Case: Document: 12-1 Filed: 02/15/2012 Pages: 30 CASE NO.: IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

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1 CASE NO.: IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT MICHAEL ALEXANDER, Plaintiff/Appellant, v. MARK McKINNEY, Prosecutor of the 46 th Judicial Circuit, Defendant/Appellee. Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division District Court No. 1:10-cv-914-RYL-DKL The Honorable Richard L. Young, Chief District Judge BRIEF AND REQUIRED SHORT APPENDIX OF PLAINTIFF/APPELLANT, MICHAEL ALEXANDER 201 N. High Street Muncie, Indiana (765) Donald K. McClellan, # MCCLELLAN & MCCLELLAN Attorneys for Plaintiff/Appellant, Michael Alexander

2 TABLE OF CONTENTS TABLE OF CASES AND STATUTE... i. I. Jurisdictional Statement... 1 II Statement of the Issue Presented for Review... 2 III. Statement of the Case... 3 IV. Statement of the Facts... 5 V. Summary of Argument... 8 VI. Argument... 9 I. Prelude... 9 II. The District Court erroneously granted McKinney s Motion... 9 to Dismiss based upon qualified immunity A. Dismissal Standard... 9 B. The District Court correctly ruled that McKinney did not have absolute prosecutorial immunity C. The Law of Absolute Prosecutorial Immunity D. The District court correctly held Alexander s Constitutional Rights were Clearly Established E. The Law of Qualified Immunity i.

3 F. The District Court ruling is in error under the Buckley IV Analysis.. 16 VII. Conclusion Circuit Rule 31(e)(1) Certification Circuit Rule 30(d) Statement Certificate of Service ii.

4 TABLE OF CASES, STATUTES AND OTHER AUTHORITIES CASES PAGE Ashcroft v. Iqbal, 556 -U.S.- 662, 129 S.Ct. 1937, 1949 (2009) Bell Atl. Corp. v. Twombly, 550 U.S. 544,555 (2007) Brokaw v. Mercer County, 235 F.3d 1000, 1016 (7thCir.2000)... 14,15 Buckley v. Fitzsimmons, 509 U.S. 259,113 S.Ct ,12,13, L Ed.2d 209 (1993) Buckley v. Fitzsimmons, 20 F.3d. 789 (7 th Cir.1994)... 8,15,16,17 18,22 Burns v. Reed, 500 U.S. 478, 486, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991)... 11,12,13 Forrester v. White, 484 U.S. 219,229, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988) Fries v. Helsper, 146 F.3d 451, 457 (7thCir.1998) Garrett v. Stratman, 254 F.3d 946, 951 (10thCir. 2001) Gibson v. City of Chicago, 910 F2d. 1510, 1520 (7 th Cir.1990)... 9 Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct , 73 L.Ed.2d 396 (1982) Hill v. Cuppleson, 627 F.3d. 601, 606 (7 th Cir.2010) Imber v. Pachtman, 424 U.S. 409, 419 n. 13, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976)... 11,12 iii.

5 Jones v. Chicago, 856 F.2d 985 (7thCir.1988)... 17,18,19 Kalina v. Fletcher, 522 U.S. 118, 129, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997)... 12,13 Kitchen v. Burge, 781 F.Supp. 2d Limone v. Condon, 372 F.3d. 39, (1 st Cir.2004) Manning v. Miller, 355 F.3d. 1028, (7 th Cir.2004) McGhee v. Pottawattamie County, Iowa, 547 F.3d. 922 (8 th Cir cert.granted)... 16,17,21 Michaels v. McGrath, 531 U.S (2001) Mink v. Suthers, 482 F.3d 1244, 1258 (10 th Cir.2007), cert. den... 11,12 U.S., 128 S.Ct. 1122, 169 L. Ed.2d 949 (2008) Newsome v. McCabe, 256 F.3d 747,750 (7 th Cir.2001)... 15,19 Pearson v. Callahan, U.S., 129 S.Ct. 808, 818, 172 L.Ed. 2d. 565 (2009) Penn v. Harris, 296 F.3d 573,576 (7thCir.2002) Pisciotta v. Old Nat l Bancorp., 499 F.3d 629, 633 (7 th Cir.2007)... 9 Thomas v. Guardsmark, Inc., 381 F.3d 701, 704 (7thCir.2004)... 9 Van de Kamp v. Goldstein, U.S. 129 S.Ct. 855, , 172 L.Ed.2d 706 (2009) Wilson v. Lawrence, 260 F.3d. 946, (8thCir.2001) Zahrey v. Coffey, 221 F.3d 342 (2 nd Cir. 2000)... 16,17,20 iv.

