Daniel Engel v. Robert Buchan , 710 F.3d 698 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1734
D ANIEL E NGEL, in his capacity as
administrator of the Estate of Gary Engel,
Plaintiff-Appellee,
v.
R OBERT B UCHAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 10 C 3288—Milton I. Shadur, Judge.
A RGUED JANUARY 19, 2012—D ECIDED M ARCH 5, 2013
Before K ANNE, S YKES, and H AMILTON, Circuit Judges.
S YKES, Circuit Judge. Gary Engel was convicted in 1991
in Missouri state court for a drug-related kidnapping
and was sentenced to 90 years in prison. In 2010
the Missouri Supreme Court vacated the conviction based
on the State’s failure to disclose exculpatory evi-
dence—specifically, that a police investigator had paid a
key witness to testify—thus violating Engel’s due-process
2 No. 11-1734
rights under Brady v. Maryland, 373 U.S. 83 (1963). See State
ex rel. Engel v. Dormire, 304 S.W.3d 120, 127-30 (Mo. 2010)
(en banc). The State declined to retry Engel, and he was
released after having served 19 years behind bars.
Engel then brought this lawsuit alleging a host of state
and federal claims against the officers involved in his
case, the local police department that oversaw the in-
vestigation, and the United States. Of particular rele-
vance to this appeal is Engel’s claim against Robert
Buchan, a now-retired FBI agent, brought under Bivens
v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971). Engel claims that Buchan
framed him by fabricating evidence and manipulating
witnesses, then suppressed this evidence in violation
of Brady. Buchan moved to dismiss, arguing that (1) a
Bivens remedy is not available for Brady violations; and
(2) qualified immunity applies because Engel did not
plead a plausible claim for a violation of his constitu-
tional rights. The district court denied the motion, and
Buchan appealed.
We affirm. A Bivens cause of action is available for
violations of Brady. Although the Supreme Court has
cautioned against extending Bivens to new contexts, this
case meets the Court’s requirements for doing so and
is materially indistinguishable from Bivens itself. And
Engel’s complaint contains enough factual specificity
to state a plausible claim for violation of his due-process
rights under Brady. Because the Brady obligation was
well established at the time of the events at issue here
(Buchan does not argue otherwise), qualified immunity
does not apply.
No. 11-1734 3
I. Background
The following account is from Engel’s amended com-
plaint; we accept the well-pleaded factual allegations
as true at this stage of the litigation. 1 Justice v. Town of
Cicero, 577 F.3d 768, 771 (7th Cir. 2009). The facts and
legal contentions are closely related to those in a
similar case brought by Steven Manning, a former
Chicago police officer and FBI informant whose claims
against Buchan and others have been before this court
on two occasions. See Manning v. Miller, 355 F.3d 1028(7th Cir. 2004) (“Manning I”); Manning v. United States,
546 F.3d 430 (7th Cir. 2008) (“Manning II”). In 1986 Man-
ning ceased working as an informant for the FBI and
thereafter came under investigation for a number of
serious crimes, including the 1984 kidnapping of two
drug dealers in Kansas City, Missouri, and two mur-
ders in Illinois. Buchan, then an FBI agent based in Chi-
cago, was in charge of the probe. He was assisted by
Robert Quid, then a police officer for the Village of
Buffalo Grove, Illinois, where one of the murders was
committed. During the course of the Manning investiga-
tion, Buchan and Quid approached Engel, who was a
friend of Manning’s. Engel alleges that the two officers
threatened to implicate him in the kidnapping if he
did not cooperate in their investigation of Manning.
1
Engel’s counsel recently filed a suggestion of death
notifying the court that Engel has died. We have substituted
the administrator of his estate as the plaintiff-appellee in the
caption but refer to Engel as the plaintiff throughout.
4 No. 11-1734
Engel denied involvement in the kidnapping and
said he knew nothing that would help the murder in-
vestigation.
Rebuffed, Buchan and Quid made good on their
threat to implicate Engel in the kidnapping. They built
a false case against Engel and caused him to be
arrested and charged in Missouri state court with two
counts of kidnapping and related crimes. Manning, too,
was arrested and charged in the Missouri kidnapping;
he was also charged in Illinois state court for the 1990
murder of James Pellegrino. Manning was convicted on
the Missouri kidnapping charges and received a lengthy
prison sentence. Engel was tried separately in 1991 and
was convicted on all counts and sentenced to 90 years
in prison. Two years later Manning stood trial in Illinois
for the Pellegrino murder. He was convicted and sen-
tenced to death.
