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

Administrative Liability: Training

     City could not be held liable for alleged use of excessive force against arrestee on a theory of failure to provide adequate training when the alleged evidence of deliberate indifference was largely jury verdicts or settlements in a small number of excessive force cases after the incident in question. Even though the incidents which were the subject of these cases occurred before the plaintiff's arrest, there was no evidence that city policy-makers knew or should have known, before her arrest, that officers were using excessive force to the point that additional training was required. Forbis v. City of Portland, 270 F. Supp. 2d 57 (D. Me. 2003).

Arrestee Suicide/Suicide by Cop

     Family of mentally disturbed man who allegedly committed "suicide by cop" could not pursue California state law negligence lawsuit for wrongful death against city and officers following summary judgment for the defendants in their prior federal civil rights lawsuit. Appeals court also finds no violation of California state constitutional rights. City of Simi Valley v. Superior Court (Bayer), No. B166917, 4 Cal. Rptr. 3d 468 (Cal App. 2003).

Assault and Battery: Physical

     Deputy sheriff's use of force in removing arrestee from his automobile, which allegedly caused injuries resulting in paraplegia, is found to be objectively reasonable when arrestee may well have been trying to retrieve a weapon or attempt to flee, and he did not outwardly exhibit "typical signs" of serious pain. Johnson v. County of Los Angeles, No. 02-55881, 340 F.3d 787 (9th Cir. 2003).

     Disputed issues of fact as to whether plaintiff physically resisted arrest and whether officers "slammed" her into a car and kicked her in the ankle made summary judgment on her excessive force claims inappropriate. Minchella v. Bauman, #02-1454, 73 Fed. Appx. 405 (6th Cir. 2003).

Attorneys' Fees: For Defendant

     Trial court properly awarded $44,044 in attorneys' fees to defendants in "frivolous, unreasonable, and groundless" lawsuit filed by woman prosecuted on misdemeanor charges after refusing to obey police officer's orders to leave city council meeting when he told her the chamber was filled to capacity. Plaintiff, who was released on her own recognizance after charges were made against her, was not seized, and no motive to punish her for expressing her opinions about a proposed airport expansion was shown. Attorneys' fee award served to help deter frivolous lawsuits. Karam v. City of Burbank, No. 02-55954, 340 F.3d 884 (9th Cir. 2003).

Damages: Compensatory

     In lawsuit claiming that police officers failed to provide adequate medical care to arrestee, resulting in his death, jury engaged in improper speculation in awarding $3 million to decedent's children without evidence to support a finding that the economic value of the loss of his services, advice, and counsel was worth that amount, and therefore was set aside by trial judge. Separate award of $2.5 million to decedent's estate for his pain and suffering was not disturbed. Rosario v. City of Union City Police Department, 263 F. Supp. 2d 874 (D.N.J. 2003).

Defenses: Notice of Claim

     Arrestee who was mentally incapacitated was entitled to permission to file a late notice of claim in his false arrest, malicious prosecution, and unlawful imprisonment lawsuit against the city. The police department had all the essential facts about the case in its possession and the late notice would not result in any prejudice to the city in defending the case. Nunez v. City of New York, 762 N.Y.S.2d 384 (A.D. 1st Dept. 2003).

Defenses: Release Agreements

     Arrestee's agreement to release the city and police officers of civil liability in exchange for the dismissal of pending domestic violence charges against her was voluntary and enforceable, and there was no evidence of overreaching or prosecutorial misconduct in obtaining the release. Penn v. City of Montgomery, 273 F. Supp. 2d 1229 (M.D. Ala. 2003).

     Arrestee's release of "all" claims against town's chief of police could reasonably be interpreted as releasing claims against the police chief in his individual capacity. When a release does not specify the capacity in which a person is being released, it is reasonable to interpret it as including both their official and individual capacity. Taylor v. Windsor Locks Police Dept., No. 02-0100, 71 Fed. Appx. 877 (2nd Cir. 2003).

Defenses: Sovereign Immunity

     Provisions of Administrative Procedure Act (APA), 5 U.S.C. Sec. 702, waived the federal government's sovereign immunity for purposes of a claim by a former Israeli citizen against the FBI director claiming that a purported 15-year pattern of constant surveillance and harassment violated his civil rights. The statute expressly waives sovereign immunity for any non-monetary relief sought against the government. The plaintiff claimed that the constant surveillance, allegedly because of his expression of "unpopular political opinions" about the Israeli-Arab conflict, resulted in rumors in the area that he was a "spy," individuals breaking into his home, hog-tying him, and severely beating him, and interfered with his ability to re-marry and procreate because the ongoing surveillance "scares away potential dates," as well as making it "nearly impossible to find employment." Raz v. Lee, No. 03-1420, 343 F.3d 937 (8th Cir. 2003).

Defenses: Statute of Limitations

     Arrestee's malicious prosecution claim was barred by a one-year statute of limitations for claims against a municipality. The cause of action against the city accrued, and one-year time period began to run when the charges against the arrestee were first "stricken with leave to reinstate," not when the 160-day time period for reinstating the charges expired. Ferguson v. City of Chicago, #1-02-2463, 795 N.E.2d 984 (Ill. App. 1st Dist. 2003).

     Father's claim that he was falsely imprisoned in his hotel room by police who surrounded it and demanded, without justification, that he release his children, was barred by one-year statute of limitations when he failed to file lawsuit until two years and seven months had elapsed from the incident. Southern v. Jones, No. 2002-CP-01027-COA, 851 So. 2d 395 (Miss. App. 2003).

