Dr. Olivеr JOVANOVIC, Plaintiff-Appellant, v. CITY OF NEW YORK, Milton Bonilla, Shield No. 61, individually and in his official capacity, Linda Fairstein, New York County Assistant District Attorney, individually and in her official capacity, Defendants-Appellees, Gail Heatherly, New York County Assistant District Attorney, individually and in her official capacity, Defendant.
No. 10-4398-cv.
United States Court of Appeals, Second Circuit.
June 20, 2012.
486 Fed. Appx. 149
We have considered the defendants-appellants’ remaining arguments and find them to be without merit. For the foregoing reasons we AFFIRM the judgment of the district court and DISMISS without prejudice Abad‘s ineffective assistance of counsel claim.
Diarmuid White (Brendan White, on the brief), White & White, New York, NY, for Appellant.
Karen M. Griffin (Francis F. Caputo, Arthur G. Larkin, on the brief), for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, NY, for Appellees.
PRESENT: DENNIS JACOBS, Chief Judge, JOHN M. WALKER, JR. and RICHARD C. WESLEY, Circuit Judges.
SUMMARY ORDER
Plaintiff Oliver Jovanovic appeals from a judgment entered by the United States District Court fоr the Southern District of New York (Crotty, J.), dismissing on summary judgment his civil rights claims against a police officer, a prosecutor, and the City of New York. We assume the parties’ familiarity with the facts, procedural history, and issues presented on appeal.
A grand jury indicted Jovanovic on December 13, 1996 and added charges on December 19, 1996. Only Rzucek and Bonilla testified before thе grand jury. Subsequently Jovanovic was convicted of kidnapping, sexual abuse, and assault, and sentenced to fifteen years to life in prison.
On December 21, 1999—after Jovanоvic had spent nearly twenty months in prison—the Appellate Division, First Department, of the New York Supreme Court vacated the conviction because the trial court had excluded evidence that disabled Jovanovic from proving that he “had reason to believe, prior to their meeting, that they both had intended to participate in consensual, non-violent sadomasochism that night.” People v. Jovanovic, 263 A.D.2d 182, 700 N.Y.S.2d 156, 164 (1st Dep‘t 1999). The excluded evidence included emails and chats suggesting that Ruczek was seеking such an encounter. Id.
After the state declined to retry Jovanovic, he filed this civil rights action pursuant to
Malicious Prosecution (Bonilla). An element of any malicious prosеcution claim is the absence of probable cause. See Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003). The detailed account given by Rzucek—without any obvious reason for skepticism—provided sufficient probable cause. See Curley v. Vill. of Suffern, 268 F.3d 65, 70 (2d Cir. 2001) (“When information is received from a putative victim or an eyewitness, probable cause exists unless the circumstances raise doubt as to the person‘s veracity.” (citation omitted)). The circumstances of this case did not require further investigation to support probable cause. See Panetta v. Crowley, 460 F.3d 388, 396 (2d Cir. 2006); Ricсiuti v. N.Y.C. Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997).
Fair Trial (Bonilla). Jovanovic claims that he was deprived of a fair trial by Bonilla‘s alleged lie that corroborative evidence had been removed from Jovanovic‘s apartment between the time of his arrest and the time Bonilla executed a search warrant.1 He raises the issue in only a perfunctory manner on appeal; but еven if it were properly raised it would be unavailing. A person suffers a constitutional violation if an (1) investigating official (2) fabricates evidence (3) that is likely to influence a jury‘s decision, (4) forwards that information to prosecutors, and (5) the plaintiff suffers a deprivation of liberty as a result. See Jocks v. Tavernier, 316 F.3d 128, 138 (2d Cir. 2003); Ricciuti, 124 F.3d at 130. Probable cause is not a defense. See Ricciuti, 124 F.3d at 129-130. Jovanovic cannot show causation—i.e., that the alleged fabrication of evidence led to a deprivation of his liberty. That is because the only avenue by which the testimony could reach the jury was through Bonilla‘s testimony, for which he enjoys absolute immunity under Briscoe v. LaHue, 460 U.S. 325, 335-336 (1983); see also Rehberg v. Paulk, — U.S. —, 132 S. Ct. 1497, 1505, 182 L. Ed. 2d 593 (2012) (extending Briscoe to grand jury proceedings). The cases relied upon by Jovanovic are not to the contrary. Ricciuti addressed only whether qualified immunity was available to police offers who willfully fabricated evidence. Ricciuti, 124 F.3d at 130. Furthermore, the allegedly fabricated admissions in Ricciuti caused the plaintiffs to be charged with a more serious crime and delayеd their opportunity to be freed on bail. See id. at 126. In Jocks, the statement at issue was a written admission that was forwarded to prosecutors. Jocks, 316 F.3d at 138.
Fair Trial (Fairstein). Jovanovic contends that Fairstein deprived him of his right to a fair trial by making inflammatory public statements. In order to succeed on such a claim, a plaintiff must prove (1) the prosecutor made impropеr public statements or leaks (i.e., those that contravene the canons of ethics or other standards for prosecutorial conduct); (2) the improper disclоsure in fact deprived the defendant of a fair trial; and (3)
As to the impact on the grand jury, summary judgment was appropriate. A less searching scrutiny of procedural protections is warranted for grand jury proceedings than for a criminal trial. See United States v. York, 428 F.3d 1325, 1331 (11th Cir. 2005); cf. United States v. Calandra, 414 U.S. 338, 349 (1974) (rejecting use of exclusionary rule in grand jury proceedings and noting that “the grand jury does not finаlly adjudicate guilt or innocence, it has traditionally been allowed to pursue its investigative and accusatorial functions unimpeded by the evidentiary and procedural restrictions applicable to a criminal trial“). Jovanovic has not sustained his burden of addressing evidence of prejudice. And it matters that the prosecutor instruсted the grand jury to disregard all media coverage and that the law required it to base its conclusion solely on the evidence presented.
Summary judgment was also aрpropriate on Jovanovic‘s claim that the pretrial publicity caused a witness to come forward and perjure herself at trial. Jovanovic must be able to prove that the injury complained of “was not too remote a consequence of the improper leaks to the press.” Powers, 728 F.2d at 105 (internal quotation marks omitted). Thе witness‘s perjury—accepting Jovanovic‘s allegations—was too remote of a consequence of Fairstein‘s statements.
Finally, because we found that Bonillа‘s investigation was not so deficient as to render him potentially liable for malicious prosecution, Jovanovic‘s municipal liability claim necessarily fails. See Wray v. City of New York, 490 F.3d 189, 196 (2d Cir. 2007); see also City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986).
Finding nо merit in Jovanovic‘s remaining arguments, we hereby AFFIRM the judgment of the district court.