Case 1:04-cv-08437-PAC Document 1 Filed 10/28/04 Page 1 of 32

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK --------------------------------------------------------------------------------x DR. OLIVER JOVANOVIC,

Plaintiff,

COMPLAINT

-against-

04 CV 8437 (CRC)

JURY TRIAL DEMANDED

ECF CASE

THE CITY OF NEW YORK, DETECTIVE MILTON BONILLA, Shield No. 61, individually and in his official capacity, New York County Assistant District Attorney LINDA FAIRSTEIN, individually and in her official capacity, and New York County Assistant District Attorney GAIL HEATHERLY, individually and in her official capacity,

Defendants. --------------------------------------------------------------------------------x

Plaintiff, DR. OLIVER JOVANOVIC, by his attorney, Jon L. Norinsberg, complaining of the defendants, respectfully alleges as follows:
PRELIMINARY STATEMENT 1. Plaintiff brings this action for compensatory damages, punitive damages and attorney’s fees pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1988 for violations of his civil rights, as said rights are secured by said statutes and the Constitution of the United States.
JURISDICTION 2. This action is brought pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1988, and the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution. 3. Jurisdiction is founded upon 28 U.S.C. §§ 1331, 1343 and 1367.

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VENUE 4. Venue properly lies in the Southern Disrtict of New York under 28 U.S.C.§ 1391(b), in that this is the District in which the claim arose.
JURY DEMAND 5. Plaintiff respectfully demands a trial by jury of all issues in this matter pursuant to Fed. R. Civ. P. 38(b).
PARTIES 6. Plaintiff, DR. OLIVER JOVANOVIC (“OLIVER JOVANOVIC”), was at all relevant times a resident of the City and State of New York. 7. Defendant, THE CITY OF NEW YORK, was and is a municipal corporation duly organized and existing under and by virtue of the laws of the State of New York. 8. Defendant, THE CITY OF NEW YORK, maintains the New York City Police Department, a duly authorized public authority and/or police department, authorized to perform all functions of a police departm ent as per the applicable sections of the New York State Crim inal Procedure Law, acting under the direction a nd supervision of the aforem entioned municipal corporation, the City of New York. 9. At all times hereinafter mentioned, the individually named defendant DETECTIVE MILTON BONILLA (“MILTON BONILLA”) was a duly sworn police officer of said department and was acting under the supervision of said department and according to his official duties. 10. Defendant, THE CITY OF NEW YORK, maintains the New York County District Attorney’s Office, a municipal agency created and authorized under the laws of the State of New York to investigate and prosecute criminal conduct within the County and City of New York.
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11. At all times hereinafter mentioned defendant LINDA FAIRSTEIN (“FAIRSTEIN”) was the Chief of the Sex Crimes Unit of the New York County District Attorney’s Office, and as such, was responsible for the policies, practices and customs of the Sex Crimes Unit, as well as the training, retention, supervision, discipline, counselingand control of the assistant district attorneys who worked under her command and in this unit.
12. At all times hereinafter mentioned, defendant GAIL HEATHERLY, was an officer, employee and agent of the New York County District Attorney’s Office, and an Assistant District Attorney working under Defendant FAIRSTEIN in the Sex Crimes Unit.
13. At all times hereinafter mentioned the defendants, either personally or through their employees, were acting under color of state law and/or in com pliance with the official r ules, regulations, laws, statutes, customs, usages and/or practices of the State or City of New York.
14. Each and all of the acts of t he defendants alleged herein were done by said defendants
while acting within the scope of their employment by defendant City of New York. 15. Each and all of the acts of the defendants alleged herein were done by said
defendants while acting in furtherance of their employment by defendant City of New York. FACTS
16. On December 5, 1996, at approximately 11:00 a.m., plaintiff OLIVER JOVANOVIC was lawfully inside of his apartment at 680 Fort Washington Avenue, in the County, City and State of New York.
17. At the aforesaid time and place, Defendant MILTON BONILLA, a detective with the Special Victims Squad of theNew York City Police Department, arrived at plaintiff’s apartment.
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18. Thereafter, defendant MILTON BONILLA ordered plaintiff to get dressed and go with him to the 26th precinct for purposes of being interrogated.
19. Defendant MILTON BONILLA refused toprovide plaintiff OLIVER JOVANOVIC with any information as to the nature of this interrogation.
20. Defendant MILTON BONILLA attempted to question plaintiff OLIVER JOVANOVIC without an attorney being present.
21. When plaintiff OLIVER JOVANOVIC requested an attorney, he was immediately placed under arrest.
22. At the time of his arrest, plaintiff OLIVER JOVANOVIC was a 30- year-old doctoral candidate at Columbia University who had previously earned a B.A. and M.S. fromthe University of Chicago, and an M.A. and M.Ph. fromColumbia University. He had never before been arrested.
The Allegations of the Complaining Witness 23. On November 27, 1996, the purported “victim”, JAMIE RZUCEK (“RZUCEK”) a 20-year-old Barnard College student, spoke withdefendant MILTON BONILLA and told himthat she had been sexually assaulted by plaintiff OLIVER JOVANOVIC for 20 hours, starting on the night of November 22, 1996 and continuing through the day of November 23, 1996. 24. Specifically, RZUCEK claimed, inter alia, that plaintiff OLIVER JOVANOVIC: (1) had raped and sodomized her; (2) had violently rammed a police baton into her anus and vagina, resulting in bleeding; (3) had struck her repeatedly with a club, resulting in multiple bruises to her thighs; (4) had severely burned her with hot candle wax; (5) had bitten her breasts and shoulders until she bled profusely; (6) had hogtied her against her will for nearly 20 hours; and (7) had repeatedly gagged her with a variety of materials, including duct tape, packing tape, cotton and an ace bandage.
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The Medical Findings 25. Each one of RZUCEK’s claims was contradicted by medical evidence obtained within days of the alleged incident. 26. On November 27, 1996, RZUCEK was given a comprehensive anal and vaginal examination by a gynecologist at Barnard Health Services, Dr. Chin Quee. 27. Dr. Quee found no bruises, scratches or abrasions in the vaginal area, and no lacerations, bruises or fissures in the anal area. 28. Dr. Quee found no vaginal bleeding and no rectal bleeding, even though RZUCEK told her she had experienced vaginal bleeding for three days. 29. The results of a hemoccult test – a very sensitive test to detect traces of blood in the stool – were negative. 30. There were no bruises on RZUCEK’s thighs, no burn marks, no teeth marks and no scabbing, swelling, redness or tenderness in the nipple area. The Forensic Findings 31. There was also no forensic evidence to support any of RZUCEK’s claims. 32. Testing revealed that there was no trace of plaintiff’s DNA found on RZUCEK, on her clothing, or on any of her undergarments worn on the night of the alleged assault. 33. There was no blood found on any of RZUCEK’s underclothing or on any of her clothes, despite her claim that she had bled profusely from her breasts, anus and vagina. 34. There was no candle wax found on any of RZUCEK’s garments and no burn marks were discovered on her body. 35. There were no ligature marks found anywhere on RZUCEK’s body, despite her claim that she had been hogtied for 20 hours and had thrashed violentlyagainst the ropes in an effort to escape.
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36. There were no abrasions, cuts or tape marks found on RZUCEK’s lips or face, despite her claim that she had been repeatedly and violently gagged during the incident.
37. The hair and fiber tests were negative, showing no signs of a violent struggle or sexual assault, although a pubic hair belonging to an unknown third party was f ound inside of RZUCEK’s panties.
The Credibility of the Accuser 38. Apart from the lack of any medical or forensic evidence, there were significant reasons to doubt RZUCEK’s credibility. 39. Within days of the purported incident, RZUCEK had given multiple and contradictory accounts of the alleged assault, changing critical facts each time she recounted the event. 40. RZUCEK had a history of making false sexual allegations, and in fact had falsely accused her own father and uncle of sexual molestation. 41. RZUCEK had also encouraged an acquaintance to file a false rape copmlaint against an NYU student only one week prior to the alleged incident. 42. RZUCEK had waited almost four days before seeking any medical attention, despite her claims of experiencing profuse bleeding, severe burns and intense pain. 43. RZUCEK did not speak with Barnard security, the police or any other law enforcement agency until four days after the alleged incident. 44. After extensively interviewing RZUCEK on November 27, 1996, defendant MILTON BONILLA did not then place OLIVER JOVANOVIC under arrest, despite RZUCEK’s claims of being brutally tortured, raped and sodomized. 45. Defendant MILTON BONILLA waited 9 days prior to arresting plaintiff OLIVER JOVANOVIC.
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46. During this 9-day period, from the time of the initial complaint to the time of the arrest, defendant MILTON BONILLA conducted no further investigation into this matter.
47. Notwithstanding the lack of any medical or forensic evidence, on December 5, 1996, defendant MILTON BONILLA arrested plaintiff OLIVER JOVANOVIC and charged him with committing multiple offenses, including Rape, Sodomy, and Unlawful Imprisonment.
48. Defendant MILTON BONILLA arrestedplaintiff OLIVER JOVANOVIC only after being pressured to do so by third parties.
The Search of Plaintiff’s Apartment 49. On December 5, 1996, after plaintiff was arrested, defendant MILTON BONILLA and several other police officers conducted a searchof his premises, located at 680 Ft. Washington Avenue, Apartment 2F, in the City, County and State of New York. 50. Police were looking to find the items which had allegedly been used by plaintiff in the attack against RZUCEK. 51. Specifically, police were looking to find, inter alia, a police baton, candles, candle wax, a blindfold, cloth strips, duct tape, packing tape, and ace bandages. 52. No such items were ever recovered from plaintiff OLIVER JOVANOVIC or his apartment. 53. During this search, multiple photographs were taken of the interior of plaintiff’s apartment. 54. The photographs revealed that none of theitems described in Paragraph “51", supra, were inside of plaintiff OLIVER JOVANOVIC’s apartment. 55. These photographs, taken by two separate investigative teams, were subsequently “lost” by defendant MILTON BONILLA and/or the New York City Police Department.
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Bonilla’s Post-Search Activities 56. After the search was executed, defendant MILTON BONILLA prepared certain police reports and forwarded them to prosecutors in the New York County District Attorney’s Office. 57. These reports contained false and misleading information regarding the arrest of plaintiff OLIVER JOVANOVIC, as well as the evidence allegedly collected from his apartment. 58. In addition to these reports, defendant MILTON BONILLA told prosecutors from the New York County District Attorney’s office that he had obsevred certain incriminating evidence inside of plaintiff’s apartment, when he knew this claim to be untrue. 59. Defendant MILTON BONILLA also told prosecutors from the New York County District Attorney’s office that plaintiff OLIVER JOVANOVIC had conspired to obstruct the police at the time of the search, and had destroyed certainincriminating evidence prior to the search, when he knew these claims to be untrue. 60. Thereafter, defendant MILTON BONILLA repeated the above false and misleading claims before the grand jury, the trial judge and the petit jury. The Arraignment 61. On December 6, 1996, plaintiff OLIVER JOVANOVIC was arraigned before the Honorable Michael Gross, in the Criminal Court of the City of New York, County of New York, at 100 Centre Street. 62. Defendant LINDA FAIRSTEIN (“FAIRSTEIN”), the Chief of the Sex Crimes Unit of the New York County District Attorney’sOffice, personally appeared at the arraignment of plaintiff OLIVER JOVANOVIC as the sole representative of that office.
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Defendant Fairstein’s Post-Arraignment Statements to the Press

63. In the days following plaintiff OLIVER JOVANOVIC’s arraignment, defendant

FAIRSTEIN spoke to numerous news reporters a nd was quoted extensively in local newspaper

articles.

64. In these articles, defendant FAIRSTEIN made a number of highly inflammatory and

prejudicial remarks about plaintiff OLIVER JOVANOVIC, none of which was true.

65. The following statements in the articles were attributed directly to defendant

FAIRSTEIN and illustrate the type ofextrajudicial remarks that defendant FAIRSTEIN made to the

press in the days following plaintiff’s arraignment:

•

“He terrorized this young woman to the point that she was too frightened to

call the authorities until weeks after it happened”;

•

“He tied her to a chair, undressed her, and tortured her with sex toys and

other objects for almost a full day”;

•

“[H]e tortured and sexually abused the woman, burning her with candle wax,

biting her, sexually assaulting her and threatening to disme mber her as

Jeffrey Dahmer, the serial killer, had done with his victims”;

•

He “tied the woman’s legs to a chair and gagged her before sexually torturing

her”;

•

“[H]e was so prepared for this and carried it off so smoothly”;

•

“We believe this was not the first time he did something like this”; and

•

“We believe there are other victims.”

66. Defendant FAIRSTEIN’s comments made the headlines of all local newspapers.

One New York Post cover page, for example, screamed “Prosecutor: Cyber fiend struck before” and

“HOW MANY MORE VICTIMS? ”, while featuri ng a full page picture of plaintiff OLIVER

JOVANOVIC.

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67. In addition to the foregoing, defendant FAIRSTEIN repeatedly emphasized to the press that this was her office’s “first Internet-related sex prosecution” and that the case represented a “whole new entry in the acquaintance-rape category.”
The Pre-Trial Publicity 68. Defendant FAIRSTEIN, through her extrajudicial statements to the press, created a highly prejudicial and inflamed atmosphere against plaintiff OLIVER JOVANOVIC. 69. In local newspapers, plaintiff OLIVER JOVANOVIC became known as the “Cybersex Fiend” and “Cybersex Suspect”, and his case became known as the “Cyber Torture” case. 70. In the first two weeks after plaintiff’s arrest, there were 76 articles in local newspapers which repeated defendant FAIRSTEIN’S false statements. Plaintiff’s case became a cover page story. 71. In these articles, plaintiff OLIVER JOVANOVIC was repeatedly portrayed as a serial killer and “Cyberfiend”, and was often compared with Jeffrey Dahmer. 72. The “Cybersex” story was picked up by the Associated Press, which extensively
quoted defendant FAIRSTEIN and her false allegations against plaintiff OLIVER JOVANOVIC.
73. Major television networks and radio stations soon joined the coverage, and the story began to receive national and international attention.
74. Throughout the pre-trial proceedings, defendant FAIRSTEIN continued to provide highly damaging “leaks” to the press, including but notlimited to, releasing select portions of the e-mail correspondence between plaintiff OL IVER JOVANOVIC and RZUCEK whic h further demonized plaintiff.
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75. Defendant FAIRSTEIN knew that the pre-trial publicity that she had generated would have an impact on prospective jurors inthe criminal trial ofplaintiff OLIVER JOVANOVIC.
76. In an interview given to the Media StudiesJournal in the winter of 1998, just months prior to plaintiff OLIVER JOVANOVIC’s trial,defendant FAIRSTEIN acknowledged the damaging impact that pre-trial publicity can have on prospective jurors:
The period of greatest impact is pretrial because that could be anywhere from three months to a year. Depending on t he coverage, people can becom e immersed in reading about the case. And fromthis reading-and-listening public come the people who sit on our juries. After the trial has begun, the jurors are given a rule – that they don’t read or listen to media accounts of the case. Most people try hard to comply. But it’s almost impossible with the highest-profile cases for it to really happen. When a case like Chambers, the jogger, the subway bomber or the World Trade Center bomber is on trial in New York – and it is literally a page A1 headline – our jurors are coming to work on the subway and the bus .... I mean you can’t sit on a train and not see what’s there. ... And you deal with a jury pool that is just saturated with that kind of information. You hope that you get jurors who are telling you the truth, that they can set aside what they’ve heard and just listen to the evidence in the courtroom. In the end, both s ides use the press to great advantage before you get anywhere near the trial stage. (emphasis supplied)
77. Defendant FAIRSTEIN acknowledged in the same interview that “it’s inappropriate for prosecutors to be spinning the case to the media”, and as a result, “we don’t try our cases on the courtroom steps or to the press. We try them in the courtroom.”
78. Notwithstanding the above-stated policy,defendant FAIRSTEIN continued to make extrajudicial statements to the press and/or provide damaging “leaks” to the media throughout all phases of the criminal proceedings against plaintiff OLIVER JOVANOVIC.
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79. As a result of defendant FAIRSTEIN’s conduct, the prejudicial news coverage continued up to and including the trial, and influecned the ability of the jurypool and the jurors who sat on the case to be fair and im partial, and al so influenced t he testimony of witnesses, jury deliberations, and, ultimately, the outcome of the case.
The Verdict, The Appeal and The Subsequent Dismissal 80. On April 15, 1998, plaintiff OLIVERJOVANOVIC was convicted of Kidnaping in the First Degree, three counts of Sexual Abuse in the First Degree, Assault in the Second Degree and Assault in the Third Degree. 81. Thereafter, the Honorable William A. Wetzel sentenced plaintiff OLIVER JOVANOVIC to 15 years to life in prison. 82. On December 21, 1999, the Appellate Division of the New York State Supreme Court reversed plaintiff’s conviction, finding inter alia, that Justice William A. Wetzel had “improperly hampered the defendant’s ability to present a defense” by erroneously invoking the rape-shield law to deny the jury access to key evidence in the case. 83. In anticipation of a second trial, the porsecution repeatedly offered plaintiff OLIVER JOVANOVIC plea deals in which he would avoid any further time in prison if he would plead guilty to a single felony charge. 84. When plaintiff refused to consider any ofthese offers, the prosecution offered a plea deal in which plaintiff OLIVER JOVANOVIC would avoid any further incarceration, any felony record and any sex offender status if he would plead guilty to a singl e non-sexual, misdemeanor charge.
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85. Plaintiff OLIVER JOVANOVIC refused to accept this offer – despite facing a mandatory 15-year-to-life sentence on the felony Kidnapping charge – and insisted upon going forward with the second trial.
86. On the eve of re-trial on November 1, 2001, the prosecution moved to dismiss all charges against plaintiff OLIVER JOVANOVIC. The motion was granted.
87. On November 1, 2001, all charges against plaintiff OLIVER JOVANOVIC were dismissed with prejudice.
Plaintiff’s Damages 88. As a result of his unlawful arrest and prosecution, plaintiff OLIVER JOVANOVIC was incarcerated for one week at Rikers Island prior to trial, and 20 months in Rikers Island and state prisons following his conviction. 89. During this time, plaintiff OLIVER JOVANOVIC was repeatedly threatened and attacked by other inmates. 90. On one occasion while in prison, plaintiff OLIVER JOVANOVIC was stabbed in the neck and had his throat slashed by another inmate, and came within inches of losing his life. 91. Apart from the violence and hardships of prison life, plaintiff OLIVER JOVANOVIC suffered severe damage to his career and reputation. 92. At the time of his arrest on December 5, 1996, plaintiff had completed his research at Columbia University for a Ph.D. degree inMicrobiology, had written his doctoral thesis, and was scheduled to defend his thesis to the faculty on December 20, 1996. 93. As a direct result of his unlawful arrest and prosecution, plaintiff OLIVER JOVANOVIC was prevented for over five years from defending his thesis and obtaining his Ph.D.
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in Microbiology. 94. It was not until May 7, 2002, that plaintiff OLIVER JOVANOVIC was able to
defend his doctorate and earn a Ph.D. with dis tinction from Columbia University, as well as departmental honors for outstanding and innovative work.
95. Notwithstanding this accomplishment, plaintiff OLIVER JOVANOVIC suffered substantial economic losses as a result of his unlawful arrest and prosecution, including but not limited to, six years of lost wages as a specialist in computational biology.
96. In addition, plaintiff OLIVER JOVANOVIC was forced to incur substantial attorneys’ fees in connection with his defense, including but not limited to, legal fees for handling the trial, the appeal, and preparation for the second trial.
97. Apart from deprivation of liberty and economic losses, plaintiff OLIVER JOVANOVIC also suffered severe em otional distress and psychological dam age as a result of defendants’ unlawful actions, as well as permanent and irreparable damage to his good name and reputation.
FIRST CLAIM FOR RELIEF FALSE ARREST UNDER 42 U.S.C. § 1983 98. Plaintiff repeats, reiterates and realleges each and every allegation contained in paragraphs numbered “1" through “97" with the same force and effect as if fully set forth herein. 99. As a result of defendant’s aforesaid conduct, plaintiff OLIVER JOVANOVIC was subjected to an illegal, improper and false arrest by defendant MILTON BONILLA and was taken into custody and caused to be falsely imprisoned, detained, confined, incarcerated and prosecuted by the defendants in criminal proceedings, without any probable cause, privilege or consent.
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100. As a result of the foregoing, plaintiff’s liberty was restricted for an extended period of time, he was put in fear for his safety, he was attacked by other inmates, he was physically and emotionally injured, he was repeatedly strip-searched and humiliated, and he suffered substantial economic losses and permanent damage to his reputation.
SECOND CLAIM FOR RELIEF MALICIOUS PROSECUTION UNDER 42 U.S.C. § 1983 101. Plaintiff repeats, reiterates and realleges each and every allegation contained in paragraphs numbered “1" through “100" with the same force and effect as if fully set forth herein. 102. Defendant MILTON BONILLA misrepresented and falsified evidence before prosecutors in the New York County District Attorney’s office. 103. Defendant MILTON BONILLA did not make a complete and full statement of material facts to prosecutors in the New York County District Attorney’s office. 104. Defendant MILTON BONILLA withheld exculpatory evidence from prosecutors in the New York County District Attorney’s office. 105. Defendant MILTON BONILLA misrepresented and falsified evidence before the grand jury. 106. Defendant MILTON BONILLA did not make a complete and full statement of facts to the grand jury. 107. Defendant MILTON BONILLA withheld exculpatory evidence fromthe grand jury. 108. Defendant MILTON BONILLA was directly and actively involved in the initiation of criminal proceedings against plaintiff OLIVER JOVANOVIC. 109. Defendant MILTON BONILLA lacked probable cause to initiate criminal proceedings against plaintiff OLIVER JOVANOVIC.
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110. Defendant MILTON BONILLA acted with malice in initiating criminal proceedings against plaintiff OLIVER JOVANOVIC.
111. Defendant MILTON BONILLA was directly and actively involved in the continuation of criminal proceedings against plaintiff OLIVER JOVANOVIC.
112. Defendant MILTON BONILLA lacked probable cause to continue criminal proceedings against plaintiff OLIVER JOVANOVIC.
113. Defendant MILTON BONILLA acted with malice in continuing criminal proceedings against plaintiff OLIVER JOVANOVIC.
114. Defendant MILTON BONILLA misrepresented and falsified evidence throughout all phases of the criminal proceeding.
115. Notwithstanding the perjurious and fraudulent conduct of defendant MILTON BONILLA, the criminal proceedings were terminated in plaintiff’s favor on November 1, 2001, when all charges against plaintiff OLIVER JOVANOVIC were dismissed with prejudice.
116. As a result of the foregoing, plaintiff OLIVER JOVANOVIC was subjected to a baseless prosecution, his liberty was restricted for anextended period of time, he was put in fear for his safety, he was attacked by other inm ates, he was physically and em otionally injured, he was repeatedly strip-searched and humiliated, and hesuffered substantial economic losses and permanent damage to his reputation.
THIRD CLAIM FOR RELIEF MALICIOUS ABUSE OF PROCESS UNDER 42 U.S.C. § 1983 117. Plaintiff repeats, reiterates and realleges each and every allegation contained in paragraphs numbered “1" through “116" with the same force and effect as if fully set forth herein. 118. Defendant MILTON BONILLA issued legal process against plaintiff OLIVER JOVANOVIC.
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119. Defendant MILTON BONILLA issued legal process against plaintiff OLIVER JOVANOVIC to obtain a collateral objective outside the legitimate ends of the legal process.
120. Defendant MILTON BONILLA acted with intent to do harm to plaintiff OLIVER JOVANOVIC, without excuse or justification.
121. As a result of the foregoing, plaintiffOLIVER JOVANOVIC’s liberty was restricted for an extended period of time, he was put in fear for his safety, he was attacked by other inmates, he was physically and emotionally injured, he was repeatedly strip-searched and humiliated, and he suffered substantial economic losses and permanent damage to his reputation.
FOURTH CLAIM FOR RELIEF DENIAL OF CONSTITUTIONAL RIGHT TO FAIR TRIAL UNDER 42 U.S.C. § 1983 DUE TO FABRICATION OF EVIDENCE 122. Plaintiff repeats, reiterates and realleges each and every allegation contained in paragraphs “1" through “121" as if the same were more fully set forth at length herein. 123. Defendant MILTON BONILLA created false evidence against plaintiff OLIVER JOVANOVIC. 124. Defendant MILTON BONILLA forwarded false evidence and false information to prosecutors in the New York County District Attorney’s office. 125. Defendant MILTON BONILLA misled the grand jury, the trial judge and the prosecutors by creating false evidence agains t plaintiff OLIVER JOVANOVIC and thereafter providing false testimony throughout the criminal proceedings. 126. In creating false evidence against plaintiff OLIVER JOVANOVIC, in forwarding false evidence and inform ation to prosecutors, and in providing fa lse and misleading testimony, defendant violated plaintiff’s constitutional right to a fair trial under the Due Process Clause of the Fifth and Fourteenth Amendments of the United States Constitution.
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127. As a result of the defendant MI LTON BONILLA’S unlawful actions, plaintiff OLIVER JOVANOVIC’s liberty was restricted for an extended period of time, he was put in fear for his safety, he was attacked by other inmates, he was physically and emotionally injured, he was repeatedly strip-searched andhumiliated, and he suffered substantial economic losses and permanent damage to his reputation.
FIFTH CLAIM FOR RELIEF DENIAL OF FAIR TRIAL UNDER 42 U.S.C. § 1983 DUE TO EXTRAJUDICIAL STATEMENTS MADE BY THE PROSECUTION 128. Plaintiff repeats, reiterates and realleges each and every allegation contained in paragraphs “1" through “127" as if the same were more fully set forth at length herein. 129. Defendant FAIRSTEIN made extrajudicial statements to the press regarding OLIVER JOVANOVIC. 130. Defendant FAIRSTEIN knew that her extrajudicial statements about plaintiff OLIVER JOVANOVIC were false and/or misleading. 131. Defendant FAIRSTEINmade such extrajudicial statements in order to gain an unfair advantage over plaintiff OLIVER JOVANOVIC at trial. 132. Defendant FAIRSTEIN made such extrajudicial statements in order to create a “highprofile” case that would advance her own career goals and/or generate publicity for the sale of her crime novels. 133. Defendant FAIRSTEIN knew that her extrajudicial statements about plaintiff OLIVER JOVANOVIC would be reported by various media outlets, including newspapers, radio stations and television networks. 134. Defendant FAIRSTEIN knew that her extrajudicial statements about plaintiff OLIVER JOVANOVIC would create a highly prejudiciaal nd inflamed atmosphere against plaintiff.
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135. As a result of defendnat FAIRSTEIN’s extrajudicial statements to the press, plaintiff

OLIVER JOVANOVIC was the subject of extensive and highly prejudicial news coverage.

136. This negative publicity influenced the ability of the jury pool and jurors who sat on

the case to be fair and impartial, and also influenced the testimony of several important witnesses

at trial and the deliberations of the jury.

137. For example, one material witness, Mary Jo Parlier Chambers, testified about critical

“facts” that she had actually learned from reading a newspaper article.

138. These “facts”, as testified to by Ms. Chambers, were addressed by both parties

during summations and were the subject of a read-back requested by the jury during t

heir

deliberations.

139. Throughout the trial, there were several other material witnesses whose testimony

was influenced by the pre-trial publicity, includnig but not limited to Vida DeLeon, Steve Ralbovsky

and Joseph Little.

140. As a result of FAIRSTEIN’s extrajudicialstatements to the press, plaintiff OLIVER

JOVANOVIC was denied his constitutional right to a fair trial, his liberty was restricted for an

extended period of time, he was put in fear for his safety, he was attacked by other inmates, he was

physically and emotionally injured, he was repeatedly strip-searched and humiliated, and he suffered

substantial economic losses and permanent damage to his reputation.

SIXTH CLAIM FOR RELIEF VIOLATION OF DUE PROCESS UNDER 42 U.S.C. § 1983 THROUGH COERCION
AND INTIMIDATION OF DEFENSE WITNESSES

141. Plaintiff repeats, reiterates and realleges each and every allegation contained in

paragraphs “1" through “140" as if the same were more fully set forth at length herein.

