In the

United States Court of Appeals

For the Seventh Circuit ____________________ 

No. 21-1989 

BRENDA JONES, 

Plaintiff-Appellant, 

v.

BRENT YORK, et al., 

Defendants-Appellees. 

____________________ 

Appeal from the United States District Court for the

Western District of Wisconsin.

No. 19-cv-699 — William M. Conley, Judge. 

____________________ 

ARGUED JANUARY 13, 2022 — DECIDED MAY 16, 2022 

____________________ 

Before HAMILTON, BRENNAN, and JACKSON-AKIWUMI, Circuit Judges. 

BRENNAN, Circuit Judge. A fire consumed Brenda Jones’s 

house in Adams County, Wisconsin in 2013. Brent York, an 

investigator with the county sheriff’s office, initially concluded that an electrical malfunction caused the blaze. But 

when he learned that a friend of Jones, Alan Onopa, claimed 

to have a recording of Jones admitting to arson, he reopened 

the investigation. 
2 No. 21-1989 

In pursuit of this new lead, York interviewed several witnesses, including Jones and Onopa. York also analyzed 

Jones’s telephone records and secured Onopa’s recording. Ultimately, York concluded that Jones set her own house on fire, 

so he referred the matter to the Adams County district attorney, who charged Jones with arson. A jury found her guilty.

After trial, Jones was appointed new counsel and moved

for postconviction relief, arguing, among other things, that 

her trial counsel was ineffective because he did not move to 

suppress Onopa’s recording as created for the purpose of extortion. Before the court ruled on the matter, the district attorney conceded the motion and dropped all charges against 

Jones. 

Jones then sued York and Adams County under 42 U.S.C. 

§ 1983. She contended that York violated her due process 

rights by withholding exculpatory evidence, fabricating inculpatory evidence, testifying falsely at trial, and prosecuting 

her without probable cause. Adams County, she claims, contributed to these unconstitutional acts by permitting them as 

a matter of custom or policy. See Monell v. Dep’t of Soc. Servs. 

of City of New York, 436 U.S. 658 (1978). The district court 

granted summary judgment to the defendants. We agree with 

the district court that no reasonable jury could find for Jones 

on any of her claims, so we affirm.

I 

A 

Shortly after dawn on February 17, 2013, a neighbor called 

Adams County dispatch to report that Jones’s house was on 

fire. By this time, the house was mostly destroyed. Firefighters and other responders, including York, arrived promptly 
No. 21-1989 3

at the scene. Jones, who had spent the night at her sister’s 

house in a nearby town, returned to the property after receiving a call from York. She told him that ice dams had been leaking water into the walls and causing electrical problems—for 

example, electrical sockets were “popping.” Jones had asked 

an electrician to investigate these issues, but the inspection 

had yet to occur. York concluded that electrical malfunctions 

caused the fire and closed the investigation. 

Two weeks after the fire, Jones and a close friend, Alan

Onopa, were staying at the Stardust Motel in Marshfield, Wisconsin. An argument broke out between them, though they

hotly contest the details of what happened. According to 

Jones, Onopa became drunk and threatened to turn her in for 

burning her house down unless she gave him money. His 

threats moved from verbal to physical when, Jones recalled, 

Onopa put his hands on her throat. Jones fled the hotel and 

stayed the night at her sister’s house. 

Onopa disputes Jones’s version. He told York he did not 

drink any alcohol that evening. As Onopa tells it, the conflict 

arose when he declined Jones’s sexual advances, though later 

voicemails show his agitation and surprise at Jones’s departure from the hotel. Whatever occurred during their argument

set off a chain of events. 

Jones responded in several ways. She reported the altercation to Officer Caleb Bornbach of the Marshfield Police 

Department, who documented their conversation in a police 

report. Per Bornbach’s report, Jones told him about Onopa’s 

behavior and what she perceived to be attempted extortion; 

she did not tell Bornbach that Onopa placed his hands on her 

throat. Jones also preemptively notified her insurance 
4 No. 21-1989 

company about Onopa’s threat. She also tried calling York, 

but he did not answer. 

In the days following, Onopa repeatedly called Jones, who 

refused to answer. Undeterred, he left voicemails, which the

parties agree were “threatening.” In these voicemails, Onopa 

warned that if Jones did not call him back, he would release a 

“recording.” He insisted they needed to get their “stories 

straight.” When Jones did not return his calls, Onopa followed through on his threat and called Jones’s insurance company, telling the adjuster that he had a recording that proved 

Jones was responsible for the house fire. 

