© Copyright 2003 by AELE, Inc.
Contents (or partial contents) may be downloaded,
stored, printed or copied by, or shared with, employees of
the same firm or government entity that subscribes to
this library, but may not be sent to, or shared with others.

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

Administrative Liability: Training

     City could not be held responsible for arrestee's injuries from officer's alleged excessive use of force while arresting and handcuffing motorist when officer's actions, if they occurred, would have clearly violated the city's policies and training that officers received regarding the use of force. The possibility that the officer was not taught a particular procedure for taking a handcuffed suspect to the ground did not alter the result, particularly when there was no evidence of other similar incidents. Nelson v. City of Wichita, 217 F. Supp. 2d 1179 (D. Kan. 2002).

Defenses: Judicial Bias

     Judge's relationship with the President of the Board of Police Commissioners, which included appearances at the same bar association functions and large social events and several small group meetings over almost twenty five years was not a close enough relationship as to require his recusal under 28 U.S.C. Sec. 455(a) from presiding over a police officer's lawsuit against police officials for malicious prosecution and falsely accusing him of assault and use of excessive force against a mentally retarded person mistakenly identified as a burglar. Judge recuses himself anyhow, however, on other grounds. Moran v. Clarke, 213 F. Supp. 2d 1067 (E.D. 2002).

Defenses: Qualified Immunity

     Officers did not have qualified immunity from liability for allegedly evicting the residents of a women's shelter without a pre-deprivation process, since Kentucky state law protecting against evictions without pre-eviction notice and court proceedings were well established as were relevant U.S. Supreme Court opinions. Thomas v. Cohen, #01-5088, 304 F.3d 563 (6th Cir. 2002).

     Arresting officers were entitled to qualified immunity from a landowner's claim that they violated her Fourth Amendment rights and used excessive force during her arrest for interference with a gas company's easement over her property. The plaintiff did not dispute that she attempted to take a gun from one officer's holster when officers were trying to arrest her husband, so they acted reasonably in believing that they were using appropriate force in subduing her by pushing her to the ground. Pulice v. Enciso, #01-3748, 39 Fed. Appx. 692 (3rd Cir. 2002).

     The possibility that an arresting officer could have reasonably believed that he had probable cause to arrest a hotel manager for theft of petty cash deliveries was enough to provide him with qualified immunity from liability for false arrest, despite the alleged access of other hotel employees to the funds and the officer's alleged failure to interview either the manager or other hotel employees before making the arrest. Robinson v. Gerritson, 210 F. Supp. 2d 1004 (N.D. Ill. 2002).

Disability Discrimination

     Federal appeals court upholds $230,000 disability discrimination award to severely hearing-impaired arrestee for county's failure to take his disability into account during the process of arresting him for driving while intoxicated. Court finds that the evidence was sufficient to find that the county intentionally discriminated against him by failing to find a more effective method than verbal communication to explain things to him. Liability could be imposed on county without showing an official policy or that the deputy who arrested the motorist was a policymaker. Delano-Pyle v. Victoria County, Texas, #00-41038, 302 F.3d 567 (5th Cir. 2002).

Domestic Violence

     Wife awarded $30,000 against Tennessee county for failing to protect her against her estranged husband who allegedly burned her home when deputies failed to arrest him for violating a protection order while divorce proceedings were pending. Tennessee statute waiving governmental immunity for county, however, barred the additional award, by the trial court, of $130,000 in damages against two deputy sheriff's. Matthews v. Pickett County, Tennessee, No. 00-6644, 46 Fed. Appx. 261 (6th Cir. 2002).

Emotional Distress

     Evidence supported jury's determination that state troopers' actions in arresting casino patron were extreme and outrageous in a manner allowing an award of damages for intentional infliction of emotional distress. Trooper allegedly allowed security officer to pepper spray arrestee while handcuffed and transported arrestee outside on cold winter night dressed only in socks and underwear. Sabir v. Jowett, 214 F. Supp. 2d 226 (D. Conn. 2002).

Expert Witnesses

     No hearing was required to resolve a plaintiff arrestee's objections to the admission of an expert psychiatrist's report and testimony about his mental state at the time of his arrest when the basis for the objection was disagreement with disputed factual evidence on which the expert relied. The plaintiff, who claimed excessive use of force during the arrest, could explore, during cross-examination, the reliance that the expert put on the disputed evidence in drawing his conclusion that the plaintiff had been psychotic at the time so that his perception of events were impaired and unreliable. He could also argue to the jury that, if it rejected the underlying factual premises of the expert's report, it should also reject the expert's opinion. Walker v. Gordon, #01-4106, 46 Fed. Appx. 691 (3rd Cir. 2002).

     Instructors at college's police academy, who had testified against police as expert witnesses in an excessive force case had no constitutionally protected property interest which was violated by chiefs of police and sheriffs allegedly seeking non-renewal of their contractors in retaliation for the testimony. Police chiefs and sheriffs were not, however, entitled to qualified immunity on instructors' claim that they kept their personnel out of the instructors' classes, in violation of their First Amendment rights, in retaliation. Plaintiffs also asserted a valid claim under Texas state law for tortious interference with instructors' contract relationship with the academy, and the defendants were not entitled to official immunity from that claim. Kinney v. Weaver, #00-40557, 301 F.3d 253 (5th Cir. 2002).