Dogs

     Deputy's use of a police dog to "bite and hold" an arrestee's arm for approximately one minute did not constitute the use of deadly force and it was not excessive force when suspect was wanted for a felony offense of fleeing from police by driving a car in "willful disregard" for the lives of others. Miller v. Clark County, No. 02-35558, 340 F.3d 959 (9th Cir. 2003).

     Family could not recover damages for loss of consortium or intentional infliction of emotional distress based on county dog warden's shooting of their pet dog. Loss of "love and affection" from death of dog was not the kind of damages family could obtain under Kentucky state law, the shooting did not take place in front of the family, and there was no evidence that defendant intended, by his actions, to inflict emotional harm. Court also refuses to find a practice of destroying impounded dogs by shooting them inhumane, leaving such issues to be decided by the legislature. Ammon v. Welty, No. 1999-CA-001759-MR, 113 S.W.3d 185 (Ky. App. 2003).

False Arrest/Imprisonment: No Warrant

     U. S. Supreme Court to review whether it violates the Fourth Amendment for a state law to require that a person identify himself to a police officer or else face arrest. Hiibel v. Dist. Court., No. No. 38876, 59 P.3d 1201 (Nev. 2002), cert. granted, Hiibel v. Sixth Judicial Dist. Ct., No. 03-5554, 2003 U.S. Lexis 7710 (Oct. 20, 2003).

     Failure to provide a woman with a judicial hearing on probable cause until 72 hours following her warrantless arrest on drug charges violated her clearly established Fourth Amendment rights, so that defendants were not entitled to qualified immunity, and the arrestee's alleged involvement in an ongoing drug investigation was not an extraordinary circumstance that could justify the delay. But officers' conduct in transporting and detaining the arrestee's two-year old daughter along with the arrestee while she cooperated with attempting to make a controlled drug purchase was not a clearly established civil rights violation. Cherrington ex rel. Cherrington v. Skeeter, No. 01-3637, 344 F.3d 631 (6th Cir. 2003).

False Arrest/Imprisonment: Warrant

     Officers had probable cause to arrest suspect under fugitive warrant even though his height was 7 inches taller than the description in the warrant, when the warrant appeared to be valid and exactly matched the arrestee's address, date of birth, and name. Johnson v. Kings County District Attorney's Office, 763 N.Y.S.2d 635 (A.D. 2nd Dept. 2003).

     State trooper had no duty to investigate arrestee's claim of innocence after she was arrested under a warrant for another person with the same last name and a similar birthdate, since his only job was to transport arrestee from one facility to another. Cleveland v. City of Detroit, 275 F. Supp. 2d 832 (E.D. Mich. 2003).

     Undercover narcotics investigator acted reasonably in arresting allegedly mentally incompetent child after he was identified as the person on a videotape selling cocaine to the officer. Arrest was made pursuant to a warrant issued after the suspect on the videotape was identified from a high school yearbook and school I.D., as well as by a high school assistant principal. Wilson v. Vickery, 267 F. Supp. 2d 587 (E.D. Tex. 2002).

First Amendment

     Police officers were not entitled to qualified immunity for allegedly arresting and using excessive force against civil rights activists who attempted to make video and audio tape records of their traffic stops in retaliation for their criticism of police. Plaintiffs had a clearly established First Amendment right to criticize and journalistically record traffic stops. McCormick v. City of Lawrence, 271 F. Supp. 2d 1292 (D. Kan. 2003).

     Motorist could not recover damages on her claim that state trooper wrote a citation against her to retaliate for her husband's accusations that he was mishandling an accident investigation. Court finds that husband's free speech was not "chilled" by the allegedly retaliatory issuance of the traffic citation, since the husband continued his argument with the trooper after the citation was issued, and also later complained about the incident to the trooper's superior. Persaud v. McSorley, 275 F. Supp. 2d 490 (S.D.N.Y. 2003).

Forfeiture

     Car owner whose vehicle was seized and subject to forfeiture proceedings after another person driving it was arrested for attempting to purchase marijuana could not pursue federal civil rights lawsuit asserting that the forfeiture was a violation of due process while the state forfeiture proceeding's direct appeal process was not yet complete. Loch v. Watkins, No. 01-1598, 337 F.3d 574 (6th Cir. 2003).

Governmental Liability: Policy/Custom

     Plaintiff in lawsuit alleging physical assault by unnamed sheriff's deputies failed to allege any facts sufficient to show a "pattern or practice" of such action by deputies sufficient to impose municipal liability. No other instances of such actions were alleged. Yates v. Unidentified Parties, No. 02-31224, 73 Fed. Appx. 19 (5th Cir. 2003).

Interrogation

     Officer's failure to give Miranda rights warnings to an arrestee before questioning him about whether he had a license for the gun that was discovered in plain view in his parked automobile did not violate the arrestee's Fifth Amendment rights and could not form the grounds for a federal civil rights lawsuit. Seizure of weapon from the passenger area of the auto for the purpose of ensuring the officer's safety also upheld as proper, and arrestee could not pursue a false arrest claim in the absence of any evidence that his conviction on charges of possession of a firearm by a convicted felon had been overturned. Mosley v. Yaletsko, 275 F. Supp. 2d 608 (E.D. Pa. 2003).

Malicious Prosecution

     Probable cause existed to arrest and prosecute plaintiff for harassment in allegedly faxing pictures with faces of a famous couple superimposed on the bodies of nude models based on many complaints made against him for allegedly faxing such photos, and his previous history of harassment of the famous couple [Marla Maples Trump and Donald J. Trump]. His federal civil rights claims were therefore properly dismissed. Jones v. Trump, #02-7650, 71 Fed. Appx. 873 (2nd Cir. 2003).

