IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION

LOUIS A. BIANCHI, JOYCE A. SYNEK, ) 

RONALD J. SALGADO, and MICHAEL ) 

J. McCLEARY, ) 

 ) 

 Plaintiffs, ) 

) 

 v. ) CASE NO. 12-cv-00364 

) 

THOMAS K. McQUEEN, DANIEL ) Judge Robert M. Dow, Jr. 

JERGER, ROBERT SCIGALSKI, JAMES ) 

REILLY, PATRICK HANRETTY, ) 

RICHARD STILLING, QUEST ) 

CONSULTANTS INTERNATIONAL, ) 

LIMITED, an Illinois Corporation, and ) 

UNKNOWN CO-CONSPIRATORS, ) 

) 

Defendants. ) 

MEMORANDUM OPINION AND ORDER

Defendants investigated and prosecuted Plaintiffs for allegedly abusing their positions at 

the State’s Attorney’s Office in McHenry County, Illinois. Once Plaintiffs defeated the charges 

against them — through voluntary dismissal and acquittal at trial — they sued special 

prosecutors Thomas K. McQueen and Henry C. Tonigan and certain Quest employees hired to 

assist them with the investigation and prosecution. According to Plaintiffs’ fifteen-count 

amended complaint, Defendants’ investigation and prosecution violated Plaintiffs’ rights under 

federal and state law. Defendants have moved to dismiss based on absolute and qualified 

immunity. 
For the reasons stated below, Defendants’ motions to dismiss [73, 80] are granted. 

Plaintiffs’ federal claims (Counts I – VII) are dismissed with leave to replead within 28 days if 

Plaintiffs believe that an amended complaint could overcome the immunity obstacles set forth 

below. If Plaintiffs decide not to replead, Plaintiffs’ federal claims will be dismissed with 

prejudice and the Court will decline to exercise supplemental jurisdiction over Plaintiffs’ state 

law claims (Counts VIII – XV) and dismiss those claims without prejudice. 

I. Background 

The facts are drawn from Plaintiffs’ amended complaint [70]. In deciding Defendants’ 

motion to dismiss, the Court accepts well-pleaded facts as true and draws all reasonable 

inferences in Plaintiffs’ favor. See Barnes v. Briley, 420 F.3d 673, 677 (7th Cir. 2005). 

Bianchi is the State’s Attorney in McHenry County, Illinois. He first was elected in 

2004. He ran again in 2008, and he was reelected following what he describes as “highly 

contentious” Republican primary. According to the complaint, the campaign to unseat him 

continued after the election: 

After failing in their efforts to legally remove Bianchi from office during the 2008 

election, Bianchi’s political opponents initiated a politically motivated conspiracy 

to override the election and force Bianchi from office. The objective of this 

conspiracy was to arrest, indict, and publically smear Bianchi, thereby causing 

him to resign his office, irreparably tarnish his public reputation, and allow his 

political opponents to install a State’s Attorney who would do their bidding. 

Compl. ¶ 16. As it bears on this case, the alleged conspiracy to unseat Bianchi took the form of 

an investigation and prosecution by special prosecutor Tonigan (no longer a Defendant) and his 

assistant special prosecutor, Defendant McQueen. 

As Plaintiffs tell it, the story of this case begins in 2004, when Amy Dalby was a 

secretary in the State’s Attorney’s Office (“SAO”). Prior to resigning in 2006, Dalby “stole 

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approximately 5000 documents from an SAO computer, including confidential and sensitive 

documents concerning pending investigations and prosecutions.” Compl. ¶ 18. In 2007, Dalby 

gave the stolen documents to Kristen Foley, apparently an ally of Bianchi’s primary opponent, 

Daniel Regna, to use in his campaign. Foley gave the documents to Regna and the media. 

Compl. ¶ 19-20. Bianchi petitioned a court to appoint a special prosecutor independent of the 

SAO to investigate and if necessary prosecute responsible parties. Compl. ¶ 21. Ultimately, 

Dalby was arrested and charged with six felonies. In June 2009, she pled guilty to computer 

tampering. Compl. ¶ 22. 

In April 2009, Dalby filed a petition for the appointment of a special prosecutor “to 

investigate her allegation that she performed political work while working in the SAO from 

December of 2004 until July of 2006.” Compl. ¶ 24. In September 2009, McHenry County 

Circuit Court Judge Gordon Graham granted Dalby’s petition and appointed Tonigan and 

McQueen as special state’s attorneys to investigate and if necessary prosecute. See Compl. ¶¶ 5, 

27, 86. 

In November 2009, after Tonigan’s and McQueen’s initial interviews with Dalby and 

others, Tonigan wrote to Judge Graham asking to “expand the order defining the role of our 

investigation.” Compl. ¶ 35. According to Plaintiffs, Tonigan’s letter “contained * * * blatantly 

false statements.” Compl. ¶ 36. The letter prompted Judge Graham to issue an order granting 

Tonigan and McQueen “the authority to investigate and prosecute Bianchi and ‘any and all 

persons’ relative to any misappropriation or theft from ‘2005 and thereafter.’” Compl. ¶ 37 

(quoting Judge Graham’s order). 

“Around December or 2009,” Tonigan retained Defendant Quest to investigate Bianchi. 

