1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JIMMY CICHOCKI,

Plaintiff,

v.

KIMBERLY M. FOXX, et al., 

Defendants.

Case No. 20-cv-02165

Judge Mary M. Rowland

MEMORANDUM OPINION AND ORDER

Plaintiff Jimmy Cichocki brings this action against Cook County State’s 

Attorney Kimberly M. Foxx, Assistant State’s Attorney Orlando Carreno, Assistant 

State’s Attorney Jason Poje (collectively, “Prosecutor Defendants”); Cook County 

Circuit Court Judge Joel L. Greenblatt, private defense attorney Donald J. Cosley, 

private defense attorney Lynn T. Palac, and Song Gao. Cichocki asserts a total of 

ten claims stemming from his state court criminal prosecution that arose out of a 

domestic and child custody dispute in Illinois state court. The Prosecutor 

Defendants and Defendant Cosley both move to dismiss. For the reasons stated 

herein, Defendants’ Motions to Dismiss [77] [80] are granted. Civil case terminated. 

I. Background

A. Factual Background 

The following factual allegations are taken from the Amended Complaint 

(Dkt. 68) and are accepted as true for the purposes of the motion to dismiss. See W. 

Bend Mut. Ins. Co. v. Schumacher, 844 F.3d 670, 675 (7th Cir. 2016). The Court also 

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assumes familiarity with the facts of this case from its previous ruling. Cichocki v. 

Foxx, 20-CV-02165, 2021 WL 1103347 (N.D. Ill. Mar. 23, 2021) (“Cichocki I”). 

In November 2015, Cichocki’s girlfriend, Stacy Geng, gave birth to their

daughter, E.C. [68] ¶ 1. Since E.C.’s birth, Geng’s mother, Defendant Gao has 

challenged Cichocki’s parental rights and threatened to take E.C. and Geng to 

China. Id. at ¶¶ 16–18. 

In August 2017, Cichocki obtained an emergency order of protection (EOP) 

against Gao for physically harming him near his daughter. Id. at ¶ 19. On August 

31, 2017, Cichocki appeared before Defendant Judge Greenblatt to request an 

extension of the EOP. Id. at ¶ 20. Instead, Judge Greenblatt vacated the order of 

protection. Id. Cichocki alleges that ASA Carreno was present at this hearing and 

“claimed without basis that the EOP could not continue.” Id. Later that same day, 

Cichocki obtained a second EOP against Gao because he “continued to believe that 

[E.C.] was at risk of being removed from the country by Defendant Gao.” Id. at ¶ 21. 

Though the emergency order was set for review on September 19, 2017, Defendant

Gao had the order terminated in an ex parte hearing before Judge Betar (not named 

in this suit) on September 5, 2017. Because Cichocki feared Gao would remove E.C. 

to China, Cichocki left the State of Illinois for Oklahoma with his daughter in early 

October. Id. at ¶ 28. 

During the time that Cichocki was pursuing an EOP against Gao (E.C.’s 

grandmother), E.C.’s mother, Geng, was facing criminal domestic violence charges 

for biting Cickocki. Id. at ¶ 22. Judge Greenblatt conducted a hearing in Geng’s 

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criminal case on October 13, 2017. ASA Carreno prosecuted the charges and 

Defendant Cosley represented Geng. Id. at ¶ 31. During the proceedings, the parties 

met to discuss possible resolution pursuant to Illinois Supreme Court Rule 402

which allows for plea discussions between the defendant, prosecutor, and trial 

judge. Ill. Sup. Ct. R. 402. Id. Judge Greenblatt denied Cichocki’s request to 

participate in the Rule 402 conference because he was not a party to the case. Id. 

Cichocki alleges that when leaving the courtroom, he heard Gao say to Cosley 

(Geng’s lawyer) that she would “pay one million dollars to ‘each of you’ if they would 

provide an order to have Plaintiff give [E.C.] to defendant Gao.” Id. at ¶ 32. After 

the Rule 402 conference, Judge Greenblatt entered an order against Cichocki

requiring him to turn E.C. over to Gao’s care in the next 72 hours. Id. at ¶ 35. 

