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of articles online at www.aele.org/law from the August 2003

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 August 2003

Administrative Liability: Supervision

     Female motorist allegedly physically assaulted without justification by state police officer following a routine traffic stop adequately stated a claim for violation of her civil rights by supervisory personnel based on officer's alleged history of past misconduct and their failure to take corrective action. McGrath v. Scott, No. CIV.02-1605PHXROS, 250 F. Supp. 2d 1218 (D. Ariz. 2003).

     Man who spent fourteen years in prison following his conviction for sexually molesting his daughter before he was released based on the non-disclosure of certain items of evidence failed to show that sheriff and sergeant were aware or should have been aware of deputy's alleged creation of false testimony. Modahl v. County of Kern, #01-15669, 61 Fed. Appx. 394 (9th Cir. 2003).

Administrative Liability: Training

     City's policy of providing training on the most likely situations and problems that could arise in the use of police dogs against arrestees was adequate, and not a basis for imposing liability on the city for injuries arrestee suffered from being bitten by dog. Holiday v. City of Kalamazoo, No. 4:01-CV-161, 255 F. Supp. 2d 732 (W.D. Mich. 2003).

Damages: Nominal

     Even though plaintiff was acquitted of murder charges, he could seek to recover nominal damages for alleged violations of his right to a fair trial resulting from police officers' and sheriff's investigators' alleged misconduct in concealing exculpatory evidence which should have been disclosed to the defense. Carroccia v. Anderson, #02C-3916, 249 F. Supp. 2d 1016 (N.D. Ill. 2003).

Defamation

     Police chief's statements calling a resident a "gang banger" were not "slander per se" because they did not accuse him of any specific criminal activity, and could either refer to an actual member of a street gang or a "wannabe," which adds up to "nothing more than innuendo." Anderson v. City of Troy, #01-761, 68 P.3d 805 (Mont. 2003).

Defenses: Absolute Immunity

     Connecticut State Police officer was entitled to absolute judicial immunity from a lawsuit seeking damages under 42 U.S.C. Sec. 1983 for actions related to his performing a bail setting function assigned, under state law, to police officers. Government officials acting in a "judicial capacity" are entitled to absolute immunity, and the important question was the nature of the function being performed, not the identity of the person performing it. In setting $500,000 cash only bail for the plaintiff, who was arrested on a narcotics offense, the officer acted in a judicial capacity. Sanchez v. Doyle, No. 3:02CV0351 (JBA), 254 F. Supp. 2d 266 (D. Conn. 2003).

Defenses: Indemnification

     Illinois Supreme Court rules that counties are required to pay judgments entered against a sheriff's office in an official capacity whether the case was settled or litigated. Under Illinois law, a sheriff has the authority to settle and compromise claims against the sheriff's office. The court acted to answer a certified question of law submitted by the U.S. Court of Appeals for the Seventh Circuit in a case where the county attempted to contest an attempt to make it pay a $500,000 settlement entered into by a sheriff in a federal civil rights lawsuit after claims against the county were dismissed. Carver v. Condie, #97-2731, 169 F.3d 469 (7th Cir. 1999). Carver v. Sheriff of LaSalle County, No. 91108, 787 N.E.2d 127 (Ill. 2003).

Defenses: Qualified Immunity

     Officers were not entitled to immediate appeal from trial court's denial of their motion for qualified immunity when the denial was based on a finding that there were disputed material facts which concerned whether the officers had probable cause to arrest the plaintiff. Appeals court would not exercise jurisdiction over appeal when officers were not willing to concede the arrestee's version of the facts at issue. Jones v. City of Dayton, Ohio, No. 01-4165, 61 Fed. Appx. 183 (6th Cir. 2003).

Defenses: Statute of Limitations

     Arrestee's federal civil rights claims for an alleged unconstitutional stop, arrest, and use of force accrued on the date they occurred, so that his claims were time barred by a two year New Jersey statute of limitations. Wilson v. Healy, No. 02-1862, 63 Fed. Appx. 613 (3rd Cir. 2003).

Dogs

     Officer's conduct in allowing a dog to continue to bite an arrestee until the suspect raised his hands as the officer ordered did not constitute excessive force, despite the fact that the suspect was in his underwear. Suspect's conduct in running away "inexplicably" from a minor traffic stop gave the officer reasons to be concerned for his and other officers' safety. Officers were entitled to qualified immunity on failure to give a verbal warning prior to using the dog, but appeals court does hold that they should have given a warning, and that claims against the city could be pursued for failure to require such warnings. Kuha v. City of Minnetonka, No. 02-1081, 328 F.3d 427 (8th Cir. 2003).

False Arrest/Imprisonment: No Warrant

     Sheriff's deputy had probable cause to arrest father for alleged rape of his teenage daughter despite her history of drug abuse and the discovery of a "to do" list she wrote which listed framing her father for "abuse (sexual or physical?)" as one of her "tasks." The daughter had reported the alleged rape within 24 hours of the incident, and medical evidence was consistent with a rape occurring within the reported time frame. Donovan v. Briggs, No. 01-CV-62071, 250 F. Supp. 2d 242 (W.D.N.Y. 2003).

     Attorney's arrest for accepting cocaine drugs from undercover officer in purported exchange for legal services did not violate his Fourth Amendment or due process rights. Prosecutor and officers were entitled to qualified immunity from liability for their arrangement of "sting" operation. Anderson v. Larson, #02-2071, 327 F.3d 762 (8th Cir. 2003).