6 STATUTES & OTHER AUTHORITIES PAGE U.S. Constitution, Fourth Amendment... 1,7 U.S. Constitution, Fifth Amendment... 1,7 U.S. Constitution, Eighth Amendment... 1,7 U.S. Constitution, Fourteenth Amendment... 1,7 28 USC 1291 and 1294(a) USC ,3 42 USC ,8,11, 14,15, 16,20 42 USC Fed R.Civ.p. 8(a)(2)... 9 Fed. R.Civ. 12(b)(6)... 9 Rule 28(a)... 1 v.

7 I. JURISDICTIONAL STATEMENT The Appellant, Michael J. Alexander, pursuant to Rule 28(a) of the Circuit Rules of the United States Court of Appeals for the Seventh Circuit, hereby submits his jurisdictional statement as follows: I. Jurisdiction of the District Court. Appellant brought an action under 42 USC alleging violations of the Appellant s due process rights and his rights under the 4 th, 5 th, 8 th and 14 th Amendments to the United States Constitution and further, for attorney fees pursuant to 42 USC Originally filed in Delaware County, Indiana, Circuit Court No. 2, this case was removed to the District Court in accordance with 28 USC II. Jurisdiction of the Court of Appeals. Jurisdiction of the United States of the Court of Appeals for the Seventh Circuit over this action is based upon 28 USC 1291 and 1294(a). The judgment of the District Court upon which this appeal is brought was entered as a final judgment on October 11, The Appellant filed his Notice of Appeal on November 10, of the parties. This is an appeal from a final Judgment that adjudicates all of the claims with respect to all

8 II. STATEMENT OF THE ISSUE PRESENTED FOR REVIEW Did the trial court error in granting Prosecutor McKinney s Motion to Dismiss based upon qualified immunity, where McKinney conspired to frame Alexander by fabricating and manipulating inculpatory evidence and withholding exculpatory evidence during an investigation and having another prosecutor charge and try an innocent attorney for conspiracy to commit bribery?

9 III. STATEMENT OF THE CASE On July 9, 2010, Michael Alexander (hereinafter referred to as Alexander ) filed his Complaint in Delaware Circuit Court No. 2, Cause No. 18C CT-9, which was removed to the United States District Court, Southern District of Indiana, Indianapolis Division, pursuant to 28 USC 1441 and perfected on July 19, [Docket Text (hereinafter DT ) No. 1]. On August 11, 2010, Alexander filed an Amended Complaint and on August 23, 2010 filed a voluntary dismissal of the United States of America concluding it was not an appropriate defendant in this case. (DT 12, 15 and 16). On September 9, 2010, Alexander voluntarily dismissed the State of Indiana as a defendant acknowledging that it also was not an appropriate defendant in this cause. (DT 21). On November 3, 2010, the Court granted Alexander s Motion for Leave to file his Second Amended Complaint and on November 3, 2010, the Plaintiff filed his Second Amended Complaint against the Federal Defendants, FBI Agents, Neal O. Freeman, James Randall Howell, and Prosecutor, Mark McKinney. Contending that they, along with others, conspired to manufacture and fabricate evidence and withheld exculpatory evidence in an effort to have Alexander framed for the crime of conspiracy to commit bribery. (DT 35 and 36). On November 18, 2010, McKinney filed his Motion to Dismiss Second Amended Complaint, together with Brief in support of Motion to Dismiss Second Amended Complaint. (DT 35 and 40). Alexander filed his Response in Opposition to McKinney s Motion to Dismiss Second Amended Complaint on December 2, 2010 together with his Brief in Opposition to McKinney s Motion to Dismiss Second Amended Complaint. (DT 43 and 44).

10 In an Opinion dated April 12, 2011, the District Court granted McKinney s Motion to Dismiss and denied the Federal Defendants Motion to Dismiss. (DT 49 and Appendix p. 3). On April 22, 2011, the Federal Defendants Freeman and Howell filed their Answer to Alexander s Amended Complaint and on April 27, 2011, the Federal Defendants Freeman and Howell filed their Motion for Judgment on the pleadings, together with their Brief in Support of the Motion for Judgment on the pleadings. (DT 51, 52 and 53). Alexander filed his Response and Brief in Opposition to the Federal Defendants Motion for Judgment on the Pleadings. (DT 60 and 61). In an Opinion dated October 12, 2011, the District Court granted the Federal Defendants Motion for Judgment on the pleadings. Also, on October 12, 2011, the District Court entered its Final Judgment in favor of the Defendants and against Alexander. (DT 65 and 66 and Appendix p. 1). On November 10, 2011, Alexander filed his Notice of Appeal. 1 (DT 67). 1 Subsequent to this Appeal, on February 7, 2012, this Court granted Alexander s and the Federal Defendants, Freeman and Howell, Joint Motion to Dismiss Freeman and Howell only from this appeal.

