Starks v. City of Waukegan (123 F. Supp. 3d 1036, 2015)

Memorandum Opinion and Order

FEINERMAN, District Judge.

Bennie -Starks spent .twenty years in prison for a 1986 rape and assault that he says he did not- commit.- In this suit-Starks alleges that Waukegan police officers William Biáng, David Deprez, and Miguel Juarez (collectively, with the City of Waukegan, “Waukegan Defendants”), dentists Russell Schneider and Carl Hag-strom (together, “Dentist Defendants”), and forensic serologist Sharon Thomas-Boyd conspired to and did violate his federal due process rights in connection with his criminal prosecution, and that they conspired to and did maliciously prosecute and intentionally inflict emotional distress on him in violation of Illinois common law. Doc. 259. Starks also alleges that the City of Waukegan and the Northeastern Illinois Regional Crime Laboratory (“NIRCL”), Thomas-Boyd’s employer, are responsible under both the common law and the Illinois Tort Immunity Act, 745 ILCS 10/9-102, for paying any judgments that he might obtain against the individual defendants; Thomas-Boyd has filed a cross-claim to similar effect against both entities. Docs. 230, 259. A three-week jury trial is set to commence on August 17, 2015. Docs. 338, 397.

Everyone except Starks has moved for summary judgment. Docs. 309, 312, 316, 319, 325, 329. Thomas-Boyd also has moved the court to declare Illinois’s certificate of innocence statute, 735 ILCS 5/2-702, unconstitutional, Doc. 386, and the Attorney General of Illinois has intervened to defend the statute’s constitutionality, Docs. 399, 401. For the following reasons, Dentist Defendants’ and NIRCL’s summary judgment motions are granted, Waukegan Defendants’ and Thomas-Boyd’s summary judgment motions are granted in part and denied in part, and Thomas-Boyd’s motion to declare the Illinois certificate of innocence statute unconstitutional is denied as moot.

Background

Starks is the primary non-movant, so the following facts are set forth as favorably to him as the record and Local Rule 56.1 permit. See Hanners v. Trent, 674 F.3d 683, 691 (7th Cir.2012); In re United Air Lines, Inc., 453 F.3d 463, 468 (7th Cir.2006). Wherever possible, the court will cite Starks’s Local Rule 56.1(b)(3)(B) responses or Local Rule 56.1(b)(3)(C) statements. Docs. 356, 360 (opposing Waukegan Defendants’ summary judgment motion); Docs. 348, 349, 350 (opposing Dentist Defendants’ motions); Docs. 352, 353 (opposing Thomas-Boyd’s motion). Dentist Defendants attached to their summary judgment materials the transcripts from Starks’s 1986 criminal trial, and the court will cite those transcripts for convenience. Does. 313-4, 313-5. The court also will cite the opinions of the Appellate Court of Illinois in Starks’s state criminal proceedings.

In the 1986 trial, which was conducted by the Circuit Court of Lake County, Illinois, a jury found Starks guilty of the January 1986 battery and rape of a 69-year-old woman in Waukegan. People v. Starks, 365 Ill.App.3d 592, 302 Ill.Dec. 769, 850 N.E.2d 206, 209 (2006) (“Starks II”). Starks was released from prison and granted a new trial in 2006 on the basis of DNA testing that excluded him as the source of the semen found on the victim and in her underwear. Id., 302 Ill.Dec. 769, 850 N.E.2d at 211; Doc. 360 at ¶ 38. The Lake County State’s Attorney dismissed the rape and attempted rape charges nolle prosequi in May 2012 and the aggravated battery charge in January 2013, and in September 2013, the Lake County court issued Starks a Certificate of Innocence declaring him “innocent of all offenses for which he was incarcerated.” Doc. 360 at ¶ 39; Doc. 360-3 at 125, 127, 129-130. Following is an overview of the facts surrounding Starks’s arrest and conviction; further details appear in the Discussion section.

On. the night of January 18, 1986, the victim stepped outside her apartment for some fresh air when, she says, she was knocked down, dragged into a ravine, beaten up, and raped. Doc. 360 at ¶ 3. Her attacker, she told police, wore a watch and carried a black trench coat and a red shopping bag. Ibid. During the attack, she ripped the watch off the attacker’s wrist, and the attacker eventually fled with the red bag but left the trench coat behind. Ibid. When police initially responded to the crime scene, the victim told them that she had only been assaulted, not raped, id. at ¶ 4, and emergency room doctors noted that there was no trauma to her vaginal area, Doc. 352 at ¶ 3. Around 5:00 a.m. on January 19, however, the victim told a hospital worker that she had been raped. Doc. 360 at ¶ 5.

A caseworker from the Illinois Department of Public Aid testified at Starks’s trial that the victim had told her that she had not actually been raped and had lied to police and medical personnel because she wanted Starks “to pay for beating her up.” Doc. 352 at ¶ 3; Doc. 313-5 at 78-79. At trial, the victim gave confused and contradictory testimony about what happened the night in question. Starks II, 302 Ill.Dec. 769, 850 N.E.2d at 210; Doc. 313-4 at 108, 114-115, 117.

Police recovered the trench coat and watch from the ravine, along with a scarf and a pair of gloves found in the coat. Doc. 356 at ¶ 6. A dry cleaning ticket in the coat eventually led police to identify Starks as its owner. Id. at ¶ 7. On January 21,1986, Starks voluntarily went to the Waukegan police station, signed a Miranda waiver, and spoke to Biang. Doc. 360 at ¶ 7. Starks admitted that the trench coat was his, and that on the night of the attack he was carrying a red bag containing a sweater he had purchased earlier that day. Id. at ¶¶ 2, 7. Several witnesses testified at trial that they had seen Starks in various taverns that night with both the trench coat and the red bag. Doc. 313-4 at 146-177. Starks told Biang that he had been robbed of the coat and watch, along with some cash and other items. Doc. 360 at ¶ 7. Starks also told Biang that he had been robbed of the red bag, but Biang’s police report indicated that Starks said that he had left the red bag at his mother’s house before the robbery. Ibid.; Doc. 360-1 at 25-26, 28-29 (Starks’s January 22, 2014 deposition testimony); id. at 136-138 (Biang’s January 21, 1986 report). Biang’s report was not admitted into evidence at trial, but his testimony was consistent with what he wrote in the report. People v. Starks, No. 2-86-1021, 168 Ill.App.3d 1162, 132 Ill.Dec. 363, 539 N.E.2d 926 (table), slip op. at 11 (Ill.App. June 2, 1988) (“Starks /”) (reproduced at Doc. 360-2 at 83-108, 93); Doc. 313-5 at 55-63 (Biang’s trial testimony). •

After taking’ Starks’s statement, Biang and Juarez went to the hospital to interview the victim. Doc. 356 at ¶ 9. The victim had earlier .described her assailant as a clean-shaven African-American male around 18 or 19 years old; Starks at the time was 26 and had a .mustache and beard. Doc. 360 at ¶¶ 2-3. Nevertheless, when Juarez showed the victim a photo array, she fingered Starks. Doc. 356 at 19. The photo array was not introduced into evidence at trial -and has since been destroyed. Doc. 360 at ¶¶ 13-14. Neither Juarez nor the victim referred to the photo array at trial; the victim identified Starks in court as her attacker. Doc. 356 at ¶¶ 34-35; Doc. 360-2 at 87; Doc. 313-4 at Í14.