False Arrest/Imprisonment: No Warrant

     Officer's arrest of an attorney, made during his protest of a state trooper's traffic stop of his client, was not unlawful retaliation for the attorney's exercise of his First Amendment rights. The lawyer's interference with the officer on the side of a busy interstate highway and his attempt to leave the scene after the trooper informed him that he was going to be issued tickets, gave the trooper probable cause to arrest him for his conduct, even if the trooper was "arguably brimming over with unconstitutional wrath." Abrams v. Walker, No. 01-2447, 307 F.3d 650 (7th Cir. 2002).

     Officer who had probable cause to arrest a suspect for misdemeanor assault did not violate his rights by making a warrantless arrest outside the door of his apartment, after the suspect stepped outside as the officer instructed. Court rejects the argument that this constituted an "inside-the-home" arrest for which a warrant or exigent circumstances were required. Knight v. Jacobson, #01-15506, 300 F.3d 1272 (11th Cir. 2002).

     Dispute over whether arrestee continued to protest loudly or lowered his voice after initial yelling when officer confronted him over sleeping in the surgery waiting room in the hospital where his daughter was going to be operated on barred summary judgment on false arrest claim. Arrestee's activity in confrontation with hospital staff over his sleeping in the waiting room was not, however, protected by the First Amendment. Shevlin v. Cheatham, 211 F. Supp. 2d 963 (S.D. Ohio 2002).

     Arresting officer acted reasonably in relying on reports, videotapes, public records and other materials prepared by private investigators who had been hired by his superiors in making an arrest of an injured correctional officer for allegedly continuing to collect job injury benefits when he no longer qualified for them. The officer had no duty to conduct an independent investigation into the materials provided by his superiors in order to use them as the basis for an arrest, and was therefore entitled to qualified immunity. Caldarola v. Calabrese, #01-9053, 298 F.3d 156 (2nd Cir. 2002).

     Arrestees could not pursue claim for damages against officers who charged them with disorderly conduct when they refused to leave a state park beach after entering through the water rather than a designated land-based entrance, as there was a rational basis for the regulation prohibiting entry from the water, and the disorderly conduct statute, which prohibited disobeying a lawful order of a police officer was not unconstitutionally vague. Dorman v. Castro, 214 F. Supp. 2d 299 (E.D.N.Y. 2002).

False Arrest/Imprisonment: Warrant

     Arrestee could not recover damages for his arrest on Christmas Eve under a warrant intended for his identical twin brother or for his wrongful detention for four days after he protested his innocence and that he was not the person sought. Warrant was facially valid, he met the description of the person sought, and a program of immediately doing fingerprint comparison of arrestees was not required by the constitution. Panfil v. City of Chicago, No. 01-3150, 45 Fed. Appx. 528 (7th Cir. 2002).

     Officers who arrested a motorist on the basis of a computerized outstanding warrant list despite his possession of a printed acknowledgment that the warrant had been recalled were entitled to qualified immunity. Federal trial court rules that the issue of the priority of the printed recall notice over the computerized indication of an outstanding warrant was not clearly established at the time of the arrest. Soto v. Bzdel, 214 F. Supp. 2d 69 (D. Mass. 2002).

Firearms Related: Intentional Use

     No liability for police officer who entered home in response to two dropped 911 calls made during an ongoing domestic violence incident and subsequently shot and killed a man inside armed with a gun. Appeals court finds that "substantial evidence" supported the jury's finding that the officer had implied consent to enter the home when the "terrified" young female who opened the door did not respond to his questions, but stepped back and did not object when he entered. Pavao v. Pagay, #01-15201, 307 F.3d 915 (9th Cir. 2002).

     Officers who were present but did not participate in fellow officers' shooting of robbery suspects could not be held liable under 42 U.S.C. Sec. 1983 for the use of excessive force in the absence of any proof that they had control over the police department's operations, or the actions of the officers who did fire. Further, nothing showed that they set into motion any action that resulted in the shooting or that they authorized, approved, or acquiesced in the shooting. Their mere presence was not enough to pursue claims against them. Figueroa v. Gates, 207 F. Supp. 2d 1085 (C.D. 2002).

Freedom of Information

     Documents concerning an internal investigation of a police officer were exempt from disclosure under Michigan's Freedom of Information Act, MCLA Sec. 15.243(1)(s)(ix), because they were part of the personnel records of a law enforcement agency. Sutton v. City of Oak Park, #229640, 650 N.W.2d 404 (Mich. App. 2002).

Governmental Liability: Policy/Custom

     County could not be held liable for officer's alleged unlawful handcuffing and strip searching of plaintiffs in their home when the plaintiffs failed to establish their case against the officer. Summary judgment was therefore entered for the county. Robertson v. Prince George's County, 215 F. Supp. 2d 664 (D. Md. 2002).

