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.
1
To date, Plaintiff has individually served three Defendants: the Honorable Michael A. Martinelli, Chief Judge of the
I. Background
For purposes of deciding the instant motion to dismiss, the Court accepts as true the allegations contained in Plaintiffs 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 Plaintiffs 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 Bobrоwsky,” 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. Plaintiffs 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
Subse
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 Deck”) Ex. 1, at SM-1.) As part of Plaintiffs 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.)
Plaintiffs 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,
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. Plaintiffs December 2009 An'est
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. Ml.) Plaintiff next alleges that when she appeared at the scheduled conference on December 4, 2009, Judge Cerrato adjоurned 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
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.) 9 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.)
A Transfer of Plaintiffs 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
On February 16, 2010, Plaintiff appeared before Defendant Judge Hansbury on the new criminal charge in No. 09M725. (Compl. Ex. R.)
11
The Court does not know why the date of the proceeding changed from January 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.)
12
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
Defendant Judge Hansbury denied Plaintiffs 440 motion on April 14, 2010 (after Plaintiff initiated the instant action), finding that despite Plaintiffs 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 Plaintiffs 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 rеquire a protected victim to have title in the premises which she occupies, and thus Plaintiffs “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.) 13
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 “[political campaign contributions also created the appearance of impropriety”; and that Posner had “deeeiv[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 [Plaintiffs] time in the sun was over,’ ” followed by the court officers grabbing Plaintiffs 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
On March 29, 2010, Plaintiff filed affidavits of service for Defendants Judge Martinelli, Justice Scheinkman, and Judge Hansbury. (Dkt. No. 5.) 14 On April 15, 2010, the Court denied Plaintiffs 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 Plaintiffs 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 Plaintiffs Complaint and attached exhibits. 15
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,
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 plaintiffs 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,
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. 1st. Disc. Bank ofN.Y.,
... not for the truth of the matters asserted.”
Kramer v. Time Warner Inc.,
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 Plaintiffs 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 Plaintiffs 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.) Althоugh 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 jurisdic
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,
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 injuriеs 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,
Here, the Court concludes that it lacks subject matter jurisdiction to hear Plaintiffs 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 Plaintiffs case.
17
Plaintiff lost in state court when she was convicted on October 17, 2007. Plaintiff also
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,
Here, Plaintiffs 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,
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,
Thus, all of the requirements of the Rooker-Feldman doctrine are met with respect to Plaintiffs 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. (Comрl. 1-2.) 22 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 Deck 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. 23 Accordingly, Plaintiffs request to have this Court void the bail condition, is denied as moot. 24
Defendants also argue that some of Plaintiffs 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 Plaintiffs December 4, 2009 arrest, and Plaintiffs 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 Deck Ex. 4.) Accordingly, the 440 motion is no longer pending, and there is nothing for this Court to hear. 25 The pending criminal case is also before Judge Hansbury. However, as discussed supra note 15, Plaintiffs request to remove her рending 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 Plaintiffs benefit that this Court is prevented from interfering in Plaintiffs ongoing criminal proceeding pursuant to
Younger v. Hams,
“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.”
Spargo,
The
Younger
requirements are all met here. Plaintiffs 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,
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. 28 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,
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.”
Míreles,
“[Wjhether an act by a judge is a ‘judicial’ one relatefs] to the nature of the act itself,” such as “whether it is a function normally perfоrmed by a judge,” and “whether [the parties] dealt with the judge in his judicial capacity.”
Stump v. Sparkman,
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 Plaintiffs 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,
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,
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,
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 injunctiоn 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,
2. Defendant Justice Scheinkman
The allegations involving Defendant Justice Scheinkman are that: (1) he was one of the three judges who affirmed Plaintiffs 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 Plaintiffs 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.)
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,
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,
3. Defendant Judge Hansbury
Plaintiffs 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).
In sum, all of the acts Plaintiff complains of involve orders or decisions of judges acting within their judicial capacity and within their jurisdiction.
