Omar Saunders-El v. Eric Rohde ( 2015 )


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  • In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________________
    No. 14-1570
    OMAR SAUNDERS-EL,
    Plaintiff-Appellant,
    v.
    ERIC ROHDE, et al.,
    Defendants-Appellees.
    ____________________
    Appeal from the United States District Court for the
    Northern District of Illinois, Western Division.
    No. 10 C 50063 — Frederick J. Kapala, Judge.
    ____________________
    ARGUED DECEMBER 5, 2014 — DECIDED JANUARY 30, 2015
    ____________________
    Before FLAUM, EASTERBROOK, and KANNE, Circuit
    Judges.
    FLAUM, Circuit Judge. Subsequent to his acquittal by a
    jury on burglary charges, Omar Saunders-El sued mem-
    bers of the Rockford, Illinois police department, alleging
    that they planted his blood at the crime scene in an at-
    tempt to frame him. His complaint included a 
    42 U.S.C. § 1983
     claim—contending that by fabricating evidence,
    the officers offended his due process rights—and Illinois
    2                                                    No. 14-1570
    state law claims for malicious prosecution and intention-
    al infliction of emotional distress. The district court
    granted summary judgment for the officers on the federal
    claim and dismissed the state law claims without preju-
    dice to refiling in state court. In the district court’s view,
    fabricating evidence does not violate a defendant’s due
    process rights and cannot support a § 1983 action; such
    an allegation must instead be brought as a state law claim
    for malicious prosecution, the district court reasoned.
    That holding is mistaken. A criminal defendant’s due
    process rights may be violated—actionable by way of 
    42 U.S.C. § 1983
    —when the evidence against him is fabri-
    cated. However, due process is not implicated when, as
    here, the defendant is released on bond following his ar-
    rest and acquitted at trial. And this rule cannot be cir-
    cumvented, as Saunders-El attempts to do, simply by re-
    framing such an allegation as a Brady claim—that is, by
    alleging that the police officers who supposedly fabricat-
    ed the evidence failed to reveal their misconduct to the
    prosecution. Accordingly, we affirm the judgment of the
    district court, but on other grounds.
    I. Background
    Omar Saunders-El was arrested, released on bond,
    charged, and ultimately stood trial for a burglary that oc-
    curred on August 10, 2006 at the Sports Dome retail store
    in Rockford, Illinois. Rockford police officers claimed
    that they spotted Saunders-El on the store’s roof, ob-
    served him jump off the building, and apprehended him
    following a foot chase. According to the prosecution,
    Saunders-El broke into the Sports Dome by carving a
    hole in the roof and ceiling and, in the process, cut him-
    No. 14-1570                                                             3
    self on jagged metal, leaving his blood at the scene.1
    Saunders-El, however, insists that he was minding his
    own business that evening, when a Rockford police of-
    ficer stopped him on the street to question him about the
    break-in. While they spoke, Saunders-El says, another
    officer bludgeoned him over the head, splitting open his
    skull and knocking him out. While unconscious, he be-
    lieves, the officers collected his blood in order to smear it
    at the crime scene and frame him for the burglary. De-
    spite the ostensible strength of the evidence against him,
    a jury acquitted Saunders-El. He then sued various Rock-
    ford police officers based on his allegations of evidence
    fabrication, asserting a due process claim by way of 
    42 U.S.C. § 1983
    , as well as Illinois state claims of malicious
    prosecution and intentional infliction of emotional dis-
    tress.
    With respect to the § 1983 claim, the district court
    granted summary judgment in the officers’ favor, holding
    that an allegation of evidence fabrication cannot support
    a constitutional tort claim and is only redressable in Illi-
    nois as a state law claim for malicious prosecution. The
    district court relinquished jurisdiction over the state law
    claims and dismissed them without prejudice to refiling
    in state court. On appeal, Saunders-El focuses the bulk of
    his attention on the issue of whether a district court
    properly may find in favor of defendants at summary
    judgment on the ground that a plaintiff has not stated a
    legally cognizable claim. In his view, the court may do so
    1  The  blood purportedly recovered on the roof matched Saunders-
    El’s DNA profile—a profile that is expected to occur in 1 in 57 quad-
    rillion black individuals.
    4                                                    No. 14-1570
    only on a Rule 12(b)(6) motion, and, therefore, impermis-
    sibly ruled against him. On the merits, Saunders-El ar-
    gues that the fabrication of evidence, as well as the fail-
    ure of police officers to inform the prosecution of that
    fabrication, violates a criminal defendant’s due process
    rights and, as such, that his case should be reinstated.