Plaintiff believed this order was void for lack of subject matter jurisdiction. Id. 

Plaintiff alleges that these Defendants conspired together to deprive Cichocki 

of his constitutional rights during the Rule 402 conference and “affirmatively 

endeavored to stretch and manipulate that case to achieve a child placement result 

in favor of Defendant Gao.” Id. at ¶ 37. Cichocki also alleges that Defendants 

violated his rights by creating false evidence about another child placement 

hearing. Id. at ¶ 38. This false evidence was used to unlawfully arrest, detain and 

convict Plaintiff. Id. at ¶ 39.

After the Rule 402 conference, Geng’s domestic violence case was recalled.

Cichocki alleges that during the hearing Judge Greenblatt made statements “as 

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though Plaintiff was the client of a police social worker” and “claimed that Plaintiff 

would receive the child-turnover order from [the social worker].” Id. at ¶ 36. 

Although the Complaint is not entirely clear, Cichocki did not turn E.C. over 

to Gao but, instead returned to Oklahoma with E.C. According to the Complaint, on 

November 1, 2017, Defendant ASA Jason Poje approved a felony arrest warrant for 

Cichocki “despite his colleague’s valid denial of approval on prior days.” Id. at ¶ 40. 

On November 7, 2017, Cichocki was arrested by the United States Marshals Service 

and jailed at the Pottawatomie County Safety Center. Id. at ¶ 45. He was held there 

until February 7, 2018 when he was extradited to Illinois and released to the 

Hoffman Estates Police Department. Id. at ¶¶ 44–45. 

On February 8, 2018, Cichocki appeared at a bond hearing and was informed 

that he was facing a Class 4 felony charge of child abduction. Id. at ¶ 46. Cichocki 

complains that he was charged with child abduction “even though [he] was charged 

with [E.C.’s] sole physical care and possession at that time.” Id. In March 2018, 

prosecutors filed a superseding indictment, charging Cichocki with Class 2 felony 

kidnapping. Id. at ¶ 47. 

On April 5, 2018, Cichocki pled guilty to a Class A misdemeanor of attempted 

child abduction. According to Cichocki, his counsel, Defendant Palac, failed to 

“investigate and present information” that would have exculpated him. Id. at ¶¶ 48, 

50. Cichocki was convicted and placed on probation for two years, assessed a $324 

fine, ordered to attend mandatory parenting classes, and required to attend a 

mental health evaluation. He was also barred him from contacting E.C. Id. at ¶ 51. 

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After his conviction, Cichocki contacted his prior attorney, Defendant Palac, 

in order to get his conviction overturned. Id. at ¶ 53. She declined to assist him. Id. 

On March 13, 2020, Cichocki’s probation ended, though he still has outstanding fees 

and fines totaling more than $1,000. Id. at ¶ 57. 

Cichocki asserts ten claims but mostly does not indicate which Defendants 

are named in each count. Dkt. 68. The first five counts are brought pursuant to §

1983 and allege: malicious prosecution (Count I); false imprisonment/wrongful 

detention before his conviction (Count II); coercion of Plaintiff’s confession (Count 

III); violation of the Sixth Amendment for failing to provide access to his attorney

(Count IV); and conspiring to deny him his civil rights in violation of Section 1983

(Count V). The remaining claims are state law claims: Count VI alleges that Palac 

committed malpractice; Count VII alleges that Defendants conspired against him in 

violation of Illinois law; Count VIII alleges intentional infliction of emotional 

distress; and Counts IX and X allege respondent superior and indemnification 

against State’s Attorney Kim Foxx. 

