Defendant Constant Bahi’s Motion to Dismiss Denied by Federal Court

David E. Mann & Vera D. Mann, Plaintiffs, v. Constant Ottro Bahi, et al., Defendants.

In the United States District Court for the District of Columbia.

Civil Action No. 16-949 (JDB)


Drs. David Mann and Vera Mann are an elderly couple who claim they were swindled and robbed by the nurses they had trusted to provide needed nursing care in their home. They hired these health care professionals—Constant Ottro Bahi, Marie Poteman, and Mariatu Sesay—through a company that provides a listing of licensed nurses, Tri-Cities Nurse Registry and Helpmates. The Manns bring multiple intentional and unintentional tort claims against the nurses and the company, and bring a Consumer Protection Procedures Act claim against the company. One of the nurses, Bahi, moves to dismiss Count V, intentional infliction of emotional distress, against him because he argues that the Manns have failed to state facts sufficient to support that claim. As explained below, the Court will deny Bahi’s motion to dismiss Count V.


The High Court

April 3, 2015

levin & curlett dsc_4964

Baltimore asks high court to dismiss $15M suit by freed man

By: Steve Lash  Daily Record Legal Affairs Writer March 26, 2015

The Baltimore Police Department and three officers have asked the U.S. Supreme Court to throw out a $15 million lawsuit brought against them by a man who served 20 years in prison for murder before DNA tests led to his freedom. In seeking the high court’s review, the department and officers argue that James Owens waited too long to bring his lawsuit alleging they withheld exculpatory evidence from his 1988 trial. They also say they should have “qualified immunity” from suit because in 1988 the law was not clearly established that individual police officers had a duty to bring forward exculpatory evidence.

U.S. District Judge George L. Russell III in Baltimore had dismissed Owens’  lawsuit in 2012 after finding it was filed late and that the department and officers had qualified immunity anyway. But the 4th U.S. Circuit Court of Appeals revived the litigation last September, saying no immunity existed due to their alleged constitutional violation. The 4th Circuit also rejected Russell’s conclusion that Owens waited too long before filing suit on Oct. 12, 2011. Russell had held that the three-year statute of limitations began to run on June 4, 2007, when Owens’ conviction was vacated due to the newly discovered DNA evidence. But the 4th Circuit said the three-year clock did not start until Oct. 15, 2008 — when the Baltimore City state’s attorney chose not to retry Owens. Thus, Owens met the filing deadline with three days to spare in 2011, the 4th Circuit added, prompting the appeal.

The Supreme Court has not stated when it will vote on the department and officers’ request for review. The case is Baltimore Police Department et al. v. Owens, No. 14-887.

Charles N. Curlett Jr., an attorney for Owens, called it “most unfortunate” that Baltimore has been unwilling to compensate Owens for its flawed and constitutionally suspect prosecution of him. The city is “digging in its heels to avoid paying anything at all,” Curlett, of Levin & Curlett LLC in Baltimore, said Thursday. “We would like to see a change in their posture but at the moment it seems they want to litigate this all the way to the Supreme Court.”

Suzanne Sangree, of the Baltimore City Law Department, said the high-court appeal “has nothing to do with an effort to deprive Mr. Owens of what he may be entitled to.” The city’s focus is on ensuring that police departments and their officers have qualified immunity and cannot be held liable for failing to share exculpatory evidence with the defense, an obligation the Supreme Court has long held belongs to prosecutors, Sangree said Thursday. “Police officers are not lawyers,” added Sangree, the law department’s chief of police legal affairs. “They can’t make that sophisticated legal judgment of what is potentially exculpatory.”

Owens brought suit under Section 1983 of the 1871 federal Civil Rights Act, which prohibits government employees from violating the constitutional rights of individuals. Owens alleges the withholding of exculpatory evidence by officers Jay Landsman, Thomas Pelligrini and Gary Dunnigan violated his right to that information under the Supreme Court’s 1963 decision in Brady v. Maryland. In seeking Supreme Court review, the department and officers say the justices have already held — in their 1994 decision in Heck v. Humphrey — that the three-year filing clock on Brady claims starts when the underlying conviction is invalidated and not later when the prosecution drops the case. Four circuit courts of appeal have ruled similarly, making the 4th Circuit’s decision an outlier, Sangree wrote in the petition for review. “This divergence of opinions reflects confusion on the part of the courts of appeal that can only be resolved by this court,” Sangree added in the petition to the justices. Sangree also made the qualified-immunity argument, saying police departments and their officers had no reason to suspect, particularly in 1988, that they were obliged to share exculpatory evidence with the defense. “Rather than place an independent burden on police officers, this court has instead always required the prosecution to create and implement procedures to ensure that police officers disgorge to the prosecution all relevant information in a criminal case, including importantly, all exculpatory evidence,” Sangree wrote. “The 4th Circuit’s ruling is therefore at odds with the decision of this court, and certiorari is appropriate and necessary to correct the error.”

But Owens’ attorneys dispute Sangree’s interpretation of prior rulings, telling the high court that the three-year clock cannot start while a defendant remains under the threat of a retrial. “No court of appeals has held that the statute of limitations on a Brady claim begins to run while the plaintiff remains subject to pending criminal proceedings in which the Brady violation may recur through the introduction of evidence tainted by the violation,” Curlett and his co-counsel wrote. With regard to qualified immunity, the attorneys say the legal issue is not whether the police had a clearly established duty to share exculpatory evidence with the defense, but whether Owens had a clearly established right to that evidence. “This court has noted repeatedly that the scope of the Brady obligation encompasses not only material known to prosecutors but also material known to police,” the lawyers wrote. Curlett was joined on the brief by attorneys from Brown, Goldstein & Levy LLP in Baltimore and Public Citizen Ligation Group in Washington, D.C.

Owens was convicted of felony murder and burglary in the Aug. 2, 1987, killing of Colleen Williar. Owens was sentenced to life in prison. In his lawsuit, Owens alleges the police officers knew the prosecution’s star witness — James A. Thompson — had told at least four different and inconsistent stories about Owens’ involvement. Thompson eventually testified that Owens had handed him the murder weapon, a knife, days after Williar was killed. Thompson said Owens told him he’d had sex with Williar. But Owens’ boss had told detectives Owens was at work when that conversation supposedly occurred – information the police never shared with defense counsel, Owens’ lawsuit alleges.



February 17, 2015

Lance Armstrong loses $10 million arbitration ruling.

The New York Times reports that an arbitration panel has ordered the cyclist to pay $10 million in a fraud dispute with SCA Promotions citing an “unparalleled pageant of perjury, fraud and conspiracy” related to the cover-up of Armstrong’s use of performance enhancing drugs.  Armstrong’s lawyer stated that the ruling is “contrary to Texas law” and predicted it would be overturned in court.  Such confidence is, in all likelihood, misplaced.  Courts routinely uphold awards even when the law is misapplied by arbitrators.  The standard to throw out an arbitration award requires the panel to have acted “in manifest disregard of the law.”  That standard is rarely met.  If I were a betting man, I’d wager Armstrong eventually writes the check.