UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A SUMMARY ORDER FILED ON OR AFTER

J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S

L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT

, A PARTY MUST CITE EITHER

THE F EDERAL A PPENDIX 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 16 th day of November, two thousand

and fifteen.

PRESENT: CHESTER J. STRAUB,

RICHARD C. WESLEY,

DEBRA ANN LIVINGSTON,

Circuit Judges

.

________________ _______________ _____________

WINSTON E. HYMAN,

Plaintiff

‐ Appellee

,

‐ v. ‐ No. 14

‐ 3809

CHRISTOPHER B. ABRAMS, in his individual

capacity,

Defendant

‐ Appellant. *

________________ _______________ _____________

* The Clerk of the Court is respectfully requested to amend the caption as indicated.2 FOR APPELLANT: THOMAS MARCELLE, County Attorney (Adam G.

Giangreco, on the brief ), Albany County Department of

Law, Albany, NY.

FOR APPELLEES: JESSICA M. GORMAN, Law Office of Jessica M.

Gorman, Albany, NY.

________________ _______________ _____________

Appeal from the United States District Court for the Northern District of

New York (Mordue, J .).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the decision of the District Court be and

hereby is AFFIRMED

.

Defendant

‐ Appellant Christopher B. Abrams appeals from a decision of

the United States District Court for the Northern District of New York, inter alia

,

denying Abrams qualified immunity from Plaintiff

‐ Appellee Winston E.

Hyman’s action under 42 U.S.C. § 1983. We assume the parties’ familiarity with

the underlying facts, procedural history, and issues on appeal. 1

This Section 1983 action arises from an August 16, 2012 incident at the

Albany County Correctional Facility (“ACCF”) during which, Hyman alleges, he

1 We review de novo a district court’s denial of qualified immunity on a motion to

dismiss, accepting as true all well

‐ pled facts in the complaint, and drawing all

reasonable inferences in the plaintiffs favor. See Benzman v. Whitman

, 523 F.3d 119, 125

(2d Cir. 2008); see also Chambers v. Time Warner, Inc.

, 282 F.3d 147, 152 (2d Cir. 2002).3 was assaulted by a number of sheriff’s deputies and officers, including Abrams.

The District Court granted in part and denied in part defendants’ motion for

partial dismissal pursuant to Federal Rule of Procedure 12(b)(6). Abrams

appeals the denial of qualified immunity as to the individual

‐ capacity claims

against him.

Although, “usually, the defense of qualified immunity cannot support the

grant of a Rule 12(b)(6) motion for failure to state a claim upon which relief can

be granted,” a district court may grant a Rule 12(b)(6) motion on the ground of

qualified immunity if “the facts supporting the defense appear on the face of the

complaint.” McKenna v. Wright

, 386 F.3d 432, 435–36 (2d Cir. 2004) (citing Green

v. Maraio, 722 F.2d 1013, 1018 (2d Cir. 1983)) (internal quotation marks and

alterations omitted). Consequently, “a defendant presenting an immunity

defense on a Rule 12(b)(6) motion instead of a motion for summary judgment

must accept [that]

. . . the plaintiff is entitled to all reasonable inferences from the

facts alleged, not only those that support his claim, but also those that defeat the

immunity defense.” Id. at 436 (citations omitted).

Here, the Complaint alleges that Abrams assaulted Hyman without

provocation. See, e.g., Joint App. 61 (“[W]ithout warning, Defendant Abrams4 grabbed the Plaintiff’s shoulder and shoved him. As the Plaintiff pulled away,

he told the Defendant that he did not need to shove him. This apparently

infuriated Defendant Abrams, who then attacked the handcuffed Plaintiff by

punching him in his right eye.”). The facts appearing on the face of the

Complaint plainly do not support a defense of qualified immunity. See McKenna

,

386 F.3d at 436.

Our conclusion would not differ even were we to assume that ACCF video

footage of the incident referenced in the Complaint, see, e.g., Joint App. 70, 2 was

sufficiently relied upon and “integral” to the Complaint, Chambers v. Time

Warner, Inc

., 282 F.3d 147, 153 (2d Cir. 2002), and could properly be considered

part of the pleadings, c.f. Garcia v. Does

, 779 F.3d 84, 87 n.2 (2d Cir. 2015) (noting

that “[w]e have never addressed whether Fed. R. Civ. P. 10(c), which provides

that a ‘written instrument’ included as an exhibit to a pleading ‘is a part of the

pleading for all purposes,’ extends to videos”). This is because the ACCF video

footage does not contradict or render implausible Hyman’s allegations. As

counsel for Abrams acknowledged at oral argument, the angle and quality of the

video footage make details of the incident difficult to discern and in need of

2 The ACCF video footage of the incident was attached as Exhibit A to Defendants’

Motion for Partial Dismissal. See Dist. Ct. Dkt. No. 37.5 testimonial interpretation. See Transcript of Oral Argument at 13–14, Hyman v.

Abrams

, No. 14

‐ 3809 (2d Cir. Oct. 15, 2015). Abrams’s motion to dismiss on the

ground of qualified immunity must therefore be rejected at this stage. See

Behrens v. Pelletier

, 516 U.S. 299, 307–08 (affirming that a defendant may reaise the

qualified immunity defense at successive stages). “[W]e are free to affirm a

decision on any grounds supported in the record, even if it is not one on which

the trial court relied.” Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400, 405 (2d

Cir. 2006).

We have considered all of Abrams’s remaining arguments and find them

to be without merit. Accordingly, for the reasons set forth above, the decision of

the District Court is AFFIRMED

.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk