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of articles online at www.aele.org/law from the December 2002

Note: This is the online version of the print edition that is mailed to subscribers. It only summarizes the featured articles found in the other three periodicals. The clickable links to actual court decisions (or arbitration awards) are in the three online periodicals, and are NOT duplicated in this summary.

Summaries from the December 2002

Assault and Battery: Chemical

     After a four hour armed standoff and failed negotiations, it was reasonable for officers to fire tear gas into a mentally disturbed man's vehicle to extricate him after he had previously shot at police and refused to surrender. No liability for "excessive force" or subsequent confrontation that led to his death. Bayer v. City of Simi Valley, No. 01-55736, 43 Fed. Appx. 36 (9th Cir. 2002).

Assault and Battery: Handcuffs

     Mere fact that an arrestee was handcuffed did not mean that police officer acted excessively in using any amount of force. Officer was justified in using more force than would ordinarily be necessary based on arrestee's active resistance and the location of the incident in which the officer was alone at night on a "lonely stretch of country road." Youngblood v. Wood, #01-3109, 41 Fed. Appx. 894 (7th Cir. 2002).

Damages: Compensatory

     Jury's award of $250,000 in damages for past pain and suffering to motorist for injuries suffered in fight with off-duty police officer was excessive, requiring a new trial unless the plaintiff agreed to a reduction to $150,000 for that portion of the award. Becker v. City of New York, 745 N.Y.S.2d 857 (N.Y. City Civ. Ct. 2002).

Defenses: Collateral Estoppel

     Arrestee's federal civil rights lawsuit claiming that he was improperly taken into custody for pointing a gun at police officers approaching his door was barred by prior determination, during city police department firearms license revocation hearing, that the officers, rather than the arrestee, was telling the truth about the incident. Rodriguez v. City of New York, #00-9415, 41 Fed. Appx. 486 (2nd Cir. 2002).

Defenses: Eleventh Amendment Immunity

     Deputy sheriff was acting on behalf of the state in the area of state courthouse security by serving criminal trespass notices on the plaintiff, following his courthouse protest, prohibiting him from entering all state court facilities or grounds. He therefore could not be held liable, in his official capacity, for purported violations of the plaintiff's First Amendment rights, since he was not acting on behalf of the county. Huminski v. Rutland County Sheriff's Department, 213 F. Supp. 2d 520 (D. Vt. 2002).

Defenses: Indemnification

     City's refusal to indemnify officer in case where jury awarded $605,001 in excessive force lawsuit over incident in which arrestee died of brain injury was not arbitrary or capricious. City's own investigation determined that the officer acted intentionally, relieving it of the duty of defending and indemnifying him. City was not barred from raising this defense to indemnification by its own prior denial, in the underlying lawsuit, that the officer had acted intentionally or recklessly. Banks v. Yokemick, 2214 F. Supp. 22d 401 (S.D.N.Y. 2002).

Defenses: Qualified (Good-Faith) Immunity

     Sheriff's deputy was not entitled to qualified immunity for making an arrest based on a civil dispute over the ownership of a car. Stevens v. Rose, #00-15840, 298 F.3d 880 (9th Cir. 2002).

Defenses: Release Agreements

     Arrestee's agreement to release his right to pursue a federal civil rights lawsuit against state police officials in exchange for prosecutor's dismissal of the remaining criminal charges pending against him was valid and enforceable. Prowell v. Kentucky State Police, #01-6264, 40 Fed. Appx. 86 (6th Cir. 2002).

Defenses: Service of Summons

     The dismissal of an arrestee's federal civil rights lawsuit against arresting officers for failure to achieve service of process was an abuse of discretion when the trial court did not rule on whether the arrestee showed good cause for delay and the ruling did not indicate that the trial court knew it had could, in its discretion, grant an extension of time to the plaintiff. Hurst v. Names Unknown, #02-1440, 42 Fed. Appx. 895 (7th Cir. 2002).

Defenses: Statute of Limitations

     D.C. statute of limitations on arrestee's false imprisonment and excessive force claims was not tolled (extended) by his subsequent arrest on unrelated charges two weeks after his release, or by his subsequent imprisonment on those charges. Arrestee actually initially filed a federal civil rights lawsuit over the first incident after the second arrest, but withdrew it, waiting five years to re-file it. Arnold v. District of Columbia, 211 F. Supp. 2d 141 (D.D.C. 2002).

False Arrest/Imprisonment: No Warrant

     Officers did not have probable cause to arrest teenager in a car based on one anonymous phone tip that the car occupants had a gun and a second tip, from an identified person, that the car occupants were "dissing" an identified person. Marinis v. Village of Irvington, 212 F. Supp. 2d 220 (S.D.N.Y. 2002).

     Police officer had probable cause to arrest fisherman for use of illegally large cast nets, even if the formula that the officer used for measuring circular nets was the incorrect formula. Officer observed that the nets were very large and reasonably believed them to be of an illegal size. Grix v. Florida Fish and Wildlife Conservation Commission, No. 4D01-3492, 821 So. 2d 315 (Fla. App. 4th Dist. 2002).

Firearms Related: Intentional Use

     State trooper was not entitled to qualified immunity for his shooting of a Port Authority police officer in full uniform who he stated he believed to be an armed murder suspect he had been pursuing. Injured officer claimed that trooper unreasonably failed to look into vehicle where sought suspect had just committed suicide and unreasonably shot him only because, like the suspect, he was a "black man with a gun." Curley v. Klem, #01-1093, 298 F.3d 271 (3rd Cir. 2002).