     Man arrested under warrant based on confidential informant's information failed to show that the insertion of allegedly omitted details or the elimination of doubtful assertions would have "materially affected" the existence of probable cause for the arrest. Defendant city and officers were therefore entitled to summary judgment. Wychunas v. O'Toole, #Civ.A 301-0557, 252 F. Supp. 2d 135 (M.D. Pa. 2003).

     Police officers had probable cause to arrest man for murder after grand jury indicted him for the crime. A facially valid indictment from a properly constituted grand jury is "conclusive" on the question of probable cause for an arrest. Norman v. City of Bedford Heights, Ohio, #01-3870, 61 Fed. Appx. 129 (6th Cir. 2003).

False Arrest/Imprisonment: Warrant

     Neither city nor officers were liable for arrest of father under a warrant intended for his son, who had the same name, for an incident that happened at the father's house. Son had refused, during questioning by officer, to provide his birthdate, address, or even name, so that subsequent issuance of warrant for the father at that address, while resulting in the arrest of the wrong person, was not caused by unreasonable conduct of the officer or any failure of the city to take particular precautions. Noone v. City of Ocean City, No. 01-4072, 60 Fed. Appx. 904 (3rd Cir. 2003).

Family Relationships

     Father could pursue federal civil rights lawsuit seeking damages for city's alleged failure to notify him of a hearing at which his parental rights were terminated. Claim was not barred by "domestic relations" exception to federal court jurisdiction, since he was not seeking the restoration of his parental rights or any other domestic relations award. King v. Commissioner and New York City Police Department, No. 00-9234, 60 Fed. Appx. 873 (2nd Cir. 2003).

Federal Tort Claims Act

     U.S. government was not responsible, under Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 2680(a) for the alleged intentional misconduct of informants in a case where the indictment against the plaintiff for conspiring to transfer human organs from executed Chinese prisoners for human transplantation was dismissed. Such liability under the statute was not possible when the informants were not employees acting within the scope of their employment and were not investigative or law enforcement officials. Plaintiff also failed to show that the conduct of federal agents involved in the case fell outside the scope of the "operative discretionary function exception" to liability under the statute for law enforcement actions involving an element of discretion. Wang v. U.S., No. 02-6123, 61 Fed. Appx. 757 (2nd Cir. 2003).

Firearms Related: Intentional Use

     County and officer could be sued under Florida law for injuries that bystander suffered when he slipped and fell when officer startled him by pointed a gun at him and yelling a him to freeze while conducting a prostitution "sting" operation. Officer's actions created a "foreseeable zone of risk" to the bystander and county was not immune from suit because his injuries were allegedly caused by the manner in which the police implemented their operation. Brown v. Miami-Dade County, No. 3D00-3540, 837 So. 2d 414 (Fla. App. 2001), order denying rehearing en banc (2003).

Firearms: Licenses and Regulations

     California county's ordinance banning the possession of firearms on county property did not violate the First Amendment rights of gun show promoters or improperly regulate commercial speech. State gun regulations did not preempt county's ability to regulate gun shows, and federal appeals court declines to address Second Amendment argument, finding that it involves a collective right to bear arms only assertable by the states, and not by individuals. Nordyke v. King, #99-17551, 319 F.3d 1186 (9th Cir. 2003).

Freedom of Information

     Civil liberties organization was entitled, under New Hampshire state "Right-to-Know" law, to disclosure of consensual photographs of people taken by police after they were stopped by officers but not arrested. Disclosure of photos did not violate individuals' privacy or create any inference about their involvement in crime and no personal or identifying information would be disclosed. Photos would be used for statistical purposes to seek to demonstrate any race or gender-based patterns in police decisions about whom to stop. New Hampshire Civil Liberties Union v. City of Manchester, #2002-177, 821 A.2d 1014 (N.H. 2003).

     Data collected by police department concerning police officers' traffic stops, conducted as a study to determined whether "racial profiling" was going on, was private personnel data not subject to disclosure under Minnesota statute, since it was collected to evaluate the performance of individual officers and determine whether to possibly reassign, retrain, or counsel them. Star Tribune v. City of St. Paul, No. C5-02-1931, 660 N.W.2d 821 (Minn. App. 2003).

Interrogation

     U.S. Supreme Court reverses federal appeals court decision that wounded suspect subjected to custodial treatment while being treated in a hospital for life threatening injuries, but who was never charged with any crime, could pursue damage claims for violation of his Fifth Amendment right against self-incrimination even though no statements he made were ever used against him in court. On remand, further consideration will occur of whether plaintiff may pursue a claim of liability for a substantive due process violation. Chavez v. Martinez, 123 S. Ct. 1994 (2003).

Malicious Prosecution

     Dismissal without prejudice of loitering charge against defendant on the basis that the charging document was based on hearsay from an unidentified source was not a "favorable termination" of the charges sufficient to allow the pursuit of a malicious prosecution claim under New York law against the arresting officer. Neal v. Fitzpatrick, No. CV-6209-NG-WDW, 250 F. Supp. 2d 153 (E.D.N.Y. 2003).

     Plaintiff adequately alleged factual issues of whether county police officer knowingly presented false information in an affidavit of probable cause that resulted in a criminal complaint against him in retaliation for his opposition to the county's alleged discrimination against disabled persons. Douris v. Schweiker, No. 02-1749, 229 F. Supp. 2d 391 (E.D. Pa. 2002).