In 1998 the Illinois Supreme Court reversed Manning’s
murder conviction. See People v. Manning, 695 N.E.2d
423 (Ill. 1998). His Missouri kidnapping convictions were
also overturned on federal habeas review in 2002. See
Manning v. Bowersox, 310 F.3d 571 (8th Cir. 2002). Manning
then sued Buchan, Quid, and others in federal court in
the Northern District of Illinois asserting constitutional
claims under Bivens and 42 U.S.C. § 1983 and several
common-law claims under the Federal Tort Claims Act
(“FTCA”) and state law. Gary Miller, an FBI agent
who worked with Buchan on the Manning case, was
among the defendants. As relevant here, Manning
alleged that Buchan, Miller, and Quid framed him by
No. 11-1734 5
using highly suggestive lineups, inducing a jailhouse
informant to testify falsely against him, knowingly sub-
mitting false reports that Manning had confessed, and
destroying or tampering with physical evidence.
Buchan and Miller moved to dismiss based on absolute
and qualified immunity,2 but the district court denied
the motion, and we affirmed on interlocutory appeal.
Manning I, 355 F.3d at 1029. We held that Manning’s
allegations stated a valid constitutional claim based on
Brady, not just a common-law claim for conspiracy
to commit perjury, which might have been barred by
absolute immunity. Id. at 1031-33. We also held that
the agents were not protected by qualified immunity
because the constitutional right in question was clearly
established at the time of the events at issue in the
case. Id. at 1034 (“prior to the actions that gave rise
to this case, it was well established that investigators
who withhold exculpatory evidence from defendants
violate the defendant’s constitutional due process
right”). When the case returned to the district court,
Manning prevailed on his Bivens/Brady claim against
Buchan and Miller, winning a $6.5 million judgment.3
The jury entered specific findings that the agents had
2
They actually filed a motion for summary judgment, but
we treated it as a motion to dismiss because discovery had not
yet occurred. Manning v. Miller, 355 F.3d 1028, 1031 (7th
Cir. 2004) (“Manning I”).
3
Manning’s claims against Quid and the Village of Buffalo
Grove were settled.
6 No. 11-1734
fabricated evidence and concealed material exculpa-
tory evidence in both the Missouri and Illinois cases.
Manning II, 546 F.3d at 432.
Manning then suffered a sharp reversal of fortune in
his civil-rights case. After judgment was entered on the
Bivens claim against Buchan and Miller, the FTCA claim
against the United States was tried to the court. The
district court ruled against Manning on the merits of
this claim and then vacated the prior judgment against
Buchan and Miller in the light of the FTCA’s judgment
bar. See 28 U.S.C. § 2676. In Manning II we affirmed
this decision, acknowledging the harshness of the result
but nevertheless concluding that the plain language of
the FTCA’s judgment bar required the district court to
vacate the judgment on the Bivens claim. 546 F.3d at 433-38.
Engel had followed the developments in the Manning
litigation and in 2007 filed a state habeas petition
seeking to have his convictions vacated. The lower
courts denied the petition, but in 2010 the Missouri Su-
preme Court granted relief, holding that the State had
violated Brady by failing to disclose that one of its key
witnesses, a drug dealer named Anthony Mammolito,
had been paid to testify. State ex rel. Engel, 304 S.W.3d
at 122-24. The State was given 60 days to retry Engel
but chose not to do so. In 2010 Engel was released
from prison after 19 years of incarceration.
Engel then filed this suit in the Northern District of
Illinois asserting a Bivens claim against Buchan for viola-
tion of Brady; claims under § 1983 against Quid and the
Village of Buffalo Grove; RICO claims against Buchan,
No. 11-1734 7
Quid, and the Village; an FTCA claim against the United
States; and state-law claims for malicious prosecution
and intentional infliction of emotional distress. Buchan
moved to dismiss the Bivens claim, arguing that (1) a
Bivens damages remedy is not available for Brady viola-
tions; and (2) qualified immunity applies.
The district court rejected both arguments. Regarding
the availability of Bivens, the court construed our
decision in Manning I as having resolved the question;
there, we rejected the agents’ immunity arguments
and allowed Manning to proceed with his Bivens claim
for the alleged violation of Brady. 355 F.3d at 1031-33. As
for Buchan’s assertion of qualified immunity, the court
again relied on Manning I, noting that Engel’s com-
plaint alleged the same basic facts that had sufficed to
overcome the qualified-immunity claims in Manning’s
case. The court thus denied the motion to dismiss,4 and
Buchan appealed.
II. Discussion
The case is before the court on Buchan’s interlocutory
appeal from the district court’s denial of his motion to
dismiss, see F ED. R. C IV. P. 12(b)(6), based on qualified
immunity. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)
(authorizing immediate appeal of a denial of immunity).
4
Buchan also moved to dismiss Engel’s RICO claim. The
district court granted this part of the motion, and that
decision is not at issue here.
8 No. 11-1734
Our review is de novo. See Alvarado v. Litscher, 267 F.3d
648, 651 (7th Cir. 2001). The issue of qualified immunity
necessarily includes the predicate question of whether a
Bivens remedy is available in this context at all. See
Wilkie v. Robbins, 551 U.S. 537, 548-49 (2007); Carvajal v.
