Opinion
Case No. 14-cv-04154 VC
08-10-2015
DAVID MCDONALD, Plaintiff, v. COUNTY OF MARIN, WEST CONTRA COSTA NARCOTICS ENFORCEMENT TEAM, SCOT BARR, ANTHONY SOUZA, KEITH BARROW, DAVID AUGUSTUS, JAN WYATT LUCHA, DAVID OSAKI, and DOES 6-10, Defendants.
KEKER & VAN NEST LLP JAN NIELSEN LITTLE - # 100029 jlittle@kvn.com BENJAMIN D. ROTHSTEIN - # 295720 brothstein@kvn.com 633 Battery Street San Francisco, CA 94111-1809 Telephone: 415 391 5400 Facsimile: 415 397 7188 Attorneys for Plaintiff DAVID MCDONALD SHEILA LICHTBLAU Attorneys for Defendants COUNTY OF MARIN AND DAVID AUGUSTUS
KEKER & VAN NEST LLP
JAN NIELSEN LITTLE - # 100029
jlittle@kvn.com
BENJAMIN D. ROTHSTEIN - # 295720
brothstein@kvn.com
633 Battery Street
San Francisco, CA 94111-1809
Telephone: 415 391 5400
Facsimile: 415 397 7188
Attorneys for Plaintiff DAVID MCDONALD CONSENT JUDGMENT AGAINST COUNTY OF MARIN, AND DISMISSAL OF DAVID AUGUSTUS WITH PREJUDICE Judge: The Honorable Vince Chhabria Date Filed: September 15, 2014 Trial Date: March 21, 2016
WHEREAS, Plaintiff David McDonald filed his Third Amended Complaint on January 8, 2015, alleging that Defendants County of Marin and David Augustus denied his right to freely exercise his religious beliefs by denying him a vegetarian diet while he was held in Marin County Jail in 2011, causing him personal physical injuries in the form of a loss of 48 pounds in the span of 99 days, as well as physical sickness and emotional distress arising therefrom, in violation of the Religious Land Use and Institutionalized Persons Act and the First Amendment of the United States Constitution;
WHEREAS, County of Marin and David Augustus deny Mr. McDonald was prevented from exercising his religious beliefs, deny all liability under the Religious Land Use and Institutionalized Persons Act and the First Amendment of the United States Constitution, and further deny Mr. McDonald ever expressed any religious beliefs, or suffered any damages while incarcerated for drug related charges.
WHEREAS, the parties have now agreed to resolve these claims without the need for further litigation;
WHEREAS, Defendant County of Marin has consented to entry of this Consent Judgment against it without trial or adjudication of any issue of fact or law, and to waive any appeal;
WHEREAS, Defendant County of Marin, by entering into this Consent Judgment, does not admit any liability or the allegations of the Complaint other than those facts deemed necessary to the jurisdiction of this Court.
NOW THEREFORE, without trial or adjudication of any further issue of fact or law, and upon consent of Defendant, the Court finds that there is good and sufficient cause to enter this Consent Judgment, and that it is therefore ORDERED, ADJUDGED, and DECREED:
JURISDICTION
1. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1343. The Court has personal jurisdiction over Defendants County of Marin and David Augustus. Venue is appropriate in this District pursuant to 28 U.S.C. § 1391.
FINANCIAL TERMS
2. Defendant County of Marin shall pay $150,000.00 in satisfaction of Plaintiff McDonald's claims within fifteen (15) days of the entry of this Judgment.
3. Plaintiff McDonald represents that this sum constitutes damages (other than punitive damages or wages) on account of personal physical injuries and physical sickness and emotional distress arising therefrom, as alleged in the Third Amended Complaint, and within the meaning of Section 104(a)(2) of the Internal Revenue Code of 1986, as amended. Defendant County of Marin makes no representations regarding the tax consequences, if any, of payment of the $150,000.00 judgment amount.
4. Mr. McDonald and his counsel, Keker & Van Nest LLP, further represent that Keker & Van Nest LLP's representation of Mr. McDonald in this action has at all times been and continues to be pro bono, and Mr. McDonald and his counsel hereby waive any right to seek attorneys' fees and/or costs from Defendants County of Marin or David Augustus accrued in connection with this action up until the time of entry of this Consent Judgment.
OTHER TERMS
5. Defendant David Augustus shall be dismissed from this case with prejudice. Nothing herein constitutes a judgment against Defendant Augustus.
6. Entry of this Consent Judgment shall permanently extinguish any and all claims by Plaintiff David McDonald against Defendants County of Marin and David Augustus arising from or related to the allegations in the Third Amended Complaint, including for claims known and unknown and/or for future damages. Each of the parties to this Consent Judgment expressly waives the protection of Section 1542 of the California Civil Code, and expressly waives and releases any rights or benefits arising thereunder.
7. Defendants County of Marin and David Augustus waive any right to appeal this Consent Judgment. Upon entry of this Judgment, it shall become a final, non-appealable judgment of the Court.
8. Defendants County of Marin and David Augustus shall bear their own attorneys' fees and costs associated with this litigation.
9. The Court retains jurisdiction to enforce the terms of this Consent Judgment. The parties may jointly seek to modify the terms of this Consent Judgment, subject to the approval of the Court. This Consent Judgment may be modified only by order of the Court.
* * *
WHEREAS, in consideration of the foregoing, the Court hereby ORDERS that final judgment shall be entered against Defendant County of Marin in the amount of $150,000.00, and that Defendant David Augustus shall be dismissed from this action with prejudice.
IT IS SO ORDERED. Dated: August 10, 2015
By: /s/_________
VINCE CHHABRIA
United States District Judge
Dated: August 6, 2015
KEKER & VAN NEST LLP
By: /s/ Benjamin D . Rothstein
BENJAMIN D. ROTHSTEIN
Attorneys for Plaintiff DAVID
MCDONALD
By: /s/ Sheila Lichtblau
SHEILA LICHTBLAU
Attorneys for Defendants COUNTY OF
MARIN AND DAVID AUGUSTUS