redress.

Id. at 445. Under those circumstances, the Third Circuit

held, Gibson was not entitled to pursue a § 1983 action

against the state officials.

The district court cases on which the ISP Officials rely

also primarily address the question whether the state

has the duty to disclose exculpatory evidence that is

discovered after the trial is concluded. For that reason,

we see no need to discuss them. Steidl’s case is different.

Here, just as in Brady itself, and in the later decision in

Kyles v. Whitley, the evidence at issue was known to the

police before Steidl was brought to trial. (We recognize

that Kyles was decided after Steidl’s trial took place, and

so we mention it only for whatever light it throws on the

scope of the original Brady and Bagley cases, not as an

10 No. 06-2017

independent source of authority. Kyles was decided,

however, well before the ISP Officials learned of and

suppressed the exculpatory evidence here.) Brady dealt

with evidence that “did not come to petitioner’s notice until

after he had been tried, convicted, and sentenced, and

after his conviction had been affirmed.” 373 U.S. at 84. We

thus have no need here to decide whether disclosure of

exculpatory evidence discovered post-trial is required

under Brady; this case presents only the same question

as the Court addressed in Brady, namely, whether excul-

patory evidence discovered before or during trial must

be disclosed during post-conviction proceedings.

At almost the same time as Steidl’s trial (and well before

the involvement of the ISP Officials) the Supreme Court

reiterated the fact that “the duty to disclose [exculpatory

material] is ongoing.” Pennsylvania v. Ritchie, 480 U.S. 39,

60 (1987). In that case, which dealt with a sensitive youth

service file containing materials about child abuse, the

Court eventually concluded that the defendant was

entitled to know whether information in the file might

have changed the outcome of his trial, but that the proper

procedure to use was an initial in camera inspection by

the trial court. Id. at 61. The Tenth and Eleventh Cir-

cuits have viewed Ritchie as extending the duty of disclo-

sure of evidence available for the trial to “all stages of

the judicial process.” Smith v. Roberts, 115 F.3d 818, 820

(10th Cir. 1997) (“We also agree, and the State concedes,

that the duty to disclose is ongoing and extends to all

stages of the judicial process,” citing Ritchie); High v.

Head, 209 F.3d 1257, 1265, n.8 (11th Cir. 2001) (noting

that Ritchie establishes that the state’s duty to dis-

close exculpatory materials is ongoing and citing with

approval an opinion stating that the duty extends through-

out the habeas corpus stage). By contrast, the Gibson

court made no mention of Ritchie, which makes sense

because that court was not discussing the duty to dis-

No. 06-2017 11

close exculpatory evidence that was available, but not

disclosed, at trial.

In our view, Brady, Ritchie, and the other cases in this

line impose on the state an ongoing duty to disclose

exculpatory information if, as Brady put it, that evidence

is material either to guilt or to punishment and avail-

able for the trial. (The latter qualification is important,

to the extent that Brady identifies a trial right, as the ISP

Officials argue and as this court characterized it in

Newsome v. McCabe, 256 F.3d 747, 752 (7th Cir. 2001).)

For evidence known to the state at the time of the trial,

the duty to disclose extends throughout the legal proceed-

ings that may affect either guilt or punishment, including

post-conviction proceedings. Put differently, the taint on

the trial that took place continues throughout the pro-

ceedings, and thus the duty to disclose and allow cor-

rection of that taint continues. We cannot accept the

implicit premise of the state’s position here, which is

that Brady leaves state officials free to conceal evidence

from reviewing courts or post-conviction courts with

impunity, even if that concealment results in the wrong-

ful conviction of an innocent person. It is worth recalling,

in this connection, that the Brady rule was derived from

the Due Process Clause of the Fourteenth Amendment.

“Society wins,” the Court wrote, “not only when the

guilty are convicted but when criminal trials are fair; our

system of the administration of justice suffers when any

accused is treated unfairly.” 373 U.S. at 87.

2. Duty of police officers to disclose

The second argument that the ISP Officials press is that

the Brady duty does not extend to police officers, or at

most, it requires only that they disclose evidence to

prosecutors. From this, they reason that police officers

can never be liable under § 1983 for a failure to disclose.

12 No. 06-2017

The most obvious flaw in this argument is the fact that

Steidl’s complaint alleges that the ISP Officials indeed did

fail to disclose the exculpatory evidence to, among others,

the “judges, juries, post trial prosecutors, and the Governor

and his staff.” (Emphasis added.) Steidl did not allege

that the ISP Officials had a direct duty to disclose the

evidence to his attorney. Rather, consistently with the

defense theory, he alleged in effect that the ISP Officials

failed in their duty to disclose the evidence to a competent

authority. See Brady v. Dill, 187 F.3d 104, 114 (1st Cir.

1999) (holding that police officers have a duty to report

exculpatory evidence to a “competent authority”). As the

Third Circuit recognized in Gibson, the case on which the

defendants rely so heavily,

Several circuits have recognized that police officers

and other state actors may be liable under § 1983 for

failing to disclose exculpatory information to the

prosecutor. . . . We agree. Although Brady places the

ultimate duty of disclosure on the prosecutor, it would

be anomalous to say that police officers are not liable

when they affirmatively conceal material evidence

from the prosecutor.

