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 day of May, two thousand ten. th

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, 
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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
 Appellant claims on appeal that he timely mailed a cross- 1

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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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
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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