Negligence: Vehicle Related

     Police officer was 100% at fault for collision with motorist's vehicle at intersection when, despite speeding to respond to a report of a sexual assault, he failed to activate his siren, making it impossible for the motorist to avoid the collision by the time she observed the officer's car during her left turn. Pope v. Prunty, No. 37,395-CA, 852 So. 2d 1213 (La. App. 2nd Cir. 2003).

Other Misconduct: Access to Courts

     Children of African-American woman shot and killed in drive-by shooting during 1960's period of racial unrest could not recover damages based on alleged obstruction by sheriff's office of efforts to investigate the shooting. Alleged interference, while "inexcusable" if true, was insufficient to constitute a claim for a violation of the right of access to the courts, since it would not have prevented the plaintiffs from filing a wrongful death lawsuit within the applicable statute of limitations. Chappell v. Rich, No. 02-10200, 340 F.3d 1279 (11th Cir. 2003).

Police Plaintiff: Firearms Related

     Arresting officer's statement to booking officer that the arrestee's handgun had been confiscated at the arrest site, which turned out to be incorrect, was not a due process violation making him liable to the estate of a fellow officer shot and killed by the arrestee during the booking process with the handgun he had managed to retain during his arrest. Wouters v. City of Warren, No. 01-2642, 73 Fed. Appx. 87 (6th Cir. 2003).

Positional Asphyxia

     Officers' alleged actions of pressing their weight onto the neck and torso of a mentally ill detainee as he lay handcuffed on the ground and begged for air, if true, constituted an excessive use of force for which the officers were not entitled to qualified immunity. Drummond v. City of Anaheim, No. 02-55320, 343 F. 3d 1052 (9th Cir. 2003).

Procedural: Discovery

     Officers who arrested a man after a 911 call reported shots fired are not required to submit voice exemplars on the basis of arrestee's claim that the officers made the call themselves to furnish an excuse to stop his vehicle and conduct a search, in the absence of any "substantial and credible evidence of wrongdoing by the police tending to exculpate the defendant." The court expressed its belief that "compelling the police to submit to procedures which inherently question their integrity should not be undertaken lightly and to do so based upon mere bald allegations or suppositions would undermine the public trust in the police and seriously undermine police morale." The case is evidently one of first impression (not previously decided) by a New York court as to whether voice exemplars are discoverable under these circumstances. The context of the decision is discovery in a criminal prosecution, not a civil lawsuit. People v. Blankymsee, 764 N.Y.S.2d 331 (Sup. 2003).

Public Protection

     Federal trial court declines to dismiss lawsuit against owners and those responsible for security for the World Trade Center (and airlines) for damages arising out of September 11, 2001 terrorist attack. Defendants had a duty to take reasonable security precautions in screening airline passengers, and in planning and implementing appropriate fire and security plans for World Trade Center. Failure to plan for foreseeable risks of harm, including terrorist attack, can be a basis of liability. In Re: September 11 Litigation, 21 MC 97 (AKH), 2003 U.S. Dist. Lexis 15522 (S.D.N.Y.).

Public Protection: Arrestees

     Police officer was not liable for arrestee's drowning in nearby retention pond after he escaped from custody, since failing to handcuff or search the arrestee prior to escorting him to the car was no violation of his rights, and the officer had no intention of causing harm in allowing the arrestee to escape custody. Officer's alleged failure to rescue him from the pond was also no basis for liability, since there is no Fourth Amendment "right to be seized." Purvis v. City of Orlando, 273 F. Supp. 2d 1321 (M.D. Fla. 2003).

Public Protection: Crime Victims

     Nebraska Supreme Court overturns $300,000 award to woman assaulted in her home by a former boyfriend while he was on probation. No special relationship existed between crime victim and the state which gave rise to any specific duty to protect her from her former boyfriend. Bartunek v. State, No. S-02-710, 666 N.W.2d 435 (Neb. 2003).

Public Protection: Intoxicated Persons

     Police officers were entitled to qualified immunity on a claim that they violated the due process rights of a motorcyclist by ordering him to ride his bike away from a restaurant premises despite his allegedly intoxicated condition at the time. The officers exercised their discretion in good faith in making a determination as to the degree of his impairment at the time, and therefore were not liable for his subsequent death. Morris v. Johnson, No. A03A0111, 585 S.E.2d 375 (Ga. App. 2003).

Pursuits: Law Enforcement

     Further proceedings ordered on wrongful death lawsuit brought by estate of woman struck and killed by vehicle pursued by police in high-speed chase. Court finds genuine issues of material fact as to whether officer acted in a willful and wanton manner in chasing the suspect's car at high speed through commercial and residential suburban streets, knowing that the pursued vehicle was running stop signs and red lights, and whether it was reasonably foreseeable, under these circumstances, that a third party would be injured. Suwanski v. Village of Lombard, #2-02-0905, 794 N.E.2d 1016 (Ill. App. 2nd Dist. 2003).

Search and Seizure: Home/Business

     Seizure of old truck from residential property without a warrant or any exigent circumstances under the authority of an abandoned property ordinance, if true, would violate landowner's clearly established Fourth Amendment rights, so defendant city officials were not entitled to qualified immunity. Gould v. Symons, 275 F. Supp. 2d 843 (E.D. Mich. 2003).

