                                                                        

                               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.
