Zappin v. Cooper

• Court: Court of Appeals for the Second Circuit
• Decided: June 21, 2024
• Docket: 23-165
• Status: Unpublished

Opinion

23-165 Zappin v. Cooper

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 21st day of June, two thousand twenty-four.

PRESENT:

DENNIS JACOBS, PIERRE N. LEVAL, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________

ANTHONY ZAPPIN,

Plaintiff-Appellant,

v. No. 23-165

MATTHEW F. COOPER, LAUREN LIEBHAUSER,

Defendants-Appellees,

KEVIN M. DOYLE, HANNAH YU, JANE DOE,

Defendants. _____________________________________ For Plaintiff-Appellant: Anthony Zappin, pro se, North Myrtle Beach, SC.

For Defendant-Appellee Barbara D. Underwood, Solicitor Matthew F. Cooper: General, Judith N. Vale, Deputy Solicitor General, Andrea W. Trento, Assistant Solicitor General, for Letitia James, Attorney General of the State of New York, New York, NY.

For Defendant-Appellee Steven C. Wu, Chief, Appeals Lauren Liebhauser: Division, Molly Morgan, Assistant District Attorney, for Alvin L. Bragg, Jr., District Attorney of New York County, New York, NY. Appeal from a judgment of the United States District Court for the Southern

District of New York (Edgardo Ramos, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the April 6, 2022 judgment of the district court

is AFFIRMED.

Appellant Anthony Zappin, a disbarred attorney proceeding pro se, appeals

from a judgment of the district court dismissing his claims under 42 U.S.C. § 1983

against the New York Supreme Court justice who presided over his divorce

proceeding, various employees of the New York County District Attorney’s Office

2 (“DANY”), and a staff attorney for the Attorney Grievance Committee for the New

York State Supreme Court, Appellate Division, First Department (“AGC”). We

assume the parties’ familiarity with the underlying facts, procedural history, and

issues on appeal.

The suit giving rise to this appeal is one of more than a dozen state and

federal actions that Zappin has filed in relation to his divorce proceeding, his

subsequent disbarment, and – as particularly relevant here – his arrest and

prosecution by New York authorities. Zappin alleges that Justice Matthew

Cooper and Lauren Liebhauser, then an investigator with DANY, conspired to

initiate a baseless false-reporting prosecution against Zappin in retaliation for the

various complaints and legal actions he had filed against Justice Cooper. By

Zappin’s telling, he reported Justice Cooper to the police in November 2016 after

Justice Cooper approached and spit on him. A short time later – at Justice

Cooper’s urging and based on Liebhauser’s false statements – police arrested

Zappin and charged him with filing a false report. Although Zappin eventually

pleaded guilty to the lesser offense of non-criminal disorderly conduct, he then

filed this action, asserting claims under section 1983 for abuse of process, First

Amendment retaliation, and conspiracy against Justice Cooper and Liebhauser, as

3 well as conspiracy claims against DANY prosecutor Hannah Yu, her unidentified

supervisor Jane Doe, and AGC staff attorney Kevin Doyle.

After the district court sua sponte dismissed Zappin’s claims against Yu, Doe,

and Doyle, Zappin filed an amended complaint asserting claims only against

Liebhauser and Justice Cooper, which each moved to dismiss. While those

motions were pending, Zappin sought leave to file a second amended complaint

against Liebhauser and Justice Cooper, asserting an additional section 1983 claim

for conspiracy to use bail as punishment and various state law claims premised on

the same set of alleged facts. In July 2021, the district court granted the

defendants’ motions to dismiss, holding (among other things) that Zappin’s guilty

plea to a lesser charge established probable cause barring his substantive claims.

The district court later denied Zappin’s motion for leave to file a second amended

complaint and further enjoined Zappin from filing, without leave of the court, any

future actions in the Southern District of New York concerning his divorce

proceeding and related matters. Zappin sought reconsideration of this ruling,

which was denied.