Dominguez, 542 F.3d 561, 566 (7th Cir. 2008). Buchan
argues that (1) the Bivens remedy should not be ex-
tended to Brady violations; and (2) even if Bivens ap-
plies, he is entitled to qualified immunity because the
complaint lacks the factual specificity required to state
a plausible violation of Engel’s constitutional rights.
A. Bivens Remedy for Brady Violations
Our initial question is whether a violation of Brady by
an FBI agent may be redressed in a cause of action for
damages under the doctrine announced in Bivens. As
a threshold matter, the parties dispute whether our
decision in Manning I already resolved this question.
Engel relies on the following passage contained in a
footnote in Manning I:
Manning brings this claim against federal investigators
under the authority of Bivens v. Six Unknown Named
Agents, 403 U.S. 388 (1971). Although this Circuit
has not explicitly recognized that Bivens may be
employed to bring a Brady claim, we have recog-
nized that Bivens may be used to bring claims for
violations of procedural and substantive due process.
See Alejo v. Heller, 328 F.3d 930 (7th Cir. 2003); Hoosier
Bancorp of Ind. v. Rasmussen, 90 F.3d 180 (7th Cir. 1996).
No. 11-1734 9
We have also entertained the use of a Bivens cause
of action where the plaintiff complains that law en-
forcement officers created false evidence to be used
at trial. Hammond v. Kunard, 148 F.3d 692, 694-95 (7th
Cir. 1998).
355 F.3d at 1031 n.1. Engel reads this language as a
holding that Bivens is available to redress a violation of
Brady. Buchan counters that the footnote is only an as-
sumption to that effect; he also notes that Manning I was
decided before the Supreme Court’s decision in Wilkie
and our more recent decision in Carvajal, both of which,
he contends, suggest that Bivens is not available to
remedy a Brady violation.
Engel is correct on this point. The passage we have
quoted can only be understood as a holding. The proce-
dural posture of Manning I was identical to the present
case, and indeed one of the issues raised in Manning I
was whether a Bivens action is available for a Brady viola-
tion. The Bivens question was briefed in Manning I,5 and
5
Buchan now suggests that the only issue he briefed in
Manning I was whether to extend Brady to law-enforcement
officers (as opposed to just prosecutors) and not whether
Bivens is available for Brady violations. To the contrary, an
entire section of Buchan’s opening brief in Manning I was
titled “There Is No Sound Basis for Authorizing Bivens
Actions Based on Brady Claims Against Law Enforcement
Officers,” and his very first argument in that section discusses
the Supreme Court’s reluctance to extend Bivens to new con-
(continued...)
10 No. 11-1734
its resolution was a necessary predicate for our rejection
of the immunity claims raised by Buchan and Miller on
interlocutory appeal. Manning quite obviously could
not have proceeded with his Brady claims against the
two FBI agents if he lacked a cause of action, which
could only arise under Bivens. To affirm the denial of the
motion to dismiss in that case was necessarily to find
a valid cause of action, so we cannot credit Buchan’s
argument that Manning I only assumed that Bivens is
available to remedy Brady violations. Indeed, the case
proceeded to trial and a $6.5 million judgment was
entered against the two agents on the Bivens/Brady
claim, see Manning II, 546 F.3d at 432, which could not
have occurred if our discussion of Bivens was under-
stood as a nonbinding assumption.
We acknowledge, however, that the footnote in
Manning I gave the matter only cursory attention.6 And
Buchan is right that recent developments in the Supreme
Court’s Bivens jurisprudence require a more complete
analysis of the question. We undertake that analysis
here, starting with Bivens itself.
5
(...continued)
texts. See Br. for Appellants in Manning I, available at 2003
WL 22721335, at *34.
6
The cases cited in the Manning I footnote do not directly
address whether a Bivens action for damages is available for
violations of Brady. See Manning I, 355 F.3d at 1031 n.1 (citing
Alejo v. Heller, 328 F.3d 930 (7th Cir. 2003); Hammond v. Kunard,
148 F.3d 692, 694-95 (7th Cir. 1998); Hoosier Bancorp of Ind.
v. Rasmussen, 90 F.3d 180 (7th Cir. 1996)).
No. 11-1734 11
In Bivens the Supreme Court recognized an implied
cause of action for damages against federal officers to
redress a constitutional violation—there, an alleged
violation of the Fourth Amendment by federal
law-enforcement agents in connection with a warrantless
search and seizure. 403 U.S. at 389-90. The Court did so
notwithstanding the absence of a statutory right of
action, finding “no special factors counseling hesitation
in the absence of affirmative action by Congress,” id. at
396, and no express statement from Congress that relief
should not be available under the circumstances, id. at
397; see also Vance v. Rumsfeld, 701 F.3d 193, 198 (7th Cir.
