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


April 8, 2011


The opinion of the court was delivered by: 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.*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 obtain, all the video surveillance from the Westchester Supreme Court on that date. (Id. at 12.) However, this incident seems unrelated to the other claims presented here, and has nothing to do with the moving Defendant judges. If Plaintiff wishes to bring an action against other individuals, that is a decision for her to make.

B. Procedural Background

Plaintiff initially filed her Complaint on March 9, 2010, naming "'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" as Defendants. (Dkt. No. 1.) The case was originally assigned to the Honorable John G. Koeltl, and was reassigned to this Court on March 11, 2010. (Dkt. No. 2.) On March 16, 2010, the Court received Plaintiff's ex parte motion for a preliminary injunction and temporary restraining order, which also had been dated March 9, 2010, and held an ex parte hearing with Plaintiff. The Court issued an order on March 16, 2010 dismissing Plaintiff's motion without prejudice and instructing her that she could re-file the motion if she served the individuals she wished to enjoin. (Dkt. No. 3.)

On March 29, 2010, Plaintiff filed affidavits of service for Defendants Judge Martinelli, Justice Scheinkman, and Judge Hansbury. (Dkt. No. 5.)*fn14 On April 15, 2010, the Court denied Plaintiff's application for a temporary restraining order and preliminary injunctive relief without prejudice. (Dkt. No. 10.) On May 18, 2010, Defendants filed the instant motion to dismiss. (Dkt. No. 21.) On June 28, 2010, counsel for Defendants informed the Court that Plaintiff had not responded to Defendants' motion to dismiss; accordingly, the Court directed Plaintiff to respond to the motion to dismiss by July 9, 2010, or the Court would decide the motion on its merits, without Plaintiff's input. (Dkt. No. 31.) As Plaintiff has not submitted opposition papers or responded to the Court's directive, the Court has decided the pending motion based on Defendants' motion papers and Plaintiff's Complaint and attached exhibits.*fn15

II. Discussion

The instant motion seeks dismissal for lack of jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Additionally, Defendants argue that dismissal is proper on Younger abstention grounds, as well as pursuant to Federal Rule of Civil Procedure 12(b)(6) because (1) the Defendants are entitled to absolute judicial immunity, and (2) Plaintiff has not alleged facts sufficient to state a claim upon which relief can be granted.

A. Standard of Review

When a defendant moves to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction, and also moves to dismiss on other grounds such as Rule 12(b)(6) for failure to state a claim upon which relief can be granted, the Court must consider the Rule 12(b)(1) motion first. See Rhulen Agency, Inc. v. Ala. Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990); Adamu v. Pfizer, Inc., 399 F. Supp. 2d 495, 500 (S.D.N.Y. 2005). That said, under both Rule 12(b)(1) and Rule 12(b)(6), "the court must accept all factual allegations in the complaint as true and draw inferences from those allegations in the light most favorable to the plaintiff." Jaghory v. N.Y. State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997). When considering a motion to dismiss, courts are generally limited to examining the sufficiency of the pleadings, but where a party challenges the court's subject matter jurisdiction, "the court may resolve disputed jurisdictional fact issues by reference to evidence outside the pleadings." Flores v. S. Peru Copper Corp., 414 F.3d 233, 255 n.30 (2d Cir. 2003) (internal quotation marks omitted). The party asserting jurisdiction, in this case Plaintiff, has the burden of showing by a preponderance of the evidence that the Court has jurisdiction. See APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003). Furthermore, when considering a motion to dismiss a pro se complaint, the court must interpret the complaint liberally to raise the strongest claims that the allegations suggest. See Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000); see also Hughes v. Rowe, 449 U.S. 5, 9 (1980) (per curiam) (noting that courts should hold pro se pleadings "to less stringent standards than formal pleadings drafted by lawyers" (internal quotation marks omitted)). However, mere "conclusions of law or unwarranted deductions" need not be accepted. First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 771 (2d Cir. 1994) (quoting 2A Moore & Lucas, Moore's Federal Practice ¶ 12.08, at 2266-69 (2d ed. 1984)).

The Supreme Court has held that "[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration, citations, and internal quotation marks omitted). Instead, the Supreme Court has emphasized that "[f]actual allegations must be enough to raise a right to relief above the speculative level." Id. If a plaintiff "ha[s] not nudged [his] claims across the line from conceivable to plausible, [his] complaint must be dismissed." Id. at 570; see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009)("Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -- but it has not 'shown' -- 'that the pleader is entitled to relief.'" (alteration and citation omitted) (quoting Fed. R. Civ. P. 8(a)(2))).

