Gillespie v. Boudreau

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Jerry Gillespie,

Plaintiff, NO. 1:24-CV-08019

v. Judge Edmond E. Chang

Kenneth Boudreau, John Halloran, James

O’Brien, Michael Clancy, Sergio Rajkovich,

Daniel McDonald, Thomas Richardson, Rob-

ert Schaefer, Geri Yanow, as Independent

Administrator of the Estate of William Fo-

ley, David Evans, John McHugh, Assistant

State’s Attorney Julie Nelson, Assistant

State’s Attorney Charles Burns, City of Chi-

cago, Cook County, and Cook County State’s

Attorney’s Office,

Defendants.

MEMORANDUM OPINION AND ORDER

In 1994, Jerry Gillespie was convicted of murdering Jeffrey Rodgers. R. 1,

Compl. ¶ 4.1 For that conviction, Gillespie spent 20 years in prison—but years after

he was released from prison, his conviction was vacated. Id. ¶¶ 1, 5. He then obtained

a certificate of innocence from the state court. Id. ¶ 5.

Gillespie now alleges that his wrongful incarceration resulted from the mis-

conduct of investigating officers. Compl. ¶ 2. He sues the City of Chicago, nearly a

dozen of the City’s former police officers, a former Chicago police detective, Cook

1Citations to the record are “R.” followed by the docket entry number and, if needed,

a page or paragraph number.

County, the Cook County State’s Attorney’s Office, and two former Cook County As-

sistant State’s Attorneys. Id. ¶ 11–15. Gillespie alleges that the Defendants tortured

him to coerce a false confession, suppressed several witnesses’ exculpatory infor-

mation, and caused several other witnesses to provide false inculpatory statements.

Id. ¶¶ 25–56. Based on these allegations, Gillespie advances a variety of claims, in-

cluding violations of his rights under the Fourth, Fifth, and Fourteenth Amendments,

42 U.S.C. § 1983; conspiracy to deprive him of his constitutional rights, 42 U.S.C.

§§ 1983, 1985, 1986; municipal liability for the City’s practices and customs that en-

couraged unconstitutional conduct, Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694

(1978); and related state law claims.2 Compl. ¶¶ 97–165.

Now, the two former state prosecutors—Charles Burns and Julie Nelson—

move to dismiss certain aspects of the Complaint. R. 53, Burns’s Mot.; R. 69, Nelson’s

Mot. As explained below, Burns’s motion is granted, and the claims against him are

dismissed without prejudice to Gillespie filing an amended complaint. Nelson’s mo-

tion, however, is denied.

I. Background

The Court accepts all well-pleaded factual allegations in the Complaint as true,

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)), and sets forth here only those that are needed to decide the dismissal

2This Court has subject matter jurisdiction over the federal claims under 28 U.S.C.

§ 1331, and supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367(a).

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motions. In 1993, Gillespie was stopped by several police officers in connection to the

investigation of three unsolved murders. Compl. ¶¶ 20, 22. Gillespie alleges that the

officers took him to a police station, and then they would not allow him to leave, in-

stead interrogating him “multiple times,” lying to him, and subjecting him to intimi-

dation and physical abuse. Id. ¶¶ 23–28. Officers falsely told him that he had been

implicated by someone else, and the officers then deceptively promised Gillespie le-

niency and “fed him false information about the crime.” Id. ¶¶ 29–33. All the while,

officers did not allow Gillespie to eat, drink, sleep, or use the restroom. Id. ¶ 34.

Gillespie later told state prosecutor Nelson about the threats and abuse, but

Nelson allegedly ignored him, causing Gillespie to feel like he had no choice but to

cooperate and to confess. Compl. ¶ 35–38. Nelson also allegedly fabricated a state-

ment, purportedly made by Gillespie, stating that the police did not mistreat him. Id.

¶ 39.

The officers also interviewed other witnesses. Compl. ¶¶ 43–55. After the offic-

ers interviewed two particular witnesses, state prosecutor Burns and one officer re-

interviewed them. Id. ¶¶ 51–54. Gillespie alleges that Burns coerced a false, inculpa-

tory statement from Willie Hughes and that Burns suppressed an exculpatory state-

ment from James Clark. Id.

Gillespie was eventually convicted of first-degree murder in 1994. Compl. ¶ 58.

