16-4219
Kanciper v. Lato

                           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 5th day of December, two thousand seventeen.

Present:
            ROBERT A. KATZMANN,
                  Chief Judge,
            JOHN M. WALKER, JR.,
            GUIDO CALABRESI,
                  Circuit Judges.
_____________________________________

MONA KANCIPER,

        Plaintiff-Appellant,

                   v.                                         No. 16-4219

LEONARD LATO, Individually, THOMAS J.
SPOTA, III, Individually, and in his official
capacity,

    Defendants-Appellees.
_____________________________________

For Plaintiff-Appellant:                        ALAN EDWARD SASH (Steven J. Hyman, on
                                                the brief), McLaughlin & Stern, LLP, New
                                                York, NY.

For Defendant-Appellee Leonard Lato:            JOSEPH R. CONWAY, LaRusso, Conway &
                                                Bartling LLP, Mineola, NY.


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For Defendant-Appellee Thomas J. Spota, III:        BRIAN C. MITCHELL, Assistant County
                                                    Attorney,    Suffolk    County    District
                                                    Attorney’s Office, Hauppauge, NY.

         Appeal from a judgment of the United States District Court for the Eastern District of

New York (Feuerstein, J.).

         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

         Plaintiff-appellant Mona Kanciper appeals from a judgment of the district court

(Feuerstein, J.) granting summary judgment to defendants-appellees Leonard Lato and Thomas J.

Spota, III on all of her claims. We assume the parties’ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal. We affirm the judgment of the district

court.

         The following facts are undisputed. Kanciper owns and operates a horse farm on Long

Island (the “Farm”). In late 2009, the Suffolk County Society for the Prevention of Cruelty to

Animals (“SPCA”) received complaints alleging that Kanciper was abusing animals on the Farm.

Although an SPCA officer saw no signs of abuse when he visited the Farm in December 2009,

he thereafter collected written statements from several complainants alleging multiple instances

of abuse between November 2008 and February 2010, including incidents in which Kanciper

euthanized horses and dogs, in one case in front of a child, and buried those animals on the Farm.

         In late February 2010, the SPCA contacted the Case Advisory Bureau (“CAB”) within

the Suffolk County District Attorney’s Office (the “DA’s Office”) seeking a warrant to search

the Farm, but the CAB twice declined the SPCA’s request. Shortly thereafter, the SPCA

approached Lato, the bureau chief of the Insurance Crimes Bureau in the DA’s Office, and again

sought a warrant. Lato initially indicated that more recent information was required to obtain a



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warrant. The SPCA collected an additional written statement and presented it to Lato, who then

drafted the materials for a warrant to search the Farm. On March 18, 2010, a magistrate issued a

warrant to search the Farm for evidence of cruelty to animals, in violation of New York

Agriculture and Markets Law §§ 353 and 353-a, and endangering the welfare of a child, in

violation of New York Penal Law § 260.10(1). SPCA officers executed the warrant on March 20,

2010. Lato was present at the Farm during the search, in part because he personally delivered the

warrant application needed to obtain a “piggyback” warrant to search Kanciper’s home.

According to Lato, Spota, then the Suffolk County district attorney, became aware of the

investigation of Kanciper at the time of, or shortly after, the search of the Farm.

       A grand jury indicted Kanciper for three counts of animal cruelty and two counts of

endangering a minor. Following a bench trial, Kanciper was convicted of one count of

endangering a minor, for “inject[ing] a dog with a tranquilizer in the presence of a child.” People

v. Kanciper, 954 N.Y.S.2d 146, 147 (N.Y. App. Div. 2012). However, the New York Supreme

Court, Appellate Division reversed the judgment of conviction and dismissed the indictment,

concluding that “the evidence supporting the defendant’s conviction was not legally sufficient.”

Id.

       After filing suit against members of the SPCA, Kanciper initiated this action, asserting

claims against Lato and Spota under 42 U.S.C. § 1983, as well as state law claims for malicious

prosecution and abuse of process. In an order and judgment dated December 1, 2016, the district

court granted summary judgment to Lato and Spota and dismissed all of Kanciper’s claims. This

appeal followed.

       “We review de novo a district court’s grant of summary judgment, ‘construing the

evidence in the light most favorable to the non-moving party and drawing all reasonable


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inferences in its favor.’” Mitchell v. City of New York, 841 F.3d 72, 77 (2d Cir. 2016) (quoting

Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir. 2011)). “To defeat summary judgment[,]

non-moving parties must do more than simply show that there is some metaphysical doubt as to

the material facts and they may not rely on conclusory allegations or unsubstantiated

speculation.” Bermudez v. City of New York, 790 F.3d 368, 373–74 (2d Cir. 2015) (internal

quotation marks omitted).

       To prevail on a claim under § 1983, a plaintiff must prove that the conduct at issue was

“committed by a person acting under color of state law” and “deprived [the plaintiff] of rights,

privileges, or immunities secured by the Constitution or laws of the United States.” Cornejo v.

Bell, 592 F.3d 121, 127 (2d Cir. 2010) (quoting Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir.

1994)). Kanciper argues that there is a genuine dispute of material fact as to whether Lato, by

preparing the warrant materials and by participating in the search of the Farm, deprived her of

her rights under the Fourth Amendment. We disagree.