Compl. ¶ 38. Quest employees Daniel Jerger, Robert Scigalski, James Reilly, Patrick Hanretty, 

3
and Richard Stilling (collectively, “Quest Defendants,” also referred to in Plaintiffs’ complaint as 

“Quest Investigators” or “Quest investigators”) were appointed as special investigators and 

participated in Tonigan’s and McQueen’s investigation of Bianchi and the SAO. After 

conducting interviews, the Quest Defendants “informed Tonigan and/or McQueen of information 

related during the interviews.” Compl. ¶ 44. After consulting with “Tonigan and/or McQueen” 

the Quest Defendants prepared reports summarizing their findings. According to the complaint, 

at Tonigan’s “and/or” McQueen’s behest, the reports “included false and manufactured 

information” about the statements of various current and former assistant state’s attorneys. 

Compl. ¶ 45 a-d (detailing alleged false statements in Defendants’ reports). Plaintiffs assert that 

“[a]ll of the former and current ASAs described in paragraph 45 (a-d) have confirmed that they 

did not make any of the statements attributed to them.” Compl. ¶ 46. 

In April 2010, Judge Graham convened a grand jury and appointed the Quest Defendants 

as agents of the grand jury. Compl. ¶ 47. Plaintiffs allege that the Quest Defendants did not 

follow Illinois law in serving search warrants, subpoenas, and subpoenas duces tecum. Compl. ¶ 

49. Based on those subpoenas, numerous witnesses produced documents to Tonigan and 

McQueen and testified before the grand jury. Compl. ¶ 50. Plaintiffs allege that Defendants 

McQueen, Scigalski, and Jerger made false statements to the grand jury. In September 2010, the 

grand jury returned indictments against Bianchi for conspiracy to commit official misconduct 

and obstruction of justice, nineteen counts of official misconduct, and unlawful communication 

with a witness and against Synek for conspiracy to commit official misconduct and obstruction 

of justice, four counts of perjury, and obstruction of justice. Compl. ¶¶ 57-58. An arrest warrant 

was issued and Bianchi and Synek were arrested. Compl. ¶ 64. 

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Shortly after obtaining the first indictment, McQueen filed a petition to expand the 

investigation of Bianchi and SAO employees. Compl. ¶ 83. In October 2010, Judge Graham 

“signed an order appointing Defendants McQueen and Tonigan as special state’s attorneys to 

investigate and prosecute individuals for using their official position in the SAO to give benefits 

in criminal prosecutions to friends, relatives, and supporters.” Compl. ¶ 86. Defendants again 

served subpoenas and, again, witnesses appeared and testified before the grand jury. Compl. ¶ 

96. 

In February 2011, the grand jury retuned indictments against Bianchi for three counts of 

official misconduct for improperly intervening in criminal cases on behalf of friends and political 

supporters, against Salgado for official misconduct for intervening in a criminal case on behalf of 

his nephew, and against McCleary for official misconduct related to improper use of a county 

vehicle. Compl. ¶¶ 99, 100, 110. As a result of the indictments, warrants were issued, and 

Bianchi, Salgado, and McCleary were arrested. Compl. ¶¶ 102, 103, 111. 

Shortly after the return of the second indictment, Tonigan, McQueen, and Scigalski held 

a press conference where McQueen repeated the allegations contained in the indictments against 

Bianchi, Salgado, and McCleary. According to the complaint, McQueen also said things about 

Plaintiffs that went beyond the indictments, such as that “after the return of the first indictment 

Scigalski received calls from a number of lawyers regarding cases handled by Bianchi and that 

those cases suggested that the equal protection rights of all defendants were not being upheld 

because of favoritism.” Compl. ¶ 113. 

After the McHenry County Circuit Court judges recued themselves, the Illinois Supreme 

Court appointed Judge Joseph McGraw from the Seventeenth Judicial Circuit to preside over the 

cases against Plaintiffs. Compl. ¶ 77. In March 2011, after a two day bench trial, Judge 

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McGraw granted Bianchi’s and Synek’s Motion for a Directed Finding and acquitted them of all 

charges in the first indictment. On June 3, 2011, Judge McGraw dismissed the charges of 

official misconduct against Salgado “based on the failure of the charge to state an offense” 

against him. Compl. ¶ 120. On June 29, 2011, the charge of official misconduct was dismissed 

against McCleary “based on the failure of the charge to state an offense” against him. Compl. ¶ 

121. In August 2011, after a second bench trial, Judge McGraw granted Bianchi’s motion for a 

directed finding and acquitted Bianchi of the remaining charges. Compl. ¶ 123. 

Following the dismissals, Plaintiffs filed this suit against Tonigan, McQueen, the Quest 

Defendants, Quest Consultants International, Ltd., Tonigan’s law firm, and unknown coconspirators. Tonigan and his law firm are now out of the case. Against the remaining 

Defendants, Plaintiffs assert fifteen claims under federal and state law. Defendants have moved 

to dismiss. 

II. Motion to Dismiss Legal Standard 

The purpose of a Rule 12(b)(6) motion to dismiss is not to decide the merits of the case; a 

Rule 12(b)(6) motion tests the sufficiency of the complaint. Gibson v. City of Chi., 910 F.2d 

1510, 1520 (7th Cir. 1990). In reviewing a motion to dismiss under Rule 12(b)(6), the Court 

takes as true all factual allegations in Plaintiff’s complaint and draws all reasonable inferences in 

his favor. Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614, 618 (7th Cir. 2007). To 

survive a Rule 12(b)(6) motion to dismiss, the claim first must comply with Rule 8(a) by 

providing “a short and plain statement of the claim showing that the pleader is entitled to relief” 

(Fed. R. Civ. P. 8(a)(2)), such that the defendant is given “fair notice of what the * * * claim is 

and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) 

6
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations in the claim

must be sufficient to raise the possibility of relief above the “speculative level,” assuming that all 

of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 

773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). “A pleading that offers ‘labels and 

conclusions’ or a ‘formulaic recitation of the elements of a cause of action will not do.’” 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). However, 

“[s]pecific facts are not necessary; the statement need only give the defendant fair notice of what 

the * * * claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 

(2007) (citing Twombly, 550 U.S. at 555) (ellipsis in original). The Court reads the complaint 

and assesses its plausibility as a whole. See Atkins v. City of Chi., 631 F.3d 823, 832 (7th Cir. 