29
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,
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,
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 ANA. 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 hеr disability. Therefore, Plaintiff has not alleged “enough facts to state a claim to relief that is plausible on its face,” and accordingly, her ANA claim must be dismissed.
Twombly,
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 [Pjlaintiff has had with court personnel and others, [Pjlaintiff does not present a cogent issue to be addressed by this Court, but a moving target that prevents [DJefendants from responding in a definitive fashion to any issue.” (Letter from Susan Anspaeh, Counsel for Defs., to the Ct. (Apr. 30, 2010) (Dkt. No. 14).) If Plaintiff believes she has additional allegations to add to her Cоmplaint — 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. 31
Plaintiffs Complaint against Defendants Judge Martinelli, Justice Scheinkman, and Judge Hansbury is dismissed with prejudice. To the extent Plaintiffs Complaint asks the Court to vacate her state court conviction or the state court protective orders issued against here, or to remove or otherwise interfere in any of her ongoing state court proceedings, those claims are dismissed with prejudice, as is Plaintiffs 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. 32
SO ORDERED.
Notes
. As explained infra Section I.B, Plaintiff filed her Complaint and an Order to Show Cause for a Preliminary Injunction and Temporary Restraining Order in this action simultaneously. In Plaintiff's Order to Show Cause, she also asked the Court to: (1) order the Westchester County District Attorney to (a) not prosecute Plaintiff for alleged violations of the protective order and (b) refer Plaintiff's allegations of mortgage fraud, police misconduct, and other wrongdoing to the New York Attorney General, New York County District Attorney, and/or Department of Justice; and (2) order that Plаintiff's name be cleared and that Plaintiff and her family obtain counseling. These requests were not made in the Complaint, and the Court denied Plaintiff's Order to Show Cause on April 15, 2010. (Dkt. No. 10.)
. Plaintiff alleges that thirty-five officers came to the house, but none would take her report. (Compl. 10.) According to Plaintiff, this was part of a pattern of police retaliation undertaken after she reported that a police officer, Dean Renzi ("Renzi"), refused to arrest a man who assaulted her on February 28, 2006, and that the Yonkers Police Department failed to properly investigate the matter, as well as other incidents she reported.
(Id.
at 9, 10, 20, 32; Compl. Ex. A.) Plaintiff claims that Renzi is the officer who arrested her for violating the protective order. (Compl. 32.) As explained
infra
note 15, Renzi and the Yonkers Police Department have been sued in two other federal actions brought by Plaintiff, one
. The other terms of Plaintiff's sentence, if any, have not been provided to the Court.
. Plaintiff alleges that she had asked that Defendant Justice Scheinkman not handle the appeal of her conviction “due to the appearance of impropriety” caused by Justice Scheinkman being a partner in the Debello law firm, which in 2006 had declined to represent Plaintiff because it did business with Posner; thus, Plaintiff "felt [Justice] Scheinkman was in conflict.” (OSC unnumbered page 5.)
.Plaintiff alleges that Posner was involved in the events leading up to the issuance of the 6/23/06 Protective Order and in convincing Lillian to complain about Plaintiffs violation of the order, resulting in Plaintiff's conviction. (Compl. 11.) Plaintiff points to several emails written by Posner regarding the family dispute over the property, one of which states that "until [the] matter is resolved, and without a court order, [Plaintiff] is not to be allowed to gain access to the house.” (Compl. Ex. L2, at 2; Compl. Ex. L3.) Plaintiff also appears to allege that Posner has committed acts of title, tax, mail, and mortgage fraud against her. (Compl. at 15-16.)
On May 20, 2009, a state Administrative Law Judge ("ALJ”) revoked Posner’s notary license after finding that Posner witnessed the signing of a bargain and sale deed in which Lillian conveyed title of the property to Jacques, even though Lillian had previously deeded the property to herself and Plaintiff, and later had transferred title to Plaintiff alone, reserving a life estate for herself. (Compl. Ex. H2.) As a result of these actions, Posner resigned as an attorney on August 20, 2009, and subsequently was disbarred. (Compl. Ex. P.) Plaintiff sued Posner in her previously filed federal action that was dismissed by Judge Owen.
