McCann, Demetrius v. Mangialardi, Sam ( 2003 )

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