Biang returned from the hospital and arrested Starks, whom Biang noticed had scratch marks on his body. Doc. 356 at ¶ 10; Doc. '352 at ¶ 7. The next morning, Deprez asked Starks how he had gotten scratched; according to Deprez’s notes, Starks responded, “I must’ve fell somewhere.” Doe. 360 at ¶ 19; Doc. 360-1 at 214-215 (Deprez’s January 22, 1986 report). Starks, however, maintains that he told Deprez that he had been scratched during the robbery. Doc. 360 at ¶ 19; Doc. 360-1 at 33-34. Deprez’s report was not admitted into evidence at trial, and his testimony was limited to stating that he had administered the Miranda, waiver to Starks. Doc. 360r-2 at 93; Doc. 313-5 at 50-54, 56 (Deprez’s trial testimony),

A grand jury indicted Starks on February 5, 1986. Doc. 360-1 at 188. Juarez, the only witness at the grand jury proceeding, testified that the victim identified Starks’s picture from the photo array and, in response to a grand juror’s question, added that the victim had “[n]o hesitation on her identi[fication] of [Starks], no.” Doc. 360-1 at 186, 188 (Juarez’s grand jury testimony). Juarez further testified that Starks’s picture had been included in the array because he “was at the scene” and because police had found his trench coat, gloves, and scarf in the ravine where the victim was attacked. Id. at 187. Juarez also told the grand jury that “there was a laundry tag located [in the trench coat] and we were able to trace the laundry tag to the cleaners and the cleaners were able to tell us who that customer had been.” Ibid. At trial, however, Juarez testified Only that the victim had told him that her attacker was 18 or 19 years old and clean shaven. Doc. 360-2 at 94; Doc. 313-5 at 85-87 (Juarez’s trial testimony).

Meanwhile, having noticed what appeared to be a bite mark on the victim’s shoulder, Biang contacted Schneider on January 22, 1986 (the day after Starks’s arrest) to serve as a forensic dental consultant on the case. Doc. 360 at ¶¶ 27-28; Doc. 349 at ¶ 34. Biang accompanied Dentist Defendants to the hospital later that day, where they saw the bite mark and helped another officer take pictures of it. Doc. 360 at ¶30; Doc. 349 at ¶ 39. Following the indictment, Dentist Defendants took photos and impressions ■ of Starks’s teeth, which they then used in their bite mark analysis. Doc. 349 at ¶¶ 40-43. In a May 13,1986 letter to the prosecutor, Dentist Defendants wrote: “We have done a detailed comparison of the bite marks with the models and have found a definite match. It is our conclusion that the bites on [the victim] were made by Benny [sic ] Starks Jr.” Doc. 360 at ¶ 35; Doc. 360-3 at 79 (Dentist Defendants’ May 13, 1986 letter). Dentist Defendants followed up on July 1,1986, describing their techniques in more detail and concluding: “The comparison of the models to the bite photo and the overlays to the bite photo indicated a very specific and unusual pattern leading üs to the conclusion that the bite on [the victim] was inflicted by Bennie Starks Jr.” Doc. 360 at ¶ 36; Doc. 360-3 at 81 (Dentist Defendants’ July 1,1986 letter).

Both Schneider and Hagstrom testified to the same effect at trial. Doc. 360-2 at 91-92; Doc. 313-4 at 224-282, 288-295; Doc. 313-5 at 2-5. According to Starks’s expert in this case, David Senn, Dentist Defendants overstated them conclusions, as the maximum level of certainty endorsed by forensic odontologist guidelines in 1986 was only within a “reasonable medical certainty.” Doc. 350 at ¶ 34; Doe. 350-3 at 38. Furthermore, according to Senn, Dentist Defendants’ photograph of the bite mark was out of focus' and therefore may not have been to scale, and, by orienting the bite mark to match the victim’s description of the attack (and to match Starks’s dentition), they reversed the maxillary (upper) and mandibular (lower) jaws. Doc. 350 at ¶¶ 27, 32; Doc. 350-3 at 37-38.

Thomas-Boyd was a forensic scientist and serologist who in 1986 worked for the Northern Illinois Police Crime Laboratory, NIRCL’s predecessor. Doc. 352 at ¶ 9. Assigned to the Starks case, Thomas-Boyd submitted four serology reports dated January 28, February 28, March 5, .and April 10,1986. Id. at ¶ 14; Doc. 317-2 at 44-62. Her first report requested blood, saliva, and hair samples from Starks, and a saliva sample from the victim. Doc. 317-2 at 50. Her final report concluded: “in order to make a sound scientific decision concerning the possible exclusion of the suspect, Bennie Starks, as a possible source of the foreign blood groups detected on the submitted vaginal swab ... and underwear ..., a semen standard from Bennie Starks is required.” Doc. 317-2 at 61; Doc. 353 at ¶¶ 22-24. Accordingly, the prosecutor filed a pretrial motion to obtain a semen sample, but Starks objected and the trial judge denied the motion. Doc. 352 at ¶ 13; Doe. 317-2 at 64-66. Thomas-Boyd’s final report also included a “Table of Results/Blood Genetic Marker Analysis,” which showed that only H antigens had been found in the vaginal swab and semen stain on the victim’s underwear. Doc. 352 at ¶ 12; Doc. 353 at ¶ 25; Doc. 317-2 at 62. The report indicated that the victim was a type O non-secretor (meaning she did not secrete blood type antigens in her bodily fluids), and that Starks was a type B se-cretor (meaning he secreted both B and H antigens in his bodily fluids). Doc, 352 at ¶ 12; Doc. 353 at ¶¶25, 31; Doc. 317-2 at 62. Although some type B secretors secrete more H than B antigens, "Doc. 352 at ¶ 12, Senn opines that only five percent of secretors fall into this “aberrant secretor” category, Doc. 353 at ¶¶ 29, 31.

Thomas-Boyd did not explain this detail either in her report or at trial, where she testified simply: “I could not exclude [Starks] as a possible source of the semen. That means that I have to include him.” Doc. 313-5 at 22-23. DNA testing in 2000 and 2005 conclusively showed that Starks was not the source of the semen. Starks II, 302 Ill.Dec. 769, 850 N.E.2d at 215; Doc. 360 at ¶ 37; Doc. 378 at ¶ 37; Doc. 353-3 at 10, 46; see also People v. Starks, 359 Ill.Dec. 26, 966 N.E.2d 347, 350 (Ill. App.2012) (“Starks III”) (“the DNA test results excluded] defendant as the source of the semen”).