Generally, "[i]n adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken." Leonard F. v. Isr. Disc. Bank of N.Y.,199 F.3d 99, 107 (2d Cir. 1999) (internal quotation marks omitted); see also Staehr v. Hartford Fin. Servs. Grp., Inc., 547 F.3d 406, 424-25 (2d Cir. 2008) (holding that district court properly took judicial notice of and considered media reports, state court complaints, and regulatory filings on a motion to dismiss); Ackerman v. Local Union 363, 423 F. Supp. 2d 125, 127 (S.D.N.Y. 2006) ("The court may also consider matters of which judicial notice may be taken, even if the corresponding documents are not attached to, or incorporated by reference in the complaint."). In the motion to dismiss context, however, the court should generally take judicial notice "to determine what statements [the documents] contain[] . . . not for the truth of the matters asserted." Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991).

Here, Plaintiff has attached numerous exhibits to her Complaint, and the Court has considered them in deciding the instant motion. In addition, the Court has taken judicial notice of, and considered, certain documents filed in state court that Defendants have submitted as exhibits with their motion to dismiss, as cited above.

B. Protective Orders and State Conviction

As noted, a Westchester Family Court judge issued the 6/23/06 Protective Order requiring Plaintiff to stay away from Lillian and Lillian's bedroom. (Compl. Ex. B.) On October 17, 2007, Plaintiff was convicted of violating this protective order, and on May 4, 2009, her conviction was affirmed on appeal. (Anspach Decl. Ex. 1.) As part of Plaintiff's sentence, on May 23, 2008, Defendant Judge Martinelli ordered Plaintiff to stay away from her mother and her mother's residence for five years (the 5/23/08 Protective Order). (Compl. Ex. I.) Construing Plaintiff's pleadings liberally, as the Court is required to do, Plaintiff is asking this Court to void the 5/23/08 Protective Order because it bars Plaintiff from the house which she has been found to legally own. (Compl. 18; Compl. Ex. J, at 1.) Although not entirely clear, it also appears that Plaintiff is asking this Court to vacate her state conviction for criminal contempt, on the grounds that (1) the conviction was for violating the original protective order, which was unconstitutionally vague, and (2) it was based on Posner's fraud, as discovered by new evidence after her trial. (Compl. 25-28.) Defendants argue that the Court lacks subject matter jurisdiction to hear these claims under the Rooker-Feldman doctrine. (Mem. of Law in Opp'n to the Mot. for a Prelim. Inj. and in Supp. of State Defs.' Mot. to Dismiss the Compl. ("Defs.' Mem.") 4-5.)

"Under the Rooker-Feldman doctrine, federal district courts lack jurisdiction over suits that are, in substance, appeals from state-court judgments." Phillips ex rel. Green v. City of New York, 453 F. Supp. 2d 690, 712 (S.D.N.Y. 2006) (internal quotation marks omitted). See generally D.C. Court of Appeals v. Feldman, 460 U.S. 462, 482-86 (1983); Rooker v. Fid. Trust Co., 263 U.S. 413, 415-16 (1923). This is because Congress has, pursuant to 28 U.S.C. § 1257, "vest[ed] authority to review a state court's judgment solely" in the United States Supreme Court.*fn16 Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 292 (2005); see also Spickerman v. Carr, No. 04-CV-6226, 2006 WL 140714, at *6 (W.D.N.Y. Jan. 17, 2006) ("Essentially, the Rooker-Feldman doctrine bars collateral attack on a state court judgment which attempts to cloak the attack as a § 1983 action in federal court." (internal quotation marks omitted)).

In Exxon Mobil, the Supreme Court emphasized that the doctrine is "narrow" and only applies to federal law suits brought by "state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments." Exxon Mobil, 544 U.S. at 284; see also Green v. Mattingly, 585 F.3d 97, 101 (2d Cir. 2009) (noting that Exxon Mobil narrowed the Second Circuit's previously "expansive" interpretation of the Rooker-Feldman doctrine).

After Exxon Mobil, the Second Circuit reexamined Rooker-Feldman and laid out four requirements that must be met before the Rooker-Feldman doctrine applies: 'First, the federal-court plaintiff must have lost in state court. Second, the plaintiff must complain of injuries caused by a state-court judgment. Third, the plaintiff must invite district court review and rejection of that judgment. Fourth, the state-court judgment must have been rendered before the district court proceedings commenced-i.e., Rooker-Feldman has no application to federal-court suits proceeding in parallel with ongoing state-court litigation.'

Green, 585 F.3d at 101 (alterations and internal quotation marks omitted) (quoting Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d 77, 85 (2d Cir. 2005)); see also Phillips, 453 F. Supp. 2d at 713 (noting that prior to Exxon Mobil, the Second Circuit "had incorrectly interpreted Rooker-Feldman to encompass and even supersede ordinary preclusion principles"). The first and fourth requirements are "procedural" and the second and third requirements are "substantive." Hoblock, 422 F.3d at 85. If a claim meets all four requirements, the Court will dismiss it pursuant to Rooker-Feldman.

