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Bodek v. Bunis

May 23, 2007

ARIE BODEK, INDIVIDUALLY, ET AL., PLAINTIFFS,
v.
HARVEY S. BUNIS, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY AS AN ASSISTANT DISTRICT ATTORNEY FOR THE COUNTY OF MONROE OF THE STATE OF NEW YORK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: David G. Larimer United States District Judge

DECISION AND ORDER

PROCEDURAL BACKGROUND

Plaintiffs, Arie Bodek ("Bodek") and his daughter Esther Bodek ("Esther"), appearing pro se, commenced this action under 42 U.S.C. § 1983 and New York common law. Plaintiffs allege that defendants violated their constitutional rights in a number of respects in connection with an incident that occurred on November 8, 2005, and the procedure utilized as part of the Monroe County District Attorney's Office "Pre-Warrant Screening Program."

Plaintiffs have sued two groups of defendants. For purposes of this motion, the "private defendants" are Priscilla Auchincloss ("Auchincloss"), Bodek's estranged wife who is suing Bodek for divorce; Sharon Kelly Sayers ("Sayers"), an attorney who represents Auchincloss in her matrimonial action against Bodek; The Law Offices of Sharon Kelly Sayers ("the Sayers Law Office"), a professional corporation; and Kelly L. Pleszewicz ("Pleszewicz"), Sayers' office manager and daughter.

The "public defendants," sued in both their individual and official capacities, are Monroe County District Attorney Michael Green ("Green"); Monroe County Assistant District Attorney Harvey Bunis ("Bunis"), director of the Screening Program; and Monroe County Court Security Officer Joe Amorese ("Amorese"). Plaintiffs have also sued the Law Offices of Harvey Bunis ("the Bunis Law Office"), a professional corporation.

In their amended verified complaint (Dkt. #10), plaintiffs claim that the private defendants initiated the Pre-Warrant Screening Program ("Screening Program") against them after the November 8, 2005, incident in order to gain a tactical advantage in the matrimonial action between Bodek and Auchincloss. Plaintiffs further allege that the public defendants administered the Screening Program in such a way as to violate plaintiffs' First, Fourth, and Fifth Amendment rights.

The private and public defendants now move to dismiss the amended complaint and/or for summary judgment (Dkts. ## 9, 14). For the reasons set forth below, defendants' motions are granted and this action is dismissed.

FACTUAL BACKGROUND

The November 8, 2005 Incident

Unless otherwise indicated, the following facts are undisputed. On November 8, 2005, there was an altercation at the Sayers Law Office between Esther and Pleszewicz. Pleszewicz prevented Esther from entering Sayers's private office to speak with her father. At the time, Sayers and Bodek (who was representing himself) were in the midst of a settlement conference pertaining to the divorce proceedings. Although Bodek had arrived for the conference with Esther (his adult daughter from a previous marriage), Sayers did not permit Esther to sit in on or participate in the conference. Esther stayed in the reception area while Bodek and Sayers conducted the conference in Sayers's private office.

After approximately thirty minutes, Sayers's secretary interrupted the conference at Esther's request to retrieve Bodek's car keys. Esther then left the Sayers Law Office with the keys and returned twenty minutes later. As the one-hour conference was nearing its end, Esther again requested that the conference be interrupted so that she could speak with her father.

According to Pleszewicz, when Sayers's secretary told Esther that she would not interrupt the conference again unless it was an emergency, Esther allegedly became belligerent. Pleszewicz then interrupted the conference by intercom and told Sayers that Esther was demanding to speak with Bodek.

Within minutes, after Bodek did not emerge from the conference, Esther attempted to force her way into Sayers's private office. Pleszewicz claims that she blocked the hallway so that Esther could not pass by her and disrupt the conference. She asked Esther to leave and threatened to call the police. Esther allegedly pushed and shoved Pleszewicz, and yelled "My father is not a prisoner" and "Go ahead and call the police." Esther then allegedly threw the heavy set of keys at Pleszewicz, striking her and causing her pain.