The jury convicted Starks of “two counts of aggravated criminal sexual assault, one count of attempted aggravated criminal sexual assault, one count of aggravated battery, and one count of unlawful restraint.” Starks III, 359 Ill.Dec. 26, 966 N.E.2d at 350 (citations omitted). The trial court vacated the unlawful, restraint conviction as a lesser included offense, ibid., and in 1988 the state appellate court on direct appeal vacated one of the aggravated sexual assault convictions, Starks I, slip op. at 26 (Doc. 360-2 at 108). Starks ultimately was sentenced to 60 years’ imprisonment on the remaining aggravated sexual assault conviction, to be served concurrently with a 15-year sentence for the attempted aggravated sexual assault and a 5-year sentence for the aggravated battery. Starks II, 302 Ill.Dec. 769, 850 N.E.2d at 210-11.

In March 2002, armed with DNA testing results, Starks filecj a post-conviction petition for a new trial on the sexual assault and attempted sexual assault charges, which the Appellate Court of Illinois granted in 2006. Id., 302 Ill.Dec. 769, 860 N.E.2d at 211, 214-15. Having spent the past twenty years behind bars, Starks was released on bond in October 2006. People v. Starks, 363 Ill.Dec. 269, 975 N.E.2d 71, 74 (Ill.App.2012) (“Starks IV”). Starks then filed a supplemental post-conviction petition in 2007 asking for a new trial on the aggravated battery count, too. Ibid.

Starks filed this suit in January 2009. Doc. 1. This court stayed the suit pending the resolution of Starks’s state court criminal proceedings. 2010 WL 481290 (N.D.Ill. Feb. 4, 2010) (Coar, J.-). After the Lake County State’s Attorney agreed to vacate the aggravated battery conviction and dismiss that charge nolle'prosequi in January 2013, this court lifted the stay and allowed Starks to file an amended complaint. Doc. 94. Motion practice ensued, and the court ultimately denied Defendants’ motions to dismiss. Docs. 117-118, 146-147, 187-188 (reported at 946 F.Supp.2d 780 (N.D.Ill.2013); 2013 WL 5874563 (N.D.Ill. Oct. 31, 2013)).

Starks’s fourth amended complaint has twelve counts (two of them labeled Count 9, which the court will call “9a” and “9b”), as summarized by this table:

City of Biang, De- Schneider & Thomas- NIRCL Waukegan prez, & Jua- Hagstrom Boyd rez

1: § 1983 due process XXX

2': § 1983 failure to inter- X vene '

3: § 1983 civil conspiracy X X X

4: § 1983 Monell liability X 5: Illinois malicious prose- X X X cution

6: Illinois IIED ' ' X X X

7: Illinois civil conspiracy XXX

8: Respondeat superior lia- X . bility for police officers

9a: Liability under 745 'X ILCS 10/9-102 for police officers .

10: Respondeat superior li- X ability for Thomas-Boyd

9b: Liability under 745 X ILCS 10/9-102 for Thomas-Boyd

11: Implied indemnity lia- X • - bility for Thomas-Boyd

Doc. 259. The court has original jurisdiction over the § 1983 claims under 28 U.S.C. § 1331 and supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367(a).

Discussion

I. Section 1983 Due Process Claims

Count 1 of the complaint alleges that the individual defendants violated Starks’s Fourteenth Amendment due process rights by suppressing favorable evidence and/or by fabricating unfavorable evidence. Doc. 259 at ¶¶ 63-70.. “[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); see also Armstrong v. Daily, 786 F.3d 529, 550 (7th Cir.2015) (referencing Brady’s “familiar holding that suppression of material exculpatory evidence violates due process”) (emphasis removed). In addition, “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).

A. Waukegan Defendants

Starks alleges that Juarez, Duprez, and Biang — the three Waukegan police officers — deprived him of due process by suppressing favorable evidence and/or by fabricating unfavorable evidence against him. Specifically, he alleges that Juarez deliberately doctored the photo array that he showed the victim at the hospital, causing her to falsely identify him as the attacker. Starks also alleges that on January 22, 1986, he told Deprez that he had been scratched during the robbery; De-prez’s report, by contrast, states that Starks could not explain the scratches and offered only the feeble excuse that he “must’ve fell soniewhere.” Doc. 360 at ¶ 19; compare Doc. '360-1 at 33-35 (Starks’s deposition testimony) with id. at 214-215 (Deprez’s report). Finally, Starks alleges that on January 21, 1986, he told Biang that he had been robbed of the red bag containing the sweater; Biang’s report and subsequent testimony, by contrast, stated that Starks claimed that he had earlier left the red bag at his mother’s apartment.- Doc. 360 at ¶ 7; compare Doc. 360-1 at 25-26, 28-29 (Starks’s deposition testimony) with id. at 136-138 (Biang’s report); Doc. 313-5 at 84-85 (Biang’s trial testimony). Waukegan Defendants do not argue that they are entitled to qualified immunity for these alleged misdeeds, so the only question is whether, on the summary judgment record, a reasonable jury could find for Starks on his due process claim against the officers.

None of Starks’s allegations would permit a reasonable jury to find that Waukegan Defendants suppressed favorable evidence in violation of Brady. “Evidence is ‘suppressed’ when (1) the prosecution failed to disclose the evidence in time for the defendant to make.use of it, and (2) the evidence was not otherwise available to the defendant through the exercise of reasonable diligence.” Carvajal v. Dominguez, 542 F.3d 561, 567 (7th Cir.2008) (emphasis added); see also Petty v. City of Chicago, 754 F.3d 416, 423 (7th Cir.2014) (same). Starks’s being scratched during the robbery and the red bag’s being stolen were both known to him; after all, they formed part of his alibi. Deprez and Biang therefore could not have “suppressed” this evidence within the meaning of Brady. See Harris v. Kuba, 486 F.3d 1010, 1015 (7th Cir.2007) (“The'fact that Harris had an alibi for the Mexico City Café shooting was ‘otherwise available’ to Harris.”); United States v. Lee, 399 F.3d 864, 865 (7th Cir.2005) (“Brady ... deals with the concealment of exculpatory evidence unknown to the defendant. Lee was aware of his own pants.”). Like the plaintiff in Harris, Starks “essentially seeks an extension of Brady to provide relief if a police officer makes a false statement to a prosecutor by arguing that an officer is ‘suppressing’ evidence of the truth by making the false statement. [The Seventh Circuit] has already foreclosed this extension.” 486 F.3d at 1017; see also Saunders-El v. Rohde, 778 F.3d 556, 562 (7th Cir.2015) (same). Accordingly, Biang and Deprez did not “suppress” Starks’s alibi by failing to mention it — or to admit their own alleged fabrications — to prosecutors.

The same holds for Juarez’s allegedly flawed photo array procedures, as explained by Petty:

Petty .alleges that CPD officers coerced Tarver into giving false evidence by threatening him with jail time if he did not cooperate, holding him against his will in a locked room without food or water for over 13 hours, badgering him, and pressuring him to identify Petty as one of the assailants....