B. Procedural Background 

Cichocki initiated this suit on March 3, 2020 while represented by an 

attorney. Dkt. 1. After an initial round of briefing, this Court dismissed Defendants 

Palac and Judge Greenblatt. Cichocki I at 7. Judge Greenblatt was dismissed with 

prejudice due to absolute immunity. Id. The court dismissed the federal claims 

against Palac, Cichocki’s attorney, because she is not a state actor. Id. The Court 

dismissed the remaining state law claims against her for failing to state a claim. At 

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that time, this Court also noted that Defendants Foxx, Carreno, Poje, and Cosley 

were not properly served. Dkt. 29. The Court granted Cichocki until April 9, 2021 to 

properly serve the remaining defendants. Id.

Shortly thereafter, Cichocki’s attorney filed a motion to withdraw. Dkt. 31. 

The Court granted the motion and extended the time to serve the Prosecutor 

Defendants to June 11, 2021. Dkt. 34. On June 14, 2021, Cichocki informed the 

Court he would proceed pro se but was unable to serve the Prosecutor Defendants 

due to difficulties posed by the pandemic. Dkt. 46. In September 2021, the 

Prosecutor Defendants appeared. Dkts. 64–68. On September 8, 2021, Plaintiff filed 

the operative complaint. Dkt. 68. 

On October 6, 2021, this Court held a status and set a briefing schedule for 

motions to dismiss. On October 15, 2021, the Prosecutor Defendants filed the 

instant motion to dismiss for lack of jurisdiction and failure to state a claim. Dkt. 

77. The Court held a status hearing on December 13, 2021. During the hearing, 

Defendant Cosley requested an extension to file his response due to a filing error. 

The Court granted that request, giving Cosley until the next day to file his motion. 

Dkt. 79. At that point Cichocki’s response to the Prosecutor Defendants’ motion to 

dismiss was seven days past due. The Court granted Cichocki until January 14, 

2022, to respond, which was 90 days from the motion initially being filed. The Court 

granted Cichocki until February 18, 2022 to respond to Cosley’s motion. Id. At the 

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time of this order, Cichocki has not filed a response to either motion. His failure to 

respond means he has waived any arguments that he could have been made.1

II. Standard

A motion to dismiss tests the sufficiency of a complaint, not the merits of the 

case. Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). “To survive a 

motion to dismiss under Rule 12(b)(6), the complaint must provide enough factual 

information to state a claim to relief that is plausible on its face and raise a right to 

relief above the speculative level.” Haywood v. Massage Envy Franchising, LLC, 887 

F.3d 329, 333 (7th Cir. 2018) (quotations and citation omitted). See also Fed. R. Civ. 

P. 8(a)(2) (requiring a complaint to contain a “short and plain statement of the claim 

showing that the pleader is entitled to relief.”). A court deciding a Rule 12(b)(6) 

motion accepts plaintiff’s well-pleaded factual allegations as true and draws all 

permissible inferences in plaintiff’s favor. Fortres Grand Corp. v. Warner Bros. 

Entm't Inc., 763 F.3d 696, 700 (7th Cir. 2014). A plaintiff need not plead “detailed 

factual allegations”, but “still must provide more than mere labels and conclusions 

or a formulaic recitation of the elements of a cause of action for her complaint to be 

considered adequate under Federal Rule of Civil Procedure 8.” Bell v. City of 

Chicago, 835 F.3d 736, 738 (7th Cir. 2016) (citation and internal quotation marks 

omitted).

1 See G & S Holdings LLC v. Cont'l Cas. Co., 697 F.3d 534, 538 (7th Cir. 2012) (“We have repeatedly 

held that a party waives an argument by failing to make it before the district court. That is true 

whether it is an affirmative argument in support of a motion to dismiss or an argument establishing 

that dismissal is inappropriate.”) (citations omitted); see also Bonte v. U.S. Bank N.A., 624 F.3d 461, 

466 (7th Cir. 2010) (“Failure to respond to an argument . . . results in waiver.”)

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Dismissal for failure to state a claim is proper “when the allegations in a 

complaint, however true, could not raise a claim of entitlement to relief.” Bell Atl. 

