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Jovanovic v. City of New York

August 17, 2006

DR. OLIVER JOVANOVIC, PLAINTIFF,
v.
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.



The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge

MEMORANDUM OPINION AND ORDER

Almost ten years ago, in November, 1996, the Plaintiff, Oliver Jovanovic ("Jovanovic" or "Plaintiff"), was arrested, tried and convicted for rape, sodomy and kidnapping. The local tabloids closely followed Jovanovic's prosecution and generated huge volumes of coverage. The matter became known as the "cybersex torture" case. Jovanovic was convicted in April 1998 and sentenced in May 1998 to a term of 15 years to life. He was incarcerated for 20 months. Upon appeal in December 1999, the Appellate Division First Department found numerous trial errors, reversed his conviction and remanded for a new trial.

Over the next 23 months, the District Attorney offered Jovanovic several plea deals with no further jail time; first with a plea of guilty to a felony and later to a misdemeanor. Jovanovic refused to plead guilty, maintained his innocence, and insisted upon trial. On November 1, 2001, the District Attorney moved to dismiss all charges; the motion was granted, and all charges were dismissed with prejudice.

On October 28, 2004, almost three years after the indictment was dismissed with prejudice, Jovanovic instituted this action pursuant to 42 U.S.C. § 1983, alleging false arrest, malicious prosecution, malicious abuse of process and denial of his right to a fair trial by New York City Police Officer Milton Bonilla ("Bonilla") and former Assistant District Attorney Linda Fairstein ("Fairstein"). Specifically, Plaintiff alleges that Bonilla and Fairstein, while acting in their official capacities, fabricated evidence, gave false testimony, and made damaging extra-judicial statements to the press in an effort to secure a conviction against him. Plaintiff also sues the City of New York claiming a municipal policy or custom that gave rise to these constitutionally impermissible acts.

Defendants move for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) arguing: (1) that Jovanovic's claims are time barred; (2) probable cause existed for the arrest and prosecution; (3) the claim for malicious prosecution fails as a matter of law; (4) there is no claim for malicious abuse of process against Bonilla; (5) any "fair trial" claims fail as a matter of law; (6) both Defendants are entitled to qualified immunity; and (7) Plaintiff's claims for municipal liability fail as a matter of law.

On a motion to dismiss, the Court must accept as true all the factual allegations of the complaint and draw all inferences from these allegations in the light most favorable to Jovanovic. Upon review of the pleadings, using the applicable standards, the Court denies Defendants' motion in all respects, except with respect to the claim of malicious abuse of process. That claim is dismissed, with leave to replead.

BACKGROUND*fn1

On November 27, 1996, Jamie Ruzcek ("Ruzcek"), a twenty-year-old Barnard student, reported to Bonilla that she had been sexually assaulted by Jovanovic, a thirty-year-old doctoral candidate at Columbia University, with whom she had corresponded by e-mail prior to the alleged incident. (Compl. ¶¶ 22-23.) Ruzcek told Bonilla that Jovanovic had assaulted her for twenty hours, starting on the night of November 22, 1996 and continuing through the day of November 23, 1996. (Compl. ¶ 23.) Ruzcek provided a detailed and graphic statement of the incident, in which she alleged-among other heinous acts-that Jovanovic had hogtied her for nearly twenty hours, violently raped and sodomized her, struck her repeatedly with a club, severely burned her with candle wax, and repeatedly gagged her with a variety of materials. (Compl. ¶ 24.)

The physical evidence did not match Ruzcek's assertions. A comprehensive gynecological examination of Ruzcek on November 27, 1996 found no bleeding, teeth marks, bruises, scratches, swelling, redness, or burn marks, all of which would be expected if Ruzcek's account were true. (Compl. ¶¶ 25, 27, 28, 30.) Further, there was no forensic evidence to support Ruzcek's claims. No traces of Jovanovic's DNA were found on the victim, her clothing, or any of the undergarments she wore on the night of the alleged assault. (Compl. ¶ 31.) No blood was found on any of the victim's clothes, no ligature marks upon her body, and no abrasions about her mouth. (Compl. ¶¶ 33, 35-36.) Hair and fiber tests showed no signs of a violent struggle or sexual assault. (Compl. ¶ 37.)

