Michael Alexander v. Mark McKinney

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-3539

M ICHAEL J. A LEXANDER,

Plaintiff-Appellant,

v.

M ARK M C K INNEY,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 1:10-cv-914—Richard L. Young, Chief Judge.

A RGUED M AY 31, 2012—D ECIDED A UGUST 8, 2012

Before M ANION, K ANNE, and W ILLIAMS, Circuit Judges.

K ANNE, Circuit Judge. Michael Alexander alleges that

a local prosecutor, Mark McKinney, conspired with a

number of agents from the Federal Bureau of Investiga-

tion to manufacture false evidence and bring trumped-

up charges of conspiracy to commit bribery against

him. A jury acquitted Alexander of the charges, and he

then brought suit against McKinney for violating his

due process rights. The district court dismissed the

claim, finding McKinney entitled to qualified immunity

2 No. 11-3539

because the complaint did not identify a deprivation of a

cognizable constitutional right. Because Alexander’s

complaint is merely an attempt to recast an untimely

false arrest claim into a due process claim, an ap-

proach we have plainly rejected, we affirm.

I. B ACKGROUND

The complaint alleges the following facts, which we

take as true for purposes of reviewing the district court’s

grant of McKinney’s motion to dismiss. See R.C. Wegman

Constr. Co. v. Admiral Ins. Co., 629 F.3d 724, 726 (7th Cir.

2011). Alexander is a criminal defense attorney who

was frequently critical of McKinney, a deputy prosecutor

in Delaware County, Indiana. The two butted heads for

a number of years over McKinney’s handling of drug

forfeitures in cases involving local law enforcement’s

drug task force. In January 2007, McKinney was elected

prosecutor for the district, and upon taking office he

began searching for a way to use his increased power

and influence to punish his outspoken critic.

Around this same time, FBI agents began investi-

gating one of Alexander’s colleagues, Jeff Hinds, for

possible involvement in a bribery scheme. The FBI agents

also briefly investigated Alexander in 2006 to ascertain

whether he too was involved in the scheme, but they

abandoned that effort after Alexander denied any in-

volvement. At some point, McKinney began meeting

with the FBI agents, in the hopes of working together to

bring false charges against Alexander. McKinney and

No. 11-3539 3

the agents presumably struck some sort of deal, and

together they agreed to renew the investigation into

Alexander’s involvement in the bribery scheme, the

agents’ previous belief that he was not involved notwith-

standing. In February 2007, they succeeded in building a

case against Alexander, but only by gathering false

and otherwise misleading evidence. In addition to fab-

ricating other unspecified evidence, Alexander alleges

that the FBI agents had individuals set up meetings

with him in an attempt to elicit incriminating state-

ments. The individuals would wear a wire during the

meetings, and the FBI agents would later alter the digital

recordings obtained to exclude exculpatory segments

from the recordings.

In February 2007, a special prosecutor, James Luttrell,

was appointed to prosecute the case. Luttrell was

unaware that he had been given false or altered evidence,

and accordingly charged Alexander with conspiracy to

commit bribery on February 28, 2008. A jury ultimately

acquitted Alexander of the charges on March 13, 2009.

On July 9, 2010, Alexander brought suit against

McKinney and the FBI agents in state court, alleging

broad claims under 42 U.S.C. § 1983 that McKinney and

the agents conspired to violate his Fourth, Fifth, Eighth,

and Fourteenth Amendment rights by manufacturing

false evidence and withholding exculpatory evidence,

resulting in his arrest and the ensuing criminal trial.

The case was subsequently removed to federal court.

McKinney filed a motion to dismiss Alexander’s

second amended complaint, which the district court

4 No. 11-3539

granted on April 12, 2011. In ruling on this motion, the

court first determined that McKinney was not entitled

to absolute immunity based on his role as prosecutor

because, at the time Alexander alleged that McKinney

conspired to manufacture false evidence against him,

McKinney was performing investigatory functions.

See Lewis v. Mills, 677 F.3d 324, 330 (7th Cir. 2012)

(“[P]rosecutors are not entitled to absolute immunity

when performing ‘acts of investigation or administra-

tion.’ ”) (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 270

(1993)). Nevertheless, the district court found that

McKinney was entitled to qualified immunity because

Alexander did not allege that he was deprived of a cog-

nizable constitutional right. The only constitutional

right that Alexander identified, his “due process rights

to not be deprived of his liberty premised upon manu-

factured false evidence,” was insufficient to state a

claim under our circuit’s case law. Alexander filed this

timely appeal.

II. A NALYSIS

We review the district court’s grant of a motion to

dismiss for failure to state a claim de novo. Zellner v.

