         10-186-cv
         Knight v. United States Securities and Exchange Commission




                                      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 for the Second Circuit, held at the
 2       Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
 3       on the 22nd day of December, two thousand ten.
 4
 5       PRESENT:
 6                   DENNIS JACOBS,
 7                         Chief Judge,
 8                   GUIDO CALABRESI,
 9                   ROBERT D. SACK,
10                         Circuit Judges.
11       ____________________________________________________________
12
13       Anthony Knight,
14
15                       Plaintiff-Appellant,
16
17                       -v.-                                                       10-186-cv
18
19       United States Securities and Exchange Commission, et al.,
20
21                   Defendants-Appellees.
22       ___________________________________________________________
23
24       FOR APPELLANT:                   Anthony Knight, pro se, Great Neck, New York.
25
26       FOR APPELLEES:                   David M. Becker, General Counsel, Thomas J. Karr, Assistant
27                                        General Counsel, Wm. Smith Greig, Senior Counsel, Securities
28                                        and Exchange Commission, Washington, D.C.
29
30
1            UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND

2    DECREED that the district court judgment is AFFIRMED.

3            Plaintiff-Appellant Anthony Knight, pro se, appeals from the December 22, 2009 judgment

4    of the United States District Court for the Eastern District of New York (Feuerstein, J.) dismissing

5    his complaint. We assume the parties’ familiarity with the underlying facts and the procedural

6    history of the case.

7            This Court reviews de novo a district court decision dismissing a complaint pursuant to Rule

8    12(b)(1) or (6). See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (Rule

9    12(b)(1)); Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) (Rule 12(b)(6)). In each

10   instance, this Court “constru[es] the complaint liberally, accepting all factual allegations in the

11   complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.” Chambers, 282

12   F.3d at 152; see also Triestman, 470 F.3d at 474. Dismissal of a case for lack of subject matter

13   jurisdiction under Rule 12(b)(1) is proper “when the district court lacks the statutory or constitutional

14   power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).

15           On appeal, Knight has not challenged the district court’s dismissal of his claims against John

16   Reynolds for failure to effect proper service, and he has therefore abandoned any claim that the

17   district court’s dismissal of this defendant was erroneous. See LoSacco v. City of Middletown, 71

18   F.3d 88, 92-93 (2d Cir. 1995). The district court held that the remaining individual defendants were

19   entitled to absolute immunity. Insofar as they represent the Securities and Exchange Commission

20   (“SEC”) in prosecuting the securities action against Knight, they are entitled to absolute

21   prosecutorial immunity. See Cornejo v. Bell, 592 F.3d 121, 127-28 (2d Cir. 2010). However, they

22   would not be entitled to absolute immunity insofar as some of Knight’s allegations arise from


                                                        2
1    investigatory (as opposed to prosecutorial) functions. See Mangiafico v. Blumenthal, 471 F.3d 391,

2    396 (2d Cir. 2006) (noting that “a government attorney is entitled only to qualified immunity when

3    functioning in an administrative or investigative capacity”).

4           We may affirm, however, on any ground supported by the record. See Leecan v. Lopes, 893

5    F.2d 1434, 1439 (2d Cir. 1990). Knight has failed to state a constitutional claim arising from the

6    defendants’ investigatory activity. Knight broadly contends that the defendants coerced witnesses

7    and falsified evidence; but the misconduct he specifically alleged—that the defendants asked leading

8    and repetitive questions during recorded, deposition-like investigative testimonies, failed to provide

9    him notice of these interviews, and insinuated to investors that his company had engaged in improper

10   activity—does not constitute a violation of his constitutional rights. See Kinoy v. Mitchell, 851 F.2d

11   591, 594 (2d Cir. 1988) (“A predicate for recovery under Bivens [v. Six Unknown Named Agents of

12   Fed. Bureau of Narcotics, 403 U.S. 388 (1971)], of course, is that the plaintiff possess a

13   constitutional right capable of violation.”).

14          As to other allegations, Knight has no constitutional right to notice of the SEC’s investigatory

15   activities, see SEC v. Jerry T. O’Brien, Inc., 467 U.S. 735, 742 (1984) (holding that “neither the Due

16   Process Clause of the Fifth Amendment nor the Confrontation Clause of the Sixth Amendment is

17   offended when a federal administrative agency, without notifying a person under investigation, uses

18   its subpoena power to gather evidence adverse to him”); nor has he raised a cognizable constitutional

19   claim premised on an alleged harm to his reputation, see Siegert v. Gilley, 500 U.S. 226, 233-34

20   (1991). Knight contends that SEC attorneys asked leading and repetitive questions, and thereby

21   coerced witnesses into making false statements. However, “in order to state a legally sufficient claim

22   for the manufacture of false evidence, a plaintiff must colorably allege that this evidence was used


                                                       3
1    against him to cause a constitutional injury.” Rolon v. Henneman, 517 F.3d 140, 148 (2d Cir. 2008).

2    Knight has failed to make this showing. See Zahrey v. Coffey, 221 F.3d 342, 348 (2d Cir. 2000)

3    (“The manufacture of false evidence, in and of itself, . . . does not impair anyone’s liberty, and

4    therefore does not impair anyone’s constitutional right.” (internal quotation marks omitted)).

5           Having reviewed the remainder of Knight’s contentions on appeal and the record of

 6   proceedings below, we affirm for substantially the same reasons stated by the district court in its

7    thorough opinion.

8           We have considered all of the appellant’s arguments and find them to be without merit.

 9          Accordingly, the judgment of the district court is AFFIRMED.
10
11
12                                                        FOR THE COURT:
13                                                        Catherine O’Hagan Wolfe, Clerk
14
15




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