Ruzcek's allegations were questionable in other ways as well. She had given contradictory accounts of the alleged assault to Bonilla, "changing critical facts every time she recounted the event." (Compl. ¶¶ 39, 46.) She waited four days full days before seeking medical treatment, "despite her claims that she experienced profuse bleeding, severe burns and intense pain." (Compl. ¶ 42.) Moreover, Ruzcek had "a history of making false sexual accusations, and in fact, had falsely accused her own father and uncle of sexual molestation," and a week before filing her own complaint against Jovanovic, Ruzcek had encouraged an acquaintance to file a false rape complaint against a New York University student. (Compl. ¶¶ 40-41.)

Despite the gravity of Ruzcek's allegations, Bonilla waited a full nine days before attempting to question Jovanovic. It is unclear whether Bonilla conducted any additional investigation during this nine-day period. On December 5, 1996, Bonilla went to Jovanovic's apartment and, without providing any explanation, ordered Jovanovic to accompany him to the precinct house for interrogation. (Compl. ¶¶ 17-18.) When Jovanovic requested an attorney, Bonilla placed him under arrest, charging him with Rape, Sodomy, and Unlawful Imprisonment. (Compl. ¶¶ 19, 21, 47.)

Later that same day, Bonilla and several other police officers returned to Jovanovic's apartment, searching for the items allegedly used in the assault (Compl. ¶ 49); but no such items were ever recovered from Plaintiff or his apartment. (Compl. ¶ 52.) During the search, two separate investigative teams took photographs of Jovanovic's apartment-photographs that revealed none of the items described by the alleged victim.*fn2 (Compl. ¶¶ 51, 53-54, 55.)

After searching Jovanovic's apartment, Bonilla prepared police reports containing false and misleading information regarding Jovanovic's arrest and the evidence allegedly collected at Jovanovic's apartment, which he then forwarded to the New York County District Attorney's Office. (Compl. ¶¶ 56-57.) He told prosecutors that he had observed incriminating evidence in Plaintiff's apartment, and that Jovanovic had "conspired to obstruct the police at the time of the search, and had destroyed incriminating evidence prior to the search," claims he knew to be false. (Compl. ¶¶ 58-59.) Bonilla repeated these false and misleading claims before the grand jury, the trial judge, and the petit jury. (Compl. ¶ 60.)

On December 6, 1996, Jovanovic was arraigned in the New York County Criminal Court. (Compl. ¶ 61.) Fairstein, the Chief of the Sex Crimes Unit of the New York County District Attorney's Office, personally appeared as the sole representative of that office. (Compl. ¶ 62.) Following the arraignment, Fairstein made "highly inflammatory and prejudicial remarks about Jovanovic to the press. (Compl. ¶¶ 63-64.) Fairstein was quoted 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"; "[H]e 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"; "[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." (Compl. ¶ 65.)

Fairstein's comments made the headlines of every local newspaper. For instance, one New York Post cover page featured a full page picture of Jovanovic and read, "Prosecutor: Cyber fiend struck before" and "HOW MANY MORE VICTIMS?" (Compl. ¶ 66.) 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.'"(Compl. ¶ 67.) Throughout the proceedings, Fairstein continued to provide highly damaging leaks to the press, "including but not limited to, releasing select portions of the e-mail correspondence between [Plaintiff] and [the alleged victim] which further demonized [P]laintiff." (Compl. ¶ 74.)

Coverage of the case in the press was so extensive that trial witnesses were influenced by it. "One material witness, Mary Jo Parlier Chambers, testified about critical 'facts' that she had actually learned from reading a newspaper article." (Compl. ¶ 138.) These alleged "facts" were addressed by both parties during summations, and became "the subject of a read-back requested by the jury during their deliberations." (Id.) At least three other material witnesses gave testimony tainted by the pre-trial publicity. (Compl. ¶ 139.)

