Shapiro v. Goldman

696 F. App'x 532

• Court: Court of Appeals for the Second Circuit
• Decided: August 24, 2017
• Docket: 16-3097-cv
• Status: Unpublished

Opinion

SUMMARY ORDER

Plaintiff Mark Shapiro appeals from the dismissal of his complaint alleging various constitutional and tort claims pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680, against federal prosecutors and Federal Bureau of Investigation (“FBI”) agents (“Government Defendants”), as well as the National Insurance Crime Bureau (“NICB”) and several of its employees and board members (together with the NICB, “Private Defendants”) for their role in securing his indictment incident to a wide-ranging insurance-fraud investigation.

At oral argument on August 17, 2017, Shapiro withdrew all but three of his Bivens claims. Shapiro v. Goldman, No. 16-3097, U.S. Court of Appeals for the Second Circuit (Aug. 17, 2017), http://www.ca2. uscourts.gov/oraLarguments.html. Those remaining are for: (1) malicious prosecution, (2) inducement of false testimony, and (3) defamatory statements made by the government, known as a “stigma plus” claim. Also remaining on appeal are Shapiro’s FTCA claims. We review de novo the dismissal of a complaint pursuant to Fed. R. Civ. P. 12(b)(6), accepting all factual allegations as true and drawing all reasonable inferences in Shapiro’s favor. See Biro v. Condé Nast, 807 F.3d 541, 544 (2d Cir. 2015). In so doing, we assume the parties’ familiarity with the facts and record of prior proceedings and issues on appeal.

Fed. R. Civ. P. 8(a)(l)-(2) requires a complaint to contain a “short and plain statement” setting forth grounds for the court’s jurisdiction and showing that the plaintiff is entitled, to relief. Despite three opportunities to plead, Shapiro repeatedly violated this standard, filing a prolix 115-page Second Amended Complaint. That, by itself, warrants affirmance of the district court’s dismissal. See Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (‘When a complaint does not comply with the requirement that it be short and plain, the court has the power, on its own initiative or in response to a motion by the defendant, ... to dismiss the complaint.”).

In any event,' upon independent review of the record, and for the reasons stated in the thorough opinion of the district court, see Shapiro v. Goldman, No. 14 Civ. 10119 (NRB), 2016 WL 4371741 (S.D.N.Y. Aug. 15, 2016), we conclude that dismissal was warranted for failure to plead facts that plausibly support his claims. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (“To survive a mo tion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”) (internal quotation marks omitted); TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 505 (2d Cir. 2014) (affirming district court’s dismissal of complaint for failure to plausibly plead claims). Insofar as the Private Defendants request that we issue an order to show cause as to why Shapiro or his counsel should not be sanctioned for bringing a frivolous appeal, that application is denied.

Accordingly, the judgment of the district court is AFFIRMED.