Dallas McIntosh v. Bret M. Rich

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 27, 2025*
Decided May 27, 2025
Before
DIANE S. SYKES, Chief Judge
FRANK H. EASTERBROOK, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 23-1391
DALLAS MCINTOSH,
Plaintiff-Appellant,
v.
BRET M. RICH,
Defendant-Appellee.
Appeal from the United States District
Court for the Southern District of
Illinois.
No. 22-cv-00177-SPM
Stephen P. McGlynn,
Judge.
O R D E R
Dallas McIntosh, an Illinois prisoner, sued Bret Rich, an attorney who
represented McIntosh during a hearing on McIntosh’s motion to withdraw his guilty
plea. He alleged that Rich’s advocacy amounted to the intentional infliction of
emotional distress and a breach of Rich’s fiduciary duty. McIntosh invoked federal
* The appellee was not served with process and is not participating in this appeal.
We have agreed to decide the case without oral argument because the brief 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NONPRECEDENTIAL DISPOSITION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. 23-1391 Page 2
jurisdiction based on diversity of citizenship, 28 U.S.C. § 1332; according to the
complaint, Rich is a citizen of Missouri and McIntosh of Illinois. The district judge
dismissed the complaint at screening under 28 U.S.C. § 1915A, concluding that
McIntosh failed to state a claim upon which relief could be granted. We affirm.
We liberally construe and accept as true McIntosh’s factual allegations. See Echols
v. Craig, 855 F.3d 807, 812 (7th Cir. 2017). We may also take judicial notice of the court
records from the Illinois criminal case that gave rise to this suit. See F ED. R. EVID. 201.
In 2012, a police officer pulled over McIntosh while he was driving. McIntosh has
no memory of what happened afterward (including the officer’s statement that
McIntosh had failed to signal for 100 feet before a lane change) until he woke up in the
hospital with gunshot wounds. But a dashboard camera in the police car recorded the
incident. After additional officers arrived on the scene, McIntosh shot a gun three times
at the officers, striking one in the hand. Officers returned fire, and McIntosh fled.
Officers eventually apprehended McIntosh and found a large amount of cash, two guns,
and drugs in the vehicle.
An Illinois grand jury indicted McIntosh on multiple felony counts. McIntosh
pleaded guilty but mentally ill to five counts. He asserts that he did so because his
attorney told him that he had been lawfully stopped for failing to signal—at all—when
changing lanes. But McIntosh later moved to withdraw his guilty plea, asserting that he
learned of a potential challenge to the legality of the stop after seeing the video for the
first time at his sentencing hearing. That video, he says, shows that he did not
completely fail to signal. In McIntosh’s view, signaling for too short a time would not be
a sufficient basis to pull him over.
In the spring of 2016, McIntosh hired Rich to represent him with respect to his
motion to withdraw the guilty plea. He asked Rich to argue that the State and his
former defense attorney were estopped from asserting that he failed to signal for the
required 100 feet and were instead bound by earlier representations that he was pulled
over for a (total) “failure to signal.” Rich did not do so in his briefing.
Then, at the hearing on McIntosh’s motion, McIntosh’s former attorney testified
that he had shown McIntosh the dashboard video during a two-hour visit at the jail.
McIntosh informed Rich that the attorney was testifying falsely: he had logs showing
that the longest meeting between the two was about one hour. But after reviewing this
evidence, Rich declined to use it to impeach the former attorney and instead followed
his own pre-planned cross-examination. The circuit court denied McIntosh’s motion to

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No. 23-1391 Page 3
withdraw his guilty plea. Represented by a new attorney, McIntosh unsuccessfully
appealed. See People v. McIntosh, 146 N.E.3d 813, 831 (Ill. App. Ct. 2020).
In 2022, McIntosh filed this lawsuit in federal court, claiming that Rich caused
McIntosh’s continued imprisonment because Rich failed to impeach the former attorney
or otherwise advance the arguments McIntosh had proposed. McIntosh asserted that
Rich’s failures amounted to a breach of fiduciary duty and intentional infliction of
emotional distress. But the district judge dismissed McIntosh’s operative complaint. The
judge construed McIntosh’s allegations about the attorney’s actions as a legal
malpractice claim and concluded that McIntosh had not shown that his conviction had
been overturned—a prerequisite for bringing that claim against a criminal defense
attorney. See Kramer v. Dirksen, 695 N.E.2d 1288, 1290–91 (Ill. App. Ct. 1998). And Rich’s
decisions about how to present evidence and argument were not the sort of “extreme or
outrageous” conduct that support a claim of intentional infliction of emotional distress.
On appeal, McIntosh first disputes the district judge’s characterization of his
claim as legal malpractice. Instead, he contends that Rich breached the fiduciary duty he
owed to him. McIntosh is correct that the two claims are conceptually distinct.
See Pippen v. Pederson & Houpt, 986 N.E.2d 697, 704 (Ill. App. Ct. 2013). Still, in the
context of legal representation, a claim for breach of fiduciary duty must be premised
on actions beyond mere negligence and show that the attorney placed his interest ahead
of his client’s or sought “a selfish benefit.” Neade v. Portes, 739 N.E.2d 496, 500 (2000)
(quoting Kurtz v. Solomon, 656 N.E.2d 184, 191 (Ill. 1995)). McIntosh’s allegations do not
plausibly rise to that level. Instead, Rich’s failure to recognize the purported import of
McIntosh’s proposed argument (estoppel) or evidence (the attendance log) rises to
negligence, at most.
For a similar reason, McIntosh’s assertion that he did not need to show that his
conviction had been overturned also fails. McIntosh does not claim that he is innocent
of the crime or dispute that his conviction is still intact. Instead, citing Morris v.
Margulis, 718 N.E.2d 709, 720–21 (Ill. App. Ct. 1999), he asserts that Illinois law does not
require proof of innocence if a defense attorney’s misconduct was intentional. But the
exception in Morris applies only when the defense attorney breaches his fiduciary duty
by “intentionally work[ing], contrary to his client’s interest, to secure the client’s
conviction” for personal gain. Fink v. Banks, 996 N.E.2d 169, 174 (Ill. App. Ct. 2013).
Nothing in the complaint plausibly suggests that Rich intentionally tried to ensure that
McIntosh’s motion to withdraw the guilty plea failed.

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No. 23-1391 Page 4
Next, McIntosh asserts that he sufficiently pleaded that Rich’s refusal to conduct
the hearing according to McIntosh’s preferences was extreme and outrageous conduct.
He believes that the district judge applied an unrecognized exception that the attorney’s
use of “discretion” negates any extreme and outrageous conduct. But Illinois law does
not “permit recovery to a plaintiff … where the emotional distress is premised solely on
the negligence of [the attorney] in performing legal work[.]” Maere v. Churchill,
452 N.E.2d 694, 698 (Ill. App. Ct. 1983). And as previously discussed, McIntosh’s
allegations rise no higher than negligence. Regardless, for any defendant, Illinois courts
consider whether the “defendant reasonably believed his objective was legitimate[.]”
Benton v. Little League Baseball, Inc., 181 N.E.3d 902, 927 (Ill. App. Ct. 2020) (citation
omitted). Here, McIntosh alleged that Rich had a pre-planned line of questioning to use
during cross-examination. After McIntosh showed Rich the documents he believed
would impeach the former attorney, Rich still chose to follow his own plan. This
suggests that Rich exercised his professional judgment, not that he pursued an
illegitimate objective.
We have considered McIntosh’s remaining arguments, and none merits
discussion.
AFFIRMED

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