A Rochester-based attorney for David Bellavia has filed motions to dismiss and seal portions of a federal lawsuit filed against him and Orleans County alleging a conspiracy to deny Bellavia's ex-wife her constitutional rights.
Attorney Donald W. O'Brien's court filings assert that the lawsuit is deficient in proving a conspiracy and was filed in part to make disparaging remarks about Bellavia a matter of public record.
The suit was filed on Nov. 4 on behalf of Deanna Bellavia (known professionally as Deanna King) by attorney Nathan McMurray. Plaintiffs in the suit include David Bellavia, Orleans County, the Orleans County Sheriff's Office, the Orleans County District Attorney's Office, Investigator Corey Black, and a Sheriff's Office employee listed as "John Doe."
The suit alleges that Bellavia and Black conspired to arrest King without probable cause and charge her with harassment for contacting Bellavia during their divorce proceedings in 2021.
Bellavia, a former Batavia resident who is originally from Orleans County and has resided there in recent years, received the Medal of Honor in 2019 for his actions during the Battle of Fallujah during the Iraq War.
King, who lives in Batavia, is a radio and TV broadcaster in Rochester.
McMurray has previously sought to represent Genesee County and the surrounding area in Congress. Earlier this year, McMurray filed a suit on behalf of former state senator George Maziarz against Batavia Downs that was subsequently dropped.
The federal lawsuit alleges government officials, acting under the color of law, conspired with Bellavia to have King arrested in order to discredit her during divorce proceedings. The arrest, according to the suit, violated her rights to be free of unreasonable search and seizure and equal protection under the law.
O'Brien does not dispute that Bellavia filed a complaint against King alleging violations of a court agreement that limited contact between the parties but states that such contacts with law enforcement do not constitute a conspiracy and cites specific case law to support his assertion.
"Assuming these allegations are true, there is nothing sinister in Mr. Bellavia furnishing evidence to the Municipal Defendants upon which they based the harassment charges that resulted in Plaintiff's Adjournment in Contemplation of Dismissal (ACD)," the motion states. "Mr. Bellavia does not deny that he was the complainant in the underlying criminal case (emphasis retained). However, 'it has long been held that a private party does not become a willful participant by merely invoking the assistance of the police.' DeSantis v. Town of Cheektowaga, 2020 "
In his motions, O'Brien states that McMurray, in drafting the complaint filed in Federal Court, failed to identify a specific section of the United States Code on which King's claim of conspiracy was based.
He also asserts that the plaintiff's claims of a conspiracy are "based on conclusory assertions unsupported by any factual details tending to show, or even raise an inference of, an agreement to deprive Plaintiff of her constitutional rights. Rather, the conspiracy claim against Mr. Bellavia consists entirely of vague and general allegations of a conspiracy and relies upon mere connection and speculation."
To prove a conspiracy, O'Brien asserts, the plaintiff must provide details of a time and place when the conspirators reached an agreement to deny the plaintiff of her rights. The suit, he states, fails to present such evidence.
O'Brien is asking the court to strike and seal several paragraphs in the lawsuit as "scandalous and prejudicial" and that the claims in those paragraphs, even if there was any merit to the conspiracy claim, have no relevance to the case.
"Paragraphs 11 through 17 and 19 through 28, however, have no bearing on the single claim against Mr. Bellavia in the Complaint," O'Brien states. "Rather, these highly prejudicial allegations appear to have been included to obtain leverage in this action and to compensate for the absence of any factual allegations to support her conspiracy claims. The truth or falsity of these challenged allegations is immaterial to Plaintiff's claim against Mr. Bellavia. If Plaintiff believes that her claim is somehow enhanced by allegations that these two parties endured a contentious divorce, then Paragraph 18 adequately makes that assertion. The remaining seventeen paragraphs, however, are irrelevant and prejudicial and should be stricken."
A footnote in the motion notes that "Mr. Bellavia is not seeking dismissal of the Plaintiff's third claim for malicious prosecution since it is not directed at him. It should be noted, however, that the Plaintiff's agreement to an Adjournment in Contemplation of Dismissal means that she cannot establish that the underlying prosecution was terminated in her favor, as she is required to do."
When King's case was dismissed in accordance with her plea agreement in the Town of Ridgeway, the court record was sealed, and the court clerk in Ridgeway has denied there even is a criminal case on file in that court.
O'Brien also asserts that a number of claims made against Bellavia in the lawsuit violate the divorce decree's confidentiality and non-disparagement clauses.
The divorce was final on Dec. 28, 2021.
"Plaintiff and her counsel were well aware of the restrictions placed on their ability to engage in such unrestrained and harmful public disclosures," O'Brien states.
The Batavian attempted to contact McMurray today for comment and did not get a response. He did not respond when we sought comment for a prior story on the lawsuit. It should be noted that McMurray has previously indicated he has blocked communication from The Batavian's publisher (see related item).
None of the other defendants in the case have filed responses yet. The federal docket (Pacer account required) indicates all defendants were served prior to Dec. 9.
The filing of the lawsuit against Bellavia and the other defendants coincided with the release of Bellavia's new book, "Remember the Ramrods: An Army Brotherhood in War and Peace."
On Dec. 28, Federal Judge Jeremiah J. McCarthy granted Bellavia's "motion for leave to file under seal," which allows O'Brien to file supporting documents from the divorce proceedings for the court's review while keeping the documents sealed.
McMurray has until Jan. 13 to file a response to the motion to dismiss. A hearing has been scheduled in Federal Court on Jan. 24.