Malicious Prosecution

     Officer who investigated a mother's alleged assault of her teenage daughter was not liable for malicious prosecution when the mother provided no evidentiary support for her claim that the officer was untruthful in his trial testimony, and did not even show that he caused her to be prosecuted or arrested or seized her. Nothing in the record showed that the investigating officer had anything to do with the prosecution, in fact, after he submitted his report to the prosecutor's office. Skousen v. Brighton High School, #00-2170, 305 F.3d 520 (6th Cir. 2002).

Miscellaneous: Towing

     Sheriff's department did not violate the due process rights of the operator of a towing service by removing his company from a rotation list. Despite company's seventeen years of service, it had no property interest in being on the tow rotation list, and internal departmental rules establishing a policy of removing companies only for "sufficient cause" did not create a property interest because they were not required by statute or ordinance. Plaintiff operator also did not establish a First Amendment violation based on his argument that the removal was in retaliation for his public criticism of the rotation system. S&S Research, Inc. v. Paulszcyk, No. 01-2456, 44 Fed. Appx. 744 (7th Cir. 2002).

Procedural: Amendment of Complaint

     Plaintiff could, under Federal Rule of Civil Procedure 15, amend his complaint, seven years after it had been filed, to add three officers as defendants, when the original complaint mentioned all three of them as having been involved in the alleged use of excessive force against him, but he could not amend it to now name as a defendant an officer who was named only as a witness in the original complaint, since he was not on notice that he could be named as a defendant. Mosley v. Jablonsky, 209 F.R.D. 48 (E.D.N.Y. 2002).

Procedural: Class Actions

     In federal civil rights lawsuit brought by Native American anti-gambling demonstrators alleging that state officials violated their right to equal protection by not providing them with police protection on the reservation, the plaintiffs' motion for class action certification was not "untimely" despite being filed more than ten years after the lawsuit was begun, since the trial was still not "imminent," and there had been no rulings on the actual merits of the claims in the case. Court also rules that the allegations in the complaint satisfied the requirements for class certification under Federal Rule of Civil Procedure 23. Pyke v. Cuomo, 209 F.R.D. 33 (N.D.N.Y. 2002).

Procedural: Failure to Prosecute

     Dismissal of an arrestee's federal civil rights lawsuit alleging excessive force in his shooting by an officer was not appropriate for failure to prosecute, despite the inactivity of the case during two years since the plaintiff's release from prison. Plaintiff had not failed to comply with any court orders or to appear for any scheduled depositions and the plaintiff was unable to leave New York to litigate his claim in Pennsylvania due to the conditions of his parole. No prejudice would be suffered by the defendants by proceeding with the case since statements were taken on the day of the shooting and the depositions of both the plaintiff and the defendant officer were already taken. Baxter v. Lancaster County, 214 F. Supp. 2d 482 (E.D. Pa. 2002).

     Trial court abused its discretion in dismissing a motorist's lawsuit against the city and one of its police officers following three years of inactivity in the case when the city itself was partially responsible for the delay, having asked for a continuance after a new lawyer was assigned to the case, and city would not be prejudiced by officer's alleged non-availability when his deposition testimony and trial testimony from an earlier trial with a hung jury was available. Claims in the case involved the officer's alleged wrongful refusal to provide motorist with the identity of another driver who turned in front of him, forcing his vehicle into a ditch. Tims v. City of Jackson, No. 2000-CA-01820-COA, 823 So. 2d 602 (Miss. App. 2002).

Procedural: Pleading

     Plaintiff did not have to "plead with particularity" the alleged falsifications that a coroner made in an autopsy report which lead to the plaintiff's arrest and prosecution for murder charges on which he was later acquitted, or that the coroner knew that his statements were false to establish his improper motive. A short and plain statement of the claim was sufficient. Galbaith v. County of Santa Clara, #00-17369, 307 F.3d 1119 (9th Cir. 2002).

Property

     A city's delay in setting a hearing date for a number of weeks after a motorist's car was towed for alleged parking violations, despite the owner's "insistent and immediate" demand for a hearing violated both a California state statute, Ann. Cal. Vehicle Code Sec. 22852, and constitutional due process, as clearly established twenty-five years before in Stypmann v. City & County of San Francisco, 557 F.2d 1338 (9th Cir. 1977). Overturning trial court's grant of summary judgment for defendant city in motorist's federal civil rights lawsuit, appeals court also holds that the motorist was not entitled, as a matter of due process. to cross-examine the officer who issued the towing order, but that the city had the burden, under California law, of demonstrating that the seizure of the car was valid. David v. City of Los Angeles, #00-57091, 307 F.3d 1143 (9th Cir. 2002).

Search and Seizure: Warrants

There was probable cause for a warrant to search a nursing student's residence for evidence of dispensing drugs, including a confidential informant procuring drugs from the suspect during a "sting operation," so that officers' alleged withholding of exculpatory evidence from search warrant affidavit did not violate her Fourth Amendment rights. DeFelice v. Ingrassia, 210 F. Supp. 2d 88 (D. Conn. 2002).

Sexual Assault & Harassment

     Police chief was not entitled to qualified immunity on detainee's claim that officer falsely arrested him and then tried to sexually molest him. Complaint presented sufficient allegations that the city ignored a known or obvious risk that the officer was highly likely to engage in sexual misconduct and abuse of power and inadequately screened him. Romero v. City of Clanton, 220 F. Supp. 2d 1313 (M.D. Ala. 2002).

