17-296-cv
McDonough v. Smith




                           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 Thurgood Marshall United States Courthouse, at 40 Foley Square, in the City of New
York, on the 6th day of November, two thousand nineteen.

PRESENT: DENNIS JACOBS,
         REENA RAGGI,
         CHRISTOPHER F. DRONEY,
                   Circuit Judges.
________________________________________________

EDWARD G. MCDONOUGH,

                          Plaintiff-Appellant,

                     v.                                       No. 17-296-cv

YOUEL SMITH, INDIVIDUALLY AND AS SPECIAL
DISTRICT ATTORNEY FOR THE COUNTY OF
RENSSELAER, NEW YORK, AKA TREY SMITH,

                          Defendant-Appellee,

JOHN J. OGDEN, RICHARD MCNALLY JR., KEVIN
MCGRATH, ALAN ROBILLARD, COUNTY OF
RENSSELAER, JOHN F. BROWN, WILLIAM A.
MCINERNEY, KEVIN F. O’MALLEY, DANIEL B.
BROWN, ANTHONY J. RENNA,

                          Defendants.
_______________________________________________
    FOR PLAINTIFF-APPELLANT:                          BRIAN D. PREMO, Premo Law Firm
                                                      PLLC, Albany, NY.

    FOR DEFENDANT-APPELLEE:                           THOMAS J. O’CONNOR, Napierski,
                                                      VanDenburgh, Napierski & O’Connor,
                                                      LLP, Albany, NY.

       On remand from the Supreme Court of the United States.

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court be VACATED and the cause be
REMANDED to the United States District Court for the Northern District of New York
for further proceedings consistent with the opinion of the Supreme Court of the United
States.

        This case is before us on remand from the Supreme Court, which reversed our
decision in McDonough v. Smith, 898 F.3d 259 (2d Cir. 2018), and remanded for further
proceedings consistent with the Supreme Court’s opinion. See McDonough v. Smith, 139
S. Ct. 2149, 204 L. Ed. 2d 506 (2019).

      We now VACATE the judgment of the district court and REMAND for further
proceedings consistent with the opinion of the Supreme Court.1

                                              FOR THE COURT:
                                              Catherine O=Hagan Wolfe, Clerk of Court




1
  We express no view as to whether Smith has waived or forfeited the argument that absolute immunity
bars McDonough’s fabricated-evidence claim. See Brown v. City of New York, 862 F.3d 182, 187-88 (2d
Cir. 2017).

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