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Shereen Bobrowsky v. "The Yonkers Courthouse" (Its Staff

April 8, 2011

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.



The opinion of the court was delivered by: Kenneth M. Karas, District Judge:

OPINION AND ORDER

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.*fn1 To date, Plaintiff has individually served three Defendants: the Honorable Michael A. Martinelli, Chief Judge of the 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.)*fn2 Subsequently, 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.)*fn3 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.*fn4 People v. Bobrowsky, 886 N.Y.S.2d 71 (App. Term 2009). The Court of Appeals denied Plaintiff leave to appeal, People v. Bobrowsky, 918 N.E.2d 965 (N.Y. 2009), and denied reconsideration, People v. Bobrowsky, 922 N.E.2d 916 (N.Y. 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).)*fn5 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.)*fn6

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.)*fn7 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.)*fn8 When Plaintiff 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 officer, and accused of criminal contempt. (Compl. 21.)

A misdemeanor information was filed by Court Officer Lawrence Lonesome ("Lonesome") on December 4, 2009, charging Plaintiff with two counts of criminal contempt in the second degree, one count of resisting arrest, one count of obstructing governmental administration in the second degree, and one count of disorderly conduct. (Compl. Ex. T, at unnumbered sub-tab.) According to Lonesome, Plaintiff "did intentionally scream and yell in the middle of an open session" of the court, "refused to exit the courtroom" after being ordered to do so by Judge Cerrato, and was generally disorderly and disruptive of the court's proceedings. (Id.) Lonesome stated that when he "attempted to escort [Plaintiff] out of the court, [she] continued to yell and refuse to leave"; he then informed Plaintiff that she was under arrest and told her to place her hands behind her back; and, "[i]n response to this lawful order by [Lonesome], [Plaintiff] began swinging her arms and struck [Lonesome] in the neck" to prevent him from escorting her from the courtroom. (Id.)

In the afternoon on December 4, 2009, Plaintiff was arraigned on these charges by Defendant Judge Martinelli in case No. 09-7246. (Compl. Ex. K; Compl. 8.) Plaintiff alleges that at the bail hearing, Judge Martinelli "banned" her from the entire Yonkers City Courthouse without giving a reason or a hearing. (Compl. 8; OSC unnumbered page 4.) The transcript indicates that Defendant Judge Martinelli stated that he was going to release Plaintiff on her "own recognizance on the specific condition that [she] stay away from the Court except on [her] scheduled court dates." (Compl. Ex. K, at 3.) Plaintiff alleges that this alleged "ban" violates her First Amendment and due process rights, especially because she believes that both her arrest and the "ban" were in retaliation for articles that she had previously written about matters before the court. (OSC unnumbered pages 7, 9.)*fn9 Plaintiff claims that because the "ban" was made by an oral order at the hearing, it is not appealable, but in any event she did not appeal this order.

(Compl. 9.) Plaintiff further asserts that the "ban" prevents her from accessing her numerous case files. (Id. at 13.)

On April 15, 2010, Defendant Judge Martinelli issued a memorandum regarding "People v. Shereen Bobrowsky, Docket #09-7246," that he directed be circulated to all court personnel, advising that "the condition for the release of Shereen Bobrowsky on her own recognizance in the above-referenced criminal court case, namely that she stay away from the Court except on her scheduled court dates, is rescinded. Ms. Bobrowsky is to be given the same access as any other public citizen entering the building." (Anspach Decl. Ex. 6.)

4. Transfer of Plaintiff's Cases to White Plains Court

On December 22, 2009, Defendant Justice Scheinkman, "pursuant to the authority vested in him as Administrative Judge of the Ninth Judicial District," assigned Plaintiff's pending 440 motion in case No. 06-4495 to Defendant Judge Hansbury -- a judge sitting in City Court of White Plains -- as an Acting Yonkers City Court Judge, until disposition, "upon the recusals of all Yonkers City Court Judges." (Compl. Ex. M2.)*fn10 On January 27, 2010, Defendant Judge Hansbury set a return date for the 440 motion to be fully submitted for decision on February 16, 2010. (Compl. Ex. M5.) On January 7, 2010, "[u]pon the recusal and disqualification of all Yonkers City Court Judges," Defendant Justice Scheinkman also transferred the new criminal case, No. 09-7246, arising from Plaintiff's December 4, 2009 arrest, to White Plains, and ordered that all the papers from that action be delivered to White Plains City Court, again in his capacity as Administrative Judge of the Ninth Judicial District. (Compl. Ex. M4.) On January 13, 2010, Defendant Judge Hansbury sent Plaintiff a letter attaching Defendant Justice Scheinkman's order and directing Plaintiff to appear at City Court of White Plains on January 28, 2010 for the criminal case. (Id.)

