Hernandez v. Guevara

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Ruben Hernandez,

Plaintiff,

No. 23 CV 15375

v.

Judge Lindsay C. Jenkins

Reynaldo Guevara, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

On March 1, 1999, Plaintiff Ruben Hernandez was arrested and interrogated

in connection with the murder of Roberto Cruz. He made an incriminating confession,

was convicted, and served 24 years in prison before being exonerated and released.

Hernandez brings this action under 42 U.S.C. § 1983 against Assistant Cook County

State’s Attorneys (“ASA”), Cook County, and others. Before the Court is the ASA

Defendants’ and Cook County’s motion to dismiss the complaint in its entirety. For

the reasons stated below, the motion is granted in part and denied in part.

I. Background

The Court takes Hernandez’s well-pleaded factual allegations as true for

purposes of ruling on the motion to dismiss. See Smith v. First Hosp. Lab’ys, Inc., 77

F.4th 603, 607 (7th Cir. 2023). The Court also considers Hernandez’s post-conviction

petition attached to Defendants’ motion as part of the pleadings. “[C]ourts may

consider outside exhibits that are central to the plaintiff's claim and referred to in the

complaint, even if supplied by the defendants.” Andersen v. Vill. of Glenview, 821 F.

App’x 625, 627–28 (7th Cir. 2020). Hernandez’s post-conviction petition is referenced

in the complaint. [Dkt. 1, ¶¶ 86–88.]1 It also contains statements about how

Hernandez came to be arrested as a suspect in the case that are probative of probable

cause, which is central to his Fourth Amendment claims. [E.g., Dkt. 52-1 at 14–16,

¶¶ 17–22.]

On January 29, 1999, Roberto Cruz was murdered by his car shortly after

leaving a nightclub in Chicago, Illinois. [Dkt. 1, ¶ 24–26.] A bouncer gave the police

descriptions of two men seen arguing with Cruz at the club. [Id. at ¶ 27.] The next

day, police received an anonymous tip that Hernandez and another individual,

“Benjamin D.,” bragged that they’d shot Cruz because he owed Benjamin money.

[Dkt. 52-1 at 14–15, ¶ 17.] The tipster also correctly stated that Cruz had been killed

by his car shortly after leaving a bar in the area. [Id.] This information was shared

with Detectives Guevara and Halvorsen, who are also defendants in this case (“Police

Defendants”). [Id. at 15, ¶ 18.] Cruz’s mother confirmed that Hernandez and

Benjamin were enemies of Cruz. [Id.] The detectives also pulled rap sheets and

Central Booking Reports for the two men and discovered that Benjamin matched the

description of one of two men the club bouncer identified as arguing with Cruz on the

night of his murder. [Id.] Hernandez did not match either description. [Dkt. 1, ¶ 28.]

Five weeks later, Defendant Police arrested Hernandez, as well as two other

individuals, David Gecht and Richard Kwil, in a 24-hour period in connection with

1 Citations to docket filings generally refer to the electronic pagination provided by

CM/ECF, which may not be consistent with page numbers in the underlying documents.

the Cruz case. [Dkt. 1, ¶ 29.]2 They were taken to the Area Five police station for

interrogation.

Hernandez was arrested first on the morning of March 1, 1999. [Dkt. 52-1 at

17, ¶ 27.] Police initially took him to the Fourteenth District to be questioned about

another crime. [Dkt. 1, ¶ 30.] Hernandez’s attorney arrived and advised him to

remain silent, which he did. [Id.] After Hernandez’s attorney left, police took

Hernandez to Area Five to question him about Cruz’s murder. [Id. at ¶ 31.] Police

Defendants questioned Hernandez in a small interrogation room. [Id. at ¶ 34.]

Hernandez repeatedly denied any involvement and tried to invoke his Fifth

Amendment rights but was ignored. [Id. at ¶ 39.] Police Defendants presented

Hernandez with different versions of the crime and the statement they wanted him

to give. [Id. at ¶¶ 36–37.] Over several hours, Police Defendants continued to accuse,

yell at, threaten, and physically abuse Hernandez by hitting and choking him. [Id. at

¶¶ 34–35, 38.] Throughout this process, Police Defendants continued feeding

Hernandez versions of how they thought Cruz’s murder occurred. [Id. at ¶ 37.] Police

Defendants then took Hernandez to meet ASA Defendant Brendan McGuire, who

brought Hernandez a typed statement confessing to participating in Cruz’s murder,

along with Gecht and Kwil.3 [Id. at ¶¶ 40–41.] McGuire and Police Defendant

Guevara both read the statement to Hernandez and told them they wanted him to

2 Gecht and Kwil filed separate lawsuits against the same defendants based on the

same events. Gecht v. Guevara, 23-cv-1742 (N.D. Ill. Mar. 21, 2023); Kwil v. Guevara, 23-cv-

4279 (N.D. Ill. July 5, 2023).

3 Defendant Brendan McGuire was incorrectly captioned as “Brendan Maguire.” [Dkt.

52 at i.]

sign it. [Id. at ¶ 40.] McGuire walked Hernandez through the statement to have him

confirm it. [Id. at ¶ 44.] Hernandez refused to sign the statement, but it was

nevertheless used in his prosecution. [Id. at ¶¶ 44–45.] McGuire was also present at

Area Five while the interrogation was ongoing. [Id. at ¶ 42.]