Here, the Court concludes that it lacks subject matter jurisdiction to hear Plaintiff's request to void the 5/23/08 Protective Order and her conviction entered by the New York state courts because the four Rooker-Feldman factors are satisfied. The first requirement -- that the federal plaintiff lost in state court -- is plainly met under the facts of Plaintiff's case.*fn17 Plaintiff lost in state court when she was convicted on October 17, 2007. Plaintiff also lost when Defendant Judge Martinelli issued the 5/23/08 Protective Order requiring Plaintiff to stay away from her mother and the property. Indeed, Plaintiff's state court 440 motion seeking to overturn her conviction and the 5/23/08 Protective Order was a collateral attack on a final decision.*fn18

Thus, the conviction and protective order are both final state court judgments for purposes of the Rooker-Feldman doctrine. See Phillips, 453 F. Supp. 2d at 713 (finding that Family Court child removal order had become final for purposes of the Rooker-Feldman doctrine despite ongoing parental rights termination proceedings); cf. Green, 585 F.3d at 103 (noting that Rooker-Feldman would bar claim seeking review of final order permanently removing a plaintiff's child).*fn19 The fourth requirement is also satisfied, as there is no question that Plaintiff was convicted on October 17, 2007, and the protective order was entered on May 23, 2008, both prior to Plaintiff commencing this suit on March 9, 2010.

The second Rooker-Feldman requirement, that the plaintiff complains of injuries caused by a state court judgment, is "the core requirement" of Rooker-Feldman. Hoblock, 422 F.3d at 87. But, "a federal plaintiff cannot escape the Rooker-Feldman bar simply by relying on a legal theory not raised in state court"; in other words, the simple assertion of a constitutional claim does not create an independent injury if the plaintiff's injury is caused by the state court judgment. Id. (noting that if a state court terminated a plaintiff's parental rights, the plaintiff could not avoid Rooker-Feldman by asserting in federal court that the decision violated his due process rights).

Here, Plaintiff's alleged injury clearly arises out of her state court conviction and the issuance of the state court's 5/23/08 Protective Order, as Plaintiff claims that her constitutional rights were violated by her conviction and the order, which keeps her from accessing her property. See id. (noting that if a plaintiff alleged in federal court that a state court order terminating his parental rights was unconstitutional, "he is complaining of an injury caused by the state judgment"); Sindone v. Kelly, 439 F. Supp. 2d 268, 272 (S.D.N.Y. 2006) (noting that the "causal requirement may be satisfied . . . where, as in Feldman, the state court itself is the decision-maker whose action produces the injury the plaintiff challenges in the federal suit").

The third requirement is also met here, as Plaintiff is clearly inviting this Court to review and reject the state court's judgment, as she is asking the Court to vacate her conviction for violating the 6/23/06 Protective Order, which she claims was unconstitutionally vague and invalidated based on "new evidence" discovered after her trial, specifically that Posner committed fraud and that Plaintiff was declared the legal owner of the property. (Compl. 28.) She also seeks vacatur of her sentence imposed by the state court, the 5/23/08 Protective Order, which she claims is "a nullity." (Id. at 18.) This the Court simply cannot do. See Rotering v. Amodeo, No. 07-4357-cv, 2009 WL 579138, at *2 (2d Cir. Mar. 6, 2009) (summary order) (noting that a plaintiff's claim is barred, assuming the other requirements of Rooker-Feldman are met, when "the district court would need to review and reject the state court's denial of" the plaintiff's relocation petition); Green, 585 F.3d at 103 (noting that a plaintiff cannot seek, pursuant to § 1983, review and rejection of a Family Court ruling that could have been appealed to the higher New York state courts).*fn20 If Plaintiff wanted to overturn the 5/23/08 Protective Order, she could have appealed it, as she appealed her judgment of conviction. See People v. Nieves, 811 N.E.2d 13, 16-17 (N.Y. 2004) (holding that "permanent orders of protection entered upon conviction under CPL 530.13(4) are among the orders and rulings that a defendant may challenge in an appeal from the judgment of conviction" (alteration and internal quotation marks omitted)); see also People v. Kunieczny, 813 N.E.2d 626, 628 (N.Y. 2004) ("[A] permanent order of protection issued at the conclusion of a criminal action is appealable as part of the judgment of conviction.").*fn21 Indeed, Plaintiff did specifically challenge the five-year 5/23/08 Protective Order in her 440 motion. (Compl. Ex. J.) And, as noted earlier, Plaintiff asserts that various forms of prejudice and improper conduct occurring during and after her trial warrant reversal of her conviction. (Compl. 28-31.) If Plaintiff wished to raise these issues and challenge her state court conviction in this Court, the proper procedural vehicle to do so was through a habeas petition, which the Court has not construed the present action to be for a variety of reasons. See Book v. Tobin, No. 04-CV-442, 2005 WL 1981803, at *3 (D. Conn. Aug. 16, 2005) ("What plaintiff seeks is collateral review of his criminal conviction. While his claims could have been raised on direct appeal, or, during the period when he remained in custody, in a state or federal habeas petition, this § 1983 suit is an improper procedural vehicle.").