On appeal, Zappin argues that the district court erred in dismissing his

abuse-of-process claim and denying him leave to assert new claims for conspiracy

4 under section 1983 and prima facie tort under state law. He also contends that the

district court improperly denied him discovery, dismissed his claims against

Doyle, Yu and Doe, and issued a filing injunction against him. We address each

of these arguments in turn.

I. Dismissal of the Abuse-Of-Process Claim

Of the four claims alleged in his first amended complaint, Zappin challenges

only the district court’s dismissal of, and denial of leave to re-plead, his abuse-of-

process claim. We review de novo the district court’s grant of a motion to dismiss

and denial of leave to amend for failure of the proposed amendment to state a

claim. See Smith v. Hogan, 794 F.3d 249, 253 (2d Cir. 2015).

“[S]ection 1983 liability may lie for malicious abuse of criminal process,”

since “[i]n the criminal context, malicious abuse of process is by definition a denial

of procedural due process.” Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994) (internal

quotation marks omitted). “[W]e turn to state law to find the elements of the

malicious abuse of process claim” brought under section 1983. Id. Under New

York law, a plaintiff must allege that the defendant “(1) employ[ed] regularly

issued legal process to compel performance or forbearance of some act[,] (2) with

intent to do harm without excuse [or] justification, and (3) in order to obtain a

5 collateral objective that is outside the legitimate ends of the process.” Savino v.

City of New York, 331 F.3d 63, 76 (2d Cir. 2003) (internal quotation marks omitted).

In dismissing Zappin’s abuse-of-process claim and denying him leave to

amend, the district court concluded that Zappin’s guilty plea to disorderly conduct

established probable cause for his arrest and prosecution for falsely filing a police

report. On appeal, Zappin does not dispute that his guilty plea establishes

probable cause; he instead asserts that the district court erred in holding that

probable cause negates his abuse-of-process claim as a matter of law. We have

previously observed that “[t]here has been considerable confusion within our

Circuit regarding whether probable cause is a complete defense to a claim of abuse

of process under New York law.” Mangino v. Inc. Vill. of Patchogue, 808 F.3d 951,

958 (2d Cir. 2015). But whatever confusion may exist on this point, we need not

resolve it today, since we are able to affirm the dismissal of the abuse-of-process

claim on other grounds. See Coulter v. Morgan Stanley & Co. Inc., 753 F.3d 361, 366

(2d Cir. 2014) (explaining that we “may affirm on any basis supported by the

record”).

Put simply, Zappin fails to plausibly state any facts, beyond his conclusory

allegations, that Cooper and Liebhauser pursued his prosecution for any improper

6 purposes. See Savino, 331 F.3d at 77 (explaining that a plaintiff must allege that

defendants “aimed to achieve a collateral purpose beyond or in addition to his

criminal prosecution”). Instead, Zappin repeatedly asserts that Justice Cooper

engineered the criminal prosecution to retaliate against Zappin for the numerous

complaints and legal actions he had filed against Justice Cooper. But allegations

that Justice Cooper “[was] seeking to retaliate against [Zappin] by pursuing his

arrest and prosecution,” without more, are insufficient, Savino, 331 F.3d at 77, and

suggest only that he “acted maliciously” in instigating the prosecution, which is

also insufficient, Curiano v. Suozzi, 63 N.Y.2d 113, 117 (1984). Nor does the

complaint plausibly allege that Justice Cooper misused the prosecution and

related order of protection after their issuance to further any improper objectives.1

See id. (“[T]he gist of the action for abuse of process . . . is the improper use of

process after it is issued.” (internal quotation marks omitted)); see also Hauser v.

Bartow, 273 N.Y. 370, 373 (1937) (“The action is not for the wrongful bringing of an

action or prosecution, but for the improper use, or rather abuse, of process in

1 We need not credit Zappin’s allegations that are plainly contradicted by materials incorporated into the complaint or appropriately judicially noticed, see Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002), or his entirely speculative allegations of misconduct, see Citizens United v. Schneiderman, 882 F.3d 374, 384 (2d Cir. 2018) (“A litigant cannot merely plop ‘upon information and belief’ in front of a conclusory allegation and thereby render it non-conclusory.”).