On March 7, 2013, the insurance company notified York 

about Onopa’s claim. Given this new information, York reopened the investigation. His inquiry continued for over one

year, with York weighing the markedly different accounts of 

Jones and Onopa.

He began by meeting Jones on March 21, 2013. During 

their recorded conversation, Jones presented her version of 

what occurred at the hotel in Marshfield. She accused Onopa

of threatening her by saying if she did not “take care of him” 

and give him money, he would turn her in for burning the 

house down. She also told York that, at some point during the 

dispute, Onopa “had [her] by the throat.” Jones detailed her 

contact with the Marshfield Police Department and her insurance agent, and she alleged that Onopa took some of her belongings from the motel room. 

Jones then played Onopa’s voicemails for York. When

York heard Onopa mention a “recording,” York asked Jones 

what that meant. Jones denied the existence of any recording. 

Curious, York asked Jones to call Onopa in his presence so he 
No. 21-1989 5

could listen while she inquired about the recording. Jones 

agreed. 

That same day, York and Jones met at her sister’s home to 

conduct the arranged phone call. The parties agree that York 

attempted to record this call, but when York looked for it 

later, he was unable to find it. Nevertheless, the parties substantially agree as to what Jones and Onopa discussed: Onopa 

said he would deliver the recording to Jones if she paid him 

$3,500; Jones (directed by York) asked Onopa how to avoid 

“getting in trouble”; and Onopa replied that Jones should 

keep their “agreement.” 

Jones later testified she did not know what “agreement”

Onopa was referencing. For his part, York testified at Jones’s 

trial that Onopa demanded the money as compensation for 

personal property he lost in the fire. Jones contends this mischaracterized Onopa’s motive; in her view, Onopa’s request 

for money was a brazen attempt at extortion. 

A week later, Jones called Bornbach to supplement her initial police report. She told him that Onopa had grabbed her 

throat and that York had reopened the investigation. Bornbach said he intended to contact York, which he did later that 

day. Bornbach and York discussed the case, including Jones’s 

allegation that Onopa put his hands on her throat. 

York continued the investigation by interviewing Onopa

on April 2, 2013. Onopa told York he had recorded Jones talking about burning her house down while they were both at a 

Motel 6 in the Chicago suburbs two or three days after the fire. 

York asked for and received this recording from Onopa. York 

listened to the recording and documented his understanding 

of what was said, including that background noise made it 
6 No. 21-1989 

difficult to clearly hear the voices. According to York, in the 

recording: 

[Onopa] ... asked if Brenda had put something 

in the heater, and Brenda’s answer was mostly 

unclear but I heard the word “match” in her answer. Brenda was then laughing and said, “I 

tried to stick it in the heater and it,” the rest of 

her answer is unclear. Alan then said that he 

could not believe that she did all of that damage 

with just a match, and Brenda answered “ya.” 

Jones argues the female voice in the recording, alleged to be 

hers, is inaudible. 

In late April 2013, York met with Jones again at the Adams 

County Sheriff’s office for a voluntary interview. York reviewed with Jones her account of the fire and related events. 

This time, near the end of the interview, York informed Jones

that he “believed ... she had some involvement in starting her 

house fire.” Upon learning this, Jones asked for an attorney, 

and York ended the interview. 

Two weeks later, and three months after the fire, York interviewed Onopa a second time. York questioned Onopa 

about how he met Jones, what she had said about burning her 

house down, and when Onopa recorded Jones. During the interview, Onopa said he and Jones met at a bar a year before 

the fire, she made romantic advances, but he did not reciprocate. Still, over the next year they spent time together. Onopa 

recalled that Jones would sporadically discuss burning down 

her house, which was “falling apart,” to collect the insurance 

money. To prepare, Jones installed smoke detectors to bring 

her house in compliance with the insurance policy. The 
No. 21-1989 7

motivation for this plan, in Onopa’s view, was to attract him 

into a relationship by obtaining a large amount of money. Onopa reported that Jones transferred mementos and other 

items to her sister’s home in the Wausau area in the days and 

weeks before the fire. 

Onopa also spoke about his post-fire interactions with 

Jones. According to Onopa, Jones described precisely how she 

burned down her house—using a blanket over an electric 

heater, and when that did not work, igniting the heater with 

a lighter. As to the recording, Onopa said he only wanted leverage in case Jones blamed him for the fire and a bargaining 

chip to retrieve the value of personal property destroyed in 

the fire. 