11 IV. STATEMENT OF THE FACTS Alexander will restate the factual allegations set forth by the United States District Court, Southern District of Indiana, Honorable Richard L. Young, Chief Judge, in its April 12, 2011 Order granting McKinney s Motion to Dismiss. The factual allegations are derived from Alexander s Second Amended Complaint. I. Factual Allegations. Plaintiff is a criminal defense attorney, and, in that capacity, was a vocal critic of the actions of the City of Muncie/Delaware County Drug Task Force ( DTF ) and the manner in which the drug forfeitures were handled by then Deputy Prosecutor McKinney, from approximately the year 2000 to December 31, The allegations of Alexander s Second Amended Complaint are hard to understand. 2 In the simplest terms, Alexander alleges that in June 2006, Freeman and Howell, and other unidentified agents of the Federal Bureau of Investigation, began to investigate Jeff Hinds, an investigator employed by Alexander, for possible involvement in a bribery scheme involving Alexander s former client (and friend of Hinds), Adrian Kirtz ( Kirtz ), Kirtz father, Stanley Chrisp ( Chrisp ) and Kirtz brother, Stanley Wills ( Wills ). (Id. 12). In July 2006, Freeman and Howell, in an effort to determine the extent of Alexander s involvement in the bribery scheme, if any, provided Kirtz and Chrisp electronic monitory equipment and sent them to Alexander s law office to record their conversation with Alexander. (Id. 13). Alexander denied any involvement in the bribery scheme. 2 Plaintiff s allegations concerning Plaintiff s former client, Christopher Bryant, and his involvement, if any, in the overall conspiracy, are incomprehensible.

12 (Id.). In January 2007, McKinney took office as Prosecutor. (Id. 18). At that time, Kirtz and Chrisp were in legal trouble. Kirtz had been charged with numerous drug charges, including a Class A felony dealing in cocaine charge in Delaware Circuit Court, and Kirtz and Chrisp were targets of a federal investigation involving an arson ring.. (Id. 18,19). Shortly after McKinney took office as Prosecutor, McKinney met Kirtz and Kirtz lawyer, and informed them that he hated Alexander and that he wanted a case to prosecute against Alexander. (Id. 17). Subsequent to this conversation, Alexander alleges that Freeman, Howell, McKinney, Kirtz and Chrisp entered into a conspiracy to manufacture evidence to charge Alexander with conspiracy to commit bribery.. (Id. 20). In furtherance of this conspiracy, Kirtz and Chrisp met with Plaintiff on several occasions in February 2007 and recorded the conversations. (Id ). Plaintiff alleges that at some unknown time, Freeman and Howell manipulated or destroyed the recordings and other documentation in the FBI file in an effort to destroy the exculpatory evidence that the Plaintiff had provided. (Id. 22). In exchange for Kirtz assistance, Freeman, McKinney and unknown members of the DTF agreed to return the property and monies that were seized during his arrest, and agreed to allow Kirtz to plead guilty to a single Class D felony. (Id. 33). All other charges against Kirtz were dismissed. (Id.) (It is unknown what Chrisp received for his assistance.) On February 28, 2007, a special prosecutor, James Luttrell, was appointed to prosecute the case, and on February 28, 2008, the Plaintiff was charged with conspiracy to commit bribery, a Class C felony, in the Delaware Circuit Court. (Id. 7). During the trial, it was first revealed that Freeman and Howell and other unidentified FBI agents, among other things, manipulated and withheld exculpatory evidence of the Alexander s involvement in the alleged bribery. (Id.) On March 13, 2009, at the conclusion of the jury trial, Alexander was acquitted. (Id.).

13 On July 9, 2010, Alexander field the present lawsuit against said Defendants in the Delaware Circuit Court. It was subsequently removed to this Court on July 19, Alexander s Second Amended Complaint alleges, inter alia, that McKinney, Freeman and Howell violated the rights of the Plaintiff under the.... Fourth, Fifth, Eighth and Fourteenth Amendments to the United States Constitution. (Id. 41). (Appendix p. 3-6). Though not noted in the District Court s Order, Alexander s Second Amended Complaint also alleges the defendants violated his substantive due process rights under the Constitution. (Id. 41).