2012) (en banc) (“Bivens was the first time the Supreme
Court created a non-statutory right of action for damages
against federal employees.”). The decision rested on a
general premise that “’where federally protected rights
have been invaded, it has been the rule from the
beginning that courts will be alert to adjust their
remedies so as to grant the necessary relief.’ ” Id. at 392
(quoting Bell v. Hood, 327 U.S. 678, 684 (1946)).
Bivens was decided in 1971, and during the next dec-
ade, the Court twice extended its holding to new con-
texts. In Davis v. Passman, 442 U.S. 228, 230 (1979), the
Court authorized a Bivens cause of action for discrim-
ination in public employment in violation of the Fifth
Amendment. In Carlson v. Green, 446 U.S. 14, 18 (1980),
the Court recognized a Bivens claim against federal
prison officials for Eighth Amendment violations. The
FTCA would have provided relief in Carlson, but the
Court nonetheless found the Bivens remedy available
because Congress had not “explicitly declared” that the
12 No. 11-1734
FTCA was “to be a substitute for recovery directly
under the Constitution and viewed as equally effective.”
Id. at 18-19.
Since Carlson, however, the Court has not authorized
a Bivens action in any other context. Rather, the Court’s
decisions have refined and narrowed the doctrine
in several important respects. First, the Court has identi-
fied specific contexts in which “special factors” counsel
against extending the Bivens remedy—factors often
keyed to concerns about the special status of the
federal defendants or sensitivity to the nature of the
governmental activity involved. See, e.g., Corr. Servs. Corp.
v. Malesko, 534 U.S. 61, 63 (2001) (no Bivens action
against private correctional corporation acting under
color of federal law); FDIC v. Meyer, 510 U.S. 471, 473
(1994) (no Bivens action against a federal agency); United
States v. Stanley, 483 U.S. 669, 683-84 (1987) (no Bivens
action for injuries arising out of or in the course of
activity incident to military service); Chappell v. Wallace,
462 U.S. 296, 299-302 (1983) (same). Second, the Court
has explained that the existence of a comprehensive,
alternative remedial scheme may preclude a Bivens
remedy even where the alternative relief is imperfect
compared to Bivens and Congress has not explicitly
declared it to be a substitute. See, e.g., Schweiker v.
Chilicky, 487 U.S. 412, 414 (1988) (no Bivens action for
an alleged due-process violation in connection with the
denial of disability benefits because relief is available
under a comprehensive statutory scheme); Bush v. Lucas,
462 U.S. 367, 368 (1983) (no Bivens action where a
No. 11-1734 13
federal employer commits a First Amendment viola-
tion because relief is available under a comprehensive
statutory scheme).
The Court synthesized these refinements in Bivens
doctrine in Wilkie, 551 U.S. at 541, which involved a
Fifth Amendment claim by a landowner who alleged
that federal employees had engaged in a campaign of
harassment and intimidation to induce him to give an
easement over his property. The Court distilled its
Bivens jurisprudence into a two-step framework for
evaluating whether to authorize an implied right of
action for damages against a federal official for a con-
stitutional violation:
[O]ur consideration of a Bivens request follows a
familiar sequence, and on the assumption that
a constitutionally recognized interest is adversely
affected by the actions of federal employees, the
decision whether to recognize a Bivens remedy may
require two steps. In the first place, there is the ques-
tion whether any alternative, existing process for
protecting the interest amounts to a convincing
reason for the Judicial Branch to refrain from pro-
viding a new and freestanding remedy in damages.
But even in the absence of an alternative, a Bivens
remedy is a subject of judgment: “the federal courts
must make the kind of remedial determination that
is appropriate for a common-law tribunal, paying
particular heed, however, to any special factors coun-
seling hesitation before authorizing a new kind
of federal litigation.”
Id. at 550 (citation omitted) (quoting Bush, 462 U.S. at 378).
14 No. 11-1734
Applying this two-step inquiry, the Court declined to
extend Bivens to the landowner’s property-rights claim.
At step one—the evaluation of alternative reme-
dies—the Court observed that the landowner had
several avenues of judicial and administrative redress
for much of the wrongdoing he alleged. Id. at 554. But
that was not enough to resolve the matter; the Court
said “the forums of defense and redress open [to the
landowner] are a patchwork, an assemblage of state
and federal, administrative and judicial benches ap-
plying regulations, statutes, and common law rules.” Id.;
see also id. at 555 (“The whole here is greater than the
sum of its parts.”). So the Court moved on to step two of
the analysis and considered whether “special factors”
counseled against recognizing an implied right of action.
At this step the Court concluded that the contours of
the claimed constitutional violation were too undefined
to support a judicially created remedy:
[T]o create a new Bivens remedy . . . on a theory of
retaliation for exercising [the] property right to ex-
clude, or . . . a general theory of unjustifiably bur-
dening [the] rights [of] a property owner, raises a
serious difficulty of devising a workable cause of
action. A judicial standard to identity illegitimate
pressure going beyond legitimately hard bargaining
would be endlessly knotty to work out, and a gen-
eral provision for tortlike liability when Government
employees are unduly zealous in pressing a govern-
mental interest affecting property would invite an
onslaught of Bivens actions.
