Bobrowsky v. “ the Yonkers Courthouse” (its Staff, Case No. 10–CV–1846 (KMK).

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: KENNETH M. KARAS, District Judge:
• Citation: 777 F.Supp.2d 692
• Parties: Shereen BOBROWSKY, Plaintiff,v.“The YONKERS COURTHOUSE” (Its Staff, Clerks, and All Those Who Caused the Recusal of the Court and All Judges) and Unknown John Does Necessary for Requested Relief, Defendants.
• Docket Number: Case No. 10–CV–1846 (KMK).
• Decision Date: 08 April 2011

777 F.Supp.2d 692

Shereen BOBROWSKY, Plaintiff,
v.
“The YONKERS COURTHOUSE” (Its Staff, Clerks, and All Those Who Caused the Recusal of the Court and All Judges) and Unknown John Does Necessary for Requested Relief, Defendants.

Case No. 10–CV–1846 (KMK).

United States District Court, S.D. New York.

April 8, 2011.

[777 F.Supp.2d 695]

Shereen Bobrowsky, Bronx, NY, pro se.Susan Anspach, Esq., New York State Office of the Attorney General, New York, NY, for Defendants.

OPINION AND ORDER KENNETH M. KARAS, District Judge:

Shereen Bobrowsky (“Plaintiff”), proceeding pro se, brings this action against “The Yonkers Courthouse,” “its staff, Clerks, and all those who caused the recusal of the Court and all Judges,” as well as “unknown John Does necessary for requested relief,” for violations of the First, Fourth, Fifth, and Fourteenth Amendments of the United States Constitution, pursuant to 42 U.S.C. § 1983, and the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., stemming from a series of proceedings before, and orders issued by, New York State courts. Specifically, Plaintiff asks the Court to: (1) vacate her Yonkers City Court conviction for criminal contempt; (2) order that hearings and depositions be held on protective orders entered against her by a New York Family Court and the Yonkers City Court, and void those orders; (3) void an order banning her from the Yonkers courthouse, except for her scheduled appearances; (4) remove her pending state criminal case and associated hearings, and all other matters originating in Yonkers, to federal court; and (5) bar the New York State Attorney General from defending the judges due to an alleged conflict of interest.¹ To date, Plaintiff has individually served three Defendants: the Honorable Michael A. Martinelli, Chief Judge of the

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Yonkers City Court (“Judge Martinelli”); the Honorable Brian Hansbury, City Court Judge, White Plains (“Judge Hansbury”), and the Honorable Alan D. Scheinkman, Justice of the Supreme Court and Administrative Judge for the 9th Judicial District (“Justice Scheinkman”), (collectively, “Defendants”). Defendants have moved to dismiss Plaintiff's complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). For the reasons stated herein, the motion to dismiss is granted.

I. Background

For purposes of deciding the instant motion to dismiss, the Court accepts as true the allegations contained in Plaintiff's Complaint, described below, and construes them in the light most favorable to Plaintiff. Many of the events and allegations set forth in the Complaint are unrelated to the Defendants served in this action; however, in light of Plaintiff's pro se status, the Court will attempt to explain the full factual scenario as described by Plaintiff in her pleadings.

A. Factual Background

The events at issue in this action date back to a longstanding family dispute between Plaintiff, her mother Lillian Bobrowsky (“Lillian”), and her brother Jacques Bobrowsky (“Jacques”), over the property located at 88 Fanshaw Avenue in Yonkers, New York (“the property”), and an alleged mortgage and title fraud that Plaintiff believes was perpetrated against her by an attorney, Herbert Posner (“Posner”), who represented Lillian and Jacques. As part of this dispute, Plaintiff has sued Posner, Lillian, and Jacques in Westchester Supreme Court, in a case assigned index number 20537/2006, that is still pending.

1. Protective Order

On June 23, 2006, the Honorable David Klein (“Judge Klein”) of the Family Court of the State of New York issued a protective order (the “6/23/06 Protective Order”) requiring Plaintiff to: (1) “[r]efrain from assault, stalking, harassment, menacing, reckless endangerment, disorderly conduct, intimidation, threats, or any criminal offense against Lillian Bobrowsky,” and (2) “stay away from the bedroom of Lillian Bobrowsky,” until June 23, 2007. (Compl. Ex. B.) Plaintiff claims that her mother never requested such an order, that there were never any threats or violence to justify such an order, and that no testimony was taken prior to entering the order. (Compl. 11, 25.) Plaintiff argues that the protective order is “unconstitutionally vague” because it failed to list what specific conduct was allowed or disallowed, and was issued by a court without subject matter jurisdiction, based on a “fraudulent deed allegation.” ( Id. at 10, 25–26.) According to Plaintiff, Westchester courts have refused to entertain a hearing on this protective order, and the order “was continually re-issued with no hearing.” ( Id. at 10.)

