     12-1381
     Barnett v. Mount Vernon Police Department



                            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, 40 Foley Square, in the City of New
     York, on the 3rd day of May, two thousand thirteen.

     PRESENT:
                 PIERRE N. LEVAL,
                 ROBERT A. KATZMANN,
                 PETER W. HALL,
                       Circuit Judges.
     _________________________________________

     Tafari Barnett,

                       Plaintiff-Appellee,

                       v.                                                       No. 12-1381

     Mount Vernon Police Department,

                       Defendant,

     Detective Baia, Detective Boncardo,

                 Defendants-Appellants.
     _________________________________________

     For Defendants-Appellants: Hina Sherwani, Assistant Corporation Counsel,
                                Mount Vernon, NY.

     For Plaintiff-Appellee:             Tafari Barnett, pro se, Oakdale, LA.
      Appeal from a decision of the United States District Court for the Southern District
of New York (Daniels, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the decision of the district court is AFFIRMED.

       This is an interlocutory appeal from the district court’s denial of a Rule 12(c)

motion for a judgment on the pleadings. Plaintiff-Appellee Tafari Barnett, proceeding pro

se, filed a complaint alleging that Defendants-Appellants Baia and Boncardo (collectively,

“the defendants”) arrested him without probable cause in violation of 42 U.S.C. § 1983.

The defendants argued that they were entitled to qualified immunity on the pleadings;

however, the district court found that whether the defendants were immune from suit could

not be resolved as a matter of law based on the complaint and the exhibits attached to the

complaint. We assume the parties’ familiarity with the underlying facts, the procedural

history of the case, and the issues on appeal.1

       “[A] district court’s denial of a claim of qualified immunity, to the extent that it

turns on an issue of law, is an appealable ‘final decision’ . . . notwithstanding the absence

of a final judgment.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). As with a motion to

dismiss under Rule 12(b)(6), we review a district court’s decision on a motion for judgment

on the pleadings de novo, accepting the plaintiff’s factual allegations as true and drawing

all reasonable inferences in favor of the plaintiff. Johnson v. Rowley, 569 F.3d 40, 43-44

(2d Cir. 2009). We, like the district court, must consider only those facts alleged in the

complaint, documents attached to the complaint as exhibits or incorporated by reference,

       1
          Although Barnett has failed to file a brief responding to the defendants’ arguments,
an appellee’s failure to file a brief on appeal does not divest this court of appellate
jurisdiction. Chao v. Russell P. Le Frois Builder, Inc., 291 F.3d 219, 225-26 (2d Cir. 2002).

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and items of which judicial notice may be taken. See Samuels v. Air Transp. Local 504,

992 F.2d 12, 15 (2d Cir. 1993).

         As a result of this standard of review, a defendant asserting a qualified immunity

defense on a motion to dismiss “faces a formidable hurdle . . . and is usually not

successful.” Field Day, LLC v. County of Suffolk, 463 F.3d 167, 191-92 (2d Cir. 2006).

The defense will succeed only where entitlement to qualified immunity can be established

“based [solely] on facts appearing on the face of the complaint.” McKenna v. Wright, 386

F.3d 432, 436 (2d Cir. 2004). For these reasons, a motion to dismiss “is a mismatch for

immunity and almost always a bad ground of dismissal.” Id. (quoting Jacobs v. City of

Chicago, 215 F.3d 758, 775 (7th Cir. 2000) (Easterbrook, J., concurring in part)). Because

the standard of review is the same on a motion for judgment on the pleadings, see Johnson,

569 F.3d at 43-44, the hurdle for the defendants here is similarly formidable. Defendants

moving to dismiss a suit by reason of qualified immunity would in almost all cases be well

advised to move for summary judgment, rather than for dismissal under Rule 12(b)(6) or

12(c).

         The existence of either actual probable cause or arguable probable cause establishes

qualified immunity from a false arrest claim, see Savino, 331 F.3d at 76; therefore, the sole

issue on this appeal is whether the defendants can demonstrate based only on the complaint

and documents attached to the complaint that probable cause existed for Barnett’s arrest.

We agree with the district court that the defendants have failed to show “on the face of the

complaint” that probable cause or arguable probable cause existed to arrest Barnett. See

McKenna, 386 F.3d at 436.


                                               3
       The complaint alleges that the defendants relied solely on the victim Dwight

Douse’s identification of Barnett in a photo array to establish probable cause even though

Douse actually identified someone else in the array. As the district court found, Barnett

pled sufficient facts to plausibly indicate that Douse identified someone other than the

plaintiff and that the defendants did not have probable cause to arrest Barnett based on

Douse’s identification. Therefore, the defendants are not entitled to qualified immunity on

the pleadings unless the documents attached by Barnett to his complaint (or any documents

incorporated by reference into the complaint) demonstrate that the defendants had probable

cause for other reasons.

       Although the defendants point to additional evidence that they contend establishes

probable cause, they glean most of that evidence from documents that were not included

with the complaint. This evidence, as the district court explicitly notified the defendants,

could only be considered on a motion for summary judgment and not on a motion for

judgment on the pleadings. The only facts contained in, or attached to, Barnett’s complaint

that could demonstrate probable cause for his arrest were statements in a transcript of a

police interview of Douse on August 27, 2009, when he was first shown a photo array.

These recorded statements were Douse’s statements that he was with Nordia Wright at the

time of the assault and that he had heard that Nordia was the mother of Barnett’s child, and

a statement of one of the defendant police officers to Douse that “[i]n Nordia’s original

Police Report she lists Tafari Barnett as the suspect.” The meaning of the apparently

paraphrased, hearsay statement attributed by the police officer to Nordia is too unclear to

establish that she was naming Barnett as the assailant.


                                              4
       Other evidence submitted by the defendants provides additional information about

Wright’s initial identification of Barnett and subsequent withdrawal of her identification

and might well demonstrate that the defendants had probable cause. The defendants

contend that we should consider this information. However, the documents containing the

relevant information cannot reasonably be construed as incorporated by reference into

Barnett’s complaint because he did not even mention them. As the district court explained,

“[t]hose facts are not the basis of Plaintiff’s allegations in his complaint,” Barnett v. Mount

Vernon Police Dep’t, No. 10 Civ. 03899, 2012 WL 733865, at *2 (S.D.N.Y. Mar. 5, 2012),

and we therefore cannot consider them on a motion for judgment on the pleadings.

       The defendants can, however, renew their qualified immunity defense upon a

motion for summary judgment with the district court. Additionally, the district court would

be well within its discretion to limit any discovery to the issue of qualified immunity, and

we express no opinion concerning any other limits that the district court might impose on

the discovery process. As the Supreme Court has explained, qualified immunity must be

addressed promptly before a public official is dragged through an entire litigation. See

Butz v. Economou, 438 U.S. 478, 507-08 (1978).

       We have considered the defendants’ remaining arguments and find them to be

without merit. Accordingly, the decision of the district court is hereby AFFIRMED.

                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




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