1 

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. 

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x 

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, 
2 

Individually and in his Official Capacity as a POLICE 

OFFICER within and for the NEW YORK CITY POLICE 

DEPARTMENT, 

Defendants-Appellants. *

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x 

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. 
3 

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