The case is Hyman v. Abrams, a summary order decided on November 16. Plaintiff was in the County jail for God-knows-what. He claims that sheriff's deputies and officers assaulted him. Abrams filed a motion to dismiss on qualified immunity grounds. That motion was denied, and Abrams takes up an appeal. Here's the basic rule when defendants seek qualified immunity under Rule 12:
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.”Not here. The complaint alleges that Abrams assaulted plaintiff without provocation. Plaintiff alleges, "[W]ithout warning, Defendant Abrams 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.” There is no way that Abrams can get the case dismissed at this early stage, not with an allegation like this. If there is actually merit to the case and discovery shows that plaintiff was not assaulted without provocation, then Abrams can file a motion for summary judgment at the close of discovery. But that is months and months from now. For now, Abrams has to defend the case on the merits.