Case 1:04-cv-08437-PAC Document 40 Filed 09/18/06 Page 1 of 34 Case 1:04-cv-08437-PAC Document 40 Filed 09/18/06 Page 2 of 34 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 District 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. -2- Case 1:04-cv-08437-PAC Document 40 Filed 09/18/06 Page 4 of 34 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, counseling and 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 Police Department, arrived at plaintiff’s apartment. -3- Case 1:04-cv-08437-PAC Document 40 Filed 09/18/06 Page 5 of 34 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 to provide 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. from the University of Chicago, and an M.A. and M.Ph. from Columbia 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 him that 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. -4- Case 1:04-cv-08437-PAC Document 40 Filed 09/18/06 Page 6 of 34 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 -5- Case 1:04-cv-08437-PAC Document 40 Filed 09/18/06 Page 7 of 34 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 complaint 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.