Petty not only .knew of Tarver’s treatment before his trial began, he had the ■opportunity to explore this topic at trial and could have subpoenaed the CPD officers to compel their testimony to cast doubt on Tarver’s identification. Because Petty knew of Tarver’s alleged coerced identification before his trial started and had sufficient tim,e to use that information at his trial, .summary judgment was appropriate on the Brady claim. , ' •

754 F.3d at 423-24. Likewise,, .Starks knew about Juarez’s having shown the victim a photo array, and he indisputably “had the opportunity to explore this topic at trial” — in fact, it was Starks who called Juarez as a witness. When examining Juarez, Starks’s attorney attempted to undermine the victim’s in-court identification:

Q Okay. And did you have occasion to speak to [the victim] concerning a description of the alleged offender?

A. Yes, I did.

Q. And did she- tell you, officer, that the alleged offender had no facial hair?

A. Yes, she did.

Q. Did she also tell you that the alleged offender was approximately 18 to 19 years of age?

A. Yes, she did.

Doc. 313-5 at 86-87 (Juarez’s trial testimony). Given the circumstances, Juarez did not “suppress” evidence in violation of Brady,

Although Starks has no Brady claim against Waukegan Defendants, they might still have violated due process by fabricating inculpatory evidence. As noted above, “a police officer who manufactures false evidence against a criminal defendant violates due process if that evidence is later used tó deprive the defendant of her liberty in some way.” Whitlock, 682 F.3d at 580 (emphasis added). The italicized phrase is the key one — to violate due process, the falsified evidence must have “involved not merely the fabrication, but the introduction of the fabricated evidence at the criminal defendant’s trial. For if the evidence hadn’t been used against the defendant, he would not have been harmed by it, and without a harm there is, as we noted earlier, no tort.” Fields v. Wharrie, 740 F.3d 1107, 1114 (7th Cir.2014); see also Saunders-El, 778 F.3d at 560 (“[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 [his] liberty in some way.”) (internal quotation marks omitted).

Deprez’s report was not introduced into evidence at trial or offered to the grand jury, and he did not testify about its contents. Deprez’s trial testimony was limited to stating that he obtained a Miranda waiver from Starks before Biang’s January 21 interview. Doc. 313-5 at 50-54, 56. Accordingly, Deprez’s alleged fabrications about what Starks said about his scratches could not. have violated his due process rights. See Armstrong, 786 F.3d at 553 (“We have observed, for example, that an accused has no claim against an officer who fabricates evidence and puts the evidence in a drawer,- never to be used.”); Fields, 740 F.3d at 1114 (as quoted in the paragraph immediately above); Whitlock, 682 F.3d at 582 (“[I]f. an officer (or investigating prosecutor) fabricates evidence and puts that fabricated evidence in a drawer, making no further use of it, then the officer has not violated due process; the action did not cause an infringement of anyone’s liberty interest.”).

Likewise, Juarez’s allegedly doctored photo array was never introduced into evidence at trial, thereby absolving Juarez of any potential liability. In Alexander v. City of South Bend, 433 F.3d 550 (7th Cir.2006), the Seventh Circuit held: “The Constitution does not require that police lineups, photo arrays, and witness interviews meet a particular standard of quality. It does, however, guarantee the right to a fair trial — in this context, via the due process clause of the Fourteenth Amendment — and that right is violated if unduly suggestive identification techniques are allowed to taint the trial.” Id. at 555 (citation omitted). So even if Juarez’s photo array was suggestive, it did not “taint the trial” because neither it nor testimony about it was offered or admitted at trial. See ibid. (“[F]lawed identification procedures are not themselves constitutional violations;' plaintiffs must" show how those flawed procedures compromised the constitutional right to a fair trial.”).

Juarez did testify before the grand jury that the victim with “[n]o hesitation” identified Starks’s picture from the photo array. Doc. 360-1 at 186, 188 (Juarez’s grand jury testimony). (The photo array itself was not shown to the grand jury.) But lying to a grand jury, if that is what Juarez did, is not actionable as a constitutional tort under § 1983, for “a grand jury witness has absolute immunity from any § 1983 claim based on the witness’ testimony.” Rehberg v. Paulk, — U.S.-, 132 S.Ct. 1497, 1506, 182 L.Ed.2d 593 (2012). “[T]his rule may not be circumvented by claiming that a grand jury witness conspired to present false testimony or by using evidence of the witness’ testimony to support any other § 1983 claim concerning the initiation or maintenance of a prosecution. Were it otherwise, a criminal defendant turned civil plaintiff could simply reframe a claim to attack the preparation instead of the absolutely immune actions themselves.” Ibid. (quotation marks omitted); see also Buckley v. Fitzsimmons, 20 F.3d 789, 795 (7th Cir.1994) (“For if the constitutional entitlement is a right to prevent use of the [false] confession ... before the grand jury[], then absolute immunity under Imbler [v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) ] defeats Buckley’s claim.”). Rehberg acknowledged that “law enforcement officials who falsify affidavits ... [or] fabricate evidence concerning an unsolved crime” outside of the grand jury context are not absolutely immune from § 1983 liability, 132 S.Ct. at 1507 n. 1, but Starks has not adduced evidence Suggesting that Juarez did either of those things.

Even if Juarez were not protected by absolute immunity for his testimony before the grand jury, Starks has not identified— and the court’s own research has not revealed — any Seventh Circuit or Supreme Court case recognizing a due process (as opposed to malicious prosecution) claim based on false evidence or testimony that was presented to a grand jury but never introduced at trial. Cf. Saunders-El, 778 F.3d at 561 (“Nor does the burden of appearing in court and attending trial, in and of itself, constitute a deprivation of liberty.”). Moreover, in the specific context of flawed or overly suggestive identification techniques, the Seventh Circuit in Alexander squarely held that the due process right is limited to the right to a fair trial: “Grounded in due process, the constitutional interest implicated in challenges to police identification procedures is evi-dentiary in nature.... Accordingly, South Bend cannot be liable under § 1983 unless Alexander shows how the flaws in South Bend’s identification techniques made his trial unfair.” 433 F.3d at 555. So even if as a general matter, and notwithstanding Rehberg, presenting certain kinds of false evidence to a grand jury were somehow actionable as a constitutional tort, Alexander holds that presenting the results of an overly suggestive lineup or photo array is not.