2011); cf. Scott v. City of Chi., 195 F.3d 950, 952 (7th Cir. 1999) (“Whether a complaint 

provides notice, however, is determined by looking at the complaint as a whole.”).

III. Analysis 

A. Federal Claims 

Plaintiffs assert seven claims under 42 U.S.C. § 1983 for alleged violations of their 

federal constitutional rights by state officials acting under color of state law. Counts I - III are 

for false arrest. Counts IV - V allege that Defendants conspired to violate Plaintiffs’ due process 

rights by fabricating evidence and failing to disclose exculpatory evidence. Counts VI - VII 

assert that Defendants conspired to charge and prosecute Plaintiffs as retaliation for Bianchi’s 

decision to “seek and hold” public office. Defendants claim absolute and qualified immunity. 

Section 1983 creates a private right of action to vindicate violations of “rights, privileges, 

or immunities secured by the Constitution and laws” of the United States. See Rehgburg v. 

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Paulk, 132 S. Ct. 1497, 1502 (2012). By its terms, it applies to “[e]very person” who acts under 

color of state law to violate those rights. See Imbler v. Pachtman, 424 U.S. 409, 417 (1976). 

“Despite the broad terms of § 1983, [the Supreme Court has] long recognized that the statute was 

not meant to effect a radical departure from ordinary tort law and the common-law immunities 

applicable in tort suits.” Rehberg, 132 S. Ct. at 1502 (citing cases). 

In deciding what immunities apply in § 1983 cases, the Supreme Court has “consulted the 

common law to identify those governmental functions that were historically viewed as so 

important and vulnerable to interference by means of litigation that some form of absolute 

immunity from civil liability was needed to ensure that they are performed ‘with independence 

and without fear of consequences.’” Rehberg, 132 S. Ct. at 1502 (quoting Bradley v. Fisher, 13 

Wall. 335, 350 n.59 (1872)). Relevant to this case, the Supreme Court has held that witnesses 

before a grand jury, witnesses at trial, and prosecutors acting in furtherance of their prosecutorial 

duties are entitled to absolute immunity. Id. at 1503, 1506. Those acting under color of state law 

in an investigatory role, including prosecutors, may claim only qualified immunity. See Buckley 

v. Fitzsimmons, 509 U.S. 259, 270 (1993). 

Whether a prosecutor is acting within the scope of his prosecutorial duties, and is 

therefore entitled to absolute immunity, “hinges on whether the prosecutor is, at the time, acting 

as an officer of the court, as well as on his action’s relatedness to the judicial phase of the 

criminal process.” Fields v. Wharrie, 672 F.3d 505, 510 (7th Cir. 2012). Prosecutorial immunity 

“extends beyond an individual prosecutor’s decision to indict or try a case.” Id. (citing Van de 

Kamp v. Goldstein, 555 U.S. 335, 344-48 (2009). It protects the “functioning of the public 

office” and so “encompasses any action directly relevant to a prosecutor’s ability to conduct a 

trial.” Id. But when a prosecutor is functioning like a detective, “searching for the clues and 

8
corroboration that might give him probable cause to recommend that a suspect be arrested,” then 

the prosecutor is acting as a detective and is not entitled to greater immunity. See Buckley, 509 

U.S. at 273, 276. “In other words, ‘[w]hen the functions of prosecutors and detectives are the 

same * * * the immunity that protects them is also the same.’” Lewis v. Mills, 677 F.3d 324, 330 

(7th Cir. 2012) (quoting Buckley, 509 U.S. at 276). 

Qualified immunity “protects government officials from liability for civil damages if 

their actions did not violate ‘clearly established statutory or constitutional rights of which a 

reasonable person would have known.’” Viilo v. Eyre, 547 F.3d 707, 709 (7th Cir. 2008) 

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity is immunity from 

suit rather than merely a defense to liability. Scott v. Harris, 550 U.S. 372, 376 n. 2 (2007). The 

qualified immunity analysis comprises a two-part inquiry: (i) “whether the facts alleged show 

that the state actor violated a constitutional right,” and (ii) “whether the right was clearly 

established.” Hanes v. Zurick, 578 F.3d 491, 493 (7th Cir. 2009). 

 1. Thomas K. McQueen 

Plaintiffs first argue that McQueen is not entitled to absolute immunity because he was 

not actually a special prosecutor. This line of argument is something of a surprise because 

Plaintiffs’ complaint repeatedly describes McQueen as a special state’s attorney or as someone 

vested with the same legal authority as a state’s attorney. For instance, the complaint begins this 

way: 

This action is brought pursuant to the First, Fourth and Fourteenth Amendments 

to the United States Constitution and under Illinois state Law. Plaintiff Louis A. 

Bianchi, the State’s Attorney of McHenry County (hereinafter “Bianchi”), and 

three of his employees were the victims of politically and financially motivated 

criminal investigations and prosecutions orchestrated by Defendants Henry C. 

Tonigan, III and Thomas K. McQueen, in their roles as taxpayer funded special 

9
state’s attorneys in McHenry County, in concert with their co-Defendant private 

investigators, acting as special state’s attorney investigators. 