Herrick, 639 F.3d 371, 378 (7th Cir. 2011). On appeal,

Alexander argues that the district court erred in

finding that McKinney was entitled to qualified

immunity because his complaint adequately alleged a

deprivation of a constitutional right, namely that the

manufacturing of false evidence resulting in his arrest

and charges being brought against him deprived him

No. 11-3539 5

of liberty in violation of his substantive due process

rights.1 For the following reasons, we disagree.

“Qualified immunity protects public officials from

liability for damages if their actions did not violate clearly

established rights of which a reasonable person would

have known.” Fleming v. Livingston Cnty., Ill., 674 F.3d

874, 879 (7th Cir. 2012). Claims of qualified immunity

involve two questions: (1) whether the official’s con-

duct violated a constitutional right, and (2) whether the

right was clearly established at the time. Surita v. Hyde,

665 F.3d 860, 868 (7th Cir. 2011). We may consider

these questions in any order, Reher v. Vivo, 656 F.3d 772,

775 (7th Cir. 2011), and a negative answer to either ques-

tion entitles the official to the defense, Hanes v. Zurick,

578 F.3d 491, 493 (7th Cir. 2009).

Before analyzing whether Alexander’s complaint

alleges a deprivation of a cognizable constitutional

right, we think it helpful to highlight the claims he is not

bringing. First, although the crux of his complaint

alleges that—in light of the withheld and altered evi-

dence—he was arrested without probable cause,

Alexander does not bring a Fourth Amendment false

arrest claim because such a claim would be untimely.

In Indiana, there is a two-year statute of limitations

for false arrest claims under § 1983, accruing from the

date of arrest. See Snodderly v. R.U.F.F. Drug Enforce-

ment Task Force, 239 F.3d 892, 896 (7th Cir. 2001). Alexander

1

Because McKinney concedes in his reply brief that he was

not entitled to absolute immunity, we do not address the issue.

6 No. 11-3539

was arrested on February 28, 2008, but did not file suit

until July 9, 2010—well after the statute of limitations

expired. At oral argument, Alexander’s counsel acknowl-

edged that the claim was not brought earlier for

strategic reasons: McKinney was still the prosecutor,

and “[N]obody was going to go back into that snake pit,

file this against the sitting prosecutor after [Alexander]

had already been acquitted.”

Nor did Alexander bring a claim for malicious pros-

ecution under Indiana state law. See Golden Years Home-

stead, Inc. v. Buckland, 557 F.3d 457, 462 (7th Cir. 2009)

(“Under Indiana law, ‘the elements of a malicious prosecu-

tion action are: (1) the defendant instituted or caused to

be instituted an action against the plaintiff; (2) the de-

fendant acted maliciously in so doing; (3) the defendant

had no probable cause to institute the action; and

(4) the original action was terminated in the plaintiff’s

favor.’ ”) (brackets omitted) (quoting Crosson v. Berry,

829 N.E.2d 184, 189 (Ind. Ct. App. 2005)); see also 19

Indiana Law Encyclopedia Malicious Prosecution § 1

(2012). Although Indiana provides a state law claim for

malicious prosecution, the state grants broad immunity

to governmental employees from the claim. See Ind. Code

§ 34-13-3-3 (stating that a governmental employee

acting within the scope of employment is not liable for

losses resulting from “[t]he initiation of a judicial or an

administrative proceeding”); see also Butt v. McEvoy,

669 N.E.2d 1015, 1018 (Ind. Ct. App. 1996) (construing

predecessor statute with identical language to find

police officer accused of knowingly providing false in-

formation immune from malicious prosecution claim).

No. 11-3539 7

Therefore, a state law claim for malicious prosecution

likely had little chance of success.

Finally, although he alleges that exculpatory evidence

was withheld at trial, Alexander does not claim that he

was denied the right to a fair trial in violation of Brady

v. Maryland, 373 U.S. 83 (1963). In order to bring a

Brady claim, a plaintiff must demonstrate that: (1) the

prosecution suppressed evidence; (2) the evidence

was favorable to the accused; and (3) the evidence was

material, that is, there was a reasonable probability

that prejudice ensued. Parish v. City of Chicago, 594

F.3d 551, 554 (7th Cir. 2009). The jury acquitted

Alexander of the charges, and we have expressed doubt

that an acquitted defendant can ever establish the

requisite prejudice for a Brady claim. See Bielanski v. Cnty.

of Kane, 550 F.3d 632, 644 (7th Cir. 2008). Nevertheless,

we have entertained the possibility that prejudice could

be established if an acquitted defendant showed that

disclosure of the suppressed evidence would have

altered the decision to go to trial. See Parish, 594 F.3d at

554; Bielanski, 550 F.3d at 644-45. Alexander expressly

disavowed that he was bringing a Brady claim in his

brief in opposition to the defendants’ motion to dis-

miss, and thus we need not decide whether such

a claim was available.