Federal Tort Claims Act

     Former deputy U.S. Marshal's claim that the CIA and Bureau of Narcotics tested psychoactive drugs on him without his consent or knowledge was not barred by the intentional tort exception to the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 2671 et seq., since they could be interpreted as asserting claims for negligent supervision. Plaintiff's claims also were not barred by the Federal Employees' Compensation Act, 5 U.S.C. Sec. 8116 et seq. since his allegation that he was involuntarily given LSD while attending a holiday party at the Post Office as part of a CIA experiment did not relate to dangers created by his employment. Ritchie v. U.S.A., 210 F. Supp. 2d 1120 (N.D. Cal. 2002).

First Amendment

     Police officer did not act reasonably in arresting man for shouting abusive comments at officers and answering them with sarcasm, which "amounted to no more than criticism of the police" and did not constitute either fighting words or incitement of others to imminent unlawful violence. Qualified immunity defense was not available. Resek v. City of Huntington Beach, #01-56029, 41 Fed. Appx. 57 (9th Cir. 2002).

     An arrestee's actions in pouring a drink on another patron in a casino did not involve the exercise of his First Amendment right to speech, so summary judgment was properly granted in his federal civil rights lawsuit over his arrest for doing so. Corrigan v. Jaeger, #01-16903 43 Fed. Appx. 69 (9th Cir. 2002).

Freedom of Information

     Newspaper was entitled, under New Jersey Right to Know Law, N.J.S.A. 47:1A-1 et seq., to disclosure of transcript of 911 calls concerning confrontation between motorist and officers that resulted in criminal charges against three officers. Newspaper was also entitled, under common law, to release of 911 call tape recordings, but police reports were not to be disclosed under either statute or common law since the potential impairment of an ongoing investigation outweighed the public interest in disclosure. Asbury Park Press v. Lakewood Township Police Department, 804 A.2d 1178 (N.J. Super. L. 2002).

Governmental Liability: Policy/Custom

     Homeowner waived her claim for municipal liability for alleged unreasonable search of her home when her appeals court brief merely stated that she "expressly preserves" that claim without specific and distinct arguments as to how the city was responsible. Jones v. William, #00-56929, 41 Fed. Appx. 964 (9th Cir. 2002).

     Arrestee could not establish city's liability for purported illegal search in which his pants were unbuckled and allowed to drop, when there was no evidence that the only officer the plaintiff identified participated in or was even aware of the purported search. Moody v. City of Lewiston, 213 F. Supp. 2d 1 (D. Me. 2002).

High Speed Pursuit

     State trooper's pursuit of a speeding van proximately caused the death of a motorist whose car was struck by the pursued vehicle so that the state was liable under Nebraska state law for the motorist's death. Nebraska Supreme Court orders a trial on the issue of damages. Meyer v. State of Nebraska, #S-01-303, 650 N.W.2d 459 (Neb. 2002).

Malicious Prosecution

     Officer had probable cause to proceed with charges against male high school student accused by female student of sexually assaulting her and later menacing her in violation of his conditions of release. Arrestee's contention that investigative network of police and prosecutors focusing on domestic violence and sexual abuse cases had an "anti-male" bias and a "secret, sinister agenda" was "unsupported speculation." Treon v. Whipple, 212 F. Supp. 2d 285 (D. Vt. 2002).

Miscellaneous: Towing

     Florida statute allowing a county to operate a wrecker operator system did not give a county sheriff authority to establish a system under which towing companies would rotate in providing services at the site of a wreck or to threaten arrests of tow company's employees for allegedly soliciting business at the scene of a wreck when the county board had never adopted the sheriff's rules by a formal vote. Rebel Enterprises, Inc. v. Palm Beach Sheriff, #01-15738, 299 F.3d 1261 (11th Cir. 2002).

     Business owners were entitled to notice and an opportunity to be heard before their vehicle was towed from a private residential property. Redwood v. Lierman, No. 4-01-0612, 772 N.E.2d 803 (Ill. App. 4th Dist. 2002).

Negligence: Vehicle Related

     Driver of all-terrain vehicle struck by car operated by deputy under the supervision of the sheriff, who was also present in the car, alleged sufficient facts about collision to assert a negligence claim against the defendants in their official capacity under Federal Rule of Civil Procedure 8. Dillon v. Brown County, Nebraska, 214 F. Supp. 2d 1031 (D. Neb. 2002).

Procedural: Discovery

     Trial court should not have converted a motion to dismiss a federal civil rights lawsuit over the plaintiff's two arrests under warrants meant for his brother to a motion for summary judgment without first allowing the plaintiff notice and a "reasonable opportunity" to conduct discovery. Carter v. Baltimore County, Md., #01-2242, 39 Fed. Appx. 930 (4th Cir. 2002).

Public Protection: Ill Persons

     Parents of child who died from choking could not recover damages against city for failure of emergency medical technicians to rescue him. The child had no due process right to be rescued or any constitutional right to be given competent services once his rescue was undertaken. Brown v. Commonwealth of Pennsylvania, #01-3234, 300 F.3d 310 (3rd Cir. 2002). A rehearing in this case was granted on September 9, 2002, and further developments in this case will be reported in subsequent publications.