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142. Defendant GAIL HEATHERLY, in her investigative capacity, met with and
interviewed several potential witnesses during her pre-trial investigation.
143. Defendant GAIL HEATHERLY, in her investigative capacity, learned that these witnesses possessed material and exculpatory information which would be helpful to the defense.
144. Defendant GAIL HEATHERLY, in her investigative capacity, specifically instructed these witnesses not to speak to with members of the defense team.
145. Defendant GAIL HEATHERLY, in her investigative capacity, threatened to disclose embarrassing personal details about these witnesses if they agreed to cooperate with the defense team.
146. As an example of the conduct alleged inparagraphs “141" through “144", defendant GAIL HEATHERLY met a witness named Kenneth Krompinger during the early phases of her investigation into this matter.
147. Mr. Krompinger lived directly beneath plaintiff OLIVER JOVANOVIC and could easily hear noise from plaintiff’s apartment, including people talking and walking.
148. Mr. Krompinger told defendant GAIL HEATHERLY that he was home throughout the entire period of the alleged assault and thathe never heard any screams from plaintiff OLIVER JOVANOVIC’S apartment.
149. Mr. Krompinger further told defendant GAIL HEATHERLY that he recalled hearing a quiet back-and-forth conversation upstairs on the following day.
150. The information provided by Mr. Krompinger was highly relevant and would have undercut RZUCEK’s claim that she had been tortured and had been scream ing on-and-off throughout the 20-hour ordeal.
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151. After speaking with Mr. Krompinger, defendant GAIL HEATHERLY threatened to expose Mr. Krompinger’s medical and psychiatric history if he agreedto cooperate with the defense.
152. After meeting with defendant GAIL HEATHERLY, Mr. Krom pinger refused to speak with members of the defense team. Accordingly, neither the defense nor the jury learned of Mr. Krompinger’s exculpatory evidence.
153. As a result of defendant GAIL HEATHERLY’s unlawful actions, plaintiff OLIVER JOVANOVIC was denied an opportunity to persent material and exculpatory information at his criminal trial.
154. As a result of defendant GAIL HEATHERLY’s unlawful actions, plaintiff OLIVER JOVANOVIC was denied due process of law, his liberty was restricted for an extended period of time, he was put in fear for his safety, he was a ttacked by other inmates, he was physically and emotionally injured, he was repeatedly strip-searched and humiliated, and he suffered substantial economic losses and permanent damage to his reputation.
SEVENTH CLAIM FOR RELIEF MUNICIPAL LIABILITY UNDER 42 U.S.C. § 1983 155. Plaintiff repeats, reiterates and realleges each and every allegation contained in paragraphs “1" through “154" as if the same were more fully set forth at length herein. 156. Defendants continued criminal proceedings against plaintiff despite a lack of credible evidence against him, and notwithstanding their knowledge that said proceedings would jeopardize plaintiff’s liberty, well-being, safety and constitutional rights. 157. The acts complained of were carried out by the aforementioned individual defendants in their capacities as police officers, assistant district attorneys and officials pursuant to the customs, policies, usages, practices, procedures, and rules of the City of New York, the
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New York City Police Department, the New York County District Attorney’s Office and the Sex Crimes Unit, all under the supervision of ranking officers of said department, office and unit.
I. Extrajudicial Statements By the Prosecution in High-Profile Criminal Cases 158. At all times herein mentioned, defendant CITY OF NEW YORK, through the New York County District Attorney’s office and the Sex Crimes Unit, had a custom, practice and policy of allowing assistant district attorneys to make extrajudicial statements to the press in highprofile criminal cases, so as to inflame public opinion against such defendants and deprive themof their constitutional right to a fair trial. 159. The aforesaid policy, custom and practice can be inferred in part from repeated instances in which the New York County DistricAt ttorney’s office, through defendant FAIRSTEIN and/or assistant district attorneys in the Sex Crimes Unit acting under her supervision, engaged in the following tactics in high-profile criminal cases:
(a) Providing systematic “leaks”of information to the press which were damaging to the accused;
(b) Releasing to the press negative information about the accused, including his
prior arrest history and criminal record; (c) Publicly discussing the m erits of the case and/or incrim inating evidence
which had been gathered against the accused; (d) Expressing opinions about the accused’s guilt or innocence prior to the
commencement of trial; (e) Maligning the character and reputation of the accused; (f) Stating that the accused had enga ged in sim ilar conduct before without
evidence to support such statements; and (g) Commenting on t he identity, testim ony and/or credibility of prospective
witnesses who would testify against the accused.
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160. The existence of the aforesaid customs, policies and practices of defendant CITY OF NEW YORK, as implemented by the New York County District Attorney’s office and the Sex Crimes Unit, is evident in the following high-profile criminal cases, among others:
(a) The “Cybersex Torture” Case; (b) The “Central Park Jogger” Case; (c) The “Preppie Murder” Case against Robert Chambers; (d) The Sexual Abuse case against Dr. Patrick Griffin; and (e) The Internet Sexual Assault case against Paul Krauth. 161. In all of the above cases, prosecutors form the New York County District Attorney’s office made extrajudicial statements to the presswhich involved one or more of the improper tactics enumerated in Paragraph “158", supra, and which resulted in extensive negative publicity against the accused. 162. The aforesaid policies, procedures, regulations, practices and/or customs were implemented by policymaking officials for the defendant City of New York, including but not limited to, the District Attorney of New York County Robert Morge nthau and/or defendant FAIRSTEIN, who knew that: (a) to a moral certainty such policies, procedures, regulations, practices and/or customs concern issues that regularly arise in the investigation and prosecution of criminal cases; (b) that such issues either present assistant district attorneys with difficult choices of the sort that instruction, training and/orsupervision would make less difficult, or that the need for further instruction, training and/or supervision was demonstrated by a history of assistant district attorneys’ mishandling such situations; and
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(c) despite their knowledge of said policies, procedures, regulations, practices and/or customs, the supervisory and policymaking officers and officials of the defendant CITY OF NEW YORK, as a m atter of policy, practice and custom , perpetuated or failed to take steps to terminate said policies, practices and/or customs, did not discipline or otherwise properly supervise the employees engaged in them, did not effectively instruct, train and/or supervise such personnel with regard to the proper constitutional and statutoyr requirements in the exercise oftheir authority, but instead sanctioned the policies, procedures, regulations, practices and/or custom s described above, and in fact rewarded such assistant distrcit attorneys by giving thempromotions and bonuses, thereby evincing a deliberate indifference to the effect of said policies, proce dures, regulations, practices and/or customs upon the constitutional rightsof residents and citizens of the State of New York.
163. The foregoing customs, policies, usages, practices, procedures and rules of the the CITY OF NEWYORK, as implemented by the New York County District Attorney’s office and the Sex Crimes Unit, constituted a deliberate indiference to the safety, well-being and constitutional rights of all defendants in high-profile criminal cases, including but not limited to, plaintiff OLIVER JOVANOVIC.
164. The foregoing customs, policies, usages, practices, procedures and rules of the CITY OF NEW YORK, as implemented by the New York County District Attorney’s office and the Sex Crimes Unit City of New York, were the proximate cause of the constitutional violations suffered by OLIVER JOVANOVIC as alleged herein.
165. The foregoing customs, policies, usages, practices, procedures and rules ofthe CITY OF NEW YORK, as im plemented by the New York County Di strict Attorney’s office and Sex Crimes Unit City ofNew York, were the moving force behind the constitutional violations sufered
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by plaintiff OLIVER JOVANOVIC as alleged herein.
166. As a proximate result of the foregoing practices and policies of the CITY OF NEW YORK, as implemented by the New York County Di strict Attorney’s office and the Sex Crim es Unit, plaintiff OLIVER JOVANOVIC was denied his constitutional due process right to a fair trial and was incarcerated unlawfully for more than 20 months until all charges were dismissed against him on November 1, 2001.
II. “Off-the Record” Statements by NYPD Offciials in High-Profile Criminal Cases 167. At all times herein mentioned, defendant CITY OF NEW YORK, through the New York City Police Department, had a custom, practice and policy of allowing its police officers, detectives and/or investigators to make “off-the-record” statem ents to the press in high-profile criminal cases, thereby disclosing highly sensitive and/or damaging information from an ongoing criminal investigation, so as to inflame public opinion against defendants in such cases and deprive them of their constitutional right to a fair trial. 168. The aforesaid policy, custom and practice can be inferred in part from repeated instances in which the New York York City Po lice Department, through its police officers, detectives and/or investigators, engaged in the following tactics in high-profile criminal cases:
(a) Providing systematic “leaks”of inform ation to the press whi ch were damaging to the accused;
(b) Releasing to the press negative information about the accused, including his
prior arrest history and criminal record; (c) Releasing to the press incrimi nating evidence which had been gathered
against the accused; (d) Expressing opinions about the accused’s guilt or innocence prior to the
commencement of trial; (e) Maligning the character and reputation of the accused;
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(f) Stating that the accused had engaged in sim ilar conduct before without evidence to support such statements; and
(g) Commenting on the ident ity, testimony and/or credibility of prospective witnesses who would testify against the accused.
169. The existence of the aforesaid customs, policies and practices of defendant CITY OF NEW YORK, as implemented by the New York City Police Department, is evident in the following high-profile criminal cases, among others:
(a) The “Cybersex Torture” Case; (b) The “Central Park Jogger” Case; (c) The “Preppie Murder” Case against Robert Chambers; (d) The Sexual Abuse case against Dr. Patrick Griffin; and (e) The Internet Sexual Assault case against Paul Krauth. 170. In all of the above cases, law enforcement officials from the New York City Police Department, including but not limited, police officers, detectives, and/or investigators, made “offthe-record” statements to the press which involved one or more of the improper tactics enumerated in Paragraph “167", supra, and which resulted in extensive negative publicity against the accused which tainted the jury pool and deprived the accused of the constitutional right to a fair trial. 171. The aforesaid policies, procedures, regulations, practices and/or customs were implemented by policymaking officials for the defendant City of New York, including but not limited to, the police com missioner(s) and/or other high-ranking officials of the New York City Police Department, who knew that: (a) to a moral certainty such policies, procedures, regulations, practices and/or customs concern issues that regularly arise in the investigation and prosecution of criminal cases;
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(b) that such issues either present police officers, detectives and/or investigators with difficult choices of the sort that instruc tion, training and/or supervision woul d make less difficult, or that the need for further instruction, training and/or supervision was demonstrated by a history of such employees’ mishandling such situations; and
(c) despite their knowledge of said policies, proc edures, regulations, practices and/or customs, the supervisory and policymaking officers and officials of the defendant CITY OF NEW YORK, as a m atter of policy, practice and cus tom, perpetuated or failed to take steps to terminate said policies, practices and/or customs, did not discipline or otherwise properly supervise the employees engaged in them, did not effectively instruct, train and/or supervise such personnel with regard to the proper constitutional and statutoyr requirements in the exercise oftheir authority, but instead sanctioned the policies, procedures, regulations, practices and/or custom s described above, and in fact rewarded such em ployees by giving them promotions and bonuses, thereby evincing a deliberate indifference to the effect of said policies, procedures, regulations, practices and/or customs upon the constitutional rights of residents and citizens of the State of New York.
172. The foregoing customs, policies, usages, practices, procedures and rules of the the CITY OF NEW YORK, as implemented by the New York City Police Department, constituted a deliberate indifference to the safety, well-being and constitutional rights ofall defendants in highprofile criminal cases, including but not limited to, plaintiff OLIVER JOVANOVIC.
173. The foregoing customs, policies, usages, practices, procedures and rules of the CITY OF NEW YORK, as i mplemented by the New York City Police Departm ent, were the proximate cause of the consti tutional violations suffered by OLIVER JOVANOVIC as alleged herein.
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174. The foregoing customs, policies, usages, practices, procedures and rules ofthe CITY
OF NEW YORK, as implemented by the New YorkCity Police Department, were the moving force
behind the constitutional violations suffered byplaintiff OLIVER JOVANOVIC as alleged herein.
175. As a proximate result of the foregoing practices and policies of the CITY OF NEW
YORK, as implemented by the New York CityPolice Department, plaintiff OLIVER JOVANOVIC
was denied his constitutional due process right to a fair trial and was incarcerated unlawfully for
more than 20 months until all charges were dismissed against him on November 1, 2001.
III. Deliberate Indifference to the Training and Supervision of Assistant District Attorneys
176. Apart from the foregoing practices and policies, defendant CITY OF NEW YORK
exhibited a deliberate indifference toward the trainni g and supervision of assistant district attorneys
in the New York County District Attorney’s Office, in that defendant CITY OF NEW YORK:
a) Intentionally and/or recklessly failed to properly instruct, train and/or supervise assistant district attorneys with regard to their obligations to discontinue a criminal prosecution when medical and/or forensic e vidence is discovered which negates probable cause and exonerates the accused;
b) Intentionally and/or recklessly failed to properly instruct, train and/or supervise assistant district attorneys with regard to their obligations to discontinue a criminal prosecution when it becomes apparent that the complaining witness is not credible;
c) Intentionally and/or rec klessly failed to properly instruct, train and/or supervise assistant district attorneys with regard to their obligations to tim ely disclose all evidence favorable to the defense on the issues of guilt or innocence and punishment, pursuant to the due process clause of the Fifth and Fourteenth Amendments to the United States Constitution, and to Brady v. Maryland3, 73 U.S. 83 (1963), and its progeny;
d) Intentionally and/or recklessly failed to properly instruct, train and/or supervise assistant district attorneys with regard to their obligations to avoid threatening, intimidating, hiring and/or coercing potential defense witnesses and preventing them from testifying on behalf of the accused;
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e) Intentionally and/or recklessly failed to properly instruct, train and/or supervise assistant district attorneys with regard to their obligations to avoid interfering with a defendant’s constitutional right to a f air trial by instruct ing potential def ense witnesses to not speak with defense counsel or investigators for the defense team;

f)

Intentionally and/or recklessly failed to pr operly instruct, train and/or supervise

assistant district attorneys with regard to their obligations to avoid pressuring

potential defense witnes ses to give untruthful, erroneous, incom plete and/or

misleading statements;

g) Intentionally and/or recklessly failed to prope rly instruct, train and/or supervise assistant district attorneys with regard totheir obligations to avoid adopting a “winat-all-costs” approach to trial which involves, interalia, the following misconduct: coaching and/or permitting witnesses to give inaccurate, false and/or m isleading testimony; tailoring witness testim ony to explain inconsistencies with physical evidence; altering medical and forensic expert reports to exclude information which is favorable to the defense; and withholdnig material facts frommedical and forensic experts to secure more favorable testimony from said experts; and

h) Intentionally and/or recklessly failed to properly instruct, train a nd/or supervise assistant district attorneys with regard totheir obligations to avoid giving improper summations which, inter alia: mistate evidence; discuss evidence which is not part of the record; m ischaracterize witness testimony; personally attack the accused and/or defense counsel; invite speculation by the jury; inflame the passions of the jury against the accused; and otherwise exceed the bounds of proper advocacy.

177. The aforesaid deliberate indifference to the training and supervision of assistant

district attorneys of the New York County District Attorney’s Office may also be inferred in part

from an examination of the following criminal cases handled by said office, among others:

(a) The “Cybersex Torture” Case;

(b) The “Central Park Jogger” Case;

(c) The “Preppie Murder” Case against Robert Chambers; and

(d) The Sexual Abuse case against Dr. Patrick Griffin.

178. In all of the above cases, prosecutors form the New York County District Attorney’s

office engaged in one or more of the improper tactics enumerated in Paragraph “175", supra, and

thereby deprived the accused of the constitutional right to a fair trial.

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179. The aforesaid deliberate indifference to the training and supervision of assistant district attorneys by defendant CITY OF NEW YORK may also be inferred from an analysis of convictions obtained by the New York County DistrictAttorney’s office which have been reversed, modified, or vacated based, inter alia, upon prosecutorial actions of the sort described in paragraph 175, supra.
180. The aforesaid deliberate indifference to the training and supervision of assistant district attorneys was implemented as a policy, practice, and/or customof defendant CITY OF NEW YORK by policymaking officials for defendant CITY OF NEW YORK including, but not limited to, the District Attorney of New York County Robert Morganthau and/or defendant FAIRSTEIN, who knew that:
(a) to a moral certainty that such policies, procedures, regulations, practices and/or customs concern issues that regularly arise in the investigation and prosecution of criminal cases;
(b) that such issues either present assistant district attorneys with dificult choices of the sort that instruction, training and/or supervision will make less difficult, or that the need for further instruction, training and/or supervision was demonstrated by a history of assistant district attorneys’ mishandling such situations; and
c) despite their knowledge of said policies, procedures, regulations, practices and/or customs, the supervisory and policymaking officers and officials of the defendant CITY OF NEW YORK, as a m atter of policy, practice and custom , perpetuated or failed to take steps to terminate said policies, practices and/or customs, did not discipline or otherwise properly supervise the employees engaged in them, did not effectively instruct, train and/or supervise such personnel with regard to the proper constitutional and statutoyr requirements in the exercise oftheir authority, but instead sanctioned the policies, procedures, regulations, practices a nd/or customs described above, and in fact rewarded such assistant distrcit attorneys by giving thempromotions and bonuses,
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thereby evincing a deliberate indifference to the e ffect of said policies, procedures, regulations, practices and/or customs upon the constitutional rightsof residents and citizens of the State of New York.
181. The foregoing customs, policies, usages, practices, procedures and rules of the the CITY OF NEWYORK, as implemented by the New York County District Attorney’s office and the Sex Crimes Unit, constituted a deliberate indiference to the safety, well-being and constitutional rights of all defendants, including but not limited to, plaintiff OLIVER JOVANOVIC.
182. The foregoing customs, policies, usages, practices, procedures and rules of the CITY OF NEW YORK, as implemented by the New York County District Attorney’s office and the Sex Crimes Unit City of New York, were the proximate cause of the constitutional violations suffered by OLIVER JOVANOVIC as alleged herein.
183. The foregoing customs, policies, usages, practices, procedures and rules otfhe CITY OF NEW YORK, as im plemented by the New York County District Attorney’s office and Sex Crimes Unit City ofNew York, were the moving force behind the constitutional violations sufered by plaintiff OLIVER JOVANOVIC as alleged herein.
184. As a proximate result of the foregoing practices and policies of the CITY OF NEW YORK, as implemented by the New York County Di strict Attorney’s office and the Sex Crimes Unit, plaintiff OLIVER JOVANOVIC was denied his constitutional right to a f air trial and was incarcerated unlawfully for more than 20 months until all charges were dismissed against him on November 1, 2001.
WHEREFORE, plaintiff OLIVER JOVANOVIC dem ands judgment in the sum of ten million dollars ($10,000,000.00) in compensatory damages, ten million dollars ($10,000,000.00) in punitive damages, plus attorney’s fees, costs, and disbursements of this action.
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Case 1:04-cv-08437-PAC Document 1 Filed 10/28/04 Page 32 of 32 Dated: New York, New York
October 27, 2004
____________________________
JON L. NORINSBERG (JN2133) Attorney for Plaintiff 225 Broadway, Suite 2700 New York, N.Y. 10007 (212) 791-5396
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 Case 1:04-cv-08437-PAC Document 40 Filed 09/18/06 Page 1 of 34

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------------------------------X DR. OLIVER JOVANOVIC,

Plaintiff,

AMENDED COMPLAINT

-against-

04 CV 8437 (CRC)

JURY TRIAL DEMANDED

ECF CASE

THE CITY OF NEW YORK, DETECTIVE MILTON BONILLA, Shield No. 61, Individually and in his Official Capacity, New York County Assistant District Attorney LINDA FAIRSTEIN, Individually and in her Official Capacity, and New York County Assistant District Attorney GAIL HEATHERLY, Individually and in her Official Capacity,

Defendants. -----------------------------------------------------------------------------------X

Plaintiff, DR. OLIVER JOVANOVIC, by his attorney, Jon L. Norinsberg, complaining

of the defendants, respectfully alleges as follows:

PRELIMINARY STATEMENT

1. Plaintiff brings this action for compensatory damages, punitive damages

and attorney’s fees pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1988 for violations of his civil

rights, as said rights are secured by said statutes and the Constitution of the United States.

JURISDICTION

2. This action is brought pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1988, and the

Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution.

3. Jurisdiction is founded upon 28 U.S.C. §§ 1331, 1343 and 1367.

Case 1:04-cv-08437-PAC Document 40 Filed 09/18/06 Page 3 of 34
VENUE 4. Venue properly lies in the Southern Disrtict of New York under 28 U.S.C.§ 1391(b), in that this is the District in which the claim arose.
JURY DEMAND 5. Plaintiff respectfully demands a trial by jury of all issues in this matter pursuant to Fed. R. Civ. P. 38(b).
PARTIES 6. Plaintiff, DR. OLIVER JOVANOVIC (“OLIVER JOVANOVIC”), was at all relevant times a resident of the City and State of New York. 7. Defendant, THE CITY OF NEW YORK, was and is a municipal corporation duly organized and existing under and by virtue of the laws of the State of New York. 8. Defendant, THE CITY OF NEW YORK, maintains the New York City Police Department, a duly authorized public authority and/or police department, authorized to perform all functions of a police departm ent as per the applicable sections of the New York State Crim inal Procedure Law, acting under the direction a nd supervision of the aforem entioned municipal corporation, the City of New York. 9. At all times hereinafter mentioned, the individually named defendant DETECTIVE MILTON BONILLA (“MILTON BONILLA”) was a duly sworn police officer of said department and was acting under the supervision of said department and according to his official duties. 10. Defendant, THE CITY OF NEW YORK, maintains the New York County District Attorney’s Office, a municipal agency created and authorized under the laws of the State of New York to investigate and prosecute criminal conduct within the County and City of New York.
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11. At all times hereinafter mentioned defendant LINDA FAIRSTEIN (“FAIRSTEIN”) was the Chief of the Sex Crimes Unit of the New York County District Attorney’s Office, and as such, was responsible for the policies, practices and customs of the Sex Crimes Unit, as well as the training, retention, supervision, discipline, counselingand control of the assistant district attorneys who worked under her command and in this unit.
12. At all times hereinafter mentioned, defendant GAIL HEATHERLY, was an officer, employee and agent of the New York County District Attorney’s Office, and an Assistant District Attorney working under Defendant FAIRSTEIN in the Sex Crimes Unit.
13. At all times hereinafter mentioned the defendants, either personally or through their employees, were acting under color of state law and/or in com pliance with the official r ules, regulations, laws, statutes, customs, usages and/or practices of the State or City of New York.
14. Each and all of the acts of the defendants alleged herein were done by said defendants while acting within the scope of their employment by defendant City of New York.
15. Each and all of the acts of the defendants alleged herein were done by said defendants while acting in furtherance of their employment by defendant City of New York.
FACTS 16. On December 5, 1996, at approximately 11:00 a.m., plaintiff OLIVER JOVANOVIC was lawfully inside of his apartment at 680 Fort Washington Avenue, in the County, City and State of New York. 17. At the aforesaid time and place, Defendant MILTON BONILLA, a detective with the Special Victims Squad of the New York City Ploice Department, arrived at plaintiff’s apartment.
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18. Thereafter, defendant MILTON BONILLA ordered plaintiff to get dressed and go with him to the 26th precinct for purposes of being interrogated.
19. Defendant MILTON BONILLA refused toprovide plaintiff OLIVER JOVANOVIC with any information as to the nature of this interrogation.
20. Defendant MILTON BONILLA attempted to question plaintiff OLIVER JOVANOVIC without an attorney being present.
21. When plaintiff OLIVER JOVANOVIC requested an attorney, he was immediately placed under arrest.
22. At the time of his arrest, plaintiff OLIVER JOVANOVIC was a 30- year-old doctoral candidate at Columbia University who had previously earned a B.A. and M.S. fromthe University of Chicago, and an M.A. and M.Ph. fromColumbia University. He had never before been arrested.
The Allegations of the Complaining Witness 23. On November 27, 1996, the purported “victim”, JAMIE RZUCEK (“RZUCEK”) a 20-year-old Barnard College student, spoke withdefendant MILTON BONILLA and told himthat she had been sexually assaulted by plaintiff OLIVER JOVANOVIC for 20 hours, starting on the night of November 22, 1996 and continuing through the day of November 23, 1996. 24. Specifically, RZUCEK claimed, inter alia, that plaintiff OLIVER JOVANOVIC: (1) had raped and sodomized her; (2) had violently rammed a police baton into her anus and vagina, resulting in bleeding; (3) had struck her repeatedly with a club, resulting in multiple bruises to her thighs; (4) had severely burned her with hot candle wax; (5) had bitten her breasts and shoulders until she bled profusely; (6) had hogtied her against her will for nearly 20 hours; and (7) had repeatedly gagged her with a variety of materials, including duct tape, packing tape, cotton and an ace bandage.
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The Medical Findings 25. Each one of RZUCEK’s claims was contradicted by medical evidence obtained within days of the alleged incident. 26. On November 27, 1996, RZUCEK was given a comprehensive anal and vaginal examination by a gynecologist at Barnard Health Services, Dr. Chin Quee. 27. Dr. Quee found no bruises, scratches or abrasions in the vaginal area, and no lacerations, bruises or fissures in the anal area. 28. Dr. Quee found no vaginal bleeding and no rectal bleeding, even though RZUCEK told her she had experienced vaginal bleeding for three days. 29. The results of a hemoccult test – a very sensitive test to detect traces of blood in the stool – were negative. 30. There were no bruises on RZUCEK’s thighs, no burn marks, no teeth marks and no scabbing, swelling, redness or tenderness in the nipple area. The Forensic Findings 31. There was also no forensic evidence to support any of RZUCEK’s claims. 32. Testing revealed that there was no trace of plaintiff’s DNA found on RZUCEK, on her clothing, or on any of her undergarments worn on the night of the alleged assault. 33. There was no blood found on any of RZUCEK’s underclothing or on any of her clothes, despite her claim that she had bled profusely from her breasts, anus and vagina. 34. There was no candle wax found on any of RZUCEK’s garments and no burn marks were discovered on her body. 35. There were no ligature marks found anywhere on RZUCEK’s body, despite her claim that she had been hogtied for 20 hours and had thrashed violently against the ropes in an effort
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to escape. 36. There were no abrasions, cuts or tape marks found on RZUCEK’s lips or face,
despite her claim that she had been repeatedly and violently gagged during the incident. 37. The hair and fiber tests were negative, showing no signs of a violent struggle or
sexual assault, although a pubic hair belonging to an unknown third party was found i nside of RZUCEK’s panties.
The Credibility of the Accuser 38. Apart from the lack of any medical or forensic evidence, there were significant reasons to doubt RZUCEK’s credibility. 39. Within days of the purported incident, RZUCEK had given multiple and contradictory accounts of the alleged assault, changing critical facts each time she recounted the event. 40. RZUCEK had a history of making false sexual allegations, and in fact had falsely accused her own father and uncle of sexual molestation. 41. RZUCEK had also encouraged an acquaintance to file a false rape copmlaint against an NYU student only one week prior to the alleged incident. 42. RZUCEK had waited almost four days before seeking any medical attention, despite her claims of experiencing profuse bleeding, severe burns and intense pain. 43. RZUCEK did not speak with Barnard security, the police or any other law enforcement agency until four days after the alleged incident. 44. After extensively interviewing RZUCEK on November 27, 1996, defendant MILTON BONILLA did not then place OLIVER JOVANOVIC under arrest, despite RZUCEK’s claims of being brutally tortured, raped and sodomized. 45. Defendant MILTON BONILLA waited 9 days prior to arresting plaintiff OLIVER
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JOVANOVIC. 46. During this 9-day period, from the time of the initial complaint to the time of the
arrest, defendant MILTON BONILLA conducted no further investigation into this matter. 47. Notwithstanding the lack of any medical or forensic evidence, on December 5, 1996,
defendant MILTON BONILLA arrested plaintiff OLIVER JOVANOVIC and charged him with committing multiple offenses, including Rape, Sodomy, and Unlawful Imprisonment.
48. Defendant MILTON BONILLA arrestedplaintiff OLIVER JOVANOVIC only after being pressured to do so by third parties.
49. Specifically, Bill O'Connor, Director of Security at Barnard College, contacted defendant Bonilla on multiple occasions between November 27, 1996 and December 5, 1996.
50. During this period, Mr. O'Connor repeatedly urged defendant MILTON BONILLA to place plaintiff OLIVER JOVANOVIC under arrest.
51. Mr. O'Connor stated to defendant MILTON BONILA that he would contact highlevel officials at the NYPD if defendant MILTON BONILLA did not place plaintiff OLIVER JOVANOVIC under arrest.
52. Another individual by the name of Lorraine Mohr indirectly pressured defendant MILTON BONILLA to place plaintiff OLIVER JOVANOVIC under arrest.
53. Ms. Mohr, who was general counsel for Phoenix House, had hired RZUCEK as a babysitter in February 1996.
54. On November 25, 1996, RZUCEK told Ms. Mohr about the alleged assault involving plaintiff OLIVER JOVANOVIC.
55. Thereafter, Ms. Mohr contacted defendant MILTON BONILLA's superiors on multiple occasions between November 26, 1996 and December 5, 1996 .
56. During this period, Ms. Mohr repeatedly urged defendant MILTON BONILLA's
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superiors to place plaintiff OLIVER JOVANOVIC under arrest. 57. Defendant MILTON BONILLA learned that Ms. Mohr had contacted his superiors
on multiple occasions between November 26, 1996 and December 5, 1996. 58. Defendant MILTON BONILLA learned that Ms. Mohr had repeatedly urged his
superiors to place plaintiff OLIVER JOVANOVIC under arrest. 59. As a result of the pressure applied by both Bill O'Connor and Lorraine Mohr,
defendant MILTON BONILLA placed plaintiff OLIVER JOVANOVIC under arrest on December 5, 1996.
60. Defendant MILTON BONILLA placed plaintiff OLIVER JOVANOVIC under arrest in order to protect his position as a detective with the New York City Police Department.
61. Defendant MILTON BONILLA knew that a former colleague of his, a detective in the Manhattan Sex Crimes Unit, had lost his position when he refused to make an arrest in a highprofile case, despite pressure from his superiors and third parties to do so.
62. Defendant MILTON BONILLA was fearful that he too would face demotion and/or reassignment if he did not place plaintiff OLIVER JOVANOVIC under arrest at the behest of Mr. O'Connor and Ms. Mohr.
The Search of Plaintiff’s Apartment 63. On December 5, 1996, after plaintiff was arrested, defendant MILTON BONILLA and several other police officers conducted a searchof his premises, located at 680 Ft. Washington Avenue, Apartment 2F, in the City, County and State of New York. 64. Police were looking to find the items which had allegedly been used by plaintiff in the attack against RZUCEK. 65. Specifically, police were looking to find, inter alia, a police baton, candles, candle
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wax, a blindfold, cloth strips, duct tape, packing tape, and ace bandages. 66. No such items were ever recovered from plaintiff OLIVER JOVANOVIC or his
apartment. 67. During this search, multiple photographs were taken of the interior of plaintiff’s
apartment. 68. The photographs revealed that none of theitems described in Paragraph “51", supra,
were inside of plaintiff OLIVER JOVANOVIC’s apartment. 69. These photographs, taken by two separate investigative teams, were subsequently
“lost” by defendant MILTON BONILLA and/or the New York City Police Department. Bonilla’s Post-Search Activities 70. After the search was executed, defendant MILTON BONILLA prepared certain
police reports and forwarded them to prosecutors in the New York County District Attorney’s Office.
71. These reports contained false and misleading information regarding the arrest of plaintiff OLIVER JOVANOVIC, as well as the evidence allegedly collected from his apartment.
72. In addition to these reports, defendant MILTON BONILLA told prosecutors from the New York County District Attorney’s office that he had observed certain incriminating evidence inside of plaintiff’s apartment, when he knew this claim to be untrue.
73. Defendant MILTON BONILLA also told prosecutors from the New York County District Attorney’s office that plaintiff OLIVER JOVANOVIC had conspired to obstruct the police at the time of the search, and had destroyed certainincriminating evidence prior to the search, when he knew these claims to be untrue.
74. Thereafter, defendant MILTON BONILLA repeated the above false and misleading claims before the grand jury, the trial judge and the petit jury.
The Arraignment
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75. On December 6, 1996, plaintiff OLIVER JOVANOVIC was arraigned before

the Honorable Michael Gross, in the Criminal Court of the City of New York, County of New York,

at 100 Centre Street.

