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Bianchi v. McQueen

United States District Court, N.D. Illinois, Eastern Division

January 11, 2013

Louis A. BIANCHI, Joyce A. Synek, Ronald J. Salgado, and Michael J. McCleary, Plaintiffs,
Thomas K. McQUEEN, Daniel Jerger, Robert Scigalski, James Reilly, Patrick Hanretty, Richard Stilling, Quest Consultants International, Limited, an Illinois Corporation, and Unknown Co-Conspirators, Defendants.

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Terry A. Ekl, Patrick Laurence Provenzale, Tracy L. Stanker, Ekl, Williams & Provenzale LLC, Lisle, IL, for Plaintiffs.

Steven M. Puiszis, Matthew R. Henderson, Nabil G. Foster, Hinshaw & Culbertson LLP, Steven Michael Klaczynski, CNA Insurance Companies, Miguel A. Ruiz, Cynthia Hannan Alkhouja, David Joseph Stein, Suzanne Marie Crowley, Pretzel & Stouffer, Chtd., Chicago, IL, Thomas F. Downing, Wheaton, IL, for Defendants.


ROBERT M. DOW, JR., District Judge.

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

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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 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, 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

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"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.

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 returned 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 recused 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 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

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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 ...

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