Police Defendants also arrested Kwil on March 1, 1999. Hernandez’s complaint

doesn’t present a clear timeline, but Gecht’s post-conviction petition states that Kwil

was arrested hours after Hernandez, in the evening. [Dkt. 52-1 at 17, ¶ 31.]4 As with

Hernandez, Police Defendants interrogated Kwil about Cruz’s murder at the Area

Five police station. [Dkt. 1, ¶ 52.] Police Defendants attempted to force Kwil to

confess to participating in the murder by threatening that he would never see his

daughter again if he did not provide a statement. [Id.] Over the course of the

interrogation, Police Defendants fed Kwil details about the crime and their theory of

how it occurred. [Id. at ¶ 53.] Kwil eventually relented and gave a signed statement

to Prosecutor Defendant Hood, implicating himself, Gecht, and Hernandez in the

crime. [Id. at ¶ 54.] Hood walked Kwil through this version of events to have him

confirm it. [Id. at ¶ 58.] Hood was also present at Area Five while the interrogation

was ongoing. [Id. at ¶ 56.]

Police Defendants arrested Gecht between March 1 and 2, 1999 and took him

to Area Five for interrogation about Cruz’s murder. [Dkt. 52-1 at 20, ¶ 42.] Gecht

experienced a similar interrogation. Police Defendants questioned Gecht, showing

him pictures of Cruz, and feeding Gecht details about how they thought the crime

4 Gecht’s post-conviction petition is incorporated into Hernandez’s post-conviction

petition. [Dkt. 52-1 at 2–3, ¶ 8.]

occurred. [Id. at ¶ 47; Dkt. 1, ¶ 50.] Throughout this time, Police Defendants

physically abused Gecht, including when he denied involvement in the crime and

asked for a phone call and attorney. [Id. at ¶¶ 47–50.] Gecht was slapped and

punched multiple times and left with a cut in his mouth and a chipped tooth. [Dkt.

52-1 at 22–23, ¶ 49.] Police Defendants told Gecht that he could go home if he signed

a statement confessing to being involved in the crime. [Dkt. 1, ¶ 49.] Gecht eventually

relented; he gave a signed statement to McGuire confessing to shooting Cruz with

Kwil and Hernandez assisting. [Id. at ¶¶ 49, 51.] McGuire walked Gecht through

Police Defendants’ version of events and had Gecht confirm them. [Id. at ¶ 58.]

McGuire was also present at Area Five while the interrogation was ongoing. [Id. at

¶ 56.]

Police Defendants also allegedly arrested and interrogated Colleen Miller,

Gecht’s girlfriend, at Area Five. [Id. at ¶ 61.] They threatened to charge her as well

if she did not cooperate and provide a statement. [Id. at ¶ 64.] Miller provided a

statement to McGuire implicating Hernandez. [Id. at ¶ 68–69; Dkt. 52-1 at 25, ¶ 59.]

Hernandez, Kwil, and Gecht’s statements were used to convict Hernandez of

Cruz’s murder, and Miller’s to further his prosecution. [Dkt. 1, ¶¶ 45, 59, 70.] In July

2023, Hernandez’s conviction was vacated, and the State entered a nolle prosequi,

dismissing all charges against him. [Id. at ¶¶ 86–88.]

Hernandez filed this lawsuit pursuant to 42 U.S.C. § 1983 raising three federal

and three state law claims against Hood and McGuire: coercing a false confession in

violation of the Fifth and Fourteenth Amendments (Count II); malicious prosecution

and unlawful detention in violation of the Fourth and Fourteenth Amendments

(Count III); failure to intervene (Count IV); malicious prosecution (Count VII);

intentional infliction of emotional distress (Count VIII); and willful and wanton

conduct (Count IX). [Dkt. 1, ¶¶ 140–60, 181–93.] He also brings an indemnification

claim against Cook County based on ASA Defendants’ liability (Count XII). [Id. at

¶¶ 203–08.]

II. Legal Standard

At the motion to dismiss stage, the Court takes well-pleaded factual allegations

as true and draws reasonable inferences in favor of the plaintiff. Choice v. Kohn L.

Firm, S.C., 77 F.4th 636, 638 (7th Cir. 2023); Reardon v. Danley, 74 F.4th 825, 826-

27 (7th Cir. 2023). “To survive a motion to dismiss under Rule 12(b)(6), plaintiff’s

complaint must allege facts which, when taken as true, plausibly suggest that the

plaintiff has a right to relief, raising that possibility above a speculative level.”

Cochran v. Ill. State Toll Highway Auth., 828 F.3d 597, 599 (7th Cir. 2016) (cleaned

up). This occurs when “the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Garrard v. Rust-Oleum Corp., 575 F. Supp. 3d 995, 999 (N.D. Ill. 2021)

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted)).

“Ordinarily, when adjudicating a motion to dismiss under Rule 12(b)(6), a

district court is limited to the allegations of the complaint.” Fin. Fiduciaries, LLC v.

Gannett Co., 46 F.4th 654, 663 (7th Cir. 2022). If the Court considers “matters outside

the pleadings,” the “motion must be treated as one for summary judgment.” Fed. R.

Civ. P. 12(d). However, “there is an exception under which a court may consider

documents that are (1) referenced in the plaintiff's complaint, (2) concededly

authentic, and (3) central to the plaintiff's claim” without converting the motion to

dismiss into a motion for summary judgment. Fin. Fiduciaries, 46 F.4th at 663. The

purpose of this “incorporation-by-reference doctrine” is to “prevent[ ] a plaintiff from

‘evad[ing] dismissal under Rule 12(b)(6) simply by failing to attach to his complaint

a document that prove[s] his claim has no merit.’” Brownmark Films, LLC v. Comedy

Partners, 682 F.3d 687, 690 (7th Cir. 2012) (quoting Tierney v. Vahle, 304 F.3d 734,

738 (7th Cir. 2002)).

III. Analysis

Hood and McGuire move to dismiss the complaint on several grounds,

including absolute immunity, qualified immunity, improper group pleading, and

failure to state a claim. The Court addresses each argument in turn.