A few paragraphs later, the complaint explains that 

At all relevant times [Tonigan and McQueen] were attorneys, appointed as a 

taxpayer funded McHenry County special state’s attorney and an assistant to the 

special state’s attorney, respectively, and were acting under the color of law and 

with the same power and authority as a duly elected state’s attorney with respect 

to matters committed to their discretion. 

Compl. ¶ 5. See also Compl. ¶ 86 (“Judge Gordon Graham signed an order appointing 

Defendants McQueen and Tonigan as special state’s attorneys to investigate and prosecute 

individuals for using their official position in the SAO to give benefits in criminal prosecutions 

to friends, relatives, and supporters”). At this stage, the Court is focused on Plaintiffs’ 

complaint. As the quoted passages indicate, apart from their response to Defendants’ motion to 

dismiss, Plaintiffs consistently have alleged that McQueen misused his appointment and 

authority as a special prosecutor to violate their constitutional rights. In deciding Defendants’ 

motion to dismiss, the Court must hold Plaintiffs to those assertions. See, e.g., Odom v. Sheriff 

and Staff, 2007 WL 1238723, at *2 (C.D. Ill. Apr. 26, 2007) (it is “well established that a 

plaintiff cannot amend his complaint by statements made in briefs filed in opposition to a motion 

to dismiss”) (citing Perkins v. Silverstein, 939 F.2d 463, 471 n.6 (7th Cir. 1991)); Shanahan v. 

City of Chicago, 82 F.3d 776, 781 (7th Cir. 1996). Although in certain circumstances the Court 

may consider additional facts consistent with a complaint in deciding a motion to dismiss, it 

cannot consider facts that contradict the complaint — as any claim that McQueen was not a 

special prosecutor surely would. See, e.g., Flying J, Inc. v. City of New Haven, 549 F.3d 538, 

542 n. 1 (7th Cir. 2008); Help At Home, Inc. v. Medical Capital, LLC, 260 F.3d 748, 752-53 (7th 

Cir. 2001) (courts may consider facts in a brief opposing a motion to dismiss “if the facts are 

10
consistent with the allegations of the complaint”); UNA Worldwide, LLC v. Orsello, 2012 WL 

6115661, at *3 (N.D. Ill. Dec. 10, 2012). 

 That said, McQueen is not entitled to absolute immunity just because he was employed as 

a prosecutor at the times relevant to this case. What matters for absolute immunity is whether 

the conduct that Plaintiffs allege violated their rights was within the scope of McQueen’s 

prosecutorial duties. Plaintiffs believe that McQueen (individually and in concert with others) 

violated their federal rights in three ways: (1) by causing their false arrest (Counts I, II, and III), 

(2) violating their due process rights (Counts IV and V), and (3) prosecuting them in retaliation 

for Bianchi’s decision to run for and remain in office (Counts VI and VII). Since the conduct 

supporting each claim is somewhat different, the Court considers each theory separately. 

False Arrest. Plaintiffs were arrested after they were indicted by a grand jury and 

warrants were issued based on the indictments. McQueen cannot be liable for false arrest if 

Plaintiffs were arrested because of witness testimony or his presentation of witness testimony 

before the grand jury. A prosecutor’s conduct before a grand jury is absolutely immune. The 

Supreme Court explained this settled law in Burns v. Reed, 500 U.S. 478 (1991), a § 1983 case 

involving a prosecutor’s claim of absolute immunity for his conduct at a probable cause hearing: 

Like witnesses, prosecutors and other lawyers were absolutely immune from 

damages liability at common law for making false or defamatory statements in 

judicial proceedings (at least so long as the statements were related to the 

proceeding), and also for eliciting false and defamatory testimony from witnesses. 

See, e.g., Yaselli v. Goff, 12 F.2d 396, 401-02 (2d Cir. 1926), summarily aff’d, 

275 U.S. 503 (1927) [additional citations omitted]. See also King v. Skinner, Lofft 

55, 56, 98 Eng. Rep. 529, 530 (K.B. 1772), where Lord Mansfield observed that 

“neither party, witness, counsel, jury, or Judge can be put to answer civilly or 

criminally, for words spoken in office.” 

This immunity extended to “any hearing before a tribunal which perform[ed] a 

judicial function.” W. Prosser, Law of Torts, § 94, pp. 826-27 (1941) [additional 

citations omitted]. In Yaselli v. Goff, 275 U.S. 503 (1927), for example, this 

Court affirmed a decision by the Circuit Court of Appeals for the Second Circuit 

11
in which the court had held that the common-law immunity extended to a 

prosecutor’s conduct before a grand jury. [Additional citations omitted.] 

* * * 

As this and other cases indicate, pretrial court appearances by the prosecutor in 

support of taking criminal action against a suspect present a substantial likelihood 

of vexatious litigation that might have an untoward effect on the independence of 

the prosecutor. 

Id. at 489-92. Of course, if a prosecutor manufactured incriminating evidence while 

investigating a case, presented that manufactured evidence to the grand jury, and the grand jury 

returned an indictment, he could not claim absolute immunity for what he did during the 

investigation. A judicial proceeding does not automatically immunize misconduct that happened 

before it. See Buckley, 509 U.S. at 276 (“A prosecutor may not shield his investigative work 

with the aegis of absolute immunity merely because, after a suspect is eventually arrested, 

indicted, and tried, that work may be retrospectively described as ‘preparation’ for a possible 

trial; every prosecutor might then shield himself from liability for any constitutional wrong 

against innocent citizens by ensuring that they go to trial.”); Whitlock v. Bruggemann, 682 F.3d 

567, 578 (7th Cir. 2012); Fields, 672 F.3d at 514. But, by the same token, just because a 

prosecutor was involved in a case in an investigatory role does not mean that he is deprived of 

immunity for what he did as a prosecutor. “[T]he question of immunity turns on the capacity or 

function that the prosecutor was performing at the time of the alleged wrongful conduct.” 

