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.
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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.
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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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