In May 2013 York interviewed Jones’s electrician. The electrician confirmed that Jones asked him to look at an electrical 

issue and said that Jones had not expressed any urgency 

about the problem. He also explained that no precise appointment time had been arranged; rather, he agreed to stop by in 

“the next couple of days.” When the electrician stopped by to 

perform the work, he saw the fire department managing the 

remnants of Jones’s house. 

Four months after the fire, in June 2013, York obtained 

Jones’s cell phone records from U.S. Cellular. Those records 

were dated between January 15 and February 28, 2013. A U.S. 

Cellular employee explained to York what the data in the various columns in the records meant. The records showed that 

between those dates, Jones used her phone only within Wisconsin. They also reflect the precise tower that relayed her 

cellphone signal—evidence later offered during Jones’s trial 

to establish where she was on the night of the fire. 
8 No. 21-1989 

York also interviewed several other witnesses and subpoenaed Jones’s financial records. Then, nearly seventeen 

months after the fire, and thirteen months after expressing his 

suspicions to Jones that she caused the fire, York confronted 

Jones in a phone call. York explained that his investigation 

had revealed several red flags. For example, the cellphone records showed that the night of the fire she was at her house, 

not her sister’s, much later than she had claimed. In addition, 

Jones said the insurance company had not disbursed any policy money yet, and York found it suspicious that Jones was 

not pursuing this disbursement more vigorously. Near the 

end of the call, York informed Jones that he believed she 

burned her house down. 

York then referred the case to the Adams County District 

Attorney. The materials he submitted to the prosecutor did 

not contain Jones’s allegation that Onopa grabbed her throat 

on March 3, 2013. Also missing was the March 21, 2013 phonecall recording that York had arranged between Jones and Onopa. 

B 

The district attorney filed a criminal complaint, signed by 

York, against Jones in Adams County Circuit Court. The complaint charged Jones with arson of a building with the intent 

to defraud.1 Jones’s trial counsel moved to dismiss, arguing 

that a fair trial was not possible because the missing March 21

recording constituted potentially or apparently exculpatory 

1 In Wisconsin, anyone who, “[b]y means of fire, intentionally damages any building with intent to defraud an insurer of that building” is 

guilty of a felony. WIS. STAT. § 943.02(1)(b). 
No. 21-1989 9

evidence. The motion accused York of destroying the evidence, though York testified he could not find it. 

The court denied the motion because the parties agreed 

that, if a recording of the phone call had been preserved, it 

would contain a conversation in which Onopa offered Jones 

his recording in exchange for $3,500, and that the contents of 

Onopa’s recording were not discussed. The missing March 21 

recording thus lacked potentially or apparently exculpatory 

value, nor was there any evidence of bad faith. 

At trial in May 2016 the jury heard testimony from Jones, 

Onopa, and York; listened to Onopa’s recording; and heard 

expert testimony by a U.S. Cellular employee about Jones’s 

cellphone records. As York did during his investigation, the 

jury heard contradictory stories from Onopa and Jones. After 

the two-day trial, the jury returned a guilty verdict. 

The court sentenced Jones to seven years of probation and 

nine months in jail and ordered her to pay restitution. With

the assistance of new counsel, Jones moved for postconviction 

relief, arguing that her trial counsel was ineffective, that the

government failed to produce exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), and that new evidence created a reasonable probability of a different result at 

a new trial. 

About six months later, in June 2018, the trial judge held a 

hearing on the motion.2 He expressed concern about Jones’s 

trial counsel’s failure to seek suppression of Onopa’s 

2 “In Wisconsin’s postconviction process, an offender’s initial step in 

challenging a sentence is a postconviction motion filed under WIS. STAT. 

§ 974.02, which allows the trial court the first opportunity to consider certain challenges.” Minnick v. Winkleski, 15 F.4th 460, 465 n.2 (7th Cir. 2021).
10 No. 21-1989 

recording on the basis that it was “made for the purpose of 

extortion.” If it was, he reasoned, it would be an “unlawful 

recording,” and “it would be inadmissible.”3 The trial judge 

reiterated this concern at a hearing in July. In October, the district attorney, in an unusual move, conceded Jones’s motion 

for postconviction relief. Rather than seek a retrial, the prosecutor requested that all charges against Jones be dismissed, 

which the court granted. Jones was incarcerated after her conviction, though the record does not say for how long. 

II

After the State dropped the charges, Jones sued York, Adams County, and “as-of-yet unknown employees of the Adams County Sheriff’s Department” under 42 U.S.C. § 1983. 

Under the Fourteenth Amendment, Jones alleged York “withheld exculpatory evidence,” “fabricated false reports,” and 

“lied in his trial testimony contributing to Jones’ conviction.” 

