Zherka v. Bogdanos

411 F. App'x 440

• Court: Court of Appeals for the Second Circuit
• Decided: March 2, 2011
• Docket: 10-223-cv
• Status: Unpublished

Opinion

SUMMARY ORDER

Appellant appeals from a judgment of the United States District Court for the Southern District of New York (Seibel, /.), which dismissed with prejudice his claims against Appellees. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

Appellant is a businessman whose holdings include the Westchester Guardian, a weekly newspaper. During Appellee Amicone’s re-election campaign for Mayor of the City of Yonkers in the fall of 2007, the Guardian published articles criticizing the Mayor and his administration.

Appellant alleges that, to retaliate against this exercise of his First Amendment rights, Defendants-Appellees arranged to have Appellee Bogdanos, an Assistant District Attorney for New York County, initiate a investigation against him. Appellant brought suit in the Southern District pursuant to 42 U.S.C. §§ 1983, 1985(2), alleging a civil conspiracy to violate his rights.

In his Amended Complaint, Appellant particularized his allegations that the investigation was retaliatory and pretextual. Those allegations included a reference to a Notice of Interception issued to Appellant by Appellee Bogdanos in November 2008, informing him of eavesdropping warrants placed on several phone numbers. These phone numbers belonged to known associates of Appellant, with whom he may have had communications during the relevant time period.

Judge Seibel appropriately noted that this Notice shows the investigation involving Appellant was well underway long before the protected speech Appellant claims provoked the retaliation. Finding that temporal proximity was the only non-conclusory allegation of retaliation pled by Appellant, and that the Notice of Interception contradicted that allegation, the judge dismissed the complaint with prejudice.

We review the grant of a motion to dismiss de novo, accepting all factual claims in the complaint as true, and drawing all reasonable inferences in the plaintiffs favor. See, e.g., Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir.2010). Applying this standard of review, we reach the same conclusion as the district court: the complaint is factually insufficient to state a claim for a civil conspiracy. Indeed, it is self-defeating. Accordingly, we affirm the district court’s dismissal of the claim against all Defendants-Appellees named here.

Appellant also contests the dismissal of his civil conspiracy claim, which alleged a conspiracy to intimidate witnesses under 42 U.S.C. § 1985(2). We have considered his contentions on this issue, and find them without merit.

For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.