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 th day of November, two thousand ten.
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
24 - - - - - - - - - - - - - - - - - - - -X
25
26 FOR APPELLANT: Raymond Tylicki, pro se, Buffalo,
27 New York.
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
2
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
3
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
4