Zherka v. Amicone
634 F.3d 642
| 2d Cir. | 2011Background
- Zherka owns the Westchester Guardian, a weekly paper covering Yonkers and Westchester County.
- In fall 2007, the Guardian sharply criticized Yonkers Mayor Amicone for corruption, fiscal mismanagement, and police brutality.
- Zherka alleges Amicone publicly defamed him at a campaign event by calling him a drug dealer, Albanian mobster, and thug, and threatening further harm if Amicone lost reelection.
- Zherka sued Amicone under 42 U.S.C. § 1983 for First Amendment retaliation and per se defamation; he sought damages and fees.
- The district court dismissed Zherka's First Amendment retaliation claim with prejudice; state-law defamation claim was dismissed without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can per se defamation provide injury for §1983 retaliation claim? | Zherka argues per se defamation suffices as injury. | Amicone argues per se defamation is not concrete injury for §1983. | Per se defamation does not establish the required injury for §1983 retaliation. |
| Is actual chilling required for private retaliation claims, or can other harm suffice? | Zherka seeks alternate harms to satisfy injury requirement. | Amicone contends only actual chilling or equivalent harm counts. | Actual chilling or concrete harm is generally required; presumed per se damages do not count. |
| May emotional or psychological harm allegations alone establish injury for §1983 retaliation? | Zherka alleged emotional distress but failed to plead in detail. | Amicone argues such harm is insufficient absent concrete injury. | Court leaves open whether emotional distress alone could suffice; not pleaded here. |
| Did the district court properly dismiss the retaliation claim? | Zherka contends there is conduct constituting injury beyond per se defamation. | Amicone maintained the claim failed for lack of cognizable injury. | Yes; district court's dismissal of the retaliation claim affirmed. |
Key Cases Cited
- Liberman v. Gelstein, 80 N.Y.2d 429 (N.Y. 1992) (per se defamation presumes damages; but not federal injury under §1983)
- Gill v. Pidlypchak, 389 F.3d 379 (2d Cir. 2004) (non-speech harms may satisfy injury when present)
- Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83 (2d Cir. 2002) (retaliation claims may survive with non-speech harms)
- Gagliardi v. Village of Pawling, 18 F.3d 188 (2d Cir. 1994) (retaliation claims possible where non-speech harms alleged)
- Spear v. Town of W. Hartford, 954 F.2d 63 (2d Cir. 1992) (describes 'actual chilling' standard for private retaliation plaintiffs)