Fields’s remarking “the fabrication of evidence harmed the defendant before and not just during the trial, because it was used to help indict him,” 740 F.3d at 1112, does not establish that a plaintiff can maintain a § 1983 suit based solely on the use of fabricated evidence or testimony to -procure an indictment. That passage in Fields, which did not cite Rehberg, explicitly relied on Julian v. Hanna, 732 F.3d 842, 846-47 (7th Cir.2013), which involved a malicious prosecution claim — a federal malicious prosecution claim, which was allowed because Indiana law was found not to provide an adequate remedy under the circumstances of that case. See Bianchi v. McQueen, 2014 WL 700628, at *11 (N.D.Ill. Feb. 24, 2014) (making the same point about Fields and Julian), on appeal, No. 14-1635 (argued Apr. 16, 2015). And malicious prosecution, of course, is all about the baseless initiation of criminal proceedings — unlike the due process clause. See Albright v. Oliver, 510 U.S. 266, 283, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (Kennedy, J., concurring in the judgment) (“the due process requirements for criminal proceedings do not include a standard for the initiation of a criminal prosecution”). Furthermore, that passage from Fields appears in a hypothetical in which a prosecutor, acting in an investigative capacity, fabricates evidence that, a second prosecutor then uses to obtain a conviction. 740 F.3d at 1112. The hypothetical thus explicitly involved the introduction of fabricated evidence at trial; the question was whether the first prosecutor — the one who fabricated the evidence but then dropped out of the case — could be held liable for the fabrication. Fields answered “yes.” Ibid. But nowhere did Fields question the requirement that the fabricated evidence must be introduced at trial; to the. contrary, it reaffirmed that requirement. Id. at 1114 (requiring “the introduction of the fabricated evidence at the criminal defendant’s trial” as an element of the Whitlock fabrication tort).

Likewise, citing that passage from Fields, Armstrong reasoned that an eventually acquitted defendant is still deprived of his liberty if he is imprisoned awaiting trial, and therefore that if police irretrievably destroy (as opposed to’ merely suppress) exculpatory evidence, the defendant may have a viable Brady claim. 786 F.3d at 551-52 (“Destruction is not easy to remedy. Deliberate destruction of evidence with potential or apparent exculpatory value can make it impossible for the accused to receive due process of law, regardless of the procedural posture of the criminal case at the time of the destruction.”). This passage from Armstrong is inapposite, for it involved the destruction of evidence and not fabricated grand jury testimony. Moreover, Armstrong reaffirmed that a viable Whitlock claim requires the fabricated evidence to have been introduced at trial: “[A]n accused has no claim against an officer who fabricates evidence and puts the evidence in a drawer, never to be used.” 786 F.3d at 553.

In any event, because the Seventh Circuit has not circulated to the full court under Circuit Rule 40(e) the question whether Alexander should be overruled, it cannot be understood in Fields or Armstrong to have silently overruled the requirement that a faulty photo array must taint the trial in order for it to give rise to a due process violation. See Iqbal v. Patel, 780 F.3d 728, 729 (7th Cir.2015) (“Iqbal maintains, however, that we abandoned Kelley [v. Med-1 Solutions, LLC, 548 F.3d 600 (7th Cir.2008) ] in Johnson v. Pushpin Holdings, LLC, 748 F.3d 769 (7th Cir.2014), without so much as citing it. That’s not how precedent works. In this circuit it takes a circulation to the full court under Circuit Rule 40(e) for one panel to overrule another.”); Brooks v. Walls, 279 F.3d 518, 522 (7th .Cir.2002) (same). For these reasons, Starks cannot maintain his § 1983 claim against Juarez based on his grand jury testimony about the victim’s photo identification.

That leaves Biang’s alleged fabrications. Biang’s report, which stated that Starks claimed to have dropped off the red bag before he was robbed, was not admitted into evidence or offered to the grand jury, and so for the reasons discussed above it could not have violated Starks’s due process rights. See Armstrong, 786 F.3d at 553; Fields, 740 F.3d at 1114; Whitlock, 682 F.3d at 582. Biang did, however, testify to the same effect at the trial. The detail about the red bag was not a trifle. Affirming Starks’s conviction on direct review, the Appellate Court of Illinois noted:

[T]he complainant testified her assailant fled the scene carrying a red bag. According to defendant’s statement, he had dropped this red bag off at his mother’s house before he was robbed. Thus, defendant’s statement to the police [about having been robbed] has little, if any, exculpatory value.

Starks I, slip op. at 19 (Doc. 360-2 at 101). Yet there is no federal due process remedy when a police officer perjures himself on the stand because police officers, like other witnesses who testify in a criminal proceeding, have absolute immunity for the content of their testimony. See Briscoe v. LaHue, 460 U.S. 325, 345, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983); Khorrami v. Rolinee, 539 F.3d 782, 789 (7th Cir.2008). Immunity aside, moreover, “[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 jurors to determine where the truth lies.’” Sornberger v. City of Knoxville, 434 F.3d 1006, 1029 (7th Cir.2006) (quoting Buie v. McAdory, 341 F.3d 623, 625-26 (7th Cir.2003)). Somberger involved a Brady claim, but the language quoted above indicates that its holding is broader (“the Constitution does not require”), resulting in the conclusion that because Starks had the opportunity to challenge Biang’s false testimony in front of the jury, he received all the constitutional process he was due.

There admittedly is tension between Somberger and Whitlock. If, as Whitlock holds, a police officer violates due process by fabricating testimony for other witnesses to deliver in court, why should the officer escape liability if he gives the false testimony himself? Either way, the defendant suffers, the sanie harm. But the same tension exists in the grand jury cop-text, where the Supreme Court — recognizing that, as here, absolute immunity does not “extend[ ] to all activity that a witness conducts outside of the grand jury room” — has nonetheless held that immunity “may not be circumvented by ... re-framing] a claim to attack the preparation instead of the absolutely immune actions themselves.” Rehberg, 132 S.Ct. at 1506-07 & n. 1. And .there may be good reason to treat the two situations differently; perhaps the officer’s potential exposure to a perjury- prosecution or other sanction is thought to be enough of a deterrent so as to satisfy due process. Cf ibid, (“law enforcement witnesses face the possibility of sanctions not applicable to lay witnesses, namely, loss of their jobs and other employment-related sanctions”).

The important point, however, is that Whitlock did not purport to overrule Som-berger, which remains gopd law in the Seventh Circuit and, being squarely on point (“The Constitution does not require that police testify truthfully,” 434 F.3d at 1029), decides the issue here. See Iqbal, 780 F.3d at 729; Brooks, 279 F.3d at 522. Therefore, Biang’s allegedly false recounting of his own conversation with Starks cannot, under governing Seventh Circuit precedent, serve as the basis for a due process claim under § 1983. Nor can his allegedly false report, since it was never used against Starks during the criminal proceedings. Waukegan Defendants are therefore entitled to summary judgment on Starks’s federal due process claim.