2. Plaintiff's Arrest and Conviction

Plaintiff alleges that on July 15, 2006, she “called 911 when her visiting brother was intoxicated,” but when the police arrived at the property, they instead arrested her for violating the order of protection. ( Id. at 9–10, 32; Compl. Ex. E.) ² Subsequently,

[777 F.Supp.2d 697]

Plaintiff was criminally charged with violating the 6/23/06 Protective Order, in a case identified as “No. 06–4495.” Plaintiff alleges that the violation only involved a “stare” or angry look that she gave her mother. (Compl. 9.) In a “statement ... written for [Lillian] by officer Renzi,” Lillian stated that Plaintiff “stood in front of my bedroom and stared angrily at me,” for an hour and a half, which “caused me to feel intimidated and fearful for my safety.” (Compl. Ex. D.) Lillian also stated that she wanted to press charges for violating the order of protection. ( Id.) Case No. 06–4495 was originally brought before Judge Charles Wood (“Judge Wood”) in Yonkers City Court. (Compl. Exs. N3–N5.) On October 16, 2006, Plaintiff's attorney, Jose Muniz (“Muniz”), filed a motion to dismiss the charges. (Compl. Ex. “Motion to Dismiss.”) On November 28, 2006, Muniz also filed a motion to have the case removed to White Plains Supreme Court, arguing that: (1) the Yonkers City Court lacked jurisdiction to subpoena evidence and witnesses outside of Westchester County, and (2) there was a history of bias against Plaintiff at several Yonkers agencies, including the courts; according to Plaintiff, the “Yonkers Courts refused” to grant the removal request. (Compl. Ex. “Change Venue”; Compl. 7, 25.)

On August 9, 2007, Plaintiff filed a pro se order to show cause in Yonkers City Court to dismiss the charge and to dismiss other purportedly outstanding bench warrants stemming from alleged city code violations. (Compl. Ex. O.) According to Plaintiff, Judge Thomas Daly (“Judge Daly”) granted a partial decision on this order to show cause that dismissed the erroneous bench warrants on speedy trial grounds but did not address her other arguments; subsequently, Plaintiff claims that a “motion for partial reargument was re-entered and was improperly put before a different judge,” Judge Robert Cerrato (“Judge Cerrato”). (Compl. 7; Pl.'s Order to Show Cause for Prelim. Inj. and TRO (“OSC”) unnumbered pages 4–5.)

On October 17, 2007, Plaintiff was convicted of criminal contempt in the second degree for violating the 6/23/06 Protective Order in a trial presided over by Judge Michelle Graffeo; Defendant Judge Martinelli sentenced Plaintiff on May 23, 2008. (Decl. of Susan Anspach (“Aspach Decl.”) Ex. 1, at SM–1.) As part of Plaintiff's sentence, Defendant Judge Martinelli issued an order of protection (the “5/23/08 Protective Order”) directing Plaintiff to stay away from Lillian and Lillian's home and to refrain from any communication or contact with Lillian. (Compl. Ex. I.) ³ The order is to remain in effect until May 23, 2013, although it can be modified upon submission of a superseding Family Court order. ( Id.) Plaintiff's conviction was affirmed on May 4, 2009, by the Appellate Term in an opinion by Justice Kenneth Rudolph, Justice Melvyn Tanenbaum, and Defendant Justice Scheinkman.⁴ People v. Bobrowsky, 23 Misc.3d 137(A), 886 N.Y.S.2d 71 (App.Term 2009). The Court

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of Appeals denied Plaintiff leave to appeal, People v. Bobrowsky, 13 N.Y.3d 834, 890 N.Y.S.2d 450, 918 N.E.2d 965 (2009), and denied reconsideration, People v. Bobrowsky, 13 N.Y.3d 937, 895 N.Y.S.2d 327, 922 N.E.2d 916 (2010).

Plaintiff appears to allege that the 5/23/08 Protective Order is unconstitutional because it bans her from the property, which Plaintiff claimed to, and did in fact own. (Compl. Ex. J, at 1; see also Bobrowsky v. City of Yonkers, No. 07–CV–8817, slip op. at 5 (Dkt. No. 17) (S.D.N.Y. May 16, 2008) (noting that in January 2008, a New York State Supreme Court justice decided that Plaintiff is the fee simple owner of the property).) ⁵ Plaintiff alleges that she was removed from her home in this manner without a hearing, which she was told could not be held because of supposed title and city code issues. (Compl. 14–15.) ⁶

3. Plaintiff's December 2009 Arrest

On November 23, 2009, Plaintiff filed a motion pursuant to New York Criminal Procedure Law § 440.10 (the “440 motion”) to vacate the 5/23/08 Protective Order and her conviction, and a return date was set for December 4, 2009. ( Id. at 21; Compl. Ex. J.) ⁷ It appears that Plaintiff sued and served the Westchester County District Attorney and Defendant Judge Martinelli with her 440 motion. (Compl. 21.) On December 1, 2009, a Westchester County Assistant District Attorney requested an adjournment until January 8, 2010, which was granted. (Compl. Ex. M1.) Plaintiff next alleges that when she appeared at the scheduled conference on December 4, 2009, Judge Cerrato adjourned her case for one month “without reason or any input from [Plaintiff] as a pro se defendant,” and declined to let her put a statement on the record. (Compl. 7; OSC unnumbered page 4.) ⁸ When Plaintiff

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requested a “second call,” Plaintiff claims that she “was immediately surrounded by 4 court officers with no words spoken as if it were planned,” “dragged out to the back room of the court and arrested,” called “ ‘the mouth, the troublemaker, the complainer’ ” by a court...