Corp. v. Twombly, 550 U.S. 544, 558, 127 S. Ct. 1955, 1966 (2007). Deciding the 

plausibility of the claim is “‘a context-specific task that requires the reviewing court 

to draw on its judicial experience and common sense.’” McCauley v. City of Chicago, 

671 F.3d 611, 616 (7th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 

S. Ct. 1937, 1950 (2009)). In addition, the Court construes the pro se complaint 

liberally, holding it to a less stringent standard than lawyer-drafted pleadings. 

Cesal v. Moats, 851 F.3d 714, 720 (7th Cir. 2017).

“Motions to dismiss under Rule 12(b)(1) are meant to test the sufficiency of 

the complaint, not to decide the merits of the case,” and “[i]n the context of a motion 

to dismiss for lack of subject matter jurisdiction, [the court] accept[s] as true the 

well pleaded factual allegations, drawing all reasonable inferences in favor of the 

plaintiff[.]” Center for Dermatology & Skin Cancer, Ltd. v. Burwell, 770 F.3d 586, 

588 (7th Cir. 2014). However, “a plaintiff faced with a 12(b)(1) motion to dismiss 

bears the burden of establishing that the jurisdictional requirements have been 

met.” Id. at 588–89.

III. Analysis

A. Standing

The Prosecutor Defendants argue that Cichocki lacks standing to bring his 

complaint for two reasons: (1) the Younger v. Harris abstention doctrine bars his 

claims given his pending criminal appeal in state court (Dkt. 77 at 5); and (2) the 

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Rooker-Feldman doctrine bars his claims because they require this court to evaluate 

previous decisions in state court, id. at 6; See also Dkt. 68 at ¶ 3. Cichocki’s criminal 

conviction is pending appeal in state court. Dkt. 77 at 3 (Clerk of the Circuit Court’s 

Case Summary for 18CR0321401, pp. 2–3). 

Taking these arguments in reverse, the Rooker-Feldman doctrine provides 

that “the Supreme Court of the United States is the only federal court that may 

review judgments entered by state courts in civil litigation.” Harold v. Steel, 773 

F.3d 884, 885 (7th Cir. 2014) (emphasis added); see generally Rooker v. Fidelity 

Trust Co., 263 U.S. 413 (1923) (holding that inferior federal courts cannot 

reexamine the decisions of state tribunals in civil litigation). Because Plaintiff’s 

claims implicate his underlying state criminal case, not a civil case, the RookerFeldman doctrine is inapplicable here. 

On the other hand, the Prosecutor Defendants are correct that Plaintiff’s 

claims trigger the Younger v. Harris abstention doctrine. Younger “generally 

requires federal courts to abstain from taking jurisdiction over federal 

constitutional claims that involve or call into question ongoing state proceedings”

and presents a threshold issue implicating a federal court’s subject matter 

jurisdiction. FreeEats.com, Inc. v. Indiana, 502 F.3d 590, 595 (7th Cir. 2007)

(Younger v. Harris, 401 U.S. 37, 43–44 (1971)). The doctrine permits state courts to 

try cases free from federal interference. Id. Therefore, Younger and its progeny 

“require federal courts to abstain from enjoining ongoing state proceedings that are 

(1) judicial in nature, (2) implicate important state interests, and (3) offer an 

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adequate opportunity for review of constitutional claims, (4) so long as no 

extraordinary circumstances—like bias or harassment—exist which argue against 

abstention.” Majors v. Engelbrecht, 149 F.3d 709, 711 (7th Cir. 1998); see also Sprint 

Commc'ns, Inc. v. Jacobs, 571 U.S. 69, 77 (2013) (holding that criminal proceedings 

in state court indisputably warrant Younger abstention). 

Although Cichocki’s conviction and state court proceedings ended, Younger 

“continues to apply while state criminal cases go through the appellate process.” 