Public Protection: Minors

     Adoptive parents of child could not recover damages against county or county employees based on constitutional claim that they failed to protect the child from physical abuse by the child's natural mother. The governmental defendants did not create the danger at issue or have any special relationship imposing a duty of care, as the alleged injuries occurred when the child was in the care of his natural mother prior to his removal from the home. Robbins v. Cumberland County Children and Youth Services, 802 A.2d 1239 (Pa. Cmwlth. 2002).

Search and Seizure: Home/Business

     Exigent circumstances justifying an officer's warrantless entry into a home were present when she was informed by a second officer, who she believed to be truthful and reliable, that an armed suspect had run inside, but appeals court orders further proceedings on whether officer was entitled to qualified immunity on her purported failure to comply with the Fourth Amendment's "knock and announce" requirement before entering. Smith v. Stone, #00-4574, 40 Fed. Appx. 197 (6th Cir. 2002).

     Search warrant for home which did not contain any description of the evidence sought failed to comply with the Fourth Amendment's requirement of particularity. An officer's alleged verbal description to the homeowners of the items to be searched for was not sufficient to overcome this defect, and the warrant did not refer to or incorporate the application or affidavit used to obtain it. Rank and file officers on the search team were entitled to qualified immunity, but the leader of the search team was not. Ramirez v. Butte-Silver Bow County, #99-36138, 00-35955, 298 F.3d 1022 (9th Cir. 2002).

     Tenant of apartment failed to show that search warrant issued for her apartment to seek a murder weapon suspected to be there was improperly issued. The tenant did not point to any evidence that the information submitted in support of the warrant was unreliable and stale. Hamilton v. City of New Haven, 213 F. Supp. 2d 125 (D. Conn. 2002).

     Police officers could reasonably believe that homeowner's nephew, who stated that he was in control of the house for the weekend, had authority to consent to a warrantless search of the premises after he reported to police that minors present in the house were having a drinking party with alcoholic beverages. Carter v. Rosenbeck, 214 F. Supp. 2d 889 (C.D. Ill. 2002).

Search and Seizure: Person

     Airline passenger gave implied consent to a random search of his bag by security personnel, enforced by a city police officer, by placing the luggage on an x-ray conveyor belt. The random search of the bag for weapons and explosives did not violate the passenger's Fourth Amendment rights. Torbet v. United Airlines, #01-55319, 298 F.3d 1087 (9th Cir. 2002).

State Constitutional Claims

     Tying up an arrestee to a metal pole in a deserted parking lot and leaving him there for officers from another jurisdiction to pick up on outstanding arrest warrants violated his due process rights under Maryland state constitution. Officers were entitled to qualified immunity on federal due process claim, but appeals court warns that officers are "now on notice" that such "Keystone Kop" activity in the future would "implicate federal due process guarantees." Robles v. Prince George's County, Maryland, #01-1662, 01-1728, 302 F.3d 262 (4th Cir. 2002).

Applicant Rejections

      A former police officer was not temperamentally disqualified from reemployment under the Veterans' Reemployment Rights Act. Lapine v. Town of Wellesley, #01-2054, 304 F.3d 90 (1st Cir. 2002).

Civilian Review

     A California county civil service commission can not require police officers to assume the burden of refuting a civilian review board's findings of misconduct. Caloca v. Co. of San Diego, #D038059, 2002 Cal. App. Lexis 4694 (Cal. App. 4th Dist. 2002).

Collective Bargaining - Duty to Bargain

     Arbitrator annuls a new dress code for the Prison health service. A physician's assistant could continue to wear "hospital scrubs" while on duty; this was a mandatory bargain issue. Federal Bur. of Prisons and Council of Prison Locals, AFGE L-992, FMCS Case #01/030L6, 117 LA (BNA) 515 (Neas, 2002).

Damages, Remedies and Enforcement of Settlements

     Fourth Circuit affirms an award of $410,000 in back pay and interest to a wrongfully demoted employee, and a punitive damages award of $100,000. Although there was no award of compensatory damages, punitive damages are allowed to compliment a back-pay award. Corti v. Storage Technology Corp., #01-1833, 304 F.3d 336 (4th Cir. 2002).

Disability Rights and Benefits - Line of Duty Related/Disputed

     The Board of Trustees had a rational basis for concluding that state law does not cover testicular cancer, and the denial of an accident disability pension to a firefighter was proper. Albano v. Bd. of Tr. of F.D.N.Y., 2 No. 112, 2002 N.Y. Lexis 3141 (N.Y. Oct. 15, 2002).

Disability Rights and Benefits - Continuing Eligibility/ Testing

     Appellate court upholds a decision to terminate a former police officer's non duty disability pension because a single medical experts concluded that she was no longer suffering from depression and could return to work. "A procedure that requires only one medical examination to conclude that the plaintiff is no longer disabled, but three evaluations to entitle her to the disability pension, is not inherently unfair and certainly does not infringe upon any constitutional rights." Trettenero v. Police Pension Fund of Aurora, #2-01-0544, 2002 Ill. App. Lexis 819 (Ill.App. 2nd Dist. 2002).

Disciplinary Offenses - Insubordination

     Federal appeals court upholds the Navy's termination of two civilians who worked on a naval ship, after they disobeyed an order to be vaccinated against anthrax. Mazares v. Dept. of the Navy, #01-3337/8, 302 F.3d 1382 (Fed Cir. 2002).