Thus, all of the requirements of the Rooker-Feldman doctrine are met with respect to Plaintiff's request for this court to void or vacate her state court conviction and the protective order entered against her, and accordingly the Court lacks jurisdiction over those claims.

C. Bail Condition

In her Complaint, Plaintiff also asks the Court to void the bail condition imposed by Defendant Judge Martinelli, requiring her to stay away from the court except on her scheduled court dates, as a violation of the First Amendment, the ADA, due process, and equal protection. (Compl. 1-2.)*fn22 On April 15, 2010, Judge Martinelli issued a memorandum explicitly rescinding this bail condition, and advising that Plaintiff was to be given the same access to the courthouse as any other public citizen. (Anspach Decl. Ex. 6.) This memorandum was to be circulated to all court personnel. (Id.) Plaintiff has not alleged that she has since been improperly denied access to the courthouse.*fn23 Accordingly, Plaintiff's request to have this Court void the bail condition, is denied as moot.*fn24

D. Removal of Plaintiff's State Criminal Case and Associated Hearings to Federal Court

Defendants also argue that some of Plaintiff's claims for relief are barred by the Younger abstention doctrine. (Defs.' Mem. 8-9.) In her Complaint, Plaintiff seeks "an order removing all 'Yonkers' originating matters to federal court on First Amendment grounds and due process grounds having exhausted all state remedy." (Compl. 2.) Thus, Plaintiff appears to be asking the Court to hear all of her pending actions that arose in Yonkers City Court. The Complaint discusses two such matters -- the criminal case arising from Plaintiff's December 4, 2009 arrest, and Plaintiff's 440 motion. Plaintiff also asks the Court to order that hearings be held regarding her various claims. (Id.) Although the 440 motion was pending when Plaintiff filed this action on March 9, 2010, this motion was subsequently denied by Defendant Judge Hansbury on April 14, 2010. (Anspach Decl. Ex. 4.) Accordingly, the 440 motion is no longer pending, and there is nothing for this Court to hear.*fn25 The pending criminal case is also before Judge Hansbury. However, as discussed supra note 15, Plaintiff's request to remove her pending state criminal case arising from her December 4, 2009 arrest was never actually filed in this action, and, in fact, was already considered and rejected by Chief Judge Preska in a separately filed federal action, see Bobrowsky v. People of the State of New York, No. 10-CV-7260 (S.D.N.Y. dismissed Sept. 21, 2010). Therefore, the exact relief that Plaintiff is requesting from this Court has already been denied, and the Court will not disturb Chief Judge Preska's decision.

Moreover, the Court reiterates for Plaintiff's benefit that this Court is prevented from interfering in Plaintiff's ongoing criminal proceeding pursuant to Younger v. Harris, 401 U.S. 37 (1971).*fn26 In Younger, the Supreme Court held that federal courts "in the interest of comity, should abstain from hearing a case that would interfere with an on-going state criminal proceeding." Kunz v. N.Y. Comm'n on Judicial Conduct, 356 F. Supp. 2d 188, 192 (N.D.N.Y. 2005) (citing Younger); see also Spargo v. N.Y. Comm'n on Judicial Conduct, 351 F.3d 65, 74-75 (2d Cir. 2003) (noting that Younger abstention is grounded in principles of comity and federalism and that "[b]oth considerations require federal courts to be cognizant that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways." (internal quotation marks omitted)).

"Younger abstention is mandatory when: (1) there is a pending state proceeding, (2) that implicates an important state interest, and (3) the state proceeding affords the federal plaintiff an adequate opportunity for judicial review of his or her federal constitutional claims." Spago, 351 F.3dat 75. The Second Circuit has held that Younger is inapplicable to § 1983 claims seeking money damages, but Younger abstention continues to apply to claims for injunctive relief brought pursuant to § 1983. See Diamond "D" Constr. Corp. v. McGowan, 282 F.3d 191, 196 n.2 (2d Cir. 2002); Rivers v. McLeod, 252 F.3d 99, 101-02 (2d Cir. 2001) (per curiam). Here, Plaintiff has not mentioned money damages at any point; instead, she is seeking to have this Court intervene in her ongoing state criminal proceedings.

