    16-3315-cv
    Schorr v. DoPico


                            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 ASUMMARY 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 6th day of April, two thousand seventeen.

    PRESENT:
                PETER W. HALL,
                GERARD E. LYNCH,
                CHRISTOPHER F. DRONEY,
                      Circuit Judges.
    _____________________________________

    David Evan Schorr,

                             Plaintiff-Appellant,
                       v.                                                 16-3315-cv

    Jorge DoPico, in his official capacity as Chief
    Counsel of the First Judicial Department
    Disciplinary Committee in New York State,
    Ernest J. Collazo, in his official capacity as
    Chairman of the First Judicial Department
    Disciplinary Committee in New York State,

                             Defendants-Appellees,

    A. Gail Prudenti, in her official capacity as
    Chief Administrative Judge of the Courts of




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New York State, First Judicial Department
Disciplinary Committee in New York State,


                  Defendants.*1
_____________________________________

FOR PLAINTIFF-APPELLANT:                                      David Schorr, Esq., pro se, New York, NY.

FOR DEFENDANTS-APPELLEES:                                     Mark H. Shawhan, Assistant Solicitor General,
                                                              New York State Office of the Attorney General,
                                                              New York, NY.

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

New York (Sweet, J.).


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

DECREED that the judgment of the district court is AFFIRMED and Appellant’s motion to

supplement the record is DENIED.

         Appellant David Schorr, an attorney proceeding pro se, sued two officials of the New York

State Appellate Division, First Judicial Department Attorney Disciplinary Committee

(“committee”) under 42 U.S.C. § 1983, alleging retaliation under the First and Fifth Amendments.

Schorr alleged that the committee unlawfully re-opened its investigation of Schorr’s misconduct

after he exercised his right to reject a private admonition and request a formal hearing. The

district court dismissed the complaint under the Younger abstention doctrine and for failure to state

a claim. Schorr appeals the judgment of the district court and moves to supplement the record on

appeal with an email from opposing trial counsel explaining the circumstances of the district

court’s denial of Schorr’s motion for a preliminary injunction based on Schorr’s default. We



* The Clerk of the Court is respectfully directed to amend the caption as set forth above.

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assume the parties= familiarity with the underlying facts, the procedural history of the case, and the

issues on appeal.

       We review de novo dismissals based on Younger abstention. Diamond “D” Constr. Corp.

v. McGowan, 282 F.3d 191, 197 (2d Cir. 2002). “In Younger v. Harris, the Supreme Court held

that a federal court, except in cases where an injunction is necessary to prevent immediate and

irreparable injury, should not enjoin a criminal proceeding in a state court.” Liberty Mut. Ins. Co.

v. Hurlbut, 585 F.3d 639, 646 (2d Cir. 2009). A previous three-part test held that a federal court

must abstain from hearing a case when “1) there is an ongoing state proceeding; 2) an important

state interest is implicated; and 3) the plaintiff has an avenue open for review of constitutional

claims in the state court.”       Id. at 647 (internal quotation marks omitted).           In Sprint

Communications, Inc. v. Jacobs, however, the Supreme Court cautioned that those three

conditions “were not dispositive” because relying on them alone “would extend Younger to

virtually all parallel state and federal proceedings . . . where a party could identify a plausibly

important state interest.” Sprint, 134 S. Ct. 584, 593 (2013). Accordingly, the Supreme Court

clarified that courts should abstain under Younger only in three “exceptional circumstances” that

“define Younger’s scope”:       (1) pending state criminal proceedings; (2) civil enforcement

proceedings that are “akin to criminal prosecutions”; and (3) civil proceedings that “implicate a

State’s interest in enforcing the orders and judgments of its courts.” See id. at 588, 591. The

Court specifically enumerated state-initiated attorney disciplinary proceedings for violations of

state ethics rules as an example of civil enforcement proceedings. See id. at 592 (citing Middlesex

Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 433–34 (1982)). While “it remains

unclear how much weight” we should afford our previous three-part test after Sprint, district courts


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should not rely entirely on the older test. See Falco v. Justices of the Matrimonial Parts of

Supreme Court of Suffolk Cty., 805 F.3d 425, 427 (2d Cir. 2015).

       Although the district court erred when it relied only on the older three-part test for Younger

abstention, it nonetheless properly dismissed Schorr’s claims under the doctrine. The focus of

Schorr’s claims is an ongoing state attorney disciplinary proceeding, which falls squarely within

Younger abstention. See id. (“On de novo review, however, we independently conclude that [the]

case presents circumstances that qualify as ‘exceptional’ under Sprint and that Younger abstention

was therefore warranted.”); see also Sprint, 134 S. Ct. at 592. Schorr’s argument that the

proceeding is not ongoing because the committee has not yet brought charges in a formal hearing

is without merit. The disciplinary proceedings were pending at the time that Schorr filed the

complaint in this action and they have continued since, including the initial scheduling of Schorr’s

deposition.

