09-3774-cv

Tylicki v. Schwartz

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 24 day of November, two thousand ten. th

5

6 PRESENT:

7 DENNIS JACOBS,

8 Chief Judge,

9 AMALYA L. KEARSE,

10 CHESTER J. STRAUB,

11 Circuit Judges.

12

13 - - - - - - - - - - - - - - - - - - - -X

14 Raymond Tylicki,

15

16 Plaintiff-Appellant, 

17

18 -v.- 09-3774-cv

19

20 John R. Schwartz,

21

22 Defendant-Appellee.

23

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25 

26 FOR APPELLANT: Raymond Tylicki, pro se, Buffalo,

27 New York.
2

1

2 FOR APPELLEE: Andrew M. Cuomo, Attorney General of

3 the State of New York, Barbara D.

4 Underwood, Solicitor General, Nancy

5 A. Spiegel, Senior Assistant

6 Solicitor General, Frank Brady,

7 Assistant Solicitor General, Albany,

8 New York.

9

10 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED,

11 AND DECREED that the district court judgment is AFFIRMED. 

12

13 Plaintiff-Appellant Raymond Tylicki, pro se, appeals

14 from the August 20, 2009 judgment of the United States

15 District Court for the Northern District of New York

16 (McAvoy, J.) dismissing his complaint for failure to state a

17 claim. We assume the parties’ familiarity with the

18 underlying facts and the procedural history of the case.

19

20 This Court reviews the dismissal of a complaint

21 pursuant to Fed. R. Civ. P. 12(b)(6) de novo, construing the

22 complaint liberally and accepting all factual allegations in

23 the complaint as true. See Chambers v. Time Warner, Inc.,

24 282 F.3d 147, 152 (2d Cir. 2002). The complaint must plead

25 “enough facts to state a claim to relief that is plausible

26 on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

27 (2007). On appeal, Tylicki raises only his First and Ninth

28 Amendment claims, and he has therefore abandoned the other

29 claims raised in his complaint. See LoSacco v. City of

30 Middletown, 71 F.3d 88, 92 (2d Cir. 1995).

31

32 As the district court properly found, Tylicki’s

33 contention that Schwartz violated his right to privacy by

34 creating police records containing false information, and

35 distributing this false information, fails to allege a

36 violation of a constitutional right. The Supreme Court has

37 recognized that “a right of personal privacy, or a guarantee

38 of certain areas or zones of privacy, does exist under the

39 Constitution.” Roe v. Wade, 410 U.S. 113, 152 (1973). 

40 However, aside from Fourth Amendment issues, the right to

41 privacy has been found to encompass “matters relating to

42 marriage, procreation, contraception, family relationships,

43 and child rearing and education.” Paul v. Davis, 424 U.S.

44 693, 713 (1976). Tylicki’s claim does not fit within the
3

1 privacy interests given constitutional protection. See id.

2 (rejecting plaintiff’s claim that the Constitution

3 prohibited disclosure of his arrest). 

4

5 Tylicki also claims that Schwartz retaliated against

6 him for exercising his First Amendment rights. A private

7 citizen alleging retaliation must demonstrate that: “(1) he

8 has an interest protected by the First Amendment; (2)

9 defendants’ actions were motivated or substantially caused

10 by his exercise of that right; and (3) defendants’ actions

11 effectively chilled the exercise of his First Amendment

12 right.” Curley v. Village of Suffern, 268 F.3d 65, 73 (2d

13 Cir. 2001). The complaint failed to allege that Schwartz’s

14 actions were motivated by Tylicki’s exercise of his First

15 Amendment rights. His allegation that Schwartz began

16 investigating him only after he publicly criticized the

17 State University of New York at Binghamton is not properly

18 before this Court as it was not raised in the district

19 court. See Westinghouse Credit Corp. v. D’Urso, 371 F.3d

20 96, 103 (2d Cir. 2004) (“In general we refrain from passing

21 on issues not raised below.”).

22

23 In any event, Tylicki has alleged no facts indicating

24 that Schwartz’s actions have “effectively chilled” the

25 exercise of his First Amendment right. He has not contended

26 that, as a result of Schwartz’s actions, he stopped pursuing

27 his other legal claims against the university, refrained

28 from going to the university, or that Schwartz’s actions

29 have inhibited his speech in any way. See Curley, 268 F.3d

30 at 73 (“Where a party can show no change in his behavior, he

31 has quite plainly shown no chilling of his First Amendment

32 right to free speech.”); see also Colombo v. O’Connell, 310

33 F.3d 115, 117 (2d Cir. 2002) (noting that plaintiff must

34 “show that the defendant’s actions had some actual,

35 non-speculative chilling effect”). 

36

37 Finally, although generally a district court should not

38 dismiss a pro se complaint without granting the plaintiff

39 leave to amend, dismissal is appropriate where leave to

40 amend would be futile. See Cuoco v. Moritsugu, 222 F.3d 99,

41 112 (2d Cir. 2000). Here, amendment would likely be futile

42 as it does not appear that Tylicki has any viable federal

43 claims that could be brought if permitted to amend the

44 complaint. See id. (finding leave to replead would be
4

1 futile where the complaint, even when read liberally, did

2 not “suggest[] that the plaintiff has a claim that she has

3 inadequately or inartfully pleaded and that she should

4 therefore be given a chance to reframe”).

5 

6 We have considered all of the appellant’s arguments and

7 find them to be without merit. Accordingly, the judgment of

8 the district court is AFFIRMED.

9

10

11 FOR THE COURT:

12 CATHERINE O’HAGAN WOLFE, CLERK

13