Whitlock, 682 F.3d at 579 (emphasis added). 

In this case, at least for Plaintiffs’ false arrest claims, the only allegations against 

McQueen are that he interviewed witnesses and reviewed Quest Defendants’ reports of 

interviews with witnesses and that those witnesses and Quest Defendants testified and produced 

12
documents to the grand jury.1

 McQueen, too, is alleged to have testified before the grand jury. 

The claim is therefore that (1) witnesses gave false or misleading testimony to the grand jury that 

included rumor, hearsay, and manufactured and/or fabricated evidence, (2) that testimony 

persuaded the grand jury to issue an indictment, and (3) that indictment caused an arrest. 

Plaintiffs’ false arrest claim against McQueen thus is an attack on grand jury testimony and a 

prosecutor’s conduct before a grand jury (as a witness and a lawyer). This is not a case where a 

prosecutor is claiming immunity for investigatory conduct just because it was part of a series of 

events that led to a judicial proceeding. Here, it is plainly conduct at a judicial proceeding — 

grand jury testimony — that Plaintiffs claim caused their injuries related to the allegedly false 

arrest. 

In order to find that the indictment, and so the arrest, was improper, the Court would have 

to scrutinize grand jury transcripts and decide whether witnesses (including McQueen) perjured 

themselves before the grand jury. That, however, is precisely what the Court cannot do in 

deciding a claim for money damages against a prosecutor. Especially following the Supreme 

Court’s recent decision in Rehberg, the Court is not persuaded by Plaintiffs’ argument that they 

are seeking damages for a conspiracy to present false testimony or a conspiracy to prepare 

witnesses to give false testimony. The rule that witnesses before a grand jury enjoy absolute 

immunity 

may not be circumvented by claiming that a grand jury witness conspired to 

present false testimony or by using evidence of the witness’ testimony to support 

any other § 1983 claim concerning the initiation or maintenance of a prosecution. 

Were it otherwise, “a criminal defendant turned civil plaintiff could simply 

reframe a claim to attack the preparation instead of the absolutely immune actions 

themselves” Buckley, 509 U.S. at 283 (Kennedy, J. concurring in part and 

dissenting in part) [additional citations omitted]. In the vast majority of cases 

 

1

 Although Plaintiffs assert that “Defendants Tonigan and McQueen” sought to expand their investigative 

authority (Cmplt. ¶ 33), the factual support for that allegation is a letter to Judge Graham sent by Tonigan 

on the letterhead of his law firm (id. ¶¶ 34-36). 

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involving a claim against a grand jury witness, the witness and the prosecutor 

conducting the investigation engage in preparatory activity, such as a preliminary 

discussion in which the witness relates the substance of his intended testimony. 

We decline to endorse a rule of absolute immunity so easily frustrated. 

132 S. Ct. at 1506-07. That does not immunize all preparation or turn all investigation into 

preparation. But that is not what is going on here. Here, the relevant allegations are that 

evidence was presented to a grand jury and that the evidence was reviewed before it was 

presented. Plaintiffs cannot “reframe” their challenge to (allegedly) false or repudiated grand 

jury testimony by pointing to alleged misconduct at the outset of the investigation. It was not the 

mere existence of an investigation that caused Plaintiffs’ arrest; testimony before the grand jury 

did that. 

Plaintiffs have not stated a plausible claim that improper actions by McQueen outside the 

scope of his duties as a prosecutor infected the grand jury proceedings and so somehow caused 

Plaintiffs’ arrests. One more time, recall the alleged causal chain. Amy Dalby, an SAO 

employee, shared confidential documents with Bianchi’s Republican primary opponent and the 

media. Bianchi got a special prosecutor appointed. Dalby was investigated and eventually pled 

guilty to computer tampering. Dalby then petitioned Judge Graham to appoint a special 

prosecutor to investigate Bianchi, alleging that he abused his position at the SAO. Judge 

Graham granted Dalby’s petition and appointed Tonigan and McQueen as special prosecutors. 

Tonigan and McQueen interviewed Dalby and others and asked for Judge Graham to expand the 

scope of their investigation. Judge Graham granted that request, and there were more interviews 

and documents produced. A grand jury convened and witnesses (including McQueen) appeared 

before it. The grand jury indicted Plaintiffs, and the indictments led to their arrests. Where is 

McQueen’s misconduct outside his role as a prosecutor (or before the grand jury)? Plaintiffs 

point to the Tonigan letter (referenced above) through which they allege that Tonigan and 

14
McQueen manipulated Judge Graham to have their mandate expanded. But that did not cause 

Plaintiffs’ arrests. At most, that led to interviews, and those interviews did not violate the Fourth 

Amendment. Plaintiffs (quite properly) are not claiming a right not to be investigated or talked 

about. Individuals were interviewed and then testified before the grand jury. In the context of 

this case at least, interviewing a witness before his or her testimony before a grand jury is 

conduct within the scope of McQueen’s role as a prosecutor and so is absolutely immune. See 

Rehberg, 132 S. Ct. at 1506-07. Testimony before the grand jury is absolutely immune. Id. And, 

as has long been the rule, a prosecutor’s conduct before a grand jury is absolutely immune. 

Burns, 500 U.S. at 489-92. 

 Finally, even if McQueen were not entitled to absolute immunity, he would be entitled to 

qualified immunity, because there was no violation of Plaintiffs’ rights against false arrest. False 

arrest is detention without legal process. See Wallace v. Kato, 549 U.S. 384, 389 (2007); AbuShawish v. United States, 2011 WL 3687618, at *6 (E.D. Wis. Aug. 22, 2011) (“false arrest and 

false imprisonment occur only when a person is detained without legal process”). In this case, 

Plaintiffs’ arrests were supported by grand jury indictments and warrants. By definition, 

therefore, no false arrest could have occurred. See Abu-Shawish, 2011 WL 3687618, at *6. The 

unlawful procurement of process could be a different tort — malicious prosecution, perhaps — 

but it is not false arrest. See id. at *6 n. 2. 

Due Process. McQueen is alleged to have violated Plaintiffs’ due process rights by 

“causing [Plaintiffs’] wrongful charging and continued prosecution.” In opposing McQueen’s 

motion to dismiss, Plaintiffs explain their claim against McQueen as “based on the fact that 

McQueen deliberately fabricated false evidence and withheld exculpatory evidence which 

directly caused the wrongful charging and prosecution of Plaintiffs and denied their rights to a 

15
fair trial.” To the extent that this claim attacks the grand jury indictments and subsequent arrests, 

Plaintiffs’ due process claims fail for the same reasons as their Fourth Amendment claims. See 

also Imbler, 424 U.S. at 422. To the extent that these claims challenge the prosecution itself, 

McQueen is absolutely immune. Id. at 427; Fields, 672 F.3d at 512. Plaintiffs’ attempt to avoid 

the obvious immunity problems with their due process claims against McQueen by arguing that 

their case is just like Whitlock, where evidence was fabricated prior to the prosecutor’s 

assumption of his prosecutorial role. 682 F.3d at 579-80. In this case, unlike Whitlock, 

Plaintiffs’ due process claims concern alleged misconduct before the grand jury and the events 

that followed. The complaint recites a variety of allegedly untrue statements that McQueen (and 

other witnesses) made to the grand jury. For instance: 

Defendant McQueen improperly testified as a witness to the following and 

unsworn false statements of fact: 

i) that County employees were given “comp time” for 

attending parades and evening public events which were 

political in nature; 

ii) that Thomas Carroll, a former ASA, was directly told that 

he was expected to participate in political activities when 

he was hired as chief of the civil division; 

iii) that political pressure was brought to bear on SAO 

employees during Bianchi’s tenure; 

iv) that all of the documents McQueen presented to the special 

grand jury, which came from the hard drive of a computer 

used by Joyce Synek, were political in nature; and 

v) that Joan Hoffman, an administrative assistant in the SAO, 

provided McQueen political documents from her SAO 

computer. 

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Compl. ¶ 51. That is an attack on a prosecutor’s (or a witness’) conduct before the grand jury. 

Even if the complaint does accurately recount what McQueen said, and even if what he said was 

false, he is not answerable in damages for his conduct before the grand jury. 

The Supreme Court has admonished that prosecutorial immunity has a downside – 

namely, that it can “leave the genuinely wronged defendant without civil redress against a 

prosecutor whose malicious or dishonest action deprives him of liberty. But the alternative of 

qualifying a prosecutor’s immunity would disserve the broader public interest. It would prevent 

the vigorous and fearless performance of the prosecutor’s duty that is essential to the proper 

functioning of the criminal justice system.” Imbler, 424 U.S. at 427-28. This Court offers no 

opinion on whether Plaintiffs were “genuinely wronged”; for the purposes of the immunity 

questions presented at this stage of the case, that inquiry is irrelevant. What matters is that 

Plaintiffs’ claims are against a prosecutor for prosecuting a case. 

 If these claims were not barred by prosecutorial immunity, they still would be subject to 

dismissal because McQueen would be entitled to qualified immunity. If Plaintiffs’ due process 

claims are that McQueen’s fabrication of evidence caused their arrests, then Plaintiffs fail to state 

a claim, for it would be “nothing more than a recast of [their] Fourth Amendment false arrest 

claim.” McCann v. Mangialardi, 337 F.3d 782, 786 (7th Cir. 2003). “The Supreme Court has 

made it clear that a substantive due process claim may not be maintained when a specific 

constitutional provision (here the Fourth Amendment) protects the right allegedly violated.” Id. 

“Moreover, to the extent [Plaintiffs] maintain[] that [McQueen] denied [them] due process by 

causing [them] to suffer ‘[a] deprivation of liberty from a prosecution * * * deliberately obtained 

from the use of false evidence,’ [their] claim is essentially one for malicious prosecution.” Id. 

And “the existence of a tort claim under state law knocks out any constitutional theory of 

17
malicious prosecution.” Id. (quoting Newsome v. McCabe, 256 F.3d 747, 750 (7th Cir. 2001)). 

To the extent that the claim is based on nondisclosure of exculpatory evidence — a Bradyrelated claim — then, because the prosecutions ended in acquittals, Plaintiffs “would need to 

show that ‘the decision to go to trial would have been altered by the desired disclosure.’” Mosely 

v. City of Chicago, 614 F.3d 391, 397 (7th Cir. 2010) (quoting Bielanski v. County of Kane, 550 

F.3d 632, 644 (7th Cir. 2008)). In this case, however, the prosecutors were not “bilked” into 

bringing charges. See Buckley IV, 20 F.3d at 797; Fields, 672 F.3d at 518. McQueen was a 

prosecutor and he was not tricked by his own alleged deceptions and failures to disclose. And 

Plaintiffs’ complaint does not support a claim that McQueen “bilked” Tonigan. As already 

explained, Plaintiffs’ complaint alleges that McQueen and Tonigan were both vested with 

authority as prosecutors and that they both reviewed witness interviews and prosecuted the 

cases.2

 

Retaliatory Prosecution. Plaintiffs allege that McQueen, “individually, jointly and in 

conspiracy with [the other Defendants] caused the wrongful charging and continued prosecution” 

of Plaintiffs. But “[a] Bivens (or § 1983) action for retaliatory prosecution will not be brought 

against the prosecutor, who is absolutely immune from liability for the decision to prosecute.” 

Hartman v. Moore, 547 U.S. 250, 261-62 (2006). Moreover, it is worth noting that the 

complaint does not allege that McQueen had retaliatory animus against Bianchi. It certainly 

alleges that Bianchi’s Republican opponents wanted to unseat him, but it does not say why 

McQueen — appointed by Judge Graham — should be counted among those political opponents. 

In fact, the complaint is devoid of any allegation that either Tonigan or McQueen (or any other 

 

2

 For example, according to the complaint, the Quest Defendants “informed Tonigan and/or McQueen of 

information related during [witness] interviews.” Compl. ¶ 44. And, after consulting with “Tonigan 

and/or McQueen” the Quest Defendants prepared reports summarizing their findings. Again, according 

to the complaint, at Tonigan’s “and/or” McQueen’s behest, the reports “included false and manufactured 

information” about the statements of various current and former assistant state’s attorneys. Compl. ¶ 45. 

18
Defendant) even knew any of the Plaintiffs prior to their appointment by Judge Graham, much 

less had any political axe to grind or other animus toward them. According to the complaint, 

Bianchi’s “political enemies” were Dalby, Kristen Foley, an Assistant State’s Attorney whom 

Bianchi had demoted, and Daniel Regna, Bianchi’s 2008 opponent in the primary election for 

State’s Attorney (Cmplt. ¶¶ 1, 17-24) – none of whom is a Defendant in this case. Accepting 

Bianchi’s characterization that he had “political enemies,” it does not follow that the Court must 

assume that every action against him is improperly motivated. 

 2. Quest Defendants 

 Judge Graham authorized Tonigan and McQueen to employ the Quest Defendants as 

“special state’s attorney investigators.” Compl. at page 2. According to Plaintiffs’ complaint, 

the Quest Defendants were directed by McQueen “and/or” Tonigan “to conduct certain 

interviews for the purpose of manufacturing and fabricating evidence.” Compl. ¶ 42. “After 

conducting interviews, the Defendant Quest Investigators informed Tonigan and/or McQueen of 

information related during the interviews.” Compl. ¶ 44; see also compl. ¶ 90 (“The interviews 

conducted by Defendants Scigalski and Hanretty occurred at the direction of Defendants Tonigan 

and/or McQueen. After they were completed, the Defendant Quest Investigators informed 

Defendants Tonigan and/or McQueen of the substance of several interviews.”). “After 

consulting with Defendants Tonigan and/or McQueen, the Defendant Quest Investigators 

prepared reports regarding certain interviews.” Compl. ¶ 45. In furtherance of the alleged 

conspiracy with McQueen and Tonigan against Plaintiffs, the Quest Defendants are accused of 

knowingly including falsehoods in their reports. 

19
“After the special grand jury was convened, Defendants Tonigan and/or McQueen 

continued to lead the politically motivated investigation by interviewing witnesses personally 

and directing the Quest investigators who to interview, what questions to ask, and what 

information to document.” Compl. ¶ 48. “The Defendant Quest Investigators served search 

warrants, subpoenas, and subpoenas duces tecum at the direction of Defendants Tonigan and 

McQueen.” Compl. ¶ 49. Those subpoenas were allegedly “unilaterally issued” by Tonigan and 

McQueen, in violation of Illinois law. Witnesses then produced documents and appeared before 

the grand jury. Compl. ¶¶ 49-50. The Quest Defendants were among the witnesses who 

allegedly testified falsely against Plaintiffs. See, e.g., Compl. ¶¶ 53-56, 73; see also Compl. ¶¶ 

95-97 (alleged misconduct before grand jury at the direction of Tonigan and McQueen). In this 

way, and as described in Section I, above, the Quest Defendants were instrumental in Plaintiffs’ 

investigation and prosecution. 

 The Quest Defendants argue that they are entitled to qualified immunity for their conduct 

as private investigators temporarily employed by the state, see Filarsky v. Delia, 132 S. Ct. 1657, 

1665-68 (2012) (private party temporarily employed by government entitled to seek qualified 

immunity for conduct as investigator), and absolute immunity for their grand jury testimony, see, 

e.g., Rehberg, 132 S. Ct. at 1506. The Court agrees. With regard to investigatory conduct, the 

Quest Defendants could not have committed a constitutional tort by simply interviewing 

witnesses and preparing reports. See, e.g., Buckley, 509 U.S. at 281 (Scalia, J., concurring) 

(Justice Scalia was “aware of no authority for the proposition that the mere preparation of false 

evidence, as opposed to its use in a fashion that deprives someone of a fair trial or otherwise 

harms him, violates the Constitution”). An investigator could commit a constitutional tort by 

fabricating evidence and tricking a prosecutor into bringing charges. Here, however, there was 

20
no trick. According to the complaint, McQueen and Tonigan guided the Quest Defendants’ 

actions and were told what the Quest Defendants learned in their interviews. The alleged 

constitutional tort, then, is not the investigators’ conduct, but the prosecutors’ one-sided 

presentation of the evidence, including false testimony before the grand jury. McQueen, the 

remaining prosecutor-Defendant, is entitled to absolute immunity for his presentation of 

evidence to the grand jury and at trial. The Quest Defendants did not commit a constitutional 

tort by giving the prosecutors information that they (allegedly) chose to distort. See Fields, 672 

F.3d at 516-17. Insofar as Plaintiffs’ claims depend on the Quest Defendants’ allegedly false 

grand jury testimony, they are entitled to absolute immunity. See, e.g., Rehberg, 132 S. Ct. at 

1506. 

