13-4130-cv
Biswas v. Kwait
                                    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 25th day of August, two thousand fourteen.

PRESENT:

           JOSÉ A. CABRANES,
           CHESTER J. STRAUB,
           RAYMOND J. LOHIER, JR.,
                                Circuit Judges.
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KRITTIKA BISWAS,

                     Plaintiff-Appellee,
                     -v.-                                                                  No. 13-4130-cv

HOWARD KWAIT, Individually and in his official capacity
as a PRINCIPAL within and for the NEW YORK CITY
DEPARTMENT OF EDUCATION at JOHN BOWNE HIGH SCHOOL,
JAMIE KIM ROSS Individually and in her capacity as a TEACHER
within and for the NEW YORK CITY DEPARTMENT OF
EDUCATION at JOHN BOWNE HIGH SCHOOL, ELAYNA
KONSTAN, Individually and in her official capacity as
CHIEF EXECUTIVE OFFICER of the NEW YORK CITY
DEPARTMENT OF EDUCATION, OFFICE OF SCHOOL AND
YOUTH DEVELOPMENT, POLICE OFFICER “JANE DOE”
MALDONADO (107 Precinct, possible shield #10559),
Individually and in her official capacity as a POLICE
OFFICER within and for the NEW YORK CITY POLICE
DEPARTMENT, so named because her exact identity has yet
to be confirmed, POLICE OFFICER LARRY GRANSHAW,



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Individually and in his Official Capacity as a POLICE
OFFICER within and for the NEW YORK CITY POLICE
DEPARTMENT,
                      Defendants-Appellants. *
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FOR PLAINTIFF-APPELLEE:                                                    RAVI BATRA, The Law Firm of Ravi Batra,
                                                                           P.C., New York, NY.

FOR DEFENDANTS-APPELLANTS:                                     MICHAEL J. PASTOR (Kristin M. Helmers, on
                                                               the brief), on behalf of Jeffrey D. Friedlander
                                                               Acting Corporation Counsel of the City of
                                                               New York, New York, NY.

       Appeal from the September 30, 2013 judgment of the United States District Court for the
Southern District of New York (John G. Koeltl, Judge).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the appeal from the September 30, 2013 judgment of the District Court be
DISMISSED for lack of jurisdiction.

        Plaintiff-appellee Krittika Biswas brings this action, in relevant part, against two New York
City Police Department officers and several employees of the New York City Department of
Education (jointly with NYPD, defendants) alleging violations of her right to due process and to be
free from false arrest, malicious prosecution and excessive force under 42 U.S.C. § 1983 and
analogous state law. In a September 30, 2013 Opinion and Order, the District Court granted in part
and denied in part defendants’ motion to dismiss. Defendants now appeal the Order insofar as it
denied individual defendants qualified immunity on the above claims. We assume familiarity with
the factual and procedural history of the case, and the issues on appeal.
         We review de novo a district court’s denial of a motion to dismiss based on qualified
immunity. Benzman v. Whitman, 523 F.3d 119, 125 (2d Cir. 2008). Qualified immunity is
appropriately granted on a Rule 12(b)(6) motion only if it is based on facts appearing on the face of
the complaint, exhibits to the complaint, documents incorporated by reference, and items of which
judicial notice may be taken. See McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004); Samuels v. Air
Transp. Local 504, 992 F.2d 12, 15 (2d Cir. 1993). Where “the availability of qualified immunity
cannot [ ] be determined as a matter of law, we lack appellate jurisdiction” to review the denial of
that defense. McKenna, 386 F.3d at 438 (citing Behrens v. Pelletier, 516 U.S. 299, 313 (1996)).



          * The Clerk of Court is directed to amend the official caption in this case to conform to the listing of the

parties above.



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         Nothing on the face of the Complaint establishes that any defendant is entitled to qualified
immunity as a matter of law. To the extent that exhibits to the Complaint or documents
incorporated by reference suggest that qualified immunity may be appropriate, these documents at
best raise questions of fact. These questions may be resolved on a motion for summary judgment
when plaintiff “can [no longer] rely on allegations in the complaint, but must counter the movant’s
affidavits with specific facts showing the existence of genuine issues warranting a trial,” Id. at 436.
They cannot, however, be resolved at this early stage in light of the plausible allegations in the
Complaint. Accordingly, we lack jurisdiction to review the denial of qualified immunity.
                                           CONCLUSION
        We have considered all of defendants’ arguments and find them to be without merit. For
the reasons set out above, the appeal from the September 30, 2013 judgment of the District Court is
DISMISSED for lack of jurisdiction.
                                                FOR THE COURT,
                                                Catherine O’Hagan Wolfe, Clerk of Court




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