7 connection therewith.” (internal quotation marks omitted)). Moreover, although

Zappin repeatedly lumps Justice Cooper and Liebhauser together, his specific

allegations – in both his amended complaint and his proposed second amended

complaint – refer only to Justice Cooper’s improper (and legally insufficient)

motive to retaliate against him.

Given his failure to adequately plead anything more than an improper

motive on the part of Justice Cooper, Zappin’s abuse-of-process claim against

Justice Cooper and Liebhauser necessarily fails. We therefore affirm the district

court’s decision to dismiss, and to deny the request for leave to re-plead, that

claim. See Melendez v. Sirius XM Radio, Inc., 50 F.4th 294, 309 (2d Cir. 2022)

(affirming denial of leave where amendment would be futile).

II. Denial of Leave to Amend to Add New Claims

Zappin also contends that the district court improperly denied him leave to

further amend his complaint to assert new claims alleging conspiracy to use bail

as punishment under section 1983 and prima facie tort under New York law. We

review denials of leave to amend for abuse of discretion. Gurary v. Winehouse, 235

F.3d 792, 801 (2d Cir. 2000). Although leave to amend should be given freely

“when justice so requires,” Fed. R. Civ. P. 15(a)(2), a “district court has broad

8 discretion in determining whether” to deny such leave, id., and may do so “for

good reason, including futility, bad faith, undue delay, or undue prejudice to the

opposing party.” TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 505 (2d Cir.

2014) (emphasis added) (internal quotation marks omitted).

We find no abuse of discretion in the district court’s denial of leave to

amend. While Zappin contends that the amendment would not be futile, he does

not address the district court’s additional grounds for denying leave to amend:

his request was brought in bad faith, was unduly delayed, and would cause undue

prejudice to the defendants. Accordingly, he has forfeited any challenge to the

district court’s ruling as to those grounds. Norton v. Sam’s Club, 145 F.3d 114, 117

(2d Cir. 1998) (“Issues not sufficiently argued in the briefs are considered

[forfeited] and normally will not be addressed on appeal.”); see Cohen v. Am.

Airlines, Inc., 13 F.4th 240, 247 (2d Cir. 2021) (concluding plaintiff forfeited

challenge to denial of leave by failing to address district court’s ruling that

amendment was sought in bad faith).

In any event, the district court properly considered the “extensive evidence”

of Zappin’s continuous and vexatious efforts to bring actions against Justice

Cooper and other New York state officials when it denied Zappin leave to amend.

9 Zappin App’x at 268; see also id. at 175–95. At least as far back as 2017, Zappin has

pleaded claims in federal court based on the same underlying facts — the

November 2016 incident — against the same set of defendants. Notwithstanding

this lengthy history, Zappin waited thirteen months after the filing of his initial

complaint in this case, and two months after the defendants’ motions to dismiss

his first amended complaint had been fully briefed, before seeking leave to amend

his complaint a second time to assert new theories of liability based on these same

underlying facts. See, e.g., United States v. Cardroom Int’l, LLC, 726 F. App’x 98, 100

(2d Cir. 2018) (finding no abuse of discretion to deny party leave to amend “to

assert a totally new theory over a year” after its initial filing, where “the facts

underlying its new theory were clearly available to it when it filed its initial

claim”). We therefore see no abuse of discretion in the district court’s decision to

deny Zappin leave to file yet another complaint. See Littlejohn v. Artuz, 271 F.3d

360, 363 (2d Cir. 2001) (explaining that district courts may deny leave “in order to

thwart tactics that are dilatory, unfairly prejudicial or otherwise abusive”).

III. Denial of Discovery

Zappin next argues that the district court abused its discretion in denying

his requests for discovery pending resolution of defendants’ motions to dismiss.

