                             In the

United States Court of Appeals
               For the Seventh Circuit

No. 11-3539

M ICHAEL J. A LEXANDER,
                                                 Plaintiff-Appellant,
                                 v.

M ARK M C K INNEY,
                                                Defendant-Appellee.


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


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




 Before M ANION, K ANNE, and W ILLIAMS, Circuit Judges.
  K ANNE, Circuit Judge. Michael Alexander alleges that
a local prosecutor, Mark McKinney, conspired with a
number of agents from the Federal Bureau of Investiga-
tion to manufacture false evidence and bring trumped-
up charges of conspiracy to commit bribery against
him. A jury acquitted Alexander of the charges, and he
then brought suit against McKinney for violating his
due process rights. The district court dismissed the
claim, finding McKinney entitled to qualified immunity
2                                               No. 11-3539

because the complaint did not identify a deprivation of a
cognizable constitutional right. Because Alexander’s
complaint is merely an attempt to recast an untimely
false arrest claim into a due process claim, an ap-
proach we have plainly rejected, we affirm.


                     I. B ACKGROUND
  The complaint alleges the following facts, which we
take as true for purposes of reviewing the district court’s
grant of McKinney’s motion to dismiss. See R.C. Wegman
Constr. Co. v. Admiral Ins. Co., 629 F.3d 724, 726 (7th Cir.
2011). Alexander is a criminal defense attorney who
was frequently critical of McKinney, a deputy prosecutor
in Delaware County, Indiana. The two butted heads for
a number of years over McKinney’s handling of drug
forfeitures in cases involving local law enforcement’s
drug task force. In January 2007, McKinney was elected
prosecutor for the district, and upon taking office he
began searching for a way to use his increased power
and influence to punish his outspoken critic.
  Around this same time, FBI agents began investi-
gating one of Alexander’s colleagues, Jeff Hinds, for
possible involvement in a bribery scheme. The FBI agents
also briefly investigated Alexander in 2006 to ascertain
whether he too was involved in the scheme, but they
abandoned that effort after Alexander denied any in-
volvement. At some point, McKinney began meeting
with the FBI agents, in the hopes of working together to
bring false charges against Alexander. McKinney and
No. 11-3539                                             3

the agents presumably struck some sort of deal, and
together they agreed to renew the investigation into
Alexander’s involvement in the bribery scheme, the
agents’ previous belief that he was not involved notwith-
standing. In February 2007, they succeeded in building a
case against Alexander, but only by gathering false
and otherwise misleading evidence. In addition to fab-
ricating other unspecified evidence, Alexander alleges
that the FBI agents had individuals set up meetings
with him in an attempt to elicit incriminating state-
ments. The individuals would wear a wire during the
meetings, and the FBI agents would later alter the digital
recordings obtained to exclude exculpatory segments
from the recordings.
  In February 2007, a special prosecutor, James Luttrell,
was appointed to prosecute the case. Luttrell was
unaware that he had been given false or altered evidence,
and accordingly charged Alexander with conspiracy to
commit bribery on February 28, 2008. A jury ultimately
acquitted Alexander of the charges on March 13, 2009.
On July 9, 2010, Alexander brought suit against
McKinney and the FBI agents in state court, alleging
broad claims under 42 U.S.C. § 1983 that McKinney and
the agents conspired to violate his Fourth, Fifth, Eighth,
and Fourteenth Amendment rights by manufacturing
false evidence and withholding exculpatory evidence,
resulting in his arrest and the ensuing criminal trial.
The case was subsequently removed to federal court.
  McKinney filed a motion to dismiss Alexander’s
second amended complaint, which the district court
4                                               No. 11-3539

granted on April 12, 2011. In ruling on this motion, the
court first determined that McKinney was not entitled
to absolute immunity based on his role as prosecutor
because, at the time Alexander alleged that McKinney
conspired to manufacture false evidence against him,
McKinney was performing investigatory functions.
See Lewis v. Mills, 677 F.3d 324, 330 (7th Cir. 2012)
(“[P]rosecutors are not entitled to absolute immunity
when performing ‘acts of investigation or administra-
tion.’ ”) (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 270
(1993)). Nevertheless, the district court found that
McKinney was entitled to qualified immunity because
Alexander did not allege that he was deprived of a cog-
nizable constitutional right. The only constitutional
right that Alexander identified, his “due process rights
to not be deprived of his liberty premised upon manu-
factured false evidence,” was insufficient to state a
claim under our circuit’s case law. Alexander filed this
timely appeal.