Disciplinary Offenses - Sufficiency of Proof

     Arbitrator reverses the termination of an officer accused of brutality. The only impartial evidence came from a fellow officer who was threatened with termination if he did not implicate the grievant. The threats violated the grievant's right to Due Process. City of Cincinnati and Queen City L-69 FOP, AAA Case No. 52-390-00481-1, 117 LA (BNA) 637 (Duff, 2002).

Disciplinary Punishment

     Arbitrator sustains an 84-hour disciplinary suspension for a corrections officer who refused to fully participate in a training course. Alaska Dept. of Corrections and the Public Safety Employees Assn., 117 LA (BNA) 674, Alaska Case #01-C327, PSEA Case #01-01C (Henner, 2002).

Employee Harassment - Nonsexual

     Ninth Circuit allows a gay worker to sue his employer for a hostile work environment. Rene v. MGM Grand Hotel, #98-16924, 2002 U.S. App. Lexis 20098 (9th Cir. 2002).

Family, Medical & Personal Leave

     California enacts the country's first paid family leave law. S.B. 1661,codified as Deering's California Unemployment Insurance Code Sections 984, 2601 2613, 2708, 3254, and 3300-3305 (2002).

First Amendment Related

     Federal appeals court reinstates a damage action brought by a firefighter who was subjected to an I-A investigation and transferred to an undesirable assignment after criticizing firefighter safety gear. Darmanin v. S.F. Fire Dept., #00-16102, 2002 U.S. App. Lexis 19676 (Unpub. 9th Cir. 2002).

Handicap Laws/Abilities Discrimination - In General

     The correct causation standard in a Rehabilitation Act claim is whether discrimination is "solely by reason of" claimant's disability, not whether discrimination is simply a motivating factor. Soledad v. U.S. Dept. of Treasury, #00-51300, 304 F.3d 500 (5th Cir. 2002).

Handicap Laws / Abilities Discrimination - Specific Disabilities

     Officer with an injured finger was not "disabled" under the ADA. Fultz v. City of Salem, #01-35355, 2002 U.S. App. Lexis 19678 (Unpub. 9th Cir. 2002).

Health Insurance & Benefits

     Arbitrator sustains a grievance that a new health plan, which allowed the employer's premium payments to remain constant, but caused employees' out-of-pocket expenses to skyrocket, was not an equivalent program. Coles County 911 Board and IL FOP Labor Council, FMCS Case #010502/10114-A, 117 LA (BNA) 462 (Petersen, 2002).

     Arbitrator holds that a Township violated the bargaining agreement when it raised drug prescription costs from three dollars to $15 per prescription for generics and $30 for brand name drugs. Olmstead Twp. and Frat. Order of Police, 117 LA (BNA) 540, FMCS Case #00120/00854-6 (Van Pelt, 2002).

Hearing (Audio) Impairment

     Honolulu Police Dept. settles with the DoJ regarding applicants for employment who use of hearing aids. U.S. v. Honolulu, (Unpub., D. Haw. 2002).

Homosexual & Transgendered Employee Rights

     Washington appeals court allows a lesbian hospital worker to sue for a biased discharge under §1983 and the Equal Protection Clause. Miguel v. Guess, #20699-8-III, 112 Wn.App. 536, 51 P.3d 89 (Wash.App. 2002).

Impasse Arbitration

     Arbitrator declines to impose wage increases based on years of service, where there is no history of seniority differentials. Mason City and IBOT L-828, 117 LA (BNA) 472 (Feldman, 2002).

Injuries to Employees

     Louisiana affirms an over-million dollar award to a corrections officer who was injured during a baton training exercise. Cole v. State, #01-C-2123, 2002 La. Lexis 2454 (2002).

     Louisiana appellate court holds that a deputy sheriff, who was injured after slipping on a wet terrazzo floor in the Sheriff's Office, was entitled to $451,230 in damages from the Sheriff. Gorton v. Ouachita Parish Police Jury, #35,432-CA, 814 So.2d 95 (La.App. 2d Cir. 2002).

Light Duty Assignments

     Arbitrator overturns a termination when an injured employee refused to return to work. There were no light duty positions in the police dept. Town of Harwich and IBPO L-392, 116 LA (BNA) 1461, AAA Case #11-309-00999-1 (Alleyne, 2001-Released 2002).

Military Leave

     A former police officer was not temperamentally disqualified from reemployment under the Veterans' Reemployment Rights Act. Lapine v. Town of Wellesley, #01-2054, 2002 U.S. App. Lexis 18172 (1st Cir. 2002).

National Origin Discrimination

     Federal court dismisses a Hispanic probation officer's Title VII discrimination claim; a lateral transfer is not an "adverse action" and other conduct was not severe or pervasive enough to create a hostile work environment. Vasquez v. Co. of Los Ang., #00-56803, 2002 U.S. App. Lexis 20664 (9th Cir. 2002).

Pay Disputes - In General

     Arbitrator finds that a city did not violate the bargaining contract when it refused to give officers extra pay for transporting a prisoner to court during times when the officers are required to appear at court hearings. City of Amherst and Ohio P.B.A., 117 LA (BNA) 572 (Adamson, 2002).

     Arbitrator declines to impose wage increases based on years of service, where there is no history of seniority differentials. Mason City and IBOT L-828, 117 LA (BNA) 472 (Feldman, 2002).

