                                In the

United States Court of Appeals
                 For the Seventh Circuit

No. 09-1385

M ICHAEL P ARISH,
                                                    Plaintiff-Appellant,
                                    v.

C ITY OF C HICAGO et al.,
                                                 Defendants-Appellees.


               Appeal from the United States District Court
          for the Northern District of Illinois, Eastern Division.
                  No. 08 C 3148—John W. Darrah, Judge.



     A RGUED O CTOBER 14, 2009—D ECIDED N OVEMBER 10, 2009
                 P UBLISHED F EBRUARY 3, 2010 




    Before C OFFEY, E VANS and W ILLIAMS, Circuit Judges.
  C OFFEY, Circuit Judge. Michael Parish appeals the
January 14, 2009 dismissal of his 42 U.S.C. § 1983 claim
asserting a Fourth Amendment violation for malicious




  This decision was originally released as an unpublished
order. Upon request, the panel has determined that this
decision should now issue as a published opinion.
2                                              No. 09-1385

prosecution. In response to the defendants’ motion to
dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6), Parish conceded that the dismissal was proper
because Seventh Circuit precedent does not permit an
action for malicious prosecution under § 1983 if a state
remedy exists. See Newsome v. McCabe, 256 F.3d 747,
751 (7th Cir. 2001) (holding that the tort of malicious
prosecution should be analyzed under the procedural
due process clause and that the existence of a tort claim
under state law “knocks out any constitutional tort of
malicious prosecution, because [the] due process of law is
afforded by the opportunity to pursue a claim in state
court . . . ”). Furthermore, Illinois law provides a state
remedy for malicious prosecution. See Swick v. Liautaud,
662 N.E.2d 1238, 1242 (Ill. 1996). Parish argues on
appeal that Newsome is ripe for reconsideration. We
disagree.
  We review de novo whether a complaint states a claim
on which relief can be granted, accepting as true all well-
pleaded facts and drawing all inferences in favor of the
appellant. See Bielanski v. County of Kane, 550 F.3d 632,
633 (7th Cir. 2008). Parish’s pleadings were at best
minimal and we learn that he was charged with a
criminal offense in May 2005 and placed in custody, and
he remained in confinement until he was acquitted of a
June 2007 criminal murder offense. After Parish’s
acquittal, on June 1, 2008, he filed suit against the City
of Chicago and five detectives from the Chicago Police
Department for malicious prosecution in violation of the
Fourth Amendment and Illinois tort law. Parish also
claimed without offering any documented evidence
No. 09-1385                                               3

in support thereof that the detectives persuaded
witnesses to provide false statements implicating him,
prepared false police reports, suppressed exculpatory
evidence, and fabricated evidence. Additionally, Parish
sought the reversal of the present case law in the Seventh
Circuit rejecting the existence of a federal claim in the
nature of malicious prosecution. The defendants filed a
motion to dismiss for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6) and Parish con-
ceded that Newsome v. McCabe, 256 F.3d 747 foreclosed his
lawsuit at the district court level and the trial judge
granted the defendants’ motion to dismiss.
  The sole argument that Parish makes on appeal is that
we should overrule Newsome in light of a Supreme Court
comment made in footnote 2 of Wallace v. Kato, 549 U.S.
384, 390 n.2 (2007) that the Supreme Court has “never
explored the contours of a Fourth Amendment malicious
prosecution suit under § 1983 . . . and we do not do so
here.” Parish somehow asserts that this statement
requires us to reevaluate our circuit precedent and
that we should allow a federal claim for malicious pros-
ecution under the Fourth Amendment. In Newsome,
the plaintiff spent 15 years in prison for his murder
conviction before an Illinois court proceeding vacated
his conviction. Newsome, 256 F.3d at 748-49. After the
State’s Attorney declined to put him on trial a second
time, the governor of Illinois pardoned him. Id. at 749.
He then sued a number of police officers under section
1983 for what was labeled as malicious prosecution
based on the police officers’ failure to alert prosecutors
to evidence of his innocence, because the statute of limita-
tions for a wrongful arrest and detention claim had
4                                                  No. 09-1385

