Docket – December 6, 2018

4th U.S. Circuit Court of Appeals

Wicomico Nursing Home v. Padilla (P), 4th Cir. (Agee) from DMD at Baltimore (Bennett).

Plaintiff nursing homes allege that Maryland agency heads wrongfully denied their residents Medicaid benefits, in violation of the 14th Amendment and several federal statutes. The district court properly dismissed their complaint for lack of subject-matter jurisdiction and failure to state a claim upon which relief could be granted.

The nursing homes failed to allege that the residents are disabled within the meaning of the Americans with Disabilities Act. They also failed to plead that any resident’s alleged disability motivated the agencies to deny Medicaid benefits.


Mauricio-Vasquez v. Whitaker (P), 4th Cir. (Diaz) from BIA.

Contrary to the Board of Immigration Appeals’ finding, the Department of Homeland Security did not prove by clear and convincing evidence that the petitioner’s date of admission to the U.S. was less than five years before he committed Virginia felony abduction.

It was the Department’s burden to prove that the petitioner last entered the U.S. in 2000 without inspection and was therefore not admitted until 2008; this determines whether his 2012 felony abduction offense fell within the five-year window for removability. But the record contains essentially unrebutted evidence showing instead that he was in Peru from 1999 to 2001 and presented himself for inspection in 2002. This evidence would compel any reasonable adjudicator to conclude that the Department failed to prove the petitioner was admitted in 2008. He is therefore not removable.

Accordingly, the petition for review of his removability determination is granted, and his removal order is vacated. Remanded to the Board to terminate removal proceedings.

Supreme Court of Virginia

Bergano v. City of Va. Beach (P), SCV (McCullough) from Va. Beach (Padrick).

In providing its VFOIA responses regarding its legal fees, the City of Virginia Beach’s extensive redactions were not justified by the attorney-client and work-product exceptions to the extent the circuit court held they were.

For example, the court is at a loss for why a cursory billing entry for “trial preparation and document review” would fall under either VFOIA exception. Similarly, disclosing the entry for “attend trial (Day One)” would not in any way reveal confidential client communications, analytical work product, motives for litigation, or compromise litigation strategy. The redacted records include additional similar entries.

Reversed and remanded.

Frouz v. Commonwealth (P), SCV (Powell) from Fairfax (Gardiner).

An appeal relating to dangerous dogs under Code § 3.2-6540(B) is civil in nature and, by operation of Code § 8.01-670, the Supreme court has appellate jurisdiction.

Here, the appellant owned the house and sent emails to neighbors regarding the dog’s attitude toward others. These communications could be viewed as an attempt to guard, protect, and/or maintain the dog. The appellant also referred to the animal as “my dog” after the attack and during her testimony. Based on this evidence, the circuit court’s determination that the appellant was the custodian or harborer of the dog was not plainly wrong.


Jones v. Commonwealth (P), SCV (McCullough) from CAV.

The plain language of Code § 18.2-154, defining the offense of shooting at an occupied vehicle, doesn’t require proof that the shooter was located outside the vehicle. Therefore, the offense can encompass the appellant’s firing multiple shots inside the occupied vehicle.

Conviction affirmed.

Gordon v. Kiser (P), SCV (Lacy) from Wise (Dotson).

A dismissal entered on a motion for summary judgment may qualify as a “strike” if, on the face of the order, it is clear that the dismissed case was frivolous, malicious or failed to state a claim. Code § 8.01-692 was enacted to control the volume of prisoner lawsuits overburdening the resources of the … courts” and to “reduce the number of frivolous lawsuits.

Therefore, the circuit court did not err in denying a motion for nonsuit and prospectively denying an inmate in forma pauperis status pursuant to that statute, because the appellant has had at least three cases dismissed for failure to state a claim.

However, the court vacates the imposition of pre-service review and summary dismissal on any future complaints Gordon might file in the Wise County Circuit Court. That portion of the judgment is remanded for consideration of the four-factor test established in Adkins v. CP/IPERS Arlington Hotel LLC, 293 Va. 446 (2017).

Affirmed in part, vacated in part, and remanded.

Martinez v. Commonwealth (P), SCV (per curiam) from Williamsburg/James City.

Determination of competency to stand trial is part of a purely criminal process, and the appeal from such determination is criminal in nature. Therefore, the Supreme Court lacks jurisdiction to consider this direct appeal.

Following the appellant’s indictment for two counts of capital murder, the circuit court concluded that he lacked the capacity to understand the proceedings against him or to assist in his own defense. He is deaf and mute. After seven years of in-patient treatment, the court denied the appellant’s motion to dismiss the indictments, finding that he remained incompetent to stand trial, that his continued treatment was medically appropriate, and that he presents a danger to himself and others. Review of the court’s decisions in this regard lies first with the Court of Appeals, not the Supreme Court.

Because there has been no final conviction in the circuit court, transfer to the Court of Appeals is not appropriate.

Appeal dismissed.

Virginia Circuit Court

A plaintiff doctor claims tortious interference with his contractual relationship and business expectancy, alleging that the defendant hospital knew of his memorandum of understanding with a physicians’ practice group and directed the group to terminate it without legal justification. His complaint also alleges that the group did so at the hospital’s direction and to keep the plaintiff from realizing the compensation he would have received otherwise. These allegations are sufficient to survive demurrer.

Categories: Daily Dockets

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