Strip Search

     State social worker violated Fourth Amendment rights in conducting a visual body cavity search of a female minor based on accusations of sexual abuse without demonstrating probable cause and obtaining a court order, getting parental consent, or showing emergency circumstances, but she was entitled to qualified immunity because the violation was not clearly established in July of 1999. Mother of child did consent to investigative home visit and therefore had no individual claim for Fourth Amendment violations. Roe v. Texas Department of Protective and Regulatory Services, #01-50711, 299 F.3d 395 (5th Cir. 2002).

Age Discrimination - Promotion/Assignment

     Fifth Circuit upholds an ADEA jury verdict of $109,222 to a 57-year old District Chief who was denied a promotion to Asst. Chief because of age. Although Title VII requires that plaintiffs receive an EEOC right-to-sue notice, the ADEA has no such requirement. Julian v. City of Houston, #01-20541, 2002 U.S. App. Lexis 25427 (5th Cir. 2002).

Arbitration Procedures

     Supreme Court holds that the question of whether the parties have submitted a particular dispute to arbitration is an issue for the courts to decide. Also, a disagreement about whether an arbitration clause applies to a particular controversy is for the court. But all "procedural questions which grow out of the dispute and bear on its final disposition are presumptively not for the judge, but for an arbitrator, to decide." Howsam v. Dean Witter Reynolds, #01-800, 2002 U.S. Lexis 9235 (2002).

     N.Y. holds that the calculation of retirement benefits earned under state law are arbitrable. City of Johnstown and Johnstown PBA; City of Schenectady and Schenectady PBA, #155/6, 2002 N.Y. Lexis 3801 (N.Y. 2002).

Citizenship Requirements

     Federal court refuses to dismiss the complaint and orders the Transportation Security Administration to consider noncitizens for airport screener posts. Gebin v. Mineta, #02-CV-0493, 2002 U.S. Dist. Lexis 22211, 90 FEP Cases (BNA) 417 (C.D.Cal. 2002).

Civil Liability

     Seventh Circuit holds that a §1983 suit against state officials for injunctive relief is not barred by the Eleventh Amendment. Nanda v. Univ. of Illinois, #01-3448, 303 F.3d 817, 2002 U.S. App. Lexis 19105, 89 FEP Cases (BNA) 1616 (7th Cir. 2002).

Collective Bargaining - Duty to Bargain

     Pennsylvania appellate court holds that management did not have to bargain over a change in weight given to test components of the state police promotional procedures. The change did not impact on police duties. Penn State Troopers Assn. v. PLRB, # 698 CD 2002, 809 A.2d 422, 2002 Pa. Commw. Lexis 847, 171 LRRM (BNA) 2223 (Pa. Commw. Ct. 2002).

Criminal Liability

     U.S. Capitol Police officer is convicted for creating an anthrax "joke." He left some powdered sweetener and a note on a desk; Justice Dept. enforces a zero tolerance policy.. U.S. v. James J. Pickett, # 02-CR-14 (D.D.C. 2002).

Death Benefits

     Congress establishes a benefit fund for federal agents and service members killed while combating terrorism. H.R. 5005, Sec. 601, "Treatment of charitable trusts for members of the Armed Forces of the United States and other governmental organizations."

Defamation

     Ninth Circuit upholds the right of a police officer to sue entertainer George Michael for slander and the intentional infliction of emotional distress. The singer accused the undercover officer of provoking Michael's lewd conduct in a public toilet. Rodriguez v. Panayiotou, #00-56923, 2002 U.S. App. Lexis 24352 (9th Cir. 2002).

Disciplinary Investigations

     In an internal investigation of threats left on a manager's voicemail, an employee may be compelled to give a voice exemplar for comparative purposes; a voiceprint sample is not a testimonial statement and does not implicate the Fifth Amendment. Veazey v. LaSalle Telecom, #1-02-0517, 2002 Ill. App. Lexis 992 (1st Dist. 2002).

Disciplinary Offenses - In General

     Arbitrator holds that a city could require its animal control officers to have a special deputy sheriff commission, and if it is revoked, the officer is not entitled to retain his municipal employment. City of Indianapolis and AFSCME L-725, 117 LA (BNA) 911, AAA Case No. 52-390-00300-01 (Alexander, 2002)

Disciplinary Offenses - Conduct Unbecoming

     Employer must have an anti-fraternization policy to punish an off-duty relationship. Without a privacy policy, the employer also could not discipline the grievant for reading a superior's e-mails, or for opening sexually explicit e-mails from a coworker where the sending party was not disciplined. Monterey County and Individual Grievant, CSMCS No. ARB-01-0050, 117 LA (BNA) 897 (Levy, 2002).

Disciplinary Offenses - Sufficiency of Proof

     California appeals court finds that a demoted sergeant was not guilty of having sex with a young girl, did not violate police procedures, and is entitled to reinstatement of rank and pay differential. Collier v. Long Beach Civil Serv. Cmsn., #B147806, 2002 Cal. App. Unpub. Lexis 8639, 2002 WL 31087774 (Unpub. Cal. App. 2002).