76. Defendant LINDA FAIRSTEIN (“FAIRSTEIN”), the Chief of the Sex Crimes

Unit of the New York County District Attorney’sOffice, personally appeared at the arraignment of

plaintiff OLIVER JOVANOVIC as the sole representative of that office.

Defendant Fairstein’s Post-Arraignment Statements to the Press

77. In the days following plaintiff OLIVER JOVANOVIC’s arraignment, defendant

FAIRSTEIN spoke to numerous news reporters and was quoted extensively in local newspaper

articles.

78. In these articles, defendant FAIRSTEIN made a number of highly inflammatory and

prejudicial remarks about plaintiff OLIVER JOVANOVIC, none of which was true.

79. The following statements in the articles were attributed directly to defendant

FAIRSTEIN and illustrate the type ofextrajudicial remarks that defendant FAIRSTEIN made to the

press in the days following plaintiff’s arraignment:

•

“He terrorized this young woman to the point that she was too frightened to

call the authorities until weeks after it happened”;

•

“He tied her to a chair, undressed her, and tortured her with sex toys and

other objects for almost a full day”;

•

“[H]e tortured and sexually abused the woman, burning her with candle wax,

biting her, sexually assaulting her and threatening to dism ember her as

Jeffrey Dahmer, the serial killer, had done with his victims”;

•

He “tied the woman’s legs to a chair and gagged her before sexually torturing

her”;

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•

“[H]e was so prepared for this and carried it off so smoothly”;

•

“We believe this was not the first time he did something like this”; and

•

“We believe there are other victims.”

80. Defendant FAIRSTEIN’s comments made the headlines of all local newspapers.

One New York Post cover page, for example, screamed “Prosecutor: Cyber fiend struck before” and

“HOW MANY MORE VICTIMS?”, while featuring a full page picture of plaintiff OLIVER

JOVANOVIC.

81. In addition to the foregoing, defendant FAIRSTEIN repeatedly emphasized to the

press that this was her office’s “first Internet-related sex prosecution” and that the case represented

a “whole new entry in the acquaintance-rape category.”

The Pre-Trial Publicity

82. Defendant FAIRSTEIN, through her extrajudicial statements to the press, created

a highly prejudicial and inflamed atmosphere against plaintiff OLIVER JOVANOVIC.

83. In local newspapers, plaintiff OLIVER JOVANOVIC became known as the

“Cybersex Fiend” and “Cybersex Suspect”, and his case became known as the “Cyber Torture” case.

84. In the first two weeks after plaintiff’s arrest, there were 76 articles in local

newspapers which repeated defendant FAIRSTEIN’S false statements. Plaintiff’s case became a

cover page story.

85. In these articles, plaintiff OLIVER JOVANOVIC was repeatedly portrayed as

a serial killer and “Cyberfiend”, and was often compared with Jeffrey Dahmer.

86. The “Cybersex” story was picked up by the Associated Press, which extensively

quoted defendant FAIRSTEIN and her false allegations against plaintiff OLIVER JOVANOVIC.

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87. Major television networks and radio stations soon joined the coverage, and the
story began to receive national and international attention.
88. Throughout the pre-trial proceedings, defendant FAIRSTEIN continued to provide
highly damaging “leaks” to the press, including but notlimited to, releasing select portions of the
e-mail correspondence between plaintiff OL IVER JOVANOVIC and RZUCEK which further
demonized plaintiff.
89. Defendant FAIRSTEIN knew that the pre-trial publicity that she had generated
would have an impact on prospective jurors inthe criminal trial of plaintiff OLIVER JOVANOVIC.
90. In an interview given to the Media StudiesJournal in the winter of 1998, just months
prior to plaintiff OLIVER JOVANOVIC’s trial, defendant FAIRSTEIN acknowledged the damaging
impact that pre-trial publicity can have on prospective jurors:
The period of greatest impact is pretrial because that could be anywhere from three months to a year. Depending on the coverage, people can becom e immersed in reading about the case. And fromthis reading-and-listening public come the people who sit on our juries. After the trial has bgeun, the jurors are given a rule – that they don’t read or listen to media accounts of the case. Most people try hard to comply. But it’s almost impossible with the highest-profile cases for it to really happen.
When a case like Chambers, the jogger, the subway bomber or the World Trade Center bomber is on trial in New York – and it is literally a page A1 headline – our jurors are coming to work on the subway and the bus .... I m ean you can’t sit on a train and not see what’s there. ... And you deal with a jury pool that is just saturated with that kind of information. You hope that you get jurors who are telling you the truth, that they can set aside what they’ve heard and just listen to the evidence in the courtroom. In the end, both sides use the press to great advantage before you ge t anywhere near the trial stage.
(emphasis supplied)
91. Defendant FAIRSTEIN acknowledged in the same interview that “it’s inappropriate
for prosecutors to be spinning the case to the media”, and as a result, “we don’t try our cases on the
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courtroom steps or to the press. We try them in the courtroom.” 92. Notwithstanding the above-stated policy,defendant FAIRSTEIN continued to make
extrajudicial statements to the press and/or provide damaging “leaks” to the media throughout all phases of the criminal proceedings against plaintiff OLIVER JOVANOVIC.
93. As a result of defendant FAIRSTEIN’s conduct, the prejudicial news coverage continued up to and including the trial, and influecned the ability of the jurypool and the jurors who sat on the case to be fair and impartial, and also influenced the testimony of witnesses, jury deliberations, and, ultimately, the outcome of the case.
The Verdict, The Appeal and The Subsequent Dismissal 94. On April 15, 1998, plaintiff OLIVERJOVANOVIC was convicted of Kidnaping in the First Degree, three counts of Sexual Abuse in the First Degree, Assault in the Second Degree and Assault in the Third Degree. 95. Thereafter, the Honorable William A. Wetzel sentenced plaintiff OLIVER JOVANOVIC to 15 years to life in prison. 96. On December 21, 1999, the Appellate Division of the New York State Supreme Court reversed plaintiff’s conviction, finding inter alia, that Justice William A. Wetzel had “improperly hampered the defendant’s ability to present a defense” by erroneously invoking the rape-shield law to deny the jury access to key evidence in the case. 97. In anticipation of a second trial, the porsecution repeatedly offered plaintiff OLIVER JOVANOVIC plea deals in which he would avoid any further time in prison if he would plead guilty to a single felony charge. 98. When plaintiff refused to consider any ofthese offers, the prosecution offered a plea
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deal in which plaintiff OLIVER JOVANOVIC would avoid any further incarceration, any felony record and any sex offender status if he would plead guilty to a single non-sexual, misdemeanor charge.
99. Plaintiff OLIVER JOVANOVIC refused to accept this offer – despite facing a mandatory 15-year-to-life sentence on the felony Kidnapping charge – and insisted upon going forward with the second trial.
100. On the eve of re-trial on November 1, 2001, the prosecution moved to dismiss all charges against plaintiff OLIVER JOVANOVIC. The motion was granted.
101. On November 1, 2001, all charges against plaintiff OLIVER JOVANOVIC were dismissed with prejudice.
Plaintiff’s Damages 102. As a result of his unlawful arrestand prosecution, plaintiff OLIVER JOVANOVIC was incarcerated for one week at Rikers Island prior to trial, and 20 m onths in Rikers Island and state prisons following his conviction. 103. During this time, plaintiff OLIVER JOVANOVIC was repeatedly threatened and attacked by other inmates. 104. On one occasion while in prison, plaintiff OLIVER JOVANOVIC was stabbed in the neck and had his throat slashed by another inmate, and came within inches of losing his life. 105. Apart from the violence and hardships of prison life, plaintiff OLIVER JOVANOVIC suffered severe damage to his career and reputation. 106. At the time of his arrest on December 5, 1996, plaintiff had completed his research at Columbia University for a Ph.D. degree inMicrobiology, had written his doctoral thesis, and was
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scheduled to defend his thesis to the faculty on December 20, 1996. 107. As a direct result of his unlawful arrest and prosecution, plaintiff OLIVER
JOVANOVIC was prevented for over five years fromdefending his thesis and obtaining his Ph.D. in Microbiology.
108. It was not until May 7, 2002, that plaintiff OLIVER JOVANOVIC was able to defend his doctorate and earn a Ph.D. with distinction from Columbia University, as well as departmental honors for outstanding and innovative work.
109. Notwithstanding this accomplishment, plaintiff OLIVER JOVANOVIC suffered substantial economic losses as a result of his unlawful arrest and prosecution, including but not limited to, six years of lost wages as a specialist in computational biology.
110. In addition, plaintiff OLIVER JOVANOVIC was forced to incur substantial attorneys’ fees in connection with his defense, including but not limited to, legal fees for handling the trial, the appeal, and preparation for the second trial.
111. Apart from deprivation of liberty and economic losses, plaintiff OLIVER JOVANOVIC also suffered severe emotional distress and psychological damage as a result of defendants’ unlawful actions, as well as permanent and irreparable damage to his good name and reputation.
FIRST CLAIM FOR RELIEF FALSE ARREST UNDER 42 U.S.C. § 1983 112. Plaintiff repeats, reiterates and realleges each and every allegation contained in paragraphs numbered “1" through “111" with the same force and effect as if fully set forth herein. 113. As a result of defendant’s aforesaid conduct, plaintiff OLIVER JOVANOVIC was subjected to an illegal, improper and false arrest by defendant MILTON BONILLA and was taken
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into custody and caused to be falsely imprisoned, detained, confined, incarcerated and prosecuted by the defendants in criminal proceedings, without any probable cause, privilege or consent.
114. As a result of the foregoing, plaintiff’s liberty was restricted for an extended period of time, he was put in fear for his safety, he was attacked by other inmates, he was physically and emotionally injured, he was repeatedly strip-searched and humiliated, and he suffered substantial economic losses and permanent damage to his reputation.
SECOND CLAIM FOR RELIEF MALICIOUS PROSECUTION UNDER 42 U.S.C. § 1983 115. Plaintiff repeats, reiterates and realleges each and every allegation contained in paragraphs numbered “1" through “114" with the same force and effect as if fully set forth herein. 116. Defendant MILTON BONILLA misrepresented and falsified evidence before prosecutors in the New York County District Attorney’s office. 117. Defendant MILTON BONILLA did not make a complete and full statement of material facts to prosecutors in the New York County District Attorney’s office. 118. Defendant MILTON BONILLA withheld exculpatory evidence from prosecutors in the New York County District Attorney’s office. 119. Defendant MILTON BONILLA misrepresented and falsified evidence before the grand jury. 120. Defendant MILTON BONILLA did not make a complete and full statement of facts to the grand jury. 121. Defendant MILTON BONILLA withheld exculpatory evidence fromthe grand jury. 122. Defendant MILTON BONILLA was directly and actively involved in the initiation of criminal proceedings against plaintiff OLIVER JOVANOVIC.
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123. Defendant MILTON BONILLA lacked probable cause to initiate criminal proceedings against plaintiff OLIVER JOVANOVIC.
124. Defendant MILTON BONILLA acted with malice in initiating criminal proceedings against plaintiff OLIVER JOVANOVIC.
125. Defendant MILTON BONILLA was directly and actively involved in the continuation of criminal proceedings against plaintiff OLIVER JOVANOVIC.
126. Defendant MILTON BONILLA lacked probable cause to continue criminal proceedings against plaintiff OLIVER JOVANOVIC.
127. Defendant MILTON BONILLA acted with malice in continuing criminal proceedings against plaintiff OLIVER JOVANOVIC.
128. Defendant MILTON BONILLA misrepresented and falsified evidence throughout all phases of the criminal proceeding.
129. Notwithstanding the perjurious and fraudulent conduct of defendant MILTON BONILLA, the criminal proceedings were term inated in plaintiff’s favor on Novem ber 1, 2001, when all charges against plaintiff OLIVER JOVANOVIC were dismissed with prejudice.
130. As a result of the foregoing, plaintiff OLIVER JOVANOVIC was subjected to a baseless prosecution, his liberty was restricted for anextended period of time, he was put in fear for his safety, he was attacked by other inm ates, he was physically and em otionally injured, he was repeatedly strip-searched and humiliated, and he suffered substantial economic losses and permanent damage to his reputation.
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THIRD CLAIM FOR RELIEF MALICIOUS ABUSE OF PROCESS UNDER 42 U.S.C. § 1983 131. Plaintiff repeats, reiterates and realleges each and every allegation contained in paragraphs numbered “1" through “130" with the same force and effect as if fully set forth herein. 132. Defendant MILTON BONILLA issued legal process against plaintiff OLIVER JOVANOVIC. 133. Defendant MILTON BONILLA issued legal process against plaintiff OLIVER JOVANOVIC to obtain a collateral objective outside the legitimate ends of the legal process. 134. Defendant MILTON BONILLA acted with intent to do harm to plaintiff OLIVER JOVANOVIC, without excuse or justification. 135. As a result of the foregoing, plaintiffOLIVER JOVANOVIC’s liberty was restricted for an extended period of time, he was put in fear for his safety, he was attacked by other inmates, he was physically and emotionally injured, he was repeatedly strip-searched and humiliated, and he suffered substantial economic losses and permanent damage to his reputation.
FOURTH CLAIM FOR RELIEF DENIAL OF CONSTITUTIONAL RIGHT TO FAIR TRIAL UNDER 42 U.S.C. § 1983 DUE TO FABRICATION OF EVIDENCE 136. Plaintiff repeats, reiterates and realleges each and every allegation contained in paragraphs “1" through “135" as if the same were more fully set forth at length herein. 137. Defendant MILTON BONILLA created false evidence against plaintiff OLIVER JOVANOVIC. 138. Defendant MILTON BONILLA forwarded false evidence and false information to prosecutors in the New York County District Attorney’s office. 139. Defendant MILTON BONILLA misled the grand jury, the trial judge and the prosecutors by creating false evidence agains t plaintiff OLIVER JOVANOVIC and thereafter
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providing false testimony throughout the criminal proceedings. 140. In creating false evidence against plaintiff OL IVER JOVANOVIC, in forwarding
false evidence and inform ation to prosecutors, and in providing false and m isleading testimony, defendant violated plaintiff’s constitutional right to a fair trial under the Due Process Clause of the Fifth and Fourteenth Amendments of the United States Constitution.
141. As a result of the defendant MILTON BONILLA’S unlawful ac tions, plaintiff OLIVER JOVANOVIC’s liberty was restricted for an extended period of time, he was put in fear for his safety, he was attacked by other inmates, he was physically and emotionally injured, he was repeatedly strip-searched and humiliated, and he suffered substantial economic losses and permanent damage to his reputation.
FIFTH CLAIM FOR RELIEF DENIAL OF FAIR TRIAL UNDER 42 U.S.C. § 1983 DUE TO EXTRAJUDICIAL STATEMENTS MADE BY THE PROSECUTION 142. Plaintiff repeats, reiterates and realleges each and every allegation contained in paragraphs “1" through “141" as if the same were more fully set forth at length herein. 143. Defendant FAIRSTEIN made extrajudicial statements to the press regarding OLIVER JOVANOVIC. 144. Defendant FAIRSTEIN knew that her extrajudicial statements about plaintiff OLIVER JOVANOVIC were false and/or misleading. 145. Defendant FAIRSTEIN made such extrajudicial statements in order to gain an unfair advantage over plaintiff OLIVER JOVANOVIC at trial. 146. Defendant FAIRSTEIN made such extrajudicial statements in order to create a “highprofile” case that would advance her own career goals and/or generate publicity for the sale of her crime novels.
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147. Defendant FAIRSTEIN knew that her extrajudicial statements about plaintiff OLIVER JOVANOVIC would be reported by various media outlets, including newspapers, radio stations and television networks.
148. Defendant FAIRSTEIN knew that her extrajudicial statements about plaintiff OLIVER JOVANOVIC would create a highlyprejudicial and inflamed atmosphere against plaintiff.
149. As a result of defendant FAIRSTEIN’esxtrajudicial statements to the press, plaintiff OLIVER JOVANOVIC was the subject of extensive and highly prejudicial news coverage.
150. This negative publicity influenced the ability of the jury pool and jurors who sat on the case to be fair and impartial, and also influenced the testimony of several important witnesses at trial and the deliberations of the jury.
151. For example, one material witness, Mary Jo Parlier Chambers, testified about critical “facts” that she had actually learned from reading a newspaper article.
152. These “facts”, as testified to by Ms. Chambers, were addressed by both parties during summations and were the subje ct of a read-back requested by the jury during their deliberations.
153. Throughout the trial, there were several other material witnesses whose testimony was influenced by the pre-trial publicity, includnig but not limited to Vida DeLeon, Steve Ralbovsky and Joseph Little.
154. As a result of FAIRSTEIN’s extrajudicialstatements to the press, plaintiff OLIVER JOVANOVIC was denied his constitutiona l right to a fair trial, his liberty was restricted for an extended period of time, he was put in fear for hissafety, he was attacked by other inmates, he was physically and emotionally injured, he was repeatedly strip-searched and humiliated, and he suffered substantial economic losses and permanent damage to his reputation.
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SIXTH CLAIM FOR RELIEF VIOLATION OF DUE PROCESS UNDER 42 U.S.C. § 1983 THROUGH COERCION
AND INTIMIDATION OF DEFENSE WITNESSES 155. Plaintiff repeats, reiterates and realleges each and every allegation contained in paragraphs “1" through “154" as if the same were more fully set forth at length herein. 156. Defendant GAIL HEATHERLY, in her investigative capacity, met with and
interviewed several potential witnesses during her pre-trial investigation.
157. Defendant GAIL HEATHERLY, in her investigative capacity, learned that these witnesses possessed material and exculpatory information which would be helpful to the defense.
158. Defendant GAIL HEATHERLY, in her investigative capacity, specifically instructed these witnesses not to speak to with members of the defense team.
159. Defendant GAIL HEATHERLY, in her investigative capacity, threatened to disclose embarrassing personal details about these witnesses if they agreed to cooperate with the defense team.
160. As an example of the conduct alleged inparagraphs “141" through “144", defendant GAIL HEATHERLY met a witness named Kenneth Krompinger during the early phases of her investigation into this matter.
161. Mr. Krompinger lived directly beneath plaintiff OLIVER JOVANOVIC and could easily hear noise from plaintiff’s apartment, including people talking and walking.
162. Mr. Krompinger told defendant GAIL HEATHERLY that he was home throughout the entire period of the alleged assault and thathe never heard any screams from plaintiff OLIVER JOVANOVIC’S apartment.
163. Mr. Krompinger further told defendantGAIL HEATHERLY that he recalled hearing a quiet back-and-forth conversation upstairs on the following day.
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164. The information provided by Mr. Krompinger was highly relevant and would have undercut RZUCEK’s claim that she had been tortured and had been scream ing on-and-off throughout the 20-hour ordeal.
165. After speaking with Mr. Krompinger, defendant GAIL HEATHERLY threatened to expose Mr. Krompinger’s medical and psychiatric history if he agreed to cooperate with the defense.
166. After meeting with defendant GAIL HEATHERLY, Mr. Krom pinger refused to speak with members of the defense team. Accordingly, neither the defense nor the jury learned of Mr. Krompinger’s exculpatory evidence.
165. As a result of defendant GAIL HEATHERLY’s unlawful actions, plaintiff OLIVER JOVANOVIC was denied an opportunity to persent material and exculpatory information at his criminal trial.
166. As a result of defendant GAIL HEATHERLY’s unlawful actions, plaintiff OLIVER JOVANOVIC was denied due process of law, his liberty was restricted for an extended period of time, he was put in fear for his safety, he was attacked by other inmates, he was physically and emotionally injured, he was repeatedly strip-searched and humiliated, and he suffered substantial economic losses and permanent damage to his reputation.
SEVENTH CLAIM FOR RELIEF MUNICIPAL LIABILITY UNDER 42 U.S.C. § 1983 167. Plaintiff repeats, reiterates and realleges each and every allegation contained in paragraphs “1" through “166" as if the same were more fully set forth at length herein. 168. Defendants continued criminal proceedings against plaintiff despite a lack of credible evidence against him, and notwithstanding their knowledge that said proceedings would jeopardize plaintiff’s liberty, well-being, safety and constitutional rights.
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169. The acts complained of were carried out by the aforementioned individual defendants in their capacities as police officers, assistant district attorneys and officials pursuant to the customs, policies, usages, practices, procedures, and rules of the City of New York, the New York City Police Department, the New York County District Attorney’s Office and the Sex Crimes Unit, all under the supervision of ranking officers of said department, office and unit.
I. Extrajudicial Statements By the Prosecution in High-Profile Criminal Cases 170. At all times herein mentioned, defendant CITY OF NEW YORK, through the New York County District Attorney’s office and the Sex Crimes Unit, had a custom, practice and policy of allowing assistant district attorneys to make extrajudicial statements to the press in highprofile criminal cases, so as to inflame public opinion against such defendants and deprive themof their constitutional right to a fair trial. 171. The aforesaid policy, custom and practice can be inferred in part from repeated instances in which the New York County DistricAt ttorney’s office, through defendant FAIRSTEIN and/or assistant district attorneys in the Sex Crimes Unit acting under her supervision, engaged in the following tactics in high-profile criminal cases:
(a) Providing systematic “leaks”of information to the press which were damaging to the accused;
(b) Releasing to the press negative information about the accused, including his
prior arrest history and criminal record; (c) Publicly discussing the m erits of the case and/or incrim inating evidence
which had been gathered against the accused; (d) Expressing opinions about the accused’s guilt or innocence prior to the
commencement of trial; (e) Maligning the character and reputation of the accused;
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(f) Stating that the accused had engaged in sim ilar conduct before without evidence to support such statements; and
(g) Commenting on the identity, testim ony and/or credibility of prospective witnesses who would testify against the accused.
172. The existence of the aforesaid customs, policies and practices of defendant
CITY OF NEW YORK, as implemented by the New York County District Attorney’s office and the
Sex Crimes Unit, is evident in the following high-profile criminal cases, among others:
(a) The “Cybersex Torture” Case; (b) The “Central Park Jogger” Case; (c) The “Preppie Murder” Case against Robert Chambers; (d) The Sexual Abuse case against Dr. Patrick Griffin; and (e) The Internet Sexual Assault case against Paul Krauth.
173. In all of the above cases, prosecutors form the New York County District Attorney’s
office made extrajudicial statements to the presswhich involved one or more of the improper tactics
enumerated in Paragraph “158", supra, and which resulted in extensive negative publicity against
the accused.
174. The aforesaid policies, procedures, regulations, practices and/or customs
were implemented by policymaking officials for the defendant City of New York, including but not
limited to, the District Attor ney of New York County Robert Morgenthau and/or defendant
FAIRSTEIN, who knew that:
(a) to a moral certainty such policies, procedures, regulations, practices and/or customs concern issues that regularly arise in the investigation and prosecution of criminal cases;
(b) that such issues either present assistant district attorneys with difficult choices of the sort that instruction, training and/orsupervision would make less difficult, or that the need for further instruction, training and/or supervision was demonstrated by a history of assistant district attorneys’ mishandling such situations; and
(c) despite their knowledge of said policies, procedures, regulations, practices and/or customs, the supervisory and policymaking officers and officials of the defendant CITY OF NEW YORK, as a m atter of policy, practice and custom , perpetuated or fail ed to take steps to
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terminate said policies, practices and/or customs, did not discipline or otherwise properly supervise the employees engaged in them, did not effectively instruct, train and/or supervise such personnel with regard to the proper constitutional and statutoyr requirements in the exercise oftheir authority, but instead sanctioned t he policies, procedures, regulations, practices and/or custom s described above, and in fact rewarded such assistant distrcit attorneys by giving thempromotions and bonuses, thereby evincing a deliberate indifference to the effect of said policies, procedures, regul ations, practices and/or customs upon the constitutional rightsof residents and citizens of the State of New York.
175. The foregoing customs, policies, usages, practices, procedures and rules of the the CITY OF NEWYORK, as implemented by the New York County District Attorney’s office and the Sex Crimes Unit, constituted a deliberate indiference to the safety, well-being and constitutional rights of all defendants in high-profile criminal cases, including but not limited to, plaintiff OLIVER JOVANOVIC.
176. The foregoing customs, policies, usages, practices, procedures and rules of the CITY OF NEW YORK, as implemented by the New York County District Attorney’s office and the Sex Crimes Unit City of New Yo rk, were the proxim ate cause of the constitutional violations suffered by OLIVER JOVANOVIC as alleged herein.
177. The foregoing customs, policies, usages, practices, procedures and rules of the CITY OF NEW YORK, as im plemented by the New York County District Attorney’s office and Se x Crimes Unit City ofNew York, were the moving force behind the constitutional violations sufered
by plaintiff OLIVER JOVANOVIC as alleged herein.
178. As a proximate result of the foregoing practices and policies of the CITY OF NEW YORK, as implemented by the New York County Di strict Attorney’s office and t he Sex Crimes Unit, plaintiff OLIVER JOVANOVIC was denied his constitutional due process right to a fair trial and was incarcerated unlawfully for more than 20 months until all charges were dismissed against him on November 1, 2001.
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II. “Off-the Record” Statements by NYPD Officials in High-Profile Criminal Cases
179. At all times herein mentioned, defendant CITY OF NEW YORK, through the New York City Police Department, had a custom, practice and policy of allowing its police officers, detectives and/or investigators to m ake “off-the-record” statements to the press in high-profile criminal cases, thereby disclosing highly sensitive and/or damaging information from an ongoing criminal investigation, so as to inflame public opinion against defendants in such cases and deprive them of their constitutional right to a fair trial.
180. The aforesaid policy, custom and practice can be inferred in part from repeated instances in which the New York York Ci ty Police Department, through its police officers, detectives and/or investigators, engaged in the following tactics in high-profile criminal cases:
(a) Providing systematic “leaks”of inform ation to the press which we re damaging to the accused;
(b) Releasing to the press negative information about the accused, including his
prior arrest history and criminal record; (c) Releasing to the press incrim inating evidence which had been gathered
against the accused; (d) Expressing opinions about the accused’s guilt or innocence prior to the
commencement of trial; (e) Maligning the character and reputation of the accused; (f) Stating that the accused had engaged in sim ilar conduct before without
evidence to support such statements; and (g) Commenting on the identity, testim ony and/or credibility of pr ospective
witnesses who would testify against the accused. 181. The existence of the aforesaid customs, policies and practices of defendant CITY OF NEW YORK, as implemented by the New York City Police Department, is evident in the
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following high-profile criminal cases, among others:
(a) The “Cybersex Torture” Case; (b) The “Central Park Jogger” Case; (c) The “Preppie Murder” Case against Robert Chambers; (d) The Sexual Abuse case against Dr. Patrick Griffin; and (e) The Internet Sexual Assault case against Paul Krauth.
182. In all of the above cases, law enforcement officials from the New York City Police
Department, including but not limited, police officers, detectives, and/or investigators, made “off-
the-record” statements to the press which involved one or more of the improper tactics enumerated
in Paragraph “167", supra, and which resulted in extensive negative publicity against the accused
which tainted the jury pool and deprived the accused of the constitutional right to a fair trial.
183. The aforesaid policies, procedures, regulations, practices and/or customs
were implemented by policymaking officials for the defendant City of New York, including but not
limited to, the poli ce commissioner(s) and/or other high-ranking officials of the New York City
Police Department, who knew that:
(a) to a moral certainty such policies, procedures, regulations, practices and/or customs concern issues that regularly arise in the investigation and prosecution of criminal cases;
(b) that such issues either present police officers, detectives and/or investigators with difficult choices of the sort that instruc tion, training and/or supervi sion would m ake less difficult, or that the need for further instruction, training and/or supervision was demonstrated by a history of such employees’ mishandling such situations; and
(c) despite their knowledge of said policies, procedures, regulations, practices and/or customs, the supervisory and policymaking officers and officials of the defendant CITY OF NEW YORK, as a m atter of policy, practice and custom , perpetuated or failed to take steps to terminate said policies, practices and/or customs, did not discipline or otherwise properly supervise the employees engaged in them, did not effectively instruct, train and/or supervise such personnel with regard to the proper constitutional and statutoyr requirements in the exercise oftheir authority, but instead sanctioned the policies, procedures, regulations, practices and/or custom s described above, and in fact rewarded such em ployees by giving them promotions and bonuses, thereby evincing a deliberate indifference to the effect of s aid policies, procedures, regulations, practices and/or customs upon the constitutional rights of residents and citizens of the State of New York.
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184. The foregoing customs, policies, usages, practices, procedures and rules of the

the CITY OF NEW YORK, as implemented by the New York City Police Department, constituted

a deliberate indifference to the safety, well-being and constitutional rights ofall defendants in high-

profile criminal cases, including but not limited to, plaintiff OLIVER JOVANOVIC.

185. The foregoing customs, policies, usages, practices, procedures and rules of the

CITY OF NEW YORK, as im plemented by the New York City Polic e Department, were the

proximate cause of t he constitutional violations suffered by OLIVER JOVANOVIC as alleged

herein.

186. The foregoing customs, policies, usages, practices, procedures and rules of

the CITY

OF NEW YORK, as implemented by the New YorkCity Police Department, were the moving force

behind the constitutional violations suffered byplaintiff OLIVER JOVANOVIC as alleged herein.

187. As a proximate result of the foregoing practices and policies of the CITY OF NEW

YORK, as implemented by the New York CityPolice Department, plaintiff OLIVER JOVANOVIC

was denied his constitutional due process right to a fair trial and was incarcerated unlawfully for

more than 20 months until all charges were dismissed against him on November 1, 2001.