The Younger requirements are all met here. Plaintiff's criminal contempt case is currently pending in state court, and it implicates an important state interest because "it is axiomatic that a state's interest in the administration of criminal justice within its borders is an important one." Hansel v. Town Court for Town of Springfield, 56 F.3d 391, 393 (2d Cir. 1995); see also Rolle v. McCarthy, No. 02-CV-4398, 2005 WL 5885366, at *4 (E.D.N.Y. June 21, 2005) ("The administration of criminal justice in the state courts of New York is undoubtedly an important state interest . . . ."). And, despite Plaintiff's asserted difficulties in Yonkers City Court, she has simply not demonstrated that there is not adequate opportunity for review of her federal constitutional claims in the state court system. The Yonkers judges, who Plaintiff claims are biased and prejudiced against her, have recused themselves from Plaintiff's case, which has been transferred to a White Plains judge. If Plaintiff is unhappy with the outcome of her case in state court, she may appeal it through the state court appellate system, as she did with her conviction for violating the 6/23/06 Protective Order. The state courts are more than capable of hearing Plaintiff's asserted federal constitutional claims, and in fact, "Younger generally prohibits courts from taking jurisdiction over federal constitutional claims that involve or call into question ongoing state proceedings." Spargo, 351 F.3d at 75 (internal quotation marks omitted). Likewise, the Court will not become involved in which state judge hears Plaintiff's case. See Kunz, 356 F. Supp. 2d at 194 (noting that a federal court should abstain under Younger rather than "supervise . . . the process of [state] judicial assignments").*fn27

Accordingly, to the extent Plaintiff is requesting the Court to take control of, oversee, or order hearings in her ongoing state court case, that claim for relief is denied.

E. Claims Against Judicial Defendants

Defendants Judge Martinelli, Justice Scheinkman, and Judge Hansbury are the only specific parties that Plaintiff has served in this action.*fn28 It is unclear from the Complaint precisely what claims Plaintiff is seeking to assert against each of these judges. Nonetheless, Defendants maintain that the Complaint against them must be dismissed pursuant to the doctrine of absolute judicial immunity. (Defs.' Mem. 5-8.) Based on the facts Plaintiff has alleged, the Court agrees.

It is "well established that officials acting in a judicial capacity are entitled to absolute immunity against § 1983 actions, and this immunity acts as a complete shield to claims for money damages." Montero v. Travis, 171 F.3d 757, 760 (2d Cir. 1999) (per curiam); see also Mireles v. Waco, 502 U.S. 9, 9 (1991) (per curiam). This immunity is "from suit, not just from ultimate assessment of damages." Mireles, 502 U.S. at 11. Injunctive relief is also barred by the 1996 Congressional amendments to § 1983, which "provide that 'in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.'" Montero, 171 F.3d at 761 (quotingFederal Courts Improvement Act of 1996, Pub. L. No. 104-317, § 309(c), 110 Stat. 3847, 3853 (1996)). "Although unfairness and injustice to a litigant may result on occasion, it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself." Mireles, 502 U.S. at 10 (internal quotation marks omitted); see also Forrester v. White, 484 U.S. 219, 223 (1988) (noting that judges threatened with personal liability for their official duties "may well be induced to act with an excess of caution or otherwise to skew their decisions in ways that result in less than full fidelity to the objective and independent criteria that ought to guide their conduct . . . [and that] exposing [judges] to the same legal hazards faced by other citizens may detract from the rule of law instead of contributing to it").

Moreover, "judicial immunity is not overcome by allegations of bad faith or malice, the existence of which ordinarily cannot be resolved without engaging in discovery and eventual trial." Mireles, 502 U.S. at 11. "[I]mmunity is overcome in only two sets of circumstances. First, a judge is not immune from liability for non-judicial actions, i.e., actions not taken in the judge's judicial capacity. Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction." Id. at 11 (emphasis and citations omitted); see also Gross v. Rell,585 F.3d 72, 82 (2d Cir. 2009)("Even judicial immunity, which provides judges with very broad protection, may be overcome if the judge acts in the clear absence of all jurisdiction or if he is not acting in his judicial capacity.").

"[W]hether an act by a judge is a 'judicial' one relate[s] to the nature of the act itself," such as "whether it is a function normally performed by a judge," and "whether [the parties] dealt with the judge in his judicial capacity." Stump v. Sparkman, 435 U.S. 349, 362 (1978). A "court acts in the absence of all jurisdiction when it does not have any statutory or constitutional power to adjudicate the case." Gross,585 F.3d at 84 (emphasis and internal quotation marks omitted). The Supreme Court has emphasized that "[i]f judicial immunity means anything, it means that a judge will not be deprived of immunity because the action he took was in error or was in excess of his authority." Mireles, 502 U.S. at 12-13 (internal quotation marks omitted) (finding that the state court judge's order to police officers to bring the plaintiff into the courtroom using excessive force would exceed his authority, but was still protected by judicial immunity because ordering the court officer to bring the plaintiff to court "is a function normally performed by a judge").

1. Defendant Judge Martinelli Plaintiff alleges that Defendant Judge Martinelli: (1) sentenced Plaintiff on May 23, 2008, after she was convicted of violating the 6/23/06 Protective Order, and improperly issued a new order of protection ordering Plaintiff to stay away from Lillian and Lillian's house (Compl. Ex. I); and (2) presided over Plaintiff's arraignment on December 4, 2009, where he released Plaintiff on the improper condition that she stay away from the Court except for her scheduled court dates (Compl. Ex. K, at 3), which Plaintiff believes was in retaliation for articles she had written criticizing the court, (OSC unnumbered page 9).