Disciplinary Punishment - Disparate Treatment

     Federal appeals court upholds the forced retirement of a black Agent in Charge who had more than 100 complaints against him, including sexual harassment, retaliation, racial favoritism and soliciting petty bribes. Grayson v. O'Neil, #01-3160, 308 F.3d 808, 2002 U.S. App. Lexis 22352, 90 FEP Cases (BNA) 165 (7th Cir. 2002).

Disciplinary Searches

     Eighth Circuit reverses a lower court ruling that had suppressed the evidence obtained by a search warrant that was faxed to Yahoo. "The Fourth Amendment does not explicitly require official presence during a warrant's execution, therefore it is not an automatic violation if no officer is present during a search." U.S. v. Bach, #02-1238, 310 F.3d 1063, 2002 U.S. App. Lexis 23726 (8th Cir. 2002).

     Supreme Court declines to hear FBI Director's appeal. Fourth Circuit allowed a former Dept. of Energy whistleblower to sue the Director after agents gained entry to his home by allegedly bullying his roommate, and then seized his computer's hard drive. Freeh v. Trulock, 02-443, 2002 U.S. Lexis 8703, 71 U.S.L.W. 3387 (2002); rptd. below sub nom Trulock v. Freeh, #00-2260, 275 F.3d 391 (4th Cir.). Trulock exposed penetration of the Los Alamos Lab by Chinese intelligence agents.

Discovery, Publicity and Media Rights

Texas appellate court holds that the state's Public Information Act required a city to disclose the reasons it rejected a police applicant. A statutory exception for internal records that, if released, would interfere with law enforcement did not apply. City of Fort Worth v. Cornyn, #03-02-00074-CV, 86 S.W.3d 320, 2002 Tex. App. Lexis 6643, 19 IER Cases (BNA) 120 (Tex. App.3d Dist. 2002).

Drug Screening and Specimen Testing

      Eighth Circuit rejects an appeal that management had to prove that it had selected a corrections officer randomly for a drug test, or that the specimen-taking procedure violated the male officer's privacy because a woman monitor observed his genitals. Booker v. City of St. Louis, #02-1114, 309 F.3d 464, 2002 U.S. App. Lexis 22705 (8th Cir. 2002).

Free Speech

     NYC reinstates and pays $327,500 to a former police officer that was fired after criticizing the fatal shooting of Amadou Diallo. Walton v. City of N.Y., prev. rptd. at 122 F.Supp.2d 466, 2000 U.S. Dist. Lexis 17008, 17 IER (BNA) Cases 49 (S.D.N.Y); settlement rptd. by Associated Press (Nov. 11, 2002).

Handicap Laws / Abilities Discrimination - In General

     Under Colorado law a sheriff, and not the Board of County Commissioners, is the employer of deputies for ADA discrimination purposes. Bristol v. Bd. of County Cmsnrs., #00-1053, 2002 U.S. App. Lexis 25511 (10th Cir. 2002).

Handicap Laws / Abilities Discrimination - Accommodation - General

     Oregon appellate court holds that a corrections officer who takes a prescriptive anticoagulant drug, and who was advised to avoid contact with inmates because of a risk of serious internal bleeding, could be a "disabled person" under state law. Evans v. Multnomah County Sheriff's Office, #A112917, 184 Ore. App. 733, 57 P.3d 211, 2002 Ore. App. Lexis 1729, 13 AD Cases (BNA) 1256 (Or.App. 2002).

Handicap Laws / Abilities Discrimination - Specific Disabilities

     Impaired sleep, preventing an employee from working overtime is not a disability. Boerst v. General Mills, #00-3281, 25 Fed. Appx. 403, 2002 U.S. App. Lexis 813 (Unpub. 6th Cir. 2002).

     Symptoms from multiple sclerosis substantially limited the plaintiff's major life activities of concentrating and remembering. Gagliardo v. Connaught Labs, # 01-4045, 2002 U.S. App. Lexis 23953 (3d Cir. 2002).

Health Insurance & Benefits

     Federal appeals court splits 9-to-4 to deny VA hospital benefits to retired service personnel who enlisted between 1941 and 1956, even though they were told by military recruiters they would receive free lifetime health care if they stayed in the service 20 years. In 1995 the Pentagon ended those benefits for veterans over 65 because they are eligible for Medicare. The majority found that the recruiters had no authority to make those promises. Schism v. U.S., #99-1402, 2002 U.S. App. Lexis 23769 (en banc, Fed.Cir. 2002).

Pay Disputes - In General

     Arbitrator holds that longevity pay is calculated on the basis of each entire year worked, and does not include a prorated credit for a partial year. Twp. of Austintown and FOP L- 126,117 LA (BNA) 900, AAA Case No. 53-390-00365-0 (Ruben, 2002).

Pay Disputes - Overtime Claims

     U.S. Court of Federal Claims holds that 9,000 federal prosecutors are entitled to overtime (and back pay) under the Federal Employees Pay Act, Doe v. U.S., #98-896C, 2002 U.S. Claims Lexis 304, 71 U.S.L.W. 1342 (Ct.Cl. 2002).