Search and Seizure: Media Presence

     County's action in videotaping county correctional officer when he was escorted to a car to be transported to a police station for booking in a "perp walk" manner was a "seizure" under the Fourth Amendment, but his privacy interest in not having the videotape broadcast to the public is found to be outweighed by a legitimate governmental purpose in informing the public about efforts to stop abuse of disability benefits by its employees and to deter others from attempting similar crimes. Caldarola v. County of Westchester, No. 01-7457, No. 01-7457, 343 F.3d 570 (2nd Cir. 2003).

Arbitration Procedures

     Arbitrator declines to stay a grievance hearing because management also is pursuing a remedy with the Federal Labor Relations Authority. Bur. of Customs and NTEU, 118 LA 1371 (Abrams, 2003).

Civil Liability and Indemnity

     A divided federal appeals court holds that a Michigan city was not obliged to pay the $300,000 settlement agreed to by two police officers that stole a woman's cocker spaniel. Hudson v. Coleman, #01-1653, 2003 U.S. App. Lexis 20865 (6th Cir. 2003).

Criminal Liability

     Utah police officer sentenced to a year in jail for bigamy and underage sex with a 16-year old girl he took as a third wife. The Fundamentalist Mormon officer's certification was revoked by the P.O.S.T. Recently the state legislature amended the Criminal Code by making child bigamy a second degree felony with a 1 to 15 year term of imprisonment; Utah Code Anno. 76-7-101.5. State v. Holm, (5th Dist. Ct. Wash. Co. 2003).

Collective Bargaining - Duty to Bargain

     California appeals court holds that a city must bargain with the union over the adoption of a traffic stops policy that was implemented to prevent racial profiling. Claremont POA v. City of Claremont, #B163219, 112 Cal.App.4th 639, 2003 Cal. App. Lexis 1529 (3d Dist. 2003).

Defamation - In General

     Federal court rejects a civil rights lawsuit filed by officers who complain that an internal investigation of the behavior was biased, but they may be able to prove that statements made by an investigator were defamatory. Keim v. Co. of Bucks, 275 F.Supp.2d 628 (E.D. Pa. 2003).

Disciplinary Appeals

     Illinois appellate court rejects a management claim that terminated public employees cannot seek arbitration before pursuing a civil service appeal. Contract language prevails. City of Loves Park v. Illinois Labor Rel. Bd., #2-03-0020, 2003 Ill. App. Lexis 1261 (2nd Dist. 2003).

Disciplinary Interviews & Compelled Reports - Right to Legal Counsel

     California appeals court upholds a compelled disciplinary interview, without the officer's lawyer present, when counsel was unable to appear for a rescheduled interview. Upland POA v. City of Upland, #E032607, 111 Cal.App.4th 1294, 4 Cal.Rptr.3d 629 (Cal. App.4th Dist. 2003).

Disciplinary Procedures - Double Jeopardy / Punishment

     Arbitrator overturns the firing of a public employee who was suspended for six days, but shortly afterwards was fired for an accumulation of disciplinary offenses. The discharge was barred by double jeopardy. Transit Auth. of River City and Amal. Transit Union L-1447, 118 LA (BNA) 939 (Goggin, 2003).

Discovery, Publicity and Media Rights

     The Florida Supreme Court has unanimously ruled that the City of Clearwater was not required to release the personal e-mails of city employees simply because they were sent on city-owned computers while on city time. Times Publishing Co. v. City of Clearwater, #2SC02-1694, 2003 Fla. Lexis 1534 (2003).

     Appellate court denies a FOIA request for the cellular phone records of five staff members of the Florida House of Representatives. The Republican Party, not the state, paid for the cellular phones. Media Gen. Oper. v. Feeney, #02-2849, 849 So. 2d 3 (Fla. App. 1st Dist. 2003).

E-Mail/Internet - Legal Issues

     Employer loses its suit against an ex-worker for cyber trespassing. A plaintiff must demonstrate actual harm to obtain injunctive relief or damages. Intel v. Hamidi, #S103781, 30 Cal.4th 1342, 71 P.3d 296 (Cal. 2003).

     Arbitrator holds that management had just cause to suspend the union president for accessing sexually explicit websites with his work computer, despite his claim that he was doing so to learn if management had blocked certain websites. He knew he was not supposed to access sexually explicit materials and accessed the site when he was not scheduled to work and when no one else was present. U.S. Dept. of Agriculture and AFGE L- 3354, 118 LA (BNA) 1212 (Cook, 2003).

Hairstyle and Appearance Regulations

     Appeals court rejects a "non-theistic" freedom of religion claim by a corrections worker to have long hair. Sincere beliefs do not implicate religious rights. Luken v. Brigano, #CA2003-01-007, 2003 Ohio 5116 (12th Dist. 2003).

Handicap Laws / Abilities Discrimination - Psychiatric

     Federal Court finds that Title II of the ADA does not apply to an officer's on-the-street responses to reported disturbances or other similar incidents, whether or not those calls involve subjects with mental disabilities, prior to the officer's securing the scene and ensuring that there is no threat to human life. However, the ADA requires police agencies to adopt policies and procedures for dealing with mentally ill persons, and that a failure to train police officers to peacefully deal with mentally ill persons is a violation of §12132 of the ADA. Schorr v. Bor. Lemoyne, #1:CV-01-930, 243 F.Supp.2d 232 (M.D. Pa. 2003).

Handicap Laws / Abilities Discrimination - Specific Disabilities

     A District of Columbia Government worker fails to convince the court that his severe skin condition, which caused sleep problems, was a disability under the ADA. Haynes v. Williams, #01-454, 2003 U.S. Dist. Lexis 14842 (D.D.C. 2003).

