Zappin v. Dopico

Background

Anthony Zappin, proceeding without a lawyer, brought two related actions against Ernest Collazo and Jorge Dopico, former officials of the Attorney Grievance Committee for the First Judicial Department of the Supreme Court of the State of New York. Zappin had been disbarred in New York and was facing a reciprocal disciplinary proceeding in West Virginia. He alleged that the New York disciplinary process improperly relied on findings from his divorce case, denied him access to exculpatory evidence, and violated his constitutional rights. He also alleged that Dopico participated in conduct connected to the West Virginia proceeding.

Zappin I: Claims Against Collazo

The only remaining claim against Collazo alleged that Collazo violated Zappin’s due process rights by falsely attesting to facts in the petition that initiated the New York disciplinary proceeding. The court granted Collazo’s motion to dismiss because claim preclusion, also called res judicata, barred the claim. The court held that an earlier action involving Zappin and Collazo had been dismissed under Federal Rule of Civil Procedure 41(b) for failure to comply with court orders, and that dismissal operated as an adjudication on the merits. The court further held that the current claim arose from the same events as the earlier action and could have been raised there. The court rejected Zappin’s argument that he lacked a full and fair opportunity to litigate the earlier case, noting that those arguments had already been rejected by the district court and the Court of Appeals.

The opinion separately denied Collazo’s arguments under Rules 12(b)(5) and 12(b)(2), concerning service of process and personal jurisdiction, because the process server’s affidavit was presumed proper and Collazo had received actual notice. Those rulings did not prevent dismissal because the claim was barred by claim preclusion.

Zappin II: Claims Against Dopico

Count I challenged, as facially unconstitutional, the alleged use of collateral estoppel in attorney-discipline proceedings and sought declaratory relief. The court dismissed this count for lack of subject matter jurisdiction. To the extent Zappin was challenging the First Department’s particular decisions disbarring him, the court held that the Rooker-Feldman doctrine barred the federal district court from reviewing those state-court judgments. To the extent he presented a facial challenge to a general policy, the court held that he lacked standing because the alleged injury from the West Virginia proceeding was not fairly traceable to the Attorney Grievance Committee’s alleged policy and would not be redressed by the requested declaration.

Counts II and III concerned alleged failures to produce exculpatory evidence. Count II sought declaratory and injunctive relief, while Count III sought damages under 42 U.S.C. § 1983. The court held that it had subject matter jurisdiction over these claims, rejected the Rooker-Feldman argument, found that Zappin had standing, and held that the exception to state sovereign immunity for prospective relief applied to Count II. Nevertheless, the court dismissed the claims based on claim preclusion because the alleged withholding of evidence had been part of the earlier litigation or could have been raised there. In the alternative, the court dismissed the claims for failure to state a claim, holding that Zappin had not plausibly alleged that Dopico possessed and withheld material evidence or that the alleged withholding deprived him of due process. The court also dismissed any claim based on the Fifth Amendment because that provision applies to the federal government, while the complaint did not allege federal action.

Counts IV and V alleged abuse of process and conspiracy to abuse process under § 1983. The court dismissed both counts for failure to state a claim because § 1983 liability cannot be based on malicious abuse of civil process. The court also held that, to the extent Zappin intended to allege retaliation for exercising First Amendment rights, the complaint offered only conclusory allegations and did not plausibly allege protected conduct, adverse action, or a causal connection.

Disposition

Judge Lorna G. Schofield held that the defects in both complaints could not be cured by amendment. The court therefore dismissed both actions with prejudice, directed the Clerk of Court to enter judgment and close both cases, and certified that any appeal would not be taken in good faith, denying payment-free appeal status.