                       II. A NALYSIS
  We review the district court’s grant of a motion to
dismiss for failure to state a claim de novo. Zellner v.
Herrick, 639 F.3d 371, 378 (7th Cir. 2011). On appeal,
Alexander argues that the district court erred in
finding that McKinney was entitled to qualified
immunity because his complaint adequately alleged a
deprivation of a constitutional right, namely that the
manufacturing of false evidence resulting in his arrest
and charges being brought against him deprived him
No. 11-3539                                                  5

of liberty in violation of his substantive due process
rights.1 For the following reasons, we disagree.
   “Qualified immunity protects public officials from
liability for damages if their actions did not violate clearly
established rights of which a reasonable person would
have known.” Fleming v. Livingston Cnty., Ill., 674 F.3d
874, 879 (7th Cir. 2012). Claims of qualified immunity
involve two questions: (1) whether the official’s con-
duct violated a constitutional right, and (2) whether the
right was clearly established at the time. Surita v. Hyde,
665 F.3d 860, 868 (7th Cir. 2011). We may consider
these questions in any order, Reher v. Vivo, 656 F.3d 772,
775 (7th Cir. 2011), and a negative answer to either ques-
tion entitles the official to the defense, Hanes v. Zurick,
578 F.3d 491, 493 (7th Cir. 2009).
  Before analyzing whether Alexander’s complaint
alleges a deprivation of a cognizable constitutional
right, we think it helpful to highlight the claims he is not
bringing. First, although the crux of his complaint
alleges that—in light of the withheld and altered evi-
dence—he was arrested without probable cause,
Alexander does not bring a Fourth Amendment false
arrest claim because such a claim would be untimely.
In Indiana, there is a two-year statute of limitations
for false arrest claims under § 1983, accruing from the
date of arrest. See Snodderly v. R.U.F.F. Drug Enforce-
ment Task Force, 239 F.3d 892, 896 (7th Cir. 2001). Alexander


1
  Because McKinney concedes in his reply brief that he was
not entitled to absolute immunity, we do not address the issue.
6                                              No. 11-3539

was arrested on February 28, 2008, but did not file suit
until July 9, 2010—well after the statute of limitations
expired. At oral argument, Alexander’s counsel acknowl-
edged that the claim was not brought earlier for
strategic reasons: McKinney was still the prosecutor,
and “[N]obody was going to go back into that snake pit,
file this against the sitting prosecutor after [Alexander]
had already been acquitted.”
  Nor did Alexander bring a claim for malicious pros-
ecution under Indiana state law. See Golden Years Home-
stead, Inc. v. Buckland, 557 F.3d 457, 462 (7th Cir. 2009)
(“Under Indiana law, ‘the elements of a malicious prosecu-
tion action are: (1) the defendant instituted or caused to
be instituted an action against the plaintiff; (2) the de-
fendant acted maliciously in so doing; (3) the defendant
had no probable cause to institute the action; and
(4) the original action was terminated in the plaintiff’s
favor.’ ”) (brackets omitted) (quoting Crosson v. Berry,
829 N.E.2d 184, 189 (Ind. Ct. App. 2005)); see also 19
Indiana Law Encyclopedia Malicious Prosecution § 1
(2012). Although Indiana provides a state law claim for
malicious prosecution, the state grants broad immunity
to governmental employees from the claim. See Ind. Code
§ 34-13-3-3 (stating that a governmental employee
acting within the scope of employment is not liable for
losses resulting from “[t]he initiation of a judicial or an
administrative proceeding”); see also Butt v. McEvoy,
669 N.E.2d 1015, 1018 (Ind. Ct. App. 1996) (construing
predecessor statute with identical language to find
police officer accused of knowingly providing false in-
formation immune from malicious prosecution claim).
No. 11-3539                                                7

Therefore, a state law claim for malicious prosecution
likely had little chance of success.
  Finally, although he alleges that exculpatory evidence
was withheld at trial, Alexander does not claim that he
was denied the right to a fair trial in violation of Brady
v. Maryland, 373 U.S. 83 (1963). In order to bring a
Brady claim, a plaintiff must demonstrate that: (1) the
prosecution suppressed evidence; (2) the evidence
was favorable to the accused; and (3) the evidence was
material, that is, there was a reasonable probability
that prejudice ensued. Parish v. City of Chicago, 594
F.3d 551, 554 (7th Cir. 2009). The jury acquitted
Alexander of the charges, and we have expressed doubt
that an acquitted defendant can ever establish the
requisite prejudice for a Brady claim. See Bielanski v. Cnty.
of Kane, 550 F.3d 632, 644 (7th Cir. 2008). Nevertheless,
we have entertained the possibility that prejudice could
be established if an acquitted defendant showed that
disclosure of the suppressed evidence would have
altered the decision to go to trial. See Parish, 594 F.3d at
554; Bielanski, 550 F.3d at 644-45. Alexander expressly
disavowed that he was bringing a Brady claim in his
brief in opposition to the defendants’ motion to dis-
miss, and thus we need not decide whether such
a claim was available.
  This leaves Alexander to attempt to piece together
an amorphous substantive due process claim from
the remains of his forgone or otherwise unavailable
constitutional and state law claims. That is an approach
we have squarely rejected in analogous cases, and we
8                                               No. 11-3539

