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Hogan v. Buttofocco

September 28, 2009


The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge



The present case arises from plaintiff's arrest on August 17, 2006, in the Village of Green Island, New York for conduct that occurred during an alleged domestic violence incident at his home, for obstructing police in their investigation of the incident and for resisting arrest. Plaintiff sues under 42 U.S.C. § 1983 arguing that the defendants, all police officers employed by the Village of Green Island, used excessive force in executing his arrest in violation of the Fourth Amendment to the United States Constitution. Plaintiff also asserts claims under § 1983 for unreasonable search and seizure, false arrest, denial of due process and malicious prosecution. Plaintiff's last federal claim is one for municipal liability on the part of the Village based on Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978), though the Court notes that the Village of Green Island is not identified as a defendant in the caption or identifying paragraphs of the complaint. Finally, plaintiff raises a state law claim for intentional infliction of emotional distress against defendants. Specifically, plaintiff alleges that defendants caused him to be terminated from his employment after his arrest. Defendants have moved for summary judgment dismissing the complaint. Plaintiff, though served with the appropriate notice pursuant to Local Rule 56.2, has not filed papers opposing defendants' motion.


According to the evidence submitted by defendants in support of their motion, the facts of this matter are as follows: At approximately 7:00 p.m., on August 17, 2006, the Village of Green Island Police Department received a 911 call from plaintiff's then ten (10) year old son, Alejandro Noble. During this call, Noble advised the 911 dispatcher that his mother's "boyfriend" was "wrecking the place at 72" referring to plaintiff's home at 72 Albany Avenue, and "going like crazy." Noble also told the police dispatcher when asked whether the "boyfriend" had any weapons that he had "a hammer in his hand."

Upon arriving at plaintiff's home, defendant Buttofocco was met outside by plaintiff's son and the complaining witness, Alejandro Noble. Noble confirmed that he had made the emergency call to police from his grandparents' home next door. Noble told Officer Buttofocco that his mother, Juanita Ortiz, and his father, plaintiff Hogan, had an argument which turned "physically violent." Noble stated that during the argument, his father flipped over a table in the kitchen and some chairs. Noble also stated that his father turned toward him holding a hammer on his hand, pushed him several times and told him to "Stay the fuck out of our business." At this point, Noble reported that he fled the residence and called police.

When defendant Smith arrived at plaintiff's home as a result of the dispatch call, he and defendant Buttofocco walked to the side entrance of the home and knocked on the door. When plaintiff asked who it was, Buttofocco announced it was the Green Island Police and they wanted to speak to him. According to Buttofocco, plaintiff responded that he would not open the door. After Buttofocco continued knocking on the door and explained that he would like to speak to plaintiff outside, plaintiff finally came to the door, but said he would not come outside or let the officers inside his home. Buttofocco avers that from where he was standing outside the door, he could see that the "house was in complete disarray . . . a table was flipped over and utensils and nick-knacks were strewn all over the floor." Buttofocco also observed two females inside the residence, later identified as Ms. Ortiz and Mr. Hogan's daughter, Ashley, who "seemed very distraught." Finally, Buttofocco noted that plaintiff "was sweating profusely."

Buttofocco again asked plaintiff to come outside and speak with police and when he refused and turned to walk back in the house, Buttofocco states he placed his hand on plaintiff's elbow and told him that he would have to come down to the police station. Officer Buttofocco avers that plaintiff then became "very aggressive . . . and swung his arm" toward the officers. Buttofocco told plaintiff he was under arrest and plaintiff began immediately to resist. Officer Buttofocco grabbed plaintiff about the waist in an attempt to subdue him while Officer Smith tried to gain control of plaintiff's hands. Plaintiff continued to yell and struggle and pull away from the officers. The officers and plaintiff ultimately wrestled their way through the kitchen and into the living room of the home where the three fell onto a wooden table holding a fish tank. Finally, Officer Smith threatened to use his Taser on plaintiff if he continued to resist arrest. After Smith repeated his intent to use the Taser a second time, plaintiff put his arms down and allowed Officer Buttofocco to handcuff him. Defendants Buttofocco and Smith placed plaintiff under arrest for obstruction of government administration, harassment and disorderly conduct. After transporting him to the Village of Green Island police department, plaintiff continued to shout profanities and remained uncooperative. Plaintiff did not complain of any physical injuries and refused medical attention. Officer Buttofocco telephoned his supervisor, Sergeant Parker, to inform him of plaintiff's arrest and inquire as to how to facilitate his arraignment.