    II. Discussion
    We review the district court’s grant of summary
    judgment de novo. Huang v. Cont’l Cas. Co., 
    754 F.3d 447
    ,
    450 (7th Cir. 2014). We first address Saunders-El’s claim
    of impropriety regarding the district court’s dismissal of
    his case at summary judgment for failing to state a consti-
    tutional claim. Summary judgment is appropriate where
    there is no genuine issue of material fact and the movant
    is entitled to judgment as a matter of law. Fed. R. Civ. P.
    56(a); Bluestein v. Cent. Wisc. Anesthesiology, S.C., 
    769 F.3d 944
    , 951 (7th Cir. 2014). Naturally, then, if Saunders-El’s
    claim had no legal grounding, the district court not only
    was permitted to dismiss it, it was required to do so.
    Where a claim has no legal basis, there can be no genuine
    issue of material fact and the movant, by definition, is en-
    titled to judgment as a matter of law.
    Saunders-El suggests that the officers—by arguing
    that his § 1983 claim was legally insufficient—styled
    what should have been brought as a motion to dismiss as
    a motion for summary judgment, and that they did so to
    skirt Rule 12(b)’s requirement that motions to dismiss for
    failure to state a claim be made prior to the filing of an
    answer. See Fed. R. Civ. P. 12(b) (“A motion asserting
    [failure to state a claim upon which relief can be granted]
    must be made before pleading if a responsive pleading is
    No. 14-1570                                                     5
    allowed.”). But “[a] motion to dismiss made after the fil-
    ing of an answer serves the same function as a motion for
    judgment on the pleadings and may be regarded as one.”
    Schy v. Susquehanna Corp., 
    419 F.2d 1112
    , 1115 (7th Cir.
    1970). And Rule 12(h)(2) expressly authorizes a party to
    file a motion to dismiss for failure to state a claim pursu-
    ant to Rule 12(c), which permits the filing of a motion for
    judgment on the pleadings “[a]fter the pleadings are
    closed—but early enough not to delay trial.” Fed. R. Civ.
    P. 12(c), (h)(2). Therefore, Saunders-El’s effort to charac-
    terize defendants’ motion as a motion to dismiss mas-
    querading as a motion for summary judgment is futile.
    No matter the label or the rule under which defendants’
    motion was filed, the district court was required to dis-
    miss any legally untenable claims.
    On the merits, Saunders-El maintains that allegations
    of evidence fabrication can support a due process claim
    under § 1983. We agree with him. In its two-page opin-
    ion, the district court did not address our recent case law
    in this area and, instead, focused on our prior decisions
    in Fox v. Hayes, 
    600 F.3d 819
     (7th Cir. 2010); Brooks v. City
    of Chicago, 
    564 F.3d 830
     (7th Cir. 2009); and Newsome v.
    McCabe, 
    256 F.3d 747
     (7th Cir. 2001)—interpreting them
    as an edict from this court that evidence fabrication–
    based due process claims can never form the basis of a
    constitutional tort. That reading, not uncommon among
    district courts in this circuit it seems, is inaccurate and
    requires clarification. In Newsome, we established that the
    existence of a state law claim for malicious prosecution
    renders unavailable § 1983 as a vehicle for bringing a
    federal malicious prosecution claim. 
    256 F.3d at 750
    . In
    Brooks, we affirmed the dismissal of plaintiff’s allegation
    6                                                   No. 14-1570
    that “criminal proceedings were instituted against him
    based on false evidence or testimony,” remarking that
    “such a claim ‘is, in essence, one for malicious prosecu-
    tion, rather than a due process violation.’” 
    564 F.3d at 833
    (quoting McCann v. Mangialardi, 
    337 F.3d 782
    , 786 (7th
    Cir. 2003)). Finally, in Fox, we counseled against “shoe-
    horning into the more general protections of the Four-
    teenth Amendment claims for which another amendment
    provides more specific protection.” 
    600 F.3d at 841
    .
    There, we deemed the plaintiff’s allegation that the de-
    fendants violated his due process rights by causing him
    to be falsely arrested, imprisoned, and prosecuted by
    “deliberately fabricat[ing] false statements and . . . ob-
    struct[ing] justice” to be a hybrid of a malicious prosecu-
    tion claim and a Fourth Amendment claim, rather than a
    due process claim. 
    Id. at 841
    .
    None of these decisions—individually or as a collec-
    tion—stands for the proposition that fabricating evidence
    does not violate a defendant’s due process, actionable
    pursuant to § 1983. Instead, they merely establish that
    allegations that sound in malicious prosecution must be
    brought pursuant to state law. To the extent that these
    decisions may have rendered the law in this area uncer-
    tain, our more recent decisions have been explicit. In
    Whitlock v. Brueggemann, 
    682 F.3d 567
    , 580 (7th Cir. 2012),
    we expressly stated that “a police officer who manufac-
    tures false evidence against a criminal defendant violates
    due process if that evidence is later used to deprive the
    defendant of [his] liberty in some way.” We have reiterat-
    ed this position several times since then. For instance, just
    two weeks before the district court issued its opinion in
    this case, we decided Fields v. Wharrie, 
    740 F.3d 1107
     (7th
    No. 14-1570                                                       7
    Cir. 2014) (“Fields II”), wherein we made clear that fabri-
    cating evidence, including witness testimony, violates a
    clearly established constitutional right, such that quali-
    fied immunity does not shield the manufacturers of such
    evidence from liability. 