These actions are protected by judicial immunity. To the extent Plaintiff is suing Defendant Judge Martinelli for sentencing her or issuing the 5/23/08 Protective Order, a judge's decision to sentence a convicted defendant, or to issue a protective order, is clearly a judicial function, and there is no serious allegation that Defendant Judge Martinelli lacked all jurisdiction to issue the orders in the criminal case pending before him. See Tota v. Ward, No. 07-CV-26, 2008 WL 619163, at *3 (W.D.N.Y. Mar. 3, 2008) ("There is no dispute that [the defendant judge] had jurisdiction to issue an Order of Protection. The dispute is whether he did so properly. But whether he did or did not, [the judge] is nonetheless protected from suit by the doctrine of judicial immunity."); Vanguilder v. Giardino, No. 05-CV-2033, 2005 WL 1229742, at *1 (E.D.N.Y. May 23, 2005) (holding that judge was entitled to immunity where the "plaintiff's allegations against [the defendant judge] all ar[o]se out of the [j]udge's actions during plaintiff's criminal proceedings").

In addition, the "stay away" bail condition imposed by Defendant Judge Martinelli has been rescinded, and in any event, the "setting of bail w[as] plainly [a] judicial act[]." Tucker v. Outwater, 118 F.3d 930, 933 (2d Cir. 1997); see also Root v. Liston,444 F.3d 127, 132 (2d Cir. 2006) ("Ordinarily, it is judges who set bail, and judges enjoy absolute immunity when they do so." (citations omitted)). Plaintiff has also made no allegation that Defendant Judge Martinelli acted in the clear absence of jurisdiction when setting a bail condition for a defendant in a criminal case pending before him. See generally N.Y. Uniform City Ct. Act § 2001(1) (stating that city courts have jurisdiction over criminal matters);N.Y. Crim. Proc. Law § 530.10, et seq. (describing standards for setting of bail by New York judges, including those sitting in local criminal courts). Moreover, "a judge acts in his judicial capacity when he exercises control over his courtroom, and by extension, when he bars a litigant or attorney from the courtroom." Levine v. Lawrence, No. 03-CV-1694, 2005 WL 1412143, at *6 (E.D.N.Y. June 15, 2005); see also Huminski v. Corsones, 396 F.3d 53, 77-78 (2d Cir. 2005)(holding that a plaintiff excluded from a courtroom did have a viable First Amendment claim, but dismissing claims against judges because they "have substantial power to maintain the decorum and security of their courtrooms and the courthouses in which those courtrooms are located"); Glavin v. Restaino, No. 05-CV-477, 2006 WL 5646214, at *3-4 (W.D.N.Y. Mar. 26, 2006) (noting that judge was immune from suit for holding defendants in criminal contempt and adding new bail conditions for alleged uncooperative conduct in courtroom), aff'd, 210 F. App'x 122 (2d Cir. 2006) (summary order).

Even assuming that Defendant Judge Martinelli acted in excess of his authority or erroneously in setting the particular bail condition at issue, "that does not mean that he acted in the absence of all jurisdiction, particularly when his actions are 'taken in the very aid of the judge's jurisdiction over a matter before him.'" Levine, 2005 WL 1412143, at *7 (emphasis omitted) (quoting Mireles, 502 U.S. at 13). And, despite Plaintiff's allegation that the bail condition was set as retaliation for her previous articles and criticisms of the court, judges are immune from suit "however erroneous the act and however evil the motive." Bliven v. Hunt, 418 F. Supp. 2d 135, 137 (E.D.N.Y. 2005), aff'd, 579 F.3d 204 (2d Cir. 2009). "[E]ven allegations of bad faith or malice cannot overcome judicial immunity." Bliven, 579 F.3d at 209; see also McKnight v. Middleton, 699 F. Supp. 2d 507, 524 (E.D.N.Y. 2010) (noting that allegations that judge's rulings were motivated by discrimination or "retaliation for [the

p]laintiff's filing of [a] lawsuit against the court and others" could not defeat judicial immunity). Again, the bail condition has been rescinded; therefore, no injunctive relief is necessary.

Yet, even if it had not been rescinded, this Court would not be able to issue an injunction against Defendant Judge Martinelli, because Plaintiff has not alleged that Defendant Judge Martinelli violated a declaratory decree or that declaratory relief would not be available. See Montero, 171 F.3d at 761. If Plaintiff believed that the bail condition was in error, Plaintiff was free to attempt to correct the mistake within the New York state court system. See generally N.Y. Crim. Proc. Law § 530.30(1)(c) (stating that when a criminal matter is pending in a local criminal court, a superior court judge may order recognizance or bail when the local criminal court "[h]as fixed bail which is excessive").

