Cichocki v. Foxx

JIMMY CICHOCKI, Plaintiff, v. KIMBERLY M. FOXX et al, Defendants.

Case No. 20-cv-02165

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

March 23, 2021

Judge Mary M. Rowland

MEMORANDUM OPINION AND ORDER

Plaintiff Jimmy Cichocki ("Cichocki") brings this action against Cook County State's Attorney Kimberly M. Foxx, Assistant State's Attorney Orlando Carreno ("ASA Carreno"), Assistant State's Attorney Jason Poje ("ASA Poje"), Cook County Circuit Court Judge Joel L. Greenblatt ("Judge Greenblatt"), private defense attorney Donald J. Cosley ("Cosley"), private defense attorney Lynn T. Palac ("Palac"), and Song Gao ("Gao").¹ Cichocki asserts various federal claims including violation of his right to due process (Count I), false imprisonment (Count II), being forced to make a confession (Count III), being denied his right to counsel under the Sixth Amendment (Count IV), conspiracy to deprive him of his constitutional rights pursuant to 42 U.S.C. § 1983 (Count V), as well as state law claims of Professional Malpractice (Count VI), Civil Conspiracy (Count VII), Intentional Infliction of Emotional Distress (Count VIII), Respondeat Superior (Count IX), and Indemnification (Count X).

He alleges that during a protracted domestic abuse and child custody dispute with the mother of his daughter, Defendants conspired to "deprive [him] of his parental rights and frame him for felony kidnapping and child abduction." (Dkt. 1, ¶ 1). Palac and Judge Greenblatt have each filed a motion to dismiss for failure to state a claim. (Dkts. 15 and 23, respectively). For the reasons set forth below, these motions are granted.

BACKGROUND

The following factual allegations are taken from the Complaint (Dkt. 1) and are accepted as true for the purposes of ruling on these two motions to dismiss. See W. Bend Mut. Ins. Co. v. Schumacher, 844 F.3d 670, 675 (7th Cir. 2016).

Cichocki has one daughter with his girlfriend, Stacy Geng ("Geng"). Although Cichocki was his daughter's primary caretake from an early age, Geng's mother, Gao, has repeatedly challenged his parental rights and threatened to take his daughter (her granddaughter) back to her native China. On August 22, 2017, Cichocki was granted a criminal order of protection against Geng after she was arrested and charged for biting him. During the fall of 2017, Cichocki had sole custody of his daughter.

Two days after the criminal order of protection was entered, on August 24, 2017, Cichocki filed for an emergency order of protection against his daughter's grandmother Gao alleging that she had physically abused him. Judge Greenblatt conducted a hearing on August 31, 2017, which Cichocki attended, to determine whether this emergency order of protection should be extended or vacated. JudgeGreenblatt vacated the order. Cichocki alleges that ASA Carreno, who had prosecuted the domestic violence charges that resulted in a protective order against Geng, was present at this hearing, "advocated on behalf of Gao," and "requested an Order in that case for Plaintiff to turn over his daughter to [Geng's] mother, [Gao]." (Dkt. 1, ¶¶ 20, 10). Later that same day, August 31, 2017, Cichocki filed and obtained a second emergency order of protection against Gao. This emergency order of protection was scheduled to be reviewed by the court on September 19, 2017. Instead, Gao went to court and had the order terminated in an ex parte hearing before Judge Betar (not named in this suit) on September 5, 2017.

Unable to secure a permanent protective order against Gao in Illinois and believing that she was planning to take her granddaughter to China, in early October Cichocki "left the state with [his daughter] and went to Oklahoma [. . .] with the intent to file for a protective order in Oklahoma against [Gao]. (Dkt. 1, ¶ 28). By October 13, 2017, Cichocki had returned to Illinois to attend a hearing about the domestic violence case and associated criminal order of protection against Geng.

Judge Greenblatt conducted Geng's hearing on October 13, 2017. ASA Carreno was prosecuting the charges, and attorney Donald J. Cosley ("Cosley"), also a Defendant in this case, was defending Geng. Cichocki was present as the victim and witness. During the proceedings, he was asked to leave the courtroom so that the judge and attorneys could engage in a pretrial conference pursuant to Illinois Supreme Court Rule 402.² Cichocki asked to participate in the pretrial conference butCosley and Judge Greenblatt denied the request because he was not a party to the case. Cichocki alleges that before he left the courtroom, he "heard [Gao] say to Cosley from the gallery that she would pay a million dollars" to Cosley, [ASA] Carreno, and Judge Greenblatt "if they would provide an order to give [Cichocki's daughter] to [Gao]." (Dkt. 1, ¶ 32). "Gao then said, 'make it two million for each of you,'" (Dkt. 1, ¶ 33). Cichocki goes on to allege that just before "Judge Greenblatt entered the side room, [ASA] Carreno ran up to the judge and whispered something to him, after which the judge's eyes lit up." Id.