III. Deliberate Indifference to the Trai ning and Supervision of Assistant District Attorneys

188. Apart from the foregoing practices and policies, defendant CITY OF NEW YORK

exhibited a deliberate indifference toward the trainni g and supervision of assistant district attorneys

in the New York County District Attorney’s Office, in that defendant CITY OF NEW YORK:

a) Intentionally and/or recklessly failed to properly instruct, train and/or supe rvise assistant district attorneys with regard to their obligations to discontinue a criminal prosecution when medical and/or forensic evidence is discovered which nega tes probable cause and exonerates the accused;

b) Intentionally and/or recklessly failed to properly instruct, train and/or supervi se

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Case 1:04-cv-08437-PAC Document 40 Filed 09/18/06 Page 30 of 34

assistant district attorneys with regard to their obligations to discontinue a criminal prosecution when it becomes apparent that the complaining witness is not credible; c) Intentionally and/or recklessly failed to properly instruct, train a nd/or supervise assistant district attorneys with regard to their obligations to timely disclose all evidence favorable to the defense on the issues of guilt or innocence and punishment, pursuant to the due process clause of the Fifth and Fourteenth Amendments to the United StatesConstitution, and to Brady v. Maryland,373 U.S. 83 (1963), and its progeny;

d) Intentionally and/or recklessly failed t o properly instruct, train and/or supervise assistant district attorneys with regard to their obligations to avoid threatening, intimidating, hiring and/or coercing potential defense witnesses and preventing them from testifying on behalf of the accused;

e) Intentionally and/or recklessly failed to properly instruct, train and/or supervise
assistant district attorneys with regard to their obligations to avoid interfering with a defendant’s constitutional right to a fa ir trial by instructing potential def ense witnesses to not speak with defense counsel or investigators for the defense team;

f)

Intentionally and/or recklessly failed to properly instruct, train and/or supervise

assistant district attorneys with regard to their obligations to avoid pressuring

potential defense witnesses to give untruthful, erroneous, incom plete and/or

misleading statements;

g) Intentionally and/or recklessly failed to properly instruct, train and/or supervise assistant district attorneys with regard totheir obligations to avoid adopting a “winat-all-costs” approach to trial which involves, interalia, the following misconduct: coaching and/or permitting witnesses to gi ve inaccurate, false and/or misleading testimony; tailoring witness testim ony to explain inconsistencies with physical evidence; altering medical and forensic expert reports to exclude information which is favorable to the defense; and withholdnig material facts frommedical and forensic experts to secure more favorable testimony from said experts; and

h) Intentionally and/or reckl essly failed to properly instruct, train and/or supervise assistant district attorneys with regard totheir obligations to avoid giving improper summations which, inter alia: mistate evidence; discuss evidence which is not part of the r ecord; mischaracterize witness testimony; personally attack the accused and/or defense counsel; invite speculation by the jury; inflame the passions of the jury against the accused; and otherwise exceed the bounds of proper advocacy.

189. The aforesaid deliberate indifference to the training and supervision of assistant

district attorneys of the New York County District Attorney’s Office may also be inferred in part

from an examination of the following criminal cases handled by said office, among others:

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Case 1:04-cv-08437-PAC Document 40 Filed 09/18/06 Page 31 of 34
(a) The “Cybersex Torture” Case; (b) The “Central Park Jogger” Case; (c) The “Preppie Murder” Case against Robert Chambers; and (d) The Sexual Abuse case against Dr. Patrick Griffin.
189. In all of the above cases, prosecutors form the New York County District Attorney’s
office engaged in one or more of the improper tactics enumerated in Paragraph “175", supra, and
thereby deprived the accused of the constitutional right to a fair trial.
190. The aforesaid deliberate indifference to the training and supervision of assistant
district attorneys by defendant CITY OF NEW YORK may also be inferred from an analysis of
convictions obtained by the New YorkCounty District Attorney’s office which have been reversed,
modified, or vacated based, inter alia, upon prosecutorial actions of the sort described in paragraph
175, supra.
191. The aforesaid deliberate indifference to the training and supervision of assistant
district attorneys was implemented as a policy, practice, and/or customof defendant CITY OF NEW
YORK by policymaking officials for defendant CITY OF NEW YORK including, but not limited
to, the District Attorney of New York County Robert Morganthau and/or defendant FAIRSTEIN,
who knew that:
(a) to a moral certainty that such policies, procedures, regulations, practices and/or customs concern issues that regularly arise in the investigation and prosecution of criminal cases;
(b) that such issues either present assistant district attorneys with dificult choices of the sort that instruction, training and/or supervision will make less difficult, or that the need for further instruction, training and/or supervision was demonstrated by a history of assistant district attorneys’ mishandling such situations; and
c) despite their knowledge of said policies, procedures, regulations, practices and/or customs, the supervisory and policymaking officers and officials of the defendant CITY OF NEW YORK, as a m atter of policy, practice and cu stom, perpetuated or failed to take steps t o terminate said policies, practices and/or customs, did not discipline or otherwise properly supervise the employees engaged in them, did not effectively instruct, train and/or supervise such personnel with regard to the proper constitutional and statutoyr requirements in the exercise oftheir authority,
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Case 1:04-cv-08437-PAC Document 40 Filed 09/18/06 Page 32 of 34
but instead sanctioned the policies, procedures, regulations, practices and/or custom s described above, and in fact rewarded such assistant distrcit attorneys by giving thempromotions and bonuses, thereby evincing a deliberate indifference to the e ffect of said policies, procedures , regulations, practices and/or customs upon the constitutional rightsof residents and citizens of the State of New York.
192. The foregoing customs, policies, usages, practices, procedures and rules of the the CITY OF NEWYORK, as implemented by the New York County District Attorney’s office and the Sex Crimes Unit, constituted a deliberate indiference to the safety, well-being and constitutional rights of all defendants, including but not limited to, plaintiff OLIVER JOVANOVIC.
193. The foregoing customs, policies, usages, practices, procedures and rules of the CITY OF NEW YORK, as implemented by the New York County District Attorney’s office and the Sex Crimes Unit City of New York, were the proximate cause of the constitutional violations suffered by OLIVER JOVANOVIC as alleged herein.
194. The foregoing customs, policies, usages, practices, procedures and rules otfhe CITY OF NEW YORK, as im plemented by the New York County District Attorney’s office and Sex Crimes Unit City ofNew York, were the moving force behind the constitutional violations sufered by plaintiff OLIVER JOVANOVIC as alleged herein.
195. As a proximate result of the foregoing practices and policies of the CITY OF NEW YORK, as implemented by the New York County Di strict Attorney’s office and the Sex Crimes Unit, plaintiff OLIVER JOVANOVIC was denied his constitutional right to a f air trial and was incarcerated unlawfully for more than 20 months until all charges were dismissed against him on November 1, 2001.
WHEREFORE, plaintiff OLIVER JOVANOVIC dem ands judgment in the sum of ten million dollars ($10,000,000.00) in compensatory damages, ten million dollars ($10,000,000.00) in punitive damages, plus attorney’s fees, costs, and disbursements of this action.
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Case 1:04-cv-08437-PAC Document 40 Filed 09/18/06 Page 33 of 34 Dated: New York, New York
September 18, 2006
___________/S_________________
JON L. NORINSBERG (JN2133) Attorney for Plaintiff 225 Broadway, Suite 2700 New York, N.Y. 10007 (212) 791-5396
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Case 1:04-cv-08437-PAC Document 40 Filed 09/18/06 Page 34 of 34

INDEX NO. 04 CV 8437 (CRC)

YEAR 2004

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

______________________________________________________________________________

OLIVER JOVANOVIC,

Plaintiff,

-against-

THE CITY OF NEW YORK, DET. MILTON BONILLA, Shield No. 61, Individually and in his Official Capacity, New York CountyAssistant District Attorney LINDA FAIRSTEIN, Individually and in her Official Capacity, and New York County Assistant District Attorney GAIL HEATHERLY, Individually and in her Official Capacity,

Defendants.
___________________________________________________________________

AMENDED SUMMONS AND COMPLAINT
___________________________________________________________________

Attorney for Plaintiffs

JON L. NORINSBERG
Office and Post Office Address, Telephone 225 Broadway - Suite 2700 New York, New York 10007 (212)791-5396

___________________________________________________________________
Signature (Rule 130-1.1a)

__________________________________________ Print Name Beneath

To

Attorney(s) for Defendants

_________________________________________________________

Service of a copy of the within is hereby admitted.

Dated

_________________________

Attorney(s) for

______________________________________________________________________________

PLEASE TAKE NOTICE

Q

NOTICE OF ENTRY

that the within is a (certified) true copy of a

duly entered in the office of the clerk of the within named court on

20

Q

NOTICE OF SETTLEMENT

Dated,

that an order

will be presented for settlement to the HON.

within named Court, at

on

20

of which the within is a true copy one of the judges of the
at Yours, etc.

 
 Case 1:04-cv-08437-PAC Document 124 Filed 09/28/10 Page 1 of 30

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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

:

DR. OLIVER JOVANOVIC,

:

Plaintiff,

04

:

- against -

:

THE CITY OF NEW YORK, DETECTIVE

MILTON BONILLA, Shield No. 61, Individually :

And in his official capacity, New York County

Assistant District Attorney LINDA FAIRSTEIN, :

Individually and in her official capacity,

:

Defendants.

:

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

USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: _________________ DATE FILED: September 28, 2010
Civ. 8437 (PAC) ORDER

HONORABLE PAUL A. CROTTY, United States District Judge:

In November, 1996, the Plaintiff, Dr. Oliver Jovanovic (“Jovanovic” or “Plaintiff”), then a doctoral student at Columbia University, was arrested and subsequently tried and convicted for the rape, sodomy and kidnapping of Jamie Rzucek (“Rzucek”), then a student at Barnard College. Local newspapers and other media outlets provided intense coverage of the high-profile trial. In April, 1998, Jovanovic was convicted, and in May, 1998, he was sentenced to a term of 15 years to life in prison. Upon appeal, the Appellate Division, First Department found trial errors relating to the trial judge’s application of the rape-shield law, leading to a reversal of his conviction in December, 1999 and a remand for a new trial. The victim refused to testify at a new trial, and subsequently the District Attorney moved to dismiss all charges. On November 1, 2001, the District Attorney’s motion was granted, and all charges were dismissed with prejudice.

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Jovanovic initiated this action on October 28, 2004, alleging a number of claims against New York Police Department Detective Milton Bonilla, Assistant District Attorney Linda Fairstein, and the City of New York (collectively, the “Defendants”). Prior rulings by this court have left Jovanovic with claims against Bonilla for malicious prosecution, malicious abuse of process, and denial of a fair trial; a claim against Fairstein for denial of a fair trial; and claims under Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658 (1978), against the City of New York. See Jovanovic v. City of New York, 04 Civ. 8437, 2006 U.S. Dist. LEXIS 59165 (S.D.N.Y. Aug. 17, 2006); Jovanovic v. City of New York, 04 CV 8437, 2008 U.S. Dist. LEXIS 8974 (S.D.N.Y. Feb. 7, 2008). Defendants now move for summary judgment on all remaining claims pursuant to Fed. R. Civ. P. 56(c). For the following reasons, Defendants’ motion for summary judgment is GRANTED in its entirety.
BACKGROUND In June, 1996, Jovanovic, then a 30-year-old doctoral candidate at Columbia University, met a Barnard College student named Jamie Rzucek in an America Online chat room. (Jovanovic Dep. 46-47; Amended Compl. ¶ 106.) Over the course of several months, Jovanovic and Rzucek corresponded via instant message (“IM”) and e-mail and exchanged phone numbers. (Jovanovic Dep. Ex. D, E.) On the morning of Friday, November 22, 1996, Jovanovic and Rzucek spoke on the phone and, during a conversation that lasted nearly five hours, agreed to go to dinner and a movie that evening. (Jovanovic Dep. 87-88.) At around 8:00 p.m. on the night of November 22, 1996, Jovanovic drove from his apartment in Washington Heights to Rzucek’s Barnard dormitory on West 116th Street. (Jovanovic Dep. 99-100.) After Jovanovic arrived at Rzucek’s dormitory, the pair drove to a
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Thai restaurant downtown for dinner. (Jovanovic Dep. 105.) Once they finished dinner, they realized that they would miss the movie, Microcosmos, that they had intended to see together that night. (Jovanovic Dep. 96, 99.) Jovanovic and Rzucek decided to drive around to several video rental stores looking for a copy of Tokyo Decadence, a film with strong sadomasochistic themes which they had previously discussed. (Trial Tr. 175-78) Unable to find a copy of the movie, Jovanovic and Rzucek returned to Jovanovic’s apartment with the intent of watching a different film. (Jovanovic Dep. 114.) Upon arrival, Jovanovic made Rzucek tea, and Rzucek examined a book of photography by Joel Peter Witkin that contained depictions of morbid subjects. (Jovanovic Dep. 118, 121-24.) Later, Jovanovic and Rzucek watched a movie entitled Meet the Feebles. (Jovanovic Dep.126-27.)
After staying overnight at Jovanovic’s apartment, (Jovanovic Dep. 162-63), Rzucek left at some point during the afternoon or evening of Saturday, November 23, 1996. (Jovanovic Dep. 180; Rzucek Grand Jury Testimony 36-37.) Over the course of the next few days, Rzucek told several people, including a friend named Luke DuBois (“DuBois”), her mother, her roommate Emily Powers (“Powers”), and head of Barnard security William O’Connor (“O’Connor”), about a forced sexual encounter with Jovanovic. (Trial Tr. 287-88, 1421; O’Connor Dep. 44, 51-52.) On November 27, 1996, Dr. Karlene Chin Quee, a board certified OB/GYN, examined Rzucek at Barnard Health Services. (Trial Tr., 1827, 1830-31.) During the course of the examination, Rzucek described the incident. (Trial Tr. 1831-32, 1844.) Shortly after this examination, Rzucek had a second conversation with O’Connor, who called his contact in the New York Police Department’s Photo Unit, Sergeant Francis Monahan. (O’Connor Dep. at 86, 89.) Monahan told O’Connor that he would “handle it,” and he contacted Detective Milton Bonilla of the Special
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Victim’s squad. Following a meeting with Bonilla later that day, O’Connor introduced Bonilla to Rzucek. (Bonilla Dep. 29-30.)
It was, therefore, not until four days after the incident that Rzucek reported to Bonilla that she had been sexually assaulted and that Jovanovic was her attacker. (Larkin Dec., Ex. G.) Rzucek told Bonilla that Jovanovic had assaulted her for twenty hours, beginning on the night of November 22, 1996 and continuing through the day of November 23, 1996, (Larkin Dec., Ex G), and Rzucek provided a detailed and graphic statement of the incident, in which she alleged that Jovanovic had tied her up, violently raped and sodomized her, struck her repeatedly with a club, burned her with candle wax, and repeatedly gagged her with a variety of materials. (Larkin Dec., Ex. H.)
Despite the gravity of Rzucek’s allegations, Bonilla waited until nine days after his meeting with Rzucek before attempting to question Jovanovic. It is unclear whether Bonilla conducted any additional investigation during this nine-day period, which included the Thanksgiving holiday. On December 5, 1996, Bonilla and his partner, Detective Charles Cullen, went to Jovanovic’s apartment. (Bonilla Dep. 118-20.) After showing identification, Jovanovic allowed the detectives to enter the premises. (Bonilla Dep. 118-20.) According to Jovanovic, after he asked the detectives whether or not he needed to contact an attorney, he was immediately taken to a police precinct. (Jovanovic Dep. 204-06.) Later that day, Bonilla arrested Jovanovic for the rape, sodomy, and unlawful imprisonment of Rzucek. (Jovanovic Dep. 20610.)
Following the arrest, detectives, including Bonilla, obtained a search warrant and returned to Jovanovic’s apartment to search for the items allegedly used in the assault. (Bonilla Dep. 146-47.) Upon arrival, Plaintiff’s mother, Sabina Jovanovic, was inside the apartment with
4