       First, we reject Kanciper’s argument that Lato orchestrated the search of the Farm

without probable cause. We have noted that a “magistrate’s finding of probable cause is entitled

to substantial deference,” United States v. Travisano, 724 F.2d 341, 345 (2d Cir. 1983), and that,

“[w]ith respect to a challenge to the probable-cause determination, the duty of a court reviewing

the validity of a search warrant is ‘simply to ensure that the magistrate had a substantial basis for

concluding’ that probable cause existed.” United States v. Rosa, 11 F.3d 315, 326 (2d Cir. 1993)

(quoting Illinois v. Gates, 462 U.S. 213, 238–39 (1983)). We conclude that the witness

statements compiled by the SPCA provided such a basis, and Kanciper does not rebut this

conclusion. Rather, she argues that the magistrate’s finding of probable cause resulted from

material omissions in the warrant materials that Lato prepared. However, in order to establish


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that a warrant was issued on the basis of faulty information, one must show that the faulty

information was “necessary to the finding of probable cause.” Id. at 326. Kanciper fails to meet

this requirement because the purported omissions that she identifies are either unsupported by

the record or immaterial to a determination of whether there was probable cause to search the

Farm.

        Second, we reject Kanciper’s argument that Lato conducted the search in a manner that

was unreasonable under the Fourth Amendment because none of the actions that she identifies

suffices to establish a constitutional violation. Evidence bearing on Lato’s state of mind, such as

an attempt to conceal his conduct, is irrelevant to Fourth Amendment reasonableness where, as

here, the search is objectively reasonable. See Ashcroft v. al-Kidd, 563 U.S. 731, 736 (2011). So

too is evidence that the search of the Farm violated the DA’s Office’s policies or involved the

SPCA beyond its prescribed role. See United States v. Wilson, 699 F.3d 235, 243 (2d Cir. 2012)

(“[T]he Fourth Amendment does not generally incorporate local statutory or regulatory

restrictions on seizures and . . . the violation of such restrictions will not generally affect the

constitutionality of a seizure supported by probable cause.”). Further, Kanciper cannot show that

Lato’s alleged participation in the search amounted to a constitutional violation because she does

not dispute that Lato “directly aided in the execution of the warrant,” which a third party is

permitted to do during a search. Wilson v. Layne, 526 U.S. 603, 611 (1999).

        Accordingly, because Kanciper can show neither that the search of the Farm was

conducted without probable cause nor that Lato caused the search to be conducted in an

unreasonable manner, Kanciper has not established evidence of a Fourth Amendment violation

arising out of the search. Her § 1983 claim against Lato was therefore properly dismissed. The

failure to establish an underlying deprivation of her rights is also fatal to her § 1983 claim


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against Spota, which is based on a theory of supervisor liability. See Blyden v. Mancusi, 186 F.3d

252, 265 (2d Cir. 1999) (“[F]or a supervisor to be liable under Section 1983, there must have

been an underlying constitutional deprivation.”).

       To prevail on her claim for malicious prosecution under New York law, Kanciper must

establish, among other things, “that there was no probable cause for the proceeding.” Mitchell,

841 F.3d at 79 (quoting Kinzer v. Jackson, 316 F.3d 139, 143 (2d Cir. 2003)). But “[w]here, as

here, a grand jury indicted the plaintiff on the relevant criminal charge, New York law creates a

presumption of probable cause that can only be overcome by evidence that the indictment ‘was

the product of fraud, perjury, the suppression of evidence by the police, or other police conduct

undertaken in bad faith.’” Bermudez, 790 F.3d at 377 (quoting Green v. Montgomery, 219 F.3d

52, 60 (2d Cir. 2000)). “[I]t is the plaintiff who bears the burden of proof in rebutting the

presumption of probable cause that arises from the indictment.” Savino v. City of New York, 331

F.3d 63, 73 (2d Cir. 2003).

       Kanciper fails to carry this burden because she puts forth no evidence showing that the

grand jury that indicted her was presented with, much less relied upon, evidence that was

wrongfully obtained, misrepresented, or otherwise improper. See Rothstein v. Carriere, 373 F.3d

275, 284 (2d Cir. 2004) (“The burden of rebutting the presumption of probable cause requires the

plaintiff to establish what occurred in the grand jury, and to further establish that those

circumstances warrant a finding of misconduct sufficient to erode the ‘premise that the Grand

Jury acts judicially.’” (quoting Colon v. City of New York, 455 N.E.2d 1248, 1250 (N.Y. 1983))).

Her contention that the subsequent reversal of her conviction on appeal for insufficient evidence

should rebut the presumption is unavailing, since a failure of proof beyond a reasonable doubt at

trial does not reflect the insufficiency of evidence presented in support of the indictment.


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Moreover, that contention is unsupported by New York law. Cf. Colon, 455 N.E.2d at 1251

(concluding that a district attorney’s motion to dismiss an indictment, which amounted to “an

admission that the People lacked evidence to establish a prima facie case of guilt,” did not rebut

the presumption of probable cause). Thus, the district court properly dismissed the malicious

prosecution claim against Lato and Spota.

         The district court properly dismissed Kanciper’s abuse of process claim against Lato as

well. Under New York law, an “abuse of process claim lies against a defendant who (1) employs

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 collateral objective that is

outside the legitimate ends of the process.” Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994). We

conclude that Kanciper failed to put forth evidence establishing a “collateral objective” for her

prosecution. The mere fact that Lato was friends with some SPCA members, without more, does

not demonstrate that Lato pursued the investigation against Kanciper to further those friendships.

Moreover, Kanciper has not presented evidence “sufficient to support an inference that the

process was being perverted” in order to achieve an end besides her criminal conviction. Bd. of

Ed. v. Farmingdale Classroom Teachers Ass’n, Inc., Local 1889, 343 N.E.2d 278, 283 (N.Y.

1975).

         We have considered all of the parties’ contentions on appeal and have found in them no

basis for reversal. For the foregoing reasons, the judgment of the district court is AFFIRMED.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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