         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




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