Medical Care

     Evidence was insufficient to support jury's award in favor of motorist claiming that officer was deliberately indifferent to his serious medical needs following a vehicle accident, as it did not support the conclusion that the motorist suffered from a cerebral edema. Trial court properly set aside jury's award of $50,000 in compensatory damages and $250,000 in punitive damages to the plaintiff. Best v. Town of Clarkstown, No. 02-7664, 61 Fed. Appx. 760 (2nd Cir. 2003).

Negligence: Vehicle Related

     Sheriff's office was not entitled to the dismissal, with prejudice, of a pedestrian's claim for injuries arising out of being struck by the side mirror of a patrol car based on a videotape showing her performing tasks that she denied, in a deposition, being able to do because of her injuries. Jacob v. Henderson, #2D01-5718, 840 So. 2d 1167 (Fla. App. 2003).

     Woman who gave birth to a brain-damaged boy after a 1997 car accident with a police vehicle receives an $8.1 million settlement from municipality employing officer. Her lawsuit alleged that the officer was responsible for the accident. Lara v. Village of Barrington Hills, No. 98L4793, Circuit Court of Cook County, Ill., reported in Chicago Daily Law Bulletin, p. 3 (June 10, 2003).

Police Plaintiff: Privacy

     Police officers stated a claim against an arrestee for violating a Massachusetts state statute prohibiting unconsented to interception of wire and oral communications in alleging that he surreptitiously made a tape recording of his arrest, transportation, and booking. Gouin v. Gouin, No. CIV. A.2001-10890-RBC, 249 F. Supp. 2d 62 (D. Mass. 2003).

Procedural: Class Action

     In a class action lawsuit against a city and two of its officers, claiming racially discriminatory law enforcement practices, African-American advocacy organization would be permitted to withdraw as class representative when a civil liberties organization would continue to adequately represent the class. In Re: Cincinnati Policing, No. C-1-99-3170, 214 F.R.D. 221 (S.D. Ohio 2003).

Procedural: Evidence

     In case where elderly couple challenged the validity of search warrant for their home, defendants could be required to either produce a confidential informant for an "in chambers" deposition, to reveal his identity, or to convince the court that, for reasons of safety, his identity need not be revealed. In the alternative, the defendants could be barred from presenting any evidence at trial based on the alleged existence of the informant. Smith v. City of Detroit, No. 01-70740, 212 F.R.D. 507 (E.D. Mich. 2003).

Procedural: Police Records/Reports

     Newspaper was entitled to inspect police records relating to alleged police misconduct, including records relating to internal investigation, except for disciplinary letter issued by police chief to officer detailing findings of investigation. Letter was a "personnel record" exempt from disclosure under Massachusetts state public records law, but other documents relating to citizen's allegations of police brutality, including police reports, witness interview summaries, and internal affairs report were not "personnel records" protected from disclosure. Worchester Telegram & Gazette Corporation v. Chief of Police of Worcester, No. 02-P-1632, 787 N.E.2d 682 (Mass. App. 2003).

Property

     Federal appeals court rules that plaintiff could not pursue his federal civil rights claim seeking damages for the alleged taking of gems and money by law enforcement officers during the search of his home without first successfully setting aside his federal narcotics conviction that grew out of the search. The plaintiff was, in effect, challenging his conviction, claiming that he had tried to sell gems to the officers, rather than heroin, as they claimed, and that they stole the gems and framed him for the drugs. Under Heck v. Humphrey, 512 U.S. 477 (1994), a convicted criminal may not bringing a civil suit questioning the validity of his conviction until he has gotten the conviction set aside. Okoro v. Callaghan, No. 02-2033, 324 F.3d 488 (7th Cir. 2003).

Public Protection: Motoring Public & Pedestrians

Police officers' failure to arrest minor intoxicated motorist results in $1.14 million award against officers and municipality for the subsequent death of his passenger in a vehicle accident. Intermediate Illinois appeals court rules that officers, once they had grounds to believe minor was violating state "zero tolerance" law, had no discretion but to enforce the law, preventing him from driving after having consumed alcohol. Their "willful and wanton" failure to do so placed the case outside of the immunity normally granted from liability for failure to make an arrest. Ozik v. Gramins, #01-00-3280, ___ N.E.2d __, 2003 Ill. App. Lexis 846.

Search and Seizure: Home/Business

     Fire chief was entitled to qualified immunity that he issued a citation against the owner of rental properties for refusal to consent to a warrantless inspection of tenants' apartments. The alleged right of the owner, under the Fourth Amendment, to refuse to consent to the warrantless inspection intended to protect the tenants' safety, was not clearly established, so that a reasonable building or fire code enforcement official could have believed that the landlord had no right to refuse entry, so that he could be cited for obstructing access. Grimm v. Sweeney, #01-431, 249 F. Supp. 2d 571 (E.D. Pa. 2003).

Search and Seizure: Search Warrants

     Search warrant for search of home was valid, even if it did not have the magistrate's signature on it. The Fourth Amendment also did not require that the warrant name the person from whom the things sought would be seized, when it did name the place to be searched and what was being searched for. Sadlowski v. Benoit, No. 02-1365, 62 Fed. Appx. 3 (1st Cir. 2003).

     Federal agents did not violate the Fourth Amendment by conducting a search of a warehouse for machineguns under a warrant in which the description of the guns to be found and seized was contained in an affidavit which the court had ordered sealed. Agents left the warehouse owner a copy of the warrant, but not the affidavit, but did furnish a list of the guns seized, and the guns seized did not go beyond the scope of the description in the affidavit. Additionally, even if this action were found to violate the Fourth Amendment, the agents were entitled to qualified immunity under the circumstances because they could reasonably believe that the warrant, issued by the magistrate who ordered the affidavit sealed, was valid. Baranski v. Fifteen Unknown Agents of ATF, No. 3:01CV-398-H, 252 F. Supp. 2d 401 (W.D. Ky. 2003).