see no reason to depart from our precedent. See Brooks
v. City of Chicago, 564 F.3d 830, 833 (7th Cir. 2009)
(plaintiff alleging that police officers failed to disclose
exculpatory evidence, perjured themselves, and sub-
mitted false police reports could not state a due process
claim “by combining what are essentially claims for
false arrest under the Fourth Amendment and state law
malicious prosecution into a sort of hybrid substantive
due process claim under the Fourteenth Amendment.”)
(quoting McCann v. Mangialardi, 337 F.3d 782, 786 (7th Cir.
2003)).
  In support of his argument that he states a cognizable
due process right, Alexander relies heavily on the Second
Circuit’s decision in Zahrey v. Coffey, 221 F.3d 342 (2d Cir.
2000). The plaintiff in Zahrey alleged that police officers
and prosecutors conspired to manufacture false
evidence to bring conspiracy to commit robbery charges
against him. Id. at 345-46. He was arrested and held
without bail for eight months, before ultimately being
acquitted of the charges. Id. at 348. The Second Circuit
held that Zahrey stated a due process claim, finding he
had “the right not to be deprived of liberty as a result of
the fabrication of evidence by a government officer
acting in an investigating capacity.” Id. at 349. More
recently, we held that a prosecutor acting in an inves-
tigatory capacity who fabricates evidence that is used
to obtain a wrongful criminal conviction violates a con-
victed defendant’s clearly established due process
rights. Whitlock v. Brueggemann, 682 F.3d 567, 585-86
(7th Cir. 2012). There, the plaintiffs, Whitlock and
Steidl, alleged that police officers and prosecutors used
No. 11-3539                                                    9

fabricated evidence, such as pressuring witnesses to
concoct stories of having witnessed the crime, to convict
the two of a high-profile double homicide. Id. at 572-73.
Whitlock and Steidl spent the next seventeen and twenty-
one years in prison, respectively, before having their
convictions overturned in post-conviction proceedings
on the basis of numerous Brady violations. Id. at 570.
In both Zahrey and Whitlock, the alleged liberty depriva-
tion came not from the initial arrest, but from the time
spent in confinement after arrest—the eight months
Zahrey spent in jail after having his bail revoked and
the numerous years Whitlock and Steidl spent in prison
after being wrongfully convicted. See Zahrey, 221 F.3d at
348; Whitlock, 682 F.3d at 585. Zahrey and Whitlock
are inapposite because the only liberty deprivation Alex-
ander alleges stems from his initial arrest—he was
released on bond that same day.2


2
   Nor does the burden of appearing in court and attending
trial, in and of itself, constitute a deprivation of liberty. Cf.
Bielanski, 550 F.3d at 639-42 (collecting cases and holding that
summons to appear in court, order not to leave the state
without permission, and required interview with probation
officer do not rise to level of Fourth Amendment seizure); see
also Harrington v. City of Nashua, 610 F.3d 24, 32-33 (1st Cir.
2010) (“run-of-the-mill” conditions of pretrial release, in-
cluding required attendance in court proceedings, do not
constitute Fourth Amendment seizure); Burg v. Gosselin, 591
F.3d 95, 101 (2d Cir. 2010) (pre-arraignment summons
requiring later court appearance does not constitute Fourth
Amendment seizure). It would be anomalous to hold that
                                                   (continued...)
10                                              No. 11-3539

  The Fourth Amendment, not the due process clause, is
the proper basis for challenging the lawfulness of an
arrest. See Albright v. Oliver, 510 U.S. 266, 275 (1994)
(plurality opinion). Moreover, the Supreme Court has
made it clear that a substantive due process claim may not
be maintained where a specific constitutional provision
protects the right at issue. NASA v. Nelson, 131 S. Ct. 746,
765 (2011), (Scalia, J., concurring in judgment) (“Where
a particular Amendment provides an explicit textual
source of constitutional protection against a particular
sort of government behavior, that Amendment, not the
more generalized notion of substantive due process,
must be the guide for analyzing these claims.”) (brackets
omitted) (quoting Cnty. of Sacramento v. Lewis, 523 U.S.
833, 842 (1998)). Alexander cannot recast his untimely
Fourth Amendment claim, thereby circumventing the
statute of limitations, by combining it with a state
law malicious prosecution claim and simply changing
the label of the claim to substantive due process.


                    III. C ONCLUSION
  For the foregoing reasons, we A FFIRM the district court’s
grant of McKinney’s motion to dismiss the complaint.


2
  (...continued)
attending a trial deprives a criminal defendant of liberty
without due process of law, when the purpose of the trial is
to effectuate due process.


                           8-8-12
