9th Circuit Reverses and Remands Dismissal of Inmates’ Claims Against USA

May 20, 2016 – After over 3 years since filing their complaints, plaintiffs, in the consolidated cases of Edison v. USA and Nuwintore v. USA, were allowed to move forward litigating their claims against the USA. The 9th Circuit reversed the District Court’s dismissal of these inmates’ claims and ruled that the USA can be liable for inmates acquiring Valley Fever as a result of their incarceration at the federal correctional facility located in Taft, California.  

           In its opinion, the 9th Circuit provided a detailed history of the Valley Fever epidemic, its lifelong injury, and its heightened risk to inmates of African and Filipino descent (like our clients). Over 40 inmates of African descent have died from Valley Fever in the past 7 years. Over 800 inmates are infected and require lifelong care. The majority are in the state system however, and this opinion is limited to those infected in the federal facility (Taft). 

           The USA contracted with Management & Training Corporation (also defendants in these matters), a private company, to operate and oversee the day-to-day activities of Taft Correctional Facility. However, the 9th Circuit disagreed with defendant USA and the lower court in determining government immunity against plaintiffs’ claims and held that the Independent Contractor Exception to the Federal Tort Claims Act did not apply here as the USA retained some responsibilities. 

            In reversing the District Court’s dismissal based on sovereign immunity, the 9th Circuit agreed that the USA can be liable for plaintiffs’ claims on three separate grounds: 1) failure to warn inmates of the disease; 2) failure to take preventative measures (including building structures to decrease risk of exposure); and 3) failure to properly respond to the epidemic.

            Ian Wallach and Jason Feldman argued on behalf of plaintiffs before the 9th Circuit in these matters on February 8, 2016.  The arguments can viewed here and the Court’s opinion read here. 

             The decision was covered by the Associated Press and other agencies. Articles include:

• Monterey Herald, May 20, 2016 “Appeals court reinstates Valley Fever suits against US” (click here for article) 
• SF Gate, May 20, 2016 “U.S. court allows private-prison inmates to sue over valley fever” (click here for article)
• UC Hastings Law, May 20, 2016Q&A: Ian Wallach ’99 on today’s 9th Circuit reversal of the District Court’s dismissal of inmates’ claims in the consolidated cases of Edison v. USA and Nuwintore v. USA (click here for article) 
• Courthouse News Service, May 23, 2016, “U.S.A. Is Liable for Valley Fever in Prison” (Ian Wallach quoted in article) (click here for article) 
• Los Angeles Daily Journal, May 23, 2016, “Valley Fever suit by prisoners revived” (click here for article)

            In addition, based on his experience leading up to this ruling, Ian Wallach wrote an article that was published by the California Lawyer providing tips on complaint drafting when bringing claims under the Federal Tort Claims Act.  

Plaintiffs are represented by Feldman & Wallach, LLP, Arias Ozzello & Gignac, LLP and Boucher, LLP.

In A Case Related To Cheerleaders Being Ordered To Fist-Fight By Their Coach, Los Angeles Superior Court Allows The Case To Proceed To Trial, And Allows The Cheerleader To Assert A Claim That Her Right To Be Peaceable And Secure On Campus Was Violated

Los Angeles Superior Court Holds That Sufficient Questions Of Material Fact Exist For Matter To Proceed To Trial On All Causes Of Action, Including Negligence And A Civil Rights Violation

            March 11, 2015, In Humes v. Palisades Charter High School, Case No. BC508906, the Plaintiff alleges that her cheerleading coach ordered her and another cheerleader to engage in a fist-fight, to “fight music”, in front of her fellow cheerleaders. This was to resolve a dispute about a boy that students had been following on “Twitter.” The case was filed in 2013 and is approaching trial.

The defendant – Palisades Charter High School – moved for summary judgment and dismissal of the case arguing that (a) the cheerleaders wanted to fight; (b) that the school couldn’t have foreseen that the cheerleading coach would order the cheerleaders to fight; and (c) that the civil rights claim should be dismissed (arguing that section 52.1, commonly called the “Bane Act”, required racial bias).

On Tuesday, March 10, the Court denied the motion in its entirety, stating “Specifically, both Principal Pamela McGee and Assistant Principal Dean Russel Howard were allegedly made aware of complaints regarding [the coach’s] alleged bullying of students, lack of proper supervision of students, emotional immaturity, and her propensity to become too friendly with her cheer squad members. Thus, these facts relate directly to [the coach’s] alleged incompetence to be a cheer coach and to supervise students. The alleged injury suffered by plaintiff stemmed directly from [the coach’s] alleged improper supervision of students by ordering two students to engage in a violent fistfight during cheer practice.”

Trial is set to begin on July 7.

A copy of the Court’s Order is available upon request.

Plaintiff is represented by Feldman & Wallach and the Law Office of Jovan Blacknell.

KTLA covered the matter when it unfolded in 2013:

http://ktla.com/2013/02/20/high-school-coach-accused-of-forcing-cheerleaders-to-fight/

http://www.youtube.com/watch?v=sO9uY9fqEKQ

Ian Wallach quoted in the Christian Science Monitor

Ian Wallach comments on California Attorney General’s proposed changes to money laundering penalties in report on Cyber-Crime. To read the full article, click here: http://www.csmonitor.com/World/Security-Watch/Cyber-Conflict-Monitor/2014/0320/California-leads-states-in-identify-fraud-and-computer-hackings-report-says

March 17, 2014  — Los Angeles, CA.  Mr. Wallach’s Client was accused of attempting to break into a building, of threatening the tenants, and of dissuading them from calling the police.  The client was charged with violations of Penal Code Sections 136.1 and 422, both of which are strikes, and a misdemeanor charge of breaking a window.  The client was acquitted on March 17, 2014 on all felony and strike charges, and received a sentence of time served for breaking the window.

