Zherka v. Bogdanos ( 2011 )

10-223-cv
Zherka v. Bogdanos et al.
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 A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 2nd day of March, two thousand eleven.
5
6 PRESENT: ROSEMARY S. POOLER,
7 RICHARD C. WESLEY,
8 DENNY CHIN,
9 Circuit Judges.
10
11
12
13 SELIM ZHERKA,
14
15 Plaintiff-Counter-Defendant-Appellant,
16
17 -v.- 10-223-cv
18
19 MATTHEW F. BOGDANOS, INDIVIDUALLY,
20
21 Defendant-Appellee,
22
23 MICHAEL R. EDELMAN, a/k/a THE CONSULTANT, INDIVIDUALLY,
24
25 Defendant-Counter-Claimant-Appellee,
26
27 PHILIP AMICONE, INDIVIDUALLY AND IN HIS CAPACITY AS MAYOR OF
28 THE CITY OF YONKERS, NEW YORK,
29
30 Defendant-Third-Party Plaintiff-Counter-
31 Claimant-Counter-Defendant-Appellee,
32
33
1 and
2
3 DAVID DOE, a/k/a/ ETHAN EDWARDS, INDIVIDUALLY, EDMUND ROE,
4 a/k/a MOB BUSTER, INDIVIDUALLY, JOHN POE, INDIVIDUALLY,
5 WILLIAM ROE, INDIVIDUALLY, JANET DOE,
6 Defendants-Appellees.*
7
8
9 FOR APPELLANT: RORY BELLANTONI (Jonathan Lovett, on
10 the brief), Lovett & Bellantoni,
11 LLP, Hawthorne, NY.
12
13 FOR APPELLEE BOGDANOS: PATRICIA J. BAILEY, Assistant
14 District Attorney, for Cyrus R.
15 Vance, Jr., District Attorney for
16 New York County, New York, NY.
17
18 FOR APPELLEE EDELMAN: PATRICK W. BROPHY, McMahon, Martine
19 & Gallagher, LLP, Brooklyn, NY.
20
21 FOR APPELLEE AMICONE: BRIAN T. BELOWICH, DelBello
22 Donnellan Weingarten Wise &
23 Wiederkehr, LLP, White Plains, NY.
24
25 Appeal from the United States District Court for the
26 Southern District of New York (Seibel, J.).
27
28 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
29 AND DECREED that the judgment of the district court be
30 AFFIRMED.
31 Appellant appeals from a judgment of the United States
32 District Court for the Southern District of New York
33 (Seibel, J.), which dismissed with prejudice his claims
34 against Appellees. We assume the parties’ familiarity with
*
The Clerk of the Court is directed to amend the official caption in
accordance with this order.
2
1 the underlying facts, the procedural history, and the issues
2 presented for review.
3 Appellant is a businessman whose holdings include the
4 Westchester Guardian, a weekly newspaper. During Appellee
5 Amicone’s re-election campaign for Mayor of the City of
6 Yonkers in the fall of 2007, the Guardian published articles
7 criticizing the Mayor and his administration.
8 Appellant alleges that, to retaliate against this
9 exercise of his First Amendment rights, Defendants-Appellees
10 arranged to have Appellee Bogdanos, an Assistant District
11 Attorney for New York County, initiate a investigation
12 against him. Appellant brought suit in the Southern
13 District pursuant to 42 U.S.C. §§ 1983, 1985(2), alleging a
14 civil conspiracy to violate his rights.
15 In his Amended Complaint, Appellant particularized his
16 allegations that the investigation was retaliatory and
17 pretextual. Those allegations included a reference to a
18 Notice of Interception issued to Appellant by Appellee
19 Bogdanos in November 2008, informing him of eavesdropping
20 warrants placed on several phone numbers. These phone
21 numbers belonged to known associates of Appellant, with whom
22 he may have had communications during the relevant time
23 period.
3
1 Judge Seibel appropriately noted that this Notice shows
2 the investigation involving Appellant was well underway long
3 before the protected speech Appellant claims provoked the
4 retaliation. Finding that temporal proximity was the only
5 non-conclusory allegation of retaliation pled by Appellant,
6 and that the Notice of Interception contradicted that
7 allegation, the judge dismissed the complaint with
8 prejudice.
9 We review the grant of a motion to dismiss de novo,
10 accepting all factual claims in the complaint as true, and
11 drawing all reasonable inferences in the plaintiff’s favor.
12 See, e.g., Famous Horse Inc. v. 5th Ave. Photo Inc., 624
13 F.3d 106, 108 (2d Cir. 2010). Applying this standard of
14 review, we reach the same conclusion as the district court:
15 the complaint is factually insufficient to state a claim for
16 a civil conspiracy. Indeed, it is self-defeating.
17 Accordingly, we affirm the district court’s dismissal of the
18 claim against all Defendants-Appellees named here.
19 Appellant also contests the dismissal of his civil
20 conspiracy claim, which alleged a conspiracy to intimidate
21 witnesses under 42 U.S.C. § 1985(2). We have considered his
22 contentions on this issue, and find them without merit.
23
4
1 For the foregoing reasons, the judgment of the district
2 court is hereby AFFIRMED.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
5