After his conviction was vacated in 2024 and he obtained a certificate of innocence,

id. ¶¶ 59–60, Gillespie filed this suit. He alleges that Burns and Nelson were part of

a conspiracy to deprive him of his constitutional rights, and he adds that Burns and

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Nelson failed to intervene to prevent Gillespie’s wrongful prosecution and conviction.

Id. ¶¶ 98–101. Gillespie also alleges that Nelson, along with several police officers,

conspired to coercively interrogate him, and he alleges that Nelson failed to intervene

to stop that coercive interrogation. Id. ¶¶ 105–106.

Burns and Nelson filed motions to dismiss. Burns’s Mot.; Nelson’s Mot. Nelson

contends that (1) she is entitled to qualified immunity on Gillespie’s failure-to-inter-

vene claims; and (2) Gillespie failed to adequately plead that Nelson was part of any

civil-rights conspiracy. Nelson’s Mot. at 1–2. Burns makes those two arguments as

well, and he adds that (1) his acts occurred while performing a prosecutorial function,

so he is entitled to absolute immunity; (2) Gillespie has failed to adequately plead any

facts that his constitutional rights were violated by Burns; and (3) in the absence of

any remaining federal claims implicating him, this Court should relinquish jurisdic-

tion over the state law claims. Burns’s Mot. at 1–2.

II. Legal Standard

Under Federal Rule of Civil Procedure 8(a)(2), a complaint generally need only

include “a short and plain statement of the claim showing that the pleader is entitled

to relief.” Fed. R. Civ. P. 8(a)(2). This short and plain statement must “give the de-

fendant fair notice of what the claim is and the grounds upon which it rests.”

Twombly, 550 U.S. at 555 (cleaned up).3 The Seventh Circuit has explained that this

3This Opinion uses (cleaned up) to indicate that internal quotation marks, alterations,

and citations have been omitted from quotations. See Jack Metzler, Cleaning Up Quotations,

18 Journal of Appellate Practice and Process 143 (2017).

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rule “reflects a liberal notice pleading regime, which is intended to ‘focus litigation on

the merits of a claim’ rather than on technicalities that might keep plaintiffs out of

court.” Brooks v. Ross, 578 F.3d 574, 580 (7th Cir. 2009) (quoting Swierkiewicz v.

Sorema N.A., 534 U.S. 506, 514 (2002)).

“A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to

state a claim upon which relief may be granted.” Hallinan v. Fraternal Ord. of Police

of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). “[A] complaint must contain

sufficient factual matter, accepted as true, to state a claim to relief that is plausible

on its face.” Iqbal, 556 U.S. at 678 (cleaned up). These allegations “must be enough

to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. The

allegations that are entitled to the assumption of truth are those that are factual,

rather than mere legal conclusions. Iqbal, 556 U.S. at 678–79.

III. Analysis

A. Charles Burns

The Court begins with Burns’s invocation of absolute immunity. In Burns’s

view, the allegations against him do not make clear whether Gillespie believes that

Burns fabricated inculpatory evidence and suppressed exculpatory evidence in an in-

vestigatory or—in contrast—a prosecutorial role. Burns’s Mot. at 5–7. The parties

agree that Burns would be absolutely immune from liability only if he performed

those acts as part of the prosecutorial function. Id. at 5; R. 70, Pl.’s Resp. to Burns at

3; see Buckley v. Fitzsimmons, 509 U.S. 259, 269–71 (1993).

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Gillespie could have said more in his complaint, but drawing all reasonable

inferences in his favor as required at the pleading stage, Iqbal, 556 U.S. at 678, he

has pleaded enough to avoid any absolute-immunity bar. Gillespie has plausibly al-

leged that when the prosecutors and police officers were investigating the murder of

Jeffrey Rodgers (before they were prepared to charge Gillespie), Burns fabricated in-

culpatory statements and withheld exculpatory information. Compl. ¶¶ 51–54. “[A]

showing that a prosecutor investigated and fabricated evidence … would automati-

cally defeat absolute prosecutorial immunity.” Lewis v. Mills, 677 F.3d 324, 331 (7th

Cir. 2012). Likewise, Gillespie’s claim that Burns suppressed an exculpatory state-

ment to implicate Gillespie in the murder also plausibly alleges that the suppression

happened while the government was still investigating the murder. Compl. ¶¶ 53–

54. Burns may, of course, renew his claim of absolute immunity later if discovery

reveals that the alleged misconduct happened at a later stage of the criminal process

when Burns was performing prosecutorial functions. But at the pleading stage, Burns

has not met his burden to avail himself of absolute prosecutorial immunity. See Burns

v. Reed, 500 U.S. 478, 486 (1991) (“[T]he official seeking absolute immunity bears the

burden of showing that such immunity is justified for the function in question.”).

Burns next argues that Gillespie fails to adequately allege how Burns violated

any of Gillespie’s constitutional rights. Burns’s Mot. at 7–10. The Court agrees that

the Complaint falls short in this regard. The purpose of plausibility in pleading is to

give a defendant “fair notice of what the claim is and the grounds upon which it rests.”

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Twombly, 550 U.S. at 555 (emphasis added) (cleaned up). Factual allegations need

not be “detailed,” but they do need to be “more than labels and conclusions.” Id.

Beyond the bare allegations that Burns coerced a false, inculpatory statement

from Hughes and suppressed an exculpatory statement from Clark, there is nothing

in the Complaint that concretely describes what misconduct allegedly happened. See

Compl. ¶¶ 51–54. Although factual allegations need not be that much more detailed,

something more is needed. For example, without concrete factual allegations, it is

difficult to discern even the rough content of the exculpatory statement made by

Clark. Without knowing something about the content of the exculpatory statement,

it is not possible to assess plausibility. To illustrate the point, consider if the pur-

ported exculpatory statement of a witness was, “A Martian landed on Earth, shape-

shifted to look like Gillespie, and committed the murder.” Burns’s non-disclosure of

that statement would not make out a plausible Brady claim. Similarly, on the current

allegations, it is not possible to accurately determine whether the false, inculpatory

statement allegedly made by Hughes was introduced at trial, either through his own

testimony or improperly by some other means. All of this impairs the Court’s ability

to assess plausibility, which is not possible to evaluate at this sky-high level of gen-

erality. Cf. Kaminski v. Elite Staffing, Inc., 23 F.4th 774, 776 (7th Cir. 2022) (noting

that allegations at a high level of generality fail to make contention plausible). Gil-

lespie’s claims against Burns thus are dismissed. But Gillespie may amend his com-

plaint to provide more specificity so that his claims rise above mere labels.

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Because Gillespie’s lone claims against Burns involve the nondescript inculpa-

tory and exculpatory statements4—which have been dismissed for now—the Court

does not address Burns’s remaining arguments. See Burns’s Mot. at 10–14. First, the

dismissal of Gillespie’s allegations of constitutional violations means that there are

no underlying violations as required to support the conspiracy claim. See Gilbank v.

Wood Cnty. Dep’t of Hum. Servs., 111 F.4th 754, 789 (7th Cir. 2024) (en banc). Second,

the Court need not assess the viability of Burns’s invocation of qualified immunity in

response to any claims specific to him. And third, because the Court dismisses with-

out prejudice Gillespie’s claims against Burns, there currently is no need to address

Burns’s assertion that this Court should relinquish supplemental jurisdiction over

the state law claims against him. If Gillespie amends his complaint and Burns moves

again to dismiss the claims against him while re-raising these arguments, then the

Court will address the merits of those arguments at that time (and if the dismissal is

with prejudice, the Court would then consider whether to relinquish supplemental

jurisdiction).

B. Julie Nelson

Nelson contends that even if Gillespie plausibly alleges specific unconstitu-

tional acts that she committed, he fails to adequately allege that she participated in

a civil-rights conspiracy. Nelson’s Mot. at 6–7. The argument is rejected, given the

4The Court notes that, under Count 1, Gillespie alleges that Burns “failed to intervene

to stop Plaintiff’s wrongful prosecution and conviction.” Compl. ¶ 101. But without more in-

formation, the Court does not treat that statement as a factual allegation separate from those

about the Hughes and Clark statements.

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nature and specificity of the allegations against Nelson. As Nelson concedes, a plain-

tiff pleads enough if they “indicate the parties, general purpose, and approximate

date, so that the defendant has notice of what he is charged with.” Walker v. Thomp-

son, 288 F.3d 1005, 1007 (7th Cir. 2002); see Nelson’s Mot. at 6. Here, Gillespie has

done that: in 1993 (approximate date), Nelson and other investigating officers (the

parties) worked together to coerce his false confession and then omit information

about any improper tactics used (general purpose). Compl. ¶¶ 22, 25–42. Unlike with

Burns, an allegation like that plainly puts Nelson on notice of the coerced state-

ment—it was a confession—and on notice of her role in the alleged misconduct.