14 V. SUMMARY OF ARGUMENT The trial court erroneously granted McKinney s Motion to Dismiss based upon qualified immunity. McKinney and others, including FBI agents, Freeman and Howell, entered into a conspiracy to manufacture evidence against Alexander as well as destroy exculpatory evidence. In furtherance of this conspiracy, Alexander alleges that the conspirators used Kirtz as an informant to trick Alexander into implicating himself in a bribery conspiracy. At the time of the conspiracy, McKinney s involvement as alleged was investigatory in nature. McKinney in an effort to cover up his involvement in the conspiracy handed the case off to a special prosecutor who unwittingly and unaware of the conspiracy filed criminal charges against Alexander on February 28, As a result of the conspiracy involving McKinney, Alexander was charged with the crime of conspiracy to commit bribery, arrested and endured a jury trial resulting in his acquittal. The District Court correctly ruled that McKinney did not have absolute prosecutorial immunity since his actions were conducted while only in the investigative status and the District Court further correctly held Alexander stated a 1983 conspiracy claim against McKinney. Under this Court s holding in Buckley v. Fitzsimmons, 20 F.3d. 789 (7thCir.1994) (Buckley IV), the District Court erred in granting McKinney s Motion to Dismiss. Alexander s constitutionally protected substantive due process rights were violated by McKinney conspiracy to manufacture and fabricate inculpatory evidence and withhold exculpatory evidence during an investigation and turning it over to another prosecutor to have Alexander arrested and tried on a conspiracy/bribery charge.

15 VI. ARGUMENT I. Prelude. A prosecutor has tremendous power to do good but also corresponding tremendous power to do evil. Normally, prosecutors exercise their tremendous power and authority to effectuate good. However, there are occasions that a rogue prosecutor will utilize his great power to due evil. McKinney is one of those rogue prosecutors who utilized his authority to do evil. In such a circumstance, it is incumbent upon the Courts to ensure that there is a deterrent for the few renegades to ensure they are held accountable for their conduct. II. The trial court erroneously granted McKinney s Motion to Dismiss based upon qualified immunity. A. Dismissal Standard. Pursuant to Rule 12(b)(6), a complaint may be dismissed if the plaintiff fails to state a claim upon which relief may be granted. The purpose of a motion to dismiss is to test the sufficiency of the plaintiff s complaint, not to decide the merits of the case. See, Gibson v. City of Chicago, 910 F2d. 1510, 1520 (7 th Cir.1990). The court takes all facts alleged in the complaint as true and draws all reasonable inferences from those facts in favor of the plaintiff. Pisciotta v. Old Nat l Bancorp., 499 F.3d 629, 633 (7 th Cir.2007) (citing Thomas v. Guardsmark, Inc., 381 F.3d 701, 704 (7thCir.2004). A complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Fed R.Civ.p. 8(a)(2). While detailed factual allegations are not required, the plaintiff s complaint may not merely state an unadorned, the-defendant-unlawfully-harmed-me

16 accusation. Ashcroft v. Iqbal, 556 -U.S.- 662, 129 S.Ct. 1937, 1949 (2009). A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,555 (2007)). Nor does a complaint sufficient if it tenders naked assertion[s] devoid of further factual enhancement. Id. (quoting Twombly, 550 U.S. at 557). Rather, a complaint must contain sufficient factual matter... to state a claim to relief that is plausible on its face. Id. (quoting Twombly, 550 U.S. at 570). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged, not when the plaintiff only raises a sheer possibility that the defendant has acted unlawfully. B. The District Court correctly ruled that McKinney did not have absolute prosecutorial immunity. After reviewing the law of absolute immunity, the trial court stated on pages 6 and 7 of its Order. (Appendix p. 8 and 9): The allegations of Alexander s Second Amended Complaint allege that in January 2007, McKinney, FBI agents Freeman and Howell, and Alexander s former clients, entered into a conspiracy to manufacture evidence against Alexander. In furtherance of this conspiracy, Plaintiff alleges that the Defendants essentially used Kirtz as an informant in an effort to trick Alexander into implicating himself in some sort of bribery conspiracy. It is not clear the extent, if any, of McKinney s actual involvement in the alleged conspiracy. What is clear, however, is that McKinney s involvement as alleged was investigatory in nature, and occurred before he had probable cause to arrest Alexander. Indeed, Alexander was not charged with a crime until February 28, C. The Law of Absolute Prosecutorial Immunity Absolute prosecutorial immunity is a complete bar to a suit for damages under 42 USC.