Sexual Assault and Harassment

     Allegedly coercing a woman facing cocaine charges into performing oral sex for money with another police officer as part of a sting operation to arrest the officer on soliciting for prostitution charges may have been a battery and violated the woman's due process rights. Federal appeals court holds, however, that officer who allegedly fraudulently threatened woman with 40 years sentence if she did not cooperate was entitled to qualified immunity, since it would not have been obvious to a reasonable officer that this violated her constitutional rights. Sting operation against officer did not violate his rights. Alexander v. Deangelo, #02-3124, 329 F.3d 912 (7th Cir. 2003).

Applicant Rejections

     Job applicant loses his civil rights suit against a city council that blocked his hiring after he pushed a pie into the face of a state senator, to protest a highway project. Greenberg v. City of St. Paul, #02-3283, 2003 U.S. App. Lexis 9777 (8th Cir. 2003).

Arbitration Procedures

     Federal court enforces an arbitration award requiring an employer to reinstate, with loss of six months of back pay, a white employee who referred to a superior as a "fucking nigger." Courts must not set aside arbitration awards in the absence of a clearly violated public policy; the superior did not hear the remark and the worker had a twelve-year record of good employment. GITS Mfg. v. Local 281, 2003 U.S. Dist. Lexis 7963, 91 FEP Cases (BNA) 1286 (S.D.Iowa 2003).

Collective Bargaining - Duty to Bargain

     Illinois appellate court holds that a sheriff could not require jail officers to dispense medications without bargaining with the union, and to arbitrate any impasse. Rock Island Co. Sheriff v. AFSCME L-2025, 2003 Ill. App. Lexis 634 (3rd Dist. 2003).

Conflicts of Interest

     Federal court in Illinois holds that city attorneys and corporation counsel may represent both the city and individuals who are or were city officials or employees and who are being sued in both their individual and official capacities, despite existence of possible conflicts between city and individuals, if there is no evidence of actual conflict at present time, and the individuals have signed waivers stating that they have been informed of potential conflicts. Frazier v. Harris, 2003 U.S. Dist. Lexis 9607, 91 FEP Cases (BNA) 1374 (C.D. Ill. 2003).

Contracts, Consultants and Outsourcing

     A divided Ninth Circuit allows two communist defectors to sue the CIA for compensation allegedly owed them. Doe v. Tenet, #01-35419, 2003 U.S. App. Lexis 10667 (9th Cir. 2003).

     Office of Management and Budget announces the adoption of new bidding rules, designed to allow private businesses to compete more for work that is currently performed by as many as 850,000 government employees. OMB Circular A-76, 71 (46) U.S. Law Week (BNA) 2762 (May, 2003).

Criminal Liability

     The LA Times has reported that, in the last two years, 96 LAPD officers who were accused of wrongdoing have escaped possible criminal prosecution because investigators waited until the statute of limitations had run before submitting the cases to the D.A.'s office. (May 19, 2003).

Disciplinary Appeals & Challenges - In General

A California State Personnel Board decision ordering the reinstatement of a corrections officer was final, and the officer could sue the agency to enforce the order. Lomeli v. Dept. of Correction, 134 Cal.Rptr.2d 179, 2003 Cal. App. Lexis 717 (3rd Dist. 2003).

Disciplinary Investigations

     Federal appeals court dismisses a suit filed by an ex-investigator who was charged with theft, but was never convicted. Probable cause and qualified immunity protected the city and defendants. Savino v. City of New York, No. 02-7108, 2003 U.S. App. Lexis 10263 (2d Cir. 2003).

Disciplinary Offenses - In General

     Although a person has a legal right to defend himself against an assault, an employer's policy prohibiting employees from fighting, even in self-defense if retreat is possible, does not violates a public policy. Escalante v. Wilson's Art Studio, #G029742, 2003 Cal. App. Lexis 842 (4th Dist. 2003).

Disciplinary Offenses - Insubordination

     Supreme Court declines to review the convictions of Navy civilians who refused anthrax vaccinations (bacillus anthracis). Mazares v. Dept. of the Navy, #01-3337, 302 F.3d 1382 (Fed. Cir. 2002); cert. den. 123 S.Ct. 1748 (2003).

     Military court martial convicts a Polish-born Army private who refused to take the inoculation on religious and medical grounds. U.S. v. Pvt. Kamila Iwanowska, Army Ct. Martial (Ft. Drum, NY 2003).

Disciplinary Procedures - In General

     Arbitrator reinstates an officer because management failed to provide him with a Bill of Particulars prior to a predisciplinary conference, as required by the bargaining agreement. Stark County Sheriff and FOP, 118 LA (BNA) 407 (Feldman, 2003).

Disciplinary Punishment - In General

     Terminations of officers, who failed to get insulin for a prisoner who was found dead in his cell, are overturned. Appeal of Miles, et al., Detroit Police Trial Board (2003); also see Thomas v. City of Detroit, #00-CV-72899 (E.D. Mich., 2003).

Drug Screening and Specimen Testing

     Failure to promptly order a drug test, following an anonymous call, flawed the city's case against a worker. The fact a coworker tested positive is still not enough proof, and an arbitrator orders reinstatement. City of Indianapolis and AFSCME C-62, 118 LA (BNA) 357 (Kohn, 2003).