Court Denies Private Prison Operator’s Motion To Dismiss Valley Fever Case

March 13, 2014, Bakersfield, CA
 
In an action arising out of another infection of disseminated coccidiodomycosis at the federal Taft Correctional Institute in Bakersfield, California, the Magistrate issued her findings and recommendations, stating that the plaintiff had pled a viable cause of action and that Management and Training Corporation – who operated the facility – could not escape liability by claiming it had no control over the facility.  It was also clarified that the acquisition of disseminated valley fever constitutes a viable cause of action.  The ruling was on defendant Management & Training Corporation’s Motion to Dismiss in Nuwintore v. USA, MTC, 1:13-cv-00967-AWI-JLT.

Friday, December 27, 2013, Attempted Armed Robbery Case Dismissed On Day Of Trial

Compton Courthouse.  Ian Wallach’s client faced 21 years of potential incarceration.  Certain exculpatory evidence (including a recorded statement from the victim identifying the armed assailant in clothes worn by someone else that was arrested with the client but not charged) was produced extremely late (three court days prior to trial).  The client’s version of events was consistent with the late-produced exculpatory evidence.  Moreover, the victim was not apparently cooperating with the prosecution.  Rather than trail the matter for three days to search for the victim, the District Attorney’s office admirably chose to dismiss the case, and the client – who had been incarcerated for almost five months – went home.

Thursday, December 19, 2013, Felon-With-Firearm Case Dismissed On Day Of Trial

Compton Courthouse.  Ian Wallach’s client was charged with Felon In Possession Of A Firearm.  The evidence included an alleged statement leading to the discovery of a weapon during the Officer’s execution of lawful search warrant.  A suppression motion took place.  The Detective from Hawthorne admirably acknowledged that the alleged statement was made while the client was in handcuffs, and that the client had not been mirandized.  Accordingly, the statement was suppressed (but the gun was not, pursuant to United States v. Patane, 542 U.S. 630 (2004) , a troubling decision that allows physical “fruits of the poisonous tree” to come into evidence, limiting Miranda to statements).

The Deputy District Attorney acted with complete integrity, and rather than pursue the case without the statement (which would have made a conviction uncertain), they chose to dismiss the case on the day of trial.

Dismissal with Finding of Factual Innocence

December 5, 2013,

Jason Feldman negotiated a rare plea deal that involved a dismissal with a finding of factual innocence.  The defendant was charged with Felony Vandalism (Penal Code § 59(a)).  However, day of trial, Mr. Feldman arranged for a plea of no contest to Misdemeanor Disturbing the Peace (Penal Code § 415).  The defendant was ordered to attend 10 anger management classes and, at sentencing next month, the charge will be dismissed with a finding of factual innocence.

A finding of factual innocence is a godsend to someone who has been wrongfully arrested. And for anyone who may have been properly apprehended but was later acquitted of the charges, a finding of factual innocence provides something a jury’s verdict cannot.   When a jury acquits someone, it simply means that the prosecution did not meet the burden of proof for guilt; it does not necessarily mean the defendant didn’t commit the crime.

Upon a finding of factual innocence, the law states that “the arrest shall be deemed not to have occurred and the person may answer accordingly any question relating to its occurrence.” In addition, the statute requires the law enforcement agency that has jurisdiction over the offense (or the court) to issue a written declaration to the arrestee stating that he or she is factually innocent (Penal Code § 851.8(f)).

A finding of factual innocence prevents current and potential employers, as well as anyone else seeking public records, from having access to any of the records that reveal the arrest. Although Labor Code § 432.7(a) generally prohibits an employer from asking about any arrest that did not result in conviction, job inquiries are only the tip of the iceberg. An arrest record can have a dramatic impact on a host of matters: child custody, adoption, school admission, licensing, credit, insurance premiums, and—perhaps most important of all—a person’s reputation in the community.

2 strikes stricken and client given probation

November 15, 2013

With several motions pending, client with two prior strikes given probation and time served

 November 15, 2013

With Romero and Pitchess motions pending as well as a motion to suppress evidence and a motion to compel discovery on the eve of trial for a client charged with Possession of Firearm by a Felon, Feldman & Wallach received the discovery at issue and arranged for two prior strike offenses which occurred in the past five years to be stricken for purposes of sentencing. 

The end result was the client was granted probation and released from custody that same day.  He called the office from a movie theatre that night with his mother.  The client’s mother, a government worker, thanked us for returning her son home and called the result a miracle.        

Suppression Motion Granted On Day 1 Of Trial — Case Dismisssed

 November 18, 2013 — Suppression Motion Granted — Case Dismissed

Our client’s motion to suppress evidence was granted today in the LAX courthouse.  The client was charged with possession of a concealed weapon (Pen. Code Section 21310).  Settlement discussions had not proved fruitful and the matter was proceeding to trial.  The client testified during this suppression motion (which is unusual) and the Court found that the client’s testimony was as credible as that of the officers, and therefore the Prosecution had not met its burden of proof.  The matter was dismissed.

And a nice touch was when the Court ordered the Police Department to return the knife at issue.  It’s good to see a job done to its finish.