A. Absolute Immunity

Hood and McGuire argue that they are entitled to absolute immunity on all

section 1983 claims against them. [Dkt. 52 at 5–9.] It is well-established that a

prosecutor is absolutely immune from section 1983 liability when he or she “acts as

an advocate for the State.” Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). The

purpose of prosecutorial immunity is to protect a prosecutor’s independence and

ability to work unhampered by the threat of baseless litigation sprung from a

defendant’s “resentment at being prosecuted.” Imbler v. Pachtman, 424 U.S. 409,

423–25 (1976). Prosecutorial immunity “shields prosecutors even if they act

maliciously, unreasonably, without probable cause, or even on the basis of false

testimony or evidence.” Smith v. Power, 346 F.3d 740, 742 (7th Cir. 2003) (cleaned

up).

But a prosecutor is only absolutely immune for acts that are “quasi-judicial” in

nature. Greenpoint Tactical Income Fund v. Pettigrew, 38 F.4th 555, 565 (7th Cir.

2022). Courts apply a functional test to determine whether absolute immunity applies

to a particular claim. Buckley, 509 U.S. at 269. The key question is “whether the

prosecutor was acting as an advocate in the challenged actions or was instead acting

in some other capacity, such as investigator or administrator.” Pettigrew, 38 F.4th at

565. A prosecutor’s advocacy role refers to “acts undertaken by a prosecutor in

preparing for the initiation of judicial proceedings or for trial.” Buckley, 509 U.S. at

273. By contrast, a prosecutor acts as an investigator when they fill the role of a

detective or officer “searching for the clues and corroboration that might give him

probable cause to recommend that a suspect be arrested.” Id. at 273. The prosecutor

seeking absolute immunity bears the burden of establishing that their conduct was

prosecutorial. Id. at 269.

Ample caselaw provides guidance on differentiating prosecutorial and

investigative conduct. Some actions are clear-cut. For instance, a prosecutor’s actions

before a court are generally prosecutorial. See, e.g., Tobey v. Chibucos, 890 F.3d 634,

649 (7th Cir. 2018) (filing a motion); Bianchi v. McQueen, 818 F.3d 309, 318 (7th Cir.

2016) (speaking to a grand jury); Logan v. Laterzo, 24 F. App’x 579, 581 (7th Cir.

2001) (making representations in court about potential evidence). Charging decisions

are also prosecutorial. Brunson v. Murray, 843 F.3d 698, 704–05 (7th Cir. 2016)

(preparation of formal charges); Anderson v. Simon, 217 F.3d 472, 475–76 (7th Cir.

2000) (refusal to file charges).

Actions taken outside the courthouse are murkier. “[P]reparation for the

initiation of judicial proceedings or for trial,” falls into the prosecutorial bucket.

Buckley, 509 U.S. at 273. This includes “professional evaluation of the evidence

assembled by the police and appropriate preparation for its presentation at trial or

before a grand jury after a decision to seek an indictment has been made.” Id. It

encompasses a prosecutor’s “effort to control the presentation” of a witness’s

testimony. Id. at 272–73. It also includes taking a court reported statement. Andrews

v. Burge, 660 F. Supp. 2d 868, 878 (N.D. Ill. 2009). But a prosecutor is not absolutely

immune for acts that “go beyond the strictly prosecutorial to include investigation.”

Bianchi, 818 F.3d at 318 (quoting Buckley, 509 U.S. at 275–76); see, e.g., Buckley, 509

U.S. at 273–76 (prosecutor’s endeavors to determine whether boot print at scene of

crime had been left by suspect were investigatory).

Probable cause is important but not dispositive. Prior to the existence of

probable cause, a prosecutor’s actions are investigative. Buckley, 509 U.S. at 274.

Afterwards, a prosecutor’s action might be entitled to absolute immunity, but it still

depends on whether the conduct in question was prosecutorial in nature. Id. at 274

n.5.

Hood and McGuire argue that they are only alleged to have taken Hernandez,

Gecht, Kwil, and Miller’s statements after each interrogation, and immediately

before making a charging decision. [Dkt. 52 at 6.] This, they say, amounts to

reviewing and memorializing evidence already obtained by police, which is well

within the scope of their prosecutorial duties. [Id. at 9.]

Hernandez paints a different picture. He points to allegations that the ASA

Defendants were present at Area Five during the interrogations in which “combined

Plaintiffs” were coerced and physically abused. [Id. at 5–6.] Hernandez argues that

on these allegations, it is reasonable to infer that the Hood and McGuire heard the

interrogations and observed signs of physical abuse. In taking statements, they thus

participated in coercing and fabricating the confessions, which defeats absolute

immunity regardless of probable cause. [Dkt. 60 at 4–6.]

Taking Hernandez’s factual allegations as true and drawing reasonable

inferences in his favor, the complaint illustrates McGuire acting as an investigator in

his interactions with Hernandez. It alleges that, after the interrogation, McGuire met

Hernandez with a pre-typed statement, that he and Police Defendant Guevara both

read the statement to Hernandez, and McGuire tried to “get [Hernandez] to sign” it.

[Dkt. 1, ¶¶ 40, 44.] Pushing a suspect to sign a pre-written statement together with

a detective is a far cry from verifying a confession before making a charging decision.

Instead, it is inferable that McGuire was involved in fabricating Hernandez’s

statement. See infra Part III.D.1. This negates probable cause and places McGuire’s

conduct outside the scope of prosecutorial duties, defeating absolute immunity. Kuri

v. City of Chi., 2017 WL 4882338, at * 7 (N.D. Ill. Oct. 30, 2017) (“Defendants cannot

manufacture . . . probable cause by fabricating evidence.”). The Court notes that the

allegations lack specifics—if McGuire did not participate in drafting the statement

and did not know it was false, he might be entitled to absolute immunity at summary

judgment.