2. Defendant Justice Scheinkman

The allegations involving Defendant Justice Scheinkman are that: (1) he was one of the three judges who affirmed Plaintiff's conviction on appeal on May 4, 2009 (Anspach Decl. Ex.

1), although Plaintiff alleges that she had asked Defendant Justice Scheinkman not to handle the appeal due to an alleged conflict (OSC unnumbered page 5); and (2) "pursuant to the authority vested in him as Administrative Judge of the Ninth Judicial District," he assigned Plaintiff's pending 440 motion and new criminal case on December 22, 2009, and January 7, 2010, respectively, to Defendant Judge Hansbury in White Plains, as an Acting Yonkers City Court Judge, upon the recusal of all of the Yonkers judges. (Compl. Exs. M2, M4.)

To the extent Plaintiff is suing Defendant Justice Scheinkman with regard to his alleged earlier refusal to recuse himself, her claim is barred by judicial immunity because a judge's decision to recuse (or not to recuse) is also a judicial act and Justice Scheinkman's decision was not made in the absence of jurisdiction. See Sylvester v. Sorrell, No. 08-CV-88, 2009 WL 819383, at *3 (D. Vt. Mar. 25, 2009) (deciding that judge's refusal to recuse himself was judicial act entitled to immunity); Haynes v. Schimelman, No. 99-CV-2553, 2000 WL 502623, at *1 (D. Conn. Mar. 8, 2000) (concluding that judge's decision not to recuse was covered by judicial immunity).

Defendant Justice Scheinkman's decision to refer the 440 motion and state criminal case to the City Court of White Plains, because all of the Yonkers City Court judges recused themselves, is also a judicial act done in furtherance of the court's jurisdiction to resolve the dispute and to control its docket. Cf. Huminski, 386 F.3d at 139 ("A court's control of its docket is also a judicial act because it is part of a court's function of resolving disputes between parties." (internal quotation marks omitted)); Book, 2005 WL 1981803, at *2 (finding that a judge's alleged failure to ensure that a notice of appeal and transcript were sent to the plaintiff were "adjudicative, discretionary decisions which, like a court's management of its docket, are part of its function of resolving disputes between the parties" (internal quotation marks omitted)).

The Court notes that judges generally are not immune for "administrative decisions, even though they may be essential to the very functioning of the courts." Bliven, 579 F.3d at 210 (internal quotation marks omitted). However, "the Supreme Court has generally concluded that acts arising out of, or related to, individual cases before the judge are considered judicial in nature." Id. Put another way, when a judge's decision involves a particular case, the judge's act is a "function normally performed by . . . judge[s]." Stump, 435 U.S. at 362. Here, Defendant Justice Scheinkman did not alter the administrative rules for the transfer of all cases in the courts he might supervise. Rather, he made a decision, as a judge, to transfer a particular case -- Plaintiff's -- to another court. By performing this typically judicial function, Defendant Justice Scheinkman was entitled to immunity. Cf. Morrison v. Lipscomb, 877 F.2d 463, 465-66 (6th Cir. 1989) (finding that the chief judge's moratorium on the issuance of writs of restitution was an administrative, not judicial, act because the moratorium was general and not connected to any particular case). Indeed, New York courts have specifically held that administrative judges are cloaked with judicial immunity for their decisions to transfer cases. See Rosenstein v. State, 829 N.Y.S.2d 93, 94 (App. Div. 2007) (concluding that alleged wrongdoing of administrative judges, court officers, and clerks in "transferring and rescheduling" landlord/tenant dispute was cloaked with judicial immunity). Therefore, the Court finds that Plaintiff's claims against Defendant Justice Scheinkman should be dismissed.

3. Defendant Judge Hansbury Plaintiff's 440 motion and pending state criminal case were transferred to Defendant Judge Hansbury. (Compl. Exs. M2, M4.) Although Plaintiff alleges that Defendant Judge Hansbury refused to hear her 440 motion, the public record indicates that at the February 16, 2010 hearing Defendant Judge Hansbury was confused as to whether that motion had actually been transferred to him (Compl. Ex. R), and he has since heard and decided the motion, (Anspach Decl. Ex. 4).

Therefore, Defendant Judge Hansbury did not refuse to hear Plaintiff's 440 motion. Moreover, even if he had at first refused to hear Plaintiff's motion despite the transfer, such a decision was also done in his judicial capacity and within his jurisdiction to decide the pending motion and to control his docket. See Kampfer v. Scullin, 989 F. Supp. 194, 200 (N.D.N.Y. 1997) (noting that a judge was immune from suit for the alleged "fail[ure] to provide a date and time for the plaintiffs to be heard on their motion [and] fail[ure] to rule on that same motion in an ongoing case in which he was the designated trial judge"). Accordingly, Defendant Judge Hansbury's motion to dismiss is granted.