    Id. at 1114
    ; see also Petty v. City of
    Chicago, 
    754 F.3d 416
    , 422 (7th Cir. 2014) (“In Fields II, we
    stated that a prosecutor who falsely creates evidence
    against a defendant violates the defendant’s due process
    right.”). Accordingly, the district court erred in holding,
    categorically, that a claim of evidence fabrication cannot
    form the basis of a due process claim under § 1983 and
    must instead be brought as a state law malicious prosecu-
    tion claim.
    Not every act of evidence fabrication offends one’s
    due process rights, however—a point we elucidated in
    Alexander v. McKinney, 
    692 F.3d 553
    , 557 (7th Cir. 2012).
    There, the plaintiff, who had been acquitted by a jury in
    his criminal case, alleged that the prosecutor and investi-
    gators conspired “to manufacture false evidence and
    bring trumped-up charges.” 
    Id. at 554
    . We held, though,
    that the plaintiff’s acquittal foreclosed his claim:
    [In Whitlock] we held that a prosecutor act-
    ing in an investigatory capacity who fabri-
    cates evidence that is used to obtain a
    wrongful conviction violates a convicted
    defendant’s clearly established due process
    rights. There, the plaintiffs, Whitlock and
    Steidl, alleged that police officers and pros-
    ecutors used fabricated evidence, such as
    pressuring witnesses to concoct stories of
    having witnessed the crime, to convict the
    8                                                     No. 14-1570
    two of a high-profile double homicide.
    Whitlock and Steidl spent the next seven-
    teen and twenty-one years in prison, re-
    spectively . . . . In both [Zahrey v. Coffey, 
    221 F.3d 342
     (2d Cir. 2000), a case highlighted
    by Alexander] and Whitlock, the alleged lib-
    erty deprivation came not from the initial
    arrest, but from the time spent in confine-
    ment after arrest—the eight months Zahrey
    spent in jail after having his bail revoked
    and the numerous years Whitlock and
    Steidl spent in prison after being wrongful-
    ly convicted. Zahrey and Whitlock are inap-
    posite because the only liberty deprivation
    Alexander alleges stems from his initial ar-
    rest—he was released on bond that same
    day.
    Id. at 557 (citations omitted). We added: “Nor does the
    burden of appearing in court and attending trial, in and
    of itself, constitute a deprivation of liberty. It would be
    anomalous to hold that attending a trial deprives a crim-
    inal defendant of liberty without due process of law,
    when the purpose of the trial is to effectuate due process.”
    Id. at 557 n.2 (citations omitted).
    Saunders-El, released on bond following his arrest
    and acquitted at trial, falls squarely within our holding in
    Alexander, and, accordingly, cannot make out an evidence
    fabrication–based due process violation. He may have an
    Illinois state law malicious prosecution claim, the ele-
    ments of which are: (1) the defendants commenced judi-
    cial proceedings, (2) for which there was no probable
    No. 14-1570                                                        9
    cause, (3) the proceeding were instituted or continued
    maliciously, (4) the proceedings were terminated in the
    plaintiff’s favor, and (5) the plaintiff sustained an injury.
    Sneed v. Rybicki, 
    146 F.3d 478
    , 480–81 (7th Cir. 1998). But,
    as outlined above, that claim must be brought in state
    court. See Newsome, 
    256 F.3d at 750
    .