By contrast, Hernandez’s allegations as to Hood are vague, but don’t cast him

as anything but a prosecutor. As Hood points out, he is only alleged to have been at

Area Five and taken Kwil’s statement, which is a prosecutorial function. [Dkt. 52 at

6.] Andrews, 660 F. Supp. 2d at 878 (“It is within the proper role of an advocate for

the State to take a court reported statement . . . and hear the defendant give the

statement, rather than simply take the word of the police that the defendant has

confessed.”). For similar reasons discussed below, Hernandez has not pled any Fourth

or Fifth Amendment claims against Hood, infra Part III.D. At this early stage, the

Court declines to dismiss on the grounds of absolute immunity because it is a fact

dependent inquiry, and plaintiffs are not required to plead allegations that will defeat

immunity. Jacobs v. City of Chi., 215 F.3d 758, n.3 (7th Cir. 2000) (qualified immunity

context); id. at 775 (Easterbrook, J., concurring) (“Rule 12(b)(6) is a mismatch for

immunity and almost always a bad ground of dismissal.”). Instead, the Court

dismisses the federal claims against Hood for reasons discussed in the remainder of

this opinion.

B. Qualified Immunity

Hood and McGuire alternatively argue that all their alleged actions are

entitled to qualified immunity. The doctrine of qualified immunity “protects

government officials from liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights of which a reasonable

person would have known.” Siler v. City of Kenosha, 957 F.3d 751, 758 (7th Cir. 2020).

This inquiry asks (1) “whether the plaintiff's allegations make out a deprivation of a

constitutional right” and (2) “whether the right was clearly established at the time of

defendant’s alleged misconduct.” Taylor v. City of Milford, 10 F.4th 800, 806 (7th Cir.

2021). The Court may consider these issues in either order. Tousis v. Billiot, 84 F.4th

692, 697 (7th Cir. 2023).

Claims are generally not dismissed under Rule 12(b)(6) on qualified immunity

grounds because qualified immunity depends on the facts of the case, and plaintiffs

are “not required initially to plead factual allegations that anticipate and overcome”

an affirmative defense. Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001)

(quoting Jacobs, 215 F.3d at 765 n.3). However, resolution at this stage is appropriate

when qualified immunity turns on the second prong—whether the constitutional

right at issue was clearly established at the time it was allegedly violated—because

it is purely a legal question. Jacobs, 215 F.3d at 765 n.3.

Hood and McGuire first argue that their actions are broadly entitled to

qualified immunity because Hernandez has not alleged facts showing the prosecutors

were aware that any confession at issue was coerced. [Dkt. 52 at 20.] But the

arguments for dismissal are fact dependent and dismissal on qualified immunity

grounds would be premature. Litscher, 267 F.3d at 651; Jacobs, 215 F.3d 758, n.3 (“in

many cases, the existence of qualified immunity will depend on the particular facts

of a given case.”).

By contrast, qualified immunity as to the failure to intervene claim (Count IV)

can be resolved now as a question of law. Hernandez alleges that Hood and McGuire

failed to stop Police Defendants from violating his constitutional rights despite

having an opportunity to do so. [Dkt. 1, ¶¶ 155–60.] Hood and McGuire counter that

there was no clearly established duty for prosecutors to intervene when their alleged

misconduct occurred in 1999. [Dkt. 52 at 20–21.]

“To be clearly established, the right must be ‘sufficiently clear that every

reasonable official would understand that what he is doing violates that right.’”

Schimandle v. Dekalb Cnty. Sheriff's Off., No. 23-2151, 2024 WL 3964260, at *4 (7th

Cir. Aug. 28, 2024) (quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015)). Plaintiffs must

show that precedent “placed the statutory or constitutional question beyond debate”

or that the “conduct is so egregious and unreasonable that . . . no reasonable officer

could have thought he was acting lawfully.” Id.; see also Hope v. Pelzer, 536 U.S. 730

(2002). Notice is key; precedent need not be identical, but it should be “closely

analogous,” such that the “state of the law” at the time of an incident provided “fair

warning” to the defendants “that their alleged [conduct] was unconstitutional.” Tolan

v. Cotton, 572 U.S. 650, 656 (2014) (quoting Pelzer, 536 U.S. at 739).

Hernandez cites two pre-1999 cases recognizing a duty intervene: Byrd v.

Brishke, 466 F.2d 6 (1972) and Yang v. Hardin, 37 F.3d 282 (1994). [Dkt. 60 at 16.]

Byrd and Yang are not closely analogous to Hernandez’s circumstance because they

only acknowledge a duty to intervene for law enforcement officers—there is nothing

to suggest that these cases would have put prosecutors on notice of a similar duty to

intervene. The very evolution of the duty to intervene belies this notion.

Byrd is the “seminal case . . . on the duty of an officer to intervene,” Yang, 37

F.3d at 285 (emphasis added). Since then, the duty of law enforcement officers to

intervene has been widespread in the Seventh Circuit. See, e.g., id. (law enforcement

officers can be liable under section 1983 if they fail to intervene to prevent other

officers from infringing on citizens’ constitutional rights); Harper v. Albert, 400 F.3d

1052, 1064 (7th Cir. 2005) (same); Lewis v. Downey, 581 F.3d 467, 473 (7th Cir. 2009)

(same). By contrast, courts in this district grappled with whether there was such a

duty for prosecutors and repeatedly rejected it. See, e.g., Gordon v. Devine, 2008 WL

4594354 at *17 (N.D. Ill. October 14, 2008); Andrews, 660 F.Supp.2d at 876 n.6; Hobbs

v. Cappelluti, 899 F. Supp. 2d 738, 773 (N.D. Ill. 2012).

