         10-223-cv
         Zherka v. Bogdanos et al.

                                 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 2nd day of March, two thousand eleven.
 5
 6       PRESENT: ROSEMARY S. POOLER,
 7                RICHARD C. WESLEY,
 8                DENNY CHIN,
 9                         Circuit Judges.
10
11
12
13       SELIM ZHERKA,
14
15                                     Plaintiff-Counter-Defendant-Appellant,
16
17                             -v.-                                                 10-223-cv
18
19       MATTHEW F. BOGDANOS, INDIVIDUALLY,
20
21                                     Defendant-Appellee,
22
23       MICHAEL R. EDELMAN, a/k/a THE CONSULTANT, INDIVIDUALLY,
24
25                                     Defendant-Counter-Claimant-Appellee,
26
27       PHILIP AMICONE, INDIVIDUALLY AND IN HIS CAPACITY AS MAYOR OF
28       THE CITY OF YONKERS, NEW YORK,
29
30                                     Defendant-Third-Party Plaintiff-Counter-
31                                          Claimant-Counter-Defendant-Appellee,
32
33
 1   and
 2
 3   DAVID DOE, a/k/a/ ETHAN EDWARDS, INDIVIDUALLY, EDMUND ROE,
 4   a/k/a MOB BUSTER, INDIVIDUALLY, JOHN POE, INDIVIDUALLY,
 5   WILLIAM ROE, INDIVIDUALLY, JANET DOE,
 6                     Defendants-Appellees.*
 7
 8
 9   FOR APPELLANT:               RORY BELLANTONI (Jonathan Lovett, on
10                                the brief), Lovett & Bellantoni,
11                                LLP, Hawthorne, NY.
12
13   FOR APPELLEE BOGDANOS: PATRICIA J. BAILEY, Assistant
14                          District Attorney, for Cyrus R.
15                          Vance, Jr., District Attorney for
16                          New York County, New York, NY.
17
18   FOR APPELLEE EDELMAN:        PATRICK W. BROPHY, McMahon, Martine
19                                & Gallagher, LLP, Brooklyn, NY.
20
21   FOR APPELLEE AMICONE:        BRIAN T. BELOWICH, DelBello
22                                Donnellan Weingarten Wise &
23                                Wiederkehr, LLP, White Plains, NY.
24
25        Appeal from the United States District Court for the
26   Southern District of New York (Seibel, J.).
27
28         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

29   AND DECREED that the judgment of the district court be

30   AFFIRMED.

31         Appellant appeals from a judgment of the United States

32   District Court for the Southern District of New York

33   (Seibel, J.), which dismissed with prejudice his claims

34   against Appellees.       We assume the parties’ familiarity with


           *
             The Clerk of the Court is directed to amend the official caption in
     accordance with this order.

                                           2
1    the underlying facts, the procedural history, and the issues

2    presented for review.

3        Appellant is a businessman whose holdings include the

4    Westchester Guardian, a weekly newspaper.    During Appellee

5    Amicone’s re-election campaign for Mayor of the City of

6    Yonkers in the fall of 2007, the Guardian published articles

7    criticizing the Mayor and his administration.

8        Appellant alleges that, to retaliate against this

9    exercise of his First Amendment rights, Defendants-Appellees

10   arranged to have Appellee Bogdanos, an Assistant District

11   Attorney for New York County, initiate a investigation

12   against him.    Appellant brought suit in the Southern

13   District pursuant to 42 U.S.C. §§ 1983, 1985(2), alleging a

14   civil conspiracy to violate his rights.

15       In his Amended Complaint, Appellant particularized his

16   allegations that the investigation was retaliatory and

17   pretextual.    Those allegations included a reference to a

18   Notice of Interception issued to Appellant by Appellee

19   Bogdanos in November 2008, informing him of eavesdropping

20   warrants placed on several phone numbers.    These phone

21   numbers belonged to known associates of Appellant, with whom

22   he may have had communications during the relevant time

23   period.

                                    3
1        Judge Seibel appropriately noted that this Notice shows

2    the investigation involving Appellant was well underway long

3    before the protected speech Appellant claims provoked the

4    retaliation.   Finding that temporal proximity was the only

5    non-conclusory allegation of retaliation pled by Appellant,

6    and that the Notice of Interception contradicted that

7    allegation, the judge dismissed the complaint with

8    prejudice.

9        We review the grant of a motion to dismiss de novo,

10   accepting all factual claims in the complaint as true, and

11   drawing all reasonable inferences in the plaintiff’s favor.

12   See, e.g., Famous Horse Inc. v. 5th Ave. Photo Inc., 624

13   F.3d 106, 108 (2d Cir. 2010).       Applying this standard of

14   review, we reach the same conclusion as the district court:

15   the complaint is factually insufficient to state a claim for

16   a civil conspiracy.   Indeed, it is self-defeating.

17   Accordingly, we affirm the district court’s dismissal of the

18   claim against all Defendants-Appellees named here.

19       Appellant also contests the dismissal of his civil

20   conspiracy claim, which alleged a conspiracy to intimidate

21   witnesses under 42 U.S.C. § 1985(2).       We have considered his

22   contentions on this issue, and find them without merit.

23

                                     4
1       For the foregoing reasons, the judgment of the district

2   court is hereby AFFIRMED.
3                               FOR THE COURT:
4                               Catherine O’Hagan Wolfe, Clerk
5




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