In addition, Jones tersely referenced a Fourth Amendment violation. On appeal, she explains, “when York signed the criminal complaint, he violated [her] clearly established Fourth 

Amendment constitutional right to be free from legal process 

without probable cause.” She also brought various state-law

claims against the defendants. 

3 For purposes of recording oral communication, Wisconsin is generally a one-party consent state, but not when “the communication is intercepted for the purpose of committing any criminal or tortious act.” See

WIS. STAT. § 968.31(2)(c). Criminal extortion (a felony offense) occurs when 

a person “verbally or by any written or printed communication, maliciously threatens to accuse or accuses another of any crime or offense ... 

with intent thereby to extort money or any pecuniary advantage.”

Id. § 943.30(1). 
No. 21-1989 11

The district court granted the defendants’ motion for summary judgment, ruling that Jones failed to articulate a constitutional violation that could support her § 1983 claim—

though it characterized the behavior of York, Jones’s trial

counsel, and the Adams County prosecutors as “deeply troubling.” Specifically, the court held that York did not commit a 

Brady violation or fabricate evidence, York was covered by absolute immunity for his trial testimony, and Jones did not 

have a cognizable Fourth Amendment claim because she was 

not detained before trial and there was no “free-standing constitutional tort of malicious prosecution.” 

Because the district court concluded that Jones failed to articulate a cognizable constitutional claim against any individual defendant, it summarily dismissed her Monell claim 

against Adams County. The district court also dismissed the 

“as-of-yet unknown employees of Adams County Sheriff’s 

Department” because Jones failed to update this placeholder 

after discovery. Finally, the district court declined to exercise 

supplemental jurisdiction over the state-law claims and dismissed them without prejudice. Jones now appeals.

III 

Jones does not challenge the district court’s dismissal of 

the unknown county employees, so she has forfeited the ability to do so now. Scheidler v. Indiana, 914 F.3d 535, 540 (7th Cir. 

2019). As to the remaining two defendants, we agree with the 

district court: if York did not violate Jones’s constitutional 

rights, then Adams County is not liable under Monell because

she did not suffer a constitutional injury attributable to any 

county custom or policy. See Petty v. City of Chicago, 754 F.3d 

416, 424–25 (7th Cir. 2014); Alexander v. City of S. Bend, 433 F.3d 

550, 557 (7th Cir. 2006). 
12 No. 21-1989 

Our focus, then, is on York. Jones argues he violated the 

Constitution in four ways, but the district court granted summary judgment to York across the board. We review these

decisions de novo, construing the record in the light most favorable to Jones. Taylor v. City of Milford, 10 F.4th 800, 806 (7th 

Cir. 2021). 

A 

First is Jones’s assertion that York withheld exculpatory 

evidence, destroyed exculpatory evidence, or did both. See

Brady v. Maryland, 373 U.S. 83 (1963); Arizona v. Youngblood, 

488 U.S. 51 (1988). Jones identifies two pieces of withheld evidence: (1) the meaning of certain information in her cellphone records and (2) the missing March 21 recording.4 On 

the latter, she argues alternatively that York destroyed it. We 

analyze claims of withheld evidence and destroyed evidence 

under slightly different standards. 

1 

Under Brady v. Maryland, law enforcement officers “must 

turn over potentially exculpatory evidence when they turn 

over investigative files to the prosecution.” Harris v. Kuba, 486 

F.3d 1010, 1014 (7th Cir. 2007). “[T]he Brady doctrine applies 

equally to both exculpatory and impeachment evidence.” 

Canen v. Chapman, 847 F.3d 407, 412 (7th Cir. 2017). To prevail 

4 Before the district court, Jones also alleged that two other pieces of 

evidence were unlawfully withheld: Onopa’s recording allegedly containing Jones’s confession, and Officer Bornbach’s police report documenting 

his interactions with Jones after she contacted him on March 4, 2013. The 

district court rejected both arguments, finding that neither was withheld. 

Onopa’s recording was played at trial, and Bornbach’s report was publicly 

accessible. Jones does not appeal those rulings. 
No. 21-1989 13

on a Brady claim against an officer, a plaintiff must show that 

“(1) the evidence is favorable to him; (2) the evidence was concealed by the officer; and (3) the concealed evidence resulted 

in prejudice.” Cairel v. Alderden, 821 F.3d 823, 832 (7th Cir. 