     Arbitrator upholds termination of an employee who diluted his urine sample; unlike a positive result, a confirming test was not required. County of Wayne and Mich. AFSCME L-101, 118 LA (BNA) 417 (Brodsky, 2003).

Employee Harassment - Nonsexual

     A male Title VII plaintiff could not demonstrate that he was discriminated against "because of" his gender by male coworkers, who allegedly did not think that he fit the male stereotype and might be gay. Hamm v. Weyauwega, #02-2529, 2003 U.S. App. Lexis 11701 (7th Cir. 2003).

Entrapment

     Seventh Circuit upholds the firing of an officer who was "set up" in a sting operation. Other officers arranged for a woman to perform a sex act and then ask him for $17 to pay a manicurist. Alexander v. DeAngelo, #02-3124, 2003 U.S. App. Lexis 10244 (7th Cir. 2003).

FLSA - Overtime - in General

     Supreme Court rules that a FLSA claim, filed in state court, can be removed from state to federal court. Breuer v. Jim's Concrete, #02-337, 123 S.Ct. 1882, 2003 U.S. Lexis 3677 (2003).

Family, Medical & Personal Leave

     Constitutionality: Supreme Court rules that the Congress clearly abrogated the Eleventh Amendment immunity of state governments when it enacted the FMLA. Nevada Dept. of Human Resources v. Hibbs, #01-1368, 123 S.Ct. 1972, 2003 U.S. Lexis 4272 (2003).

Firearms - Restrictions on Wearing

     Congressman Steve Israel (D-NY) has introduced H.R.1064, to authorize Federal Bureau of Prison personnel to carry firearms while off duty. The Bill was referred to the House Judiciary Committee (Subcommittee on Crime, Terrorism, and Homeland Security).

Handicap Laws / Abilities Discrimination - Specific Disabilities

     Federal court rejects a discrimination suit, filed by an ex campus police officer with dyslexia, who was fired for poor performance. Smith v. State Univ. of N.Y., #1:00-CV-1454, 2003 U.S. Dist. Lexis 6835, 14 AD Cases (BNA) 540 (N.D.N.Y. 2003).

Health Insurance & Benefits

     Supreme Court declines to review an en banc appellate decision that held, 9-to-3, that the government was not obligated to honor medical claims of veterans that had enlisted with a promise of lifetime medical benefits. Schism v. U.S., #99-1402, 316 F.3d 1259 (Fed. Cir., en banc 2002); cert. den. #02-1226, 2003 U.S. Lexis 4404 (2003).

Homosexual & Transgendered Employee Rights

     The Governor of Kentucky (Paul Patton, Dem.) has issued Executive Order 2003-533 prohibiting employment discrimination on the basis of sexual orientation or gender identity; it covers 36,000 cabinet department employees and applicants (May 29, 2003). Kentucky is supposedly the only state to also include gender identity discrimination by executive order.

Pay Parity

     Arbitrator enforces a "Me too" clause in a bargaining agreement and awards all union members a $600 retirement contribution that was given to nonunion workers, even though the payment was intended to match similar remuneration given to union members. City of Hillsboro and FOP, 118 LA (BNA) 439 (Imundo, 2003).

Privacy Rights

     Federal court in Seattle strikes down a state statute prohibiting the publication of an officer's home address or phone number. The plaintiff website owner, a critic of local police activity, is entitled to a summary judgment. Sheehan v. Gregoire, # C02-1112C (W.D. Wash. 2003). The state will appeal.

     News reporter convicted of trespass when he went to the front door of a former police officer's home seeking to interview him; he entered through an unlocked gate that had a "no trespassing" sign. Arizona v. Wells, Chandler (Ariz.) Municipal Court (2003).

Psychological Counseling

     The fact that a person participated in psychotherapy as a condition of probation does not waive his therapist-patient privilege, and those records cannot be subpoenaed. The motive for participating in psychotherapy is immaterial as to whether a privilege attaches. Story v. Super. Ct. (Peo.), # H024993, 2003 Cal. App. Lexis 865 (5th Dist. 2003).

Psychological Exams and Standards - Conduct Justifying a Required Exam

     A former employee who claims only that he suffered emotional stress because of the work environment did not place his mental condition in controversy so as to justify a court-ordered psychiatric examination. He did not claim an ongoing mental injury or a psychiatric disorder and he did not sue for the intentional or negligent infliction of emotional distress. Bowen v. Parking Auth. of Camden, #00-5765, 214 F.R.D. 188, 2003 U.S. Dist. Lexis 6913 (D.N.J. 2003).

Race Discrimination - In General

     Federal appeal court affirms an award of $3.5 million in compensatory and $13.3 million in punitive damages, where seven white employees were transferred from their jobs at the main library to dead-end jobs at branch libraries because of their race. Bogle v. McClure, #2-13213, 2003 U.S. App. Lexis 11332 (11th Cir. 2003).

Religious Discrimination

     The ACLU has lost a lawsuit filed in behalf of a veiled Muslim woman who demanded that a Florida driver's license be issued without an unveiled facial photo. Freeman v. St. of Florida, #CIO 02-600, 9th Jud. Cir. Ct. Fla. (2003).

Retirement Rights and Benefits

     Governor of New York (George Pataki, Rep.) has approved Assembly Bill 8352 which will reduce state and local government pension costs by $1.6 billion in the current fiscal year; it restructures the way public employers make contributions to the state's retirement fund.

Sexual Harassment - Same Gender

     California appellate court holds that a county can be liable for a hostile environment claim brought by a worker who complained of same-gender harassment. Sheffield v. Co. of Los Angeles, #B161081, 2003 Cal. App. Lexis 774 (2003).