B. Dentist Defendants

The court will treat Dentist Defendants’ together, given that they co-authored the expert reports in Starks’s prosecution, Doc. 350 at ¶¶25, 34, 35, and testified to similar effect at his criminal trial, Doc. 313-4 at 256 (Schneider testifying: “My opinion is that Mr. Starks bit [the victim] in the shoulder.”); id. at 295 (Hagstrom: “It is my opinion that Bennie Starks inflicted the bite on [the victim].”); Doc. 313-5 at 2, 5' (Hagstrom testifying that he and Schneider arrived at their respective opinions “at the same time”' because they “conducted [their] examinations and tests simultaneously”); Doc. 350-3 at'-27 (Schneider and Hagstrom’s jointly 'signed May 13, 1986 letter to the prosecutor stating: “It is our conclusion that the bites on [the victim] were made by Benny [sic] Starks Jr,”); Doc; 350-3 at 29 (same, in a July 1, 1986 letter to the prosecutor). Represented, by the same lawyers, they have filed virtually identical briefs in this case. Compare Docs. 311, 375 (Schneider’s briefs) with Docs. 314, 384 (Hagstrom’s briefs).

Based on their analysis of the bite mark on the victim’s shoulder, Dentist Defendants opined that Starks was the biter. The court previously held that Dentist Defendants are absolutely immune for their trial testimony, 946 F.Supp.2d at 788-89, 799, and Dentist Defendants continue to press both absolute and (unlike Waukegan Defendants) qualified immunity for their other alleged misdeeds, Doc. 311 at 7-9, 23-26. Their absolute immunity argument is really 'just an argument on the merits, id. at 7-9, and it is questionable whether private dentists are even entitled to assert qualified immunity under § 1983. See Currie v. Chhabra, 728 F.3d 626, 632 (7th Cir.2013) (finding “persuasive” the Sixth Circuit’s holding in McCullum v. Tepe, 693 F.3d 696 (6th Cir.2012), that a private doctor providing services to state prison inmates is- ineligible for qualified immunity); Shields v. Ill. Dep’t of Corr., 746 F.3d 782, 794 n. 3 (7th Cir.2014) (same); compare Filarsky v. Delia, — U.S.-, 132 S.Ct. 1657, 1665, 1668, 182 L.Ed.2d 662 (2012) (holding that a private lawyer retained by the city is entitled to assert a qualified immunity defense because “immunity under § 1983 should not vary depending on whether an individual working for the government does so as a full-time employee, or on some other basis”), with Richardson v. McKnight, 521 U.S. 399, 412, 117 S.Ct. 2100, 138 L.Ed.2d 540 (1997) (holding that “private prison guards, unlike those who work directly for the government, do not enjoy immunity from suit in a § 1983 ease”). Dentist Defendants also argue that they are not “state actors” for purposes of § 1983. Doc. 351 at 10-13; but see Burke v. Town of Walpole, 405 F.3d 66, 88 (1st Cir.2005) (holding that a forensic odontologist was a state actor because he “rendered a bite mark opinion only because the Norfolk District Attorney’s Office, at the recommendation of the state’s own forensic odontologist, sought his assistance with the analysis of forensic evidence in a criminal investigation”). The court need not resolve these issues, as Dentist Defendants prevail on the merits of Starks’s due process claim.

Supported by the opinion of Senn, his retained expert in this case, Starks argues that Dentist Defendants’ opinion at his trial that he bit the victim was riddled with so many errors - as to amount to a due process violation. In 2009, the National Academy of Sciences released a report on the use of forensic science in the courtroom. National Academy of Sciences, “Strengthening Forensic Science in the United States” (2009), www.nap.edu/ catalog/12589/strengthening-forensic-science-in-the-unitedstates-a-path-forward. The report noted that “[fjorensic odontolo-gy, the^ application of the science of dentistry to the field of law, includes several distinct areas of focus: the identification of unknown remains, bite mark comparison, the interpretation of oral injury, and dental malpractice.” Id. at 173. The report’s evaluation of bite mark matching, “the most controversial of the four areas just mentioned,” ibid., is devastating:

Although the majority of forensic odon-tologists are satisfied that bite marks can demonstrate sufficient detail for positive identification, no scientific studies support this assessment, and no large population studies have been conducted. In numerous instances, experts diverge widely in their evaluations of the same bite mark evidence, which has led to questioning of the value, and scientific objectivity of such evidence.

Id. at 176 (emphasis added, footnotes omitted); see also Brandon L. Garrett & Peter J. Neufeld, “Invalid Forensic Science Testimony and Wrongful Convictions,” 95 Va. L.Rev. 1, 67-71 (2009). The report explains:.

Some of the basic problems inherent in bite mark analysis and interpretation are as follows:

(1) The uniqueness of the human dentition has not been .scientifically established.

(2) The ability of the dentition, if unique, to transfer a unique pattern to human skin and the ability of the skin to maintain that uniqueness has not been scientifically established.

i. The ability to analyze and interpret the scope or extent of distortion of bite mark patterns on human skin has not been 'demonstrated.

ii. The effect of distortion on different comparison techniques is not fully understood and therefore has not been quantified.

(3)‘ A standard for the type, quality, and number of individual characteristics required to indicate that a bite mark has reached a threshold of evi-dentiary value has no.t been estaba lished.'

National Academy of Sciences, supra, at 175-76 (footnotes-omitted).

There appears to be little, if any, scientifically valid data to support the accuracy of bite mark’ comparison, and the data that does exist is damning. A 2011 peer-reviewed article found that because skin easily distorts, it is a poor medium for bjte marks; the article described an experiment in which a single' “dentition” wp used to produce nearly a hundred bite marks in both skin and wax, and the resulting skin marks not only failed to match the dentition that created them,,but were often closer matches to other dentitions (those that did not create the marks). Mary. A. Bush, Peter J. Bush, & H. David Sheets, Study of Multiple Bitemarljs Inflicted in Human Skin by a Single Dentition Using Geometric Morphometric Analysis,” 211 Forensic Sci Int’l 1, 1-8 (Sept. 2011); see also National Academy of Sciences, supra, at 174 (“Unfortunately, bite marks on the skin will change over time and can be distorted by the elasticity of the skin,, the unevenness of the surface bite, and swelling and healing.. These features play severely limit the validity of forensic odontology.”). A 2006 peer-reviewed article lamented the “disturbingly high, false-positive error rate” of bite mark matching, as evidenced in part by a 1999 workshop conducted by the. American Board of Forensic Odontology, in which experts who “attempted to match four bitemarks to seven dental models found 63.5% false positives.” C. Michael Bowers, “Problem-Based -Analysis of Bitemark Misidentifications,” 159S Forensic Sci. Int’l S104, S106-S107 (2006). Sixty-three percent! The article also describes other studies with similarly alarming findings. Id. at S106.