The tide only turned in 2012 when the Seventh Circuit held (outside of the

failure to intervene context) that “prosecutors and police are subject to the same

duties when acting in an investigatory capacity.” Whitlock v. Brueggemann, 682 F.3d

567, 583 (7th Cir. 2012). District courts have interpreted Whitlock to impose a duty

to intervene on prosecutors as well as police officers. See, e.g., Saunders v. City of

Chi., 2013 WL 6009933, at *10 (N.D. Ill. Nov. 13, 2013) (extending failure to intervene

liability to prosecutors due to Whitlock); Wilson v. Burge, 667 F.Supp.3d 785, 851

(N.D. Ill. 2023) (collecting cases). But these recent decisions only prove the point: such

a right was nonexistent in 1999.

Hernandez alternatively cites Hope, which held that “officials can still be on

notice that their conduct violates clearly established law even in novel factual

circumstances” where no precedent exists. Hope, 536 U.S. at 741. Hope is reserved

for “rare cases” where the conduct is “so egregious” that it is a “patently obvious”

violation. Leiser v. Kloth, 933 F.3d 696, 702, 704 (7th Cir. 2019). Hernandez briefly

posits that the violation was clear because prosecutors have a duty to ensure that

investigations are constitutionally compliant. [Dkt. 60 at 19.] But he has not

explained why Hood or McGuire’s alleged conduct was particularly egregious such

that it provides unmistakable notice or shown how it fits into the narrow line of Hope

cases. Instead, he merely presumes notice, which is precisely what Hope’s narrow

scope guards against.

Hernandez had a burden to show a right clearly established in 1999. He failed

to meet it. Consequently, Hood and McGuire are entitled to qualified immunity on

Count IV.

C. Group Pleading

Next, Hood and McGuire argue that the remaining section 1983 claims are

deficient because the complaint uses improper “group pleading” by referring to

“Defendants” broadly throughout the complaint instead of specifying which

allegations apply to Hood and McGuire as opposed to Police Defendants. [Dkt. 52 at

10–14.] Consequently, Hood and McGuire lack adequate notice as to how they are

alleged to have been personally involved in violating Hernandez’s constitutional

rights. [Id. at 14.]

It is well established that section 1983 lawsuits against individuals “require

personal involvement in the constitutional deprivation to support a viable claim.”

Gonzales v. McHenry Cnty., Ill., 40 F.4th 824, 828 (7th Cir. 2022); see also Johnson v.

Rimmer, 936 F.3d 695, 710 (7th Cir. 2019). “To establish personal liability, the

plaintiff must show that the relevant official ‘caused the constitutional deprivation at

issue’ or ‘acquiesced in some demonstrable way in the alleged constitutional

violation.’” Gonzalez, 40 F.4th at 828 (quoting Palmer v. Marion Cnty., 327 F.3d 588,

594 (7th Cir. 2003)). Despite the personal involvement requirement, “[g]roup

pleading, while not ideal, is not categorically impermissible” for a section 1983 claim.

Fulton v. Bartik, 547 F. Supp. 3d 799, 810 (N.D. Ill. 2021); see also Dukes v. Washburn,

600 F. Supp. 3d 885, 898 (N.D. Ill. 2022). The Seventh Circuit has allowed group

pleading where, “reading the allegations sensibly and as a whole, there is no genuine

uncertainty regarding who is responsible for what.” Engel v. Buchan, 710 F.3d 698,

710 (7th Cir. 2013).

The complaint satisfies this minimal standard. It separates defendants into

two groups: “Prosecutor Defendants,” consisting of Assistant Cook County State’s

Attorneys Hood and McGuire, and “Police Defendants,” consisting of Chicago Police

officers named as defendants, and largely adheres to this bifurcated terminology

throughout. [Dkt. 1, ¶¶ 16, 20.] Although Hood and McGuire identify over 40

paragraphs that use the collective term “Defendants,” context makes clear which

defendants are referenced at any given point.

One portion of these paragraphs consists of factual allegations. [Dkt. 1, ¶¶ 2,

3, 5, 11–12, 19, 21, 44, 47, 54, 58–59, 61, 69–70, 72, 76-77, 80, 84, 92–94, 106–107,

117, 133, 143–145, 147, 151, 153, 157, 159, 166, 183, 186, 189, 192–193, 197, 199.] In

some cases, the paragraph first references a subgroup of defendants and thereafter

refers to “Defendants” generally. Read in context, these collective references are

unambiguous in whether they refer to Police or Prosecutor Defendants. [E.g., id. at

¶¶ 19, 61, 91.] Similarly, references to “Defendants” related to the City of Chicago,

[E.g., id. at ¶¶ 91–94, 106–07, 117], logically refer to Police Defendants since the

complaint defines Police Defendants as agents and employees of the City of Chicago

and Prosecutor Defendants as agents and employees of Cook County. [Id. at ¶¶ 21–

21, 205, 207.] Other allegations describe “Defendants” as having participated in

violent and psychological coercion and fabricating Hernandez, Gecht, Kwil, and

Miller’s false confessions. [Id. at ¶¶ 2, 59.] But elsewhere, the complaints make the

same claims specifically about Hood and McGuire. [Id. at ¶¶ 142–44.] Overall, it is

clear what specific actions Hood and McGuire are alleged to have taken, such as being

present at Area Five during the interrogations and walking suspects and witnesses

through their statements. Iqbal, 556 U.S. at 680–81. [Id. at ¶¶ 42, 44, 56, 58.]

Hood and McGuire also point to paragraphs that assert claims using the

collective term “Defendants.” [Id. at ¶¶ 143–145, 147, 151, 153, 157, 159, 166, 183,

186, 189, 192–193, 197, 199.] Here too, each count begins by identifying the specific

defendant group it is brought against.5 More general references to “Defendants”

thereafter logically refer to the defendants against whom the specific claim is made.