411 F.3d at 443.

The Supreme Court considers it so well established

that the duty to disclose is one held by the state or gov-

ernment as a whole that its most recent comment occurs in

a short per curiam opinion. See Youngblood v. West

Virginia, 126 S. Ct. 2188 (2006). In Youngblood, a crim-

inal defendant alleged a Brady violation after a police

investigator instructed another person to discard poten-

tially exculpatory evidence without disclosing it. Id. at

2189. Stating that “[a] Brady violation occurs when the

government fails to disclose evidence materially favorable

to the accused . . . even evidence that is known only to

police investigators and not to the prosecutor,” id. at 2190

No. 06-2017 13

(emphasis added), the Court held that Youngblood “clearly

presented a federal constitutional Brady claim.” Id.

at 2190.

Even before Youngblood, this court reached a similar

conclusion. In Newsome, we had this to say:

we make the normal immunity inquiry: was it clearly

established in 1979 and 1980 that police could not

withhold from prosecutors exculpatory information

about fingerprints and the conduct of a lineup? The

answer is yes: The Brady principle was announced

in 1963, and we applied it in Jones [v. Chicago, 856

F.2d 985 (7th Cir. 1988)] to affirm a hefty award of

damages against officers who withheld exculpatory

information in 1981.

256 F.3d at 752-53 (citations omitted). Newsome also

explained that “[i]f officers are not candid with prosecu-

tors, then the prosecutors’ decisions . . . are not the

important locus of action. Pressure must be brought to

bear elsewhere. . . . Requiring culpable officers to pay

damages to the victims of their actions . . . holds out

promise of both deterring and remediating violations of the

Constitution.” Newsome, 256 F.3d at 752. Newsome

therefore held that police officers who withhold evidence

cannot hide from liability behind the fact that “the prose-

cutor [withheld the evidence, so] . . . they either are not

liable or possess a derivative form of immunity.” Id.

Other circuits agree with this general analysis of the

issue. Thus, in Brady v. Dill, the First Circuit held that

while the officers before it were entitled to qualified

immunity, an officer’s “fail[ure] to apprise the prosecutor

or a judicial officer of known exculpatory information [can

be a] . . . constitutional wrong. . . [especially] when a police

officer acts as an information provider.” 187 F.3d at 114.

To similar effect, the Eleventh Circuit ruled that “[i]nvesti-

gators satisfy their obligations under Brady when they

14 No. 06-2017

turn exculpatory and impeachment evidence over to the

prosecutor,” necessarily implying that Brady applies to

investigators. McMillian v. Johnson, 88 F.3d 1554, 1567

(11th Cir. 1996).

The lone case that the ISP Officials cite in support of

the idea that police officers violate due process “only if

they deliberately withhold or conceal exculpatory evidence

from the prosecutor” is the Northern District of Illinois

decision in Newsome v. James, 2001 U.S. Dist. LEXIS

16888, *13-14. Aside from the fact that district court

decisions are nonprecedential, the court appears to have

been focusing on the presumed inability of police officers

to make sophisticated legal decisions about materiality. It

also said, interestingly, that the police officers “simply

have to refrain from concealing exculpatory evidence.” Id.

That, of course, is precisely what the ISP Officials here

did not do. We therefore do not find anything in the district

court’s Newsome opinion that would persuade us to

reconsider our own conclusion, directed by the precedent

of the Supreme Court, our own court, and other circuit

courts. Police officers have a duty to disclose under Brady.

Our opinion in Jones v. Chicago, supra, supports this

conclusion. There we held that supervisors may be liable

for their subordinates’ violation of others’ constitutional

rights when they “know about the conduct and facilitate

it, approve it, condone it, or turn a blind eye for fear of

what they might see. They must in other words act

either knowingly or with deliberate, reckless indifference.”

856 F.2d at 992-93. As the court described the case,

“[t]here was . . . enough evidence to enable the jury to

infer that [the defendants] had known every false step

taken by the subordinate officers, had approved every false

step, and had done their part to make the scheme work,”

as one supervisor “deep-six[ed]” a subordinate’s report,

another “tried to put [a subordinate] off the scent” and

another “sign[ed] a deceitful report for use by the prosecu-

No. 06-2017 15

tion.” Id. We too are faced with a scenario in which

supervisors perpetuated other officers’ misconduct.

We conclude, therefore, that Steidl has satisfied step

one of the Saucier inquiry, because he has alleged facts

that, if true, show a constitutional violation on the part of

the ISP Officials.

B

What remains is the question whether this right was

clearly established, at the requisite level of specificity, at

the time the ISP Officials acted. A plaintiff can show that

a right is “clearly established” by statute or constitution

in at least two ways: (1) he can point to an analogous

case establishing the right to be free from the conduct at

issue; or (2) he can show that the conduct was “so egre-

gious that no reasonable person could have believed that

it would not violate clearly established rights.” Smith v.

City of Chicago, 242 F.3d 737, 742 (7th Cir. 2001).