       The district court also correctly determined that the bad faith exception to the Younger

doctrine does not apply here. A court may refuse to abstain when “a prosecution or proceeding

has been brought to retaliate for or to deter constitutionally protected conduct, or where a

prosecution or proceeding is otherwise brought in bad faith or for the purpose to harass.” Cullen

v. Fliegner, 18 F.3d 96, 103–04 (2d Cir. 1994). But “[a] state proceeding that is legitimate in its

purposes, but unconstitutional in its execution—even when the violations of constitutional rights

are egregious—will not warrant the application of the bad faith exception.” Diamond “D”, 282

F.3d at 199. The plaintiff must therefore show subjective bad faith on the part of the defendants.

Id. at 199–200. The plaintiff must demonstrate that the party bringing the state action has “no




                                                 4
reasonable expectation of obtaining a favorable outcome.” Id. at 199 (quoting Cullen, 18 F.3d at

103).

        Schorr argues that he adequately pleaded bad faith by alleging that the committee

re-opened its investigation, in violation of its own rules, in order to retaliate against him for

requesting a formal hearing. Yet, this is not sufficient to show subjective bad faith on the part of

the defendants. While Schorr is correct that the next steps after his request for a hearing were to

present formal charges in front of a referee, see N.Y. Comp. Codes R. & Regs. tit. 22, §§ 605.6(e),

605.8 (2013), nothing in the regulations specifically prohibits the re-opening of an investigation.

Even assuming that the committee’s actions were improper, Schorr still failed plausibly to allege

any facts showing bad faith. He asserted only that the re-opening of the investigation was

unlawful and done in response to his request for a hearing. Even assuming arguendo that the

re-opening was improper, the complaint does not sufficiently allege bad faith because it does not

plausibly plead that the reopening was aimed at harassing Schorr. See Diamond “D”, 282 F.3d at

199–200. Nor is it a sign of bad faith that a staff attorney notified Schorr to comply with a

subpoena compelling him to appear for an examination under oath or face suspension. Failure to

comply with a committee subpoena warrants suspension. Matter of Horowitz, 14 A.D.3d 191,

193 (1st Dep’t 2005). Accordingly, the staff attorney’s matter-of-fact statement concerning the

repercussions of failing to comply with the committee’s subpoena did not rise to the level of

animus required to show bad faith.

        In any event, Schorr cannot show that the committee would be unlikely to succeed in

proving its charges. The committee found that Schorr violated N.Y. Comp. Codes R. & Regs. tit.

22, § 29.1, which prohibits the unauthorized audio recording of court proceedings, and thereby


                                                 5
violated Rules of Professional Conduct 3.3(f)(3) and 8.4(d), which prohibit violations of tribunal

rules and conduct prejudicial to the administration of justice, respectively. Critically, Schorr

admitted making an unauthorized recording of a court proceeding with his cell phone.

       Finally, Schorr’s argument that he was permitted to carry his phone in the courthouse

misconstrues the meaning of the committee’s admonition. It was not Schorr’s possession of a cell

phone that violated Rule 8.4(d), but his use of the device to record a hearing surreptitiously.

Despite Schorr’s arguments to the contrary, the committee considered the circumstances

surrounding the recording and mitigated his punishment to a private admonition. Since the

committee already considered mitigating circumstances and imposed discipline, it would likely

still impose discipline after a full hearing. The district court properly determined, therefore, that

the bad faith exception did not apply.

       Schorr also moves to supplement the record on appeal with an email explaining the

circumstances of the district court’s denial of his motion for a preliminary injunction to enjoin a

deposition. Schorr, however, does not challenge on appeal the district court’s order denying the

preliminary injunction, and he has thus abandoned the issue. See LoSacco v. City of Middletown,

71 F.3d 88, 92–93 (2d Cir. 1995). Accordingly, his motion to supplement the record with regard

to the denial of his request for a preliminary injunction is denied as moot: the issue is not before us

on appeal.

       We have considered all of Schorr’s remaining arguments and find them to be without

merit. Accordingly, we AFFIRM the judgment of the district court and DENY Schorr’s motion

to supplement the record.

                                               FOR THE COURT:
                                               Catherine O=Hagan Wolfe, Clerk

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