Id. at 562.
No. 11-1734 15
In Minneci v. Pollard, 132 S. Ct. 617 (2012), the Court
reaffirmed the two-step analysis announced in Wilkie,
essentially treating it “as a restatement of the governing
principles.” Vance, 701 F.3d at 199. Applying the Wilkie
method, the Court in Minneci declined to extend Bivens
to a prisoner’s suit against employees of a privately
operated prison for alleged violations of the Eighth
Amendment in the provision of medical care. 132 S. Ct.
at 626. Minneci was actually resolved at step one of the
process; the Court found that state tort remedies were
available and adequate to redress the prisoner’s claim
for improper medical care. Id. at 627.
We recently addressed the Supreme Court’s Bivens
jurisprudence in our en banc decision in Vance, issued
just a few months ago. There, we noted that the Court
“has not created [a Bivens right of action] during the
last 32 years” and indeed has “reversed more than a
dozen appellate decisions that had created new actions
for damages.” 701 F.3d at 198. This suggested, we said,
that “[w]hatever presumption in favor of a Bivens-
like remedy may once have existed has long since
been abrogated.” Id. Following the analysis articulated
in Wilkie, we declined to authorize a Bivens remedy
against persons in the military chain of command for
torture claims by U.S. citizens held in military detention
overseas. Id. at 198-205.
With this legal background in place, we can now apply
the refined analysis established in Wilkie for evaluating
new Bivens claims, placing no thumb on the scale in
favor of authorizing a remedy. Our first question under
16 No. 11-1734
the Wilkie formula (and the only real point of contention
between the parties) is whether alternative remedies
exist to redress the alleged violation of Engel’s due-
process rights, and whether those alternatives amount to
a “convincing reason” to refrain from extending Bivens
here. The alternatives need not provide complete relief
to preclude the Bivens remedy, Chilicky, 487 U.S. at 425,
and where Congress has created an “elaborate, compre-
hensive scheme” to address a certain kind of constitu-
tional violation, Bivens will generally be unavailable
even if that scheme leaves remedial holes, Bush, 462 U.S.
at 385. Similarly, where the alternative remedies are the
product of state law, they need not be “perfectly congru-
ent” with the Bivens remedy; rather, the question is
whether the alternatives “provide roughly similar incen-
tives for potential defendants to comply with [the con-
stitutional requirements] while also providing roughly
similar compensation to victims of violations.” Minneci,
132 S. Ct. at 625. Mere “patchworks” of remedies arising
from an array of different legal sources may be insuf-
ficient to foreclose Bivens. Wilkie, 551 U.S. at 554.
Buchan first argues that the Brady obligation itself—that
is, the requirement that prosecutors and police officers
disclose exculpatory material to the defense, Brady, 373
U.S. at 87—is adequate in itself to secure the due-process
rights of criminal defendants. This argument misunder-
stands the nature of the government’s duty under
Brady. The Brady obligation is not a mere prophylactic
designed to protect a constitutional right, it is itself
a component of the due process owed to criminal defen-
dants under the Constitution. Id. (“[T]he suppression by
No. 11-1734 17
the prosecution of evidence favorable to an accused
upon request violates due process where the evidence
is material either to guilt or to punishment . . . .”).7 The
failure of the government’s agents to adhere to the
Brady obligation is the very constitutional wrong that
wants for redress, so it cannot be right to say that the
duty of disclosure is itself a sufficient remedy for the
constitutional violation. The disclosure rule cannot be
both the duty and the remedy for its violation.
Buchan next suggests that habeas corpus is an
adequate alternative remedy that defeats Engel’s effort to
invoke Bivens in this context. Because the harm at stake
in a Brady violation is an unjust conviction, and a defen-
dant who suffers a violation of Brady may use habeas
to obtain relief from that conviction, Buchan argues that
a Bivens remedy should not be available here. But the
habeas remedy is limited to securing prospective
relief from unlawful incarceration, halting the ongoing
harm from a conviction prejudicially tainted by a con-
stitutional violation—a powerful remedy to be sure,
but not a compensatory one. The habeas writ is akin
to an injunction; it cannot provide a retrospective com-
pensatory remedy. Stated differently, habeas corpus
is categorically incapable of compensating the victim of
7
The Supreme Court has clarified that Brady applies whether
or not the defense requests the evidence; the Brady dis-
closure of duty extends to impeachment evidence, and the
disclosure duty includes exculpatory evidence known only
to the police. See Strickler v. Greene, 527 U.S. 263, 280-81 (1999).
