Hernandez

Filing 80

MEMORANDUM Opinion and Order written by the Honorable Lindsay C. Jenkins on 9/26/2024. Mailed notice. (jlj, )

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
1

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

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.
1

2

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

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-cv4279 (N.D. Ill. July 5, 2023).
3
Defendant Brendan McGuire was incorrectly captioned as “Brendan Maguire.” [Dkt.
52 at i.]
2

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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
Gecht’s post-conviction petition is incorporated into Hernandez’s post-conviction
petition. [Dkt. 52-1 at 2–3, ¶ 8.]
4

4

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

5

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, 82627 (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
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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

7

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)

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(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

9

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

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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).
11

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

12

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.

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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

14

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.

15

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

16

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.

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.
5

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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
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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

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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

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).
6

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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

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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

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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

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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 . . . probablecause [ ] 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

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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

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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.

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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
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may file an amended complaint by or before October 14, 2024. The motion is otherwise
denied.
Enter: 23 CV 15375
Date: September 26, 2024

__________________________________________
Lindsay C. Jenkins
United States District Judge

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