Pensions

     In two cases, Illinois appellate courts hold that a convicted police officer and a judge were only entitled to a refund of their pension contributions, less the amounts paid to them prior to their convictions. In the case of the officer, the prior benefits paid had exceeded the amount of his contributions. Shields v. Bd. of Tr. of Judge's Retirement System, #1-00-4133, 329 Ill.App.3d 27, 768 N.E.2d 26 and Phelan v. LaGrange Park Police Pension Fund, #1-01-1226, 327 Ill.App.3d 527, 763 N.E.2d 343. An appeal before the IL Supreme Court is pending in the Shields case, Docket # 94029 (10/01/2002).

Physical Fitness Requirements, Agility Tests and Standards

      A divided federal appeals court, in its second opinion, upholds a 1.5 mile-12 minute run requirement that disqualified most women candidates for transit police officer. Lanning v. SEPTA, #01-1040, 2002 U.S. App. Lexis 21506 (3rd Cir. 10/15/2002).

Privacy Rights

     Ninth Circuit holds that an employee could sue his employer for violation of the Stored Communications Act, 18 U.S.C. §§ 2701-2711 (2000). He alleged that his superiors accessed his personal website without authorization. 18 U.S.Code § 2710(a)(1) makes it an offense to access, intentionally and without authorization, any wire or electronic communication while it is in storage. Konop v. Hawaiian Airlines, 9th Cir., #99-55106, 302 F.3d 868 (9th Cir. 2002).

Race: Affirmative Action & Quotas

     White police officer applicant, who was denied an opportunity to compete on equal footing in police department's hiring process because of his race, has standing to seek equitable relief against the city's race-conscious consent decree issued in Castro v. Beecher, 365 F.Supp. 655 (D. Mass. 1973), since he would have been hired if he was a minority applicant. Donahue v. City of Boston, 02-1027, 304 F.3d 110 (1st Cir. 2002).

Race Discrimination - In General

     The Congress had authority to extend Title VII to States under Sec. 5 of 14th Amendment because it was responding to a pattern of race and sex discrimination by state governments. Nanda v. Bd. of Tr. of the Univ. of Illinois, #01-3448, 303 F.3d 817 (7th Cir. 2002).

Race or Sex Discrimination - Disparate Discipline

     Black former police officer was unable to show that similarly situated non-black employees were treated differently and the city presented legitimate, nondiscriminatory reasons for its decision to terminate him. Henry v. City of Tallahassee, #4:01-cv-62, 216 F.Supp.2d 1299 (N.D. Fla. 2002).

     A probationary officer was not similarly situated to a police captain, and differences in their punishment did not create an equal protection violation. There was a legitimate, non-discriminatory basis for the officer's termination, which was not a pretext for gender bias. Mercer v. City of Cedar Rapids, #01-1135, 2002 U.S. App. Lexis 21480 (8th Cir. October 15, 2002).

Religious Discrimination

     Federal appeals court affirms a damage suit for the constructive discharge of a police counselor, because she observed the tenets of Native American spirituality, instead of Christianity. Campos v. City of Blue Springs, Mo., #01-2814, 289 F.3d 546 (8th Cir. 2002).

Retirement Rights and Benefits

     Although a 1989 divorce decree provided that a public employee's first wife would receive 60 percent of his retirement benefits, his surviving second spouse was the statutory beneficiary of all of his survivor benefits, and the courts were powerless to apportion those benefits. Cosby v. Cosby, #2001-0659, 96 Ohio St.3d 228, 2002 Ohio 4170, 773 N.E.2d 516 (2002).

Sex Discrimination - Reverse Discrimination

     Federal appeals court rejects a discrimination suit filed by males who complained that a woman coworker was treated more favorably because of her sexually suggestive behavior. Schobert v. IL Dept. of Transp., #01-1598, 304 F.3d 725 (7th Cir. 2002). }

Sexual Harassment - In General

     Federal appeals court rejects a sexual harassment action where the plaintiff failed to show that her gender motivated male coworkers' sexually explicit conduct and conversations; she would have been exposed to the same offensive behavior were she a man. Ocheltree v. Scollon, 01-1648, 2002 U.S. App. Lexis 21145 (4th Cir. 2002).

Sexual Harassment - Same Gender

     Ninth Circuit allows a gay worker to sue his employer for a hostile work environment. Rene v. MGM Grand Hotel, #98-16924, 305 F.3d 1061 (9th Cir. 2002).

Shift Rotation and Work Schedules

     Arbitrator finds that repeatedly scheduling the grievant to work a split shift violated an established past practice. Town of McCandless, Penn. and McCandless P.O.A., FMCS Case #02/04412, 117 LA (BNA) 456 (Parkinson, 2002).

Taxation

     Effective Jan. 1, 2003, the optional standard mileage rate for taxpayers to use in deducting vehicle costs will decrease from 36.5 cents a mile to 36.0 cents a mile, due to lower gasoline prices in the past year. IRS Rev. Proc. 2002-61 (Sep. 18, 2002).

Uniforms, Clothing and Equipment

     Arbitrator annuls a new dress code for the Prison health service. A physician's assistant could continue to wear "hospital scrubs" while on duty; this was a mandatory bargain issue. Federal Bur. of Prisons and Council of Prison Locals, AFGE L-992, FMCS Case #01/030L6, 117 LA (BNA) 515 (Neas, 2002).

Union and Associational Activity

     Federal appeals court affirms a holding that township officials were not entitled to qualified immunity for laying off an employee who advocated union representation and had filed for a representation election. Supreme Court denies review. Wershing v. Hinckley Township, #01-3365, 36 Fed. Appx. 179 (Unpub., 6th Cir. 2002); cert. den., #02-282, 2002 U.S. Lexis 5377 (2002).

