Cichocki v. Foxx

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JIMMY CICHOCKI,

Plaintiff,

Case No. 20-cv-02165

v.

Judge Mary M. Rowland

KIMBERLY M. FOXX et al,

Defendants.

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).

1 Although this case was filed on April 6, 2020, according to the docket only Greenblatt, Palac and

Gao have been served with the Complaint.

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. Judge

Greenblatt 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 but

2 Rule 402 says that “[u]pon request by the defendant and with the agreement of the prosecutor, the

trial judge may participate in plea discussions.” I.L.R.S.Ct. Rule 402.

Cosley 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 going

and 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 also

claims 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 lines to Oklahoma. The Complaint suggests (but does not

outright assert) that Judge Greenblatt took those actions because Gao offered him,

in open court and in front of numerous witnesses, first one million dollars and then

two million dollars.

Judge Greenblatt argues for the dismissal of these claims based on absolute

judicial immunity, the Heck doctrine, and sovereign immunity.

A. Absolute Judicial Immunity

It is well-established that “judges cannot be sued for their judicial acts, even

when those acts are “in excess of their jurisdiction, and are alleged to have been done

maliciously or corruptly.” Bradley v. Fisher, 80 U.S. 335, 351 (1871). No matter how

“erroneous the act may have been” or how “injurious [. . .] it may have proved to the

plaintiff,” it cannot support a suit against a judge. Bradley, 80 U.S. at 347; see also

Stump v. Sparkman, 435 U.S. 349, 357–58 (1978) (judge is not deprived of immunity

“because the action he took was in error, was done maliciously, or was in excess of his

authority”). This is true even when “bad faith is alleged.” Cooney v. Rossiter, No. 07

C 2747, 2008 WL 3889945, at *5 (N.D. Ill. Aug. 20, 2008), aff'd, 583 F.3d 967 (7th Cir.

2009); see also Dennis v. Sparks, 449 U.S. 24, 27-28 (1980) (judge immune from

damages in a conspiracy case alleging bribery); Nesses v. Shepard, 68 F.3d 1003, 1006

(7th Cir. 1995) (recognizing judicial defendants were entitled to have suit dismissed

on grounds of immunity in case alleging “massive, tentacular conspiracy among the

lawyers and the judges to engineer” plaintiff’s defeat). A judge “will be entitled to

absolute judicial immunity if [the judge’s] actions meet a two-part test: first, the acts

must be within the judge’s jurisdiction; second, these acts must be performed in the

judge's judicial capacity.” John v. Barron, 897 F.2d 1387, 1391 (7th Cir.1990).

Cichocki responds to this well-established doctrine by asserting that that

Judge Greenblatt is not entitled to absolute judicial immunity because he did not

have subject matter jurisdiction. This argument is unavailing.3 The Illinois

Constitution grants Circuit Courts “original jurisdiction of all justiciable matters”

with limited exceptions that are not applicable in this case. Ill. Const. Art. VI, § 9.

Illinois courts have held that “under the 1970 Illinois Constitution, our court system

is now a unified one with original jurisdiction of justiciable matters [and] [t]he

allocation of judicial responsibilities to various divisions of a circuit court does not

impose barriers to jurisdiction but rather reflects a concern for administrative

convenience.” In re Marriage of Devick, 315 Ill. App. 3d 908, 913, 735 N.E.2d 153, 157

3 Cichocki also argues, without citing any relevant precedent, that Judge Greenblatt should not be

entitled to judicial immunity because “where a judicial officer acts in a manner that precludes resort

to appellate or other judicial remedies that otherwise would be available, the underlying assumption

of the Bradley doctrine is inoperative.” (Dkt. 26, 3). Because he was not a party to the case in which

the turnover order was entered, Cichocki was unable to appeal it. This is not a recognized exception to

the doctrine of absolute judicial immunity.

(2000); see also In re Marriage of Isaacs, 260 Ill. App. 3d 423, 428 (1994); Davit v.

Davit, 366 F. Supp. 2d 641, 659 (N.D. Ill. 2004), aff’d, 173 Fed. App’x 515 (7th Cir.

2006). This means that a judge tasked with presiding over a domestic violence case

like Geng’s does not lack subject matter jurisdiction over child custody decisions.