Cannon v. Newport, 572 Fed. Appx. 454, 455 (7th Cir. 2014); Simpson v. Rowan, 73 

F.3d 134, 138 (7th Cir. 1995). Presently, Cichocki’s criminal conviction is pending 

appeal in state court. See Dkt. 77 at 3 (Clerk of the Circuit Court’s Case Summary 

for 18CR0321401, pp. 2–3).2

Many of Cichocki’s claims are implicated by Younger, and the Court therefore 

must abstain from exercising jurisdiction over them.3 Specifically, claims of 

conspiracy related to a criminal conviction require abstention. See Cannon, 572 Fed. 

App’x at 454 (holding that district court must abstain from hearing a plaintiff’s 

Section 1983 conspiracy claim while his appeal remained pending in state court); 

2 “Where, as here, plaintiff's complaint is facially sufficient but external facts call the court’s 

jurisdiction into question, we may properly look beyond the jurisdictional allegations of the 

complaint and view whatever evidence has been submitted on the issue to determine whether in fact 

subject matter jurisdiction exists.” Taylor v. McCament, 875 F.3d 849, 853 (7th Cir. 2017) (quotation 

omitted).

3 The Court acknowledges that exceptions to Younger exist. See Jacobson v. Vill. of Northbrook Mun. 

Corp., 824 F.2d 567, 569–70 (7th Cir. 1987) (citations and internal quotation marks omitted) (holding 

that courts should not abstain under Younger where “(1) the state proceeding is motivated by a 

desire to harass or is conducted in bad faith; (2) there is an extraordinarily pressing need for 

immediate equitable relief; or (3) the challenged provision is flagrantly and patently violative of 

express constitutional prohibitions.”). Given that Plaintiff did not respond to the motion, he raises no 

argument for the application of any of these exceptions. Regardless, the Court finds none applicable 

based on the facts alleged in this case.

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Boothe v. Sherman, 66 F. Supp. 3d 1069 (N.D. Ill. 2014) (holding that conspiracy 

allegations are intimately related to underlying criminal proceeding because a 

finding in plaintiff’s favor would warrant vacating the conviction). 

Claims of unlawful detention and false imprisonment also require this Court 

to abstain under Younger. See Gakuba v. O’Brien, 711 F.3d 751, 753 (7th Cir. 2013) 

(holding that the Court must abstain where the plaintiff seeks damages resulting 

from searches, seizures or detention while there are also ongoing criminal 

proceedings); see also Moore v. City of Alton, 20-CV-00964-SMY, 2020 WL 7059254

at *4 (S.D. Ill. Dec. 2, 2020) (applying the reasoning of Gabuka to a detention 

claim).

The same applies to a Sixth Amendment right to counsel claim. See Olsson v. 

Curran, 328 F. App’x 334, 334 (7th Cir. 2009) (holding that a district court did not 

err in abstaining from a Sixth Amendment right to counsel claim where the plaintiff 

was involved in an ongoing criminal proceeding); Jackson v. Devalkenaere, 2018 WL 

2208360, at *5 (E.D. Wis. May 14, 2018) (finding that Younger required abstention 

when a plaintiff sought damages for a Sixth Amendment right to counsel claim 

while his criminal appeal remaining pending in state court). 

Therefore, under Younger, this Court lacks jurisdiction to hear: Count II 

(unlawful detention/false imprisonment claim); Count IV (Sixth amendment right to 

counsel claim; Count V (Section 1983 conspiracy claim); and Count VII (state-law 

conspiracy claim). Although typically courts stay, rather than dismiss, these claims,

see Gabuka, 711 F.3d at 753, the Seventh Circuit has instructed courts to only stay 

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those claims not otherwise implicated by Heck v. Humphrey, which bars a court 

from hearing civil claims in federal court that may invalidate a conviction. See 

Simpson v. Rowan, 73 F.3d 134, 134 (7th Cir. 1995) (holding that even when 

Younger may apply, the district court should stay cases that are not foreclosed by

Heck); see also Boothe v. Sherman, 66 F. Supp. 3d 1069, 1076 (N.D. Ill. 2014) (noting 

that, although a claim for violation of due process fell under Younger and would 

otherwise by stayed, an analysis of whether the claims should be dismissed for “any 

other reason” was warranted.); Wallace v. Kato, 549 U.S. 384, 393–94 (2007) 

(holding that if a plaintiff files a “claim relating to rulings that will likely be made 

in a pending or anticipated criminal trial, it is within the power of the district court, 

and in accord with common practice, to stay the civil action until the criminal case. .