. According to Plaintiff, these alleged city code violations were acts of retaliation by Yonkers Corporation Council Laurence Porcari ("Porcari”). (Compl. 15.) Plaintiff sued Porcari in her previous federal action that was dismissed by Judge Robinson.
. Plaintiff alleges that "[/Improper conduct that occurred during the trial which does not appear on the record” warranted reversal of her conviction, and that she was prejudiced by not being allowed pretrial, evidentiary, or post-trial hearings. (Compl. 28.) Plaintiff also claims that she was prejudiced by multiple errors made by her trial and appellate counsel, and that the presiding trial judge was a temporary appointment who was new and inexperienced. (Id. at 29-31.) Plaintiff's 440 motion was denied by Defendant Judge Hans-bury on April 14, 2010 (Anspach Deck Ex. 4), and Plaintiff has not brought a habeas petition pursuant to 28 U.S.C. § 2254.
. Plaintiff further explains that Judge Cerrato was the same judge who, at a previous court appearance, “had yelled in 2007 'get the hell out of my courtroom’ when [Plaintiff] calmly compared the Westchester DA's actions to be akin to the Duke lacrosse case.” (Compl. 7.)
. Plaintiff also alleges that these actions were taken in retaliation for her serving a federal court action "four weeks prior” on October 23, 2009, on the " 'Westchester DA and her underlings' along with a Yonkers judge,” for malicious prosecution, extortion, equal protection violations, and subornation of perjury. (Compl. 6, 9, 13.) The Court is not aware of any federal action filed or served on that date naming those individuals.
. Plaintiff appears to allege that Defendant Justice Scheinkman should not have addressed her 440 motion, because she had previously alleged a conflict in Defendant Justice Scheinkman's handling of the earlier appeal of her conviction. Therefore "[t]o decide any motions would not be proper since [Plaintiff] did enter the letter/motion for removal from [her] case.” (OSC unnumbered pages 5-6.) However, Defendant Justice Scheinkman was not removed from hearing Plaintiff's earlier criminal appeal, and, moreover, he did not decide Plaintiff's 440 motion; instead, he transferred it out of Yonkers.
. Although it is not exactly clear, it appears that when case No. 09-7246 was transferred from Yonkers to White Plains, it was assigned a new case number, No. 09-4725, which Defendant Judge Hansbury wrote on his January 13, 2010 letter to Plaintiff (Compl. Ex. M4), and appears on the transcript in the subsequent proceeding before Defendant Judge Hansbury, (Compl. Ex. R).
.On January 7, 2010, it appears that Plaintiff tried to file a motion to remove her pending state criminal case to federal court; according to Plaintiff, the motion was date-stamped but not filed because she did not have the required filing fee (and it was not assigned a docket number). Plaintiff also attached this putative motion to her Complaint in this case as Exhibit T. In the putative motion, Plaintiff referred to the case she was seeking to remove as No. 09-7246, but as explained supra note 11, the Court believes this is the same case that the White Plains court refers to as No. 09-4725.
. The Court has not been advised whether Plaintiff has appealed this decision.
. Plaintiff has never amended her Complaint to change the original caрtion. Because Plaintiff served these three judges in response to the Court's order directing Plaintiff to serve the individuals she wished the enjoin, and recognizing Plaintiff’s pro se status, the Court will assume that Plaintiff intends to amend her Complaint and add these judges as individually-named defendants, or have them be the "judges” to which she refers in the existing caption.
. As already noted, on January 7, 2010, Plaintiff appears to have tried to file a petition in this federal district to remove the pending state criminal case arising from her December 4, 2009 arrest. (Compl. Ex. T.) According to Plaintiff, the motion was stamped, but not filed, because she did not have the required filing fee. Although Plaintiff attached this document to her Complaint filed on March 9, 2010, this putative removal motion was never filed in this action. Subsequently, Plaintiff filed another petition to remove this same state criminal case, which was assigned to Chief Judge Loretta A. Preska.