     A contract in which a municipal employees union agreed to indemnify the city for any legal challenge to fair-share fees deducted from the pay of nonunion employees was void. The broad scope of the indemnity also protected the city's liability for its mistakes. Wessel v. City of Albuquerque, #01-2155, 299 F.3d 1186 (10th Cir. 2002).

Whistleblower Requirements and Protection

     Federal appeals court allows a California corrections officer to bring a delayed whistleblower and retaliation suit against the state. The officer's filing of workers' compensation claim, based on stress injuries resulting from a punitive job reassignment, extended the filing time for his lawsuit. Rigg v. California, #00-17371, 32 Fed. Appx. 398 (Unpub. 9th Cir. 2002); cert. denied sub nom Smith v. Rigg, 2002 U.S. Lexis 6570.

     A parole officer who wrote a memo to her supervisor complaining that her case load exceeded work limits set by a collective bargaining agreement was engaged in protected activity under the state's whistleblower law. Hutson v. Wisconsin Personnel Cmsn., #01-2959, 2002 Wisc. App. Lexis 1003 (2002).

Workers' Compensation - Exclusive Remedy

     Louisiana affirms an over-million dollar award to a corrections officer who was injured during a baton training exercise. Cole v. State, #01-C-2123, 2002 La. Lexis 2454 (2002).

Wrongful Discharge - In General

     Former police officer could sue for retaliatory discharge; he was terminated after he filed a worker's comp. claim. Hidalgo County v. Parker, #13-01-835-CV, 83 S.W.3d 362, 2002 Tex. App. Lexis 5633 (Tex. Civ. App. 2002).

Access to Courts/Legal Info

     Prisoner could not pursue his claim against prison official for alleged interference with his legal mail when he failed to show any actual injury to his right of access to the courts. Clemons v. Woods, No. 01-2284, 40 Fed. Appx. 23 (6th Cir. 2002).

Administrative Liability

     Commissioner of Department of Corrections could not be held liable for alleged assaults on prisoner by correctional employees or for alleged retaliation against prisoner for complaining when no personal involvement in the incidents was shown. Letters of complaint that prisoner sent to his office were merely forwarded by staff members to the appropriate investigators. Garvin v. Goord, 212 F. Supp. 22d 123 (W.D.N.Y. 2002).

Death Penalty

     Prison regulation that prevented journalists who attended and reported on executions from viewing the lethal injection procedures prior to the actual administration of the injection violated the public's First Amendment right to view executions from the time the condemned prisoner was first brought into the execution chamber. California First Amendment Coalition v. Woodford, #00-16752, 299 F.3d 868 (9th Cir. 2002).

Defenses: Collateral Estoppel

     A prior verdict in favor of the defendants in the prisoner's state court lawsuit alleging that correctional officers assaulted him while transporting him to court barred him from pursuing a federal civil rights lawsuit under 42 U.S.C. Sec. 1983 over the same incident claiming that the officers' use of force was excessive. Goodson v. Sedlack, 212 F. Supp. 2d 255 (S.D.N.Y. 2002).

Diet

     Court rejects prisoner's claim that prison violated his rights by failing to feed him a diet in accord with his religious belief that he should only eat "starchless and green, leafy vegetables" when his own attached list of foods he should eat included some foods that did not constitute "starchless and green, leafy vegetables," including an assortment of legumes and beans and white potatoes. Rhone v. Lewis, #36,210-CA, 821 So. 2d 692 (La. App. 2nd Cir. 2002).

Disability Discrimination: Prisoners

     Prisoner's lawsuit against state officials for disability discrimination under the Americans With Disabilities Act (ADA), 42 U.S.C. Secs. 12131-12134 and 42 U.S.C. Sec. 1983 failed to state a claim when it merely asserted in a conclusory manner that he had been subjected to unconstitutional conditions of confinement and deprived of his federal rights, without any specifics of how this was so or how any of the named defendants were personally responsible for any such deprivations. Frazier v. Michigan, #02-1160, 41 Fed. Appx. 762 (6th Cir. 2002).

     Prisoner was not subjected to disability discrimination by allegedly being denied a job assignment and participation in the prison's educational program because of his migraine headaches. Prisoner failed to show that he was disabled as that term is used in either the Americans With Disabilities Act (ADA), 42 U.S.C. Sec. 12101 or the Rehabilitation Act., 29 U.S.C. Sec. 701. Court also holds that ADA and Rehabilitation Act claims could not be pursued under 42 U.S.C. Sec. 1983. Battle v. Minnesota Dept. of Corrections, #02-1599, 40 Fed. Appx. 308 (8th Cir. 2002).

Escape

     Township could not be held liable for escapee's death from being struck and killed by an automobile while fleeing from a police station where she had been handcuffed to a ballet bar in the booking room because another intoxicated detainee was already occupying the lone holding cell. Kruger v. White Lake Township, Nos. 222904, 223337, 648 N.W.2d 660 (Mich. App. 2002).

False Imprisonment

     County's failure to promptly investigate detainees' claims that they were not the persons sought by arrest warrants would violate a duty under Washington state law. Such violations, standing alone, are not a basis for federal civil rights claims, Stalter v. State of Washington, #27118-4-II, 227351-9-II, 51 P.3d 837 (Wash. App. 2002).