    At oral argument, counsel for Saunders-El clarified
    that—despite the opaque presentation of the issue in his
    briefing and the district court’s contrary interpretation of
    the complaint—Saunders-El’s due process claim is dual-
    pronged: he alleges both that the fabrication of evidence
    violated his constitutional rights and, separately, that the
    police officers’ failure to admit their misdeeds to the
    prosecution amounts to a withholding of exculpatory ev-
    idence in violation of Brady v. Maryland, 
    373 U.S. 83
    (1963). A criminal defendant’s Brady right is one that “the
    Constitution provides as part of its basic ‘fair trial’ guar-
    antee.” United States v. Ruiz, 
    536 U.S. 622
    , 626 (2002). “A
    Brady violation occurs when the government fails to dis-
    close evidence materially favorable to the accused.” Mos-
    ley v. City of Chicago, 
    614 F.3d 391
    , 397 (7th Cir. 2010). The
    Supreme Court has said that to demonstrate a Brady
    claim, a plaintiff must make a “showing that the favora-
    ble evidence could reasonably be taken to put the whole
    case in such a different light as to undermine confidence
    in the verdict.” Kyles v. Whitley, 
    514 U.S. 419
    , 435 (1995);
    see also Strickler v. Greene, 
    527 U.S. 263
    , 290 (1999). For that
    reason, at least the Sixth, Eighth, Tenth, and Eleventh
    Circuits have held that a trial that results in an acquittal
    can never produce a valid Brady claim. See Mosley, 
    614 F.3d at 397
     (collecting cases); Poventud v. City of New York,
    
    750 F.3d 121
    , 156 n.4 (2d Cir. 2014) (same). We have yet to
    10                                                    No. 14-1570
    definitively decide that issue in this circuit (see Mosley,
    
    614 F.3d at
    397–98; Bielanski v. Cnty. of Kane, 
    550 F.3d 632
    ,
    644–45 (7th Cir. 2008)), although we have expressed our
    doubt “that an acquitted defendant can ever establish the
    requisite prejudice for a Brady violation.” Carvajal v.
    Dominguez, 
    542 F.3d 561
    , 570 (7th Cir. 2008) (citing Strick-
    ler, 
    527 U.S. at 290
    ). We need not address that issue today,
    however, because our case law forecloses Saunders-El’s
    theory of Brady.
    Saunders-El’s Brady claim is premised on the police
    officers’ silence following their alleged fabrication of the
    evidence—the absence of which would have altered the
    prosecutor’s decision to go to trial at all, Saunders-El
    suggests. We have dealt on several occasions with similar
    Brady claims concerning accusations of police dishonesty.
    In Gauger v. Hendle, for instance, we rejected the plaintiff’s
    argument that Brady requires police to disclose truthful
    versions of statements made during interrogations, find-
    ing “the proposed extension of Brady . . . difficult even to
    understand,” since “[i]t implies that the state has a duty
    not merely to disclose but also to create truthful exculpa-
    tory evidence.” 
    349 F.3d 354
    , 360 (7th Cir. 2003), overruled
    in part on other grounds by Wallace v. City of Chicago, 
    440 F.3d 421
    , 423 (7th Cir. 2006). Later, in Sornberger v. City of
    Knoxville, we determined that Brady cannot “serve as the
    basis of a cause of action against [police] officers for fail-
    ing to disclose [the circumstances surrounding a coerced
    confession] to [a] prosecutor . . . .” 
    434 F.3d 1006
    , 1029
    (7th Cir. 2006) (citation and internal quotation marks
    omitted). As we said, “[t]he Constitution does not require
    that police testify truthfully; rather ‘the constitutional rule
    is that the defendant is entitled to a trial that will enable
    No. 14-1570                                                   11
    jurors to determine where the truth lies.’” 
    Id.
     (quoting
    Buie v. McAdory, 
    341 F.3d 623
    , 625–26 (7th Cir. 2003)).
    Consequently, in Harris v. Kuba, 
    486 F.3d 1010
    , 1017 (7th
    Cir. 2007), we upheld the dismissal of a Brady claim
    premised on an argument “that an officer is ‘suppressing’
    evidence of the truth by making [a] false statement” to a
    prosecutor,” noting that “[t]his court has already fore-
    closed this extension” of Brady. In the end, Saunders-El
    seeks to charge the officers with a Brady violation for
    keeping quiet about their wrongdoing, not for failing to
    disclose any existing piece of evidence to the prosecution.
    But our case law makes clear that Brady does not require
    the creation of exculpatory evidence, nor does it compel
    police officers to accurately disclose the circumstances of
    their investigations to the prosecution. Accordingly,
    Saunders-El’s Brady claim is more appropriately charac-
    terized as a claim for malicious prosecution—that is, a
    claim that the officers commenced his prosecution with-
    out probable cause—which cannot form the basis of a
    constitutional tort.
    In any event, it would be entirely incongruous for us
    to endorse Saunders-El’s Brady theory, in light of our
    holding in Alexander. Since, as Alexander holds, a police
    officer does not violate an acquitted defendant’s due pro-
    cess rights when he fabricates evidence, it would defy
    any semblance of logic to conclude that the same officer
    subsequently violates the defendant’s constitutional
    rights simply by remaining silent about that fabrication
    (and thus, without taking any additional affirmative ac-
    tion). In essence, Saunders-El’s so-called Brady claim is
    simply a recast of his evidence fabrication claim, and our
    12                                               No. 14-1570
    precedent establishes that such a claim is not cognizable
    on account of his acquittal.
    III. Conclusion
    For the foregoing reasons, we AFFIRM the judgment of
    the district court, although on grounds different from
    those relied on below.