It is therefore doubtful that “expert” bite mark analysis would pass muster under Federal Rule of Evidence 702 in a case tried in federal court. See Fed.R.Evid. 702(c) (requiring that expert testimony be “the product of reliable principles and methods”); D. Michael Risinger, “Navigating Expert Reliability: Are Criminal Standards of Certainty Being Left on the Dock?,” 64 Albany L. Rev. 99, 142 (2000) (“[B]ite mark identification has little published data from studies showing that forensic odontologists can identify the origin of a bite mark under non-ideal conditions, or how various non-ideal conditions affect individual and group performance. There have been proficiency studies, but the results have never been made public.... So bite mark experts have benefited from their ability (up to now) to do few proficiency studies and to keep secret the results of such proficiency studies as have been done; isn’t this backward?”); see also Ege v. Yukins, 485 F.3d 364, 376 (6th Cir.2007) (opining that “[b]ite mark evidence may by its very nature be overly prejudicial and unreliable,” and granting habeas relief because trial counsel was ineffective for not objecting under Frye to such evidence). Yet state courts have regularly accepted bite mark evidence — including in all three States in the Seventh Circuit. See State v. Stinson, 134 Wis.2d 224, 397 N.W.2d 136, 137-40 (Wis.App.1986); Niehaus v. State, 265 Ind. 655, 359 N.E.2d 513, 516 (1977); People v. Milone, 43 Ill.App.3d 385, 2 Ill.Dec. 63, 356 N.E.2d 1350, 1360 (1976); see also People v. Wright, 1999 WL 33446496, at *2 (Mich.App. Apr. 23, 1999) (“Bite mark comparison evidence is currently admissible in at least thirty-five states.”); Erica Beecher-Monas, “Reality Bites: The Illusion of Science in Bite-Mark Evidence,” 30 Cardozo L.Rev. 1369, 1395 (2009) (same, and further noting that “[b]y far the most widely used gate-keeping avoidance technique that judges employ is admitting bite-mark evidence because other courts have done so”). In approving the admission of bite mark evidence, Stinson concluded:

[B]ite mark identification evidence presented by an expert witness can be a valuable aid to a jury in understanding and interpreting evidence in a criminal trial. The bite mark evidence presented in the case enabled the jury to see the comparisons being made by the experts. By looking directly at the physical evidence used, the models and the photos, the jury was able to judge for itself whether Stinson’s teeth did in fact match the bite marks found on the victim’s body.

397 N.W.2d at 140. The defendant in Stinson ultimately was exonerated on the basis of DNA evidence and released from prison after spending 23 years behind bars. See Stinson v. City of Milwaukee, 2013 WL 5447916, at *1, *11 (E.D.Wis. Sept. 30, 2013).

Starks argues that Dentist Defendants’ bite mark “analysis” was so far outside the norms of bite mark matching, such as they were in 1986, that it violated due process. For this assertion, Starks relies on the opinion of Senn, a forensic odontologist himself who has testified as a bite mark expert in many criminal cases. Doc. 313-20 at 48-50 (Senn’s CV). Eighty years ago, Upton Sinclair observed: “It is difficult to get a man to understand something, when his salary depends upon his not understanding it!” Upton Sinclair, I, Candidate for Governor: And How I Got Licked 109 (Univ. of Calif. Press 1994) (1935). Illustrating Sinclair’s point, Senn opines not that bite mark matching is inherently unreliable, but only that Dentist Defendants made analytical errors and overstated their conclusions in Starks’s criminal case. Doc. 350 at ¶¶25, 27, 32, 34; Doc. 350-3 at 31-38 (Senn’s May 10, 2010 report); id. at 59-64 (Senn’s Nov. 25, 2014 report); see also Risinger, supra, at 142 (“[Wjhile forensic odontologists are not loathe to testify against each other before a jury as a matter of ‘opinion,’.they have not apparently been breaking down any doors to testify,to the rational limits of their own expertise.”). Here is Starks’s recitation of Dentist Defendants’ alleged misfeasance:

[Dentist Defendants] had a pre-existing relationship with the Waukegan Police Department and at some point Dr. Schneider was Sgt. Biang’s personal dentist; were initially requested “to identify the bite marks and match them with the person that we had in custody”; failed to follow basic odontological procedures in recording their evidence gathering; recklessly proceeded with comparing the bite mark to Starks when it turned out that the photograph of the mark was so poor that the scale was out of focus; failed to examine other photographs that were taken of the bite mark on January 19, 22 and 29; failed to preserve the photograph of the bite mark that they used to compare the mark to Starks’ dentition; matched the maxillary portion of Starks’ dentition to the mandibular portion of the bite mark because this was the only way it would fit; issued opinions that stated that Starks definitely made the bite mark even though this level of certainty violated odontological guidelines; stated to Biang that Starks made the bite mark beyond any question; used an experimental chart to assert to the prosecutor and the jury that there were 62 points of similarity between the photo of the bite mark and Starks’ dentition but failed to reveal that the chart was experimental and not generally accepted in the odon-tological community; failed to have their work reviewed by an experienced' odon-tologist with whom Dr. Schneider had a close relationship, even though this was the first real case in which they were comparing a bite mark to a model, other than in classes; and stated that Starks definitely made the bite mark even though in fact that was not their opinion and their real opinion was that Starks could have made the bite mark but so could another person.

Doc. 351 at 9-10.

None of these allegations amount to due process violations. The only one that even comes close is that Dentist Defendants “failed to preserve the photograph of the bite mark that they used to compare the mark to Starks’ dentition.” Id. at 9. But this allegation is highly misleading; in support, Starks cites Schneider’s deposition testimony, Doc. 350 at ¶ 32 (citing Doc. 350-2 at 114-118), which states that Dentist Defendants produced at trial a slide containing both the photo and the comparison model together, instead of each one individually. In any event, even if Starks’s assertion had record support, nowhere does he allege that Dentist Defendants’ failure to keep that particular photo was in bad faith or a deliberate attempt to hide favorable evidence. Absent such an allegation, supported by the evidence, the mere failure to preserve the photograph is not a due process violation. See Armstrong, 786 F.3d at 552 (holding that “bad-faith destruction of exculpatory evidence” or “[djeliberate destruction of evidence with potential or apparent exculpatory value” is a due process violation) (emphases added).

Starks’s remaining allegations, ultimately boil down to a complaint that Dentist Defendants’ report and testimony were incompetent and wrong, maybe grossly so, even by the standards of bite mark matching in 1986. This claim faces an insurmountable obstacle in Buie v. McAdory, which explained: .

No decision of the Supreme Court “clearly establishes” that experts (or any other witnesses) must be right; the constitutional rule is that the defendant is entitled to a trial that will enable jurors to determine, where the truth lies. That a witness may give false or mistaken testimony therefore is not an independent constitutional violation. What the Constitution provides is assurance that evidence may be tested by cross-examination and by contrary proofs. Whether a given expert witness overstated her conclusion is mete for cross-examination, and no one impaired Buie’s ability to elicit from her just how likely (or unlikely) a “reasonable degree of scientific certainty” was in her vocabulary.

341 F.3d at 625 (citation omitted); see also Sornberger, 434 F.3d at 1029 (same). Buie added: “Informants may be lying, eyewitnesses may be tricked by their own memories, and experts may produce flawed anal-yses. The tools of the' adversary process supply the mean's to expose these testimonial shortcomings.” 341 F.3d at 625.