Past Practices, Precedents & Zipper Clauses

     Arbitrator rejects a claim that there was a recognized past practice that allowed the sheriff to disregard a seniority clause in the bargaining agreement. There was no proof of a "public safety" necessity to warrant making a involuntary shift reassignment. Lincoln Co. Sheriff's Dept. and Teamsters L-2, 118 LA (BNA) 1340, FMCS Case 02/0318-06959-7 (Calhoun, 2003).

Physical Fitness Requirements, Agility Tests and Standards

     Federal court rejects the necessity of a timed, five-part agility test for prison chaplains. One size fits all testing was unnecessary in the case of clergy. Jeffrey v. Ashcroft, #3:CV-00-1442 (E.D.Pa. 2003).

Privacy Rights

     Two Little Rock police officers awarded $450,000 after their personnel files were found in the jail cell. City had released the files to the defendant's lawyer. Hart v. Little Rock, #4:02-cv-576, 41 (2028) G.E.R.R. (BNA) 1004 (E.D. Ark., verdict 9/12/03).

     Federal appeals court overturns a summary judgment for a corrections officer who sued to block management from getting a medical opinion on her fitness. Although the ADA prevents generalized medical inquiries, management must be allowed offer a valid business reason to justify the intrusion. Conroy [Fountain] v. N.Y. St. Dept. of Corr. Serv., #02-7415, 333 F.3d 88 (2nd Cir. 2003).

     Supreme Court declines to review a lawsuit brought by a male corrections officer who objected to the fact a woman monitor allegedly observed his genitals while he provided a urine sample. Booker v. City of St. Louis, #02-1114, 309 F.3d 464 (8th Cir. 2002); cert. den., #02-1511, 2003 U.S. Lexis 5504 (2003).

Promotional Rights, Procedures and Performance Appraisals

     Arbitrator declines to set aside a promotion because some candidates used a laptop or materials during the written essay portion. City of Edmond and FOP L-136, 118 LA (BNA) 1094 (Bankston, 2003).

Race and National Origin Discrimination

     Federal jury awards $475,000 to a black Haitian city worker who claimed promotional discrimination because of his race and national origin. St. Fleur v. City Fort Lauderdale, #00-7884, 41 (2029) G.E.R.R. (BNA) 1028 (S.D. Fla. 2003).

Race and Sex Discrimination

     EEOC adopts a new federal sector management directive that emphasizes general principles for achieving equal employment opportunity goals and agency self-assessments of their progress. Management Directive 715 (eff. Oct. 1, 2003).

Releases & Waivers

     Federal appeals court sets aside a $135,000 punitive damages award for sexual harassment, won by a Community Policing secretary. She had previously accepted $21,300 when she signed a "general release of all claims asserted or unasserted." Bandera v. City of Quincy, #02-2307, 344 F.3d 47 (1st Cir. 2003).

Residency Requirements

     Arbitrator concludes that a 7-mile requirement means "as the crow flies" and not vehicle miles. Response time has never been a problem in the city. City of Robinson and Illinois FoP Labor Council, 118 LA (BNA) 1276 (Suntrup, 2003).

Sexual Harassment - In General

     Arbitrator concludes that an employee was not the victim of sexual harassment, where one supervisor allegedly made "suggestive comments" and another supervisor supposed pried into her personal business. Southern Nuclear Operating and IBEW L-84, 118 LA (BNA) 1227 (Barry Baroni, 2003).

Sexual Harassment - Retaliation

     Arbitrator holds that an employee was fired for poor performance, and not in retaliation for her complaint of sexual harassment. Management dismissed her for being distracted, lazy, and tardy. Southern Nuclear Operating and IBEW L-84, 118 LA (BNA) 1227 (Barry Baroni, 2003).

Sexual Harassment - Same Gender

     A divided federal appeals court holds that college security officers cannot recover under §1983 for same-gender sexual harassment, occurring between 1983 and July 1998. Same gender harassment was not recognized as actionable in federal court until after that time period. Snider v. Jefferson State Community College, #02-12472, 2003 U.S. App. Lexis 19070 (11th Cir.).

Sexual Harassment - Verdicts, Settlements & Indemnity

     Kentucky Supreme Court upholds a $120,000 compensatory damages verdict for a woman corrections officer who was passed over for promotion 26 times after she filed a sexual harassment complaint; punitive damages not available under state law. Kentucky Dept. of Corr. v. McCullough, #2000-SC-0727-DG, 2003 Ky. Lexis 180 (Ky. 2003).

Stress Related Claims and Defenses

     Arbitrator reinstates, but without back pay, a private sector employee who left work without management's consent. He suffered from job stress and could have misunderstood that he had permission to leave work. SMG and Intn'l Alliance L-12, 118 LA (BNA) 1239 (Goldberg 2003).

Taxation

     State prison guard who was injured while restraining an inmate, sued for lost wages. His front and back pay awards are taxable under sec. 104 of the IRC, because the awards were not paid to compensate him for the injury itself. Johnson v. U.S., #02-1330, 2003 U.S. App. Lexis 18733 (unpubl. 10th Cir. 2003).

Union and Associational Activity

     California appeals panel holds that a teacher's wearing of a union button in the classroom constitutes "political activity," which may be prohibited by management. Turlock Elem. Sch. Dist v. P.E.R.B., #F041187, 2003 Cal. App. Lexis 1513 (5th Dist. 2003).