2016) (citing Harris, 486 F.3d at 1014). Concealed evidence is 

prejudicial—or material—if “there is ‘a reasonable probability’ that the outcome would have been different if the evidence had been disclosed.” United States v. King, 910 F.3d 320, 

327 (7th Cir. 2018). 

As to evidence destruction, under Arizona v. Youngblood, a 

law enforcement officer violates a defendant’s due process 

rights if he “fail[s] to preserve potentially useful evidence” 

and does so in bad faith. 488 U.S. at 58. To prove a Youngblood

violation, a defendant must show that “(1) the [law enforcement officer] acted in bad faith; (2) the exculpatory value of 

the evidence was apparent before it was destroyed; and (3) 

the evidence was of such a nature that the [defendant] was 

unable to obtain comparable evidence by other reasonably 

available means.” McCarthy v. Pollard, 656 F.3d 478, 485 (7th 

Cir. 2011). While both Brady and Youngblood protect exculpatory evidence, Youngblood focuses on its preservation, 

whereas Brady focuses on its delivery. 

2 

Jones argues that York “committed a Brady violation because he never provided the proprietary cell phone Switch 

data information to the state or to Jones—exculpatory evidence that proves she was never in Arlington Height[s], Illinois confessing to arson after the fire.” She refers to a column 

in the cellphone data York retrieved from U.S. Cellular labeled “switch.” Two entries appear in that column: “madi” 
14 No. 21-1989 

and “appl” (for Madison and Appleton, Wisconsin, respectively).5 

As the district court noted, Jones’s cell phone records were 

“presented and discussed by both sides at trial,” so they cannot form the basis for a Brady challenge. In her opening brief, 

Jones concedes that “both York and [a U.S. Cellular employee] 

testified about Jones’ cell phone records.” But she clarifies that 

the “meaning of the Switch column” was not provided to her. 

Her claim, then, is that her trial counsel failed to elicit testimony about the phone records, not that York withheld exculpatory evidence—a predicate to a Brady violation. 

Jones resists this conclusion with a citation to Boss v. Pierce, 

263 F.3d 734 (7th Cir. 2001). But Boss does not support her 

claim. There, the court held that withholding a witness statement containing exculpatory information was a Brady

violation, even though the defense had earlier access to the 

witness. Id. at 740, 744. The witness learned new information 

after interviewing with the defense—thus, the information 

was not reasonably available to defense counsel. Id. Here, the 

phone records did not change between the time they were 

handed over to the defense and the time they were discussed 

at trial. 

Jones’s argument is incorrect for a second reason. Cellphone records in hand, it was the defense’s responsibility to 

understand, interpret, and use the records at trial. The column 

of data at issue contained four-letter identifiers representing 

the switch used to route the call, including “madi” for Madison and “appl” for Appleton. Jones did not need an expert’s 

5 There is only one other Wisconsin-based switch, New Berlin 

(“newb”), though it does not appear in Jones’s records. 
No. 21-1989 15

insight to understand what this column meant. Unlike in Boss, 

a reasonably diligent attorney would seek to understand the 

import of the “switch” column and question the U.S. Cellular 

employee about it at trial. York did not violate Brady by not 

informing Jones or the district attorney what the U.S. Cellular 

employee told him about the switch column.

3 

Although less than clear, Jones appears to reraise her claim 

that York violated her due process rights by destroying or 

withholding the missing March 21 recording of the phone call

between Jones and Onopa. The district court held that the Adams County Circuit Court’s pretrial motion-to-dismiss ruling 

collaterally estopped Jones from making this argument. We 

agree with Jones that the district court erroneously applied 

the doctrine of collateral estoppel. 

Collateral estoppel “bars the relitigation, in subsequent 

proceedings between the same parties, of specific issues heard 

and decided in their previous suit.” Amcast Indus. Corp. v. 

Detrex Corp., 45 F.3d 155, 158 (7th Cir. 1995). This doctrine applies to § 1983 plaintiffs who attempt to relitigate issues adjudicated in state court. Allen v. McCurry, 449 U.S. 90, 104 (1980).

In this scenario, we “apply the preclusion (res judicata and 

collateral estoppel) principles of the state whose judgment is 

sought to be used to block relitigation.” Saecker v. Thorie, 234 

F.3d 1010, 1014 (7th Cir. 2000). 