According to Cichocki, Judge Greenblatt then issued an order against Cichocki to turn over his daughter to Geng's mother, Gao, by the following Monday, October 16, 2017, at 9:00 AM. Cichocki asserts in his Complaint that this order was void for lack of subject matter jurisdiction. Later that afternoon, Geng's domestic violence case was recalled and Judge Greenblatt "made statements as though [Cichocki] was the client of a police social worker named Eva Jasinska (who is not an attorney) and claimed that [Cichocki] would receive the child-turnover order from Ms. Jasinska." (Dkt. 1, ¶ 36).

The Complaint does not clearly describe the events that followed this October 13, 2017 hearing. Cichocki alleges that the Defendants in the instant case falsely claimed "that [Cichocki] attended a child placement hearing in Hoffman Estates, Illinois, on October 16, 2017, when in fact [Cichocki] was in Oklahoma on that date requesting an order of protection against Defendant Gao." (Dkt. 1, ¶ 38). Cichocki next says that the Defendants falsely claimed he "saw the way the case was goingand decided to leave with the child against the Judge's wishes" when in fact he had been "excused on the record and did not have [his daughter] with him." Cichocki did return to Oklahoma after the October 13th hearing "completed his petition for a protective order against [Gao] in Pottawatomie County, OK [on October 16th]". (Dkt. 1, ¶ 42). It is not clear from the record whether he brought his daughter with him to Oklahoma, but neither he nor his daughter were present at the placement hearing in Illinois on October 16th.

Cichocki alleges that the Defendants "unlawfully arrest[ed], detain[ed] and convict[ed]" him. (Dkt. 1, ¶ 39). He further alleges that ASA Poje "approved a felony warrant" and that Judge Greenblatt "later signed the arrest warrant." (Dkt. 1, ¶ 40). On November 7, 2017, Cichocki was arrested by United States Marshals in Oklahoma and jailed in the Pottawatomie County Safety Center. He was extradited to Illinois on February 5, 2018 and charged with child abduction, despite, according to the Complaint, having "sole physical care and possession at that time." (Dkt. 1, ¶ 46). In support of this assertion of custody, Cichocki claims he did not receive the October 13th court order requiring that he turn his daughter over to Gao until he was arrested.

Cichocki's indictment was later amended and he was charged with kidnapping. On April 5, 2018, Cichocki pled guilty to a reduced charge of misdemeanor attempted child abduction. He asserts that he was innocent of this charge, and that his defense attorney, Lynn Palac, "deliberately and affirmatively failed to investigate and present information which would have helped to rebut [his] guilt." (Dkt. 1, ¶ 48). He alsoclaims that Palac advised him that he would have thirty days to undo or revoke any conviction, but then refused to help him revoke that conviction.

LEGAL STANDARD

A 12(b)(6) motion to dismiss tests the sufficiency of a complaint, not the merits of the case. See 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 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 Chi., 835 F.3d 736, 738 (7th Cir. 2016) (citation and internal quotation marks omitted).

ANALYSIS

I. Judge Greenblatt's Motion to Dismiss

The Complaint does not clearly indicate which defendant is named in each Count, but it appears to allege that Judge Greenblatt deprived Cichocki of his procedural due process rights (Count I), falsely imprisoned Cichocki (Count II), conspired to deprive Cichocki of other unenumerated constitutional rights under§ 1983 (Count V), engaged in state law civil conspiracy (Count VII), and engaged in intentional infliction of emotional distress (Count VIII).

Cichocki's claims against Judge Greenblatt boil down to two allegations: (1) that in a hearing regarding Cichocki's protective order against Geng and the state's domestic violence charges against her, Greenblatt issued a "void" order requiring that Cichocki and Geng turn over their daughter to Gao, and (2) that he signed an arrest warrant for Cichocki when he refused to turn his daughter over to Gao and instead took her across state...