See
Petition for Removal,
Bobrowsky v. People of the State of New York,
No. 10-CV-7260 (S.D.N.Y. filed Sept. 21, 2010). On September 21, 2010, Chief Judge Preska dismissed Plaintiff's petition based on
Johnson v. Mississippi,
In addition, Plaintiff has filed at least two other cases in federal court, arising from many of the same events, and raising many of the same issues, as those described in her Complaint in this action. In 2007, Plaintiff filed a complaint against the City of Yonkers, the Yonkers Corporate Counsel, Porcari, the Yonkers Criminal Court, Judge Wood, the Yonkers Police Department, Renzi, the Westchester Family Court, Judge Klein, the Westсhester County District Attorney's Office, and two Assistant District Attorneys, seeking declaratory and injunctive relief including an order from the federal court modifying the outstanding protective orders against her and allowing her to access her home. Complaint,
Bobrowsky v. City of Yonkers,
No. 07-CV8817 (S.D.N.Y. filed Oct. 12, 2007). In 2008, Judge Robinson dismissed Plaintiff’s claims based on
Younger
abstention, finding that Plaintiff had "ample recourse available to her in the state courts,” and that there were not present the type of "extraordinary circumstances” necessary to warrant federal court action.
Bobrowsky v. City of Yonkers,
No. 07-CV-8817, slip op. at 6-8 (Dkt. No. 17) (S.D.N.Y. May 16, 2008).
. Habeas review is a notable exception to this jurisdictional rule.
See
28 U.S.C. § 2254(a);
Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,
. Although the Second Circuit initially stated in
Hoblock
that "the parties in the state and federal suits must be the same,”
Hoblock,
. The fact that Plaintiff had a pending 440 motion at the time she filed the instant action does not affect the finality of the judgment for
Rooker-Feldman
purposes.
See Galtieri v. Kelly,
. In
Green,
the Second Circuit held that a plaintiff who claimed injuries from a temporary restraining order of the Family Court that removed her child from her home, which order was then revised four days later by the same court, was not barred by the
Rooker-Feldman
doctrine because the plaintiff was not a "state court loser,” and the plaintiffs claim, which sought damages for the four-day removal, did not seek federal court review of a state court "judgment.”
Green,
. The fact that Plaintiff alleges that the 6/23/06 Protective Order was obtained through the fraud of Posner does not defeat the applicability of
Rooker-Feldman. See O’Donnell v. United States,
No. 05-CV-713,
. The 5/23/08 Protective Order is still considered permanent even though it was to expire аfter five years. As the
Nieves
court explained, ”[o]rders issued upon conviction are characterized as 'permanent' to distinguish them from the temporary orders that may be issued pursuant to CPL 530.13(1) while the criminal action is pending.”
Nieves,
The Court notes that the 5/23/08 Protective Order was issued pursuant to CPL § 530.12, which addresses protection for victims of family offenses specifically. This section provides that ''[ujpon conviction of any crime or violation between ... parent and child ... the court may in addition to any other disposition ... enter an order of protection.” N.Y.Crim. Proc. Law § 530.12(5). However, New York courts have concluded that the reasoning of
Nieves
regarding the appealability of orders of protection for non-family members under § 530.13 applies equally to orders entered under § 530.12.
See People v. Whalen,
. To the extent Plaintiff is seeking to sue Defendant Judge Martinelli personally for banning her from the courthouse, and not just seeking to have the condition revoked, that claim is barred by judicial immunity, as explained infra Section II.E.l.
. In addition, from what the Court can tell from Plaintiff's Complaint, Plaintiff has not requested damages resulting from being "banned” from the courthouse during the time between the imposition of the initial condition and its rescission.
. If the condition had not been rescinded, there is reason to doubt this Court's jurisdiction, under
Rooker-Feldman,
to consider Plaintiff's challenge to the bail condition. The Second Circuit has suggested that
Rook-er-Feldman
might not apply if a plaintiff "had neither a practical reason nor a legal basis to appeal the state-court decision that caused her alleged injuries.”