Reading each complaint as a whole, “there is no genuine uncertainty regarding

who is responsible for what.” Engel, 710 F.3d at 710.

5 For example, Count VIII refers to both Police and Prosecutor Defendants while Count

I only refers to Police Defendants. [Dkt. 1, ¶¶ 129, 188.] References to “these Defendants”

later in each count clearly refer to the subgroup initially identified.

D. Rule 12(b)(6) Motion

To survive a motion to dismiss for failure to state a claim, Fed. R. Civ. P.

12(b)(6), a complaint must include sufficient factual allegations to show a plausible

right to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Although “detailed

factual allegations” are not required, the facts in the complaint must present a claim

that rises “above the speculative level.” Id. at 545. “Threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements” cannot by

themselves satisfy Rule 8’s requirement that the complaint show the plaintiff is

entitled to relief. Fed. R. Civ. P. 8(a)(2); see also Iqbal, 556 U.S. at 678.

1. Count II: Coerced & False Confession

Hernandez brings a coerced and false confession claim under the Fifth and

Fourteenth Amendments. He also asserts a fabrication of evidence claim under the

Fourteenth Amendment.

The Fifth Amendment, made applicable to the states by the Fourteenth

Amendment, prohibits the use of “involuntary” or coerced confessions in criminal

cases. Chavez v. Martinez, 538 U.S. 760, 770–71 (2003); Sornberger v. City of

Knoxville, Ill., 434 F.3d 1006, 1023–24 (7th Cir. 2006). To bring a Fifth Amendment

claim, Hernandez must show (1) that his confession was involuntary and coerced, and

(2) that his confession was used against him in a criminal case. Chavez, 538 U.S. at

770–71. Fourteenth Amendment claims require a showing of evidence obtained

through “conscience-shocking” conduct, regardless of whether the evidence is used at

trial. Id. at 774. A fabricated evidence claim requires (1) the defendant knowingly

fabricated evidence against the plaintiff, (2) the evidence was used at his criminal

trial, (3) the evidence was material, and (4) the plaintiff was damaged as a result.

Patrick v. City of Chi., 974 F.3d 824, 835 (7th Cir. 2020).

For Hood and McGuire to be liable under section 1983, Hernandez must show

that the prosecutors were “personally responsible” for deprivation of their

constitutional rights. Childress v. Walker, 787 F.3d 433, 439–40 (7th Cir. 2015).

Personal responsibility is established for one who, “having a duty under the

Constitution to the plaintiff, act[s] or fail[s] to act with a deliberate or reckless

disregard of plaintiff’s constitutional rights. . . or the conduct causing the

constitutional deprivation occurs at her direction or with her knowledge or consent.”

Id. at 440 (citations omitted) (quotations omitted).

Hernandez alleges that Hood and McGuire “acting as investigators and

without probable cause . . . forced [him] to make false [incriminating] statements

involuntarily and against his will…which were used against him in criminal

proceedings.” [Dkt. 1, ¶ 141.] Although he does not claim that Hood and McGuire

directly engaged in all the coercive behavior of Police Defendants, he claims to allege

facts showing that the prosecutors knowingly and willingly participated in a “course

of conduct” that deprived Hernandez of his constitutional rights. [Dkt. 60 at 12–13.]

Hood and McGuire protest that none of those allegations show that they coerced or

fabricated any confession or knew any confession was coerced or false. [Dkt. 62 at 14–

15.]

As an initial matter, Hernandez has improperly lumped both ASA Defendants

together in his coerced confession claim. Hernandez alleges that only one ASA

Defendant took his statement and otherwise interacted with him—ASA McGuire.

ASA Hood, on the other hand, allegedly violated Hernandez’s due process rights by

coercing a false confession from his co-defendant, Kwil, that was used against

Hernandez in a criminal proceeding.

It is well-established in the Seventh Circuit that “where a plaintiff attempts to

assert a due process claim based upon allegations that [officials] coerced statements

from co-defendants . . . he or she does not state a due process claim, but rather, a

malicious prosecution claim.” Taylor v. City of Chi., 80 F. Supp. 3d 817, 826–27 (N.D.

Ill. 2015) (citing Petty v. City of Chi., 754 F.3d 416, 422–23 (7th Cir. 2014)). As the

Seventh Circuit has explained, “[c]oercing witnesses to speak . . . is a genuine

constitutional wrong, but the persons aggrieved [are the witnesses] rather than [the

arrestee]” and “[r]ights personal to their holders may not be enforced by third

parties.” Buckley v. Fitzsimmons, 20 F.3d 789, 794–95 (7th Cir. 1994). Here,

Hernandez is not the rightful “owner” of a Fifth Amendment coerced confession claim

against Hood—the person whose confession he allegedly coerced is. Consequently, the

Court dismisses without prejudice Hernandez’s coerced confession claim against

Hood.6 His fabricated evidence and malicious prosecution claims are cognizable

against both ASA Defendants if properly alleged.