Furlough

     Courts exceeded their statutory authority by granting short-term releases to three inmates in separate cases allowing them to attend to personal business, which constituted modifications of sentencing not authorized by a specific provision of state law, as did an order that a prisoner be released from custody to spend the remainder of her sentence in treatment facility. The judges arrogated to themselves the power to grant prison furloughs--a power that could only be exercised by correctional officials, improperly interfering with matters that are, "by law, entrusted to the discretion of the Department of Corrections." State of Alaska v. Felix, Nos. A-7885, A-7886, A-07887, 50 P. 3d 807 (Alaska App. 2002).

Inmate Funds

     Oklahoma trial court could properly require plaintiff inmate who filed four lawsuits against prison personnel for alleged violation of his claimed "constitutional right" to smoke to make partial payments of court filing fees over time but could not, under state law, require him to make a payment in any month where that payment would "completely deplete" the prisoner's inmate account. Mahorney v. Moore, No. 96,726, 50 P.3d 1128 (Okla. 2002).

Jail Conditions: General

     Detainee in county jail failed to show that sheriff and his deputies were deliberately indifferent to threats to his health and safety due to toilet in his cell leaking both water and sewage when they supplied him with blankets or towels to absorb water and a repair attempt was made. Frye v. Pettis County Sheriff Department, #02-1809, 41 Fed. Appx. 906 (8th Cir. 2002).

Medical Care

     Doctor's detailed affidavit concerning the heat-related symptoms that a correctional officer who was supervising a hoe squad "should have" recognized in a prisoner who subsequently collapsed and died was not sufficient to establish that the officer was deliberately indifferent to the prisoner's medical needs. Twenty minute delay in getting inmate to the infirmary after his collapse at work was not unreasonable. Bridges v. Rhodes, #02-1629, 41 Fed. Appx. 902 (8th Cir. 2002).

     Doctor was not entitled to qualified immunity on prisoner's claim that he acted with deliberate indifference in recommending that prisoner purchase over-the-counter medications when he was aware that the prisoner lacked funds to do so. Keller v. Faecher, #01-57179, 44 Fed. Appx. 828 (9th Cir. 2002).

Negligent Hiring, Retention, Supervision and Training

     County and sheriff did not act with deliberate indifference in hiring a deputy who subsequently used allegedly excessive force against a pretrial detainee which severed his intestine. Alleged problems in deputy's background did not bear a "strong causal connection" to the specific constitutional violation claimed. Morris v. Crawford County, Arkansas, #01-3621, 299 F.3d 919 (8th Cir. 2002).

Parole

     Prisoner could pursue federal civil rights lawsuit challenging retroactive application of new state parole eligibility regulations when the state's parole system was "completely discretionary," since a successful challenge would only get the prisoner "in the door" to be considered for parole and would not necessarily imply the invalidity of his conviction or challenge the duration of his confinement. Dotson v. Wilkinson, #00-4033, 300 F.3d 661 (6th Cir. 2002).

Prison Litigation Reform Act: Exhaustion of Remedies

     Prisoner was required to exhaust available administrative remedies before beginning his federal civil rights lawsuit over officers' alleged failure to protect him from assault by other prisoners. Dismissal of prisoner's lawsuit would be without prejudice, allowing him to exhaust remedies and then refile the lawsuit, when prisoner filed his lawsuit before the U.S. Supreme Court made it clear, in its decision in Porter v. Nussle, 122 S. Ct. 983 (2002) that the remedies exhaustion requirement of the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(a) "applies to all inmate suits about prison life, whether they involved general circumstances or particular episodes." Peoples v. Beldock, 212 F. Supp. 2d 141 (W.D.N.Y. 2002).

     Prisoner who failed to comply with a grievance procedure established by the Massachusetts Department of Corrections could not proceed with his federal civil rights lawsuit claiming that correctional officers assaulted him. Plaintiff was required, under 42 U.S.C. Sec. 1997e(a) of the Prison Litigation Reform Act, to exhaust available administrative remedies before filing suit. Foster v. Murphy, 211 F. Supp. 2d 354 (D. Mass. 2002).

Prison Litigation Reform Act: Mental Injuries

     Prisoner could not pursue his claim for damages for emotional injuries caused by officer ordering him to be strip-searched in the presence of female correctional officers in the absence of any physical injury. Provision of Prison Litigation Reform Act prohibiting such recovery applied to incident which occurred in a private correctional facility providing services under a contract with the state. Milledge v. McCall, #01-1417, 43 Fed. Appx. 196 (10th Cir. 2002).

Prisoner Assault: By Inmates

     Associate warden and correctional officers were entitled to qualified immunity in lawsuit over prisoner's alleged murder by his cellmate when available information did not make it so clear that cellmate would harm him that no reasonable officer would have allowed them to be celled together. Both prisoners had previously been celled together without incident and had requested to be celled together again. Estate of Ford v. Ramirez-Palmer, #01-15769, 301 F.3d 1043 (9th Cir. 2002).

Prisoner Death/Injury

     Federal trial court did not have subject matter jurisdiction over prisoner's state law negligence claim against Illinois state prison officials seeking to recover for his injuries from being shocked by allegedly exposed electrical wires in showers. Defendants were entitled to sovereign immunity under Eleventh Amendment which state had asserted by barring such claims except in the Illinois Court of Claims. Federal civil rights claim also failed, as prisoner failed to show that defendants knew about the wires but were deliberately indifferent to their exposed presence. Turner v. Miller, #01-3413, 301 F.3d 599 (7th Cir. 2002).