In sum, all of the acts Plaintiff complains of involve orders or decisions of judges acting within their judicial capacity and within their jurisdiction.*fn29 Such "rulings . . . despite being adverse to plaintiff, are the very essence of 'judicial functions' and cannot, therefore, be the basis for liability." Williams v. Jurow, No. 05-CV-6949, 2007 WL 5463418, at *10 (S.D.N.Y. June 29, 2007), adopted as modified by No. 05-CV-6949, 2008 WL 4054421 (S.D.N.Y. Aug. 28, 2008).*fn30 Accordingly, all of the actions attributed to the named Defendant Judges are protected by judicial immunity, and Defendants are entitled to dismissal of the Complaint against them.

F. ADA Claim

Plaintiff repeatedly mentions that she is a disabled person, and asserts that her action is brought pursuant to the ADA. Defendants assert that any ADA claim should be dismissed pursuant to Rule 12(b)(6), because Plaintiff has failed to plead "any factual allegations regarding her alleged disability"; what actions, if any, were taken against her because of her disability; or "what services or activities, if any, [] the courts and/or judges are refusing to provide [P]laintiff on account of her alleged disability." (Defs.' Mem. 10-11.)

Construing the Complaint liberally, Plaintiff appears to be alleging a violation of Title II of the ADA, which mandates that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity."

42 U.S.C. § 12132. In order to state a violation of Title II, Plaintiff must allege that: (1) she is a qualified individual with a disability; and (2) she is being excluded from participation in, or being denied the benefits of some service, program, or activity of a covered entity by reasons of her disability. See Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 85 (2d Cir. 2004); Atkins v. Cnty. of Orange, 251 F. Supp. 2d 1225, 1231 (S.D.N.Y. 2003). The second prong requires the disabled plaintiff to allege that her mistreatment "was motivated by either discriminatory animus or ill will due to disability." Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 112 (2d Cir. 2001). This animus requirement reflects the purpose of Title II, which is "to eliminate discrimination on the basis of disability and to ensure evenhanded treatment between the disabled and the able-bodied." Doe v. Pfrommer, 148 F.3d 73, 82 (2d Cir. 1998).

Here, Plaintiff states that she is a disabled person, and refers to a neck injury, but does not ever allege that she is a qualified individual under the ADA. Moreover, even assuming arguendo that Plaintiff has alleged facts sufficient to meet the first requirement, she has utterly failed to allege that she was excluded from participation in, or denied the benefits of any service, program, or activity because of her disability, and the Complaint is completely devoid of facts, or even allegations, that any purported mistreatment was motivated by discriminatory animus or ill will based on her disability. Therefore, Plaintiff has not alleged "enough facts to state a claim to relief that is plausible on its face," and accordingly, her ADA claim must be dismissed. Twombly, 550 U.S. at 570.

G. Remaining Claims

The Court notes that throughout this action, Plaintiff has continually submitted additional letters and putative motions referring to events not discussed in her Complaint, raising new potential causes of action, and claiming that she has "emergencies" requiring immediate intervention of this Court. In fact, in her initial Complaint, Plaintiff specifically mentioned her supposed "reservation of rights to add issues not yet added as they commence." (Compl. 2.) That is not the way civil litigation works in any court. Plaintiff filed a Complaint, which Defendants responded to in their motion to dismiss (which Plaintiff did not answer). Defendants have fairly expressed their concern that "Plaintiff seems to believe that every interaction she has had with any state or city court in a variety of her ongoing court proceedings are all legitimate issues to be included in her federal lawsuits," of which at least four have been filed in the last three-and-a-half years, and, that "[b]y referencing every conceivable interaction [P]laintiff has had with court personneland others, [P]laintiff does not present a cogent issue to be addressed by this Court, but a moving target that prevents [D]efendants from responding in a definitive fashion to any issue."(Letter from Susan Anspach, Counsel for Defs., to the Ct. (Apr. 30, 2010) (Dkt. No. 14).) If Plaintiff believes she has additional allegations to add to her Complaint -- or claims that have not been denied already in this or another federal action -- she may seek to file an amended complaint, or file a new action, instead of attempting to supplement her claims through improper submissions, and serve the proper parties accordingly.*fn31

III. Conclusion

Plaintiff's Complaint against Defendants Judge Martinelli, Justice Scheinkman, and Judge Hansbury is dismissed with prejudice. To the extent Plaintiff's Complaint asks the Court to vacate her state court conviction or the state court protective orders issues against her, or to remove or otherwise interfere in any of her ongoing state court proceedings, those claims are dismissed with prejudice, as is plaintiff's ADA claim. The Clerk of Court is respectfully directed to terminate the pending motion. (Dkt. No. 21.) Plaintiff is given thirty days to amend her Complaint to add any additional parties she believes should be named consistent with this opinion.*fn32


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