Dallas McIntosh v. Nicholas Gailius

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 21, 2025*
Decided March 25, 2025
Before
MICHAEL B. BRENNAN, Circuit Judge
DORIS L. PRYOR, Circuit Judge
NANCY L. MALDONADO, Circuit Judge
No. 23-1333
DALLAS MCINTOSH,
Plaintiff-Appellant,
v.
NICHOLAS GAILIUS, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Southern District of
Illinois.
No. 16-CV-1018-SMY
Staci M. Yandle,
Judge.
O R D E R
Dallas McIntosh, an Illinois prisoner, alleged that police officers, prosecutors,
and the City of Fairview Heights, Illinois, deprived him of his constitutional rights by
prosecuting and wrongfully convicting him in 2012. See 42 U.S.C. § 1983. The district
court first dismissed the prosecutors based on absolute immunity. McIntosh then
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 23-1333 Page 2
moved to dismiss without prejudice his remaining claims, see F ED. R. C IV. P. 41(a)(2),
conceding that his conviction was intact and thus Heck v. Humphrey, 512 U.S. 477 (1994),
barred his suit. The court granted his motion but dismissed the suit with prejudice.
McIntosh appeals both dismissals. When a plaintiff moves for dismissal without
prejudice, the court may not dismiss the action with prejudice unless the court first
provides the plaintiff a reasonable opportunity to withdraw the motion. See Carter v.
City of Alton, 922 F.3d 824, 826 (7th Cir. 2019). The court did not supply McIntosh with
that opportunity, and its use of absolute immunity was overbroad. But because Heck
bars the entire suit, we affirm the judgment and modify it to be without prejudice.
We liberally construe and accept as true McIntosh’s factual allegations. See Echols
v. Craig, 855 F.3d 807, 812 (7th Cir. 2017). In 2012, police stopped McIntosh while he was
driving lawfully. He did not remember what happened immediately after the stop, but
he woke up in the hospital after the police shot him. Prosecutors allegedly instructed
police officers to fabricate reports accusing McIntosh of crimes, leading him to plead
guilty to those crimes for which he received a 40-year sentence. He later attempted to
withdraw his guilty plea, but he was unsuccessful at the state trial and appellate levels.
See People v. McIntosh, 146 N.E.3d 813, 831 (Ill. App. Ct. 2020).
While his state case was pending, McIntosh filed this § 1983 suit in 2016 and
litigated it over the next six years. As relevant to this appeal, the prosecutors moved to
dismiss his third amended complaint, citing absolute prosecutorial immunity, Heck, and
other defenses. The district court granted the prosecutors’ motion, reasoning that they
were immune from this suit. Later, McIntosh moved to dismiss his fifth amended
complaint without prejudice, see F ED. R. C IV. P. 41(a)(2), because he conceded that Heck
barred his remaining claims. The defendants responded that dismissal was proper
based on Heck but asked for dismissal with prejudice. The court granted McIntosh’s
motion but dismissed his suit with prejudice. It reasoned that McIntosh spent six years
litigating against the defendants and his convictions were unlikely to be overturned.
On appeal, McIntosh first focuses on the prosecutors. He asserts that, to gather
evidence, the prosecutors told the police to fabricate reports against him. Because this
conduct involves investigative activities rather than prosecutorial duties, absolute
immunity does not shield it. See Buckley v. Fitzsimmons, 509 U.S. 259, 275–76 (1993).
Nonetheless, we may affirm on any ground supported by the record. See Bennett v.
Spear, 520 U.S. 154, 166 (1997). And the prosecutors on appeal contend that McIntosh’s
lone claim against them is Heck-barred. Under Heck, a plaintiff cannot litigate a claim
that he was prosecuted maliciously unless and until he can demonstrate that the

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No. 23-1333 Page 3
conviction was invalidated. 512 U.S. at 484–87. McIntosh is still convicted of the crimes
for which he claims the prosecutors told police to fabricate evidence; thus, he has not
satisfied this essential requirement. McIntosh also does not contest that Heck bars his
claims against the prosecutors: In his Rule 41(a)(2) motion in the district court, he
conceded that his entire suit is Heck-barred; and on appeal, he does not retreat from this
conclusion. But Heck-barred claims do not accrue until the underlying conviction is set
aside. Savory v. Cannon, 947 F.3d 409, 417 (7th Cir. 2020) (en banc) (citation omitted). For
that reason, on the alternative ground for affirmance that the prosecutors urge—Heck—
the judgment dismissing those claims must modified to be without prejudice.
See Johnson v. Rogers, 944 F.3d 966, 968 (7th Cir. 2019).
We next turn to the dismissal of the remaining claims. McIntosh argues that the
district court should have dismissed his Heck-barred, fifth amended complaint without
prejudice, rather than with prejudice. We agree. Rule 41(a)(2) gives a district court
discretion to dismiss an action at the plaintiff’s request “on terms that the court
considers proper.” See F ED. R. C IV. P. 41(a)(2). Even if a plaintiff requests a dismissal
without prejudice, the court may dismiss with prejudice, but only if it gives the plaintiff
“an opportunity to withdraw [his] voluntary dismissal motion.” See Carter, 922 F.3d at
826 (citing Babcock v. McDaniel, 148 F.3d 797, 799 (7th Cir. 1998)). The court did not
provide McIntosh that opportunity here. That was a procedural error.
We have considered whether this misstep was harmless, but we conclude that it
was not. First, the district court reasoned that because, in its view, McIntosh was not
likely to get his conviction vacated, dismissal ought to be prejudicial. But an intact
conviction necessitates that a dismissal on Heck grounds be without prejudice.
See Johnson, 944 F.3d at 968. Second, the court was concerned that this case had lasted
for six years at a cost to the defendants. But the defendants never invoked a cost-based
reason to dismiss the case with prejudice in their response to McIntosh’s motion; they
argued only (and incorrectly) that Heck itself warrants a prejudicial dismissal. Because
McIntosh could withdraw his Rule 41(a)(2) motion to avoid a prejudicial dismissal, see
Carter, 922 F.3d at 826, the only way that the defendants could obtain dismissal with
prejudice based on litigation costs would be if they invoked some rule other than Rule
41(a)(2). But they never did so in the district court, and they do not do so now. Thus, the
defendants have not presented us with an alternative ground to affirm the prejudicial
dismissal.
We therefore AFFIRM the judgment and MODIFY it to be without prejudice.

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