Green,
The rest of the Second Circuit’s
Rooker-Feldman
requirements would be met here. The bail condition was set prior to Plaintiff filing this action; Plaintiff is complaining of an injury that is directly caused by Defendant Judge Martinelli’s order — namely the violation of her First Amendment right to public access to the сourthouse, and that she could not access her court files; and Plaintiff was explicitly requesting the Court to review, reject, and overturn Defendant Judge Martinelli's order.
See McKnight v. Middleton,
. Plaintiff's 440 motion sought to vacate her underlying conviction for violating the 6/23/06 Protective Order. As already discussed, if Plaintiff wished to have a federal court review her challenge to this conviction, the proper vehicle would be a timely habeas petition.
. This principle has already been explained to Plaintiff in judicial opinions issued in three of Plaintiff's other federal actions. See No. 07-CV-8817 (Dkt. No. 17); No. 08-CV-11302 (Dkt. No. 69); No. 10-CV-7260 (Dkt. No. 3).
. The Second Circuit has noted that “[d]e-spite the strong policy in favor of abstention, even where
Younger
would otherwise apply, a federal court may still intervene in state proceedings if the plaintiff demonstrates bad faith, harassment or any other unusual circumstance that would call for equitable relief.”
Spargo,
Here, Plaintiff has failed to allege facts that would support applying either of these
Younger
exceptions. Despite Plaintiff’s conclusoiy claims of bad faith and retaliation by Yonkers judges, there is no indication that Plaintiff cannot receive a fair and full adjudication of her criminal case before Defendant Judge Hansbury. While the facts here certainly "present[] a highly unusual factual situation,” there is no extraordinary pressing need for immediate federal equitable relief because Plaintiff may present any constitutional claims in her case pending before Judge Hansbury, a state judge who, despite his inclusion as a Defendant in this action, is not alleged to have any bias or motivation to retaliate against Plaintiff. If Plaintiff disagrees with the outcome of her state court case, she will be free to appeal to higher state courts and present her constitutional clаims. "Where such state remedies are available, 'a federal court should assume that state procedures will afford an adequate remedy, in the
. Because these judges are the only persons Plaintiff has served, given Plaintiff’s pro se status, the Court assumes Plaintiff intends them to be named Defendants in this action.
. Plaintiff does allege that the 6/23/06 Protective Order entered by the Family Court was “issued based on an ex parte deed allegation for which it lacked subject matter jurisdiction.” (Compl. 10.) Plaintiff has not offered any facts that would demonstrate that the protective order was actually issued without jurisdiction, and in any event, Judge Klein, who entered the protective order, is not named as a defendant in this action. Plaintiff has given no indication that any of the three Judges named as Defendants in this case took any action for which he lacked jurisdiction, and, for reasons described above, the Rooker-Feldman doctrine likely would deprive this Court of jurisdiction to resolve any challenge to the 6/23/06 Protective Order.
. This remains the case even though Plaintiff has raised allegations that the original protective order may have been facilitated by Posner’s fraud.
Cf. Greene v. Wright,
. Plaintiff has also asked the Court to remove the New York State Attorney General from defending the Defendant Judges, due to an alleged conflict of interest, because the Attorney General's office supposedly is assisting Plaintiff with certain complaints she has filed. (Compl. 2.) However, Defendants’ counsel has represented to the Court that the Judges named as Defendants in this action are not implicated in Plaintiff's allegations, and that "[n]either the [DJefendant [Jjudges nor their respective determinations are the subject of any investigation by the Attorney General.” (Letter from Susan Anspaeh, Counsel for Defs., to the Ct. (Apr. 30, 2010) (Dkt. No. 14).) Having been presented with no evidence that any conflict exists, the Court declines to remove the Attorney General from representing these Defendants.
See Bernstein v. Appellate Div. First Dep't Disciplinary Comm.,
No. 07-CV-11196, slip op. at 1 (Dkt. No. 7) (S.D.N.Y. Mar. 10, 2008) (concluding
. This dismissal is not meant to bar Plaintiff from bringing other actions against people not named herein (or in Plaintiff's other lawsuits) for claims that may be brought in federal court.