     11-777-cv
     Zembiec v. County of Monroe

                          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 15th day of March, two thousand twelve.
 5
 6       PRESENT:
 7                    DENNIS JACOBS,
 8                         Chief Judge,
 9                    DENNY CHIN,
10                    SUSAN L. CARNEY,
11                         Circuit Judges.
12
13       - - - - - - - - - - - - - - - - - - - -X
14       THOMAS C. ZEMBIEC,
15                Plaintiff-Appellant,
16
17                    -v.-                                               11-777-cv
18
19       COUNTY OF MONROE; MONROE COUNTY
20       SHERIFF’S DEPARTMENT; PATRICK M.
21       O’FLYNN, Sheriff of the Monroe
22       County’s Sheriff Department, in his
23       official & individual capacity; GARY
24       CAIOLA, Undersheriff, in his official
25       & individual capacity,
26                Defendants-Appellees.
27       - - - - - - - - - - - - - - - - - - - -X
28
29       FOR PLAINTIFF-APPELLANT:              Steven Laprade (Christina A.
30                                             Agola, on the brief), Christina
31                                             A. Agola, PLLC, Rochester, NY.
32


                                                  1
1    FOR DEFENDANTS-APPELLEES:     James L. Gelormini, Monroe
2                                  County Law Department (for David
3                                  Van Varick, Monroe County
4                                  Attorney), Rochester, NY.
5

6        Appeal from a judgment of the United States District

7    Court for the Western District of New York (Larimer, J.).

8

9        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

10   AND DECREED that the judgment of the district court is

11   AFFIRMED.

12

13       Plaintiff-Appellant Thomas C. Zembiec appeals the

14   district court’s decision granting Defendants’ motion for

15   judgment on the pleadings and denying Zembiec’s motion to

16   amend his complaint.   We assume the parties’ familiarity

17   with the underlying factual allegations, the procedural

18   history of the case, and the issues on appeal.    Like the

19   district court, for the purposes of our analysis, we assume

20   the truth of the well-pleaded factual allegations in the

21   proposed amended complaint.    See Ideal Steel Supply Corp. v.

22   Anza, 652 F.3d 310, 324 (2d Cir. 2011) (holding that the

23   standard for a motion for judgment on the pleadings is the

24   same as the standard for a motion to dismiss).


                                    2
1    [1] “In order to establish a First Amendment retaliation

2    claim, plaintiffs must prove that: (1) they engaged in

3    constitutionally protected speech because they spoke as

4    citizens on a matter of public concern; (2) they suffered an

5    adverse employment action; and (3) the speech was a

6    motivating factor in the adverse employment decision.”

7    Skehan v. Vill. of Mamaroneck, 465 F.3d 96, 106 (2d Cir.

8    2006), overruled on other grounds as recognized in Appel v.

9    Spiridon, 531 F.3d 138, 139-40 (2d Cir. 2008) (per curiam)

10   (internal quotation marks omitted).   We agree with the

11   district court’s well-reasoned opinion that Zembiec has not

12   alleged “enough facts” to state a “plausible” claim that any

13   protected speech by Zembiec was a motivating factor in any

14   adverse employment action taken against him.   See Bell Atl.

15   Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007) (holding

16   that a complaint must plead “enough facts” to “raise a right

17   to relief above the speculative level” and state a

18   “plausible” claim); accord Ashcroft v. Iqbal, 129 S. Ct.

19   1937, 1949 (2009).

20   [2] As to Zembiec’s remaining claims for relief, we affirm

21   for substantially the reasons stated in the district court’s

22   thorough opinion.


                                  3
1    [3] The district court did not err in denying Zembiec leave

2    to amend his complaint.   It reviewed the allegations in

3    Zembiec’s proposed amended complaint and concluded that they

4    failed to state a claim upon which relief can be granted.

5    We agree that Zembiec’s amendment would have been futile.

6    See Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals,

7    282 F.3d 83, 88 (2d Cir. 2002) (holding that amendment is

8    futile if the proposed amended complaint does not state a

9    claim upon which relief can be granted).

10

11       We have considered all of Zembiec’s additional

12   arguments and find them to be without merit.   Accordingly,

13   the judgment of the district court is AFFIRMED.

14
15                               FOR THE COURT:
16                               Catherine O’Hagan Wolfe, Clerk
17
18




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