17 1983. Mink v. Suthers, 482 F.3d 1244, 1258 (10 th Cir.2007), cert. den., U.S., 128 S.Ct. 1122, 169 L. Ed.2d 949 (2008) (citing Imber v. Pachtman, 424 U.S. 409, 419 n. 13, 96 S.Ct. 984, 47 Led.2d 128 (1976)). Prosecutors are absolutely immune from those activities intimately associated with the judicial phase of the criminal process. Imber, 424 U.S. at 430, 96 S.Ct To determine whether absolute immunity applies, courts use a functional approach to determine which actions the prosecutor took in initiating a prosecution and in the presenting the State s case. Id. At 431, 96 S.Ct The functional approach looks to the nature of the function performed, not the identity of the actor who performed it. Buckley v. Fitzsimmons, 509 U.S. 259, 269, 113 S.Ct. 2606, 125 L Ed.2d 209 (1993) (quoting Forrester v. White, 484 U.S. 219,229, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988)). The more distant a function is from the judicial process, the less likely absolute immunity will attach. Mink, 482 F.3d at (Citations omitted). The official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question. Burns v. Reed, 500 U.S. 478, 486, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991) (citations omitted). Because it is presumed that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties, the Supreme Court has been quite sparing in its recognition of absolute immunity. Id at 487, 111 S.Ct (quoting Forrester, 484 U.S. at 224, 108 S.Ct. 538). Thus, absolute immunity does not extend to those aspects of the prosecutor s responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate. Mink, 482 F.3d at 1259 (quoting Imbler, 424 U.S.at , 96 S.Ct. 984). The duties of the prosecutor in his role as advocate for the State involve action preliminary to the initiation of a prosecution and actions apart from the courtroom. Imbler, 424 U.S. at 431 n. 33, 96 S.Ct In the role of an advocate, prosecutors are required to decide such question as

18 whether to file an information, whether and when to prosecute,...which witnesses to call, and what other evidence to present. Preparation, both for the initiation of the criminal process and for a trial require the obtaining, reviewing and evaluating of evidence. But: there is a difference between the advocate s role in evaluating evidence and interviewing witnesses as he prepares for trial, on the one hand, and the detective s role in searching for the clues and corroboration that might give him probable cause to recommend that a suspect be arrested, on the other hand. When a prosecutor performs the investigative functions normally performed by a detective or police officer, it is neither appropriate nor justifiable that, for the same act, immunity should protect the one and not the other. Buckley, 509 U.S. at 273, 113 S.Ct (internal quotations omitted). In evaluating whether absolute immunity applies to pre-indictment acts, it is important to consider such factors as (1) whether the action is closely associated with the judicial process, (2) whether it is a uniquely prosecutorial function, and (3) whether it requires the exercise of professional judgment. Mink, 482 F.3d at Applying and expanding on the principles set forth in Imbler, the Supreme Court has held that absolute immunity applies when a prosecutor appears in court to support of an application for a search warrant as a lawyer for the State. Burns, 500 U.S. at 487, 111 S.Ct. 1934, when a prosecutor prepares and files an information and motion for an arrest warrant. Kalina v. Fletcher, 522 U.S. 118, 129, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997) and when a prosecutor fulfills administrative obligations of supervision or training that are directly connected with the conduct of a trial. Van de Kamp v. Goldstein, U.S. 129 S.Ct. 855, , 172 L.Ed.2d 706 (2009). Conversely, the Supreme Court has held that absolute immunity does not apply when a prosecutor gives the police legal advice on

19 suspect interrogation and the existence of probable cause to arrest that suspect, Burns, 500 U.S. at 487, 111 S.Ct. 1934; when a prosecutor manufactures false evidence during the preliminary investigation of a crime and makes statements to the press, Buckley, 509 U.S. at , 113 S.Ct. 2606; or when a prosecutor acts as a complaining witness in support of an application for an arrest warrant. Kalina, 522 U.S. at 131, 118 S.Ct At the time that McKinney entered into the conspiracy to manufacture false evidence, it was during the preliminary investigation state, no case existed against Alexander and in fact, coconspirators, FBI agents, Freeman and Howell, had exculpatory evidence of Alexander s involvement in the bribery scheme. As the district court noted, at the time of the conspiracy the State was not investigating Alexander and it was McKinney who told Kirtz he was looking for a case to prosecute Alexander. McKinney was looking for a way to eliminate Alexander because Alexander was a harsh critic of McKinney, his DTF and its forfeiture practice. McKinney elicited the assistance of Adrian Kirtz, who had numerous pending serious drug dealing charges, as well as Kirtz father, Stanley Chrisp, who was being investigated and was subsequently charged with arson, to manufacture evidence in which to frame Alexander for the crime of conspiracy to commit bribery. In furtherance of the conspiracy, local FBI agents, Freeman and Howell, altered and/or destroyed digital recordings and FBI records and reports concerning a July 12, 2006 meeting in which Alexander provided exculpatory evidence of any knowledge of the bribery. In furtherance of the conspiracy, McKinney entered into a secret agreement with Kirtz to allow Kirtz to plead guilty to a reduced single Class D Felony from the numerous Class A Drug Dealing Charges for his assistance in manufacturing evidence in which to frame Alexander. In addition, FBI agents Freeman and Howell had Kirtz meet with Alexander on February 1, 2007 and again, destroyed or altered the digital recordings of the meeting and the