Sexual Harassment - Verdicts, Settlements & Indemnity

     Three women police officers win $3.5 million for sexual harassment. Frieders v. City of Glendale, #BC263271, 41 (2014) G.E.R.R. (BNA) 638 (L.A. Co. Calif. Super. Ct. 2003).

Union and Associational Activities

Sixth Circuit upholds right of uniformed employees to wear a union-distributed button opposing forced overtime. The nurses were engaged in protected activity that did not involve either a slowdown or work stoppage. Mt. Clemens Gen. Hosp. v. NLRB, #01-2263, 328 F.3d 837, 2003 U.S. App. Lexis 9349 (6th Cir. 2003).

Untruthfulness & Resume Fraud

     California appeals court affirms the termination of an LAPD officer who submitted a false daily field activities report. Haney v. City of Los Angeles, No. B153530, 2003 Cal. App. Lexis 763 (2d Dist. 2003).

Wrongful Discharge/Discipline: Damages & Settlements

     The Justice Dept. pays $85,000 to settle a lawsuit filed by a retired FBI agent, who claimed that he was defamed and forced into early retirement as a result of his work in Travelgate and Filegate. Sculimbrene v. Reno, #99-2010 (settlement 2003); prior opin. at 158 F.Supp.2d 1 (D.D.C.).

Access to Courts/Legal Info

     Prisoner who filed state law medical malpractice claim against prison doctor who allegedly ordered him to return to heavy work despite a back injury was not entitled to appointed lawyer. If inmate's case had merit, court reasons, he should be able to find a lawyer to take it on a contingency fee agreement, despite his indigency. The mere fact that the claim was against an employee of a prison in which he was incarcerated was not an "exceptional circumstance" requiring the appointment of counsel. Gibson v. Tolbert, #02-0190, 102 S.W.2d 710 (Tex. 2003).

Defenses: Notice of Claims

     Prisoner who claimed he was injured while opening a freezer door failed to provide county with notice of his claim within 6 months of the accident as required by the Texas Tort Claims Act, V.T.C.A. Civil Practice & Remedies Code Sec. 101.101(a, c). His claim against the county was therefore properly dismissed. Crane County v. Saults, No. 08-02-00207-CV, 101 S.W.3d 764 (Tex. App. -- El Paso 2003).

Defenses: Service of Summons

     The failure of the state attorney general to provide the address of a former correctional officer to a prisoner seeking to sue him for violating his federal civil rights by retaliating against him for filing grievances was "good cause" for the inmates' delay in obtaining service of process on the former officer. Clemons v. Soeltner, #02-2005, 62 Fed. Appx. 81 (6th Cir. 2003).

Defenses: Statute of Limitations

     Under Nevada law, the "mailbox" rule, which regards notices as submitted to a court when they are placed in the hands of prison officials for delivery to postal officials did not toll (extend) the 2-year deadline for a prisoner's filing of a claim for personal injury against state correctional officials. See NRS 11.190(4). Milton v. Nevada Department of Prisons, #38251, 68 P.3d 895 (Nev. 2003).

Disability Discrimination

     Mentally ill county jail inmates could not pursue their claims for disability discrimination against the county and county officials for alleged degrading treatment. They failed to show that they were denied the benefits of any services, program or activity of the jail, or that violent and self-destructive inmates who were mentally ill were treated any differently than violent and self-destructive inmates not suffering from a mental illness. Atkins v. County of Orange, 251 F. Supp. 2d 1225 (S.D.N.Y. 2003).

Employment Issues

     Substantial evidence supported dismissal of corrections officer for improperly having "avoidable contact" with prisoner, when an enveloped address to him was in her handwriting as was the enclosed letter addressed "Hey Baby." Lombardi v. Dunlap, #WD 61417, 103 S.W.3d 786 (Mo. App. W.D. 2003)

First Amendment

     A prison librarian's alleged filing of an "erroneous" evaluation of a prisoner's performance in his work assignment after the prisoner filed a grievance over an earlier evaluation was not unlawful retaliation in violation of the prisoner's First Amendment rights. The librarian had submitted other negative evaluations of the prisoner's work performance before he ever filed a grievance. Keenan v. Daniel, #02-2059, 63 Fed. Appx. 180 (6th Cir. 2003).

Mail

     Prisoner failed to present any evidence that prison employees, rather than the postal system, were responsible for the failure to deliver his outgoing or incoming mail. Further, one specific incident where he allegedly did not receive the full contents of a letter from his wife was "such a random and isolated incident" that it was "insufficient to establish" a constitutional violation. Okoro v. Scibana, #02-1439, 63 Fed. Appx. 182 (6th Cir. 2003).

Medical Care

     While requiring a convicted youth offender to perform military-style exercises at a one-day "boot camp" was not cruel and unusual punishment, the claim that camp officials waited almost two hours before summoning an ambulance for the minor, who was unconscious and vomiting while suffering heat stroke, if true, was sufficient to constitute deliberate indifference to serious medical needs. Austin v. Johnson, #02-41137, 328 F.3d 204 (5th Cir. 2003).

     Prisoner failed to show that prison officials acted with deliberate indifference to his injured knee by failing to treat it for twenty months. Prison medical personnel examined knee and approved surgery, but the surgery was delayed by the timing of the prisoner's transfers and by scheduling problems with outside doctors. Forstner v. Daley, #02-1954, 62 Fed. Appx. 704 (7th Cir. 2003).