     Mississippi prisoner could not recover damages from county under state law for her injuries from falling from top bunk bed in county jail. County was immune, under the Mississippi Tort Claims Act (MTCA), A.M.C. Sec. 11-46-9(1)(c, m), from all claims by inmate. Exception in statute for "reckless disregard" in relation to police protection of a person not engaged in criminal activity at the time of the injury did not apply to prisoner's claim that the jailer's conduct of not placing her in the "drunk tank" was "reckless disregard" for her safety and well being. Liggans v. Coahoma County Sheriff's Department, No. 2001-CA-00860-SCT, 823 So. 2d 1152 (Miss. 2002).

Privacy

     Correctional employees actions in strip searching a male prisoner in front of female employees was not cruel and unusual punishment in violation of the Eighth Amendment. Prisoner was strip searched for his and the officers' safety after he did not respond to requests for his attention. Dye v. Lomen, #01-3766, 40 Fed. Appx. 993 (7th Cir. 2002).

Private Prisons

     County could be held liable under 42 U.S.C. Sec. 1983 for alleged customs and policies of private corporation hired to manage and operate a county detention facility. Prisoner could pursue municipal liability claim based on claim that corporation failed to properly train its employees to prevent their use of brutality against prisoners. Prison Litigation Reform Act (PLRA) exhaustion of remedies requirement, 42 U.S.C. Sec. 1997e, applies to cases in which a private company is operating a prison or jail. Herrera v. County of Santa Fe, 213 F. Supp. 2d 1288 (D.N.M. 2002).

Procedural: Discovery

     Trial court properly granted summary judgment without further delay to correctional employees on prisoner's lawsuit alleging that they failed to provide him with a safe environment or adequate medical care when prisoner failed to demonstrate how any additional discovery would lead to the production of evidence that would create a genuine issue of disputed material fact. Prisoner injured himself by stepping into an uncovered manhole on prison grounds and subsequently received treatment including surgery for a spinal injury. Lockaby v. L.L. Young, #02-6033, 42 Fed. Appx. 313 (10th Cir. 2002).

Racial Discrimination

     Black prison inmate's equal protection claim, arguing that his rights were violated when he was not returned to an area of the prison after completion of an investigation into an escape attempt, while white prisoners were returned there, was frivolous. The plaintiff prisoner himself admitted that he "did not want to be returned" there after the investigation was completed. Williamson v. Campbell, #02-5104, 44 Fed. Appx. 693 (6th Cir. 2002).

Religion

     Prison regulation prohibiting the possession of reading materials encouraging violence, hatred, or vengeance against other persons did not violate free speech rights of prisoners practicing "Christian Identity" white supremacist religion, but appeals court orders further proceedings on adequacy of due process surrounding censorship system. Prisoners' rights to special foods and communion packet to celebrate Passover holiday depended on the sincerity of their beliefs, not whether the observation of that holiday was a "major" tenet of their religion. Ind v. Wright, #01-1338, 44 Fed. Appx. 917 (10th Cir. 2002).

Search: Prisoners/Cells

     A warrantless search of a convicted prisoner's cell, even though carried out to seek evidence of an uncharged crime rather than for any purpose related to prison security, did not violate his Fourth Amendment rights against unreasonable searches and seizures. Willis v. Artuz, #00-0176, 301 F.3d 65 (2nd Cir. 2002).

Sexual Assault

     Prisoner allegedly sexually assaulted in her room by a correctional officer a day after he fondled her and threatened to "get" her "tomorrow" presented a genuine issue of fact as to whether she made cottage manager aware that she reasonably feared a sexual assault by the officer and whether cottage manager acted reasonably in response. Prisoner also presented genuine issue as to whether "gag order" was imposed as a pretext to make her stop claiming that she had been assaulted. Ortiz v. Voinovich, 211 F. Supp. 2d 917 (S.D. Ohio 2002).

     Pretrial detainee allegedly sodomized by four prisoners in his cell sufficiently alleged deliberate indifference by prison officials based on the failure to take measures to classify and separate inmates based on security risks. Calderon-Ortiz v. Laboy-Alvarado, #01-2469, 300 F.3d 60 (1st Cir. 2002).

Telephone Access

     Limits on pretrial detainee's telephone privileges in segregation before and after disciplinary hearings did not violate his First Amendment rights. Detainee did not show that his placement in segregation before and after hearings was for a punitive reason rather than reasons of institutional security. Detainee also did not show that any actual injury was caused by his having to use the telephone "while it was noisy or in the evening," instead of directly before and after hearings. Whitfield v. Dicker, #01-3605, 41 Fed. Appx. 6 (8th Cir. 2002).

Work/Education Programs

     Prisoner's alleged confinement to his cell during working hours for refusal to accept a prison work assignment did not violate his rights. Such confinement did not constitute an "atypical and significant hardship" triggering a right to due process before the sanction was imposed. Mayberry v. Starr, #01-2563, 44 Fed. Appx. 679 (6th Cir. 2002).

Work Release

     Pennsylvania prisoner did not have a protected liberty interest in a work release assignment under either the due process clause of the 14th Amendment or Pennsylvania state law, which barred him from pursuing a lawsuit that prison officials violated his rights by removing him from the work release program with either notice or a hearing. McGoue v. Janecka, 211 F. Supp. 2d 627 (E.D. Pa. 2002).