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Michael J. Alexander v. Mark Mckinney

August 8, 2012


Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:10-cv-914--Richard L. Young, Chief Judge.

The opinion of the court was delivered by: Kanne, Circuit Judge.

ARGUED MAY 31, 2012

Before MANION, KANNE, and WILLIAMS, Circuit Judges.

Michael Alexander alleges that a local prosecutor, Mark McKinney, conspired with a number of agents from the Federal Bureau of Investiga- tion to manufacture false evidence and bring trumped- up charges of conspiracy to commit bribery against him. A jury acquitted Alexander of the charges, and he then brought suit against McKinney for violating his due process rights. The district court dismissed the claim, finding McKinney entitled to qualified immunity because the complaint did not identify a deprivation of a cognizable constitutional right. Because Alexander's complaint is merely an attempt to recast an untimely false arrest claim into a due process claim, an approach we have plainly rejected, we affirm.


The complaint alleges the following facts, which we take as true for purposes of reviewing the district court's grant of McKinney's motion to dismiss. See R.C. Wegman Constr. Co. v. Admiral Ins. Co., 629 F.3d 724, 726 (7th Cir. 2011). Alexander is a criminal defense attorney who was frequently critical of McKinney, a deputy prosecutor in Delaware County, Indiana. The two butted heads for a number of years over McKinney's handling of drug forfeitures in cases involving local law enforcement's drug task force. In January 2007, McKinney was elected prosecutor for the district, and upon taking office he began searching for a way to use his increased power and influence to punish his outspoken critic.

Around this same time, FBI agents began investi- gating one of Alexander's colleagues, Jeff Hinds, for possible involvement in a bribery scheme. The FBI agents also briefly investigated Alexander in 2006 to ascertain whether he too was involved in the scheme, but they abandoned that effort after Alexander denied any in- volvement. At some point, McKinney began meeting with the FBI agents, in the hopes of working together to bring false charges against Alexander. McKinney and the agents presumably struck some sort of deal, and together they agreed to renew the investigation into Alexander's involvement in the bribery scheme, the agents' previous belief that he was not involved notwith- standing. In February 2007, they succeeded in building a case against Alexander, but only by gathering false and otherwise misleading evidence. In addition to fab- ricating other unspecified evidence, Alexander alleges that the FBI agents had individuals set up meetings with him in an attempt to elicit incriminating state- ments. The individuals would wear a wire during the meetings, and the FBI agents would later alter the digital recordings obtained to exclude exculpatory segments from the recordings.

In February 2007, a special prosecutor, James Luttrell, was appointed to prosecute the case. Luttrell was unaware that he had been given false or altered evidence, and accordingly charged Alexander with conspiracy to commit bribery on February 28, 2008. A jury ultimately acquitted Alexander of the charges on March 13, 2009. On July 9, 2010, Alexander brought suit against McKinney and the FBI agents in state court, alleging broad claims under 42 U.S.C. § 1983 that McKinney and the agents conspired to violate his Fourth, Fifth, Eighth, and Fourteenth Amendment rights by manufacturing false evidence and withholding exculpatory evidence, resulting in his arrest and the ensuing criminal trial. The case was subsequently removed to federal court.

McKinney filed a motion to dismiss Alexander's second amended complaint, which the district court granted on April 12, 2011. In ruling on this motion, the court first determined that McKinney was not entitled to absolute immunity based on his role as prosecutor because, at the time Alexander alleged that McKinney conspired to manufacture false evidence against him, McKinney was performing investigatory functions.

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

("[P]rosecutors are not entitled to absolute immunity when performing 'acts of investigation or administra- tion.'") (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 270 (1993)). Nevertheless, the district court found that McKinney was entitled to qualified immunity because Alexander did not allege that he was deprived of a cog- nizable constitutional right. The only constitutional right that Alexander identified, his "due process rights to not be deprived of his liberty premised upon manu- factured false evidence," was insufficient to state a claim under our circuit's case law. Alexander filed this timely appeal.


We review the district court's grant of a motion to dismiss for failure to state a claim de novo. Zellner v. Herrick, 639 F.3d 371, 378 (7th Cir. 2011). On appeal, Alexander argues that the district court erred in finding that McKinney was entitled to qualified immunity because his complaint adequately alleged a deprivation of a constitutional right, namely that the manufacturing of false evidence resulting in his arrest and charges being brought against him deprived him of liberty in violation of his substantive due process rights. For the following reasons, we disagree.*fn1

"Qualified immunity protects public officials from liability for damages if their actions did not violate clearly established rights of which a reasonable person would have known." Fleming v. Livingston Cnty., Ill., 674 F.3d 874, 879 (7th Cir. 2012). Claims of qualified immunity involve two questions: (1) whether the official's con- duct violated a constitutional right, and (2) whether the right was clearly established at the time. Surita v. Hyde, 665 F.3d 860, 868 (7th Cir. 2011). We may consider these questions in any order, Reher v. Vivo, 656 F.3d 772, 775 ...

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