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the door chain locked. (S. Jovanovic Dep. 52.) Once the detectives produced the search warrant, she let them enter, (S. Jovanovic Dep. 52), and police recovered, among other things, computer hard drives, karate belts, and tape. (Larkin Dec., Ex. T.)
On December 6, 1996, Jovanovic was arraigned in New York County Criminal Court. (Arraignment Tr. 1.) Assistant District Attorney Linda Fairstein, the Chief of the Sex Crimes Unit of the New York County District Attorney’s Office, appeared for the office. (Arraignment Tr. 2.) Following the arraignment, Fairstein allegedly made numerous extrajudicial statements to the press concerning the case, including but not limited to statements regarding details of the alleged assault; statements vouching for the complainant; speculation about there being other victims; and descriptions of evidence seized by the police. (Amended Compl. ¶ 79-81.)1
In addition, Jovanovic alleges that trial witnesses were influenced by the extensive press coverage of the case. Mary Jo Chambers, a material witness according to Jovanovic, came forward only after hearing about the case in the newspaper and testified at the criminal trial about IM conversations she had allegedly had with Jovanovic in which he spoke about what he had done to Rzucek. (Norinsberg Dec., Ex. 103, Chambers Trial Tr.) Chambers’ testimony was addressed by both parties during summations, and became the subject of a read-back requested by the jury during their deliberations. (Norinsberg Dec., Ex. 92.)
1 For example, the Amended Complaint quotes Fairstein as saying: “He terrorized this young woman to the point that she was too frightened to call the authorities until weeks after it happened”; he “tied her to a chair, undressed her, and tortured her with sex toys and other objects for almost a full day”; he “tortured and sexually abused the woman, burning her with candle wax, biting her, sexually assaulting her and threatening to dismember her as Jeffrey Dahmer, the serial killer, had done with his victims”; he “tied the woman’s legs to a chair and gagged her before sexually torturing her”; he “was so prepared for this and carried it off so smoothly”; “[w]e believe this was not the first time he did something like this”; and “[w]e believe there are other victims.” (Amended Compl. ¶ 79.) In addition, Fairstein emphasized to the press that this was her office’s “first internet-related sex prosecution” and that the case represented a “whole new entry in the acquaintance-rape category.” (Amended Compl. ¶ 81.)
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Prior to presenting the case to the Grand Jury, Assistant District Attorney Gail Heatherly met with O’Connor to discuss Rzucek’s complaint; reviewed the photographs of Rzucek taken at Barnard Health Services; reviewed the medical records of and spoke to Dr. Chin Quee; spoke to Emily Powers; spoke to Rzucek’s mother; and spoke with the detectives who investigated the case. (Heatherly Dep. 87-88.) She presented the case to the Grand Jury on December 13 and December 19, 1996 — both Rzucek and Bonilla testified, along with other witnesses. (Larkin Dec., Ex. GG.) Bonilla testified that he saw a candle or multiple candles inside Jovanovic’s apartment during his initial visit on December 5, 1996, but that the candle or candles were not there when he returned to the apartment to execute the search warrant later that night. (Bonilla Grand Jury Testimony 51, 54.)2 The Grand Jury indicted Jovanovic on December 19, 1996. (Larkin Dec., Ex. HH.)
Fifteen months later, on March 10, 1998, jury selection for the criminal trial began. Each juror was asked, prior to voir dire, to complete a jury questionnaire including specific questions about pre-trial press coverage of the case. During jury selection, in which both sides used all of their preemptory challenges, Jovanovic successfully challenged one juror for cause, relating to issues of pretrial publicity. At the conclusion of jury selection, defense counsel consented to the panel, subject to challenges under Batson v. Kentucky, 476 U.S. 79 (1986). During the trial, one juror became ill and was replaced by an alternate without objection. (Trial Tr. 1868-74.)
On April 15, 1998, the jury found Jovanovic guilty of Kidnapping in the First Degree, three counts of Sexual Abuse in the First Degree, one count of Assault in the Second Degree, and Assault in the Third Degree. (Trial Tr. 3527-34.) He was acquitted of all other charges. (Trial
2 When asked in his deposition in the present matter if he had candles in his apartment at the time of the alleged crime, Jovanovic said, “No. At that time, I don’t think I had any candles in my apartment.” (Jovanovic Dep. 163.)
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Tr. 3527-34.) On May 29, 1998, Jovanovic was sentenced to a term of fifteen years to life in prison. (Larkin Dec., Ex. MM.) On December 21, 1999, the Appellate Division, First Department reversed Jovanovic’s conviction, finding that the trial judge improperly hampered his ability to present a defense by erroneously invoking the rape-shield law, thereby denying the jury access to key evidence regarding Rzucek’s interest in sadomasochistic activity. See People v. Jovanovic, 700 N.Y.S.2d 156 (N.Y. App. Div. 1st Dep=t 1999). At that point, Jovanovic had served more than 20 months in prison.
Anticipating a second trial, the prosecution offered Jovanovic several plea deals. First, he was offered a deal in which he could avoid serving any further time in prison if he would plead guilty to a single felony charge. Maintaining his innocence, Jovanovic refused. The prosecution then offered Jovanovic a deal that consisted of no further prison time if he would plead guilty to a single, non-sexual, misdemeanor charge. Again, Jovanovic refused, maintained his innocence, and insisted on a trial. On November 1, 2001, because Rzucek refused to testify in a second trial, the prosecution moved to dismiss all charges against Jovanovic. The motion was granted and all charges were dismissed, with prejudice.
Three years later, on October 28, 2004, Jovanovic instituted this action against New York City Police Officer Milton Bonilla (“Bonilla”) and former Assistant District Attorney Linda Fairstein (“Fairstein”) under 42 U.S.C. § 1983, alleging false arrest, malicious prosecution, malicious abuse of process, and denial of his right to a fair trial, seeking $20 million in damages, plus attorneys’ fees. Specifically, Jovanovic alleges that Bonilla, while acting in his official capacity, fabricated evidence and proffered false testimony, and that Fairstein, while acting in her official capacity, made damaging extrajudicial statements to the press in an effort to secure Jovanovic’s conviction. Jovanovic also brought claims against the City of New York under
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Case 1:04-cv-08437-PAC Document 124 Filed 09/28/10 Page 8 of 30
Monell, 436 U.S. 658 (the “Monell Claims”), alleging a municipal policy or custom that gave rise to these alleged constitutionally impermissible acts.
On December 13, 2005, Defendants moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c), and on August 17, 2006, the Court denied Defendants’ motion, except with respect to the claim of malicious abuse of process. See Jovanovic v. City of New York, 2006 U.S. Dist. LEXIS 59165. That claim was dismissed, with leave to replead, and, on September 18, 2006, Jovanovic filed an amended complaint repleading his malicious abuse of process claim. On July 9, 2007, Defendants moved for reconsideration of the Court’s August 17, 2006 opinion, arguing that the Supreme Court’s decision in Wallace v. Kato, 549 U.S. 384 (2007), concerning the correct application of the statute of limitations for a Section 1983 false arrest claim, warranted reconsideration of the Court’s denial of Defendants’ motion to dismiss that claim. On February 7, 2008, the Court granted Defendants’ motion for reconsideration as to Jovanovic’s false arrest claim and denied the motion as to Jovanovic’s remaining claims. See Jovanovic v. City of New York, 2008 U.S. Dist. LEXIS 8974. As a result of the aforementioned rulings, Jovanovic was left with his claims against Bonilla for malicious prosecution, malicious abuse of process, and denial of a fair trial; his claim against Fairstein for denial of a fair trial; and his Monell claims against the City of New York. On December 21, 2009, Defendants moved for summary judgment under Fed. R. Civ. P. 56(c) on all of Jovanovic’s remaining claims.
DISCUSSION I. Summary Judgment Standard
Summary judgment is appropriate where the record demonstrates that “there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of
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Case 1:04-cv-08437-PAC Document 124 Filed 09/28/10 Page 9 of 30
law.” Fed. R. Civ. P. 56(c)(2). A fact is material if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the initial burden of producing evidence on each material element of its claim or defense demonstrating that it is entitled to relief. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The evidence on each material element must be sufficient to entitle the movant to relief as a matter of law. See Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004).
Once the moving party has made an initial showing that no genuine issue of material fact remains, the nonmoving party may not refute this showing solely by means of “[c]onclusory allegations, conjecture, and speculation,” Niagara Mohawk Power Corp. v. Jones Chem., Inc., 315 F.3d 171, 175 (2d Cir. 2003), but must instead present specific evidence in support of its contention that there is a genuine dispute as to material facts. Fed. R. Civ. P. 56(e)(2). The Court resolves all ambiguities and draws all factual inferences in favor of the nonmovant, but “only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Fed. R. Civ. P. 56(c)).
II. Malicious Prosecution Claim Against Bonilla “In order to prevail on a § 1983 claim against a state actor for malicious prosecution, a
plaintiff must show a violation of his rights under the Fourth Amendment, and must establish the elements of a malicious prosecution claim under state law.” Manganiello v. City of New York, 612 F.3d 149, 160-61 (2d Cir. 2010) (citations omitted). Because “accusers must be allowed room for benign misjudgments,” New York law “places a heavy burden on malicious prosecution plaintiffs.” Rothstein v. Carriere, 373 F.3d 275, 282 (2d Cir. 2004) (citing Smith-
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Hunter v. Harvey, 734 N.E.2d 750, 752 (N.Y. 2000)). To prevail on a malicious prosecution claim under New York law, a plaintiff must establish four elements: “(1) the initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the proceeding in plaintiff’s favor; (3) lack of probable cause for commencing the proceeding; and (4) actual malice as a motivation for defendant’s actions.” Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997). Here, Defendants argue that Jovanovic cannot establish a genuine issue of material fact as to the second or third elements and that therefore a ruling of summary judgment is appropriate.
A. The proceeding terminated favorably for Jovanovic In denying Defendant’s motion to dismiss, this Court found that Jovanovic had
adequately alleged that his criminal proceeding came to a favorable termination. See Jovanovic v. City of New York, 2006 U.S. Dist. LEXIS 59165, at *27-28. Although Defendants request that the Court reconsider this issue in light of “evidence adduced in discovery,” (Def. Mem. at 4), such evidence does not change the result of the Court’s analysis.
Cantolino v. Danner makes clear that “any termination of a criminal prosecution, such that the criminal charges may not be brought again, qualifies as a favorable termination, so long as the circumstances surrounding the termination are not inconsistent with the innocence of the accused.” 754 N.E.2d 164, 167 (N.Y. 2001). Further, a dismissal by the prosecution “in the interest of justice,” as occurred in this case, may properly be considered a “favorable” termination. Id. at 395-96. As this Court stated previously, “[a]fter reversal and remand, Jovanovic was cloaked again in the constitutional presumption of innocence.” Jovanovic v. City
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of New York, 2006 U.S. Dist. LEXIS 59165 at *28. Thus, the subsequent dismissal in the interest of justice, with prejudice, was in no way inconsistent with Jovanovic’s innocence.
Defendants argue that the District Attorney’s Office never believed that Jovanovic was innocent, (Hobbs Dep. at 229-32), and that the only reason that the District Attorney’s Office moved for dismissal was because Rzucek’s “present emotional state [would] not permit her to undergo the stress of a prolonged trial.” (Def. Mem. 3.) The subjective beliefs of the members of the District Attorney’s office, however, as well as the emotional state of the complainant are of no consequence when considering whether Jovanovic received a favorable termination. Because the termination of Jovanovic’s prosecution “in the interest of justice,” was both final and “not inconsistent with” Jovanovic’s innocence, the termination of the criminal case was favorable to Jovanovic, and no evidence or argument provided by Defendants convinces this Court of a different result.
Further, where a plaintiff that brings a malicious prosecution claim was charged with multiple offenses, a court must analyze each claim separately for the purposes of determining whether the proceeding terminated favorably for the plaintiff. Posr v. Doherty, 944 F.2d 91, 100 (2d Cir. 1991); Janetka v. Dabe, 892 F.2d 187, 190 (2d Cir. 1989). Putting aside the above analysis of the proceeding as a whole, the jury acquitted Jovanovic of several of the charges lodged against him. As a result, with respect to those charges, the favorable termination requirement is, as a matter of law, clearly satisfied.
B. There was probable cause for the proceeding Under New York law, probable cause is a complete defense to a malicious prosecution
claim. Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003) (citing Colon v. City of New
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York, 60 N.Y.2d 78, 82 (N.Y. 1983)). Probable cause requires “knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested.” Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006).
1. Plaintiff cannot defeat the presumption of probable cause arising from indictment A Grand Jury indictment creates a presumption of probable cause. Savino, 331 F.3d at
72. This presumption “may only be rebutted by evidence that the indictment was procured by ‘fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith.’” Id.; see also Marshall v. Sullivan, 105 F.3d 47, 54 (2d Cir. 1996). The presence of false testimony is not enough to raise an issue of material fact; there must be a demonstration of bad faith — something more than a mere inconsistency — to defeat the Grand Jury presumption. See McClellan v. Smith, 439 F.3d 137, 146 (2d Cir. 2006) (citing, among others, intoxication, conflict of interest, pressuring the prosecutor to make a deal with a putative witness, and altering one’s testimony as examples of bad faith); Brogdon v. City of New Rochelle, 200 F. Supp. 2d 411, 422 (S.D.N.Y. 2002) (holding that plaintiff must show bad faith or fraud concerning “a matter material to the issue or point in question.”). Stated differently, in order to overcome the presumption of probable cause arising from a grand jury’s indictment, a Plaintiff, who bears the burden of rebutting this presumption, Savino, 331 F.3d at 73 (citing Bernard v. United States, 25 F.3d 98, 104 (2d Cir. 1994)), must adduce sufficient evidence to “erode the ‘premise that the Grand Jury act[ed] judicially.’” Rothstein, 373 F.3d at 284. Jovanovic has failed to carry his burden.
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Jovanovic points principally to a small portion of Bonilla’s testimony regarding whether he saw candles inside Jovanovic’s apartment at two different times.3 (Pl. Mem. at 3-4.) Bonilla
told the Grand Jury that, when he was in Jovanovic’s home the first time, he saw candles in the
apartment, but that the candles were missing when he was executing the search warrant later that
day. (Bonilla Grand Jury Tr. 51, 54.) In addition, Rzucek told the Grand Jury that Jovanovic
burned her with candle wax (Rzucek Grand Jury Testimony 17-19) and Jovanovic had online
conversations with other women about using candle wax in a similar way. (Larkin Aff., Ex. DD.)
In response, Jovanovic cites his deposition, in which, when asked if he remembered having
candles in his apartment, he said, “No. At that time, I don’t think I had any candles in my
apartment,” (Jovanovic Dep. 163.), and Rzucek’s dearth of lasting burn marks from candle wax.
From this, Jovanovic asks this court to conclude that Detective Bonilla “fabricated” his
testimony regarding the presence of candles in the apartment, or at least that there is a genuine
issue of material fact as to the existence of the candles that must be weighed by a jury.
While there may be a genuine dispute regarding the existence of candles in the
apartment,4 this is of little moment. Jovanovic selectively quotes from Richardson v. City of
New York, No. 02 CV 3651, 2006 U.S. Dist. LEXIS 69577 (E.D.N.Y. Sept. 27, 2006), claiming
3 Jovanovic also points to Bonilla’s testimony that he recovered “cloth strips” from Jovanovic’s apartment. It is undisputed, however, that Jovanovic’s apartment contained karate belts, a type of cloth strip. This is essentially a quibble over terminology, is not a genuine issue of material fact, and does not defeat the Grand Jury presumption of probable cause. Jovanovic further argues that, at the criminal trial, Bonilla “fabricated” a futon video. Jovanovic, however, merely claims that Bonilla failed to capture his loosening of the futon’s wing nuts before shooting the video — he does not allege that Bonilla actually “fabricated” anything. Additionally, because this video was not shown to the Grand Jury, it does not have any relevance with respect to a determination of whether Jovanovic has overcome the Grand Jury presumption of probable cause. Lastly, Jovanovic discusses the alleged destruction of police photographs and the loss of Bonilla’s detective file. It is unclear, however, what effect these items would have if they were a part of the record, and Jovanovic fails to cite any reliable evidence that suggests these items were disposed of improperly. As a result, these issues fail to overcome the Grand Jury presumption of probable cause. 4 Indeed, even Jovanovic’s mother said that she was unsure about whether there were candles in the apartment. Specifically, in her deposition she stated, “Perhaps there were [candles], but I did not see them.” (S. Jovanovic Dep. 61.)
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that it stands for the proposition that if a plaintiff can prove that a defendant police officer
fabricated any evidence, the presumption of probable cause arising from the Grand Jury
indictment is automatically overcome. But the case does not support Jovanovic’s argument. An
accompanying footnote provides a helpful synopsis of the proper rule and demonstrates that
Jovanovic has misinterpreted the Richardson court’s opinion:
Two important limitations on such a [malicious prosecution] claim warrant emphasis: In order for a plaintiff to recover, the alleged fabrication must be both material, i.e., likely to influence a jury's decision, and the legally cognizable cause of the post-arraignment deprivation of liberty. It is particularly critical to distinguish between an alleged fabrication that “precipitated the sequence of events that resulted in the deprivation of liberty” from other charges of fabrication of evidence. As vile as any fabrication of evidence is, particularly when the offender is a law enforcement officer, it seem[s] obvious that a defendant who achieves a favorable termination in a criminal case cannot properly be permitted to seek damages (and obtain a jury trial) simply by asserting, for example, that one of several (equally incriminating) alleged admissions in a post-arrest statement was not in fact made. The availability of a cause of action based solely on a claim of fabrication, without the materiality and causation requirements, would unduly deter prosecutors’ exercise of discretion to dismiss or abandon cases for a broad array of reasons having nothing to do with the defendant’s guilt or the claimed fabrication.
Richardson, 2006 U.S. Dist. LEXIS 69577 at *21 n.4 (quotation marks and citations omitted).
Here, Bonilla’s testimony regarding the candles was not the only testimony concerning candles
and, besides, the candles relate to only one out of the eleven charges returned by the Grand Jury
against Jovanovic: Assault in the Second Degree. An inconsistency in testimony with regard to
this single item could not have materially affected the Grand Jury’s ability to come to its decision
with regard to the entire indictment. In other words, although there may be a genuine dispute
over whether there were, in fact, candles in Jovanovic’s apartment, a resolution of that question
is not material and, even assuming arguendo that Bonilla fabricated his testimony, this
fabrication was not the cause of any post-arraignment or post-trial deprivation of liberty. In sum,
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this inconsistency certainly does not “erode the ‘premise that the Grand Jury act[ed] judicially.’” See Rothstein, 373 F.3d at 284.
Additionally, Jovanovic alleges that Detective Bonilla, in a deviation from police practices in connection with the investigation, did not, among other things, read the victim’s medical records or the victim’s handwritten statement and that he did not properly voucher for evidence the futon on which the alleged assault took place. All of these alleged omissions were known at the time of the arraignment, the point at which the District Attorney’s office assumed full control of the prosecution. Thus, the decision to continue the prosecution at that point was made by the District Attorney’s office, not Detective Bonilla. As a result, these issues are not relevant with respect to Jovanovic’s attempt to defeat the presumption of probable cause created by the Grand Jury’s indictment. See Williams v. City of New York, No. 02 Civ. 3693, 2003 U.S. Dist. LEXIS 19078, at *19 (S.D.N.Y. Oct. 23, 2003) (“Once a criminal defendant has been formally charged, the chain of causation between the officer’s conduct and the claim of malicious prosecution is broken by the intervening actions of the prosecutor . . . .”).
2. The evidence clearly supports a finding of probable cause Even without the presumption of probable cause generated by the Grand Jury indictment,
and even without the candle-related evidence discussed above, the evidence presented to the Grand Jury clearly supports a finding of probable cause. Regardless of whether a false arrest or a malicious prosecution is at issue, the relevant probable cause inquiry is always whether there is “probable cause to believe the crimes charged were committed.” Rothstein, 373 F.3d at 283. When information is received from a victim or eyewitness, probable cause exists “unless the circumstances raise doubt as to the person’s veracity.” Curley v. Village of Suffern, 268 F.3d
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65, 70 (2d Cir. 2001). Further, “the existence of a ‘swearing contest’” between witnesses, without more, is insufficient to create a question of fact as to probable cause. Brogdon, 200 F. Supp. 2d at 422.
Rzucek provided Bonilla with both an oral and written account of Jovanovic’s crimes and separately told several other people about the incident, including Dubois, Powers, O’Connor, and Dr. Chin Quee. In addition, Dr. Chin Quee examined Rzucek on November 27, 1996 and the results of the examination were consistent with Rzucek’s description of what Rzucek claimed Jovanovic did to her. Dr. Chin Quee found Rzucek to be credible, and described several different bruises and areas of tenderness consistent with Jovanovic’s alleged acts. Any possible concerns about Rzucek’s veracity would, in a reasonable juror’s mind, be balanced out by this additional evidence, generating the necessary “knowledge or reasonably trustworthy information” for a finding of probable cause. See Panetta, 460 F.3d at 395.
Accordingly, the Defendant’s summary judgment motion as to the malicious prosecution claim against Detective Bonilla is GRANTED.
III. Malicious Abuse of Process Claim Against Bonilla Malicious abuse of process is actionable under Section 1983 where a plaintiff can meet
the elements of the claim under New York law. Savino, 331 F.3d at 76-77. Under New York law, to succeed on a malicious abuse of process claim, a plaintiff must establish: (1) that the defendant employed a regularly issued legal process to compel performance or forbearance of some act, (2) with intent to do harm without excuse or justification, and (3) in order to obtain a collateral objective outside the legitimate ends of that process. Id. at 76. “While a lack of probable cause is not explicitly an element of an abuse of process claim, the presence of probable
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cause negates a claim for abuse of process.” Sforza v. City of New York, 07 Civ. 6122, 2009 U.S. Dist. LEXIS 27358, at *49-50 (S.D.N.Y. Mar. 31, 2009). Defendants claim that Jovanovic has not shown the third element — a collateral objective.
To establish a collateral objective, a plaintiff must prove that the defendant “aimed to achieve a collateral purpose beyond or in addition to his criminal prosecution.” Douglas v. City of New York, 595 F. Supp. 2d 333, 344 (S.D.N.Y. 2009) “[C]ollateral objectives typically associated with abuse of criminal process are extortion, blackmail, or retribution; and those objectives are usually characterized by personal animus.” Oathout v. Decker, No. 99 Civ. 5868, 2000 U.S. Dist. LEXIS 12001, at *20 (S.D.N.Y. Aug. 21, 2000). Plaintiff urges the Court to broadly interpret “collateral objective” to include a wide variety of motives, such as protecting one’s reputation and the fear of losing one’s job. See Hernandez v. Wells, No. 01 Civ. 4376, 2003 WL 22771982, at *9 (S.D.N.Y. Nov. 24, 2003); Richardson, 2006 U.S. Dist. LEXIS 69577, at *22. Indeed, courts have held that protecting one’s employment could be an objective sufficient to establish the collateral objective element of a malicious abuse of process claim. See Hernandez, 2003 WL 22771982, at *9 (holding that “sav[ing] his own job” satisfied collateral objective element where employee “had been told that he would be fired if he violated any rules or regulations at any time in the future”).
Jovanovic argues that Bonilla arrested him to curry favor with his superiors, particularly Sergeant Monahan, but offers no direct evidence of this objective or any other motivation. Monahan was not Bonilla’s superior; indeed, Monahan was not even in Bonilla’s unit. (Cullen Dep. 19-20.) Jovanovic points to conversations between Monahan and O’Connor, the head of security at Barnard, and notes that Bonilla waited nine days before questioning Jovanovic. According to Jovanovic, this suggests that Bonilla only arrested Jovanovic because he wanted to
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impress Monahan. Standing alone, however, this delay cannot create a genuine issue of fact regarding the issue of whether Bonilla had a collateral objective in prosecuting Jovanovic. Even if Monahan specifically called Bonilla and ordered him to arrest Jovanovic, this does not rise to the level of “protecting one’s job,” as there is no evidence that Bonilla believed he could lose his job, if he did not arrest Jovanovic. As a result, the Court finds that Jovanovic fails to establish a genuine issue of material fact with respect to the “collateral objective” necessary to support a malicious abuse of process claim.
Moreover, because, as stated in Section II, supra, there was probable cause to believe that Jovanovic had committed the crime alleged, the abuse of process claim must fail. See Sforza, 2009 U.S. Dist LEXIS 27358, at *49-50.
Accordingly, Defendants’ summary judgment motion as to the abuse of process claim against Detective Bonilla is GRANTED.
IV. Deprivation of Plaintiff’s Right to a Fair Trial Claim Against Bonilla A plaintiff may bring a Section 1983 action for deprivation of his or her right to a fair
trial against “a police officer [who] creates false information likely to influence a jury’s decision and [who] forwards that information to prosecutors.” Ricciuti v. New York City Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997). The constitutional right in question is “the right not to be deprived of liberty as a result of the fabrication of evidence by a government officer acting in an investigating capacity . . . provided that the deprivation of liberty . . . can be shown to be the result of [the officer’s] fabrication of evidence.” Zahrey v. Coffey, 221 F.3d 342, 349 (2d Cir. 2000). As a result, as discussed with respect to the malicious prosecution claim in Section II,
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supra, the alleged fabrication must be “likely to influence a jury’s decision.” Ricciuti, 124 F.3d at 130.
Bonilla’s allegedly false testimony — that he found candles in Jovanovic’s apartment — could not, in and of itself, have resulted in a deprivation of Jovanovic’s liberty. Bonilla’s testimony regarding the candles related only to one of the Second Degree Assault claims leveled against him and was not material to any other charge. Jovanovic was convicted of the far more serious charges of Kidnapping in the First Degree and three counts of Sexual Abuse in the First Degree, as well as Assault in the Third Degree, and he would have likely received the same prison sentence — and the same pre-trial deprivations of liberty — regardless of whether the candle evidence was introduced at trial.5
Jovanovic does not contradict this argument, but instead counters that Defendants’ conception of “deprivation of liberty” is incorrect. According to Jovanovic, the relevant inquiry is not whether the alleged fabrication of evidence was material to plaintiff’s conviction and postconviction deprivation of liberty, but whether the fabrication caused any deprivation of liberty at all, including pre-trial detention. This distinction is, however, irrelevant. The allegedly fabricated evidence was not material to the decision to detain Jovanovic during the pre-trial time period and, therefore, there is no genuine issue of material fact regarding this matter.
Accordingly, Defendant’s summary judgment motion as to this claim is GRANTED.
5 As discussed in Section II, supra, Plaintiff also points to Bonilla’s testimony that he recovered “cloth like type materials” from Jovanovic’s apartment. Again, it is undisputed that Jovanovic’s apartment contained karate belts, a type of cloth strip. A quibble over terminology does not constitute fabricated evidence or false information, and a reasonable jury could not find it so. Jovanovic further argues that Bonilla “fabricated” a futon video that was shown at the criminal trial. Jovanovic, however, merely claims that Bonilla failed to capture his loosening of the futon’s wing nuts before shooting the video; he does not allege that Bonilla actually “fabricated” evidence. Further, this video issue was not pursued by defense counsel at trial or in Jovanovic’s appeal to the Appellate Division, First Department. As a result, neither of these items constitutes fabrications of evidence or false testimony that rise to the level of depriving Jovanovic of a fair trial.
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V. Deprivation of Plaintiff’s Right to a Fair Trial Claim Against Fairstein Jovanovic alleges that Fairstein made extrajudicial statements that violated her ethical
responsibilities and deprived him of a fair trial. To prevail upon a claim for denial of a fair trial due to extrajudicial statements, a plaintiff must establish three elements: (1) that there were “improper leaks” under the canons of ethics; (2) that the impermissible disclosures in fact denied plaintiff his due process rights; and (3) that other remedies (such as voir dire, use of challenges, both peremptory and for cause, and a motion for change of venue) were unavailable or ineffective, thereby demonstrating causation. See Powers v. Coe, 728 F.2d 97, 105-06 (2d Cir. 1984) (“Powers I”).
Defendants argue at length that the number of relevant statements made by Fairstein was extremely low, and that, in any event, the statements were not inappropriate. Jovanovic replies that the amount of relevant statements is extremely high and that each and every one of the statements was grossly improper. There is no need to discuss the propriety of Fairstein’s comments, however, because her extrajudicial statements — even if unwise and/or improper — did not in fact deprive Jovanovic of a fair trial.6 Jovanovic has demonstrated neither causation nor injury stemming from Fairstein’s statements; and cannot show that other remedies were unavailable or ineffective.
6 For this reason, a discussion of Fairstein’s claim of qualified immunity is unnecessary as well. Indeed, assuming Jovanovic’s accusations of prejudicial extrajudicial statements are true, Fairstein may have violated “clearly established statutory or constitutional rights of which a reasonable person would have known,” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1992), and thus she would not be entitled to qualified immunity for having made them. Since the Court need not determine whether each individual statement was, in fact, improper, the Court declines to address the qualified immunity issue.
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A. Plaintiff cannot show causation Plaintiff has the burden to “show that such deprivation was not too remote a consequence
of the improper leaks to the press.” Id. (quoting Martinez v. California, 444 U.S. 277, 279, 285 (1980)) (internal quotation omitted). Further, a denial of fair trial claim “requires more than mere speculation of damages.” Id. at 105.
The statements at issue were made more than one year before the trial began, and there is no competent evidence that the jury verdict was influenced by news reports containing the comments. While Jovanovic introduces evidence of news stories that jurors may — or may not — have read, he has not demonstrated a question of fact regarding whether any juror was actually prejudiced by such news coverage. Indeed, just as in Powers v. McGuigan, after consenting to the jury panel, “at no time prior to or during the trial did [plaintiff] suggest that any particular juror or alternate was biased.” 769 F.2d 72, 74 (2d Cir. 1985) (“Powers II”).
Jovanovic also claims that because Fairstein allegedly knew the statements would be prejudicial and would bias a potential jury, she cannot claim that there was a lack of causation. There is absolutely no authority for this proposition. The fact that Fairstein has acknowledged, in her deposition and in the media, that pretrial publicity can prejudice a juror is not relevant to the determination of whether particular pre-trial publicity in fact caused such a prejudicial effect.
Further, Jovanovic claims that Fairstein’s statements caused a biased Grand Jury to indict him. However, the judge presiding over the Grand Jury proceedings found that “the instructions provided by the prosecutor to the Grand Jury (including the prosecutor’s instructions to the Grand Jury to disregard media coverage concerning this case and to only consider the evidence presented) were sufficient.” (Pre-Trial Order of Hon. Budd Goodman 2). As Defendants argue,
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the chain of causation was “broken by the intervening exercise of independent judgment.” Townes v. City of New York, 176 F.3d 138, 147 (2d Cir. 1999).
Jovanovic’s claim that Fairstein’s comments caused the allegedly false testimony of Mary Jo Chambers, thereby depriving Jovanovic of a fair trial, also fails. First, there is no evidence that Chambers’ testimony was anything but truthful — indeed, she still maintains that her trial testimony was accurate. Second, credibility determinations are a part of every trial, and although there is no voir dire of witnesses, cross-examination is generally an effective tool for displaying the credibility — or lack thereof — of a particular witness for the jury. The fact that the jury believed Chambers’ testimony, whether truthful or not, is the criminal jury’s function. Assuming arguendo that Chambers’ testimony was manufactured from pre-trial publicity, Fairstein could not have possibly foreseen Chambers’ false testimony as a result of her pre-trial comments.
In sum, Jovanovic produced no concrete evidence suggesting that any juror or witness was influenced by Fairstein’s extrajudicial statements. As a result, no reasonable juror could find that Jovanovic was deprived of his right to a fair trial, and thus there is no genuine issue of material fact to this effect.
B. Other remedies were either available or used effectively At all times, Jovanovic had access to procedural remedies designed to cure potential harm
caused by Fairstein’s extrajudicial statements. Although Jovanovic failed to take advantage of some of these remedial mechanisms, he employed others effectively.
Jovanovic never moved for a change of venue. While Jovanovic claims that the widespread nature of news coverage made such a move futile, (Pl. Mem. at 26 n.21), he fails to
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demonstrate “concrete particulars to support his allegations of futility.” Powers II, 769 F.2d at 75 (quotation marks omitted).7
In addition, the trial judge took precautions to ensure the selection of a fair and impartial jury. These precautions included: distributing a juror questionnaire, which asked questions relating to media coverage of Jovanovic’s case; holding a three-day-long voir dire session; and providing repeated jury instructions as to media exposure. Further, the trial judge admonished the prospective jurors to provide truthful answers, explained that the extensive media attention necessitated detailed questioning, and discussed publicity with the prospective jurors during the voir dire process and highlighted the potential impact of publicity on the jurors’ ability to resolve the case in an impartial manner. Finally, the trial judge instructed all selected and alternate jurors to start with a clean slate and avoid media coverage of the case.8 After a lengthy voir dire, in which both sides used all available preemptory challenges, Jovanovic’s counsel consented to the ultimate panel, subject to objections unrelated to pretrial publicity.9 In addition, Jovanovic successfully challenged a juror for cause, relating to issues of pretrial publicity and no objection relating to the pretrial publicity exposure of the jury panel was made on appeal.
7 Jovanovic selectively cites to United States ex rel Rosenburg v. Mancusi, 445 F.2d 613 (2d Cir. 1971) as supporting his argument that nationwide news coverage precluded the prophylactic effect of a change of venue. However, Mancusi generally states that sufficient temporal separation of trial from news coverage negates prejudice to the defendant. The court, in a footnote, states that certain crimes, because of nationwide coverage, may not be “necessarily guarantee[d] isolation from prejudicial news coverage.” Id. at 618 n.4. The court, however, does not specify if such coverage actually affects the defendant’s right to fair trial. 8 While ideally all jurors would indeed have a clean slate, the Supreme Court has recognized in Irvin v. Dowd, 366 U.S. 717, 722 (1961), that jurors are not required to be totally ignorant of the facts and issues involved in the cases that they decide. 9 These objections pertained to Batson issues and bore no relation to media bias or exposure. This issue was also raised on appeal at the Appellate Division, First Department, which did not decide the issue.
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Jovanovic relies on several Supreme Court cases where prejudice was found by reason of prejudicial publicity. (Pl. Mem. at 24.) These cases are distinguished easily from the present case. For example, in Sheppard v. Maxwell, 384 U.S. 333, 343-45 (1966), Plaintiff’s principal example, a television broadcast center was set up next door to the courtroom and jurors were photographed in the jury box and individually. In addition, the trial judge refused to take the same type of precautions as the trial judge in the instant case did and, in fact, created a media environment that denied Mr. Sheppard his right to the “judicial serenity and calm to which [he] was entitled.” Id. at 354-55 (quoting Estes v. Texas, 381 U.S. 532, 536 (1965)). In other words, there was far greater publicity during the Sheppard trial that was far more detrimental than that involved here. Due to the large volume of publicity in Sheppard, defense counsel moved for a continuance, change of venue, and even mistrial, all of which were denied. Id. at 348.
Murphy v. Florida is, however, much more analogous to the instant case. 421 U.S. 794 (1975). In Murphy, jurors learned about defendant’s prior convictions and other details about defendant’s robbery charge through news accounts. In light of a comprehensive voir dire in which many jurors were excused for having prejudged the plaintiff, and given that the jury showed “no hostility to [the defendant] . . . as to suggest a partiality that could not be laid aside,” the Supreme Court held that the defendant was not deprived of a fair trial. Id. at 800. Specifically, the Court held that “. . . juror exposure to information about a . . . defendant's prior convictions or to news accounts of the crime with which he is charged alone [does not] presumptively deprive[] the defendant of due process.” Id. at 799.
Accordingly, because curative and prophylactic remedies were either available or effectively used, and because of a lack of causation, a reasonable juror could not find that Jovanovic was deprived of a fair trial due to Fairstein’s extrajudicial statements. Defendants’
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summary judgment motion as to the deprivation of fair trial claim arising from Fairstein’s extrajudicial statements is, therefore, GRANTED.
VI. Monell Claims Against the City of New York
In Monell, the Supreme Court expressly held that local governments and their agencies may be sued as “persons” under 42 U.S.C. § 1983. 436 U.S. at 701. Municipalities, however, are not liable on a theory of respondeat superior for the acts of their employees. See Walker v. City of New York, 974 F.2d 293, 296 (2d Cir. 1992).10 Municipalities are liable only for their own misdeeds, that is, only “when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury.” Monell, 436 U.S. at 694.
“[T]o hold a city liable under § 1983 for the unconstitutional actions of its employees, a plaintiff is required to plead and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.” The failure to train or supervise city employees may constitute an official policy or custom if the failure amounts to “deliberate indifference” to the rights of those with whom the city employees interact. To establish “deliberate indifference,” a plaintiff must show that: [i] a policymaker knows “to a moral certainty” that city employees will confront a particular situation; [ii] the situation either presents the employee with “a difficult choice of the sort that training or supervision will make less difficult” or “there is a history of employees mishandling the situation;” and [iii] “the wrong choice by the city employee will frequently cause the deprivation of a citizen’s constitutional rights.” Wray v. City of New York, 490 F.3d 189, 195-96 (2d Cir. 2007) (citations omitted)
10 Van de Kamp v. Goldstein provides that individual officials in the District Attorney’s office are absolutely immune from claims of failure to train and supervise regarding administrative obligations “directly connected with the conduct of a trial.” --- U.S. ---, 129 S.Ct. 855, 861-65 (2009).
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Jovanovic brings three Monell claims — two regarding the District Attorney’s Office,
and one regarding the New York Police Department.11 First, Jovanovic claims that the District
Attorney’s Office had an official policy or custom of making extrajudicial statements to the
press, “so as to inflame public opinion against such defendants and deprive them of their
constitutional right to a fair trial. (Amended Compl. ¶ 170). Second, Jovanovic claims that the
NYPD had an official policy or custom of allowing its personnel to “make ‘off-the-record’
statements to the press in high-profile criminal cases . . . so as to inflame public opinion against
defendants in such cases and deprive them of their constitutional right to a fair trial.” (Id. ¶ 179.)
Finally, Jovanovic claims that the District Attorney’s Office “exhibited a deliberate indifference
toward the training and supervision of assistant district attorneys” with regard to several items,
including the avoidance of giving improper summations. (Id. ¶ 188.)
Since, as stated in Sections IV and V, supra, Jovanovic was not deprived of a fair trial,
his Monell claims fail. See Wray, 490 F.3d at 195; City of Los Angeles v. Heller, 475 U.S. 796,
11 Jovanovic’s opposition memorandum discusses an additional claim based on the NYPD’s failure to train detectives regarding false rape claims. However, as defendant argues, Jovanovic did not sufficiently plead this claim. Although Jovanovic urges that this claim was sufficiently pleaded in ¶ 168-69 of the Amended Complaint, these paragraphs constitute nothing more than introductory paragraphs to an entire section devoted to Jovanovic’s Monell claims. In this section, there are three clearly delineated subsections, each discussing a separate claim under Monell. Most importantly, Section III of this Monell section specifically discusses a “failure to train” claim regarding the District Attorney’s Office. Surely, if Jovanovic intended to bring a Monell claim of this sort against the NYPD, he would have added a separate section to this effect or requested leave from the court to amend his complaint. Paragraphs 168-69 of the Amended Complaint only provide general information about the Monell claims that are to be expanded upon later in the section, and do not include allegations of the requisite elements of the claim — the allegations made in the paragraphs are barely even “naked assertion[s] devoid of further factual enhancement.” Ashcroft v. Iqbal, --- U.S. ---, 129 S. Ct. 1937, 1949 (2009) (quotation marks omitted) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007)). Further, although in Hogan v. Wal-Mart Stores, Inc., relied upon by Jovanovic, the court allowed a claim that was not originally discussed in the complaint, the court allowed the claim only after the complaint had been conformed to the proof introduced at trial. 167 F.3d 781, 784 (2d Cir. 1999). Accordingly, the Court does not recognize this claim. Even if the Court were to recognize this claim, however, Defendants’ motion for summary judgment would be granted. In finding in Section II, supra, that there was probable cause to believe that Jovanovic committed the crimes alleged, the Court found that there was no genuine issue of fact as to this matter, and therefore Jovanovic cannot establish a genuine issue of material fact as to the underlying constitutional violation necessary to survive a motion for summary judgment on this Monell claim.
26

Case 1:04-cv-08437-PAC Document 124 Filed 09/28/10 Page 27 of 30
799 (1986). However, even if Jovanovic had been denied a fair trial, this Court would still grant Defendants’ motion for summary judgment as to the Monell claims for the reasons that follow.
A. Monell Claims Regarding “Off-the-Record” and Extrajudicial Statements Jovanovic alleges that the New York Police Department “had an official policy or custom
of “mak[ing] ‘off-the-record’ statements to the press in high-profile criminal cases . . . so as to inflame public opinion against defendants in such cases and deprive them of their constitutional right to a fair trial.” (Amended Compl. ¶ 179.) In addition, Jovanovic alleges that the “District Attorney’s Office had an official policy or custom of making extrajudicial statements to the press” that would have a similar effect. (Amended Compl. ¶ 170.) Jovanovic does not, however, respond to Defendants’ arguments in support of summary judgment on these claims and they are, therefore, abandoned. Fed. R. Civ. P. 56(e)(2) (nonmovant’s response must “set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party”); see generally M.M. ex rel. J.M. v. New York City Dep’t of Educ., No. 09 Civ. 5236, 2010 WL 2985477 (S.D.N.Y. July 27, 2010) (holding that where plaintiff failed to respond to defendant’s arguments for dismissal, plaintiff’s claims were abandoned); Brandon v. City of New York, 705 F.Supp.2d 261 (S.D.N.Y. 2010) (collecting cases).
But, even if Jovanovic had not abandoned these claims, the Court would grant Defendant’s motion for summary judgment. As Defendants argue, “evidence of one instance” in which municipal employees violated a citizen’s rights is not enough to create a triable issue of fact as to whether an official policy or custom existed. See Green v. City of New York, 465 F.3d 65, 80-81 (2d Cir. 2006). Indeed, the policy or custom “must be so manifest as to imply the
27

Case 1:04-cv-08437-PAC Document 124 Filed 09/28/10 Page 28 of 30
constructive acquiescence of senior policy-making officials.” See id. at 80 (quoting Sorlucco v. N.Y. City Police Dep’t, 971 F.2d 864, 871 (2d Cir.1992)). Here, Jovanovic has made bald assertions regarding policies or customs, but has only provided Defendants and the Court with examples stemming from the instant case. As a result, Plaintiff has not adequately shown policies or customs necessary to defeat Defendants’ motion for summary judgment on these claims.
B. Monell Claim Regarding the District Attorney’s Office’s Alleged Failure to Train Jovanovic claims that the District Attorney’s Office “exhibited a deliberate indifference
toward the training and supervision of assistant district attorneys” with regard to several items, including: (1) the obligation to discontinue a criminal prosecution when evidence is discovered that negates probable cause, (2) the obligation to comply with obligations under Brady v. Maryland, 373 U.S. 83 (1963), and (3) the obligation to avoid giving improper summations. (Amended Compl. ¶ 188.) Jovanovic’s response to Defendants’ motion centers principally on Assistant District Attorney Gail Heatherly’s improper remarks during summation. These allegedly included: (1) attacking the integrity of defense counsel; (2) vouching for witnesses; (3) attacking Jovanovic’s expert witnesses; (4) appealing to class prejudice; (5) emphasizing Jovanovic’s failure to testify; and (6) misleading the jury into believing that Jovanovic had attended medical school.
Jovanovic has failed to submit sufficient evidence for a rational trier of fact to conclude that the District Attorney’s Office had an improper policy or custom that deprived him of a fair trial. The New York County District Attorney’s office obtained myriad convictions during the 1990’s. Yet, Jovanovic lists only seven Appellate Division decisions involving improper comments in summation. Moreover, Jovanovic points to only a handful of examples of improper
28

Case 1:04-cv-08437-PAC Document 124 Filed 09/28/10 Page 29 of 30
training. This small number of cases and instances of improper training is insufficient to establish that the DA’s office was on notice of its allegedly deficient training or that these deficiencies are the result of deliberate indifference. See Wray, 490 F.3d at 196 (“Wray submitted a list of New York cases in which suggestive show-up identification evidence was impermissibly admitted by courts; but only one post-dates 1992 — a telling datum when one considers the thousands of identifications conducted by each New York City Police Department precinct each year. The police training thus appears to be largely successful.”).
Furthermore, during the criminal trial, the trial judge made decisions to overrule Jovanovic’s objections to alleged prosecutorial misconduct. These decisions constitute a superseding cause of any alleged harm to Jovanovic. Decisions of a trial judge who was not misled or coerced constitutes a superseding cause of harm, breaking the chain of causation for Section 1983 liability purposes. Id. at 193-94 (police officer who conducted unduly suggestive show-up identification not liable in Section 1983 action for deprivation of fair trial because trial judge, by admitting testimony of stationhouse show-up identification, was intervening cause of harm); see Townes, 176 F.3d at 147 (police officer who illegally seized inculpatory evidence not liable in Section 1983 action for deprivation of fair trial because, by denying plaintiff’s motion to suppress, the trial judge was intervening cause of harm). As a result, the trial judge’s decisions overruling Jovanovic’s objections to prosecutorial misconduct constituted a superseding cause of Jovanovic’s alleged harm.12
12 Defendants make two additional arguments for summary judgment as to the Monell claims. Both of these arguments are unpersuasive. First, Defendants argue that Jovanovic cannot show any violation of his due process rights arising from prosecutorial misconduct because, in reviewing the trial court’s decision, the Appellate Division did not make a finding of misconduct, focusing on the trial court’s misapplication of the Rape Shield Law in excluding certain evidence. The Appellate Division, however, did not address prosecutorial misconduct, so its decision is not probative on that issue. Defendants further argue that the Supreme Court decision Van de Kamp v. Goldstein, --- U.S. ---, 129 S.Ct. at 863, bars Jovanovic’s Monell claim. Van de Kamp holds that, with respect to
29

Case 1:04-cv-08437-PAC Document 124 Filed 09/28/10 Page 30 of 30

Accordingly, Defendants' summary judgment motion as to Jovanovic's Monell claims is GRANTED.