Judge Greenblatt did not lack subject matter jurisdiction, and he is entitled to

absolute judicial immunity.

B. Sovereign Immunity

States and state agencies are immune from suit under the Eleventh

Amendment “unless the state consents or Congress abrogates the state’s immunity.”

Thomas v. Sheahan, 370 F. Supp. 2d 704, 708 (N.D. Ill. 2005) (citing Scott v. O’Grady,

975 F.2d 366, 369 (7th Cir. 1992)). “[u]nder the Erie doctrine, state rules of immunity

govern actions in federal court alleging violations of state law.” Benning v. Bd. of

Regents of Regency Universities, 928 F.2d 775, 777–78 (7th Cir. 1991) (citing Erie R.R.

v. Tompkins, 304 U.S. 64 (1938)); see also Richman v. Sheahan, 270 F.3d 430, 441–

43 (7th Cir. 2001) (“[S]tate immunity rules apply to [plaintiff’s] state law claims in

federal court.”). Judge Greenblatt argues that state law claims against him are

barred by Illinois immunity laws, and Cichocki fails to respond to these arguments.

The Court assumes (but, because absolute judicial immunity also applies, need not

decide) that Counts VII and VIII should also be dismissed because they are barred by

sovereign immunity.

The Complaint against Judge Greenblatt is dismissed with prejudice.

II. Lynn Palac’s Motion to Dismiss

According to the Complaint and to Cichocki’s response, Counts I, III, IV, V, VI,

VII, and VIII of the Complaint are lodged against Palac. Each of these Counts is

discussed in turn, below.

A. Federal Claims

Palac asks the Court to dismiss four of Cichocki’s § 1983 claims: conspiracy to

deprive Cichocki of his Fourteenth Amendment due process rights (Count I),4 forcing

Cichocki to plead guilty (Count III), conspiracy to deprive Cichocki of his right to

counsel under the Sixth Amendment (Count IV), and conspiracy to deprive Cichocki

of other constitutional rights not enumerated (Count V).

To be liable under § 1983, a defendant must have acted “under color of state

law” to deprive the plaintiff of a federally guaranteed right. Wilson v. Price, 624 F.3d

389, 392 (7th Cir. 2010). Actions taken under color of law are those that involve “a

misuse of power, possessed by virtue of state law and made possible only because the

wrongdoer is clothed with the authority of state law.” Honaker v. Smith, 256 F.3d

477, 484–85 (7th Cir. 2001). Private defense attorneys, and even court-appointed

defense attorneys paid by the state (such as public defenders) are not state actors for

purposes of § 1983. See Polk County v. Dodson, 454 U.S. 312, 321 (1981) (public

defender does not act “under color of state law within the meaning of § 1983”);

McDonald v. White, 465 F. App’x 544, 548 (7th Cir. 2012) (“court-appointed public

4 The Court assumes Cichocki is referring to procedural, rather than substantive, due process in

Count I.

defender is not a state actor, and thus cannot be sued under 42 U.S.C. § 1983”).

Therefore, Count III is dismissed against Palac with prejudice.

A private citizen may be liable under § 1983 under extremely limited

circumstances, such as when “the citizen [. . .] conspires with a public employee to

deprive a person of his constitutional rights.” Wilson v. Price, 624 F.3d 389, 394 (7th

Cir. 2010) (citing Proffitt v. Ridgway, 279 F.3d 503, 507 (7th Cir. 2002)). The three

§ 1983 conspiracy Counts, I, IV, and V, might have qualified for this narrow exception

had they been supported by sufficient factual allegations. However, no allegations in

the Complaint suggest that Palac was engaged in a conspiracy with any state actors.

Cichocki does not describe any conversations or interactions between Palac and the

other Defendants. He makes only four specific allegations about her conduct, that

she: “deliberately and affirmatively failed to investigate and present information

which would have helped to rebut Plaintiff’s guilt of the charged offenses,” (Dkt. 1, ¶

48), “urged and advised Plaintiff that he would have 30 days to undo or revoke any

conviction,” (Dkt. 1, ¶ 50), “declined to help him” vacate his conviction, (Dkt. 1, ¶ 53),

and “was a former prosecutor with the Cook County State’s Attorney’s office.” (Dkt.