     Federal appeals court affirms the right of nonunion members to obtain financial information justifying a deduction for bargaining activities. Although an independent audit is not required, a union must provide a statement of its chargeable and nonchargeable expenses, together with an independent verification that the expenses were actually incurred. Harik v, Cal. Teachers Assn., #01-15590, 326 F.3d 1042 (9th Cir. 2003); cert. den. sub nom Sheffield v. Aceves, 2003 U.S. Lexis 7714 (2003).

Wrongful Discharge - In General

     Federal appeals court affirms the dismissal of a §1983 wrongful discharge and retaliation lawsuit. There was insufficient evidence of retaliation. Rosenfeld v. Egy, 03-1320, 2003 U.S. App. Lexis 20124 (1st Cir. 2003).

Access to Courts/Legal Info

     Prison was entitled, under the terms of the Prison Litigation Reform Act, to the termination of a 14-year-old injunction that required a prison law clinic to remain open. Preclusion of termination of injunction if needed to correct a "current and ongoing" violation of a federally protected right did not cover possible future violations. Para-Professional Law Clinic at SCI-Graterford v. Beard, No. 02-2788, 334 F.3d 301 (3rd Cir. 2003).

     Prison rule limiting inmates to a monthly allotment of $10 for postage did not improperly interfere with prisoner's right of access to the courts. Rule was rationally connected to legitimate interest in permitting access, on an equal basis, for prisoners, given the limited funds available. Bronson v. Horn, 830 A.2d 1092 (Pa. Cmwlth 2003).

Disability Discrimination: Prisoners

     Prisoner with an unstable right shoulder stated a viable claim for disability discrimination by contending that correctional personnel knew of medical instructions that he should not be handcuffed behind his back, but ignored them, refusing to accommodate his injury by cuffing him with his hands in front. Bane v. Virginia Department of Corrections, 267 F. Supp. 2d 514 (W.D. Va. 2003).

Employment Issues

     A probationary employee of a community corrections center was entitled to an opportunity to be heard before being terminated and was denied due process when she was not told why she was being offered a choice between quitting or being fired. McClain v. Northwest Comm. Corrections Cent., 268 F. Supp. 2d 941 (N.D. Ohio 2003).

False Imprisonment

     Prisoner who claimed that his sentence had been miscalculated, resulting in him being held beyond his proper release date, could not seek damages following his release when he had failed to previously have his sentence set aside. The fact that, after his release, habeas action to challenge the constitutionality of his sentence was no longer available did not alter the result. Mitchell v. Dept. of Corrections, 272 F. Supp. 2d 464 (M.D. Pa. 2003).

First Amendment

     Correctional officers accused of retaliation against prisoner for supporting another inmate's excessive force claim by pursuing disciplinary charges against prisoner would not be liable for violation of his First Amendment rights if they could demonstrate "dual motivation," showing that even without their "improper" motivation, the prisoner would have been subjected to the same actions. Scott v. Coughlin, #99-0365, 344 F.3d 282 (2nd Cir. 2003).

Home Detention, Home Release

     Removal of offender from home detention program for failure to obtain full-time employment was a deprivation of liberty, entitling him to due process, but county community corrections agency did not order him jailed, since only a court had the power to do so. The plaintiff was arrested under a warrant and spent 3 days in custody. A subsequent court hearing determined that he was mentally disabled, and therefore excused from the condition of obtaining full time employment. He was then reinstated in the home detention program. If there was any erroneous deprivation of due process, it was by the probation officer and the state court that issued the arrest warrant at the officer's request. No civil rights claim could be pursued against the community corrections agency for merely reporting to the probation officer a probable violation of a condition of probation. Paige v. Hudson, #02-4317, 341 F.3d 642 (7th Cir. 2003).

Inmate Funds

     Pennsylvania prisoner had no due process right to a hearing concerning the amount that the Department of Corrections would deduct from his inmate account to pay sentenced costs, fines, and restitution. Ingram v. Newman, 830 A.2d 1099 (Pa. Cmwlth. 2003).

Mail

     Federal appeals court rules that the issue of which mail is "legal mail" which should only be opened in the prisoner's presence, after they request this, should not have been submitted to a jury, but rather decided by a judge. Jury award of $13,000 is reduced to $3,000 for the improper opening of three letters from a prisoner's attorney outside his presence. While mail from courts is also found to be "legal mail," prison mail clerks were entitled to qualified immunity for the opening of such letters, since the law on the subject was not previously clearly established. Sallier v. Brooks, No. 01-12269, 343 F.3d 868 (6th Cir. 2003).

     Lack of written authorization from prison superintendent for opening and inspection of prisoner's outgoing legal mail did not render inspections unlawful when there was a reasonable basis for the belief that the prisoner was attempting to smuggle his own mail out of the facility through the use of other prisoner's return addresses on his envelopes. Tafari v. Selsky, 764 N.Y.S.2d 149 (A.D. 3d Dept. 2003).

Medical Care

     Award of $108,000 for deliberate indifference to prisoner's serious hand injury overturned by appeals court. Many factors, including prisoner's own failure to seek treatment when he was not incarcerated, contributed to severity of condition, and some facts which caused a delay in surgery or the allegedly inadequacy of post-surgical care were beyond the defendants' control. Hernandez v. Keane, #00-347, 341 F.3d 137 (2nd Cir. 2003).

     Prisoner's claim that he did not receive the specific medication he wanted to relieve rashes and itching from his allergies did not establish deliberate indifference to his serious medical needs when he received "extensive" medical attention for his problems. Kretchnar v. Commonwealth of Pennsylvania, No. 130 M.D. 2003, 831 A.2d 793 (Pa. Cmwlth. 2003).