CONCLUSION For the foregoing reasons, Defendants motion for summary judgment is GRANTED in its entirety. The Clerk of Court is directed to terminate the pending motion and enter judgment accordingly.

Dated: New York, New York September 28,2010

SO ORDERED
1Li/I?rL
PAUL A. CROTTY United States District Judge

supervision and training as to trial-related functions of prosecutors, members of a district attorney's office enjoy absolute immunity from failure to train suits under Section 1983. However, Van de Kamp did not address Monell liability; it addressed only failure to supervise liability of individual district attorneys. See Norton v. Town oflslip. No. 04-cv-3079, 2009 WL 804702, at °18-19, °25-27 (E.D.N.Y. Mar. 27, 2009) (finding prosecutor immune under Goldstein, but holding that Suffolk County could be liable under Monell for failure to supervise prosecutors); but see Thompson v. Connick, 578 F.3d 293, 293-95 (5th Crr. 2009) (Jones, C.J., concurring) (opining that Goldstein's rationale applies equally to Monell claims and should thus apply with equal force).
30

 
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10-4398-cv
MANDATE Jovanovic v. City of New York UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

N.Y.S.D. Case # 04-cv-8437(PAC)

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 ORDERMUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1

At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

4 New York, on the 20th day of June, two thousand twelve.

5

6 PRESENT: DENNIS JACOBS,

7

Chief Judge,

USDC SDNY DOCUMENT

8

JOHN M. WALKER, JR.,

ELECTRONICALLY FILED

9

RICHARD C. WESLEY,

DOC #: _________________

10

Circuit Judges. DATE FILED: A_u_g_u_s_t_2_8_,_2_0_1_2__

11

12 - - - - - - - - - - - - - - - - - - - -X

13 DR. OLIVER JOVANOVIC,

14

Plaintiff-Appellant,

15

16

-v.-

10-4398-cv

17

18 CITY OF NEW YORK, MILTON BONILLA,

19 SHIELD NO. 61, individually and in his

20 official capacity, LINDA FAIRSTEIN,

21 NEW YORK COUNTY ASSISTANT DISTRICT

22 ATTORNEY, individually and in her

23 official capacity,

24

25

Defendants-Appellees,

26

27 GAIL HEATHERLY, NEW YORK COUNTY

28 ASSISTANT DISTRICT ATTORNEY,

1

MANDATE ISSUED ON 08/28/2012

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1 individually and in her official

2 capacity,

3

4

Defendant.

5 - - - - - - - - - - - - - - - - - - - -X

6

7 FOR APPELLANT:

Diarmuid White (Brendan White,

8

on the brief), White & White,

9

New York, NY.

10

11 FOR APPELLEES:

Karen M. Griffin (Francis F.

12

Caputo, Arthur G. Larkin, on the

13

brief), for Michael A. Cardozo,

14

Corporation Counsel of the City

15

of New York, New York, NY.

16

17

Appeal from a judgment of the United States District

18 Court for the Southern District of New York (Crotty, J.).

19

20

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

21 AND DECREED that the judgment of the district court be

22 AFFIRMED.

23

24

Plaintiff Oliver Jovanovic appeals from a judgment

25 entered by the United States District Court for the Southern

26 District of New York (Crotty, J.), dismissing on summary

27 judgment his civil rights claims against a police officer, a

28 prosecutor, and the City of New York. We assume the

29 parties’ familiarity with the facts, procedural history, and

30 issues presented on appeal.

31

32

In the fall of 1996, Jovanovic, a PhD candidate at

33 Columbia University, spent the night with a 20-year-old

34 Barnard College student, Jamie Rzucek, who later accused him

35 of tying her up, pouring hot candle wax on parts of her

36 body, and sodomizing her with a baton-like object.

37 Defendant Milton Bonilla, a New York City police detective

38 assigned to the Manhattan Special Victims Unit, led the

39 police investigation; defendant Linda Fairstein was the

40 assistant district attorney in charge of prosecuting the

41 case.

42

43

A grand jury indicted Jovanovic on December 13, 1996

44 and added charges on December 19, 1996. Only Rzucek and

45 Bonilla testified before the grand jury. Subsequently

2

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1 Jovanovic was convicted of kidnapping, sexual abuse, and

2 assault, and sentenced to fifteen years to life in prison.

3

4

On December 21, 1999--after Jovanovic had spent nearly

5 twenty months in prison--the Appellate Division, First

6 Department, of the New York Supreme Court vacated the

7 conviction because the trial court had excluded evidence

8 that disabled Jovanovic from proving that he “had reason to

9 believe, prior to their meeting, that they both had intended

10 to participate in consensual, non-violent sadomasochism that

11 night.” People v. Jovanovic, 700 N.Y.S.2d 156, 164 (1st

12 Dep’t 1999). The excluded evidence included emails and

13 chats suggesting that Ruczek was seeking such an encounter.

14 Id.

15

16

After the state declined to retry Jovanovic, he filed

17 this civil rights action pursuant to 42 U.S.C. § 1983,

18 alleging that his prosecution violated his civil rights. He

19 appeals the district court’s grant of summary judgment in

20 favor of defendants on claims that: (1) Bonilla maliciously

21 prosecuted him; (2) Bonilla deprived him of his right to a

22 fair trial through the use of fabricated evidence and a

23 deeply flawed investigation; (3) Fairstein deprived him of a

24 fair trial by making inflammatory public statements that

25 both prejudiced the grand jury and caused witnesses to come

26 forward and give false testimony; and (4) the City failed to

27 properly train police regarding false rape claims.

28

29

Malicious Prosecution (Bonilla). An element of any

30 malicious prosecution claim is the absence of probable

31 cause. See Savino v. City of New York, 331 F.3d 63, 72 (2d

32 Cir. 2003). The detailed account given by Rzucek--without

33 any obvious reason for skepticism--provided sufficient

34 probable cause. See Curley v. Vill. of Suffern, 268 F.3d

35 65, 70 (2d Cir. 2001) (“When information is received from a

36 putative victim or an eyewitness, probable cause exists

37 unless the circumstances raise doubt as to the person’s

38 veracity.” (citation omitted)). The circumstances of this

39 case did not require further investigation to support

40 probable cause. See Panetta v. Crowley, 460 F.3d 388,396

41 (2d Cir. 2006); Ricciuti v. N.Y.C. Transit Auth., 124 F.3d

42 123, 128 (2d Cir. 1997).

43

44

Fair Trial (Bonilla). Jovanovic claims that he was

45 deprived of a fair trial by Bonilla’s alleged lie that

46 corroborative evidence had been removed from Jovanovic’s

47 apartment between the time of his arrest and the time

3

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1 Bonilla executed a search warrant.1 He raises the issue in

2 only a perfunctory manner on appeal; but even if it were

3 properly raised it would be unavailing. A person suffers a

4 constitutional violation if an (1) investigating official

5 (2) fabricates evidence (3) that is likely to influence a

6 jury’s decision, (4) forwards that information to

7 prosecutors, and (5) the plaintiff suffers a deprivation of

8 liberty as a result. See Jocks v. Tavernier, 316 F.3d 128,

9 138 (2d Cir. 2003); Ricciuti, 124 F.3d at 130. Probable

10 cause is not a defense. See Ricciuti, 124 F.3d at 129-130.

11 Jovanovic cannot show causation--i.e., that the alleged

12 fabrication of evidence led to a deprivation of his liberty.

13 That is because the only avenue by which the testimony could

14 reach the jury was through Bonilla’s testimony, for which he

15 enjoys absolute immunity under Briscoe v. LaHue, 460 U.S.

16 325, 335-336 (1983); see also Rehberg v. Paulk, 132 S. Ct.

17 1497, 1505 (2012) (extending Briscoe to grand jury

18 proceedings). The cases relied upon by Jovanovic are not to

19 the contrary. Ricciuti addressed only whether qualified

20 immunity was available to police offers who willfully

21 fabricated evidence. Ricciuti, 124 F.3d at 130.

22 Furthermore, the allegedly fabricated admissions in Ricciuti

23 caused the plaintiffs to be charged with a more serious

24 crime and delayed their opportunity to be freed on bail.

25 See id. at 126. In Jocks, the statement at issue was a

26 written admission that was forwarded to prosecutors. Jocks,

27 316 F.3d at 138.

28

29

Fair Trial (Fairstein). Jovanovic contends that

30 Fairstein deprived him of his right to a fair trial by

31 making inflammatory public statements. In order to succeed

32 on such a claim, a plaintiff must prove (1) the prosecutor

33 made improper public statements or leaks (i.e., those that

34 contravene the canons of ethics or other standards for

35 prosecutorial conduct); (2) the improper disclosure in fact

36 deprived the defendant of a fair trial; and (3) other

1 In a pair of footnotes, Jovanovic also argues that Bonilla deprived him of a fair trial by creating a misleading video tape in which he opened up Jovanovic’s futon with a “flick of the wrist.” Assuming that Jovanovic properly raised the argument, and assuming that Bonilla’s production of the video could be considered misleading, it was not material to the jury’s decision and therefore could not have caused a deprivation of liberty.
4

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1 remedies like the use of voir dire and peremptory challenges

2 were either unavailable or ineffective to remedy the leaked

3 information. See Powers v. Coe, 728 F.2d 97, 105-06 (2d

4 Cir. 1984).

5

6

As to the impact on the grand jury, summary judgment

7 was appropriate. A less searching scrutiny of procedural

8 protections is warranted for grand jury proceedings than for

9 a criminal trial. See United States v. York, 428 F.3d 1325,

10 1331 (11th Cir. 2005); cf. United States v. Calandra, 414

11 U.S. 338, 349 (1974) (rejecting use of exclusionary rule in

12 grand jury proceedings and noting that “the grand jury does

13 not finally adjudicate guilt or innocence, it has

14 traditionally been allowed to pursue its investigative and

15 accusatorial functions unimpeded by the evidentiary and

16 procedural restrictions applicable to a criminal trial”).

17 Jovanovic has not sustained his burden of addressing

18 evidence of prejudice. And it matters that the prosecutor

19 instructed the grand jury to disregard all media coverage

20 and that the law required it to base its conclusion solely

21 on the evidence presented.

22

23

Summary judgment was also appropriate on Jovanovic’s

24 claim that the pretrial publicity caused a witness to come

25 forward and perjure herself at trial. Jovonavic must be

26 able to prove that the injury complained of “was not too

27 remote a consequence of the improper leaks to the press.”

28 Powers, 728 F.2d at 105 (internal quotation marks omitted).

29 The witness’s perjury--accepting Jovanovic’s allegations--

30 was too remote of a consequence of Fairstein’s statements.

31

32

Finally, because we found that Bonilla’s investigation

33 was not so deficient as to render him potentially liable for

34 malicious prosecution, Jovanovic’s municipal liability claim

35 necessarily fails. See Wray v. City of New York, 490 F.3d

36 189, 196 (2d Cir. 2007); see also City of Los Angeles v.

37 Heller, 475 U.S. 796, 799 (1986).

38

39

Finding no merit in Jovanovic’s remaining arguments, we

40 hereby AFFIRM the judgment of the district court.

41

42

FOR THE COURT:

43

CATHERINE O’HAGAN WOLFE, CLERK

44

5

 
 Case: 1:04-cv-08437-PAC As of: 02/03/2014 07:49 PM EST 1 of 19

U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:04−cv−08437−PAC

CLOSED, ECF

Jovanovic v. City of New York et al Assigned to: Judge Paul A. Crotty Cause: 42:1983 Civil Rights Act
Plaintiff Dr. Oliver Jovanovic

Date Filed: 10/28/2004 Date Terminated: 09/29/2010 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Jon Louis Norinsberg Law Offices of Jon L. Norinsberg 225 Broadway , Suite 2700 New York, NY 10007 212−791−5396 Fax: 212−406−6890 Email: norinsberg@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan S. Abady Emery Celli Brinckerhoff &Abady, LLP 75 Rockefeller Plaza 20th Flr. New York, NY 10019 212−763−5000 Fax: 212−763−5001 Email: jabady@ecbalaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Debra Lea Greenberger Emery Celli Brinckerhoff &Abady, LLP 75 Rockefeller Plaza 20th Flr. New York, NY 10019 (212)−763−5000 Fax: (212)−763−5001 Email: dgreenberger@ecbalaw.com ATTORNEY TO BE NOTICED

V. Defendant City of New York

represented by Alan Howard Scheiner NYC Law Department, Office of the Corporation Counsel (NYC) 100 Church Street New York, NY 10007 (212) 788−0600 Fax: (212) 788−0367 Email: ascheine@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Arthur Gabriel Larkin , III The New York City Law Department 100 Church Street New York, NY 10007 (212)−788−1599

Case: 1:04-cv-08437-PAC As of: 02/03/2014 07:49 PM EST 2 of 19

Fax: (212)−788−9776 Email: alarkin@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brian Guenther Maxey NYC Law Department, Office of the Corporation Counsel Special Federal Litigation Div. 100 Church Street Nw York, NY 10007 (212)788−0987 Fax: (212)788−9776 Email: brian.maxey@seattle.gov ATTORNEY TO BE NOTICED

Defendant
Milton Bonilla Shield No. 61, Individually and in his official capacity

represented by Alan Howard Scheiner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Arthur Gabriel Larkin , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brian Guenther Maxey (See above for address) ATTORNEY TO BE NOTICED

Defendant
Linda Fairstein New York County Assistant District Attorney, Individually and in her official capacity

represented by Alan Howard Scheiner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Arthur Gabriel Larkin , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brian Guenther Maxey (See above for address) ATTORNEY TO BE NOTICED

Defendant
Gail Heatherly New York County Assistant District Attorney, Individually and in her official capacity TERMINATED: 01/18/2005

Date Filed 10/28/2004
10/28/2004

# Docket Text
1 COMPLAINT against Milton Bonilla, City of New York, Linda Fairstein, Gail Heatherly. (Filing Fee $ 150.00, Receipt Number 524659)Document filed by Oliver Jovanovic.(gf, ) (Entered: 10/28/2004)
SUMMONS ISSUED as to Milton Bonilla, City of New York, Linda Fairstein, Gail Heatherly. (gf, ) (Entered: 10/28/2004)

Case: 1:04-cv-08437-PAC As of: 02/03/2014 07:49 PM EST 3 of 19

10/28/2004 10/28/2004 11/02/2004
11/02/2004 11/02/2004
11/02/2004 11/02/2004
11/02/2004 11/19/2004
11/19/2004
11/30/2004
11/30/2004 11/30/2004
11/30/2004 01/18/2005 01/18/2005

Magistrate Judge Douglas F. Eaton is so designated. (gf, ) (Entered: 10/28/2004)
Case Designated ECF. (gf, ) (Entered: 10/28/2004)
2 AFFIDAVIT OF SERVICE. City of New York served on 10/28/2004, answer due 11/17/2004. Service was accepted by Madelyn Santana, Clerk authorized to accept service. Document filed by Oliver Jovanovic. (Norinsberg, Jon) (Entered: 11/02/2004)
3 AFFIDAVIT OF SERVICE. Milton Bonilla served on 10/29/2004, answer due 11/18/2004. Service was accepted by Det. Lane. Document filed by Oliver Jovanovic. (Norinsberg, Jon) (Entered: 11/02/2004)
4 AFFIDAVIT OF SERVICE. Linda Fairstein served on 10/28/2004, answer due 11/17/2004. Service was accepted by Sara NIcole Doris, co−worker authorized to accept service. Document filed by Oliver Jovanovic. (Norinsberg, Jon) (Entered: 11/02/2004)
5 AFFIDAVIT OF SERVICE. Service was made by Mail. Document filed by Oliver Jovanovic. (Norinsberg, Jon) (Entered: 11/02/2004)
6 AFFIDAVIT OF SERVICE. Gail Heatherly served on 10/28/2004, answer due 11/17/2004. Service was accepted by Sara Nicole Doris, co−worker authorized to accept service. Document filed by Oliver Jovanovic. (Norinsberg, Jon) (Entered: 11/02/2004)
7 AFFIDAVIT OF SERVICE. Service was made by Mail. Document filed by Oliver Jovanovic. (Norinsberg, Jon) (Entered: 11/02/2004)
10 ENDORSED LETTER addressed to Judge Richard C. Casey from Leah Bynon dated 11/17/04 re: counsel for dft City of New York requests a 60 day extension of time to answer or therwise respond to the complaint until 1/18/05. Application granted. Dft's time to answer or otherwise respond to the complaint is extended to 1/18/05. So Ordered. (Signed by Judge Richard C. Casey on 11/18/04) (dle, ) (Entered: 12/20/2004)
Set Answer Due Date purs. to 10 Endorsed Letter, as to Milton Bonilla answer due on 1/18/2005; City of New York answer due on 1/18/2005; Linda Fairstein answer due on 1/18/2005; Gail Heatherly answer due on 1/18/2005. (dle, ) (Entered: 12/20/2004)
8 ENDORSED LETTER addressed to Judge Richard C. Casey from Michael Morgan dated 11/22/04 re: counsel for dfts requests a sixty day extension of the original deadline to answer o otherwise respond to the complaint until 1/17/05. Application granted. Time to respond extended to 1/17/05. (Signed by Judge Richard C. Casey on 11/29/04) (dle, ) (Entered: 11/30/2004)
Set Answer Due Date purs. to 8 Endorsed Letter, as to Gail Heatherly answer due on 1/17/2005. (dle, ) (Entered: 11/30/2004)
9 ENDORSED LETTER addressed to Judge Richard C. Casey from Michael Morgan dated 11/22/04 re: counsel for dfts requests an extension of time to answer or otherwise respond to the complaint on behalf of ADA Heatherly. Application granted. Time to respond extended to 1/17/05. (Signed by Judge Richard C. Casey on 11/29/04) (dle, ) (Entered: 12/03/2004)
Set Answer Due Date purs. to 9 Endorsed Letter, (dle, ) (Entered: 12/03/2004)
11 WITHDRAWAL OF CLAIM. Document filed by Gail Heatherly. (Morgan, Michael) (Entered: 01/18/2005)
12 ENDORSED LETTER addressed to Judge Richard C. Casey from Leah Bynon dated 1/13/05 re: counsel for dfts requests an extension of time until 3/18/05 to submit their response to plaintiff's complaint. The court will resolve this issue at a conference scheduled for 1/21/05 in courtroom 14C at 9:30 a.m. (The date the answer will be due will be determined at the conference) So Ordered. (Signed by Judge Richard C. Casey on 1/18/05) (dle, ) (Entered: 01/20/2005)

Case: 1:04-cv-08437-PAC As of: 02/03/2014 07:49 PM EST 4 of 19

01/18/2005
01/20/2005 01/21/2005 01/21/2005 01/24/2005
03/04/2005
03/04/2005 03/24/2005 03/24/2005 03/30/2005 04/05/2005 05/31/2005 06/24/2005

13 ENDORSED LETTER addressed to Hon. Richard C. Casey from Leah A. Bynon dated 1/13/05 re: request for an extension of time to submit their response to plaintiff's complaint. The Court will resolve this issue at a conference scheduled for Friday, 1/21/05, in Courtroom 14C at 9:30 a.m. (the date the answer will be due will be determined at the conference) (Signed by Judge Richard C. Casey on 1/18/05) (yv, ) (Entered: 01/20/2005)
14 AFFIDAVIT OF SERVICE. Milton Bonilla served on 1/20/2005, answer due 2/9/2005. Service was accepted by LT. Daniel Albano, Civil Attorney Authorized to Accept Service. Document filed by Oliver Jovanovic. (Norinsberg, Jon) (Entered: 01/20/2005)
Minute Entry for proceedings held before Judge Richard C. Casey : Initial Pretrial Conference held on 1/21/2005. Discovery cut−off 7/21/05. Conference adjourned until 3/4/05 for parties to file motions. Compliance conference set for 7/22/05 @ 9:30 a.m. (jco, ) (Entered: 03/16/2005)
Minute Entry for proceedings held before Judge Richard C. Casey : Initial Pretrial Conference held on 1/21/2005. Discovery cut−off is 7/21/05. Conference adjourned until 3/4/05 for parties to file motions. Compliance conference set for 7/22/05 @ 9:30 a.m. (jco, ) (Entered: 03/16/2005)
15 CASE MANAGEMENT PLAN: Amended Pleadings due by 3/4/2005. Discovery due by 7/21/2005. Case Management Conference set for 7/22/2005 09:30 AM before Judge Richard C. Casey; first request for production of documents to be served by 4/4/05; interrogatories to be served by 4/4/05; depositions to be completed by 7/21/05; experts are to be designated by 5/30/05; experts' reports exchanged no later than 5/30/05; requests to admit are to be served no later than 6/30/05. (Signed by Judge Richard C. Casey on 1/21/05) (dle, ) (Entered: 01/24/2005)
16 ENDORSED LETTER addressed to Judge Richard C. Casey from Leah A. Bynon dated 3/3/05 re: Counsel for City of New York write jointly to request an adjournment of the 3/4/05 conference. Application granted in part. The 3/4/05 conference is canceled. A pre−motion conference (to set a briefing schedule) will be required before defendants may file a 12(c) motion. Defendant's time to answer is extended to 3/23/05. So Ordered. (Signed by Judge Richard C. Casey on 3/4/05) (jco, ) (Entered: 03/11/2005)
Set Answer Due Date purs. to 16 Endorsed Letter, as to City of New York answer due on 3/23/2005. (jco, ) (Entered: 03/11/2005)
17 ENDORSED LETTER addressed to Judge Casey from Leah A. Bynon dated 03/23/05 re: granting counsel's application for an extension of time to file that answer to complaint until Monday, March 28, 2005. (Signed by Judge Richard C. Casey on 3/23/05) (djc, ) (Entered: 03/25/2005)
Set Answer Due Date purs. to 17 Endorsed Letter, as to City of New York answer due on 3/28/2005; Milton Bonilla answer due on 3/28/2005; Linda Fairstein answer due on 3/28/2005. (djc, ) (Entered: 03/25/2005)
18 ENDORSED LETTER addressed to Judge Richard C. Casey from Leah A. Bynon dated 3/28/05, City of New York answer due 4/1/2005; Milton Bonilla answer due 4/1/2005; Linda Fairstein answer due 4/1/2005; Gail Heatherly answer due 4/1/2005. (Signed by Judge Richard C. Casey on 3/28/05) (sac, ) (Entered: 03/31/2005)
19 ANSWER to Complaint with JURY DEMAND. Document filed by City of New York, Milton Bonilla, Linda Fairstein.(Bynon, Leah) (Entered: 04/05/2005)
20 ENDORSED LETTER addressed to Judge Richard C. Casey from Leah A. Bynon dated 5/27/05 re: a premotion conference is hereby scheduled for 6/24/05 at 9:30 a.m. in Courtroom 14C. (Signed by Judge Richard C. Casey on 5/31/05) (db, ) (Entered: 06/01/2005)
Minute Entry for proceedings held before Judge Richard C. Casey : Initial Pretrial Conference held on 6/24/2005. The court stays all discovery. Dfts. makes an application to file a motin to dismiss. Court grants application and sets motion

Case: 1:04-cv-08437-PAC As of: 02/03/2014 07:49 PM EST 5 of 19

07/07/2005 07/25/2005 07/25/2005 08/16/2005
08/30/2005 09/08/2005 09/14/2005 10/13/2005
10/21/2005 11/01/2005
11/10/2005
11/23/2005
11/23/2005

deadlines: motion due by 7/8/05; response by 8/13/05; reply by 8/15/05. (dle, ) (Entered: 07/05/2005)
21 ENDORSED LETTER addressed to Judge Casey from Leah A. Bynon dated 7/3/05 re: Application granted. Motion to be served July 28, 2005; Opposition to be served August 28, 2005; Reply due September 6, 2005. (Signed by Judge Richard C. Casey on 7/6/05) (djc, ) (Entered: 07/08/2005)
22 ENDORSED LETTER addressed to Judge Richard C. Casey from Leah A. Bynon dated 7/22/05 re: Application GRANTED. Defendants motion due 8/18/05; Plaintiffs opposition dus 9/28/05; Defendants reply due 10/5/05. (Signed by Judge Richard C. Casey on 7/25/05) (db, ) (Entered: 07/26/2005)
Set/Reset Deadlines: Motions due by 8/18/2005. Replies due by 10/5/2005. Responses due by 9/28/2005 (db, ) (Entered: 07/26/2005)
23 ENDORSED LETTER addressed to Judge Richard C. Casey from Leah A. Bynon dated 8/16/05 re: Application granted; dfts motion due 9/1/05; plaintiff's reply due 10/14/05; dfts reply due 10/21/05; conference scheduled for Thrusday, 9/8/05 @1:00 a.m.. (Signed by Judge Richard C. Casey on 8/16/05) (pl, ) Modified on 8/17/2005 (pl, ). (Entered: 08/17/2005)
24 ENDORSED LETTER addressed to Judge Casey from Leah A. Bynon dated 8/30/05 re: defendant requests an additional 10 pages for defendants' memorandum of law in support of their motion to dismiss. Application denied.. (Signed by Judge Richard C. Casey on 8/30/05) (djc, ) (Entered: 08/31/2005)
25 NOTICE OF CASE REASSIGNMENT to Judge Paul A. Crotty. Judge Richard C. Casey no longer assigned to the case. (laq, ) (Entered: 09/14/2005)
Mailed notice to the attorney(s) of record. (laq, ) (Entered: 09/14/2005)
Minute Entry for proceedings held before Judge Paul A. Crotty : Status Conference held on 10/13/2005. Mr Norinsberg, Plaintiffs counsel, was directed to look into the Second Circuit case :Sarit Shmueli −v− City of New York 03−0287; West Law: 2005 WL 2224979. If plaintiff needs more time to file its motion due to the aforementioned court of appeals case, please contact Mr. Marlon Ovalles, Courtroom Deputy at (212) 805−6312 to amend the current briefing schedule. (mov, ) (Entered: 10/13/2005)
26 ENDORSED LETTER: Defendants request a 2 week extension until 11/04/05 to submit their reply papers. ENDORSEMENT: Defendants' time to respond is extended to 11/04/05. So Ordered. (Signed by Judge Paul A. Crotty on 10/21/2005) (mov, ) (Entered: 10/21/2005)
27 ENDORSED LETTER addressed to Judge Crotty from Leah A. Bynon dated 10/31/2005 re: Defendants respectfully request an additional one week extention of time to reply until November 11, 2005.ENDORSEMENT: The City defendants' time to file reply papers is extended to November 11, 2005. (Signed by Judge Paul A. Crotty on 11/01/2005) (mov, ) (Entered: 11/01/2005)
28 ENDORSED LETTER addressed to Judge Crotty from Leah A. Bynon dated 11/09/2005 re: Defendants request an additional one week extension of time to reply until November 18, 2005.ENDORSEMENT: Defendants time to respond is extended to November 23, 2005. So Ordered (Signed by Judge Paul A. Crotty on 11/10/2005) (mov, ) (Entered: 11/10/2005)
29 FILING ERROR − DEFICIENT DOCKET ENTRY − FIRST MOTION to Dismiss Pursuant to Rule 12(c). Document filed by City of New York, Milton Bonilla, Linda Fairstein. (Attachments: # 1 Affidavit Notice of Motion, Declaration and Exhibits (Part I)# 2 Exhibit Exhibits to Declaration (Part II))(Scheiner, Alan) Modified on 12/1/2005 (kg, ). (Entered: 11/23/2005)
30 FIRST REPLY MEMORANDUM OF LAW in Support re: 29 FIRST MOTION to Dismiss Pursuant to Rule 12(c).. Document filed by City of New York, Milton Bonilla, Linda Fairstein. (Scheiner, Alan) (Entered: 11/23/2005)

Case: 1:04-cv-08437-PAC As of: 02/03/2014 07:49 PM EST 6 of 19

11/28/2005 12/01/2005 12/02/2005 12/02/2005 12/08/2005 12/08/2005 12/13/2005 12/13/2005 12/13/2005 12/29/2005
01/10/2006
01/20/2006