Upon hearing the commotion in the hallway, Sayers and Bodek emerged from the settlement conference. Bodek picked up his keys off the floor and escorted Esther by the arm out of the Sayers Law Office. According to Sayers, Bodek told her that Esther wanted the conference interrupted so that she could tell her father that the parking meter was about to expire.

During the incident, a staff member called the Rochester City Police ("RPD"), who arrived after Bodek and Esther had left. An application for an arrest warrant for Esther was prepared by the RPD for Harassment, 2nd Degree. The warrant application was then sent to the Monroe County District Attorney's Office as part of the Screening Program. On December 9, 2005, a temporary order of protection was issued by City Court directing Esther to have no contact with Pleszewicz.

The Pre-Warrant Screening Program

Defendant Bunis has been employed for over twenty six years as a part-time Assistant District Attorney for the Screening Program. According to Bunis, the Screening Program is an attempt by the District Attorney's Office, the RPD, and Rochester City Court to reduce the number of arrest warrants and criminal complaints for minor criminal actions filed in City Court. When an arrest warrant application is prepared by the RPD for certain minor crimes, it is forwarded to the Screening Program before a warrant issues.

The District Attorney's Office sends letters to the victim and the accused notifying them of a "pre-warrant hearing" date. The letter informs the victim that if she fails to appear, the case will be dismissed. The accused is informed that she may bring an attorney to the hearing and that her failure to appear may result in the issuance of a warrant. The hearing is not open to the public. At the hearing, Bunis meets with the victim and the accused, and listens to both sides of the dispute. An attempt is then made to resolve the matter by mutual agreement between the parties.

Bunis states that he does not investigate the criminal accusations, nor does he make a determination of guilt or of probable cause. Instead, his function is to determine if the victim wishes to prosecute the case, if the facts as stated by the victim merit prosecution, and if the matter can be resolved by mutual agreement between the parties. If no agreement can be reached, Bunis then authorizes the victim to file the arrest warrant application for review by a City Court Judge, thus initiating criminal prosecution of the matter.

Here, a pre-warrant hearing took place on December 7, 2005, at which Pleszewicz appeared. Esther did not appear at that hearing, for reasons that are not entirely clear. According to plaintiffs, Bunis told Bodek sometime before the hearing that Esther's appearance was not necessary and that Bodek could appear on her behalf. However, on the date of the hearing, Bunis refused to allow Bodek to speak at the hearing because Bunis learned that Bodek was not present during the incident between Esther and Pleszewicz. (Dkt. #10, ¶¶42-44). Pleszewicz agreed to dispose of the case with an adjournment in contemplation of dismissal, but Bodek refused the offer on behalf of Esther. Bunis, therefore, authorized Pleszewicz to file the arrest warrant application.

Plaintiffs did not file affidavits in opposition to defendants' motions disputing defendants' account of the November 8, 2005 incident or the administration of the Screening Program. However, in the amended verified complaint, Esther states that on November 8, 2005, Pleszewicz "physically pushed [her] to prevent [her] from retrieving [Bodek] from a meeting with Defendant Sayers," (Dkt. #10, ¶29), and that Pleszewicz "perpetrated unwanted physical contact against [her] by repeatedly slapping at and pushing [her]." (Dkt. #10, ¶76). It is evident, then, that plaintiffs' version of the November 8, 2005, incident differs from the defendants' version.

In fact, the public defendants assert that sometime after the December 7, 2005, hearing, Esther filed a report with the RPD charging Pleszewicz with harassment. The RPD prepared an arrest warrant application for Pleszewicz and referred the matter to the Screening Program. Another pre-warrant hearing took place on January 11, 2006. By this time, Esther was being prosecuted in City Court based on the November 8 incident. Accordingly, based on Esther's Fifth Amendment right to remain silent, Bunis would not let Esther speak at the January 11 pre-warrant hearing.

The record does not indicate whether the arrest warrant application against Pleszewicz was filed, or how the criminal charges against ...


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