Privacy Rights

     Federal agencies must now conduct privacy impact assessments before developing or procuring information technology or collecting new kinds of personal information. H.R. 2954, the E-Government Act of 2002 (Dec. 17, 2002).

     The Canadian Supreme Court has unanimously ruled that its federal security agency can block citizens from accessing their personal files on national security grounds. Ruby v. Solicitor General of Canada, #28029, 2002 SCC 75, 2002 Can. Sup. Ct. Lexis 85 (Sup. Ct. Canada 2002).

Psychological Exams and Standards - Conduct Justifying a Required Exam

     Federal court finds that an order to take a FFDE is not an "adverse action" that violates an officer's civil rights. The fact that the officer filed seven allegedly unfounded harassment complaints justified the requirement. McKnight v. Monroe Co. Sheriff's Dept., # IP 00-1880-C-B, 2002 U.S. Dist. Lexis 18148, 90 FEP Cases (BNA) 35 (S.D.Ind. 2002).

Psychological Exams and Standards - Fitness for Continued Duty

     Supreme Court declines to review a holding that a required Fitness For Duty Exam and minor disciplinary action did not meet the threshold level of substantiality required by Title VII's anti-retaliation clause. Perez v. Miami-Dade Co., #02-269, 2002 U.S. Lexis 9080, 71 U.S.L.W. 3398 (2002); decided below as Perez v. Penelas, #01-10348, 275 F.3d 53, 2001 U.S. App. Lexis 29818; reh. den. 2001 U.S. App. Lexis 29391 (Unpub. 11th Cir. 2002).

Race Discrimination - In General

     Supervisors who were sued in their individual capacities by a conservation law enforcement officer, for racial discrimination, were entitled to qualified immunity from his §1981 and §1983 claims. Felton v. Polles, #01-60104, 2002 U.S. App. Lexis 25968 (5th Cir. 2002).

Racial Harassment

     Appellate court rejects a defamation and harassment suit, filed against the city by an Asian-American police officer, after his sergeant referred to him as a "little fucking gook" to another officer. The slur was not severe or pervasive. Herndon v. City of Everett, #49406-6-I, 2002 Wash. App. Lexis 2161, 113 Wn. App. 1031 (Unpub. Wash. App. 2002).

     A white manager at a correctional facility is allowed to proceed with federal racial harassment claims (including epithets and false accusations of engaging in Ku Klux Klan activities). Paxson v. Cook County, #02-C-2028, 2002 U.S. Dist. Lexis 15647 (N.D.Ill. 2002).

Sex Discrimination - In General

     A divided Seventh Circuit holds that a lateral transfer is not an "adverse personnel action" for Title VII purposes. White v. BNSF Ry., #00-6780, 310 F.3d 443, 2002 U.S. App. Lexis 23422; 2002 FED App. 0391P (6th Cir. 2002).

     N.Y appellate court holds that a commissioner's promotion of an employee with whom he had personal relationship did not create hostile work environment; an isolated act of preferential treatment of an employee, based on a consensual relationship, is not sex discrimination. Fella v. County of Rockland, 2001-06795, 747 N.Y.S.2d 588, 2002 N.Y. App. Div. Lexis 8871, 90 FEP Cases (BNA) 247 (App. Div. 2002).

     Federal court refuses to dismiss a retaliation and gender bias suit filed by a male corrections employee, who was fired after a history of conflict with women supervisors. Kulikowski v. Boulder County, #00-K-1472, 2002 U.S. Dist. Lexis 20361, 90 FEP Cases (BNA) 573 (D.Colo. 2002).

Union and Associational Activity

     A firefighter who was passed over for lieutenant after he headed a union committee to negotiate higher wages can proceed with his claim that the village retaliated against him for engaging in protected activity. Cunningham v. Village of Mount Prospect, #02CV4196, 2002 U.S. Dist. Lexis 22772 (N.D. Ill. 2002).

Visual Acuity Standards

     Federal court upholds the termination of a 15+ year police officer that had 20/80 vision in one eye. Knoll v. SEPTA, #01-2711, 2002 U.S. Dist. Lexis 17164 (E.D. Pa. 2002).

Workers' Compensation - Exclusive Remedy

     The fact that a firefighter died while performing mutual aid duties did not allow his widow the right to sue the agencies that requested assistance. The requesting and responding agencies had not signed a formal mutual aid agreement, which would have permitted a wrongful death action. Hauber v. Yakima County, #71618-8, 56 P.3d 559, 2002 Wash. Lexis 666 (Wash. 2002).

Defenses: Eleventh Amendment Immunity

     New York State Department of Corrections (DOCS) was immune under the Eleventh Amendment from a state prisoner's federal civil rights lawsuit challenging prison conditions. Claims against prison superintendent and two guards were also dismissed because of failure to prisoner to exhaust available administrative remedies, as required by the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(a). Miller v. New York State Department of Corrections, 217 F. Supp. 2d 391 (S.D.N.Y. 2002).