passed twenty years earlier. Id. We held that the tort of
malicious prosecution should be analyzed under the
procedural due process clause and that the existence of a
tort claim under state law does away with “any constitu-
tional tort of malicious prosecution, because [the] due
process of law is afforded by the opportunity to pursue a
claim in state court. . . .” Id. at 751. To support this conclu-
sion, we adopted the concurring opinion authored by
Justice Kennedy and joined by Justice Thomas in Albright
v. Oliver, which reasoned that when analyzing a malicious
prosecution claim “[i]n the ordinary case where an
injury has been caused not by a state law, policy, or
procedure, but by a random and unauthorized act that
can be remedied by state law, there is no basis for inter-
vention under § 1983, at least in a suit based on ‘the
Due Process Clause of the Fourteenth Amendment
simpliciter.’ ” 510 U.S. 266, 285 (1994) (Kennedy, J., joined
by Thomas J., concurring) (quoting Parratt v. Taylor,
451 U.S. 527, 536 (1981)).
  We recently rejected Parish’s argument that the
footnote statement made in Wallace requires us to
revisit our holding in Newsome. See Johnson v. Saville, 575
F.3d 656, 663 (7th Cir. 2009). In Johnson, the plaintiff filed
a malicious prosecution suit against the investigating
officer after he was found not guilty of criminal sexual
assault in an Illinois state court. Id. at 657. After the
defendants were granted summary judgment in the
trial court, the court also determined that the plaintiff
had forfeited a Fourth Amendment malicious prosecu-
tion claim by failing to develop it in his summary
judgment brief. Id. at 659. Johnson argued that his forfei-
No. 09-1385                                                 5

ture should be excused because the footnote statement
made in Wallace was an intervening change of law that
undermined Newsome’s rationale. Id. at 663. But on
appeal we concluded that “[t]his footnote statement on
what the Court hasn’t decided does not require us to
reexamine circuit precedent.” Id. Thus, Johnson squarely
disposes of Parish’s argument that the footnote referred
to in Wallace requires us to revisit circuit precedent.
Furthermore, in Johnson we noted that Newsome did not
necessarily foreclose a federal claim under section
1983: “We held in that case that the ‘due process clause’
does not support the constitutional tort of malicious
prosecution if state law provides a parallel remedy” but
“left open the possibility of a Fourth Amendment
claim against officers who misrepresent evidence to
prosecutors, provided that the statute of limitations
for such a claim has not expired.” Id.
  Parish asserts a malicious prosecution claim under
the Fourth Amendment under the mistaken belief that a
Brady-type due process claim is barred by acquittal. The
Fourth Amendment claim is in fact, not the only avenue
for Parish to obtain a remedy. Newsome recognized a
“due process claim in the original sense of that phrase
[that] he did not receive a fair trial if the prosecutors
withheld material exculpatory [evidence.]” Newsome, 256
F.3d at 752 (citing Brady v. Maryland, 373 U.S. 83 (1963)). In
order to establish the elements of a Brady-type due
process claim, a plaintiff must demonstrate that “(1) the
evidence at issue is favorable to the accused, either being
exculpatory or impeaching; (2) the evidence must have
been suppressed by the government, either willfully or
6                                               No. 09-1385

inadvertently; and (3) there is a reasonable probability
that prejudice ensued. . . .” Carvajal v. Dominguez, 542 F.3d
561, 566-67 (7th Cir. 2008). When determining whether
there is a reasonable probability of prejudice, “[t]he
question is not whether the defendant would more
likely than not have received a different verdict with
the evidence, but whether in its absence he received a
fair trial, understood as a trial resulting in a verdict
worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434
(1995). Although we have expressed doubts about
whether a defendant who has been acquitted can
establish prejudice, in previous cases, we have analyzed
potential claims in order to determine if the decision to
go to trial would have been altered by the suppressed
evidence. See Bielanski, 550 F.3d at 644-45; Carvajal, 542
F.3d at 569. Thus, Parish may still have had a Brady-
type due process claim after he was acquitted, if (as he
alleges) prompt disclosure of the suppressed evidence
would have altered the prosecution’s decision to
proceed to trial. “[I]f a plaintiff can establish a violation
of the fourth (or any other) amendment there is
nothing but confusion gained by calling the legal theory
‘malicious prosecution.’ ” Newsome, 256 F.3d at 751. But
Parish has explicitly limited his appeal to asking us to
overrule Newsome and we see no reason to overturn
circuit precedent.
    We A FFIRM the judgment of the District Court.



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