Today's New York Law Journal reports as a Decision of Interest the SDNY's denial of the City's motion to dismiss the claims of H&F client Jonathan Harris in Harris v. City of New York.
The Court was not persuaded by defendants' motion to dismiss for failure to prosecute:
Defendants’ argument is as specious as it is illogical. The privilege against self-incrimination may be invoked by an individual in any civil [action] when the answer may tend to incriminate in future or pending criminal proceedings. Baxter v. Palmigiano, 425 U.S. 308, 316 (1976) (citing Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)). While invoking privilege in a civil case can have implications for a litigant, exercising one’s constitutional right against self-incrimination is not “failing to prosecute a case.” Failing to prosecute is defined in Federal Rule of Civil Procedure 41(b) and the numerous cases that have been decided thereunder all of which Defendants completely ignore in their utterly frivolous motion. There are clearly established standards for deciding whether to dismiss case for failure to prosecute, see United States ex rel. Drake v. Norden Sys, Inc., 375 F.3d 248, 254 (2d Cir. 2004); Fed. R. Civ. P. 41(b), and the City has not indicated that any of those standards, let alone all or most of them, is met here.
The Court sustained plaintiff's fabrication of evidence claim:
A plaintiff can establish a fabricated-evidence claim by proving that a police officer knowingly supplied false facts to a prosecutor. Ricciuti, 124 F.3d at 130. The claim accrues “when fabricated information is forwarded to a prosecutor and results in the deprivation of a defendant’s liberty.” Soomro v. City of NY, No. 13-cv-0187, 2016 WL 1266069, at *5 (S.D.N.Y. Mar. 30, 2016). Probable cause is no defense to such a claim, Zahra, 221 F.3d at 355, and qualified immunity is unavailable where “the action violates an accused’s clearly established constitutional rights, and no reasonably competent police officer could believe otherwise,” Ricciuti, 124 F.3d at 130.
Construing the evidence in the light most favorable to Plaintiff and drawing all reasonable inferences in his favor, I find that there are genuine issues of material fact as to whether the police fabricated evidence in order to get the District Attorney to charge Plaintiff. Plaintiff asserts that Defendants told the Assistant District Attorney that the scalpel belonged to Plaintiff. But on the facts presently before me there is absolutely no basis on which a police officer could have concluded that the scalpel belonged to Plaintiff. Plaintiff did not have it on his person; he was not wearing and he denied owning the jacket in which it was found; and there is no independent evidence that his denial was untrue. Therefore, Plaintiff has stated a claim for denial of his right to a fair trial (even though he never had a trial, because his case was dismissed well before trial). And that claim cannot be summarily dismissed on the ground of qualified immunity, because no reasonable police officer could have thought that telling the District Attorney’s office that Plaintiff possessed the “weapon” when the police had no such evidence was permissible police behavior.
Read the entire decision here.