McCann v. Mangialardi

• Decision Date: 22 July 2003
• Docket Number: No. 02-2409.,No. 02-3021.,02-2409.,02-3021.
• Citation: 337 F.3d 782
• Parties: Demetrius McCANN, Plaintiff-Appellee/Cross-Appellant, v. Sam A. MANGIALARDI, Defendant-Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

337 F.3d 782

Demetrius McCANN, Plaintiff-Appellee/Cross-Appellant, v. Sam A. MANGIALARDI, Defendant-Appellant/Cross-Appellee.

No. 02-2409.

No. 02-3021.

United States Court of Appeals, Seventh Circuit.

Argued February 10, 2003.

Decided July 22, 2003.

Rehearing and Rehearing En Banc Denied September 18, 2003^*.

Ardwin E. Boyer (argued), Jeffrey J. Levine, Newman & Boyer, Chicago, IL, for Plaintiff-Appellee.

Joseph Selbka (argued), Canna & Canna, Orland Park, IL, Lawrence P. Gulotta, Gulotta & Kawanna, Calumet City, IL, Robert P. Vogt, Weldon-Linne & Vogt, Chicago, IL, for Defendants-Appellees.

Before POSNER, MANION, and KANNE, Circuit Judges.

MANION, Circuit Judge.

Otis Moore operated a cocaine trafficking business in Chicago Heights, Illinois. One of his top assistants was Demetrius McCann. Also on the payroll was Sam Mangialardi, the deputy chief of the Chicago Heights police department, who not only protected Moore's operation but also investigated and arrested many of Moore's competitors. At some point, Mangialardi and Moore suspected McCann of being a federal informant, and they agreed that Moore should get rid of him. Moore set McCann up for arrest by having cocaine planted in a car McCann was driving, then notified Mangialardi of McCann's location. Mangialardi ordered police to stop, search and arrest McCann. After his arrest McCann pleaded guilty, was sentenced, and served time in prison. After his release on parole, McCann discovered that Mangialardi had been prosecuted and that Moore, testifying for the government, disclosed he had planted cocaine in the car McCann was driving when arrested. McCann filed suit against the City of Chicago Heights, its police department, and a number of government officials, including Mangialardi. Ultimately, the litigation boiled down to McCann's claims against Mangialardi for false arrest under the Fourth Amendment and a Fourteenth Amendment violation of his due process rights. Mangialardi moved to dismiss McCann's Fourth Amendment claim on the pleadings, which the district court granted. Mangialardi then moved for summary judgment of McCann's due process claim on the ground that he was entitled to qualified immunity. The district court denied the motion, and Mangialardi appeals. McCann cross-appeals the district court's dismissal of his Fourth Amendment false arrest claim. We reverse in part and affirm in part.

I.

From 1988 until 1990, Demetrius ("Trent") McCann was a "lieutenant" in a narcotics trafficking organization operated by Otis Moore, holding the position of "overseer." During this time period, McCann sold cocaine for Moore's organization. As part of the operation, Moore paid protection money to Sam Mangialardi, who at that time was the deputy chief of the Chicago Heights police department. Mangialardi's "duties" were to protect Moore's operation from police interference and to arrest any drug competitors whom Moore wanted out of the way. At some point in 1990, Mangialardi told Moore that he suspected McCann might be working for the Federal Bureau of Investigation ("FBI") as an informant, and advised him to "get rid of that guy." In November of that same year, Ray Cooper, one of Moore's subordinates, found an FBI or IRS business card while searching through some of McCann's personal belongings. Cooper relayed this information to Moore, who in turn advised Mangialardi of the discovery.

Shortly thereafter, Moore and Mangialardi met to discuss how to best deal with McCann. During the meeting, Moore told Mangialardi that McCann "would have drugs in his car shortly," to which Mangialardi responded, "I will be at the station. Just give me a call." On November 20, 1990, Moore instructed another subordinate, Johnson Lee, to "bring his black Cutlass" so that he could plant "100 dime bags of cocaine ... under the springs of the driver's side seat." After Moore planted the drugs, the black Cutlass was parked near McCann's residence. Moore then ordered Lee to direct Terrell Jones, yet another subordinate, to ask McCann to follow him in the black Cutlass under the pretense that Jones's car was about to run out of gas. Jones made the request, and McCann agreed to follow him in the Cutlass (unaware that Moore had planted the drugs). Upon seeing the two cars depart from McCann's house, Moore—who was carefully watching events transpire from a safe distance with binoculars—immediately called Mangialardi at the police station to tell him that "it was going down, that they were moving westbound on 14th street." Moore then followed Jones and McCann in his car, and, shortly thereafter, called Mangialardi back to advise him of "the location where they was [sic] and the direction they was [sic] moving in." Mangialardi advised police officers of the "tip," and in short order the police surrounded the car McCann was driving. When the police were unable to find any drugs, Moore called the police station again, this time speaking with Officer Tony Murphy. Moore advised Murphy that the drugs were "up under the driver's side seat," and Murphy relayed this information to the officers on the scene, who promptly found the planted drugs and arrested McCann.