. is ended. . . . If the plaintiff is ultimately convicted, and if the stayed civil suit 

would impugn the conviction, Heck will require dismissal; otherwise, the civil action 

will proceed, absent some other bar to suit.”). Therefore, the Court undertakes the 

necessary analysis of Cichocki’s claims under Heck. 

B. Heck v. Humphrey

Under Heck v. Humphrey, a federal court must consider whether a judgment 

in favor of the plaintiff would imply the validly of his conviction or sentence; if it 

would, the complaint must be dismissed unless the plaintiff can demonstrate that 

the conviction or sentence has already been invalidated. 512 U.S. 477, 478 (1994).

Since Heck, both the Supreme Court and Seventh Circuit have narrowed what 

claims fall under the doctrine.

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Heck squarely bars Cichocki’s claim of malicious prosecution. Preliminarily, a 

plaintiff may only bring a malicious prosecution claim under Section 1983 when 

state law does not provide a way to pursue such a claim. Newsome v. McCabe, 256 

F.3d 747, 750-51 (7th Cir. 2001). Illinois does recognize a tort claim for malicious 

prosecution. Ray v. City of Chicago, 629 F.3d 660, 664 (7th Cir. 2011). However, 

even if Cichocki brought a state-law malicious prosecution claim, it would be barred 

by Heck. 

A judgment in Cichocki’s favor on the malicious prosecution claim for 

withholding and/or fabricating evidence would necessarily imply the invalidity of 

his conviction because the second element requires the proceeding to have 

terminated in his favor, which it did not. In McDonough v. Smith, 139 S. Ct. 2149, 

2158–59 (2019) the Supreme Court held that malicious prosecution claims, 

including those alleging the use of fabricated evidence, may only be brought after 

the underlying criminal matter terminates in a person’s favor. Until then, “the 

proper approach in our federal system generally is for a criminal defendant who 

believes that the criminal proceedings against him rest on knowingly fabricated 

evidence to defend himself at trial and, if necessary, then to attack any resulting 

conviction through collateral review proceedings.” Therefore, Heck bars Cichocki’s 

malicious prosecution claim until his conviction is reversed or otherwise 

invalidated. See Heck, 512 U.S. at 478 (holding that a federal plaintiff pursuing a 

malicious prosecution claim must first establish that the underlying criminal 

proceedings terminated in his favor); Simpson, 73 F.3d at 135 (holding, without 

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considering a stay under Younger, that a malicious prosecution claim must be 

dismissed under Heck); McDonough, 139 S. Ct. at 2156 (collecting cases).

Cichocki’s claims for false imprisonment/wrongful detention (Count II), 

coerced confession (Count III), violation of the Sixth Amendment (Count IV), 

Section 1983 conspiracy claim (Count V), state law claims of a civil conspiracy 

(Count VII), and intentional infliction of emotional distress (Count VIII) all face the 

same hurdle. See Liebich v. DelGuidice, 20-CV-2368, 22 WL 8764110 at *6 (N.D. Ill. 

Mar. 24, 2022) (finding that Heck barred a plaintiff’s wrongful pretrial detention 

claim because the claim of wrongful detention would imply the invalidity of an 

ongoing and prior criminal proceeding) (citing Sanders v. St. Joseph County, 806 F. 