18 No. 11-1734
a Brady violation for the constitutional injury he has
suffered. The Supreme Court reiterated in Minneci that
the alternative remedy need not be “perfectly congru-
ent” to Bivens but should provide “roughly similar in-
centives” for compliance with constitutional require-
ments and “roughly similar compensation to victims
of violations.” Minneci, 132 S. Ct. at 625. Habeas corpus
may operate as an indirect incentive to induce constitu-
tional compliance, but it cannot perform a compensatory
function.8
It is true that in some contexts the availability of
habeas corpus weighs against authorizing a Bivens
remedy, but that is usually so when habeas is one
element of a broader, integrated remedial scheme. See,
e.g., Mirmehdi v. United States, 685 F.3d 975, 981-82 (9th
Cir. 2012) (declining to recognize a Bivens remedy for
claimed constitutional violations in the immigration
context in light of the availability of habeas corpus as
one component of a comprehensive adjudicative and
remedial process); Rauschenberg v. Williamson, 785 F.2d
985, 987 (11th Cir. 1986) (declining to recognize a Bivens
remedy in a suit for damages against a parole officer
8
In Carvajal v. Dominguez, 542 F.3d 561, 570-71 (7th Cir. 2008),
we expressed doubt about the availability of Bivens in the
context of a Brady violation, briefly suggesting that the Brady
disclosure obligation itself, and the availability of process
to overturn the conviction, might suffice as alternatives.
Carvajal was decided on other grounds, however, so this
short discussion was dicta.
No. 11-1734 19
in light of the availability of habeas corpus in addition
to other administrative remedies).
Finally, Buchan points to the existence of two
statutory remedies that provide public compensation
for wrongful incarceration in certain limited circum-
stances. In the case of a wrongful conviction for a
federal crime, the Court of Federal Claims has jurisdic-
tion under 28 U.S.C. § 1495 to award up to $50,000 per
year of incarceration (or $100,000 per year in the case
of death sentences) if the defendant can show that
“[h]is conviction has been reversed or set aside on the
ground that he is not guilty of the offense of which he
was convicted.” 28 U.S.C. § 2513(a)(1). And Missouri
has adopted a limited wrongful-conviction statute
allowing for compensation of up to $50 per day of wrong-
ful incarceration, but only if the defendant is “deter-
mined to be actually innocent of such crime solely as a
result of DNA profiling analysis.” M O . R EV. STAT. § 650.058.
Neither of these statutes can provide relief to Engel.
He was not convicted of a federal crime, and his Missouri
convictions were vacated on the basis of a due-process
violation, not “actual innocence,” much less actual inno-
cence determined solely by DNA analysis. Still, the ex-
istence of a statutory compensatory remedial scheme—
even if unavailable to Engel—at least addresses the kind
of remedy that Bivens would provide (in contrast to
habeas corpus), and depending on the degree of legisla-
tive attention in general, this might count as a reason
not to extend Bivens to this context.
20 No. 11-1734
But Buchan has given us little to support his argu-
ment in this regard. He mentions only the federal and
Missouri statutes, hardly enough on which to base a
conclusion that remedial alternatives exist to com-
pensate victims of Brady violations by federal agents. 9
We are independently aware that about half the
states provide by statute for some form of public compen-
sation for wrongful convictions, though the coverage
of these statutes is limited and varies widely. See Justin
Brooks & Alexander Simpson, Find the Cost of Freedom:
The State of Wrongful Conviction Compensation Statutes
Across the Country and the Strange Legal Odyssey of Timothy
Atkins, 49 S AN D IEGO L. R EV. 627, 633 n.59 (2012) (col-
lecting state statutes). And as we have noted, Buchan
has made no effort to demonstrate as a general matter
that the various statutory remedies—where they exist—
reasonably approximate Bivens. That is, it is far from clear
that the existing statutory remedies for wrongful convic-
tions provide “roughly similar incentives” for constitu-
tional compliance and “roughly similar compensation”
for victims of Brady violations. Minneci, 132 S. Ct. at 625.
That some jurisdictions provide public compensation
for some wrongful convictions does not definitively fore-
close a Bivens remedy here. At most, the legal land-
scape resembles the “patchwork” of remedies that was
insufficient, without more, to resolve the Bivens question
9
Buchan does not argue that the FTCA or state common-law
remedies are adequate alternatives to Bivens. See Minneci
v. Pollard, 132 S. Ct. 617, 624-26 (2012).
No. 11-1734 21
at step one in Wilkie. 551 U.S. at 554. Accordingly, we
cannot conclude that alternative compensatory process
exists to remedy violations of the Brady right, much
less that the alternatives amount to a “convincing rea-
son” not to authorize a Bivens remedy.
We proceed, then, to step two of the Wilkie frame-
work, which requires us to consider whether “any
special factors counsel[] hesitation before authorizing a
new kind of federal litigation.” Id. at 550 (quotation
marks omitted). Buchan has not identified any special
factors, and we ourselves see none. As we have noted,
this part of the analysis has tended to focus on con-
cerns about judicial intrusion into the sensitive work
of specific classes of federal defendants—military
officials in Stanley and Vance, for example; immigration
authorities in Mirmehdi; and federal agencies in Meyer—
and sometimes also concerns about doctrinal unwork-
ability, as in Wilkie.