     Alleged action of prison nurse of applying the wrong eye drops to the inmate's eyes was not "deliberate indifference" to prisoner's serious medical needs, but at most, merely negligent or unprofessional conduct in failing to check the medication before administering it. Long v. Lafko, 254 F. Supp. 2d 444 (S.D.N.Y. 2003).

Medical Care: Dental

     Even if it were assumed that oral surgeon acted negligently in removing a piece of tissue from the plaintiff inmate's mouth while failing to extract his impacted wisdom teeth, it would merely be medical malpractice, which is not sufficient to state a federal civil rights claim for deliberate indifference to serious medical needs. Rivera v. Goord, 253 F. Supp. 2d 735 (S.D.N.Y. 2003).

Medical Care: Mental Health

     Montana Supreme Court finds that prison's practice of subjecting certain inmates to behavior modification plans, along with the living conditions in the areas where such inmates were housed, violated the state constitutional right to "human dignity" of mentally ill prisoner and represented cruel and unusual punishment, especially when used as a substitute for medical treatment for disruptive and suicidal prisoner. Walker v. State of Montana, #01-528, 68 P.3d 872 (Mont. 2003).

Prison Conditions: General

     A former Illinois state statute which provided that prisoners should have at least 50 square feet of cell space each did not give an inmate a constitutionally protected right to such living space. Prison officials, therefore, did not violate prisoner's due process rights by assigning him to a cell with another inmate, resulting in each of them having less than 50 square feet each. Court also rejects the argument that the amendment of the statute, 730 ILCS 5/3-7-3, to delete any express reference to a specific per person space requirement increased prisoner's punishment retroactively. Hurst v. Snyder, #02-2891, 63 Fed. Appx. 240 (7th Cir. 2003).

Prison Litigation Reform Act: Exhaustion of Remedies

     Prisoner was barred from pursuing federal civil rights claim that he was placed in danger when prison officials identified him to the general prison population as a gang member when he failed to exhaust available administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(a). Labounty v. Johnson, 253 F. Supp. 2d 496 (W.D.N.Y. 2003).

     Because of a factual issue as to whether an inmate actually filed a grievance, and, if so, whether the correctional facility responded to it, the issue of whether he had exhausted available administrative remedies prior to filing suit, as required by the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(a) could not be decided on a motion to dismiss. Sweet v. Wende Correctional Facility, 253 F. Supp. 2d 492 (W.D.N.Y. 2003).

Prisoner Assault: By Inmates

     Prison investigative agents were not liable for injuries to prisoner placed in a cell with gang members who allegedly physically assaulted him because of his Cuban nationality. Plaintiff prisoner failed to show that the defendants were subjectively aware of the alleged risk to him resulting from placing him in the cell, thus barring a finding of deliberate indifference to a known risk of harm. Verdecia v. Adams, No. 01-1130, 327 F.3d 1171 (10th Cir. 2003).

     Prisoner assaulted by gang members, and attacked yet again when he was moved to a new housing assignment after identifying his assailants, did not show that jail officials were responsible for the second assault. Prisoner failed to provide evidence of his claim that the jail had policies of segregating prisoners by race, and putting predominantly black prisoners in "gladiator cell blocks" in which staff members failed to intervene when fighting erupted. Palmer v. Marion County, #02-2267, 327 F.3d 588 (7th Cir. 2003).

     Prison inspector was not deliberately indifferent to alleged threats of assault by other inmates against prisoner, when he was not involved in investigating these complaints, but rather the prisoner's claim that his food was being poisoned by prison staff putting human waste in his food. Inspector had no knowledge of alleged assault threats to prisoner prior to actual attacks on him in the dining hall. (Prisoner's claims regarding purported food poisoning were concluded to be unfounded and it was recommended that he be sent for psychological intervention). Webster v. Crowley, #02-1998, 62 Fed. Appx. 598 (6th Cir. 2003).

Prisoner Assault: By Officers

     Mere claim that a supervisory prison official was the "maximum authority" at a prison did not serve as a basis for liability for an alleged assault on an inmate by correctional officers, in the absence of any allegation of personal involvement or other proper basis for responsibility. Durran v. Selsky, 251 F. Supp. 2d 1208 (W.D.N.Y. 2003).

Prisoner Discipline

     Prisoner's discipline for stating in a filed grievance that a female correctional officer was rumored to be having sex with male correctional officers did not violate his First Amendment rights. The manner in which the statement was made insinuated that the statement was true and the prisoner had no actual evidence as to the truth of the rumor. Hale v. Scott, 252 F. Supp. 2d 728 (C.D. Ill. 2003).

     Federal appeals court holds that prisoner could bring a civil rights lawsuit over prison discipline without first having the disciplinary proceeding invalidated as long as his claims challenged only the conditions of his confinement, not the fact of the confinement or its duration. Alejo v. Heller, No. 01-1573, 328 F.3d 930 (7th Cir. 2003).

     There was substantial evidence to support a finding of guilt of a prison disciplinary offense of harassment based on the action of the prisoner, a convicted rapist, in sending an unsolicited 4-1/2 page letter to a female employee in a college registrar's office. Prisoner only knew of the employee because she had responded to his earlier letter in which he requested a copy of his transcript, and the letter he then sent contained repeated use of sexual innuendo, requests for personal information and intimate details, and a "suggestion of in-person contact in the near future." Van Bramer v. Selsky, 758 N.Y.S.2d 170 (A.D. 3d 2003).