1, ¶ 13). These allegations do not suggest a conspiracy, much less plausibly allege

one. Therefore, all claims against Palac brought pursuant to § 1983 are dismissed.

She was not acting under color of law or engaged in a conspiracy with any state actors

at any time during her representation of Cichocki.

B. State law claims

1. Malpractice

Count VI alleges professional malpractice. It states that Palac breached her

duty to Cichocki by “caus[ing] [him] to be improperly subjected to judicial proceedings

for which there was no probable cause, [. . .] failing to investigate, determine that the

factual bases for the charged offenses were based on false statements, and present

exculpatory evidence showing that Plaintiff was not guilty, [. . .] urg[ing] and

advis[ing] [him] to enter a guilty plea.” (Dkt. 1, ¶¶ 96–100).

Palac argues Cichocki has not yet proven his innocence, and therefore cannot

bring a malpractice suit. See Kramer v. Dirksen, 296 Ill.App.3d 819, 822 (1998)

(“under Illinois law a plaintiff must prove his innocence before he may recover for his

criminal defense attorney's malpractice”); see also Winniczek v. Nagelberg, 394 F.3d

505, 507 (7th Cir. 2005) (collecting Illinois cases).

Cichocki first argues that he has “filed a Petition for Post-Conviction Hearing

[. . .] to overturn his guilty plea based on his actual innocence” on March 12, 2020.

(Dkt. 21, 3). This is not sufficient. Cichocki has not informed the Court of a favorable

judgment in the intervening months. An attempt to prove actual innocence is not a

showing of actual innocence. Assuming that petition is still pending, Cichocki “has

not yet exhausted his postconviction remedies. Should he succeed in getting his

conviction overturned, he can bring a new malpractice suit.” Levine v. Kling,123 F.3d

580, 582–83 (7th Cir. 1997) (citation omitted).

Cichocki next argues that his circumstances are distinguishable from Kramer

insofar as he “was not tried [he pled guilty].” (Dkt. 21, 4). This is also unpersuasive.

Illinois courts regularly apply the actual innocence rule to malpractice cases in which

the criminal defendant pled guilty. See, e.g., Herrera-Corral v. Hyman, 408 Ill. App.

3d 672, 675 (2011) (malpractice case dismissed because plaintiff “could not plead and

prove that he was actually innocent of the drug conspiracy charge to which he pleaded

guilty”); Paulsen v. Cochran, 356 Ill. App. 3d 354, 361 (2005) (criminal defendant who

pleads guilty “must prove actual innocence in order to sue his attorney for malpractice

if the attorney agreed to a penalty that, in the defendant's opinion, was excessive.”).

Finally, Cichocki argues that because Palac’s actions were “intentional,” they

fall under an exception to the actual innocence rule described in Morris v. Margulis,

307 Ill. App.3d 1024, 1039 (5th Dist. 1999) (rev’ed on other grounds).5 There the court

concluded that the “actual innocence rule will not be applied to situations where an

attorney willfully or intentionally breaches the fiduciary duties he owes his criminal

defense client.” Id. at 1039. This case is easily distinguishable, however, because the

Morris court was “not confronted with a traditional malpractice claim,” but rather a

breach of fiduciary duty. Morris, 307 Ill. App. 3d 1024, 1039. In the criminal case that

gave rise to the allegations in Morris, Morris and one of his personal attorneys were

co-defendants. Morris pointed the finger at his personal attorney, asserting “advice

of counsel” as a defense to liability. The law firm that employed that attorney (and

had formerly represented the client in personal matters) cooperated by preparing

5 Although Morris was reversed, other Illinois decisions have acknowledged that the exception it

articulated survives. See, e.g., Herrera-Corral v. Hyman, 408 Ill. App. 3d 672, 676 (2011).

cross-examination questions for the prosecutors. This conduct gave rise to the breach

of fiduciary duty, not malpractice.

The present Complaint contains no allegations suggesting that Palac worked

with the prosecution to harm Cichocki for personal gain. This was a routine criminal

matter and Palac was Cichocki’s defense attorney. According to the Complaint, her

alleged conduct, which amounted to “fail[ing] to investigate and present information

which would have helped to rebut [Cichocki’s] guilt of the charged offenses,” does not

approach the level of misconduct exhibited in Morris. Because Cichocki has failed to

establish his actual innocence to the underlying charge Count VI is dismissed.