31 FIRST MEMORANDUM OF LAW in Opposition re: 29 FIRST MOTION to Dismiss Pursuant to Rule 12(c).. Document filed by Oliver Jovanovic. (Norinsberg, Jon) (Entered: 11/28/2005)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Alan Scheiner to RE−FILE Document 29 FIRST MOTION to Dismiss Pursuant to Rule 12(c). ERROR(S): Filing Error of Attachments. Memorandum of Law in support of Motion and Declarations must be filed separately. (kg) (Entered: 12/01/2005)
32 FILING ERROR − DEFICIENT DOCKET ENTRY − FIRST MOTION to Dismiss the Complaint Pursuant to Rule 12(c) Document filed by City of New York, Milton Bonilla, Linda Fairstein. (Attachments: # 1 Exhibit Part 2 of Supporting Declaration and Exhibits of Leah Bynon Attached to Notice of Motion)(Scheiner, Alan) Modified on 12/8/2005 (kg). (Entered: 12/02/2005)
33 FILING ERROR − WRONG DOCUMENT TYPE SELECTED FROM MENU − FIRST MOTION to Dismiss (Memorandum of Law in Support of Motion Pursuant to Rule 12(c). Document filed by City of New York, Milton Bonilla, Linda Fairstein. (Scheiner, Alan) Modified on 12/8/2005 (kg). (Entered: 12/02/2005)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Alan Scheiner to RE−FILE Document 32 FIRST MOTION to Dismiss the Complaint Pursuant to Rule 12(c). ERROR(S): Filing Error of Attachment. Declaration in support of motion must be filed separately. (kg) (Entered: 12/08/2005)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DOCUMENT TYPE ERROR. Note to Attorney Alan Scheiner to RE−FILE Document 33 FIRST MOTION to Dismiss (Memorandum of Law in Support of Motion Pursuant to Rule 12(c). Use the document type Memorandum of Law in Support of motion found under the document list Responses and Replies. (kg) (Entered: 12/08/2005)
34 FIRST MOTION to Dismiss the Complaint Pursuant to Rule 12(c). Document filed by City of New York, Milton Bonilla, Linda Fairstein. (Scheiner, Alan) (Entered: 12/13/2005)
35 FILING ERROR − WRONG DOCUMENT TYPE SELECTED FROM MENU − FIRST MOTION to Dismiss (Memorandum in Support). Document filed by City of New York, Milton Bonilla, Linda Fairstein. (Scheiner, Alan) Modified on 12/29/2005 (kw, ). (Entered: 12/13/2005)
36 AFFIDAVIT of Leah Bynon in Support re: 34 FIRST MOTION to Dismiss the Complaint Pursuant to Rule 12(c)., 35 FIRST MOTION to Dismiss Memorandum in Support.. Document filed by City of New York, Milton Bonilla, Linda Fairstein. (Attachments: # 1 Exhibit Part 2 of Exhibits to Declaration of Leah Bynon)(Scheiner, Alan) (Entered: 12/13/2005)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DOCUMENT TYPE ERROR. Note to Attorney Kenneth Labbate to RE−FILE Document 35 FIRST MOTION to Dismiss Memorandum in Support. Use the document type Memorandum of Law in Support of Motion found under the document list Responses and Replies. (kw, ) Modified on 12/29/2005 (kw, ). (Entered: 12/29/2005)
37 FIRST MEMORANDUM OF LAW in Support re: 33 FIRST MOTION to Dismiss −−Memorandum of Law in Support of Motion Pursuant to Rule 12(c)., 29 FIRST MOTION to Dismiss Pursuant to Rule 12(c)., 34 FIRST MOTION to Dismiss the Complaint Pursuant to Rule 12(c)., 32 FIRST MOTION to Dismiss the Complaint Pursuant to Rule 12(c)., 35 FIRST MOTION to Dismiss Memorandum in Support.. Document filed by City of New York, Milton Bonilla, Linda Fairstein. (Scheiner, Alan) (Entered: 01/10/2006)
Minute Entry for proceedings held before Judge Paul A. Crotty : Remark: Oral argument heard on defendant's motion to dismiss. Judge's decision is reserved.Oral Argument held on 1/20/2006 re: 34 FIRST MOTION to Dismiss the Complaint Pursuant to Rule 12(c). filed by City of New York,, Linda Fairstein,, Milton Bonilla,. (Court Reporter Carol Gangley) (mov, ) (Entered: 01/20/2006)

Case: 1:04-cv-08437-PAC As of: 02/03/2014 07:49 PM EST 7 of 19

08/15/2006 08/17/2006
09/18/2006 09/27/2006 10/11/2006
10/11/2006 11/17/2006 12/08/2006 03/07/2007
03/15/2007 03/15/2007 03/17/2007 04/02/2007

38 TRANSCRIPT of proceedings held on 1/20/2006 before Judge Paul A. Crotty. (jmi, ) (Entered: 08/15/2006)
39 MEMORANDUM AND OPINION AND ORDER The Court denies defendants' motion for judgment on the pleadings as to plaintiff's claims for false arrest, malicious prosecution and denial of a right to fair trial against Bonilla and his claim for denial of a fair against Fairstein. The Court grants judgment on the pleadings in favor of Bonilla on plaintiff's claim for malicious abuse of process, without prejudice to repleading the third element of the claim. So Ordered. (Signed by Judge Paul A. Crotty on 8/17/06) (jco, ) (Entered: 08/21/2006)
40 AMENDED COMPLAINT amending 1 Complaint against City of New York, Milton Bonilla, Linda Fairstein, Gail Heatherly.Document filed by Oliver Jovanovic. Related document: 1 Complaint filed by Oliver Jovanovic.(db, ) Additional attachment(s) added on 9/20/2006 (db, ). (Entered: 09/19/2006)
41 AFFIDAVIT OF SERVICE. City of New York served on 9/20/2006, answer due 10/10/2006. Service was accepted by Madelyn Santana, Clerk Authorized to Accept. Document filed by Oliver Jovanovic. (Norinsberg, Jon) (Entered: 09/27/2006)
42 ENDORSED LETTER addressed to Judge Paul A. Crotty from Alan H. Scheiner dated 10/4/2006 re: request that the Court extend the time for the City to respond to the amended complaint from 10/2/2006 to 11/20/2006. ENDORSEMENT: Application Granted. So Ordered. (Signed by Judge Paul A. Crotty on 10/11/2006) (lb, ) (Entered: 10/16/2006)
Set Answer Due Date purs. to 42 Endorsed Letter, as to City of New York answer due on 11/20/2006. (lb, ) (Entered: 10/16/2006)
43 ANSWER to Amended Complaint. Document filed by City of New York, Milton Bonilla, Linda Fairstein, Gail Heatherly.(Hazan, David) (Entered: 11/17/2006)
44 CASE MANAGEMENT PLAN: Discovery due by 5/29/2007. Case Management Conference set for 4/19/2007 03:00 PM before Judge Paul A. Crotty. (Signed by Judge Paul A. Crotty on 12/8/2006) (jmi, ) (Entered: 12/11/2006)
45 ENDORSED LETTER addressed to Judge Crotty from Alan H. Scheiner (03/01/2007) and Jon Norinsberg Letter (dated 03/05/2007) re: Request for a pre−motion conference in order to move for Reconsideration. ENDORSEMENT: The Court has reviewed this letter and plaintiffs letter of March 5, 2007 in opposition. There is no need for a promotion conference, and defendants may move for reconsideration of the Courts August 2006 order in light of Wallace v. Kato. The Court is particularly interested in the parties views as to claims are subject to Wallace v Kato and which claims, if any survive. The parties should meet and confer on an appropriate schedule for submission to the Court. So Ordered. (Signed by Judge Paul A. Crotty on 03/07/2007) (mov) (Entered: 03/08/2007)
46 ENDORSED LETTER addressed to Judge Paul A. Crotty from Alan H. Scheiner dated 3/15/07 re: Application GRANTED. Defendant's moving papers (reconsideration) due 4/9/07; plaintiff's opposition due 5/9/07; reply due 5/23/07. (Signed by Judge Paul A. Crotty on 3/15/07) (db) (Entered: 03/15/2007)
Set/Reset Deadlines: Motions due by 4/9/2007. Replies due by 5/23/2007. Responses due by 5/9/2007 (db) (Entered: 03/15/2007)
Calendar Entry (email sent by chambers to counsel): Conference set for April 19, 2007 at 03:00 p.m (see CCMP dated 12/08/2007 document # 44 on ECF) is cancelled without a new date. (mov) (Entered: 03/17/2007)
47 ENDORSED LETTER addressed to Judge Paul A. Crotty from Alan H. Scheiner dated 4/2/2007 re: to respectfully request a one−week adjournment of the briefing schedule for the defendants' motion.Motions due by 4/16/2007.,Replies due by 5/30/2007.,Responses due by 5/16/2007ENDORSEMENT: Application GRANTED. SO ORDERED. (Signed by Judge Paul A. Crotty on 4/2/2007) (jmi) (Entered: 04/03/2007)

Case: 1:04-cv-08437-PAC As of: 02/03/2014 07:49 PM EST 8 of 19

05/09/2007 05/09/2007
05/10/2007 05/29/2007 05/31/2007 06/04/2007
06/08/2007 06/08/2007 06/19/2007
06/29/2007
07/09/2007 07/09/2007 07/09/2007

48 FILING ERROR − ELECTRONIC FILING FOR NON−ECF DOCUMENT − SECOND MOTION for Extension of Time to File Response/Reply (Letter requesting adjournment of time). Document filed by Oliver Jovanovic. Return Date set for 5/16/2007 05:00 PM.(Norinsberg, Jon) Modified on 5/10/2007 (KA). (Entered: 05/09/2007)
49 ENDORSED LETTER addressed to Judge Paul A. Crotty from Jon L. Norinsberg dated 5/8/2007 re: request a two−week adjournment of plt's deadline to respond to defts' motion for reconsideration, which is currently due on 5/16/2007. Endorsement: Application Granted. SO ORDERED. Plt's Responses due by 6/1/2007. Deft's Reply due by 6/18/2007. (Signed by Judge Paul A. Crotty on 5/9/2007) (jar) (Entered: 05/10/2007)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − NON−ECF DOCUMENT ERROR. Note to Attorney Jon Louis Norinsberg to MANUALLY RE−FILE Document No. 48 Letter. This document is not filed via ECF. (KA) (Entered: 05/10/2007)
50 SECOND MOTION for Extension of Time to File Response/Reply. Document filed by Oliver Jovanovic.Return Date set for 6/1/2007 05:00 PM.(Norinsberg, Jon) (Entered: 05/29/2007)
51 ENDORSED LETTER addressed to Judge Paul A. Crotty from Alan H. Scheiner dated 5/31/07 re: joint application for a stay of discovery during the pendency of the current motion for reconsideration. } Application GRANTED. (Signed by Judge Paul A. Crotty on 5/31/07) (db) (Entered: 06/01/2007)
52 ENDORSED LETTER addressed to Judge Denny Chin from Jon L. Norisberg dated 5/29/07 re: counsel for plaintiff requests (with consent) an extension of time to file a response to defendant's Motion for Reconsideration. } Application GRANTED. Plaintiff's opposition due 6/8/07; defendant's reply due 6/25/07.Replies due by 6/25/2007. Responses due by 6/8/2007 (Signed by Judge Paul A. Crotty on 6/4/07) (db) (Entered: 06/05/2007)
53 MEMORANDUM OF LAW in Opposition re: 34 FIRST MOTION to Dismiss the Complaint Pursuant to Rule 12(c). In Opposition to Defendants' Motion for Reconsideration. Document filed by Oliver Jovanovic. (Norinsberg, Jon) (Entered: 06/08/2007)
54 DECLARATION of Jon L. Norinsberg in Opposition re: 34 FIRST MOTION to Dismiss the Complaint Pursuant to Rule 12(c).. Document filed by Oliver Jovanovic. (Norinsberg, Jon) (Entered: 06/08/2007)
55 ENDORSED LETTER addressed to Judge Paul A. Crotty from Alan H. Scheiner dated 6/19/07 re: Counsel writes to request one−week extension to submit their reply to plaintiff's opposition to defendants' motion for reconsideration to 7/2/07. ENDORSEMENT: Application granted. So Ordered. Set Deadlines/Hearing as to Replies due by 7/2/2007. (Signed by Judge Paul A. Crotty on 6/19/07) (jco) (Entered: 06/20/2007)
56 ENDORSED LETTER addressed to Judge Paul A. Crotty from Alan H. Scheiner dated 6/29/07 re: Counsel for defendant requests a one week extension of the current deadline for defendants to submit their reply to plaintiff's Opposition to defendants' motion for reconsideration, from July 2, 2007 to July 9, 2007. ENDORSEMENT: Application GRANTED. So Ordered. (Signed by Judge Paul A. Crotty on 6/29/07) (js) (Entered: 07/02/2007)
57 FIRST MOTION for Reconsideration of the Court's Order of August 17, 2006 Regarding the Statute of Limitations. Document filed by City of New York, Milton Bonilla, Linda Fairstein.(Scheiner, Alan) (Entered: 07/09/2007)
58 FIRST MEMORANDUM OF LAW in Support re: 57 FIRST MOTION for Reconsideration of the Court's Order of August 17, 2006 Regarding the Statute of Limitations.. Document filed by City of New York, Milton Bonilla, Linda Fairstein. (Scheiner, Alan) (Entered: 07/09/2007)
59 FIRST REPLY MEMORANDUM OF LAW in Support re: 57 FIRST MOTION for Reconsideration of the Court's Order of August 17, 2006 Regarding the Statute

Case: 1:04-cv-08437-PAC As of: 02/03/2014 07:49 PM EST 9 of 19

09/06/2007 09/11/2007 02/07/2008
02/07/2008 03/13/2008
04/02/2008 06/09/2008 06/10/2008 06/20/2008 06/24/2008 06/30/2008
07/11/2008

of Limitations.. Document filed by City of New York, Milton Bonilla, Linda Fairstein. (Scheiner, Alan) (Entered: 07/09/2007)
60 NOTICE OF APPEARANCE by Arthur Gabriel Larkin, III on behalf of City of New York, Milton Bonilla, Linda Fairstein (Larkin, Arthur) (Entered: 09/06/2007)
61 NOTICE OF APPEARANCE by Arthur Gabriel Larkin, III on behalf of City of New York, Milton Bonilla, Linda Fairstein (djc) (Entered: 09/13/2007)
62 ORDER: Defendants' motion for reconsideration is GRANTED with respect to the false arrest claim and DENIED in all other respects. A Pretrial Conference will go forward on Thursday, March 13, 2008, at 2:15 P.M. in Courtroom 20−C. Requests for adjournments will not be considered unless the party requesting the adjournment complies with Rule 1E of Judge Crottys Individual Practices. The Clerk of Court shall terminate this motion for reconsideration. (Signed by Judge Paul A. Crotty on 02/07/2008) (mov) (Entered: 02/07/2008)
Set Deadlines/Hearings: Pretrial Conference set for 3/13/2008 at 02:15 PM in Courtroom 20C, 500 Pearl Street, New York, NY 10007 before Judge Paul A. Crotty. (mov) (Entered: 02/07/2008)
Minute Entry for proceedings held before Judge Paul A. Crotty: Pretrial Conference held on 3/13/2008. REMARK: Counsel for both parties shall meet and confer, and submit a Revised Civil Case Management Plan (RCCMP) for approval. The RCCMP should reflect that a trial in this matter will take place in late September 2008 or early October 2008. See transcript for complete details of this conference. Visit http://www1.nysd.uscourts.gov/courtrm_tech.php − − with respect to ordering a transcript of a recorded proceeding via Court flow). (mov) (Entered: 03/25/2008)
63 REVISED CIVIL CASE MANAGEMENT PLAN: Amended Pleadings due by 5/1/2008. Joinder of Parties due by 5/1/2008. Motions due by 5/1/2008. Case Management Conference set for 7/16/2008 at 02:15 PM in Courtroom 20C, 500 Pearl Street, New York, NY 10007 before Judge Paul A. Crotty. Discovery due by 9/30/2008. (Signed by Judge Paul A. Crotty on 4/2/08) (js) (Entered: 04/02/2008)
64 FILING ERROR − DEFICIENT DOCKET ENTRY − NOTICE OF APPEARANCE by Brian Guenther Maxey on behalf of City of New York, Milton Bonilla, Linda Fairstein (Maxey, Brian) Modified on 6/10/2008 (db). (Entered: 06/09/2008)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Brian Guenther Maxey to RE−FILE Document 64 Notice of Appearance. ERROR(S): No attorney signature or s/. (db) (Entered: 06/10/2008)
65 NOTICE OF APPEARANCE by Brian Guenther Maxey on behalf of City of New York, Milton Bonilla, Linda Fairstein (Maxey, Brian) (Entered: 06/20/2008)
Calendar Entry: Pre−Motion Conference set for 6/30/2008 at 02:00 PM in Courtroom 20C, 500 Pearl Street, New York, NY 10007 before Judge Paul A. Crotty (Set via e−mail by Marlon Ovalles − Courtroom Deputy). (mov) (Entered: 06/24/2008)
Minute Entry for proceedings held before Judge Paul A. Crotty: Pretrial Conference held on 6/30/2008. REMARK: The parties were directed to have another meet and confer session on the issues mentioned in open court. The Court will schedule another conference, if needed; after the parties session is deemed complete. See transcript for complete details of this conference. Visit http://www1.nysd.uscourts.gov/courtrm_tech.php with respect to ordering a transcript of a recorded proceeding via "Courtflow." (mov) (Entered: 06/30/2008)
Calendar Entry **DATE AND COURTROOM CHANGE**: Pretrial Conference set for 8/13/2008 at 04:45 PM (NOT 07/16/2008) in Courtroom 11−C (NOT 20−C), 500 Pearl Street, New York, NY 10007 before Judge Paul A. Crotty (reset via e−mail by Marlon Ovalles − Courtroom Deputy). (mov) (Entered: 07/11/2008)

Case: 1:04-cv-08437-PAC As of: 02/03/2014 07:49 PM EST 10 of 19

08/05/2008 08/18/2008 08/26/2008
12/16/2008 12/18/2008 01/16/2009 01/21/2009
05/27/2009 06/16/2009
06/16/2009 06/25/2009

Calendar Entry: Pretrial Conference set for 8/18/2008 at 03:15 PM in Courtroom 11− C (NOT 20−C), 500 Pearl Street, New York, NY 10007 before Judge Paul A. Crotty (set via e−mail by: Marlon Ovalles − Courtroom Deputy). (mov) (Entered: 08/05/2008)
Minute Entry for proceedings held before Judge Paul A. Crotty: Pretrial Conference held on 8/18/2008. The parties shall submit a Revised Civil Case Management Plan. Jury Trial set for March 23, 2009 at 9:30 AM. See transcript for complete details of this conference. Visit http://www1.nysd.uscourts.gov/courtrm_tech.php with respect to ordering a transcript of a recorded proceeding via Courtflow. (mov) (Entered: 08/24/2008)
66 REVISED CIVIL CASE MANAGEMENT PLAN: All parties do not consent to conducting all further proceedings before a Magistrate Judge, including motions and trial. This case is to be tried to a jury. Any motion to amend or to join additional parties shall be filed within thirty (30) days from the date of this Order. All fact discovery shall be completed no later than 1/30/2009. All expert discovery shall be completed no later than 10/31/2008. The next Case Management is scheduled got Wednesday, 12/7/08 at 2:30 pm in Courtroom 20−C. (Signed by Judge Paul A. Crotty on 8/26/2008) (tve) (Entered: 08/26/2008)
Calendar Entry: **PTC REMINDER**: Status Conference set for Wednesday, December 17, 2008, at 2:30 p.m. in Courtroom 20−C before Judge Paul A. Crotty, U.S.D.J (By: Marlon Ovalles − Courtroom Deputy). (mov) (Entered: 12/16/2008)
Calendar Entry: The 12/17/2008 Pretrial Conference has been rescheduled, on consent, to set Wednesday 1/21/2009 at 03:15 PM in Courtroom 20C, 500 Pearl Street, New York, NY 10007 before Judge Paul A. Crotty (reset via e−mail by: Marlon Ovalles − Courtroom Deputy). (mov) (Entered: 12/18/2008)
67 NOTICE OF APPEARANCE by Jonathan S. Abady on behalf of Oliver Jovanovic (Abady, Jonathan) (Entered: 01/16/2009)
Minute Entry for proceedings held before Judge Paul A. Crotty: Interim Pretrial Conference held on 1/21/2009. Remark: ALL discovery, including deposition discovery extended to 06/30/2009. The next pretrial conference is scheduled for Tuesday, July 7, 2009 at 2:30 PM. A firm trial date will be set on July 7, 2009. See transcript for complete details of this conference. Visithttp://www1.nysd.uscourts.gov/courtrm_tech.php with respect to ordering a transcript of a recorded proceeding via "Courtflow." (mov) (Entered: 01/21/2009)
68 AFFIDAVIT OF SERVICE of Subpoena served on District Attorney (attn: Sarah Hynes) on 5/12/09. Service was accepted by "Jane Doe", who works for David Young, manager. Document filed by Oliver Jovanovic. (Greenberger, Debra) (Entered: 05/27/2009)
69 ENDORSED LETTER addressed to Judge Paul A. Crotty from Arthur G. Larkin dated June 12, 2009 re: Request Your Honor's assistance in resolving a dispute with regard to non−party depositions, which we have tried to resolve with plaintiff's counsel in good faith without success to date. ENDORSEMENT: The application to divide the time of the non party deponents is denied. Plaintiff may depose the witnesses for the full 7 hours the Rules allow. It is clear that the defendants counsel has access to witnesses which plaintiff does not have. Plaintiff can gain access only by way of subpoena, and it would be unfair to truncate the time allowed for by the rules. The parties should work in good faith to resolve their disputes and, if possible, share the deposition time, but so it is clear plaintiff is entitled to the full time allowed for the non party witness it has subpoenaed. As to the identification of the complaining witness the parties should not publicize the name and the Court will address this matter at the next pretrial conference. SO ORDERED. (Signed by Judge Paul A. Crotty on June 16, 2009) (mov) (Entered: 06/16/2009)
70 NOTICE OF APPEARANCE by Debra Lea Greenberger on behalf of Oliver Jovanovic (Greenberger, Debra) (Entered: 06/16/2009)
71 ENDORSED LETTER addressed to Judge Paul A. Crotty from Arthur G. Larkin dated June 24, 2009 re: We write in response to plaintiffs letter of yesterdays date concerning their requests (1) for an open−ended, forty−five day extension of all

Case: 1:04-cv-08437-PAC As of: 02/03/2014 07:49 PM EST 11 of 19

07/14/2009 07/28/2009 08/05/2009 08/05/2009
08/07/2009 08/14/2009 08/14/2009

discovery, and (2) for an order adjourning plaintiffs deposition. We advised plaintiffs counsel yesterday that we do not object to an extension of discovery to allow depositions now scheduled to proceed, but that we do object to an unrestricted discovery extension. We also advised counsel that we object to adjourning plaintiffs deposition given the late stage of discovery, and given the number of depositions that already have been pushed into July (subject to Court approval). Accordingly, we submit that plaintiffs request should be denied, and that instead, the Court should enter a discovery order as set forth below. Because plaintiffs deposition is now scheduled for this Friday, June 26, we respectfully request that Your Honor decide the instant application as soon as reasonably practicable. ENDORSEMENT: (1) The request to adjourn Ms. Feinsteins deposition for 3 months is denied. The deposition must proceed as scheduled, (2) The City must complete document discovery forthwith; (3) The deposition of plaintiff currently scheduled for June 26, 2009, may be adjourned for up to 2 weeks but must be conducted and completed by no later than Friday July 10, 2009, (4) The discovery cutoff of June 30, 2009 is extended for one month to Friday July 31, 2009 (5) The conference scheduled for July 7, 2009 is adjourned, but if there are any further disputes, either side may call chambers and a conference will be scheduled immediately. In any event a conference will be scheduled at some time during the first two weeks of August. Mr. Ovalles, my Courtroom Deputy, will be in contact with the parties. SO ORDERED. (Signed by Judge Paul A. Crotty on June 25, 2009) (mov) (Entered: 06/25/2009)
72 ENDORSED LETTER addressed to Judge Paul A. Crotty from Jon Norinsberg dated 7/13/09 re: counsel for plaintiff requests that the Court grant permission to hold Ms. Heatherly's deposition on 8/5/09. ENDORSEMENT: So Ordered. (Signed by Judge Paul A. Crotty on 7/14/09) (dle) (Entered: 07/14/2009)
Calendar Entry: Pretrial Conference set for 8/18/2009 at 11:00 AM in Courtroom 20C, 500 Pearl Street, New York, NY 10007 before Judge Paul A. Crotty (set via e−mail by: Marlon Ovalles − Courtroom Deputy). (mov) (Entered: 07/28/2009)
73 ENDORSED LETTER addressed to Judge Paul A. Crotty from Jon L. Norinsberg dated July 28, 2009 re: Joint application for permission to conduct depositions after close of discovery. ENDORSEMENT: The proposed discovery schedule is adopted. So Ordered. (Signed by Judge Paul A. Crotty on August 5, 2009) (mov) (Entered: 08/05/2009)
74 ENDORSED LETTER addressed to Judge Paul A. Crotty from Arthur G. Larkin dated August 3, 2009 re: We write concerning plaintiffs letter of July 28, 2009. We wish to raise four matters with Your Honor at this time. First defendants object to the deposition of one of the witnesses listed in plaintiffs letter, Jane Rzucek, the mother of the complaining witness in this case; second, defendants wish to depose one additional witness whose name is not listed in plaintiffs letter (Alan Kaufman, one of plaintiffs criminal defense attorneys), and we understand that plaintiff does not object to this deposition; third, we intend to file a motion to quash the subpoena served upon Dr. Nicholas Norton; and fourth, we request the opportunity to serve deposition notices upon plaintiffs experts, should we choose to do so, and we understand that plaintiff will object to any such notices. ENDORSEMENT: (1) The objection to the deposition of Ms. Rzucek is overruled. (2) The deposition of Mr. Kaufman will be allowed (3) With respect to Dr. Norton, the City may make its motion on or prior to August 14. (4) Rebuttal reports to plaintiffs expert reports may be filed up to September 30, 2009, and defendant may also serve supplemental discovery concerning the expert reports. The City may depose these experts if it wishes to do so. (Signed by Judge Paul A. Crotty on August 5, 2009) (mov) (Entered: 08/05/2009)
Set/Reset Deadlines: Motions due by 8/14/2009. (mov) (Entered: 08/07/2009)
75 FILING ERROR − DEFICIENT DOCKET ENTRY − MOTION to Quash non−party subpoena and for a protective order. Document filed by City of New York, Milton Bonilla, Linda Fairstein.(Larkin, Arthur) Modified on 8/17/2009 (db). (Entered: 08/14/2009)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Arthur Gabriel Larkin to RE−FILE

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08/18/2009 08/18/2009 08/18/2009 08/18/2009 08/18/2009 08/25/2009
08/25/2009 08/25/2009 08/27/2009 09/11/2009 09/11/2009

Document 75 MOTION to Quash non−party subpoena and for a protective order. ERROR(S): Supporting Document must be filed separately (i.e. The Memorandum of Law and 2 Declarations in Support of Motion to be filed individually − they are found under the Event Type Replies, Opposition ad Supporting Documents). ***REMINDER*** − First Re−File Motion, then file and link any supporting documents. (db) (Entered: 08/17/2009)
Calendar Entry **TIME and COURTROOM CHANGE**: Pretrial Conference set for 8/18/2009 at 10:30 AM (*NOT 11:00 AM) in Courtroom 14−C (*NOT 20−C), 500 Pearl Street, New York, NY 10007 before Judge Paul A. Crotty (By: Marlon Ovalles − Courtroom Deputy). (mov) (Entered: 08/18/2009)
Minute Entry for proceedings held before Judge Paul A. Crotty: Interim Pretrial Conference held on 8/18/2009. REMARK: Discovery Disputes raised and ruled upon. The next pretrial conference is scheduled for Tuesday, September 29, 2009 at 3:45 PM in Courtroom 20−C. See transcript for complete details of this proceeding. (Court Reporter Toni Stanley) (mov) (Entered: 08/18/2009)
76 DECLARATION of Jamie Day in Support re: 75 MOTION to Quash non−party subpoena and for a protective order.. Document filed by City of New York, Milton Bonilla, Linda Fairstein. (Larkin, Arthur) (Entered: 08/18/2009)
77 DECLARATION of Nicholas Norton, Ph.D. in Support re: 75 MOTION to Quash non−party subpoena and for a protective order.. Document filed by City of New York, Milton Bonilla, Linda Fairstein. (Larkin, Arthur) (Entered: 08/18/2009)
78 MEMORANDUM OF LAW in Support re: 75 MOTION to Quash non−party subpoena and for a protective order.. Document filed by City of New York, Milton Bonilla, Linda Fairstein. (Larkin, Arthur) (Entered: 08/18/2009)
79 ENDORSED LETTER addressed to Judge Paul A. Crotty from Arthur G. Larkin dated August 24, 2009 re: We write with regard to defendants pending motion to quash the non−party subpoena served upon Dr. Nicholas Norton. Because portions of the motion were quoted in the New York Post last week, in misleading fashion (we believe), we respectfully request that the motion (DE 75−78, consisting of defendants notice of motion, declaration of Ms. Jamie Day, declaration of Dr. Norton, and defendants memorandum of law), be sealed, and that plaintiffs opposition to the motion and defendants reply also be filed under seal. Plaintiff does not object to this application, although we do not represent that plaintiff agrees with our assessment of the Post article. ENDORSEMENT: The application is denied. The news has already been published and the Court is adverse to closing the record on a matter of public business. SO ORDERED. (Signed by Judge Paul A. Crotty on August 25, 2009) (mov) (Entered: 08/25/2009)
80 MEMORANDUM OF LAW in Opposition re: 75 MOTION to Quash non−party subpoena and for a protective order. relieving Dr. Nicholas Norton from testifying at deposition. Document filed by Oliver Jovanovic. (Greenberger, Debra) (Entered: 08/25/2009)
81 DECLARATION of Debra L. Greenberger in Opposition re: 75 MOTION to Quash non−party subpoena and for a protective order.. Document filed by Oliver Jovanovic. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F)(Greenberger, Debra) (Entered: 08/25/2009)
82 TRANSCRIPT of proceedings held on 8/18/09 before Judge Paul A. Crotty. (ldi) (Entered: 09/11/2009)
83 REPLY AFFIDAVIT of Arthur G. Larkin in Support re: 75 MOTION to Quash non−party subpoena and for a protective order.. Document filed by City of New York, Milton Bonilla, Linda Fairstein. (Attachments: # 1 Exhibit A (Sinha deposition excerpt), # 2 Exhibit B (Powers deposition excerpt))(Larkin, Arthur) (Entered: 09/11/2009)
84 REPLY AFFIDAVIT of Nicholas Norton, Ph.D. in Support re: 75 MOTION to Quash non−party subpoena and for a protective order.. Document filed by City of New York, Milton Bonilla, Linda Fairstein. (Larkin, Arthur) (Entered: 09/11/2009)

Case: 1:04-cv-08437-PAC As of: 02/03/2014 07:49 PM EST 13 of 19

09/11/2009 09/23/2009 09/28/2009 09/29/2009
09/30/2009
10/08/2009 10/21/2009
10/29/2009 10/29/2009