     Prisoner who suffered a wrist injury during a prisoner assault failed to establish that warden acted with deliberate indifference to his serious medical needs, based on the fact that surgery only took place nine days after the injury. The prisoner was seen by a number of doctors and there was no evidence that the warden ever intentionally withheld medical care, ignored the prisoner's complaints, or knew that the prisoner was in need of immediate surgery or that a delay was likely to lead to serious medical consequences. Shafer v. Carmona, #02-41175, 71 Fed. Appx. 350 (5th Cir. 2003).

Overcrowding

     Federal trial court had continuing jurisdiction over class of county inmates who brought lawsuits over detention facility overcrowding. Inmates who were moved to a new facility after settlement in the case were entitled to a preliminary injunction against restrictions which prevented their lawyer from visiting and restricted his phone calls to five minutes. McClendon v. City of Albuquerque, No. Civ. 95-23-Mv/DJS, 272 F. Supp. 2d 1250 (D. N.M. 2003).

Parole

     Parole officer was not entitled to absolute immunity on claim that he caused prisoner to be unlawfully jailed by charging him with the use of illegal drugs without first performing a drug test. McCammon v. Youngblood, #2010193, 853 So. 2d 249 (Ala. Civ. App. 2003).

Prison Conditions: General

     Federal court holds county sheriff in contempt and imposes sanctions for noncompliance with order requiring that all beds at jail be off the floor and that other conditions at facility, including medical care, food services, recreational services, cleaning, and security be improved. Marion County Jail Inmates v. Anderson, 270 F. Supp. 2d 1034 (S.D. Ind. 2003).

Prison Litigation Reform Act: Exhaustion of Remedies

     Federal appeals court finds that a prisoner can exhaust his administrative remedies by presenting his complaints to prison officials, even if they refuse to address the grievance because it was untimely under prison rules. To pursue a claim in his subsequent lawsuit, however, the grievance must have provided prison officials notice of the nature of the complaint. Plaintiff prisoner did not, in his grievance, provide notice that he was asserting a failure to protect claim against correctional officers who allegedly saw a fellow officer beat him but failed to intervene, but $70,000 in damages awarded against officer who allegedly beat him. Thomas v. Woolum, #01-3227, 337 F.3d 720 (6th Cir. 2003).

     Prisoner's claims for compensation for personal property that correctional officers allegedly destroyed were barred when prisoner failed to show that he had exhausted available administrative remedies as required under the terms of the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(a). Khan v. U.S., 271 F. Supp. 2d 409 (E.D.N.Y. 2003).

     Prisoners asserting claims against county and sheriff for alleged systemic violations of their rights as persons with "serious mental health needs" were not required to exhaust available administrative remedies before filing suit when there was "no available administrative remedies" that the plaintiffs could have used for relief. Shook v. Bd. of County Commissioners of the County of El Paso, 216 F.R.D. 644 (D. Colo. 2003).

Prison Litigation Reform Act: Similar State Laws

     Texas prisoner's failure to file a claim for damages to his personal property by a prison employee searching his cell before the 31st day after he received a written decision from the department's written grievance system required dismissal of his lawsuit under a state statute governing inmate litigation. V.T.C.A. Civil Practice & Remedies Code Sec. 14.005(b). Lewis v. Johnson, No. 13-01-770-CV, 97 S.W.3d 885 (Tex. App. 2003).

     New York state statute establishing a reduced filing fee for inmates granted poor person status did not discriminate against prison inmates as compared to other poor litigants, as it was rationally related to a legitimate governmental interest in deterring frivolous prisoner litigation. Berrian v. Selsky, 763 N.Y.S.2d 111 (A.D. 3d Dept. 2003).

Prisoner Assault: By Officer

     Correctional officer did not use excessive force in handcuffing a prisoner who allegedly threatened him and then escorting him to the shift commander's office. The prisoner initially said nothing to the shift commander about the handcuffs, and when he later complained that one of the handcuffs was too tight, it was loosened. Further, the officer used the handcuffs to maintain or restore discipline, rather than "maliciously and sadistically for the very purpose of causing harm." Stanton v. Furlong, #02-11336, 73 Fed. Appx. 332 (10th Cir. 2003).

Prisoner Classification

     Virginia prisoner had no right to be housed in a state correctional facility rather than a local jail, even if the facilities and opportunities for participation in programs such as work release, paid work, furlough, contact visits, additional exercise, and vocational training were not the same. This did not violate equal protection when prisoners were not classified on the basis of a suspect class, such as race, and there was a rational basis for disparate treatment. Khalig v. Angelone, #02-7365, 72 Fed. Appx. 895 (4th Cir. 2003).

     Federal trial court enjoins U.S. Bureau of Prisons from transferring prisoner out of community corrections center into prison for service of his sentence for bank fraud previously plea-bargained for. The Bureau of Prison's new policy precluding community corrections center confinement, allowed for the previous 17 years, may well be additional punishment, the court stated, barred by the double jeopardy clause of the Fifth Amendment to the U.S. Constitution. The court agreed that it (the new policy) was contrary to the plaintiff prisoner's expectations when he entered into the plea bargain. Ashkenazi v. Attorney General of the U.S., 246 F. Supp. 2d 1 (D.D.C. 2003).

Prisoner Death/Injury

     County correctional officers were grossly negligent in the manner of monitoring a detainee suffering from alcohol withdrawal and were not informed of the serious nature of his condition by jail physician, making county liable for $80,000 for detainee's death. Jinks v. Richland County, No. 25690, 585 S.E.2d 281 (S.C. 2003).