On April 15, 1998, the jury convicted Jovanovic of Kidnapping in the First Degree, three counts of Sexual Abuse in the First Degree, Assault in the Second Degree, and Assault in the Third Degree. (Compl. ¶ 80.) Plaintiff was then sentenced to a term of 15 years to life in prison. (Compl. ¶ 81.) He served more than 20 months in prison. (Compl. ¶ 88.) The Appellate Division reversed Plaintiff's conviction on December 21, 1999, finding that the trial judge improperly hampered the defendant's ability to present a defense by erroneously invoking the rape-shield law, thereby denying the jury access to key evidence in the case. (Compl. ¶ 82.) See People v. Jovanovic, 263 A.D.2d 182 (1st Dep't 1999).

Anticipating a second trial, the prosecution offered Jovanovic several plea deals. The prosecution offered Jovanovic a deal wherein Jovanovic could avoid serving any further time in prison, if he would plead guilty to a single felony charge. (Compl. ¶ 83.) Maintaining his innocence, Jovanovic refused. (Compl. ¶ 84.) The prosecution then offered Jovanovic a promise of no further prison time, if he would plead guilty to a single, non-sexual, misdemeanor charge. (Id.) Again, Jovanovic refused, maintained his innocence, and insisted on a trial. (Compl. ¶ 85.) On November 1, 2001, the prosecution moved to dismiss all charges against Jovanovic. (Compl. ¶ 86.) The motion was granted and all charges were dismissed, with prejudice. (Compl. ¶¶ 86-87.)

As a result of his arrest and prosecution, Jovanovic suffered damage both to his career and to his reputation. (Compl. ¶ 91.) Prior to his arrest, Jovanovic had completed his research and written his thesis for a Ph.D. in Microbiology. As a result of his arrest on December 5, 1996, however, he was prevented from defending his thesis as scheduled on December 20, 1996. Consequently, Jovanovic was prevented from obtaining his Ph.D. for over five years, thereby losing five years of wages as a computational biologist.*fn3 (Compl. ¶ 95.)

Plaintiff also suffered physical and emotional injury. While incarcerated at Rikers Island and later at state prisons, Jovanovic was repeatedly strip-searched and humiliated. (Compl. ¶¶ 100, 115, 121, 127.) Further, Plaintiff was repeatedly threatened and attacked by fellow inmates. (Compl. ¶¶ 88-89.) On one occasion, an inmate stabbed him in the neck and slashed his throat, as a result of which Jovanovic almost died. (Compl. ¶ 90.)

Jovanovic initiated this § 1983 action on October 27, 2004. He alleges a number of constitutional violations by Bonilla and Fairstein, including false arrest, malicious prosecution, malicious abuse of process and denial of his right to a fair trial. Defendants now move for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), claiming, inter alia, that all of Jovanovic's claims are time barred, that Jovanovic has failed to adequately plead any of his claims, and that Defendants are entitled to immunity from suit.

DISCUSSION

I. STANDARD ON MOTION FOR JUDGMENT ON THE PLEADINGS

A motion for judgment on the pleadings is analyzed under the same standard as a 12(b)(6) motion to dismiss for failure to state a claim. Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994). When considering a 12(b)(6) motion, the court must accept as true all factual allegations in the complaint and draw all reasonable inferences from these allegations in the light most favorable to the plaintiff. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) (citing Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001)). The court need not accept as true, however, "conclusory allegations or legal conclusions masquerading as factual conclusions." Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d 236, 240 (2d Cir.2002) (internal quotation marks and citation omitted).

On a motion to dismiss, the plaintiff is not required to offer direct evidence of the alleged wrongful conduct. Instead, plaintiff must provide a "short and plain statement of the claim showing that he is entitled to relief." Fed. R. Civ. P. 8(a)(2); Swierkiewicz v. Sorema, 534 U.S. 506, 512 (2002). "A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (emphasis added).