As noted above, plaintiff has not filed papers in opposition to defendants' motion. Plaintiff did, however, testify at a deposition in this matter and the Court has reviewed the transcript of same. Plaintiff acknowledged that he had a substantial police record, particularly in the Village of Green Island. He admitted being arrested multiple times for various offenses including assault and harassment. He had also served time in state prison for robbery and a parole violation. On the day of his arrest, he had a heated argument with his wife about a check that she cashed in his name. To wit, some months prior to the incident at issue in this case, plaintiff had injured his ankle in a work-related accident and received a check for approximately $1258.00 from his employer's disability insurance carrier. His wife Juanita told him the check was for $200.00, signed his name to it and cashed the check at the bank. While plaintiff was cleaning on the afternoon of his arrest, he found the check stub which showed the actual amount of the insurance payment. Plaintiff acknowledged that he "confront[ed]" Juanita about the check and where the money had gone. Plaintiff said he might have used a "loud" voice, or "yelled a couple times, [but] that was it." He also acknowledged that during the argument, his son Alejandro came over to him and said "Don't worry about the money, that's our money." Plaintiff testified that in response to Alejandro's interference in the argument he simply said "Alex, do yourself a favor; go outside and play and mind your own business."

Plaintiff denied that the argument between he and his wife was violent or physical. Indeed, plaintiff said nothing was knocked over or out of place in the house. Plaintiff believed the defendant officers should have been able to see when he opened the door that everyone in the house was "fine."

Plaintiff admitted that he refused to come out of the house and speak to the defendant officers because he watches the television show "Cops" and was afraid of what the police could do to him outside. Plaintiff admitted that he was "verbally uncooperative" with the police, and did not become physically uncooperative "until they put their hands on [him] inside the house." When the defendant officers entered the home and tried to take him out, plaintiff acknowledged that he "resisted," "struggled," and "tensed up" so the police could not handcuff him. Indeed, he testified "When he grabbed ahold [sic] of me I -- obviously, I wasn't willing to go out. You know, I had to be forcefully taken out of my house. I wasn't going willfully." When asked what it was that led him not to cooperate with police, plaintiff said "Just by their demand of me to come outside, that was it. I wasn't going out lying, you know?? I don't know. It -- I seen it all the time on 'Cops' on Channel 23. You see it on 'Cops' all the time." It was only after Officer Smith threatened to use his Taser that plaintiff "let him take [his] arms."

Insofar as his claim for excessive force, plaintiff's complaints are that defendant Buttofocco "slammed" him to the ground and never told him why he was being arrested. Plaintiff said he did not remember defendant Smith "ever touching [him] really." Plaintiff acknowledged that he did not hit or slam his head when he was pushed to the ground and he suffered no injuries other than "re-twisting" his previously sprained ankle which was "no big deal" and only caused a "little bit" of pain. Plaintiff acknowledged that the "nexus" between this incident and some of his previous problems with police is "[his] family." Indeed, he testified that when he spoke to "Alex" (Alejandro) about why he had made the allegedly unnecessary 911 call to police, Alex said "I just want you out of here." However, plaintiff was still upset with defendants Buttofocco and Smith because they "took [him] out of [his] house without cause." To wit, plaintiff testified "[T]he police didn't take any statements. They didn't do any investigation, they didn't ask any questions, they didn't . . . advise [him] of what they were there, their authority and purpose." In short, plaintiff believed that defendants did not "follow[] proper police procedures." While plaintiff agreed that the police should respond to a 911 "distress call" from a child saying his mother was in danger of being injured by her "out-of-control boyfriend," plaintiff said that police should have "asked the parents" about what was really going on instead of taking the word of a "handicapped 13 year old."*fn2

