     08-2496-cv
     LaPointe v. Winchester Bd of Ed


 1                                          UNITED STATES COURT OF APPEALS
 2                                              FOR THE SECOND CIRCUIT
 3
 4                                                   SUMMARY ORDER
 5
 6   R ULINGS BY SUM M ARY ORD ER D O NO T HAVE PRECEDENTIAL EFFECT . C ITATIO N TO A SU M M ARY O RD ER FILED ON O R AFTER
 7   J AN U ARY 1, 2007, IS PERM ITTED AN D IS GO VERN ED BY F ED ERAL R ULE O F A PPELLATE P RO CED U RE 32.1 AND THIS COU RT ’S
 8   L O CAL R U LE 32.1.1. W HEN CITING A SU M M AR Y O RD ER IN A D OCU M ENT FILED W ITH THIS COU RT , A PARTY M U ST CITE
 9   EITHER TH E F ED ERAL A PPEN D IX O R AN ELECTRO N IC D ATABASE ( W ITH TH E N O TATIO N “ SU M M ARY O RD ER ”). A PARTY
10   CITIN G A SU M M ARY O RD ER M U ST SERVE A CO PY O F IT ON AN Y PARTY N O T REPRESENTED B Y CO U N SEL .
11
12          At a stated term of the United States Court of Appeals for the Second Circuit, held at the
13   Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 18th day
14   of February , two thousand ten.
15
16   PRESENT:
17               DEBRA ANN LIVINGSTON,
18               GERARD E. LYNCH,
19                     Circuit Judges,
20               TIMOTHY C. STANCEU,*
21                     Judge, U.S. Court of International Trade.
22   _______________________________________________
23
24   David G. LaPointe,
25
26                                            Plaintiff-Appellant,
27                                     v.                                                           No. 08-2496-cv
28
29   Winchester Bd of Ed, Robert S. Bixby Jr., Lynn A. Brewer,
30   Scott Goodell, Todd Hayward, Kathleen O’Brien,
31
32                           Defendants-Appellees.
33   ______________________________________________
34
35   For Plaintiff-Appellant:                                          DAVID G. LAPOINTE, pro se,
36                                                                     Winchester, CT.




               *
             Timothy C. Stanceu, of the United States Court of International Trade, sitting by
     designation.
 1   For Defendant-Appellee Winchester
 2   Board of Education:                                  NICOLE D. DORMAN, Karsten, Dorman &
 3                                                        Tallberg, LLC, West Hartford, CT,
 4
 5   For Defendants-Appellees Robert S.
 6   Bixby Jr., Lynn A. Brewer, Scott
 7   Goodell, Todd Hayward and Kathleen
 8   O’Brien:                                             ALEXANDRIA L. VOCCIO, Howd
 9                                                        & Ludorf, LLC, Hartford, CT.
10
11
12          Appeal from a judgment of the United States District Court for the District of

13   Connecticut (Underhill, J.).

14          UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED AND

15   DECREED that the judgment of the district court is AFFIRMED.

16          Appellant David G. LaPointe appeals pro se from an April 21, 2008 judgment of the

17   district court granting summary judgment to the Defendants on his due process and First

18   Amendment claims, brought pursuant to 42 U.S.C. § 1983. We assume the parties’ familiarity

19   with the facts and procedural history of the case, which we reference only as necessary to explain

20   our decision.

21          We review orders granting summary judgment de novo and determine whether the district

22   court properly concluded there was no genuine issue as to any material fact and the moving party

23   was entitled to judgment as a matter of law. See Cronin v. Aetna Life Ins. Co., 46 F.3d 196,

24   202-03 (2d Cir. 1995).

25          On appeal, LaPointe contends that he has a constitutionally protected property interest in

26   his elected position as the Chairman of the Winchester Board of Education sufficient to support a

27   procedural due process claim. We have held, however, that elected officials lack such a



                                                     2
 1   protected property interest in their elected offices because “‘public offices are mere agencies or

 2   trusts, . . . not property.’” Velez v. Levy, 401 F.3d 75, 86 (2d Cir. 2005) (quoting Taylor v.

 3   Beckham, 178 U.S. 548, 577 (1900)); see also Snowden v. Hughes, 321 U.S. 1, 7 (1944)

 4   (reaffirming the holding of Taylor). LaPointe’s attempt to distinguish his claim from those in

 5   Velez, Taylor, and Snowden based on the fact that his “relationship is between [himself] and the

 6   Board,” Appellant’s Br. at 5, rather than between himself and the public is unavailing. After

 7   LaPointe was elected Chairman, his position remained in the realm of a public agency or trust,

 8   and, similarly, the nature of his relation to the public as a public officer did not change. See

 9   Taylor, 178 U.S. at 577. He continued to hold office for the benefit of his community and, if

10   anything, his election to Chairman conferred a heightened responsibility to the public.

11          We decline to consider LaPointe’s First Amendment and substantive due process claims

12   on appeal because his attorney explicitly waived those claims in both LaPointe’s memorandum in

13   opposition to the Defendants’ motion for summary judgment and during oral argument before the

14   district court. See Laza v. Reish, 84 F.3d 578, 580-81 (2d Cir. 1996). We deny LaPointe’s

15   motion to supplement the record on appeal as moot, because the videotapes he seeks to submit

16   are not material to our disposition of this case.

17          We have carefully considered all of LaPointe’s remaining arguments and find them to be

18   without merit. For the reasons stated above, the judgment of the district court is AFFIRMED.
19
20
21
22                                                           FOR THE COURT:
23                                                           Catherine O’Hagan Wolfe, Clerk
24
25
26




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