10-5059-cv
Zherka v. City of New York

                           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.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 19th day
of January, two thousand twelve.

Present:
         RALPH K. WINTER,
         ROBERT A. KATZMANN,
         GERARD E. LYNCH,
                     Circuit Judges.
________________________________________________

SELIM ZHERKA,

           Plaintiff-Appellant,

                   v.                                              No. 10-5059-cv

CITY OF NEW YORK,

         Defendant-Appellee.
________________________________________________

For Plaintiff-Appellant:                     RORY J. BELLANTONI, Lovett & Bellantoni, LLP,
                                             Hawthorne, N.Y.
For Defendant-Appellee:                         FAY NG, Assistant Corporation Counsel (Pamela
                                                Seider Dolgo, Assistant Corporation Counsel, on
                                                the brief), for Michael A. Cardozo, Corporation
                                                Counsel for the City of New York, New York, N.Y.


       Appeal from the United States District Court for the Southern District of New York
(Preska, C.J.).

        ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court is AFFIRMED.

        Plaintiff-Appellant Selim Zherka brings this action under 42 U.S.C. §§ 1983 and 1985,

alleging that he is the victim of a wide-ranging, racially-discriminatory conspiracy among

various City of New York (the “City”) and Westchester County officials to publicly brand him as

an “Albanian mobster,” principally in retaliation for the publication of an article critical of the

Westchester County District Attorney in a local news periodical that he owns. By Order and

Judgment dated November 9, 2010, the district court (Preska, C.J.) dismissed Zherka’s First

Amended Complaint (“Complaint”) on the grounds that it failed to adequately allege the

existence of a municipal policy or custom, and that its claims are barred by operation of

collateral estoppel. We assume the parties’ familiarity with the underlying facts and procedural

history of this case.

        We review de novo a district court’s dismissal of a complaint for failure to state a claim.

S. Cherry St., LLC v. Hennessee Grp. LLC, 573 F.3d 98, 103 (2d Cir. 2009). In order to state a

claim under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true,

to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. In assessing whether a



                                                   2
plaintiff has met this standard, the Court must accept all non-conclusory factual allegations as

true and draw all reasonable inferences in the plaintiff’s favor. Goldstein v. Pataki, 516 F.3d 50,

56 (2d Cir. 2008).

       “[To] hold a city liable under § 1983 for the unconstitutional actions of its employees, a

plaintiff is required to plead and prove three elements: (1) an official policy or custom that (2)

causes the plaintiff to be subjected to (3) a denial of a constitutional right.” Wray v. City of New

York, 490 F.3d 189, 195 (2d Cir. 2007) (alteration in original) (citation omitted); see Monell v.

Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978). Similarly, municipal liability under § 1985(3)

must also be predicated on an “official custom or policy” of the municipality. Owens v. Haas,

601 F.2d 1242, 1247 (2d Cir. 1979). Accordingly, “a municipality cannot be made liable [under

§§ 1983 and 1985] by application of the doctrine of respondeat superior,” Pembaur v. City of

Cincinnati, 475 U.S. 469, 478 (1986), but rather the plaintiff must “demonstrate that, through its

deliberate conduct, the municipality was the moving force behind the alleged injury,” Roe v. City

of Waterbury, 542 F.3d 31, 37 (2d Cir. 2008) (internal quotation marks omitted). In addition,

where a plaintiff contends that the actions complained of “were taken or caused by an official

whose actions represent official policy, the court must determine whether that official had final

policymaking authority in the particular area involved.” Jeffes v. Barnes, 208 F.3d 49, 57 (2d

Cir. 2000).

       Here, Zherka’s factual allegations are insufficient to establish that his alleged harms

resulted from a municipal “policy.” It has long been well-settled that “the mere assertion that a

municipality has such a custom or policy is insufficient in the absence of allegations of fact

tending to support, at least circumstantially, such an inference.” Zahra v. Town of Southold, 48

F.3d 674, 685 (2d Cir. 1995) (internal quotation marks, brackets, and ellipsis omitted). The




                                                  3
essence of the Complaint is its allegation that the New York City Police Department initiated an

investigation into Zherka based on “false information provided [to] them” by Janet DiFiore and

Mathew Bogdanos, the Westchester District Attorney and a New York County Assistant District

Attorney, respectively. Compl. ¶ 11. However, neither DiFiore nor Bogdanos are City officials

and so they cannot, by themselves, be engines of City policy. Moreover, there is nothing in the

Complaint supporting a plausible inference that, for example, the City has a general policy of

targeting ethnic Albanians for investigation, or of targeting individuals with an ownership

interest in news periodicals that criticize public officials. Accordingly, the district court

correctly held that Zherka’s claims must be dismissed for failing to allege the existence of a

municipal policy that led to a violation of his constitutional rights.

        The district court also held, in the alternative, that Zherka’s claims must be dismissed

because they were premised on substantially the same factual allegations asserted by Zherka in

several previously litigated cases. Once an issue of law or fact necessary to a judgment has been

decided, the doctrine of collateral estoppel precludes the “relitigation of [that same] issue in a

suit on a different cause of action involving a party to the first case.” Burgos v. Hopkins, 14 F.3d

787, 789 (2d Cir. 1994) (internal quotation marks omitted). Specifically, collateral estoppel

precludes relitigation where “(1) the issues in both proceedings are identical, (2) the issue in the

prior proceeding was actually litigated and actually decided, (3) there was full and fair

opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was

necessary to support a valid and final judgment on the merits.” NLRB v. Thalbo Corp., 171 F.3d

102, 109 (2d Cir. 1999). To meet the identity-of-issues prong of collateral estoppel, it is not

necessary that the issues be exactly identical; it is sufficient that “the issues presented in [the




                                                   4
earlier litigation] are substantially the same as those presented by [the later] action.” ITT Corp.

v. United States, 963 F.2d 561, 564 (2d Cir. 1992).

       Here, within months of the time Zherka filed the instant action, he filed three separate

actions under 42 U.S.C. § 1983 in the Southern District Court of New York that were

collectively premised on substantially identical factual circumstances as those alleged in the

instant Complaint. In each of these cases, the district court (Seibel, J.) granted the defendant’s

motion to dismiss the relevant complaint and we affirmed the district court’s dismissal. See

Zherka v. Bogdanos, 411 F. App’x 440 (2d Cir. 2011) (summary order); Zherka v. Amicone, 634

F.3d 642 (2d Cir. 2011); Zherka v. DiFiore, 412 F. App’x 345 (2d Cir. 2011) (summary order).

The doctrine of collateral estoppel developed to address precisely this situation, where a party

seeks to repeatedly litigate the same issue by means of more specific pleadings, by repackaging

the same factual allegations under different causes of action, or by filing identical actions against

different defendants. See, e.g., Hickerson v. City of New York, 146 F.3d 99, 109-10 (2d Cir.

1998) (plaintiffs barred from bringing claims under U.S. Constitution after litigating claims

predicated on the same factual allegations under the New York State Constitution). Accordingly,

the district court correctly held that Zherka is collaterally estopped from asserting the claims

made in the instant action.

       We have considered all of Zherka’s additional arguments and found them to be without

merit. Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.

                                              FOR THE COURT:
                                              CATHERINE O’HAGAN WOLFE, CLERK




                                                  5