On February 16, 2010, Plaintiff appeared before Defendant Judge Hansbury on the new criminal charge in No. 09-4725. (Compl. Ex. R.)*fn11 The Court does not know why the date of the proceeding changed fromJanuary 28, 2010, to February 16, 2010. The transcript indicates that at the proceeding, Plaintiff informed Defendant Judge Hansbury that she had tried to remove that case to federal court, and provided him with a copy of the motion. (Compl. Ex. R at 3.)*fn12 As Plaintiff did not have a lawyer, Defendant Judge Hansbury gave her until March 3, 2010, to find one, and instructed her to return to court on that date. (Id. at 4.) At that point, Plaintiff brought up her 440 motion, and Defendant Judge Hansbury at first stated that he did not know if that motion was in his court, and then indicated that it was still in Yonkers City Court. (Id. at 4, 6.) When Plaintiff raised the issue of her court files and "ban" from the Yonkers courthouse, Defendant Judge Hansbury again advised Plaintiff that she should obtain a lawyer to help deal with these issues. (Id. at 4-5.) A Westchester County Assistant District Attorney stated that the file may have been transferred from Yonkers to White Plains but that he was not sure, and that there was confusion over a removal order. (Id. at 6.) Plaintiff asked for more time to reply to the Westchester County District Attorney's opposition to her 440 motion, and Defendant Judge Hansbury again advised Plaintiff to get an attorney. (Id. at 7.)

Defendant Judge Hansbury denied Plaintiff's 440 motion on April 14, 2010 (after Plaintiff initiated the instant action), finding that despite Plaintiff's assertion to the contrary, there was no "'newly discovered evidence'" to warrant vacating her conviction. (Anspach Decl. Ex. 4.) Defendant Judge Hansbury further declined to modify the five-year 5/23/08 Protective Order imposed by Defendant Judge Martinelli -- despite Plaintiff's claim that the protective order was a nullity because she, and not her mother, owned the property -- because he concluded that the law did not require a protected victim to have title in the premises which she occupies, and thus Plaintiff's "contention that the Order of Protection could not have validly protected her mother without demonstration of her mother's legal title in the premises is without merit." (Id.)*fn13

Plaintiff asserts that "[e]ach time [she] enter[s] to remove a judge[,] that judge first enters a harmful decision," and that "[t]he Westchester judges refuse to do anything against Posner despite the crimes he committed," because Posner has indicated "that he has the goods on various judges so no judge will charge him." (Compl. 35.) Plaintiff does not specify to which judges she is referring in these statements, nor does she explain when or how any judge had an opportunity to charge Posner, or "do anything against" him, but refused. Plaintiff also alleges that "many judges recused themselves sua sponte as having business and/or personal relationships with Posner"; that "[p]olitical campaign contributions also created the appearance of impropriety"; and that Posner had "deceiv[ed] the court system." (OSC unnumbered page 10.) Again, the details supporting these allegations are wanting.

5. The August 2009 Incident

Plaintiff also alleges that on August 11, 2009, she appeared before Justice Nicholas Colabella for a scheduled conference in Westchester Supreme Court on a matter related to the property title issues, and requested that the court hold a conference, order depositions, and revise a previous court order striking the invalid deed filed by Posner, that purportedly erroneously omitted the required control number. (Compl. 11-12.) According to Plaintiff, Justice Colabella responded by "stat[ing] that 'he was not god and that [Plaintiff's] time in the sun was over,'" followed by the court officers grabbing Plaintiff's arms and physically dragging her out of the courtroom. (Id. at 12.) Once outside, Plaintiff claims that one of the officers said that he had been the court officer for Judge Liebowitz -- whom Plaintiff had previously had recused from a case because of a financial conflict (id. at 22) -- and that the officer's unspecified boss had instructed him to remove her and "to follow [Plaintiff] the remainder of the day that [she] stayed in the court," (id. at 12). According to Plaintiff, the officer followed her for three hours until she left, and intimidated and harassed her in the court library. (Id. at 12, 22.) Thus, Plaintiff is requesting that this Court obtain, or help her ...


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