Hogan v. Buttofocco ( 2010 )

09-4617-cv
Hogan v. Buttofocco
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
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 26 th day of May, two thousand ten.
PRESENT:
DENNIS JACOBS,
Chief Judge,
ROGER J. MINER,
RICHARD C. WESLEY,
Circuit Judges.
Robert Lawrence Hogan, Jr.,
Plaintiff-Appellant,
v. 09-4617-cv
Anthony Buttofocco, individually and
as a Police Officer for the Village of
Green Island, David Smith, individually
and as a Police Officer for the Village
of Green Island, Chris Parker,
individually and as Sargent Officer for
the Village of Green Island, John Nardone,
individually and as Chief Police Officer
for the Village of Green Island, Ellen
McNulty Ryan, as the Mayor of Green
Island, a Municipality, Jeffery Dorrance,
individually and as Village Justice for
the Village of Green Island, Mary/Molly
Maguilli, individually and as the Albany
County Assistant District Attorney, the
Village of Green Island, a Municipality,
Defendants-Appellees.
FOR APPELLANT: Robert Lawrence Hogan, Jr., pro se,
Green Island, NY.
FOR APPELLEE: Gabrielle Mardany Hope, Smith,
Sovik, Kendrick & Sugnet, P.C.,
Syracuse, NY.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is
AFFIRMED.
Appellant Robert Lawrence Hogan, Jr., pro se, appeals
from the judgment of the United States District Court for
the Northern District of New York (Mordue, C.J.), granting
summary judgment in favor of Appellees in Appellant’s 42
U.S.C. § 1983 action. We assume the parties’ familiarity
with the underlying facts, the procedural history of the
case, and the issues on appeal.
Appellant identified only the September 2009 grant of
summary judgment in his notice of appeal. We therefore lack
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jurisdiction to review the district court’s August 2007 sua
sponte partial dismissal of the complaint. See Fed. R. App.
P. 3(c)(1)(B) (“The notice of appeal must . . . designate
the judgment, order, or part thereof being appealed.”); see
also New Phone Co. v. City of N.Y., 498 F.3d 127, 130 (2d
Cir. 2007) (per curiam) (holding that this Court’s
jurisdiction “depends on whether the intent to appeal from
that decision is clear on the face of, or can be inferred
from, the notice[] of appeal”).
We review an order granting summary judgment de novo,
and ask whether the district court properly concluded that
there were no genuine issues of material fact and that the
moving party was entitled to judgment as a matter of law.
See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300
(2d Cir. 2003). The standard is the same in reviewing an
order granting an unopposed motion for summary judgment.
See Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241,
244 (2d Cir. 2004). 1
A warrantless entry into a suspect’s home violates the
1
Appellant claims on appeal that he timely mailed a cross-
motion for summary judgment to the district court and Appellees’
counsel. However, no one received it, Appellant has submitted no
proof of mailing, and Appellant did not contest when Appellees
told the district court that Appellant had failed to oppose
summary judgment.
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Fourth Amendment unless exigent circumstances justify the
entry. See Payton v. New York, 445 U.S. 573, 586 & n.25
(1980). The police here had reason to believe that
Appellant was in the middle of a violent altercation with
his girlfriend, who was still in the house with Appellant,
along with their daughter. Additionally, the officers had
been informed that Appellant had brandished a hammer toward
his son, and there was probable cause, based on his son’s
911 call and statement to police at the scene, to believe
that Appellant had committed a crime. Furthermore, the
officers knew that Appellant was still on the premises,
although there was no specific indication that he would
escape. The totality of the circumstances supports the
finding that exigent circumstances existed to justify the
warrantless entry into Appellant’s home.
As to Appellant’s remaining claims, we conclude, for
substantially the same reasons stated by the district court,
that: (1) sufficient evidence of probable cause existed to
defeat Appellant’s claims of false arrest and malicious
prosecution; (2) Appellant failed to demonstrate any
personal involvement by defendants Nardone and Smith; and
(3) Appellant failed to demonstrate the existence of any
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unconstitutional policy that would support a claim of
municipal liability under Monell v. New York City Department
of Social Services, 436 U.S. 658, 690-91 (1978).
Finally, Appellant’s claims of excessive force and
intentional infliction of emotional distress are not raised
on appeal, and we decline to consider them. See LoSacco v.
City of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995)
(holding that issues not raised in a pro se litigant’s
appellate brief are waived).
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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