Here, in contrast, an FBI agent stands accused of vio-
lating the constitutional rights of a person targeted for
a criminal investigation and prosecution. This paral-
lels Bivens itself. In all material respects, the Brady claim
at issue in this case is very much like the Fourth Amend-
ment claim in Bivens. We are hard-pressed to identify
a distinction that makes a difference. A Bivens/Brady
claim presents no great problem of judicial interference
with the work of law enforcement, certainly no greater
than the Fourth Amendment claim in Bivens. The
legal standards for adjudicating the claim are well estab-
lished and easily administrable. A sound common-law
remedial determination should also take account of the
22 No. 11-1734
general problem of overdeterrence, but we cannot see
how prosecutors and law-enforcement officers could
be “overdeterred” in the disclosure of exculpatory
material to criminal defendants. Buchan has not argued
that authorizing a damages remedy for Brady violations
by federal agents will have a deleterious effect on law en-
forcement, nor has he tried to distinguish a Brady claim
from the Fourth Amendment claim at issue in Bivens.
Instead, he has argued with great emphasis that the
ground has shifted under Bivens, shaking its doctrinal
foundations. No doubt that is true, as we have previously
acknowledged. See Robinson v. Sherrod, 631 F.3d 839, 842
(7th Cir. 2011) (“Bivens is under a cloud, because it is
based on a concept of federal common law no longer in
favor in the courts: the concept that for every right con-
ferred by federal law the federal courts can create a
remedy above and beyond the remedies created by the
Constitution, statutes, or regulations.”). But shaky or no,
Bivens remains the law, and we are not free to ignore it.
As recently as last year, the Supreme Court reaffirmed
the standards for resolving new Bivens questions.
Minneci, 132 S. Ct. at 621. Applying those standards
here, we conclude, consistent with our decision in
Manning I, that a Bivens cause of action is available for
a Brady violation committed by a federal law-enforce-
ment agent in connection with a state criminal prosecution.
B. Qualified Immunity
Buchan also argues that even if Engel has a cause of
action under Bivens, qualified immunity applies because
No. 11-1734 23
the complaint does not contain sufficiently specific
factual allegations to plausibly state a claim for violation
of Engel’s due-process rights. Qualified immunity “pro-
tects government officials ‘from liability for civil
damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of
which a reasonable person would have known.’ ” Pearson
v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). To overcome a
defense of qualified immunity at the pleading stage, the
complaint must contain sufficient factual allegations to
show that the defendant’s conduct violated a constitu-
tional right and that the right was clearly established at
the time of the alleged violation. Id. at 232 (citing Saucier
v. Katz, 533 U.S. 194, 201 (2001)).
It is beyond dispute that the Brady right was well estab-
lished at the time of the events set forth in Engel’s com-
plaint. See Newsome v. McCabe, 256 F.3d 747, 752-53 (7th
Cir. 2001) (“The Brady principle was announced in
1963, and we applied it in Jones [v. City of Chicago, 856
F.2d 985 (7th Cir. 1988)] to affirm a hefty award of
damages against officers who withheld exculpatory
information in 1981.”). Buchan does not argue otherwise.
Instead, he maintains that Engel’s complaint lacks suffi-
cient factual content to state a claim for a Brady viola-
tion under the pleading standard announced in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and
Ashcroft v. Iqbal, 556 U.S. 662 (2009).
To survive a motion to dismiss under that standard,
Engel’s complaint must “state a claim to relief that is
24 No. 11-1734
plausible on its face,” Twombly, 550 U.S. at 570, which
in turn requires sufficient factual allegations to permit
the court to draw a reasonable inference that the
defendant is liable for the misconduct alleged, id. at 556.
“Where a complaint pleads facts that are ‘merely con-
sistent with’ a defendant’s liability, it ‘stops short of the
line between possibility and plausibility of entitlement
to relief.’ ” Iqbal, 556 U.S. at 678 (quoting Twombly, 550
U.S. at 557) (internal quotation marks omitted). Purely
legal conclusions are insufficient. Id. (“Threadbare
recitals of the elements of the cause of action, supported
by mere conclusory statements, do not suffice.”).