We have found no case that is directly analogous to the

alleged misconduct of the police here. (This is essentially

good news: we sincerely hope that this type of behavior is

rare.) We therefore must decide whether the alleged

actions were “so egregious” that no reasonable person

could have believed that they were permissible. This is

the approach that the Supreme Court took in its decis-

ions in United States v. Lanier, 520 U.S. 259, 265 (1997),

and Hope v. Pelzer, 536 U.S. 730, 740 (2002), both of

which focused on whether a reasonable person would

know that the challenged behavior violated a constitu-

tional right and held that there need not be case law on

point so long as the official had “fair warning” that her

conduct was impermissible. See also Burgess v. Lowery,

201 F.3d 942, 946 (7th Cir. 2000).

In urging this court not to dispense with the need to find

a closely analogous case, the ISP Officials rely on Denius

16 No. 06-2017

v. Dunlap, 209 F.3d 944, 951 (7th Cir. 2000), which held

that “[i]n some rare cases, where the constitutional

violation is patently obvious, the plaintiff may not be

required to present the court with any analogous cases.”

Id. at 951. But Denius’s use of the word “rare” did not

mean that the second route should normally be closed. To

the contrary, Denius noted that “widespread compliance

with a clearly apparent law may have prevented the

issue from previously being litigated.” Denius, 209 F.3d

at 951.

We are persuaded that the ISP Officials, and indeed

all of the police officers involved in this case, had ample

notice that the knowing suppression of exculpatory

material that was in the files at the time of the trial

violated the defendant’s constitutional rights. If, as we

held in Newsome, the duty to disclose was clearly estab-

lished as of 1979 and 1980, then it remained clearly

established at Steidl’s initial trial in 1987 and throughout

his post-trial proceedings. Supervisors in the Illinois

State Police cannot have thought that they were per-

mitted deliberately to obstruct the access to this evidence

of the post-conviction court and the Governor’s Office,

which has its own role to play in the state’s criminal

justice system. By the time these officials acted, Kyles v.

Whitley was also on the books, eliminating any doubt about

the joint responsibility of the police and prosecutors to

assure the fair administration of the criminal justice

system. Much of our discussion of the scope of the right

Steidl is asserting applies with equal force to the question

whether that right was clearly established, as we have

taken care to rely on cases and doctrines that were in

place before these officials acted. We therefore conclude

that the district court correctly denied the ISP Officials’

motion for dismissal based on qualified immunity.

No. 06-2017 17

III

Last, we consider the ISP Officials’ challenge to Steidl’s

claim of denial of access to the courts. Here, they argue in

the alternative that this claim cannot pass the first

element of the Saucier test, and that it fails to state a

claim upon which relief can be granted. Our jurisdiction

is secure for at least the first of these theories, and thus

we need not consider the second. In Christopher v.

Harbury, 536 U.S. 403 (2002), the Supreme Court ad-

dressed the question of how to allege a claim concerning

access to the courts. Steidl alleges a “backward-looking”

claim, which means he is seeking redress for “[s]pecific

litigation [that] ended poorly.” Id. at 414-15. Consistently

with general pleading rules under the Federal Rules of

Civil Procedure, Christopher requires something sufficient

to give the defendant “fair notice” of the access claim,

including the identification of the underlying claim that

was lost; a description of the “official acts frustrating the

litigation”; and the identification of a “remedy that may

be awarded as recompense but not otherwise available

in some suit that may yet be brought.” Id. at 415-16. The

ISP Officials contend that Steidl never lost a suit nor does

he seek a remedy that is otherwise unavailable.

Steidl points to two claims that he lost: first, his

amended post-conviction petition in state court, which

was ultimately denied, and second, his effort to obtain a

pardon based on actual innocence from the Governor. The

official action causing this loss, he asserts, was the defen-

dants’ perpetuation of the concealment of exculpatory

evidence. Steidl claims that the “four long years in prison

between the time Defendants learned of the exculpatory

information and the time he was ultimately released . . .

satisfies the Christopher requirement of a ‘remedy that

may be awarded as recompense but not otherwise available

in some suit that may yet be brought.’ ”

18 No. 06-2017

Even if we were to agree with Steidl that he lost two

suits (and we make no ruling on that), his access claim

founders on the second requirement. He would like to

be compensated for the additional time he spent in

prison after the ISP Officials became aware of the ex-

culpatory evidence and facilitated its suppression and

for the resources he spent on a futile post-conviction relief

process, and he has also requested punitive damages and

attorneys’ fees. This is essentially the same relief, how-

ever, that he would receive if he eventually prevails on

his claim for false imprisonment (Count I) and his claim

against the City of Paris (Count V). He is therefore not

asking for any remedy relating to the denial of access to

courts that he cannot “still . . . obtain[] through another

procedure.” Christopher, 536 U.S. at 415. Because Steidl’s

allegations, even if taken as true, do not show a constitu-

tional violation, the district court erred in concluding

otherwise.

IV

We AFFIRM the district court’s denial of the defendants’

qualified immunity defense for Count II. We REVERSE

the district court’s denial of the defendants’ motion to

dismiss as it relates to Count III. The case is REMANDED

to the district court for further proceedings consistent

with this opinion.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—7-18-07