In Wisconsin, collateral estoppel must rest on a valid prior 

judgment. In re Est. of Rille ex rel. Rille, 728 N.W.2d 693, 702 

(Wis. 2007). The wrinkle in this case is that the underlying 

judgment of conviction, which encompasses the court’s 
16 No. 21-1989 

pretrial rulings,6 was vacated by a grant of postconviction relief. Although our research did not reveal a Wisconsin decision resolving whether a vacated judgment qualifies as a valid 

prior judgment, we have previously observed the general 

principle that “[a] vacated judgment is not a permissible basis 

for collateral estoppel.” Korczak v. Sedeman, 427 F.3d 419, 422 

(7th Cir. 2005) (Illinois law); see also Pontarelli Limousine, Inc. v. 

City of Chicago, 929 F.2d 339, 340 (7th Cir. 1991) (“A vacated 

judgment has no collateral estoppel ... effect under Illinois 

law (or any other law).”) (citations omitted); Peterson v. 

Heymes, 931 F.3d 546, 554 (6th Cir. 2019) (Michigan law); No 

E.-W. Highway Comm., Inc. v. Chandler, 767 F.2d 21, 24 (1st Cir. 

1985) (“A vacated judgment has no preclusive force either as 

a matter of collateral or direct estoppel or as a matter of the 

law of the case.”); Brisco v. Stinar, No. 19-CV-7233, 2020 WL 

7027719, at *8 (N.D. Ill. Nov. 30, 2020) (collecting cases and 

stating that “federal appellate courts around the country recognize that a vacated judgment has no preclusive effect for 

purposes of collateral estoppel.”); 18A CHARLES ALAN 

WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL 

PRACTICE AND PROCEDURE § 4432 (3d ed.) (“There is no preclusion as to the matters vacated or reversed.”). 

We see no reason why Wisconsin would depart from this 

established rule. Adhering to a vacated judgment would circumvent collateral estoppel’s finality element by giving force

to a void ruling. Here, the Wisconsin trial court’s pretrial ruling about whether the missing March 21 recording contained 

apparently or potentially exculpatory evidence merged with 

6 See State v. Rabe, 291 N.W.2d 809, 815 n.5 (Wis. 1980) (recognizing the 

principle that prejudgment orders merge with the final judgment of conviction). 
No. 21-1989 17

the now-vacated final judgment, so it does not have a preclusive effect.7

While we agree with Jones that the district court erroneously applied collateral estoppel, her claims still must be dismissed. Jones contends York either destroyed the March 21

recording (a Youngblood violation) or withheld it (a Brady violation). She does not prevail under either theory. 

Although we view the facts in the light most favorable to 

Jones, her first hurdle is to persuade us that the recording existed in the first place. At the pretrial motion-to-dismiss hearing, the court asked York whether he “attempt[ed] to record” 

the conversation between Jones and Onopa. He replied, “I 

did.” York explained that he was not sure which device he 

would have used because he had four at the time. During 

cross-examination at trial, Jones’s counsel asked York, “So 

you’re saying your intention was to record it but ultimately it 

appears it wasn’t recorded there was some malfunction?” 

York responded, “Correct.” If no recording was ever made, 

York could not have withheld or destroyed it. 

Assuming a recording was made, Jones faces other obstacles. There is significant agreement between the parties about 

the contents of the recorded phone call. Both sides agree Onopa sought $3,500 in exchange for the recording he made, 

though they disagree about his motive for making that offer. 

7 This conclusion is consistent with Heck v. Humphrey, 512 U.S. 477 

(1994), which held that a § 1983 plaintiff “must prove that [her] conviction 

or sentence has been ... reversed, expunged, invalidated, or impugned by 

the grant of a writ of habeas corpus.” Heck, 512 U.S. at 486–87, 489. If 

Jones’s state-court conviction remained active, Heck suggests that 28 

U.S.C. § 2254, not 42 U.S.C. § 1983, would be her only remedy—an odd

result because she is no longer incarcerated. 
18 No. 21-1989 

Onopa testified he wanted $3,500 as compensation for personal property lost in the fire. York testified that Onopa did 

not mention any property on the arranged call but did say he 

mentioned an “agreement” he had with Jones. And Jones

characterized Onopa’s demand as pure extortion. 

Even if we accept Jones’s recitation of what transpired, 

there was no Brady violation. Jones must demonstrate that the 

recorded phone call contained favorable evidence, which can 

be exculpatory or impeaching. At the outset, the phone call

was not exculpatory. Whether Onopa wanted the money out 

of greed or to compensate himself for lost items has no bearing on Jones’s culpability. Each motivation is consistent with 

the prosecution’s theory that Jones plotted to burn down her 

house for insurance money. But we agree with Jones that the 

phone call could be used to impeach York or Onopa if their 

versions of the phone call differed from the recorded version. 