85 REPLY MEMORANDUM OF LAW in Support re: 75 MOTION to Quash non−party subpoena and for a protective order.. Document filed by City of New York, Milton Bonilla, Linda Fairstein. (Larkin, Arthur) (Entered: 09/11/2009)
86 ORDER: The motion to quash is DENIED. Passing whether the City's attorney can object to a third−party subpoena, or whether the objection is timely, the subpoenaed witness may possess relevant information which is admissible at trial. That is more than ample justification for the proposed deposition. Any concern about privacy can be addressed by an appropriate confidentiality order. SO ORDERED. (Signed by Judge Paul A. Crotty on September 23, 2009) (mov) (Entered: 09/23/2009)
Calendar Entry **TIME CHANGE**: Pretrial Conference set for 9/29/2009 at 03:15 PM (*NOT 03:45 PM) in Courtroom 20−C, 500 Pearl Street, New York, NY 10007 before Judge Paul A. Crotty (By: Marlon Ovalles − Courtroom Deputy). (mov) (Entered: 09/28/2009)
Minute Entry for proceedings held before Judge Paul A. Crotty: Interim Pretrial Conference held on 9/29/2009. REMARK: Plaintiff's letter on inadequate discovery by 10/13/09; NYC and DANY letter response by 10/19/09. The letters shall not exceed 5 pages. The next conference is scheduled for Wednesday, October 21, 2009 at 03:15 PM in Courtroom 20−C. See transcript for complete details of this proceeding. Visit http://www1.nysd.uscourts.gov/courtrm_tech.php with respect to ordering a transcript of a recorded proceeding via "Courtflow." (mov) (Entered: 10/05/2009)
87 ENDORSED LETTER addressed to Judge Paul A. Crotty from Arthur G. Larkin dated 9/16/2009 re: Requesting the following motion and expert discovery schedule: Defendants' motion to be served and filed November 6, 2009. Plaintiff's opposition papers due December 4, 2009. Defendants' reply papers due December 18, 2009. Defendants' expert reports to be served Two weeks after Court's decision. Expert depositions to be completed two weeks after all reports served. ENDORSEMENT: The schedule is adopted. Trial is set for April 13, 2010. (Signed by Judge Paul A. Crotty on 9/30/2009) (jpo) Modified on 10/13/2009 (jpo). (Entered: 09/30/2009)
88 STIPULATED PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material. (Signed by Judge Paul A. Crotty on 10/8/2009) (tve) (Entered: 10/08/2009)
Minute Entry for proceedings held before Judge Paul A. Crotty: Interim Pretrial Conference held on 10/21/2009. REMARK: The jury trial is still set for April 13, 2010. The final schedule on defendants summary judgment motion is as follows: Motion By: 12/04/09; Response By: 01/15/10; and Reply by: 01/29/10. Discussion on missing documents discussed and outstanding discovery from DANY held. The next conference is set for Wednesday, December 16, 2009 at 03:15 PM in courtroom 20−C. See transcript for complete details of this proceeding. Visit http://www1.nysd.uscourts.gov/courtrm_tech.php with respect to ordering a transcript of a recorded proceeding via "Courtflow." (mov) (Entered: 11/02/2009)
89 ORDER: On Or before November 20, 2009, Dr. Jacques Moritz shall appear for a deposition in the above−captioned case, pursuant to the subpoena that was served on Dr. Moritz on April 15, 2009. Failure to attend may result in being held in contempt of court. ALL OF THE ABOVE IS SO ORDERED. (Signed by Judge Paul A. Crotty on October 28, 2009) (mov) (Entered: 10/29/2009)
90 ENDORSED LETTER addressed to Judge Paul A. Crotty from Dr. Jacques Moritz, MD dated October 28, 2009 re: I am requesting that the court arrange for me to have an attorney otherwise, I will not be able to participate in the above titled action. ENDORSEMENT: Dr. Moritz must appear for a deposition pursuant to the subpoena which he received. If the Doctor objects, counsel should be retained to represent the Doctors interest or the Doctor may appear pro se by filing written objections. The Court does not provide attorneys in these circumstances. So Ordered. (Signed by Judge Paul A. Crotty on October 29, 2009) Copies Mailed By Chambers.(mov) (Entered: 10/29/2009)

Case: 1:04-cv-08437-PAC As of: 02/03/2014 07:49 PM EST 14 of 19

12/04/2009 12/16/2009 12/21/2009 12/21/2009
12/21/2009 12/21/2009 01/04/2010

91 ENDORSED LETTER: addressed to Judge Paul A. Crotty from Arthur G. Larkin dated 12/3/09 re: Counsel for defendant requests an extension of one business day and three days in total of the date by which defendants' motion for summary judgment is due, from Friday, December 4, to Monday December 7, 2009. Plaintiff consents to this request. Subject to Your Honor's approval, the parties have agreed that plaintiff's opposition papers will be served and filed on or before Tuesday, January 19, 2010. Reply papers to be filed by February 2, 2010. ENDORSEMENT: So Ordered. ( Motions due by 12/7/2009. Replies due by 2/2/2010. Responses due by 1/19/2010) (Signed by Judge Paul A. Crotty on 12/4/09) (js) (Entered: 12/04/2009)
Minute Entry for proceedings held before Judge Paul A. Crotty: Interim Pretrial Conference held on 12/16/2009. REMARK: The next pretrial conference set for 1/15/2010 at 10:30 AM in Courtroom 20C, 500 Pearl Street, New York, NY 10007 before Judge Paul A. Crotty. See transcript for complete details of this proceeding. Visit http://www1.nysd.uscourts.gov/courtrm_tech.php with respect to ordering a transcript of a recorded proceeding via "Courtflow." (mov) (Entered: 01/06/2010)
92 MOTION for Summary Judgment dismissing all of plaintiff's claims. Document filed by City of New York, Milton Bonilla, Linda Fairstein. Responses due by 1/19/2010(Larkin, Arthur) (Entered: 12/21/2009)
93 DECLARATION of Arthur G. Larkin in Support re: 92 MOTION for Summary Judgment dismissing all of plaintiff's claims.. Document filed by City of New York, Milton Bonilla, Linda Fairstein. (Attachments: # 1 Exhibit A (Jovanovic dep excerpts), # 2 Exhibit B (1 of 2) (e−mails, IM's), # 3 Exhibit B (2 of 2) (e−mails, IM's), # 4 Exhibit C (trial excerpts), # 5 Exhibit D (IM's), # 6 Exhibit E (profiles), # 7 Exhibit F (JR Grand Jury), # 8 Exhibit G (Bonilla DD5), # 9 Exhibit H (handwritten statement), # 10 Exhibit I (IM's), # 11 Exhibit J (Dubois deposition excerpts), # 12 Exhibit K (Powers dep. excerpts), # 13 Exhibit L (O'Connor dep. excerpts), # 14 Exhibit M (e−mail 11/26/96), # 15 Exhibit N (medical record − filed separately), # 16 Exhibit O (Chin−Quee deposition excerpts), # 17 Exhibit P (JR dep. excerpt), # 18 Exhibit Q (Bonilla dep. excerpt), # 19 Exhibit R (search warrant), # 20 Exhibit S (S. Jovanovic dep. excerpt), # 21 Exhibit T (return on warrant), # 22 Exhibit U (Arraignment 12/6/96), # 23 Exhibit V (NY Times article − 12/7/96), # 24 Exhibit W (NY Daily News article 12/7/96), # 25 Exhibit X (NY Post article 12/7/96), # 26 Exhibit Y (Answers to Interrogatories), # 27 Exhibit Z (Fairstein deposition excerpts), # 28 Exhibit AA (NY Post article − 12/14/96), # 29 Exhibit BB (FBI fax and DA memo), # 30 Exhibit CC (Heatherly dep excerpts), # 31 Exhibit DD (People's Molineux motion − redacted), # 32 Exhibit EE (memo to DA's office), # 33 Exhibit FF (Bonilla Grand Jury), # 34 Exhibit GG (Grand Jury charge), # 35 Exhibit HH (Indictment − redacted), # 36 Exhibit II (Sosinsky dep. excerpts), # 37 Exhibit JJ (Letter 2/26/98), # 38 Exhibit KK (IM's), # 39 Exhibit LL (blank juror questionnaire), # 40 Exhibit MM (sentencing minutes), # 41 Exhibit NN (Transcript 11/1/01), # 42 Exhibit OO (Hobbs dep. excerpt), # 43 Exhibit PP (Mohr dep. excerpts), # 44 Exhibit QQ (DA response to subpoena), # 45 Exhibit RR (DA response to subpoena), # 46 Exhibit SS (felony complaint), # 47 Exhibit TT (Thompson dep. excerpts), # 48 Exhibit UU (Disciplinary Committee letter − redacted))(Larkin, Arthur) (Entered: 12/21/2009)
94 RULE 56.1 STATEMENT. Document filed by City of New York, Milton Bonilla, Linda Fairstein. (Larkin, Arthur) (Entered: 12/21/2009)
95 MEMORANDUM OF LAW in Support re: 92 MOTION for Summary Judgment dismissing all of plaintiff's claims.. Document filed by City of New York, Milton Bonilla, Linda Fairstein. (Larkin, Arthur) (Entered: 12/21/2009)
96 ORDER: Based on the Court's in camera review and the parties' arguments (oral and in writing), the nine page document, dated 6/28/1993, prepared by the attorney who was the subject of a sua sponte investigation by the Disciplinary Committee for the First Judicial Department, arising out of conduct occurring during the trial of People v. Jarells, should be produced. Plaintiff's request for a 30(b)(6) deposition concerning disciplinary proceedings is denied. (Signed by Judge Paul A. Crotty on 1/4/2010) (tro) (Entered: 01/05/2010)

Case: 1:04-cv-08437-PAC As of: 02/03/2014 07:49 PM EST 15 of 19

01/11/2010
01/15/2010 01/15/2010 01/15/2010 02/16/2010
03/03/2010
03/11/2010 03/19/2010
03/19/2010 03/25/2010

97 ENDORSED LETTER addressed to Judge Paul A. Crotty from Jon L. Norinsberg dated January 11, 2010 re: extension of the deadline for plaintiff to file his opposition to defendants' motion for summary judgment from 1/19/2010 to 02/05/2010 and permission to file an opposition brief which is in excess of the 25 page limit set forth in Your Honor's rules. ENDORSEMENT: The time extension is granted and the schedule will be adjusted accordingly. Plaintiff may file a brief not exceeding 35 pages. SO ORDERED. (Signed by Judge Paul A. Crotty on January 11, 2010) (mov) (Entered: 01/12/2010)
98 TRANSCRIPT of proceedings held on 1/20/2006 before Judge Paul A. Crotty. (tve) (Entered: 01/15/2010)
99 TRANSCRIPT of proceedings held on 1/21/2009 before Judge Paul A. Crotty. (tve) (Entered: 01/15/2010)
100 TRANSCRIPT of proceedings held on 6/30/2008 before Judge Paul A. Crotty. (tve) (Entered: 01/15/2010)
101 ENDORSED LETTER addressed to Judge Paul A. Crotty from Arthur G. Larkin dated 2/12/2010 re: Counsel write to first, respectfully request (1) an extension of two (2) weeks, until 3/12/2010, within which to serve defendants' reply papers, and (2) in accordance with the parties' letter to the court of 1/11/2010, and the court's memo endorsement of the same date (DE 97), counsel request permission to file a reply brief not exceeding twenty (20) pages in length, the same page increase granted to plaintiff (i.e., ten additional pages). Plaintiff does not object to these requests. Second, counsel requests until Wednesday, 2/25/2010, to respond to plaintiff's 2/11/2010 letter. Plaintiff does not object to this request. ENDORSEMENT: SO ORDERED. (Signed by Judge Paul A. Crotty on 2/16/2010) (tro) (Entered: 02/17/2010)
102 ENDORSED LETTER addressed to Judge Paul A. Crotty from Arthur G. Larkin dated February 25, 2010 re: response to plaintiff's letter of February 11, 2010, concerning plaintiff's request to disclose in his opposition papers the name of the complaining witness in this case. ENDORSEMENT: The request is denied. The complaining witnesss name is known, which is the reason she adopted a new surname. The new surname for the complaining witness should and will be treated as confidential. There is no need given the disclosures already made to protect this original need; accordingly the original name may be used. SO ORDERED. (Signed by Judge Paul A. Crotty on March 2, 2010) (mov) (Entered: 03/03/2010)
103 ENDORSED LETTER addressed to Judge Paul A. Crotty from Arthur Larkin dated 3/11/10 re: Request to extend time to 3/19/10 for defendants to serve reply papers in further support of their motion for summary judgment. ENDORSEMENT: So Ordered. (Signed by Judge Paul A. Crotty on 3/11/10) (cd) (Entered: 03/11/2010)
104 ENDORSED LETTER addressed to Judge Paul A. Crotty from Debra Greenberger dated March 16, 2010 re: We write to seek the Courts permission to file Plaintiffs summary judgment opposition without redacting references to the District Attorney of New Yorks (DANY) training materials. DANY opposes this application and has taken the position that all references to its training materials in Plaintiffs Memorandum of Law, Plaintiffs 56.1(B) statement and Plaintiffs 56.1(B) response (collectively Plaintiffs briefing) are proprietary and cannot be publicly disseminated. We have conferred with DANYs counsel, Ms. Hines, including a telephone conversation today, but have been unable to resolve this issue. ENDORSEMENT: Permission to file opposition papers without redacting the agreed upon confidential materials is DENIED. So Ordered (Signed by Judge Paul A. Crotty on March 18, 2010) (mov) (Entered: 03/19/2010)
DOCKET ANNOTATION: The PDF attachment with respect to document number 104 was removed from the public file since the PDF contained sensitive information. Copies of document number 104 were e−mailed to all parties involved by chambers (By: Marlon Ovalles − Courtroom Deputy). (mov) (Entered: 03/19/2010)
105 MEMORANDUM OF LAW in Opposition re: 92 MOTION for Summary Judgment dismissing all of plaintiff's claims. [REDACTED]. Document filed by

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03/25/2010 03/25/2010 03/25/2010 03/25/2010 03/25/2010
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04/01/2010
04/01/2010
04/01/2010 04/16/2010
04/16/2010

Oliver Jovanovic. (Greenberger, Debra) (Entered: 03/25/2010)
106 COUNTER STATEMENT TO 94 Rule 56.1 Statement. Document filed by Oliver Jovanovic. (Greenberger, Debra) (Entered: 03/25/2010)
107 COUNTER STATEMENT TO 94 Rule 56.1 Statement. Document filed by Oliver Jovanovic. (Greenberger, Debra) (Entered: 03/25/2010)
108 DECLARATION of Jon L. Norinsberg in Opposition re: 92 MOTION for Summary Judgment dismissing all of plaintiff's claims.. Document filed by Oliver Jovanovic. (Greenberger, Debra) (Entered: 03/25/2010)
109 SEALED DOCUMENT placed in vault.(nm) (Entered: 03/25/2010)
110 ENDORSED LETTER addressed to Judge Paul A. Crotty from Debra Greenberger dated 3/25/2010 re: Counsel respectfully request the Court's permission to papers file with the Clerk's office the exhibits in support of plaintiff's opposition to defendants' summary judgment motion. ENDORSEMENT: So Ordered. (Signed by Judge Paul A. Crotty on 3/25/2010) (jfe) (Entered: 03/25/2010)
111 EXHIBITS (VOLUME 1, EXHIBITS 1−44 OF 123 EXHIBITS) TO PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT. Document filed by Oliver Jovanovic. ***Accepted for filing by the Honorable Paul A. Crotty on 3/25/10 (Doc #110).(mro) (Entered: 04/01/2010)
112 EXHIBITS (VOLUME 2, EXHIBITS 45−75 OF 123 EXHIBITS) TO PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT. Document filed by Oliver Jovanovic. ***Accepted for filing by the Honorable Paul A. Crotty on 3/25/10 (Doc #110).(mro) (Entered: 04/01/2010)
113 EXHIBITS (VOLUME 3, EXHIBITS 76−123 OF 123 EXHIBITS) TO PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT. Document filed by Oliver Jovanovic. ***Accepted for filing by the Honorable Paul A. Crotty on 3/25/10 (Doc #110).(mro) (Entered: 04/01/2010)
114 ENDORSED LETTER addressed to Judge Paul A. Crotty from Debra Greenberger dated March 31, 2010 re: request to file a short sur−reply of no more than five pages. ENDORSEMENT: Request denied. The Court will hear oral argument on the pending motion for summary judgment on Friday, April 9, 2010 at 02:30 PM. (Signed by Judge Paul A. Crotty on April 1, 2010) (mov) (Entered: 04/01/2010)
115 ENDORSED LETTER addressed to Judge Crotty from Arthur G. Larkin dated April 1, 2010 re: Permission to file publicly on the ECF docket the entirety of defendants' reply papers on their motion for summary judgment, two courtesy copies of which were delivered to chambers on March 30, 2010, by hand. ENDORSEMENT: The request is deferred, pending the conference to be held on April 9, 2010 at 02:30 PM. So Ordered. (Signed by Judge Paul A. Crotty on April 1, 2010) (mov) (Entered: 04/01/2010)
DOCKET ANNOTATION: The PDF attachment with respect to document number 115 was removed from the public file since the PDF contained sensitive information. Copies of document number 115 were e−mailed to all parties involved by chambers (By: Marlon Ovalles − Courtroom Deputy). (mov) (Entered: 04/01/2010)
Calendar Entry: Oral Argument set for 4/19/2010 at 02:15 PM in Courtroom 20C, 500 Pearl Street, New York, NY 10007 before Judge Paul A. Crotty. The trial will not go forward on April 13, 2010. A new trial date will be discussed on April 19, 2010 (By: Marlon Ovalles − Courtroom Deputy). (mov) (Entered: 04/05/2010)
Calendar Entry *TIME &COURTROOM CHANGE*: Oral Argument set for 4/19/2010 at 01:45 PM (*NOT 02:15*) PM in Courtroom 9A (*NOT 20C*), 500 Pearl Street, New York, NY 10007 before Judge Paul A. Crotty. The trial will not go forward on April 13, 2010. A new trial date will be discussed on April 19, 2010 (By: Marlon Ovalles − Courtroom Deputy). (mov) (Entered: 04/16/2010)
116 DECLARATION of Arthur G. Larkin in Support re: 92 MOTION for Summary Judgment dismissing all of plaintiff's claims.. Document filed by City of New

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04/16/2010 04/16/2010 04/16/2010 04/16/2010 04/16/2010 04/19/2010
04/26/2010 05/14/2010 09/28/2010
09/28/2010 09/29/2010
10/27/2010

York, Milton Bonilla, Linda Fairstein. (Attachments: # 1 Exhibit VV (trial excerpts − 1 of 2), # 2 Exhibit VV (trial excerpts − 2 of 2), # 3 Exhibit WW (JR dep. excerpts), # 4 Exhibit XX (Chin−Quee dep. excerpts), # 5 Exhibit YY (JR photos − filed separately), # 6 Exhibit ZZ (Judge Goodman orders), # 7 Exhibit AAA (DeLeon dep. excerpts), # 8 Exhibit BBB (Faenza dep. excerpts), # 9 Exhibit CCC (Powers dep. excerpts), # 10 Exhibit DDD (Heatherly dep. excerpts), # 11 Exhibit EEE (Litman 2−12−98 Aff. excerpt), # 12 Exhibit FFF (Litman 2−4−98 Aff. excerpt), # 13 Exhibit GGG (Wetzel order 3−4), # 14 Exhibit HHH (Wetzel order 3−9), # 15 Exhibit III (3−13−98 Tr. excerpt), # 16 Exhibit JJJ (Sosinsky dep. excerpt, exhibit), # 17 Exhibit KKK (L.D. dep. excerpt), # 18 Exhibit LLL (filed separately), # 19 Exhibit MMM (IM − Asobitai), # 20 Exhibit NNN (O. Jovanovic dep. excerpt), # 21 Exhibit OOO (L. Fairstein dep. excerpt), # 22 Exhibit PPP (Goodman order 7−24−97), # 23 Exhibit QQQ (misc. excerpts − 1 of 3), # 24 Exhibit QQQ (misc. excerpts − 2 of 3), # 25 Exhibit QQQ (misc. excerpts − 3 of 3), # 26 Exhibit RRR (Newman dep. excerpt))(Larkin, Arthur) (Entered: 04/16/2010)
117 DECLARATION of Gail Heatherly, Esq. in Support re: 92 MOTION for Summary Judgment dismissing all of plaintiff's claims.. Document filed by City of New York, Milton Bonilla, Linda Fairstein. (Larkin, Arthur) (Entered: 04/16/2010)
118 DECLARATION of Jan R. in Support re: 92 MOTION for Summary Judgment dismissing all of plaintiff's claims.. Document filed by City of New York, Milton Bonilla, Linda Fairstein. (Larkin, Arthur) (Entered: 04/16/2010)
119 DECLARATION of John R. in Support re: 92 MOTION for Summary Judgment dismissing all of plaintiff's claims.. Document filed by City of New York, Milton Bonilla, Linda Fairstein. (Larkin, Arthur) (Entered: 04/16/2010)
120 DECLARATION of Mary Jo Parlier in Support re: 92 MOTION for Summary Judgment dismissing all of plaintiff's claims.. Document filed by City of New York, Milton Bonilla, Linda Fairstein. (Larkin, Arthur) (Entered: 04/16/2010)
121 REPLY MEMORANDUM OF LAW in Support re: 92 MOTION for Summary Judgment dismissing all of plaintiff's claims.. Document filed by City of New York, Milton Bonilla, Linda Fairstein. (Larkin, Arthur) (Entered: 04/16/2010)
Minute Entry for proceedings held before Judge Paul A. Crotty: Oral Argument held on 4/19/2010 re: 92 MOTION for Summary Judgment. REMARK: Oral argument held. The Court did not rule on the pending motion for summary judgment. See transcript for complete details of this proceeding. (Court Reporter Kristin Sellin) (mov) (Entered: 04/19/2010)
122 TRANSCRIPT of proceedings held on April 19, 2010 2:00 p.m. before Judge Paul A. Crotty. (ajc) (Entered: 04/29/2010)
123 TRANSCRIPT of proceedings held on 4/19/2010 before Judge Paul A. Crotty. (ab) (Entered: 05/18/2010)
124 ORDER: For the foregoing reasons, Defendants motion for summary judgment is GRANTED in its entirety. The Clerk of Court is directed to terminate the pending motion and enter judgment accordingly.(Signed by Judge Paul A. Crotty on September 28, 2010) (mov) (Entered: 09/28/2010)
Transmission to Judgments and Orders Clerk. Transmitted re: 124 Order on Motion for Summary Judgment to the Judgments and Orders Clerk. (mov) (Entered: 09/28/2010)
125 CLERK'S JUDGMENT That for the reasons stated in the Court's Order dated September 28, 2010, defendants' motion for summary judgment is granted in its entirety. (Signed by Clerk of Court Ruby Krajick on 9/29/10) (Attachments: # 1 notice of right to appeal)(ml) (Entered: 09/29/2010)
126 NOTICE OF APPEAL from 125 Clerk's Judgment, 124 Order on Motion for Summary Judgment,. Document filed by Oliver Jovanovic. Filing fee $ 455.00, receipt number E 919029. (nd) (Entered: 10/27/2010)

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10/27/2010 10/27/2010 10/27/2010

Transmission of Notice of Appeal to the District Judge re: 126 Notice of Appeal. (nd) (Entered: 10/27/2010)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 126 Notice of Appeal. (nd) (Entered: 10/27/2010)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 30 Reply Memorandum of Law in Support of Motion filed by Linda Fairstein, Milton Bonilla, City of New York, 89 Order, 40 Amended Complaint, filed by Oliver Jovanovic, 121 Reply Memorandum of Law in Support of Motion filed by Linda Fairstein, Milton Bonilla, City of New York, 80 Memorandum of Law in Opposition to Motion filed by Oliver Jovanovic, 66 Case Management Plan,, 118 Declaration in Support of Motion filed by Linda Fairstein, Milton Bonilla, City of New York, 2 Affidavit of Service Complaints filed by Oliver Jovanovic, 74 Endorsed Letter,,,,, 65 Notice of Appearance filed by Linda Fairstein, Milton Bonilla, City of New York, 55 Endorsed Letter,, Set Motion and RRDeadlines/Hearings, 5 Affidavit of Service Complaints filed by Oliver Jovanovic, 17 Endorsed Letter, 93 Declaration in Support of Motion,,,,,,,,, filed by Linda Fairstein, Milton Bonilla, City of New York, 76 Declaration in Support of Motion filed by Linda Fairstein, Milton Bonilla, City of New York, 25 Notice of Case Assignment/Reassignment, 31 Memorandum of Law in Opposition to Motion filed by Oliver Jovanovic, 68 Affidavit of Service Other filed by Oliver Jovanovic, 69 Endorsed Letter,,,, 37 Memorandum of Law in Support of Motion, filed by Linda Fairstein, Milton Bonilla, City of New York, 78 Memorandum of Law in Support of Motion filed by Linda Fairstein, Milton Bonilla, City of New York, 67 Notice of Appearance filed by Oliver Jovanovic, 29 FIRST MOTION to Dismiss Pursuant to Rule 12(c).FIRST MOTION to Dismiss Pursuant to Rule 12(c). filed by Linda Fairstein, Milton Bonilla, City of New York, 126 Notice of Appeal filed by Oliver Jovanovic, 22 Endorsed Letter, 79 Endorsed Letter,,, 87 Endorsed Letter,,, Set Deadlines/Hearings,, 56 Endorsed Letter,, Set Deadlines/Hearings, 20 Endorsed Letter, 125 Clerk's Judgment, 39 Memorandum &Opinion,, 106 Counter Statement to Rule 56.1 filed by Oliver Jovanovic, 77 Declaration in Support of Motion filed by Linda Fairstein, Milton Bonilla, City of New York, 73 Endorsed Letter, 1 Complaint filed by Oliver Jovanovic, 81 Declaration in Opposition to Motion, filed by Oliver Jovanovic, 36 Affidavit in Support of Motion, filed by Linda Fairstein, Milton Bonilla, City of New York, 108 Declaration in Opposition to Motion filed by Oliver Jovanovic, 19 Answer to Complaint filed by Linda Fairstein, Milton Bonilla, City of New York, 96 Order,, 62 Order on Motion for Reconsideration,, 53 Memorandum of Law in Opposition to Motion filed by Oliver Jovanovic, 51 Endorsed Letter, 21 Endorsed Letter, 116 Declaration in Support of Motion,,,,, filed by Linda Fairstein, Milton Bonilla, City of New York, 3 Affidavit of Service Complaints filed by Oliver Jovanovic, 63 Case Management Plan, 7 Affidavit of Service Complaints filed by Oliver Jovanovic, 124 Order on Motion for Summary Judgment, 27 Endorsed Letter, 92 MOTION for Summary Judgment dismissing all of plaintiff's claims. filed by Linda Fairstein, Milton Bonilla, City of New York, 54 Declaration in Opposition to Motion filed by Oliver Jovanovic, 85 Reply Memorandum of Law in Support of Motion filed by Linda Fairstein, Milton Bonilla, City of New York, 10 Endorsed Letter, 59 Reply Memorandum of Law in Support of Motion, filed by Linda Fairstein, Milton Bonilla, City of New York, 94 Rule 56.1 Statement filed by Linda Fairstein, Milton Bonilla, City of New York, 8 Endorsed Letter, 52 Endorsed Letter,, Set Deadlines/Hearings, 57 FIRST MOTION for Reconsideration of the Court's Order of August 17, 2006 Regarding the Statute of Limitations. filed by Linda Fairstein, Milton Bonilla, City of New York, 71 Endorsed Letter,,,,,,,, Set Deadlines,,,,,,, 50 SECOND MOTION for Extension of Time to File Response/Reply. filed by Oliver Jovanovic, 88 Protective Order, 84 Reply Affidavit in Support of Motion filed by Linda Fairstein, Milton Bonilla, City of New York, 105 Memorandum of Law in Opposition to Motion filed by Oliver Jovanovic, 44 Case Management Plan, 91 Endorsed Letter,,, Set Deadlines/Hearings,, 11 Withdrawal of Claim filed by Gail Heatherly, 60 Notice of Appearance filed by Linda Fairstein, Milton Bonilla, City of New York, 9 Endorsed Letter, 34 FIRST MOTION to Dismiss the Complaint Pursuant to Rule 12(c). filed by Linda Fairstein, Milton Bonilla, City of New York, 46 Endorsed Letter, 42 Endorsed Letter, 23 Endorsed Letter, 114 Endorsed Letter,, Set Hearings, 95 Memorandum of Law in Support of Motion filed by Linda Fairstein, Milton Bonilla, City of New York, 49 Endorsed Letter,, Set Deadlines, 58

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07/24/2012 08/28/2012

Memorandum of Law in Support of Motion, filed by Linda Fairstein, Milton Bonilla, City of New York, 6 Affidavit of Service Complaints filed by Oliver Jovanovic, 41 Affidavit of Service Complaints filed by Oliver Jovanovic, 86 Order, 47 Endorsed Letter,, Set Deadlines, 18 Endorsed Letter,, Set Deadlines, 101 Endorsed Letter,,, 13 Endorsed Letter, 43 Answer to Amended Complaint filed by Gail Heatherly, Linda Fairstein, Milton Bonilla, City of New York, 72 Endorsed Letter,, Set Deadlines/Hearings, 110 Endorsed Letter, 15 Case Management Plan,, 97 Endorsed Letter,,, Set Deadlines/Hearings,, 120 Declaration in Support of Motion filed by Linda Fairstein, Milton Bonilla, City of New York, 14 Affidavit of Service Complaints filed by Oliver Jovanovic, 26 Endorsed Letter, 90 Endorsed Letter,, 24 Endorsed Letter, 107 Counter Statement to Rule 56.1 filed by Oliver Jovanovic, 12 Endorsed Letter, 16 Endorsed Letter, 45 Endorsed Letter,, 70 Notice of Appearance filed by Oliver Jovanovic, 4 Affidavit of Service Complaints filed by Oliver Jovanovic, 117 Declaration in Support of Motion filed by Linda Fairstein, Milton Bonilla, City of New York, 28 Endorsed Letter, 83 Reply Affidavit in Support of Motion, filed by Linda Fairstein, Milton Bonilla, City of New York, 119 Declaration in Support of Motion filed by Linda Fairstein, Milton Bonilla, City of New York, 102 Endorsed Letter,, 103 Endorsed Letter,, Set Motion and RRDeadlines/Hearings, were transmitted to the U.S. Court of Appeals. (nd) (Entered: 10/27/2010)
127 SEALED DOCUMENT placed in vault.(mps) (Entered: 07/24/2012)
128 MANDATE of USCA (Certified Copy) as to 126 Notice of Appeal filed by Oliver Jovanovic USCA Case Number 10−4398−cv. Ordered, Adjudged and Decreed that the judgment of the District Court is AFFIRMED. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 8/28/2012. (nd) (Entered: 08/28/2012)