20 exculpatory evidence Alexander provided and also assisted Kirtz in providing false and fabricated information concerning the contents fo the meeting, all of which to frame Alexander for the conspiracy to commit bribery. In furtherance of the conspiracy, FBI agents Freeman and Howell again altered the digital recordings of the February 15, 2007 meeting to remove exculpatory evidence of Alexander s involvement in a conspiracy to commit bribery. On February 28, 2007, a Special Prosecutor was appointed who on February 28, 2008 charged Alexander with conspiracy to commit bribery, culminating in Alexander s arrest, prosecution and acquittal after a jury trial. D. The District Court correctly held Alexander s Constitutional Rights were Clearly Established. The trial court correctly determined Alexander stated a 1983 conspiracy claim against McKinney. On pages 7 and 8 of its Order (Appendix p. 9 and 10) the Court stated: Plaintiff [Alexander] phrases his allegations in the form of a conspiracy in an attempt to hold McKinney accountable for the actions of the special prosecutor and other third parties. To establish Section 1983 liability through a conspiracy theory, a plaintiff must demonstrate that: (1) a state official and private individual(s) reached an understanding to deprive Alexander of his constitutional rights, and (2) these parties were willful participants in joint activity with the State or its agents. Brokaw v. Mercer County, 235 F.3d 1000, 1016 (7thCir.2000) (quoting Fries v. Helsper, 146 F.3d 451, 457 (7thCir.1998) (internal quotation omitted))... Paragraphs 23 through 27 contain the alleged overt acts in furtherance of the conspiracy i.e., the recorded meetings with Alexander. The thrust of the allegations is that McKinney, Freeman, Howell, Kirtz and Chrisp entered into a conspiracy in January 2007, to manufacture evidence against Alexander. In furtherance of that conspiracy, on February 1, 2007 and February 15, 2007, McKinney,

21 Freeman and Howell used Kirtz and Chrisp as informants to electronically record their conversations with Alexander. Alexander alleges that the evidence was tampered with in an effort to eliminate any exculpatory evidence. The court finds that these allegations are sufficient to state a Section 1983 conspiracy claim against McKinney. The error in the trial court s determination is set forth on page 9 of its Order as follows: To the extent Plaintiff s [Alexander s] claim is centered on McKinney s alleged fabrication of evidence, Alexander s claim must necessarily fail. There is no such right recognized in the Seventh Circuit. See Penn v. Harris, 296 F.3d 573,576 (7thCir.2002) ( There is no constitutional right not to be prosecuted without probable cause. ) (quoting Newsome v. McCabe, 256 F.3d 747,750 (7 th Cir.2001)); Buckley, 20 F.3d at 796 ( Neither shopping for a favorable witness nor hiring a practitioner of junk science is actionable... )....In sum, no deprivation of liberty or property rights is alleged other than his arrest. (Appendix p. 11). E. The Law of Qualified Immunity. Qualified immunity shields governmental officials performing discretionary functions from liability for civil damages provided that their conduct does not violate clearly established constitutional rights. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct , 73 L.Ed.2d 396 (1982). Once a Defendant asserts the defense of qualified immunity, the Plaintiff must establish that (1) the Defendant s actions violated constitutional or statutory right; and (2) the law was clearly established such that a reasonable person in the defendant s position would have known that their conduct violated the law. Garrett v. Stratman, 254 F.3d 946, 951 (10thCir. 2001). Although it is often beneficial to analyze these two factors sequentially, the Supreme Court recently held the Court has discretion to analyze these factors in the order it finds most appropriate. Pearson v. Callahan, U.S., 129 S.Ct. 808, 818, 172 L.Ed. 2d. 565 (2009).

22 As this Court well knows, there is tension between the Seventh Circuits analysis in Buckley v. Fitzsimmons, 20 F.3d. 789 (7 th Cir.1994) (Buckley IV) and other circuits, such as the Eighth Circuit in McGhee v. Pottawattamie Co. Iowa, 547 F.3d. 922 (8 th Cir. 2008) transfer granted, and the Second Circuit in Zahrey v. Coffey, 221 F.3d 342 (2 nd Cir. 2000) concerning qualified immunity for prosecutorial misconduct during an investigation. In Michaels v. McGrath, 531 U.S (2001), Justice Thomas in his dissent to certiorari noted this tension between the approach taken by the various circuits including the Seventh and the Second in Zahrey, when he stated: In Zahrey, the Second Circuit took the position that this Court held: a plaintiff does state a claim under 1983 when he shows that prosecutorial misconduct in gathering evidence has led to a deprivation of his liberty. The intervention of a subsequent immunized act by the same officer does not break the chain of causation necessary for liability. I believe the Second Circuit approach was very likely correct and that the decision below leaves victims of egregious prosecutorial misconduct without a remedy. 531 U.S. at F. The District Court ruling is in error under the Buckley IV analysis. In the instant case it does not make any difference whether this Court continues to utilize the Buckley IV analysis or adopts the analysis set forth by the Eighth Circuit in McGhee v. Pottawattamie County, Iowa, and the Second Circuit in Zahrey v. Coffey, since utilizing either analysis the trial court was in error in granting McKinney s Motion to Dismiss. This Court in Buckley IV stated at 20 F.3d. at 796-7: Buckley reminds us, citing Jones v. Chicago, 856 F.2d 985 (7thCir.1988), that constitutional wrongs completed out of court are actionable even if they lead to immunized acts. Immunity for prosecutorial deeds does not whitewash wrongs completed during the investigation. Indeed so, our prior opinions reiterated this principle, which underlies the remand of several issues. 919 F.2d at ; 952 F2d at

23 Jones alleged that the police had fabricated evidence, deceiving the prosecutor into filing criminal charges that the prosecutor never would have initiated had he known the truth. A prosecutor would have received absolute immunity, see 856 F.2d at 993, but the police who bilked the prosecutor were liable for the injury their deceit caused. Things would be different, we implied, if the prosecutors had known the truth and proceeded anyway, or if the prosecutors themselves had concocted the evidence, for then the immunized prosecutorial decisions would be the cause of evidence, for then the immunized prosecutorial decisions would be the cause of the injury. 856 F.2d at (collecting other cases.). FN2 There is a potential complication concerning State s Attorney Fitzsimmons, who supervised the investigation but left office before the trial. If Fitzsimmons not only violated Buckley s rights during the investigation but also deceived his successor James Ryan about the true state of affairs, he could be liable under the rationale of Jones. (Emphasis Added). 20 F3d at 797. The facts of the instant case fall squarely within those articulated by this Court in Buckley IV in which a prosecutor not only violated an individual s rights during an investigation but also deceived his successor the actual prosecutor concerning the manufactured evidence. McKinney was acting solely in an investigative capacity when he entered into the conspiracy to manufacture evidence against Alexander. The manufactured evidence then was turned over to a special prosecutor based upon the fabricated evidence that brought the criminal charges. In essence, McKinney was acting in an

24 investigator s function normally performed by a detective or police officer and when a prosecutor performs the investigative functions normally performed by a detective or police officer, it is neither appropriate or justifiable that for the same act an immunity should protect the one and not the other. Buckley III, 509 U.S. at 273 ( omitted ). The issue then is whether it was known in 2007 that a prosecutor could be liable for entering into a conspiracy to manufacture evidence in the investigative stage and turning over the fabricated evidence to a new prosecutor to use. McKinney cannot avoid the inescapable conclusion that he had a clear warning that the fabrication, destruction and/or concealment of evidence during the investigation of Alexander beginning in 2007 was a violation of Alexander s constitutional rights. In addition to the notice set forth in Buckley IV, the Court in Limone v. Condon, 372 F.3d. 39, (1 st Cir.2004), said the right to not be framed by law enforcement agents was clearly established in 1967 based on Supreme Court precedent dating back to Also see, Jones v. Chicago holding the police could not withhold from the prosecutor exculpatory information. As noted, this is a case where Alexander was totally innocent of any crime and McKinney upon taking office entered into a conspiracy to manufacture evidence in which to charge a totally innocent person with the heinous crime of bribery, i.e., for the purpose of removing a critic of his DTF and drug forfeiture practices. The actions of McKinney and his co-conspirators is so outrageous they shock the conscious and thereby implicate the Supreme Court s substantive due process rulings under which Alexander asserts his claim. In Alexander s Second Amended Complaint he asserts a violation of his substantive due process rights. In Newsome v. McCabe, 256 F.3d 747 (2001), this Court held the Newsome suit does not present the Buckley issue since Buckley supposed that the police had been forthcoming with the prosecutors, so that injury really could be traced to prosecutorial decisions. We distinguished what

25 occurred in Jones, where the police had fabricated some evidence and concealed much exculpatory information. If officers are not candid with prosecutors, then the prosecutors decisions-although vital to the causal chain in a but-for sense-are not the important locus of action. Pressure must be brought to bear elsewhere. Prosecutors kept in the dark by the police (and not negligent in failing to hire other persons to investigate the police) won t improve their performance with or without legal liability for their conduct. Requiring culpable officers to pay damages to the victims of their actions, however, holds out promise of both deterring and remediating violations of the Constitution. 256 F.3d at 752. The Court further stated: If Newsome can prove what he alleges than under the approach of Brady and Jones v. Chicago, he will establish a violation of the due process clause, a kind of violation for which officers McCabe and McNally do not have immunity. 256 F.3d. at 753. In Manning v. Miller, 355 F.3d. 1028, (7 th Cir.2004), this Court held that it is enough that prior to the actions that gave rise to this case, it was well established that investigators who withhold exculpatory evidence from defendants violated constitutional due process rights... It is immaterial as to whether Manning complains that agents, Buchan and Miller withheld exculpatory information regarding fabricated testimony or fingerprint analysis. Consequently, since Manning was able to show that he was asserting a violation of a constitutional right and that right was clearly established at that time, the agents could not prevail on their qualified immunity claim. Such a determination is also consistent with this Court s holding in Hill v. Cuppleson, 627 F.3d. 601, 606 (7 th Cir.2010), where the Court discussed a prosecutor is not entitled to qualified immunity if his or her actions violate clearly established statutory constitutional rights of which a reasonable person would have known. Also see: Kitchen v. Burge, 781 F.Supp. 2d 721, 728 (N.D. ILL 2011). In this case the Court held the plaintiff sufficiently alleged a 1983 substantive due process claim against a former police superintendent where the allegations were the police officers fabricated inculpatory