This satisfies Brady’s “favorable evidence” element.

What dooms Jones’s Brady claim is materiality. The jury 

heard in-person testimony from York, Jones, and Onopa

about the events leading up to and following the fire. Questioning by the prosecution and the defense exposed the discrepancies in each witness’s version of events. Thus, there is 

not “‘a reasonable probability’ that the outcome would have 

been different if the evidence had been disclosed.” King, 910 

F.3d at 327. “[O]rdinarily, newly discovered impeachment evidence will not warrant a new trial under Brady” because it is 

“often cumulative of other impeachment evidence presented 

at trial.” United States v. Salem, 578 F.3d 682, 688 (7th Cir. 2009). 

One exception is “where the government’s case rests entirely 

on one witness’s testimony and credibility.” United States v. 

Brown, 865 F.3d 566, 574 (7th Cir. 2017). But that is not the case 
No. 21-1989 19

here. The State called seven witnesses, including York, Onopa, Jones’s insurance agent, and the electrician contacted by 

Jones. The State also called an expert witness to explain the 

meaning of Jones’s cellphone records. All this informed the 

jury’s verdict. Jones’s case therefore does not fall into the exception for particularly important impeachment evidence, 

and her Brady claim fails.

Jones cannot prevail under Youngblood, either. To do so, 

she must show that “potentially” exculpatory evidence was 

destroyed and that the exculpatory value of the evidence was 

“apparent.” McCarthy, 656 F.3d at 485. We have already

established that the missing March 21 recording was not exculpatory. Jones also must show that York acted in bad faith—

that he made a “conscious effort to suppress [the recording].”

United States v. Chaparro-Alcantara, 226 F.3d 616, 624 (7th Cir.

2000) (internal quotation marks omitted). Jones submitted no 

evidence of bad faith. To the contrary, York’s testimony about 

the missing March 21 recording has been consistent: he 

thought he recorded the phone call, but he could not find it 

when he looked for it. At most, he was negligent in using a 

recorder or in managing his files, but “mere negligence by police does not amount to a constitutional violation.” United 

States v. Holly, 940 F.3d 995, 1002 (7th Cir. 2019). 

We sum up our analysis of Jones’s claim about the recording, assuming it ever existed, as follows. If Jones’s theory is 

that York withheld the recording, her claim fails because it 

was not material impeachment evidence. And if her theory is 

that York destroyed the recording, her claim fails because the 

recording was not exculpatory and she failed to offer evidence of bad faith. 
20 No. 21-1989 

B 

Next, Jones argues York violated her due process rights by 

fabricating evidence. “[A] police officer who manufactures 

false evidence against a criminal defendant violates due process if that evidence is later used to deprive the defendant of 

her liberty in some way.” Whitlock v. Brueggemann, 682 F.3d 

567, 580 (7th Cir. 2012). The district court ruled that Jones had 

“identified no such evidence.” On appeal, Jones points to

three aspects of York’s investigative reports that she believes 

were falsified: 

• York’s recollection of his March 21 interview 

with Jones;

• York’s description of the arranged March 21 

call between Onopa and Jones; and 

• York’s discussion of Jones’s cell phone records.

Starting with the March 21 interview, Jones alleges an 

omission and an error. York’s report did not inform the district attorney about Jones’s allegation that Onopa put his 

hands on her throat. York’s report also stated that Jones 

reported a theft to the Marshfield Police. The district court 

correctly determined that these anomalies did not constitute 

falsifications because the “hallmark of a fabrication case” is 

that the officer “created evidence that [he] knew to be false.” 

Petty, 754 F.3d at 423. 

During their interview, Jones told York that she reported 

Onopa’s “behavior” to the Marshfield Police. Later in the 

interview, she mentioned that Onopa took some of her belongings. In distilling the conversation post-interview, York 

reasonably inferred that Jones had reported Onopa for theft.
No. 21-1989 21

To be sure, Jones also told York that Onopa “had [her] by the 

throat,” and York did not relay this information in his report. 

But his report was a summary, directing the reader to a recording of the full conversation. York was recapitulating the 

conversation rather than transcribing it. That his report was

not a comprehensive recitation of his dialogue with Jones 

does not make it a false account.

As to the arranged March 21 phone call between Jones and 

Onopa, Jones disputes York’s recollection of the conversation. 

She tries to leverage York’s statements to Bornbach on March 

28, when York characterized Onopa’s statements as “extortion.” But Jones does not explain why York’s actual police report is inconsistent with his statements to Bornbach. While

York did not use the term “extort” in his report, he described 

the recorded conversation in detail, relaying Onopa’s offer to 

hand over an allegedly incriminating recording in exchange

for $3,500. What he described is consistent with the term “extortion.”