Nelson also argues that she is entitled to qualified immunity on Gillespie’s

claim that she failed to intervene in his wrongful prosecution. Nelson’s Mot. at 4–6;

Compl. ¶¶ 101, 106. Nelson would be entitled to qualified immunity if she did not

violate a constitutional right that was clearly established, meaning that the right was

“sufficiently clear that every reasonable official would have understood that what he

is doing violates that right.” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam)

(cleaned up). Nelson does not contend that Gillespie fails to plausibly allege that the

failure to intervene violated his constitutional rights; she argues only that the right

was not clearly established in 1993 when she and others investigated Gillespie. Nel-

son’s Mot. at 4–5.

To assess the competing arguments, it is worth setting out the legal landscape

surrounding this claim. The parties agree that a key case, Whitlock v. Brueggemann,

682 F.3d 567, 580–81 (7th Cir. 2012), reaffirmed the proposition that “police and

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investigating prosecutors are subject to the same constraints,” and rejected the pros-

ecutor’s assertion of qualified immunity. Nelson’s Mot. at 5; R. 75, Pl.’s Resp. to Nel-

son at 7. Because police officers have had a clearly established duty (at least in this

circuit) to “stop other officers” from violating constitutional rights since at least 1972,

see Byrd v. Brishke, 466 F.2d 6, 11 (7th Cir. 1972),5 courts in this district have recog-

nized that the duty to intervene against constitutional violations has been clearly

established as to prosecutors after the issuance of Whitlock, e.g., Sherwood v. Village

of Fox Lake, 2024 WL 2209697, at *4 n.5 (N.D. Ill. May 15, 2024).

But the parties disagree about how to apply those general propositions when

asked whether it was clearly established in 1993 that prosecutors had a duty to in-

tervene. Nelson, for example, cites several cases in this district acknowledging Whit-

lock’s import but granting qualified immunity because the events in those cases pre-

dated the date of decision in Whitlock, 2012. Nelson’s Mot. at 5 (citing Bouto v. Gue-

vara, 2024 WL 4346561, at *11 (N.D. Ill. Sep. 30, 2024) (“But this decision is from

2012 ….”); Serrano v. Guevara, 315 F. Supp. 3d 1026, 1039 (N.D. Ill. 2018) (same);

Gecht v. Guevara, 2024 WL 4299982, at *4 (N.D. Ill. Sep. 26, 2024) (same)); see also

5It is worth noting that the intervention duty set forth in Byrd was described by Yang

v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994), as the “seminal case in this circuit on the duty of

an officer to intervene to prevent summary punishment.” Yang also explained that although

most rights established by the Constitution are bans against government action, some con-

stitutional rights also encompass the duty to “intervene,” id., and went on to cite a variety of

cases in which the duty arose, including a false-arrest case, Gagnon v. Ball, 696 F.2d 17, 21

(2d Cir. 1982) (officer liable for failing to intervene in false arrest). So the duty to intervene

has been long established as to false-arrest cases, and not only to preventing excessive force.

Indeed, prosecutors are uniquely positioned to intervene to prevent police officers from using

coerced confessions in violation of due process, and as explained in the text below, any rea-

sonable prosecutor would know that they cannot knowingly rely on a coerced confession.

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Abrego v. Guevara, 2024 WL 3566679, at *11 (N.D. Ill. July 29, 2024) (same); Ezell v.

City of Chicago, 2024 WL 278829, at *14 (N.D. Ill. Jan 24, 2024) (same); Wilson v.

Est. of Burge, 667 F. Supp. 3d 785, 834 (N.D. Ill. 2023) (same); Brown v. City of Chi-

cago, 633 F. Supp. 3d 1122, 1155 (N.D. Ill. 2022) (same); but see Fulton v. Bartik, 2024

WL 1242637, at *10 (N.D. Ill. Mar. 22, 2024) (holding that duty to intervene was

clearly established before 2012). Gillespie responds that by 1993 it was clearly estab-

lished that prosecutors performing investigatory functions were held to the same

standards of liability as police officers. Pl.’s Resp. to Nelson at 6–8.