Defenses: Procedural

     When trial court's order dismissed most of prisoner's claims against county employees for allegedly keeping him incarcerated beyond his sentence, but failed to dispose of his claims against one employee, the order was not a final judgment and therefore was not yet appealable by the prisoner. Eubanks v. McCollum, #2000758, 828 So. 2nd 935 (Ala. Civ. App. 2002).

Defenses: Qualified Immunity

     County sheriff and jailer were entitled to qualified immunity in civil rights lawsuit brought by inmate who claimed that his serious medical needs were ignored after he suffered a stroke while incarcerated. The plaintiff failed to show that the defendant officials knew about the prisoner's stroke symptoms or his alleged repeated requests for medical help, or that they had any subjective knowledge that the jail policy for responding to medical requests was inadequate in any way. Prison nurse, however, was not entitled to qualified immunity, as a reasonable nurse would have known that a failure to examine an inmate complaining of stroke symptoms was in violation of his constitutional rights. Tate v. Coffee County, Tennessee, No. 01-6304, 48 Fed. Appx. 176 (6th Cir. 2002).

Defenses: Statute of Limitations

     Louisiana inmate could not pursue a lawsuit against correctional officials over prison discipline when a state statute, LRS-R.S. 15:1177, subd. A, required that he seek judicial review of an adverse administrative remedy decision within 30 days and he failed to do so. Peterson v. Toffton, No. 36,372-CA, 828 So. 2d 160 (La. App., 2nd Cir. 2002).

     Statute of limitations period for filing a habeas petition challenging the validity of a disciplinary action that resulted in a prisoner's loss of good-time credits was tolled (extended) during the time that the prisoner's administrative appeals were pending in the prison grievance process. Foley v. Cockrell, 222 F. Supp. 2d 826 (N.D. Tex. 2002).

Disability Discrimination: Employees

     There was a genuine issue of material fact as to whether a correctional officer was a "disabled person" and was "otherwise qualified" for his position after he was prescribed an anticoagulant drug which made him more susceptible to serious internal or external bleeding if he was physically injured and his physician recommended that he not have contact with inmates. Summary judgment for sheriff's office on officer's disability discrimination claim under Oregon state law was improper. Evans v. Multnomah County Sheriff's Office, No. 0002-01090, A112917, 57 P. 3d 211 (Or. App. 2002).

Drugs and Drug Screening

     Even if, as male correctional officer claimed, female drug testing monitor stood a foot behind him as he provided a urine sample, the manner of collection of the sample was not so intrusive as to be an unreasonable search in violation of the Fourth Amendment. Plaintiff officer, who was terminated as a result of the test results, also failed to show that he had not been selected randomly for the test but instead had been unfairly "singled out" for testing. Booker v. City of St. Louis, #02-1114, 309 F.3d 464 (8th Cir. 2002).

Employee Injury/Death

     Complaint by estate of prison employee concerning prison's practice of allowing prisoner with a history of violent crimes using knives to have access to a knife without adequate supervision was sufficient to state a federal civil rights claim for employee's murder by prisoner under "state-created danger" theory. Warden was, however, entitled to qualified immunity because of the absence of "clearly established" law. Waller v. Trippett, No. 01-2716, 49 Fed. Appx. 45 (6th Cir. 2002).

Employment Issues

     Delaware Department of Corrections code which prohibited off-duty personal contact with offenders was not "substantially related" to legitimate state interests in the orderly functioning of the prisons. No evidence showed that terminated female correctional officer's off-duty relationship with a paroled former inmate had "any impact" on inmates or prison staff, but the defendant correctional officials were entitled to qualified immunity because the asserted constitutional right to privacy to cohabit with a former inmate was not "clearly established" law. Via v. Taylor, 224 F. Supp. 2d 753 (D. Del. 2002).

First Amendment

     Prison's requirement that books received from vendors have special shipping labels attached or else not be delivered to prisoners found to unduly burden inmates' First Amendment rights. Federal court finds policy was arbitrary and unreasonable and that legitimate security interests in preventing introduction of contraband were adequately protected by other existing policies. Ashker v. California Department of Corrections, 224 F. Supp. 2d 1253 (N.D. Cal. 2002).

     Federal death row inmate could pursue civil rights action concerning whether prison officials violated his First Amendment rights by restricting his access to the press. The case presented genuine issues of whether the restrictions were based on his death-row status and a desire to suppress his views, rather than to serve legitimate penological interests, and whether prison officials imposed the restrictions in a content neutral fashion. Hammer v. Ashcroft, #01-2898, 42 Fed. Appx. 861 (7th Cir. 2002).

     State prisoner could pursue First Amendment claim asserting that he was subjected to a transfer to a facility farther from his home in retaliation for writing letters to newspapers which were critical of the prison system. State sovereign immunity under Pennsylvania law was no defense to his federal civil rights lawsuit. Owens v. Shannon, 808 A.2d 607 (Pa. Cmwlth 2002).

Mail

     Virginia correctional policy limiting prisoner's incoming general purpose mail to one ounce per envelope did not violate prisoners' First Amendment rights and served legitimate penological interests in reducing avenues for smuggling contraband into the prisons. Policy did not apply to legal, special purpose, educational correspondence, or mail from vendors or governmental agencies. Hall v. Johnson, 224 F. Supp. 2d 1058 (E.D. Va. 2002).