     Some evidence supported disciplinary finding that prisoner had used clandestine cellular telephone without authorization when one number called was only on his approved calling list and other inmates, who had admittedly used the phone, identified him as among the persons who had used it. Sinde v. Gerlinski, 252 F. Supp. 2d 144 (M.D. Pa. 2003).

Prisoner Suicide

     Parents of Mississippi inmate who committed suicide while incarcerated in county detention facility could not, under state law, pursue wrongful death lawsuit against defendant correctional officials when they were acting within the scope of their authority. State statute, A.M.C. Sec. 11-46-9(1)(m) prohibits inmate's negligence lawsuits against governmental entities and government employees acting within the scope of their authority, and the prisoner's parents "stood in the position" of the inmate in attempting to pursue a claim for wrongful death. Webb v. Desoto County, #2002-CA-00005-SCT, 843 So. 2d 682 (Miss. 2003).

Private Prisons

     A state prisoner's incarceration in a private prison does not raise any federal constitutional claim. Florez v. Johnson, #02-2131, 63 Fed. Appx. 432 (10th Cir. 2003).

Procedural: Removal

     Prisoner failed to state a claim against government entities and public officials for conspiracy in connection with their removal of his federal civil rights lawsuits from state to federal court. The court would not inquire into the motives for such removal. "If the Rules do permit removal, then the case may be removed," whether the motivation is for strategic reasons, out of personal preference or no reason at all. Parks v. State of Indiana, #77A01-0207-CV-266, 789 N.E.2d 40 (Ind. App. 2003).

Property

     Prisoner failed to show a "reasonable factual basis" that a correctional officer had him put on strip cell status to gain access to his personal property and confiscate it. Officer's actions were within the scope of his employment and helped maintain order and discipline in the facility, so he was entitled to immunity under state statute. Higgason v. State, #77A05-02208-CV-362, 789 N.E.2d 22 (Ind. App. 2003).

Religion

     Federal court rules that provisions of federal statute governing a Muslim prisoner's claim violated the Establishment of Religion clause of the First Amendment by applying only to religious practices and thereby providing heightened protection only to inmates seeking to exercise religious rights as opposed to other constitutional rights. Kilaab Al Ghashiyah v. Department of Corrections of Wisconsin, 250 F. Supp. 2d 1016 (E.D. Wis. 2003).

     Federal court finds that New York prisoner was entitled to preliminary injunction against Department of Corrections policy of putting inmates who refused an annual mandatory tuberculosis test on religious grounds into tuberculin hold for one year. Selah v. Goord, 255 F. Supp. 2d 42 (N.D.N.Y. 2003).

Segregation: Administrative

     Michigan state prisoner had no equal protection right to be removed from administrative segregation and returned to the general prison population. Plaintiff's claim that he was "treated differently" from prisoners "with similar needs" did not show that he was a member of a constitutionally protected class and that the defendants intentionally discriminated against him because of his membership in that class. McGaughy v. Johnson, #02-1469, 63 Fed. Appx. 177 (6th Cir. 2003).

Smoking

     Prison officials did not show deliberate indifference to inmate's alleged exposure to second hand tobacco smoke. Prison medical personnel gave inmate medications for symptoms and issued a medical directive that he should be housed with non-smokers. The prisoner presented no evidence that other defendant officials had knowledge of his allegedly smoking related ailments. Garcia v. Maddock, #02-15540, 64 Fed. Appx. 10 (9th Cir. 2003).

Telephone Access

     Recipients of collect calls from Ohio inmates could pursue their claim against counties and telecommunications providers that rates were so unreasonably high as to violate their equal protection right to fundamental freedom of speech and association. Claims against the State of Ohio were barred by Eleventh Amendment immunity, and anti-trust and telecommunications statute claims were not viable. McGuire v. Ameritech Services, Inc., 253 F. Supp. 2d 988 (S.D. Ohio 2003).

Terrorism/National Security Issues

     Two Wisconsin inmates did not have standing to sue Middle Eastern nations such as Iran, Iraq, Syria, the Sudan, and Libya, and terrorist groups such as Al Qaida and the Taliban for millions of dollars in compensatory and punitive damages in a lawsuit filed with the purported intention of "lending a hand" in the war on terrorism. They had personally never been victims of terrorism and were "no more likely than the average American citizen to be victims of future attacks." George v. Islamic Republic of Iran, No. 02-3195, 63 Fed. Appx. 917 (7th Cir. 2003).

Visitation

     U.S. Supreme Court upholds Michigan prison rules limiting visits by children, non-family members, former prisoners, or for prisoners who commit two violations of substance abuse rules. Overton, Director, Michigan Department of Corrections v. Bazzetta, #02-94, 123 S. Ct. 2162 (2003).

     Former correctional officer at Tennessee state prison did not have a due process or equal protection right to visit inmates. Policy of state Department of Corrections restricting former employees' visitation with inmates did not violate the due process rights of former employee to pursue her new profession as paralegal. Former officer could not assert inmates' rights in order to challenge department's policy of restricting former employees from visits, written communication and telephone calls with inmates on the basis that it prevented the inmates from receiving paralegal assistance from the former officer. Engle v. Tennessee Dept. of Corrections, #02-5970, 63 Fed. Appx. 860 (6th Cir. 2003).

Work/Education Programs

     Indiana prisoner was entitled to the benefit of amendments to an educational credit time statute passed after his sentence, allowing him to receive the maximum credit towards his release date for post-amendment educational credits. Cotton v. Ellsworth, #48A04-0204-CV-185, 788 N.E.2d 867 (Ind. App. 2003).