2. Civil Conspiracy

Count VII alleges civil conspiracy. Under Illinois law, civil conspiracy requires

(1) an agreement between two or more persons for the purpose of accomplishing either

an unlawful purpose or a lawful purpose by unlawful means; and (2) at least one

tortious act by one of the co-conspirators in furtherance of the agreement that caused

an injury to the plaintiff. See McClure v. Owens Corning Fiberglas Corp., 188 Ill.2d

102, (1999). Count VII fails for the same reason Cichocki’s § 1983 conspiracy counts

failed. The Complaint contains no factual allegations describing Palac’s involvement

in any conspiracy.6 More specifically, it does not describe an agreement. The only

6 Cichocki directs the Court’s attention to his affidavits, submitted alongside his brief. (Dkt. 21, Exs.

A and B). These are equally unavailing. They describe how Palac (1) spoke to a state’s attorney in her

capacity as Cichocki’s attorney, and “did not want to discuss” what they had spoken about, (2) failed

to relay Cichocki’s complaints about his ankle monitor to the judge, (3) negotiated a deal for Cichocki

to avoid a felony, plead guilty to a misdemeanor, and see his daughter, (4) informed Cichocki that if

he continued to assert his innocence during the plea colloquia the court would not accept his guilty

plea, and (5) refused to assist Cichocki in vacating his plea because he had stopped paying her. (Dkt.

21, Ex. A). None of these allegations suggest a conspiracy.

allegation Cichocki points to in his response brief is that “in furtherance of the

conspiracy each of the coconspirators committed overt acts and was an otherwise

willful participant in joint activity.” (Dkt. 21, 9 citing Dkt. 1, ¶¶ 91, 103). This

allegation is a conclusory recitation of the elements of conspiracy, and the Court is

not obliged to credit it. See Bell v. City of Chi., 835 F.3d 736, 738 (7th Cir. 2016).

Count VII is dismissed.

3. Intentional Infliction of Emotional Distress

Count VIII of the Complaint, intentional infliction of emotional distress, is also

directed towards Palac. It describes “extreme and outrageous” conduct by “the

Defendants” in general terms, saying that “Defendants intended to cause, or were in

reckless disregard of the probability that their conduct would cause, severe emotional

distress” to Cichocki. (Dkt. 1, ¶¶ 106–10).

Illinois law bars recovery for emotional distress if there is “no accompanying

physical impact.” Maere v. Churchill, 452 N.E.2d 694, 698 (Ill. 1983) (attorneys sued

for breach of contract and negligence in rendering legal services could not be sued for

emotional distress and mental anguish). Cichocki contends that he qualifies for an

exception to the rule articulated in Maere, because Palac “willfully, wantonly,

recklessly, or intentionally caused the mental anguish.” Id. at 697. Cichocki also

points to Morris, which held that damages for mental suffering were recoverable

“when an attorney has reason to know that a breach of fiduciary duty is likely to

cause emotional distress.” Morris v. Margulis, 307 Ill. App.3d 1024, 1038 (5th Dist.

1999) (rev’ed on other grounds).

As discussed above, Morris is distinguishable. Assuming plaintiffs can recover

in circumstances where a lawyer intentionally and knowingly caused emotional

distress to their client, Cichocki’s Complaint presents no facts supporting the

argument that Palac acted in this manner. Therefore, Count VIII is dismissed with

prejudice. Palac is dismissed from this action.

CONCLUSION

The motions to dismiss filed by Lynn Palac and Judge Joel Greenblatt are

granted. (Dkts. 15 and 23). Judge Greenblatt is dismissed with prejudice. The federal

claims lodged against Palac are dismissed because she is not a state actor and there

are no allegations establishing that she conspired with any state actors. Further, the

state law claim of malpractice requires Plaintiff to plead his actual innocence. He

has failed to do so. As with the federal conspiracy claims, Plaintiff failed to plead any

conduct by Palac indicating a conspiracy. Finally, Plaintiff fails to plead intentional

infliction of emotional distress since he pleads no physical injury. Palac is dismissed.

ENTER:

Dated: March 23, 2021 [Vi but L/

“MARYM.ROWLAND

United States District Judge

16