Prisoner Discipline

     Determination that prisoner violated rules prohibiting him from being out of place and refusing to obey direct orders was supported by substantial evidence. Hearing officer did not violate prisoner's rights by refusing to call two witnesses, when they had no direct knowledge of the events at issue, and he properly allowed certain witnesses to testify by speaker-phone. Ardale v. Keane, 760 N.Y.S. 2d 563 (A.D. 3d Dist. 2003).

     Prisoner's claim that disciplinary board failed to follow its own procedural guidelines was sufficient to support a proceeding for a common law writ of certiorari under Tennessee state law. Prisoner claimed that he was not provided with adequate notice of the charges, was not permitted to obtain and introduce relevant exculpatory evidence, and that the board failed to independently assess a confidential informant's reliability. Punishments of 30 days of punitive segregation, involuntary administrative segregation, and a five-dollar fine for an escape attempt did not violate the prisoner's protected liberty interests under the due process clauses of either the U.S. or Tennessee state constitutions. Willis v. Tennessee Department of Correction, 113 S.W.2d 706 (Tenn. 2003).

     Prison officials were entitled to qualified immunity from liability on claim that they violated detainee's procedural due process rights by denying fingerprint analysis of a shank found in his cell, which he was disciplined for possessing. Prisoner claimed that shank was planted there, but there was no clearly established due process right to have the prison "prepare evidence" for the prisoner under such circumstances. Okocci v. Klein, 270 F. Supp. 2d 603 (E.D. Pa. 2003).

Prisoner Suicide

     Federal trial judge upholds jury's finding that jail officials were negligent under Kansas state law, but not deliberately indifferent, as required for a federal civil rights claim, in failing to prevent the successful suicide of a inmate who used an electrical switchplate in his cell as a suicide aid. Jury's award of $10,002,000 in damages is reduced to $252,000 because of state statutory limit on wrongful death damage awards. Estate of Sisk v. Manzanares, 270 F. Supp. 2d 1265 (D. Kan. 2003).

Public Protection

     County sheriff's alleged non-use of handcuffs or shackles while transporting prisoner who escaped was insufficient to support a claim for damages under Texas law for escaped prisoner's subsequent alleged assault and robbery of plaintiff. Lopez v. McMillion, No. 04-03-0021-CV, 113 S.W.3d 447 (Tex. App. 2003).

Religion

     Federal statute providing enhanced protection for prisoners' religious practices struck down by appeals court as an unconstitutional establishment of religion. Cutter v. Wilkinson, #02-3270, 2003 U.S. App. Lexis 22840 (6th Cir.).

     Housing a Muslim prisoner in a cell with a non-Muslim did not constitute a "substantial burden" to his exercise of his religious beliefs in violation of the Religious Land Use & Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. Sec. 2000 cc-1 or the Oklahoma Religious Freedom Act, 51 Okl. St. Ann. Sec. 253. Prisoner could pray several times during the day outside his cell and having to pray, once a day, while locked down with this cellmate only had an "incidental" effect on his practice of his religion. Policy of randomly assigning cellmates was reasonably related to a legitimate penological objective of preventing racial or religious discrimination in cell assignments. Steele v. Guilfeyle, No. 97,997, 76 P.3d 99 (Okla. Civ. App. Div. 1 2003).

     Native American prisoner's First Amendment right to exercise his religion was not violated by prison policies imposing restrictions on a "smudging" ceremony or denying him the designation of a patch of land as "Holy Ground." The prisoner failed to show that these practices were so essential to his religion that their absence would be a substantial burden on religious freedom. Wilson v. Moore, 270 F. Supp. 2d 1328 (N.D. Fla. 2003).

Smoking

     Prisoner failed to show that he had serious medical needs for a smoke-free environment or that defendant officials were deliberately indifferent to his needs when he was never diagnosed with any medical condition and the correctional facility had a non-smoking policy, even though it was "imperfectly" enforced. Henderson v. Martin, #01-2463, 73 Fed. Appx. 115 (6th Cir. 2003).

Strip Searches: Prisoners

     Equally divided federal appeals court upholds, by 4-4 vote, that Rhode Island prison officials were entitled to qualified immunity for conducting allegedly illegal blanket strip and visual body cavity searches of misdemeanant arrestees without particularized suspicion at a maximum-security prison. Judges disagree as to whether it was clearly established, at the time of the searches in 2000. Savard v. Rhode Island, No. 02-1568, 338 F.3d 23 (1st Cir. 2003).

     Federal trial court certifies class action of D.C. past and present detainees who were allegedly subjected to suspicionless strip searches upon returning from court hearings declaring them releasable. The defendants' alleged lack of knowledge as to the origin of the department's policy of conducting suspicionless trip searches did not entitle them to a protective order against a request for depositions of the officials "most qualified to testify on" when and why the department "began the practice." Bynum v. D.C., 217 F.R.D. 43 (D.D.C. 2003).

Visitation

     Three-year suspension of prisoner's visitation rights as punishment for attempting to introduce a weapon into the visitation room did not violate due process rights, his right to free association, or the Eighth Amendment prohibition on cruel and unusual punishment. Hernandez v. McGinnis, 272 F. Supp. 2d 223 (W.D.N.Y. 2003).

Work Release

     Revocation of prisoner's approval to participate in work release program without a hearing did not violate his due process rights, since any such approval was conditional under New York state law until his actual work release began. Caban v. N.Y. State Department of Correctional Services, 764 N.Y.S.2d 493 (A.D. 3d Dept. 2003).