In reviewing Defendants' motion, the Court is not limited to the four corners of the complaint, as Jovanovic urges. Rather, the Court may also consider as part of the complaint "any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference." Chambers, 282 F.3d at 152 (quoting Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995) (per curiam)). Further, the court may consider documents that are in the public record, and of which judicial notice may be taken under Federal Rule of Evidence 201. See Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 75 (2d Cir. 1998); Kramer v. Time Warner, Inc., 937 F.2d 767,773 (2d Cir. 1991).

"'When a plaintiff chooses not to attach to the complaint or incorporate by reference a document upon which it solely relies and which is integral to the complaint,' the court may nevertheless take the document into consideration in deciding [a] motion to dismiss without converting the proceeding to one for summary judgment." Int'l Audiotext Network, 62 F.3d at 72 (quoting Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991)). The Court may not, however, consider a document merely because a plaintiff possesses the document or has notice of its existence; plaintiff's reliance on the document in preparing the complaint is the determinative factor. See Chambers, 282 F.3d at 153 & n.3.

While Jovanovic did not attach any documents to his complaint, he refers at length to Ruzcek's statement to Bonilla, repeating most of her allegations. Clearly, Jovanovic had actual notice of all the information contained in the statement and has relied on it in framing his complaint. Thus, the Court may consider it in deciding Defendants' motion. Plaintiff also refers to what happened at the arraignment, the grand jury indictment, the trial, and the appeal, and he directly quotes from the Appellate Division's decision reversing his conviction. The Court will therefore take judicial notice of these documents and proceedings. The Court will consider these items only for the fact that they exist, however, and not for the truth of the facts set forth therein. See Fed. R. Evid. 201(b)(2); Vasquez v. City of New York, No. 99 Civ. 4606, 2000 WL 869492, at 1 n.1 (S.D.N.Y. June 29, 2000) (relying on public documents when considering motion to dismiss, but only for the fact that they exist).

II. CLAIMS AGAINST DETECTIVE MILTON BONILLA

A. False Arrest

1. Statute of Limitations

Defendant urges the Court to dismiss Plaintiff's claim for false arrest as time barred by the applicable statute of limitations. The Court declines to do so. The statute of limitations for § 1983 claims brought in New York is three years. Owens v. Okure, 488 U.S. 235, 250-51 (1989). "[A]lthough New York law provides the applicable statute of limitations, federal law governs the question of when a false arrest claim accrues." Covington v. City of New York, 171 F.3d 117, 121 (2d Cir. 1999). Under federal law, "the time of accrual [is usually] that point in time when the plaintiff knows or has reason to know of the injury which is the basis of his action." Id. (quoting Singleton v. City of New York, 632 F.2d 185, 191 (2d Cir. 1980) (internal quotation marks omitted)). Therefore, claims for false arrest ordinarily accrue at the time of the arrest. See Covington, 171 F.3d at 123. Where a § 1983 action is attributable to an unconstitutional conviction or sentence, however, the action does not accrue until the conviction or sentence has been invalidated. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). "[T]he rationale for tolling the statute is to 'avoid[] parallel litigation over the issues of probable cause and guilt'"; a rationale that applies with equal force to claims of false arrest. Covington, 171 F.3d at 124 (quoting Heck, 512 U.S. at 484).

Heck teaches that on-going criminal prosecutions should not be handicapped by contemporaneous, parallel § 1983 actions. This common sense rule has a limited exception, which the Defendants suggest should be used. Because the false arrest claim would not necessarily undermine the conviction, the Defendants argue that the statute of limitation should commence running at the time of the arrest. While it is difficult to imagine Defendants urging this proposition, had Jovanovic begun his § 1983 action after the conviction was reversed in 1999, it suffices to say that at this early stage in the litigation, it is impossible to determine whether success on Jovanovic's false arrest claim would "necessarily imply the invalidity of his conviction and sentence." Heck, 512 U.S. 487. To make this determination, the Court must know what evidence the prosecution used to establish its case and what evidence the police obtained during the alleged false arrest. See Covington, 171 F.3d at 123. The Court is unable to glean this information from the complaint and incorporated documents. Therefore, dismissing Jovanovic's false arrest claim at this juncture, without giving him an opportunity to conduct discovery on this matter, would be ...


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