Whitlock itself contains the answer to the question. In Whitlock, the Seventh

Circuit confronted the question of “whether the right to due process that the plaintiffs

claim was clearly established before February 19, 1987” and concluded that the dis-

trict court correctly denied qualified immunity because it was clearly established—

as of 1987—that prosecutors violate the Constitution when they fabricate evidence

introduced at trial. 682 F.3d at 585–86 (emphasis added); see also Smith v. Finkley,

10 F.4th 725, 737 (7th Cir. 2021) (asking “whether the federal right at issue was

clearly established at the time of the alleged violation”). Whitlock thus held that the

right at issue was clearly established as of 1987—well before 2012, when the opinion

was issued. So Gillespie (whose interrogations and prosecution began in 1993) may

invoke the principles in Whitlock.

The question remains, however, whether Whitlock (or another case) clearly es-

tablishes that in 1993 an investigating prosecutor had a duty to intervene to prevent

unconstitutional investigatory conduct. Although the facts of Whitlock date to 1987,

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the case itself raised the qualified-immunity defense in the context of “[a] prosecutor

who manufactures evidence when acting in an investigatory role.” 682 F.3d at 580

(emphasis added). Denying qualified immunity here thus requires the synthesis of

two different principles: (1) that it was clearly established that police officers can be

liable for failing to intervene, see Byrd, 466 F.2d at 11; and (2) that it was clearly

established that prosecutors performing investigatory acts should be no less liable

than police officers, see, e.g., Whitlock, 682 F.3d at 580; Burns, 500 U.S. at 495.

Synthesis is appropriate here.6 “[G]eneral statements of the law are not inher-

ently incapable of giving fair and clear warning, and in other instances a general

constitutional rule already identified in the decisional law may apply with obvious

clarity to the specific conduct in question, even though the very action in question has

not previously been held unlawful.” Hope v. Pelzer, 536 U.S. 730, 740–41 (2002) (quot-

ing United States v. Lanier, 520 U.S. 259, 271 (1997)) (cleaned up). Applying the rule

in Byrd—that police officers must intervene to prevent constitutional violations—to

prosecutors who perform investigatory functions thus is more than “suggested by

then-existing precedent,” District of Columbia v. Wesby, 583 U.S. 48, 63 (2018), and

instead suffices to give “fair warning” to Nelson, Hope, 536 U.S. at 740 (cleaned up).

6Indeed, Nelson does not reject Whitlock’s conclusion that it was clearly established

that prosecutors performing investigatory functions had a duty to intervene. She instead

acknowledges that a prosecutor does have such a duty—but after the opinion was issued. See

R. 79, Nelson’s Reply at 2 (citing Harris v. City of Chicago, 2015 WL 5445012, at *4 (N.D. Ill.

Sep. 15, 2015) (“[P]ost-Whitlock, a prosecutor acting as an investigator can be held liable for

failing to intervene.”)). In any event, because qualified immunity presents a question of law,

Mitchell v. Forsyth, 472 U.S. 511, 528 (1985), the Court must evaluate the issue without

giving dispositive weight to Nelson’s concession.

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The outcome is no different just because applying Byrd relies on a corresponding ap-

plication of the separate (but clearly established) principle that “[i]t would be incon-

gruous to hold a police officer liable … for taking the same action in the same capac-

ity.” Whitlock, 682 F.3d at 580–81 (citing Burns, 500 U.S. at 495) (cleaned up); cf. City

and County of San Francisco v. Sheehan, 575 U.S. 600, 615–16 (2015) (viewing three

separate precedential decisions together before granting qualified immunity because

combination of three was not enough “[n]o matter how carefully a reasonable officer”

read them); Lane v. Franks, 573 U.S. 228, 245 (2014) (identifying three cases to “rep-

resent the landscape … for qualified immunity purposes” before granting qualified

immunity based on combination of three because third-in-time case did not clearly

establish the right). The Court thus concludes that in 1993 it was clearly established

that Nelson had a duty to intervene to prevent the prosecution of Gillespie based on

a confession obtained by torture.

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IV. Conclusion

Burns’s motion to dismiss, R. 53, is granted, and he is dismissed without prej-

udice from the suit. Gillespie may amend his complaint to re-plead facts against

Burns, if he can do so consistent with Civil Rule 11(b). Gillespie’s amended complaint,

if any, is due by October 15, 2025. Nelson’s motion to dismiss, R. 69, is denied.

ENTERED:

s/Edmond E. Chang

Honorable Edmond E. Chang

United States District Judge

DATE: September 29, 2025

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