26 evidence and suppressed exculpatory evidence in connection with the case. The substantive due violation claim arises from allegations that the defendants concealed exculpatory evidence from prosecutors thereby denying the defendant a right to a fair trial. 781 F.Supp. at 728. As noted above, other districts have held fabricating inculpatory evidence and hiding exculpatory evidence creates a substantive due process claim. In Zahrey v. Martin Coffey, 221 F.3d at (2 nd Cir.2000) in addressing whether the fabrication of evidence by a prosecutor in and of itself gives rise to an injury cognizable under the Constitution found Zahrey s arrest premised on the manufacture of false evidence an example of a classic constitutional violation, the deprivation of his liberty without due process of law. The court further held that the right at issue is appropriately identified as a right not to be deprived of liberty as a result of the fabrication of evidence by a government officer acting in an investigative capacity and is a constitutional right provided the deprivation of liberty can be shown to be the result of the fabrication of evidence. 221 F.3d at 357. The Court in McGhee v. Pottawattamie County, Iowa, 547 F.3d. 922 (8 th Cir. 2008) cert.granted held that the procurement or fabrication of evidence and using the false evidence constitutes a due process violation citing Wilson v. Lawrence, 260 F.3d. 946, (8thCir.2001), which held that a person s due process rights are violated when police officers use falsified evidence to procure a conviction. 547 F.3d. At 932. Alexander s due process rights were violated by Prosecutor McKinney conspiracy to manufacture and fabricate evidence and handing it off to another prosecutor to be used to file a formal charge, have him arrested and make him stand trial. See, McGhee v. Pottawattamie County, Iowa, 547 F. 3d. at 933.

27 VII. CONCLUSION Based upon this Court s holding in Buckley IV, McKinney is not entitled to qualified immunity for his conduct committed during the investigation of Alexander including entering into conspiracy to fabricate, destroy and manipulate evidence and deceive the special prosecutor into filing criminal charges against Alexander. The actions of McKinney conspiring to manufacture evidence in which to charge a totally innocent person with the heinous crime of bribery for the purpose to remove this attorney as a critic of his DTF and drug forfeiture practices is so outrageous that it shocks the conscious and thereby implicates the Supreme Court s substantive due process rulings. The decision of the District Court should be reversed and this case should be remanded for further proceeding. Respectfully submitted, /s/ Donald K. McClellan Donald K. McClellan

28 CIRCUIT RULE 31(e)(1) CERTIFICATION The undersigned attorney hereby certifies that a digital version of the Brief of Plaintiffs/Appellants was furnished to the Court at the time the paper brief was filed. Dated: February 15th, /s/ Donald K. McClellan Donald K. McClellan McClellan & McClellan Attorney for Plaintiff/Appellant

29 CIRCUIT RULE 30(d) STATEMENT In accordance with F.R.A.P. 30(d), the undersigned counsel for the Plaintiffs/Appellants, does hereby certify that all materials required by Circuit Court Rule 30(a) and (b) are contained in the short Appendix. Dated: February 15th, /s/ Donald K. McClellan Donald K. McClellan McClellan & McClellan Attorney for Plaintiff/Appellant

30 CERTIFICATE OF SERVICE In accordance with F.R.A.P. 25(d)(2), the undersigned counsel of record for the Plaintiff/Appellant, does hereby certify that on this date, February 15, 2012, fifteen (15) copies of the Brief of Plaintiff/Appellant were filed with Clerk of United States Court of Appeals for the Seventh Circuit, 219 S. Dearborn, Room 2710-A, Chicago, IL 60604, and two (2) copies of said Brief were served on Corrine Gilchrist, Office of the Indiana Attorney General, Indiana Government Center South, 302 W. Washington St., 5th Floor, Indianapolis, IN 46204; via and by deposit of the same in the United States Mail. /s/ Donald K. McClellan Donald K. McClellan McClellan & McClellan Attorney for Plaintiff/Appellant