10 But the law is clear that discovery is not warranted where, as here, a plaintiff has

“failed adequately to state a claim.” Main St. Legal Servs., Inc. v. Nat'l Sec. Council,

811 F.3d 542, 567 (2d Cir. 2016); see also S. Cherry St., LLC v. Hennessee Grp. LLC, 573

F.3d 98, 114 (2d Cir. 2009) (concluding that a plaintiff’s “speculation” that

discovery would reveal facts to support the complaint’s claims “underscores,

rather than cures, the deficiency in the [c]omplaint”). As explained above,

Zappin has not plausibly alleged an abuse-of-process claim, and he does not

otherwise challenge the district court’s dismissal of his first amended complaint.

The district court therefore did not err in refusing his requests to conduct

discovery.

IV. Dismissal of Claims Against Doyle, Yu, and Doe

Zappin also contends that the district court erred in dismissing sua sponte

his conspiracy claims against Doyle, Yu, and Doe in his original complaint.

Again, we disagree.

First, because Zappin sought leave to proceed in forma pauperis, the district

court properly reviewed the complaint sua sponte for any claims that were

frivolous, failed to state a claim, or sought monetary relief from a defendant with

immunity. 28 U.S.C. § 1915(e)(2)(B); see Fitzgerald v. First E. Seventh St. Tenants

11 Corp., 221 F.3d 362, 363–64 (2d Cir. 2000). Second, the district court did not err in

concluding that res judicata barred Zappin’s claims against Doyle – claims he had,

or could have, asserted in a prior suit against Doyle that was adjudicated on the

merits (and which we affirmed on appeal). See Zappin v. Doyle, 756 F. App’x 110,

112 (2d Cir. 2019) (affirming Rule 41(b) dismissal with prejudice); see also Monahan

v. N.Y.C. Dep't of Corr., 214 F.3d 275, 285 (2d Cir. 2000).

Finally, Zappin contends that Yu and Doe were not entitled to prosecutorial

immunity. But Yu and Doe’s alleged conduct here – making statements at

Zappin’s arraignment, arguing for bail, and requesting a temporary order of

protection – was “intimately associated with the judicial phase of the criminal

process” and thus entitled to absolute immunity. See Giraldo v. Kessler, 694 F.3d

161, 165 (2d Cir. 2012) (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). And

even if some of their alleged acts could be said to be “investigative” such that

absolute immunity does not apply, id. at 166, the original complaint offered only

conclusory and vague allegations about any agreement Yu and Doe had among

themselves or others to deprive Zappin of his constitutional rights. Accordingly,

Zappin again failed to state a claim for relief. See Ciambriello v. County of Nassau,

292 F.3d 307, 324–25 (2d Cir. 2002); see also Coulter, 753 F.3d at 366.

12 V. Issuance of the Filing Injunction

Although Zappin also challenges the district court’s entry of a filing

injunction against him, he forfeited that aspect of his appeal by offering no

argument other than an incorporation by reference of arguments raised in the

district court. See Lederman v. N.Y.C. Dep’t of Parks & Recreation, 731 F.3d 199, 203

n.1 (2d Cir. 2013) (“Appellants do not preserve questions for appellate review by

merely incorporating an argument made to the district court by reference in their

brief.” (internal quotation marks omitted)).

But even if we were to consider those arguments on the merits, we cannot

say that the district court abused its discretion when it enjoined Zappin from

“instituting further vexatious, harassing[,] or repetitive proceedings arising out

of” his divorce proceedings and related disciplinary and criminal matters. See

Safir v. U.S. Lines, Inc., 792 F.2d 19, 25 (2d Cir. 1986); see also Eliahu v. Jewish Agency

for Isr., 919 F.3d 709, 713 (2d Cir. 2019) (reviewing a filing injunction for abuse of

discretion). As the record demonstrates: (1) Zappin was on notice of Justice

Cooper’s motion for a filing injunction and had the opportunity to, and in fact did,

respond to that motion, see Moates v. Barkley, 147 F.3d 207, 208 (2d Cir. 1998); (2)

the district court considered the five factors set out in Safir and reasonably

13 concluded that each supported the imposition of an injunction, see Zappin App’x

at 186–95; and (3) the injunction is appropriately tailored to prevent Zappin only

from filing future, related actions without the district court’s permission, id. at 195.

We have considered Zappin’s remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court