App’x 481, 484 (7th Cir. 2020)); Taylor v. City of Chicago, 80 F. Supp. 3d 817, 826–

27 (N.D. Ill. 2015) (finding that Heck bars any claim of a coerced confession when 

the plaintiff alleges the confession was used in the criminal proceeding that resulted 

in a conviction); Savory v. Cannon, 947 F.3d 409, 431 (7th Cir. 2020) (holding that 

claims of a coerced confession, deprivation of a right to a fair trial and malicious 

prosecution all implicate the underlying criminal conviction and are therefore 

barred by Heck); Fulton v. Zalatoris, 07-c-5569, 2008 WL 697349 at * (N.D. Ill. Mar. 

12, 2008) (finding that a coerced confession claim must be dismissed under Heck 

when the confession was the primary vehicle for the conviction); Williams v. Taylor, 

18-CV-2933 2019 WL2357041 at *2–3 (N.D. Ill. June 4, 2019) (finding that Heck

barred a Sixth Amendment claim based on denial of access to counsel); See Williams 

v. Taylor, 18-cv-2933, 2019 WL 2357041 at *6–7 (N.D. Ill. June 4, 2019) (relying on 

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a cross-circuit precedent and finding that, although a right to counsel claim was not 

necessarily barred by Younger, it was barred by Heck because a successful claim 

implicates the validity of the underlying conviction.); Nelson v. Campbell, 541 U.S. 

637, 646–47 (2004) (holding that a Section 1983 suit for damages implying the 

invalidity of an inmate’s conviction is impermissible); Parish v. City of Elkhart, 614 

F.3d 677, 684 (7th Cir. 2010) (holding that Heck’s bar on Section 1983 claims 

applies to state-law claims for intentional infliction of emotional distress because 

the basis of the IIED claim stems from the arrest and prosecution; if judgment were 

entered on behalf of the plaintiff on the IIED claim, it would undermine his 

conviction); Moore v. City of Chicago, 19-CV-3902 at *6, (N.D. Ill. June 10, 2020) 

(finding that while there is an independent cause of action under state law for civil 

conspiracy, the claim must be brought in line with Heck and therefore dismissed 

until the criminal case results in the plaintiff’s favor). Therefore, Counts I–V, VII 

and VIII are dismissed without prejudice.4

Though the Court dismisses Counts I–V, VII and VIII without prejudice 

under Heck, Judge Greenblatt remains dismissed with prejudice due to absolute 

judicial immunity, as the Court found in its initial opinion. Cichocki I, at *7. 

Further, the Court dismisses Counts IX and X because a plaintiff cannot pursue a 

claim of respondent superior or indemnification without a successful underlying 

4 Because the Court dismisses these claims as premature and barred by Heck, it declines to evaluate 

Defendants’ remaining arguments based on qualified immunity, absolute immunity, and failure to 

state a claim. See Lee v. City of Appleton, 857 F. App’x 875 876 (7th Cir. 2021) (holding that the 

district court should not have addressed the merits of the case because the claims were premature 

under Heck and an analysis on the merits could hamper any future review of arguments if the 

conviction were to be set aside later). 

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claim. See Alexander v. City of Danville, 18-2290, 2022 WL 1321291 at *12 (C.D. Ill. 

May 3, 2022). 

C. Attorney Malpractice

The Court turns next to Cichocki’s remaining claim of attorney malpractice. 

The Court previously dismissed Cichocki’s attorney, Lynn Palac, because Cichocki 

could not pursue an attorney malpractice claim when he was not proven innocent. 

Cichocki now realleges the same allegation against Defendant Palac. Nothing in 

Cichocki’s amended complaint changes the Court’s initial ruling.

Cichocki alleges that Palac caused him to be “improperly subjected to judicial 

proceedings” for which “there was no probable case.” Dkt. 68 at ¶ 96. Further, Palac 

owed Cichocki a duty of “competent representation based on their attorney-client 

relationship” and breached that duty when she, for example, “failed to investigate, 

determine that the factual bases [sic] for the charged offenses were based on false 

statements” and instead urged him to enter a guilty plea. Id. at ¶¶ 98–99. As a 

result, Cichocki sustained emotional and financial injuries. Id. at ¶ 99. 