The Court next addresses Hernandez’s coerced confession claim against

McGuire, and his fabricated evidence claims against both ASA Defendants. In

6 The parties did not raise this issue in briefing, but the Court exercises its discretion

to address an unpreserved prudential standing question sua sponte. RK Co. v. See, 622 F.3d

846, 851 (7th Cir. 2010).

response to the motion, Hernandez points to the following allegations: (1) Hood and

McGuire were present at Area Five while Hernandez, Kwil, Gecht, and Miller were

interrogated [Dkt. 1, ¶¶ 42, 56]; (2) during the interrogations, Police Defendants

physically abused Gecht and Hernandez [Id. at ¶¶ 38, 49]; (3) during the

interrogation, Police Defendants threatened Kwil and Miller if they did not sign a

statement [Id. at ¶ 52, 64]; (4) after Hernandez’s interrogation, McGuire and Police

Defendant Guevara read and gave him a typed statement implicating him, Gecht,

and Kwil in Cruz’s murder [Id. at ¶¶ 40–41]; (5) after Gecht, Kwil, and Millers’

interrogations, Hood and McGuire took their statements, which largely consisted of

them “walking [each of them] through Defendants’ version of events to have them

confirm” it [Id. at ¶¶ 58, 69]; (6) Hood and McGuire “ignored indicators” that

Hernandez, Gecht, Kwil, and Miller’s statements were “obviously false” [Id.]; and (7)

Hernandez, Gecht, Kwil, and Miller’s statements were used to corroborate or

prosecute or Hernandez. [Id. at ¶¶ 45, 59, 70.]

Hood and McGuire argue that Hernandez has not shown coercion or fabrication

because they’re only alleged to have been present at Area Five and taken Hernandez,

Gecht, Kwil, and Miller’s statements after each interrogation. [Dkt. 52 at 6.] They

argue that it is not reasonable to infer from these few facts that they knew about,

much less participated, in coercion or fabrication.

The Court agrees that these allegations alone would be insufficient to plead

coercion or fabrication. But there is more. Hernandez also alleged that McGuire met

him with a pre-typed confession that he and Police Defendant Guevara read and gave

to Hernandez to sign. [Dkt. 1, ¶¶ 40, 44.] Viewing the allegations in Hernandez’s

favor, it is reasonable to infer that McGuire was involved in the creation of the false

statement because he had it in hand before talking to Hernandez. That he also

presented it in conjunction with Police Defendant Guevara indicates that he was not

there to impartially review and record the accuracy of Hernandez’s confession, but to

make sure he provided it. On these allegations, a reasonable jury could infer that

McGuire helped fabricate and coerce Hernandez’s statement.

There are, however, no similar allegations about Hood. Hernandez claims that

Hood helped fabricate Kwil’s confession, which implicated Hernandez. But there are

no allegations showing that Hood fabricated Kwil’s statement or knew that it was

false. First, even if knowing Kwil was coerced might signal a false confession, mere

presence at Area Five is insufficient to show awareness of coercion. Andrews, 660

F. Supp. 2d at 877 (presence at police station insufficient to show knowledge of

coercion). There are no factual allegations that Hood participated in the

interrogation, or allegations explaining how Hood would have known Kwil was being

interrogated, much less coerced.

Once Hood was face to face with Kwil, knowledge of coercion would be inferable

if there were apparent signs. See, e.g., Abrego v. Guevara, No. 23-cv-1740, 2024 WL

3566679, at *4 (N.D. Ill. July 29, 2024) (plaintiff’s “body was marred by bruises” and

his “underwear was soiled”); Orange v. Burge, No. 04 C 0168, 2008 WL 4443280, at

*11 (N.D. Ill. Sept. 29, 2008) (plaintiff told prosecutor about his mistreatment by

police). But the allegations here fall short. Hernandez does not allege that Kwil was

physically abused at all or that Kwil told Hood about mistreatment during the

interrogation. Without more, it is not plausible to infer that Hood knew Kwil had

been coerced or that his statement was false.

Finally, Hood’s alleged behavior while taking Kwil’s statement only describes

fabrication in a conclusory fashion. “[W]alking” a suspect through their statement to

“have them confirm” it is abstract and does not bespeak fabrication without more. It

is not the same as handing a suspect a pre-typed statement, coaching a suspect, or

feeding them details to include in their statement. Cf. Hill v. Coppleson, 627 F.3d

601, 603–04 (7th Cir. 2010) (prosecutor alleged to have fed plaintiff details about

murder he later confessed to); Orange, 2008 WL 4443280, at *10 (prosecutor alleged

to have coached plaintiff on false confession). Hood also allegedly ignored signs that

the statement was false, but there are no factual allegations showing how he would

have known this.

In sum, Hernandez has stated coerced confession and fabricated evidence

claims against McGuire. His fabricated evidence claim against Hood falls short and

is dismissed without prejudice.

2. Count III: Malicious Prosecution & Unlawful Detention

Count III asserts malicious prosecution and unlawful detention claims under

the Fourth and Fourteenth Amendments.

For a Fourth Amendment malicious prosecution claim, a plaintiff must allege

that: (1) the prosecution was instituted without any probable cause; (2) the motive in

instituting the prosecution was “malicious”; and (3) a favorable termination of the

underlying criminal prosecution. Thompson v. Clark, 142 U.S. 36, 44 (2022).

“Malicious” is defined as “without probable cause.” Id.

The elements of an unlawful detention claim are similar: the defendant “(1)

caused (2) a seizure of the plaintiff pursuant to legal process unsupported by probable

cause, and (3) criminal proceedings terminated in plaintiff's favor.” Bahena v.

Kennedy, No. 17 CV 8532, 2021 WL 8153974, at * 6 (N.D. Ill. Oct. 25, 2021) (collecting

cases); see also Manuel v. City of Joliet, 580 U.S. 357, 364–65 (2017) (unlawful pretrial

detention requires a seizure without probable cause).

Hernandez has pled all elements as to Defendant McGuire on both claims. On

probable cause, McGuire argues that the complaint, supplemented by additional facts

in Gecht’s post-conviction petition, shows that there was probable cause to arrest

Hernandez. He emphasizes the anonymous tip police received about Hernandez being

involved in Cruz’s murder, [Dkt. 52 at 24–25.], that Hernandez confessed to the police

before meeting with McGuire, [Id. at 7], and that he gave a court-reported statement

to police. [Id. at 24–25.]