On December 21, 1990, McCann was indicted for possession of a controlled substance and for possession of a controlled substance with the intent to distribute. Faced with the prospect of a 30-year prison sentence, McCann pleaded guilty on January 31, 1991, receiving a five-year term of imprisonment. In December 1991, Moore was arrested by federal law enforcement officers, and thereafter indicted for tax evasion, participating in a criminal enterprise, money laundering, and conspiracy. In return for a lighter sentence, Moore agreed to testify as part of the government's prosecution of Mangialardi, who had also been indicted for similar criminal acts. During Moore's testimony, which he gave on March 24, 1994, he admitted to orchestrating the arrest of McCann on November 20, 1990, and claimed that sometime after the arrest he informed Mangialardi that McCann was not on a routine drug delivery at the time of his arrest, but instead Moore's people had planted drugs in the car McCann was driving.¹

During Mangialardi's trial, McCann was apparently on parole and soon learned of Moore's admission to planting drugs in the car McCann was driving on the day of his arrest. On August 24, 1994, McCann filed a complaint against the City of Chicago Heights and numerous government officials and police officers (including Mangialardi), alleging, inter alia, that they violated his rights under the Fourth and Fourteenth Amendments to the United States Constitution. A great deal of procedural wrangling then ensued, but eventually the litigation was narrowed to two parties, McCann and Mangialardi, and two claims, a Fourth Amendment false arrest claim and a Fourteenth Amendment due process claim.² On February 16, 2001, the district court dismissed McCann's Fourth Amendment false arrest claim on the pleadings, holding that the claim was time-barred. On November 2, 2001, Mangialardi filed a motion for summary judgment on McCann's due process claim, asserting that he had not violated McCann's constitutional right to due process and that he was entitled to qualified immunity from the claim. The district court denied this motion on April 24, 2002, which Mangialardi appeals. McCann cross-appeals the district court's dismissal of his Fourth Amendment false arrest claim.

II.

The first question before us on appeal is whether the district court erred in concluding that Mangialardi was not entitled to qualified immunity from McCann's due process claim. Mangialardi is authorized to bring this interlocutory appeal because he is raising the question as to whether, based on the facts taken in the light most favorable to McCann, he should have prevailed on his defense of qualified immunity. Mitchell v. Forsyth, 472 U.S. 511, 526-27, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Cavalieri v. Shepard, 321 F.3d 616, 618 (7th Cir.2003). We must resolve a qualified immunity issue as early as possible in the proceedings because it is an "`immunity from suit rather than a mere defense to liability.'" Saucier v Katz, 533 U.S. 194, 200-01, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (emphasis in original) (citation omitted). In evaluating whether a claim for qualified immunity is well founded, a court must undertake a two-step inquiry. Saucier, 533 U.S. at 201, 121 S.Ct. 2151. First, we must consider whether the facts alleged by the plaintiff demonstrate that the officer's conduct violated a constitutional right. Id. If the plaintiff cannot make such a showing, our inquiry is finished and summary judgment must be entered in favor of the government official. Id. If, on the other hand, the facts alleged by the plaintiff, viewed in their most favorable light, show the violation of a constitutional right, the next step is to determine whether that right was clearly established at the time the violation occurred. Id.

A. Procedural Due Process Claims

McCann argues that Mangialardi violated his right to procedural due process under the Fourteenth Amendment by: (1) "purposefully creating false evidence for the purpose of procuring [his] criminal conviction and imprisonment"; (2) depriving him of the right to a fair trial "even though he plead guilty and no trial occurred"; and (3) failing to disclose exculpatory evidence of his innocence to prosecutors, defense counsel, and the court before the entry of his guilty plea.

McCann cites no authority to support his assertion that his right to procedural due process was violated by Mangialardi allegedly manufacturing evidence for the purpose of having him prosecuted, convicted and imprisoned, and, therefore, the claim is waived. Gable v. City of Chicago, 296 F.3d 531, 538 (7th Cir.2002) (holding that arguments not developed on appeal are waived). Even in the absence of such a waiver, however, McCann's first "due process" claim still fails...