As this court initially found, a plaintiff in Illinois “must prove his innocence 

before he may recover for his criminal defense attorney’s malpractice.” Cichocki I, at 

*7 (citing Kramer v. Dirksen, 695 N.E.2d 1288, 1292 (Ill. App. Ct. 1998)); see also 

Paulsen v. Cochran, 826 N.E.2d 526, 530 (Ill. App. Ct. 2005) (finding a defendant 

must show his conviction had been favorably terminated before he can maintain a 

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malpractice claim against his former attorney). The amended complaint does not 

allege that Cichocki has proven his innocence.5

D. Donald Cosley and Song Gao

Attorney Donald Cosley and Song Gao6 are also named defendants. Cosley 

represented Geng in her criminal matter and prepared the order that led to the 

Cichocki’s improper incarceration. Dkt. 68 at ¶ 12. Gao is grandmother to Cichocki’s 

daughter. Id. at ¶ 14. Cichocki accuses each of them of conspiring with the state 

actors (Judge Greenblatt, ASA Carreno and ASA Poje) to frame him for kidnapping. 

Id. at 30-39 (describing Rule 402 Conference in Geng’s criminal case and Cichocki’s 

allegations that defendants used the Rule 402 conference to deny Plaintiff his 

constitutional rights as follows: (1) Gao offered bribe to Judge Greenblatt and ASAs 

to have guardianship entered in her favor; (2) after Gao’s bribe, defense attorney 

Cosley requested Rule 402 conference; (3) Cichocki was excluded from the Rule 402 

conference but prior to the conference Cichocki told both Cosley and ASA Carreno

that he was returning to Oklahoma to be with E.C.; (4) after Rule 402 conference, 

Judge Greenblatt ordered Cichocki to turn E.C. over to Gao within 72 hours; (5) 

defendants fabricated evidence against Plaintiff claiming that he attended a child 

placement hearing on September 16, 2017 and that he fled the jurisdiction—these 

false statements were used to unlawfully arrest and detain him).

5 Cosley moves to dismiss the legal malpractice claim because he did not represent Cichocki, but 

acknowledges that “is unclear if this Count is directed at” Cosley. Dkt. 80 at 4. Count VI, the legal 

malpractice count, specifically names Cichocki’s attorney, Lynn Palac, in four of its five paragraphs. 

Dkt. 68 at ¶¶ 96-99. The Court determines it is lodged against defendant Palac only. 

6 Gao filed a pro se answer to the original complaint. Dkt. 8. But because the claims against her are 

barred by the Heck doctrine, the Court addresses them here. 

Case: 1:20-cv-02165 Document #: 82 Filed: 07/25/22 Page 17 of 18 PageID #:608
18

As explained previously, the federal conspiracy and the state conspiracy 

claim (counts V and VII) are both barred by Heck v. Humphrey. See Moore, 19-CV3902 at *6 (state law claim for civil conspiracy must be dismissed until the criminal 

case results in the plaintiff’s favor). The same is true of the IIED claim. (Count 

VIII). See Parish, 614 F.3d at 684 (Heck bars claim for intentional infliction of 

emotional distress). As these are the only claims pending against Cosley and Gao, 

the matter against each of them is dismissed without prejudice. 

IV. CONCLUSION

For the reasons stated herein, both motions to dismiss are granted. [77] [80].

The Clerk is directed to enter a judgment of dismissal with prejudice as to Judge 

Joel Greenblatt and a judgment of dismissal without prejudice as to the remaining 

Defendants. Civil case terminated. 

Dated: July 25, 2022

E N T E R:

MARY M. ROWLAND

United States District Judge

Case: 1:20-cv-02165 Document #: 82 Filed: 07/25/22 Page 18 of 18 PageID #:609