However, as McGuire argues, “falsifying the factual basis for . . . probable-

cause [ ] violates the Fourth Amendment.” Lewis v. City of Chi., 914 F.3d 472, 477

(7th Cir. 2019). According to Hernandez’s allegations, McGuire was involved in or

knew that his confession was coerced or fabricated, as shown by the allegation that

he brought and reviewed with Police Defendant Guevara a pre-typed statement and

tried to get Hernandez to sign it. See supra, Part III.D.1. There is also no allegation

that McGuire was aware of the tip implicating Hernandez. Because McGuire is

alleged to have helped fabricate and/or was aware the confession was coerced and

false, the Court cannot conclude that probable cause existed, particularly when such

a factual determination is more appropriate at a later stage. See Maxwell v. City of

Indianapolis, 998 F.2d 431, 434 (7th Cir. 1993) (probable cause assessment within

the province of a jury); Wilson, 667 F. Supp. 3d at 873 (same) (citing Maxwell).

Hernandez has also pled malice, as “malice can be inferred when a defendant

lacks probable cause and the circumstances indicate a lack of good faith.” Holland v.

City of Chi., 643 F.3d 248, 255 (7th Cir. 2011).

Finally, the parties do not dispute that Hernandez was exonerated in 2023,

and the State dropped all charges. [Dkt. 1, ¶¶ 86–88.] Consequently, Hernandez has

stated claims for malicious prosecution and unlawful detention against McGuire.

Conversely, given that Hernandez has not alleged sufficient facts to show that

Hood fabricated any statement used against him, or was aware any such statement

was false, supra Part III.D.1, it is not reasonable to infer a lack of probable cause to

charge him. Cf. Wilson, 667 F. Supp. 3d at 873 (absence of probable cause alleged

where defendants alleged to have known plaintiff’s confession was coerced). Thus, the

Court dismisses Hernandez’s Fourth Amendment claims against Hood with leave to

amend.

Count III also brings a malicious prosecution claim under the Fourteenth

Amendment. Hood and McGuire argue that this claim is improper because

Hernandez also brings a malicious prosecution claim under Illinois law. [Dkt. 52 at

16–17.] Generally, a plaintiff “cannot invoke the substantive due process clause

where state laws provide an adequate postdeprivation remedy for the complained-of

conduct.” Fox v. Hayes, 600 F.3d 819, 841 (7th Cir. 2010). Accordingly, the Seventh

Circuit has rejected federal malicious prosecution claims because Illinois law

recognizes tort claims for malicious prosecution. See e.g., id.; Ray v. City of Chi., 629

F.3d 660, 664 (7th Cir. 2011).

Hernandez argues that this Court should chart a new course because the

Supreme Court has “implied” that the Fourteenth Amendment can support a

malicious prosecution claim. [Dkt. 60 at 15 (citing McDonough v. Smith, 588 U.S. 109,

115 n.2 (2019)).] The Court declines to do so. McDonough did not approve such a claim

and Thompson, which post-dates McDonough, declined to consider it. Thompson, 596

U.S. at 43 n.2. Although it might be described as an “open question,” it is “likely

preclude[d]” by the availability of a state remedy. Jones v. York, 34 F.4th 550, 564 n.8

(7th Cir. 2022).

Count III also cites the Fourteenth Amendment as a basis for the unlawful

detention claim. Such a claim only sounds in the Fourth Amendment. “Manuel I

makes clear that the Fourth Amendment, not the Due Process Clause, governs a

claim for wrongful pretrial detention.” Lewis, 914 F.3d at 475 (citing Manuel, 580

U.S. at 365–69); see also Patrick, 974 F.3d at 834.

In sum, Hernandez has pled malicious prosecution and unlawful detention

claims against McGuire. The Court dismisses his Fourth Amendment claims against

Hood without prejudice and dismisses his Fourteenth Amendment claims against

Hood and McGuire with prejudice.

IV. Conclusion

For the reasons stated herein, Hood and McGuire’s motion to dismiss is

granted in part and denied in part. As to Defendant Hood, Plaintiff’s Fifth and

Fourteenth Amendment (Count II), and Fourth Amendment claims (Count III) are

dismissed without prejudice. His failure to intervene (Count IV) and remaining

Fourteenth Amendment claims (Count III) are dismissed with prejudice. As to

Defendant McGuire, Plaintiff’s failure to intervene (Count IV) and Fourteenth

Amendment claims (Count III) are dismissed with prejudice.

At this point, the only remaining federal claims are those against McGuire.

The state law claims against Hood—malicious prosecution, intentional infliction of

emotional distress, and willful and wanton conduct (Counts VII–IX)—derive from a

common nucleus of operative facts as those claims, so the Court will retain

jurisdiction over them. See Ammerman v. Sween, 54 F.3d 423 (7th Cir. 1995)

(affirming retention of supplemental jurisdiction over state law claims against

employee defendant due to common nucleus of operative facts with remaining federal

claims against employer defendant).

The Court’s normal practice, in accordance with Seventh Circuit guidance, is

to give one chance to amend after a motion to dismiss is briefed, even if a plaintiff has

amended previously. Zimmerman v. Bornick, 25 F.4th 491, 494 (7th Cir. 2022). And

Seventh Circuit precedent is clear that the Court should err on the side of allowing

an amendment; “a court should deny leave to amend only if it is certain that

amendment would be futile or otherwise unwarranted.” Runnion ex rel. Runnion v.

Girl Scouts of Greater Chi. & Nw. Ind., 786 F.3d 510, 520 (7th Cir. 2015). Hernandez

may file an amended complaint by or before October 14, 2024. The motion is otherwise

denied.

Enter: 23 CV 15375 2S

Date: September 26, 2024

Lindsay C. Jenkins

United States District Judge

28