The Twombly/Iqbal “plausibility” determination is a
“context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.” Id.
at 679. Plausibility is “not akin to a ‘probability require-
ment,’ ” but the plaintiff must allege “more than a sheer
possibility that a defendant has acted unlawfully.” Id. at
678. We have interpreted the plausibility standard to
mean that “the plaintiff must give enough details about
the subject-matter of the case to present a story that
holds together.” Swanson v. Citibank, N.A., 614 F.3d 400,
404 (7th Cir. 2010). “In other words, the court will ask
itself could these things have happened, not did they
happen.” Id.Buchan argues that Engel makes only conclusory al-
legations with respect to his central claim of wrong-
doing—as, for example, when he alleges that “[a]ll
of the evidence introduced against Plaintiff at his trial
was the product of intentional misconduct by the Defen-
No. 11-1734 25
dants, who fabricated evidence, manipulated witnesses,
and withheld exculpatory evidence.” Were this the
entirety of the factual allegations in the complaint,
Buchan might have a point. “Intentional misconduct,”
“fabricated evidence,” and “manipulated witnesses” are
highly generalized factual allegations, and to allege
that the defendants “withheld exculpatory evidence”
is basically to state the definition of a Brady claim.
But Iqbal makes clear that “legal conclusions can
provide the framework of a complaint” so long as
they are “supported by factual allegations,” Iqbal, 556
U.S. at 679, and that is the case here. Read as a whole,
Engel’s complaint easily contains enough specific
factual allegations to state a plausible claim for violation
of his due-process rights under Brady. The complaint
describes at length and in detail the history we have
recited above, describing how Buchan and Quid first
targeted Manning, framed him for the kidnapping in
Missouri and the Pellegrino murder in Illinois, and then
approached Engel. The complaint alleges that the de-
fendants “informed Plaintiff that they were going to
implicate him in the Missouri kidnaping,” and that “if he
was willing to implicate Mr. Manning in the crimes
they were investigating, then Plaintiff would be dealt
with leniently.” The complaint further alleges that the
defendants “ignored Plaintiff’s protestations of inno-
cence and noninvolvement,” and goes on to describe
Engel’s prosecution and conviction, and also Manning’s,
and then explains how and why their convictions were
overturned.
26 No. 11-1734
With respect to Engel in particular, the complaint
alleges that the Missouri Supreme Court “concluded
that material, exculpatory evidence had been withheld
from Plaintiff in violation of his constitutional rights.”
The suppressed exculpatory evidence “included, but
was not limited to, previously-undisclosed evidence
that the key witness against Plaintiff had received
monetary payments in exchange for his testimony.” 1 0
The complaint also alleges that the defendants “fab-
ricated false reports and other evidence, thereby mis-
leading and misdirecting the criminal prosecution of
Plaintiff,” and “engaged in . . . unduly suggestive iden-
tification procedures.” These allegations, read in con-
text with the rest of the complaint, surpass the plausi-
bility threshold of Twombly and Iqbal.
Buchan insists that the complaint lacks specificity
because the allegations often refer to “the [d]efendants”
generally, without differentiating between them. See
Grieveson v. Anderson, 538 F.3d 763, 778 (7th Cir. 2008)
(plaintiffs may not rely on “[v]ague references to a
group of ‘defendants,’ without specific allegations tying
the individual defendants to the alleged unconstitu-
tional conduct”). But reading the allegations sensibly
and as a whole, there is no genuine uncertainty
10
Buchan objects that the complaint does not specify who this
witness actually was, but he also acknowledges that he under-
stands this allegation to refer to Anthony Mammolito, who
was specifically identified by the Missouri Supreme Court as
the witness who was paid to testify.
No. 11-1734 27
regarding who is responsible for what. Wherever
the complaint mentions specific misconduct in Engel’s
investigation and prosecution—withheld evidence, ma-
nipulated testimony, fabricated reports, suggestive iden-
tification procedures, and so on—there can be no
doubt that it refers to Buchan and Quid, the two law-
enforcement officers involved in the case. And they are
accused of acting jointly. The complaint alleges that
Buchan and Quid approached Engel together and threat-
ened to implicate him in the Missouri kidnapping; the
natural inference is that the misconduct that followed
during the investigation and prosecution was commit-
ted by these two as well. The only other parties named
as defendants—the Village of Buffalo Grove and the
United States—are nonpersonal entities, so it would
make no sense to think the complaint was referring to
them when describing these specific, personal actions.
Engel’s complaint is therefore quite different from the
one in Grieveson, where a prisoner asserted § 1983
claims against seven different officers arising from
seven different attacks without tying any particular
officer to any particular injury. See id. at 777-78.
Accordingly, we agree with the district court that
Engel’s complaint states a plausible claim for violation
of his due-process rights under Brady. It is undisputed
that the Brady right was well established at the time of
the events alleged in the complaint. Buchan is not
entitled to qualified immunity.
28 No. 11-1734
III. Conclusion
For the foregoing reasons, we conclude that a cause
of action under Bivens is available for a violation of
Brady by a federal law-enforcement agent. Engel’s com-
plaint contains sufficient factual allegations to state a
plausible claim for violation of his due-process rights
under Brady. Because the Brady right was well estab-
lished at the time of the alleged violation, Buchan is not
entitled to qualified immunity.
A FFIRMED.
3-5-13