This leaves Alexander to attempt to piece together

an amorphous substantive due process claim from

the remains of his forgone or otherwise unavailable

constitutional and state law claims. That is an approach

we have squarely rejected in analogous cases, and we

8 No. 11-3539

see no reason to depart from our precedent. See Brooks

v. City of Chicago, 564 F.3d 830, 833 (7th Cir. 2009)

(plaintiff alleging that police officers failed to disclose

exculpatory evidence, perjured themselves, and sub-

mitted false police reports could not state a due process

claim “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.”)

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

2003)).

In support of his argument that he states a cognizable

due process right, Alexander relies heavily on the Second

Circuit’s decision in Zahrey v. Coffey, 221 F.3d 342 (2d Cir.

2000). The plaintiff in Zahrey alleged that police officers

and prosecutors conspired to manufacture false

evidence to bring conspiracy to commit robbery charges

against him. Id. at 345-46. He was arrested and held

without bail for eight months, before ultimately being

acquitted of the charges. Id. at 348. The Second Circuit

held that Zahrey stated a due process claim, finding he

had “the right not to be deprived of liberty as a result of

the fabrication of evidence by a government officer

acting in an investigating capacity.” Id. at 349. More

recently, we held that a prosecutor acting in an inves-

tigatory capacity who fabricates evidence that is used

to obtain a wrongful criminal conviction violates a con-

victed defendant’s clearly established due process

rights. Whitlock v. Brueggemann, 682 F.3d 567, 585-86

(7th Cir. 2012). There, the plaintiffs, Whitlock and

Steidl, alleged that police officers and prosecutors used

No. 11-3539 9

fabricated evidence, such as pressuring witnesses to

concoct stories of having witnessed the crime, to convict

the two of a high-profile double homicide. Id. at 572-73.

Whitlock and Steidl spent the next seventeen and twenty-

one years in prison, respectively, before having their

convictions overturned in post-conviction proceedings

on the basis of numerous Brady violations. Id. at 570.

In both Zahrey and Whitlock, the alleged liberty depriva-

tion came not from the initial arrest, but from the time

spent in confinement 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 wrongfully convicted. See Zahrey, 221 F.3d at

348; Whitlock, 682 F.3d at 585. Zahrey and Whitlock

are inapposite because the only liberty deprivation Alex-

ander alleges stems from his initial arrest—he was

released on bond that same day.2

2

Nor does the burden of appearing in court and attending

trial, in and of itself, constitute a deprivation of liberty. Cf.

Bielanski, 550 F.3d at 639-42 (collecting cases and holding that

summons to appear in court, order not to leave the state

without permission, and required interview with probation

officer do not rise to level of Fourth Amendment seizure); see

also Harrington v. City of Nashua, 610 F.3d 24, 32-33 (1st Cir.

2010) (“run-of-the-mill” conditions of pretrial release, in-

cluding required attendance in court proceedings, do not

constitute Fourth Amendment seizure); Burg v. Gosselin, 591

F.3d 95, 101 (2d Cir. 2010) (pre-arraignment summons

requiring later court appearance does not constitute Fourth

Amendment seizure). It would be anomalous to hold that

(continued...)

10 No. 11-3539

The Fourth Amendment, not the due process clause, is

the proper basis for challenging the lawfulness of an

arrest. See Albright v. Oliver, 510 U.S. 266, 275 (1994)

(plurality opinion). Moreover, the Supreme Court has

made it clear that a substantive due process claim may not

be maintained where a specific constitutional provision

protects the right at issue. NASA v. Nelson, 131 S. Ct. 746,

765 (2011), (Scalia, J., concurring in judgment) (“Where

a particular Amendment provides an explicit textual

source of constitutional protection against a particular

sort of government behavior, that Amendment, not the

more generalized notion of substantive due process,

must be the guide for analyzing these claims.”) (brackets

omitted) (quoting Cnty. of Sacramento v. Lewis, 523 U.S.

833, 842 (1998)). Alexander cannot recast his untimely

Fourth Amendment claim, thereby circumventing the

statute of limitations, by combining it with a state

law malicious prosecution claim and simply changing

the label of the claim to substantive due process.

III. C ONCLUSION

For the foregoing reasons, we A FFIRM the district court’s

grant of McKinney’s motion to dismiss the complaint.

2

(...continued)

attending a trial deprives a criminal defendant of liberty

without due process of law, when the purpose of the trial is

to effectuate due process.

8-8-12