Finally, Jones targets Onopa’s recording, claiming “York’s 

report regarding the alleged confession—that he was sure the 

female voice was Jones, that he could hear she admitted to 

burning her house—is misleading because the female voice is 

inaudible at best.” But, as the district court recognized, York’s 

report admitted that “background noises ... made it difficult 

at times to clearly hear the voices.” So, York honestly stated 

that his impression was not certain. Jones also faces a causation issue because the jury listened to the recording and necessarily made its own determination about the identity of the 

voices and the content of their words. The plaintiff must show 

that the fabrication of evidence caused a deprivation of 
22 No. 21-1989 

liberty. See Whitlock, 682 F.3d at 582. Jones cannot meet this 

burden, and the district court properly rejected her claim.

C 

Jones also claims that York falsely testified at trial about 

his March 21, 2013 police report, Jones’s cellphone records, 

and the missing March 21 recording. But under Briscoe v. LaHue, 460 U.S. 325 (1983), York is absolutely immune from 

damages liability for his trial testimony. Id. at 326; see also

Canen, 847 F.3d 407 at 415 (“It is long-established that witnesses enjoy absolute immunity.”); Stinson v. Gauger, 868 F.3d 

516, 528 (7th Cir. 2015) (en banc) (“Witnesses in a § 1983 trial 

have absolute immunity from liability based on their testimony at trial.”). “[T]his protection covers the preparation of 

testimony as well as its actual delivery in court.” Canen, 847 

F.3d at 415. 

Jones attempts to circumvent Briscoe by citing this court’s 

decision in Avery v. City of Milwaukee, 847 F.3d 433 (7th Cir. 

2017). She misunderstands Avery. There, this court clarified 

that police officers who fabricate evidence cannot immunize 

themselves by authenticating it at trial. Avery, 847 F.3d at 441. 

In other words, police officers cannot purify fabricated evidence by invoking Briscoe’s absolute-immunity rule. Id. As 

discussed above, although we view the facts in the light most 

favorable to her, Jones failed to show a genuine dispute of fact 

as to whether York fabricated evidence. That ends the matter.

D 

Finally, Jones argues she was wrongfully detained in violation of the Fourth Amendment. In Manuel v. City of Joliet, 137 

S. Ct. 911 (2017), the Supreme Court clarified that “detention 

without probable cause violates the Fourth Amendment 
No. 21-1989 23

‘when it precedes, but also when it follows, the start of legal 

process in a criminal case.’” Lewis v. City of Chicago, 914 F.3d 

472, 474 (7th Cir. 2019) (quoting Manuel, 137 S. Ct. at 918). But 

”once a trial has occurred, the Fourth Amendment drops out: 

A person challenging the sufficiency of the evidence to support both a conviction and any ensuing incarceration does so 

under the Due Process Clause of the Fourteenth Amendment.” Manuel, 137 S. Ct. at 920 n.8; see also Kuri v. City of Chicago, 990 F.3d 573, 575 (7th Cir. 2021) (“Manuel held that the 

Fourth Amendment supplies the basis for a [wrongful-detention] claim until the suspect is either convicted or acquitted.”). 

Jones admits she was not incarcerated until after her conviction. Thus, the Fourth Amendment does not provide a remedy for her incarceration.8

∗ ∗ ∗

Although Jones was eventually exonerated on the charge 

of arson, there is no civil liability for how she was investigated 

and prosecuted. For the reasons above, we AFFIRM the district 

court’s grant of summary judgment to the defendants.

8 Jones would fare no better under a Fourth Amendment malicious 

prosecution theory, see Thompson v. Clark, 142 S. Ct. 1332 (2022), because 

she would have “to prove that the malicious prosecution resulted in a seizure.” Id. at 1337 n.2. As explained above, Jones was not seized until after 

her conviction, at which point her claim arises under the Due Process 

Clause of the Fourteenth Amendment, not the Fourth Amendment. Manuel, 137 S. Ct. at 920 n.8. Whether the Fourteenth Amendment’s procedural due process component ensures a right to be free from malicious 

prosecution is an open question. Thompson, 142 S. Ct. at 1337 n.2. But Jones 

did not raise such a claim, and the availability of post-deprivation remedies in Wisconsin likely precludes any § 1983 relief under that theory. See 

Albright v. Oliver, 510 U.S. 266, 285–86 (1994) (Kennedy, J., concurring).