Buie was a habeas case, but its holding about what due process requires applies with equal force to a § 1983 constitutional tort action. See Sornberger, 434 F.3d at 1029 (relying on Buie to defeat a § 1983 due process claim). Accordingly, that Dentist Defendants may have “give[n] false or mistaken testimony” or “overstated [their] conclusion” does not amount to a due process violation — at least nbt when Starks had a reasonable'opportunity to cross-examine them at the criminal trial, which he did. In short, “[n]either shopping for a favorable witness nor hiring a practitioner of junk science is actionable, although it may lead to devastating cross-examination if the judge permits the witness to testify.” Buckley, 20 F.3d at 796.

Nór has Starks adduced any evidence tending to show that Dentist Defendants deliberately falsified their analysis or hid exculpatory results. Cf. Jones v. City of Chicago, 856 F.2d 985, 991 (7th Cir.1988) (holding that a lab technician violated due process by failing to include in her report her discovery that the criminal defendant “had different semen and blood types from the types found in [the victim’s] vagina” and by placing an exculpatory forensic analysis of hair found on the victim’s pantyhose in a different crime file). On this point, Senn at his deposition essentially exonerated Dentist Defendants: “[W]e ... almost instantly found problems with [Dentist Defendants’] analysis, but we agreed ... that in 1986 the standards and the guidelines were different than they are at the time that we were doing the reevaluation .... I mean, you know, we believed that they did what they did in 1986 in good faith,” Doc. 349 at ¶ 83 (quoting Doc. 310-22 at 22) (emphases added).

To. be sure, Starks asserts in his Local Rule 56.1(b)(3)(C) statement:

[Dentist Defendants] determined that Stark[s]’s mandibular dentition did not make the mandibular portion of the bite mark on [the victim], but they did not report this to the prosecutor. Exhibit 21, Hagstrom 97; Exhibit 17, Schneider 173.

Doc. 350 at ¶28. But the cited record material does not support this assertion; at the very least, it renders the assertion highly misleading. For what Dentist Defendants actually said was that they did match the mark to Starks’s dentition, and that they continue to believe they did so correctly. Doc. 350-2 at 134-136 (Schneider’s testimony); Doc. 350-3 at 14 (Hagstrom’s). So an accurate statement of fact would be: “Dentist Defendants determined that Starks’s mandibular dentition did not make what they thought was the maxillary portion of the bite mark on the victim, but which according to Senn was in fact the mandibular portion of the mark.” Accurately stated, the assertion could not lead a reasonable jury to find that Dentist Defendants knowingly and deliberately suppressed favorable evidence. The cited record material actually says the opposite: that Dentist Defendants oriented the bite mark the way they did precisely because it resulted in both the mandibular and maxillary portions’ matching the bite mark, in their opinion. That is the very essence of bite mark matching — and neatly illustrates why the entire endeavor is so unreliable.

Indeed, the very unreliability of bite mark identification works against Starks’s claim, for given such a high false-positive rate, who can say that any bite mark analysis has been “falsified,” let alone deliberately? It would be akin to saying that an astrologer “falsified” his conclusion that, because the planets are in a particular alignment, the defendant must have committed the crime, or to complaining-that.a palm reader grossly deviated from professional standards by mistaking the. heart line for the head line. But the court need not go this far; it is enough that Starks has failed to adduce admissible evidence that Dentist Defendants deliberately falsified their opinions, as opposed to merely forming them incompetently. That distinguishes this case from Stinson, where the odontologists “altered the identification of the missing tooth following discussion with [police officers] on November 15, 1984, after they interviewed Stinson.” 2013 WL 5447916, at *18, (Stinson’s denial of qualified immunity to the odontol-ogists is on interlocutory appeal to the Seventh Circuit in Stinson v. Gauger, Nos. 13-3343, 13-3346) & 13-3347 (argued June 6,2014).)

Starks relies’ on Brown v. Miller, 519 F.3d 231 (5th Cir.2008), and Pierce v. Gilchrist, 359 F.3d 1279 (10th Cir.2004), to support his position that an expert’s providing a false or misleading opinion (as opposed to false or misleading facts) is actionable under the due process clause. Brown held that “the deliberate or knowing creation of a misleading and scientifically inaccurate serology report amounts - to a violation of a defendant’s due process rights.” 519 F.3d at 237. Of course, as noted above, Starks has not adduced evidence — beyond mere say-so and conjecture — showing that Dentist Defendants deliberately or knowingly falsified their reports. Even putting that aside, Brown’s context is important, for the plaintiffs allegations there went beyond and were much more serious than merely overstating scientific conclusions:

Brown alleges that at this point Miller [the expert] either intentionally and in bad faith failed to conduct additional, commonly used tests (“Rh tests” and “enzyme tests”) that would have made the identification more specific and accurate, and likély excluded Brown as the donor, or, in the alternative, that Miller did conduct those tests, that those tests were conclusively exculpatory, and that Miller concealed the exculpatory results. Brown specifically alleges, that these other tests were commonly used in the same lab at the time, that Miller knew about and used those other tests in the same year, that Miller was unable to draw conclusions in similar identification cases without performing those more specific tests, and that Miller could have performed those tests in Brown’s case. Miller argues that these facts support an inference either that.Miller actually did conduct, the tests in this, case or that he knew he should have reported that his results were inconclusive without .further testing.

Id. at 235 (paragraph break added).’ As this passage indicates, the Brown plaintiff specifically alleged that the defendant had concealed exculpatory test results. It also bears mention that Brown was decided on a motion to dismiss, and thus took the plaintiffs allegations as true without the benefit of a record.

Senn charges that Dentist Defendants made mistakes in their analysis (e.g., reversing the mandibular and maxillary jaws, and using an out-of-focus image, Doc. 350 at ¶¶ 25-27, 34; Doc. 350-3 at 31-38) and then compounded their errors by overstating their (erroneous) conclusions by saying that Starks was the biter instead of that Starks could not be excluded as the biter. Senn does not, however, opine that Dentist Defendants performed additional routine tests but suppressed the results. To the contrary, as noted above, Senn opined “that in 1986 the standards and the guidelines were different than they are at the time that we were doing the reevaluation. ... I mean, you know, we believed that [Dentist Defendants] did what they did in 1986 in good faith.” Doc. 349 at ¶ 83 (quoting Doc. 310-22 at 22). Senn cannot testify as to Dentist Defendants’ state of mind, but the only reasonable inference that can be drawn from his opinion removes this case from Brown’s ambit — and Starks has offered no other evidence to put it back in.

Pierce is similarly unhelpful to Starks, as this passage demonstrates:

Mr. Pierce claims that after his arrest, he was assured that he would be released if a comparison of his' hair samples did not match those found at the crime scene. Ms. Gilchrist falsely reported that the hairs were consistent; had she truthfully reported that they were not consistent, Mr. Pierce would have been released within hours of his arrest, and never tried. This was aggravated by Ms. Gilchrist’s failure to deliver the hair samples for review by an independent forensic examiner hired by the defense, as required by law.

Moreover, as alleged in the amended complaint, when preparing her foren