Once he was at the police station, plaintiff admitted he was "being an asshole" to Officer Buttofocco because he allegedly had still not told plaintiff what he was arrested for. However, the Court notes plaintiff must have had some idea that an emergency call to police had prompted his arrest because he admitted asking Buttofocco about where his supervisors were during his arrest: "[Y]ou know, where are they, how come they weren't down there. This big, huge, humongous 911 call, what are they, just out doing nothing?" (emphasis added). Plaintiff has no complaints about how he was treated once he was in custody. Plaintiff believes that since his employer fired him two days after his arrest and made reference to his encounter with police, Buttofocco must have called plaintiff's place of employment to report his arrest. And although plaintiff alleges that defendant Buttofocco continually left the room to make "little private phone calls," he had no idea of who Buttofocco was talking to or what he was saying.

Plaintiff plead guilty ultimately to a reduced charge of disorderly conduct as a result of his arrest on the date in question. The charges of harassment and obstruction of governmental administration were dismissed. Defendant Buttofocco states that at no time did he place any telephone calls or speak to plaintiff's employer about his arrest. Both Buttofocco and Smith contend that they were required to use reasonable force to restrain and finally arrest plaintiff, but that the force used was not excessive.


A. Summary Judgment Standard

Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). Substantive law determines which facts are material; that is, which facts might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 258 (1986). Irrelevant or unnecessary facts do not preclude summary judgment, even when they are in dispute. See id. The moving party bears the initial burden of establishing that there is no genuine issue of material fact to be decided. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). With respect to any issue on which the moving party does not bear the burden of proof, it may meet its burden on summary judgment by showing that there is an absence of evidence to support the nonmoving party's case. See id. at 325. Once the movant meets this initial burden, the nonmoving party must demonstrate that there is a genuine unresolved issue for trial. See Fed. R. Civ. P. 56(e).

When the non-moving party " 'chooses the perilous path of failing to submit a response to a summary judgment motion, the district court may not grant the motion without first examining the moving party's submission to determine if it has met its burden of demonstrating that no material issue of fact remains for trial." ' Vermont Teddy Bear Co. v 1-800 Beargram Co., 373 F. 3d 241, 244 (2d Cir. 2004) (quoting Amaker v. Foley, 274 F. 3d 677, 681 (2d Cir. 2001). If the movant does not meet its burden of production, then a court must deny summary judgment even if the non-movant does not oppose the motion. See id. Moreover, the court may not rely solely on the movant's statement of undisputed facts contained in its Rule 56.1 statement. See id. The court must be satisfied that the movant's assertions are supported by the evidence in the record. See id. (citing Giannullo v. City of New York, 322 F. 3d 139, 140 (2d Cir. 2003)). When a nonmoving pro se party has failed to submit papers in opposition to a motion for summary judgment, summary judgment may be granted as long as the court is satisfied that the undisputed facts "show that the moving party is entitled to a judgment as a matter of law," and plaintiff has received notice that failure to submit evidence in opposition may result in dismissal of his or her case. Champion v. Artuz, 76 F. 3d 483, 486 (2d Cir. 1996).

B. Substantive Legal Standard

Plaintiff bases his federal claims on 42 U.S.C. § 1983, which reads in part:

Every person who, under color of any statute, ordinance, regulation, custom or usage of any State ..., subjects or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action.

Section 1983 "is not itself a source of substantive rights," but merely provides "a method for vindicating federal rights elsewhere conferred." Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting ...

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