09-3774-cv

Tylicki v. Schwartz



### UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT



# SUM MARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, I SPERMITTED 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, 1 0 CHESTER J. STRAUB, 1 1 Circuit Judges. 12 1 3 - - - - - - - - - - - - - - - - - - - -X 1 4 Raymond Tylicki , 1 5 1 6 Plaintiff-Appellant , 1 7 1 8 -v.- 09-3774-cv 1 9 2 0 John R. Schwartz, 2 1 2 2 Defendant-Appellee

. 23 2 4 - - - - - - - - - - - - - - - - - - - -X 25 2 6 FOR APPELLANT: Raymond Tylicki, pro se , Buffalo, 2 7 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 1 0 UPON DUE CONSIDERATION , it is hereby ORDERED , ADJUDGED , 1 1 AND DECREED that the district court judgment is AFFIRMED

. 1 2 1 3 Plaintiff-Appellant Raymond Tylicki, pro se , appeals 1 4 from the August 20, 2009 judgment of the United States 1 5 District Court for the Northern District of New York 1 6 (McAvoy, J. ) dismissing his complaint for failure to state a 1 7 claim. We assume the parties’ familiarity with the 1 8 underlying facts and the procedural history of the case. 19 2 0 This Court reviews the dismissal of a complaint 2 1 pursuant to Fed. R. Civ. P. 12(b)(6) de novo , construing the 2 2 complaint liberally and accepting all factual allegations in 2 3 the complaint as true. See Chambers v. Time Warner, Inc. , 2 4 282 F.3d 147, 152 (2d Cir. 2002). The complaint must plead 2 5 “enough facts to state a claim to relief that is plausible 2 6 on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 2 7 (2007). On appeal, Tylicki raises only his First and Ninth 2 8 Amendment claims, and he has therefore abandoned the other 2 9 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 3 4 creating police records containing false information, and 35 distributing this false information, fails to allege a 3 6 violation of a constitutional right. The Supreme Court has 3 7 recognized that “a right of personal privacy, or a guarantee 3 8 of certain areas or zones of privacy, does exist under the 3 9 Constitution.” Roe v. Wade , 410 U.S. 113, 152 (1973). 4 0 However, aside from Fourth Amendment issues, the right to 4 1 privacy has been found to encompass “matters relating to 4 2 marriage, procreation, contraception, family relationships, 4 3 and child rearing and education.” Paul v. Davis , 424 U.S. 4 4 693, 713 (1976). Tylicki’s claim does not fit within the3 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 1 0 by his exercise of that right; and (3) defendants’ actions 1 1 effectively chilled the exercise of his First Amendment 1 2 right.” Curley v. Village of Suffern , 268 F.3d 65, 73 (2d 1 3 Cir. 2001). The complaint failed to allege that Schwartz’s 1 4 actions were motivated by Tylicki’s exercise of his First 1 5 Amendment rights. His allegation that Schwartz began 1 6 investigating him only after he publicly criticized the 1 7 State University of New York at Binghamton is not properly 1 8 before this Court as it was not raised in the district 1 9 court. See Westinghouse Credit Corp. v. D’Urso , 371 F.3d 2 0 96, 103 (2d Cir. 2004) (“In general we refrain from passing 2 1 on issues not raised below.”). 22 2 3 In any event, Tylicki has alleged no facts indicating 2 4 that Schwartz’s actions have “effectively chilled” the 2 5 exercise of his First Amendment right. He has not contended 2 6 that, as a result of Schwartz’s actions, he stopped pursuing 2 7 his other legal claims against the university, refrained 2 8 from going to the university, or that Schwartz’s actions 2 9 have inhibited his speech in any way. See Curley, 268 F.3d 3 0 at 73 (“Where a party can show no change in his behavior, he 3 1 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 3 4 “show that the defendant’s actions had some actual, 35 non-speculative chilling effect”). 36 3 7 Finally, although generally a district court should not 3 8 dismiss a pro se complaint without granting the plaintiff 3 9 leave to amend, dismissal is appropriate where leave to 4 0 amend would be futile. See Cuoco v. Moritsugu , 222 F.3d 99, 4 1 112 (2d Cir. 2000). Here, amendment would likely be futile 4 2 as it does not appear that Tylicki has any viable federal 4 3 claims that could be brought if permitted to amend the 4 4 complaint. See id. (finding leave to replead would be4 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 1 1 FOR THE COURT: 1 2 CATHERINE O’HAGAN WOLFE, CLERK 1 3