* * * 

 Based on the foregoing discussion, all of Plaintiffs’ claims, at least as currently cast, are 

subject to dismissal. Although Plaintiffs’ operative first amended complaint [70] runs forty-nine 

pages in length and Defendants’ immunity defenses may be difficult to overcome, the Court will 

not enter a dismissal with prejudice at this time. Plaintiffs who meet resistance to their 

complaint through a successful Rule 12(b)(6) motion generally are allowed at least one 

opportunity to replead, and that is an especially prudent course to follow where, as here (see pp. 

9-10, supra), there is some tension between the version of the facts alleged in the complaint itself 

and another version of the facts set out in the brief in opposition to the motion to dismiss. See, 

e.g., Smith v. Union Pac. R. Co., 474 Fed. Appx. 478, 481 (7th Cir. Apr. 5, 2012) (“Facts raised 

for the first time in plaintiff’s opposition papers should be considered when determining whether 

to grant leave to amend or dismiss the complaint with or without prejudice”) (citing Broam v. 

21
Bogan, 320 F.3d 1023, 1026 n.2 (9th Cir. 2003)). Plaintiffs therefore are given 28 days to 

replead if they believe that an amended complaint could overcome the immunity obstacles set 

forth above or otherwise state a claim for relief. The discussion below addresses the disposition 

of Plaintiffs’ state law claims in the event that (1) Plaintiffs do not replead or (2) no federal claim 

in Plaintiffs’ second amended complaint survives a renewed motion to dismiss. 

B. State Law Claims 

Plaintiffs have not stated a federal claim, and the Court must now decide whether to 

retain jurisdiction over Plaintiff's state law claims. See 28 U.S.C. § 1367(c)(3). The Seventh 

Circuit, animated by the principle of comity, consistently has stated that “it is the wellestablished law of this circuit that the usual practice is to dismiss without prejudice state 

supplemental claims whenever all federal claims have been dismissed prior to trial.” Groce v. 

Eli Lilly, 193 F.3d 496, 501 (7th Cir. 1999); Alonzi v. Budget Constr. Co., 55 F.3d 331, 334 (7th 

Cir. 1995); Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, 1182 (7th Cir. 1993); see 

also Wright v. Associated Ins. Co., Inc., 29 F.3d 1244, 1251 (7th Cir. 1994) (“When all federal 

claims have been dismissed prior to trial, the principle of comity encourages federal courts to 

relinquish supplemental jurisdiction * * * ”); see also Horton v. Schultz, 2010 WL 1541265, at 

*4 (N.D. Ill. 2010). 

In Wright v. Associated Ins. Cos., 29 F.3d 1244, 1251–53 (7th Cir. 1994), the Seventh 

Circuit noted that there occasionally are “unusual cases in which the balance of factors to be 

considered under the pendent jurisdiction doctrine judicial economy, convenience, fairness, and 

comity-will point to a federal decision of the state-law claims on the merits.” The first example 

that the Court discussed occurs “when the statute of limitations has run on the pendent claim, 

22
precluding the filing of a separate suit in state court.” Id. at 1251. That concern is not present 

here, however, because Illinois law gives Plaintiff one year from the dismissal on jurisdictional 

grounds of state law claims in federal court in which to re-file those claims in state court. See 

735 ILCS 5/13–217; Davis v. Cook County, 534 F.3d 650, 654 (7th Cir. 2008). Dismissal 

without prejudice of the state law claims also is appropriate here because the case is only at the 

motion to dismiss stage and substantial judicial resources have not been committed to the eight 

state law counts in Plaintiffs’ complaint. Wright, 29 F.3d at 1251. Finding no justification for 

departing from that “usual practice” in this case, the Court dismisses without prejudice Plaintiff’s 

state law claims without discussing their merit under state law. 

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IV. Conclusion 

For the reasons stated above, Defendants’ motions to dismiss [73, 80] are granted. 

Plaintiffs’ federal claims (Counts I – VII) are dismissed with leave to replead within 28 days. If 

Plaintiffs decide not to replead, Plaintiffs’ federal claims will be dismissed with prejudice and 

the Court will decline to exercise supplemental jurisdiction over Plaintiffs’ state law claims 

(Counts VIII – XV) and dismiss those claims without prejudice.3

 

 

Dated: January 11, 2013 __________________________________ 

Robert M. Dow, Jr. 

 United States District Judge 

 

3

 Defendants’ motions to dismiss [41, 47] the original complaint [1] are stricken as moot. Former 

Defendants Henry C. Tonigan, III, and Kelleher & Buckley, LLC’s motions to dismiss [43, 85] are also 

stricken as moot. Plaintiffs’ Motion to Strike [a] Portion of Thomas’ McQueen’s Reply Brief or in the 

Alternative for Leave to File a Sur-Reply [125] is granted in part and denied in part. The motion to strike 

is denied, the motion to for leave to file a sur-reply is granted and the attached sur-reply [125-1] was 

considered in deciding Defendants’ motions. 

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