     Magazines sent to prisoner through the mails were obscene despite not showing sexual penetration when they did depict simulated sexual activity and discharged sexual fluids, but factual issues remained as to whether prison mail room employees improperly censored or returned to sender non-obscene letters and photographs sent to inmate by individual female correspondent and whether some materials sent to him were improperly "converted" for their "own personal use." Elliott v. Cummings, #01-3317, 49 Fed. Appx. 220 (10th Cir. 2002).

Medical Care

     Director of prison's medical services who acted in an administrative role and was not directly responsible for examining or treating the inmate was entitled to qualified immunity for upholding prison doctor's determination that facility did not need to provide prisoner with a continuous positive air pressure machine (CPAP) to treat obstructive sleep apnea. Meloy v. Bachmeier, No. 01-3415, 302 F.3d 845 (8th Cir. 2002).

     A doctor's denial of a prisoner's request for orthopedic sneakers did not constitute a deprivation that was a condition of urgency that could produce degeneration or extreme pain, as required to support an Eighth Amendment claim, despite inmate's claim that state-issued sneakers caused him "unnecessary discomfort." The record showed that the prisoner had been issued a pair of orthopedic boots because of the synovial cysts he had on his feet. Rodriguez v. Ames, 324 F. Supp. 2d 555 (W.D.N.Y. 2002).

     Prisoner did not show that his medical care was inadequate when he received thirteen medical examinations in a one year period, an evaluation to determine whether he needed to be reclassified, and recommendations to treat his muscular back pain with non-prescription medication. A federal civil rights claim over medical care cannot be based simply on a difference of opinion about the treatment offered or even on conduct that might be negligent medical malpractice under state law. Jones v. Norris, #02-2470, 310 F.3d 610 (8th Cir. 2002).

     Prisoner could not pursue federal civil rights claim against optometrist for failing to immediately treat a retinal tear following an injury to his eye when he could not show that the doctor was subjectively aware of his serious medical needs. Despite the seriousness of the subsequent permanently blurred vision and light sensitivity that the prisoner experienced, the doctor did not act with deliberate indifference since he saw no sign of retinal damage during his examination. Jones v. Van Fleit, #01-4303, 49 Fed. Appx. 626 (7th Cir. 2002).

     Pretrial detainee's heroin withdrawal represented a "serious medical need" for purposes of an Eighth Amendment claim and lawsuit by detainee's widow against county presented a genuine issue as to whether the county had a policy of refusing to provide appropriate medications to prisoners undergoing narcotics withdrawal. Gonzalez v. Cecil County, Maryland, 221 F. Supp. 2d 611 (D. Md. 2002).

Prison Litigation Reform Act: Exhaustion of Remedies

     Prison Litigation Reform Act's "exhaustion of remedies" requirement applied to a grievance procedure described in an inmate handbook, even when it had not been formally adopted by a state administrative agency and even if the "effectiveness" of the grievance procedure "may have been unclear," federal appeals court rules. Concepcion v. Morton, #01-4345, 306 F.3d 1347 (3rd Cir. 2002).

     Rastafarian prisoner's equal protection challenge against California prison hair length regulation should not have been dismissed for failure to exhaust available administrative remedies when defendant prison officials failed to establish such a failure to exhaust. Federal appeals court rules that failure to exhaust is a defense, with the burden on the defendants to establish it. Wyatt v. Terhune, #00-16568, 305 F.3d 1033 (9th Cir. 2002).

Prison Litigation Reform Act: "Three Strikes" Rule

     A federal prisoner's prior frivolous habeas petition under 28 U.S.C. Sec. 2241 challenging the conditions of his confinement counted as a strike, under the "three strikes" provision of the Prison Litigation Reform Act, 28 U.S.C. Sec. 1915(g) precluding an inmate from bringing further lawsuits or appeals as a pauper after three prior frivolous actions. Appeals court denies prisoner's motions to proceed as a pauper in appeals of eight separately dismissed federal cases. Owens-El v. United States, Nos. 02-1281, etc. 49 Fed. Appx. 247 (10th Cir. 2002).

Prisoner Assault: By Inmates

     County jail's alleged policy of failing to classify and segregate violent and nonviolent detainees was not the cause of an assault by one prisoner on another in an adjoining cell. Injured prisoner himself requested his particular cell assignment because of its view, and never requested being placed in protective custody or moved. Additionally, the attack occurred when he voluntarily followed the assailant into his cell. Burrell v. Hampshire County, #02-1504, 307 F.3d 1 (1st Cir. 2002)

Prisoner Assault: By Officers

     Jury awards $15,555 to prisoner allegedly grabbed and thrown against a wall by a deputy who was escorting him to testify in a court proceeding. The prisoner claimed that the deputy did this to punish him for comments he made in the courtroom and that he was shackled and handcuffed at the time of the incident. Jones v. Seddon, No. 01CV3890 (E.D. Pa. July 15, 2002), reported in The National Law Journal, p. B3 (Sept. 30 2002).

     A prison warden could not be held vicariously liable for the alleged beating of a prisoner by unknown guards during a prison riot, when there was no claim that he was directly involved in the incident or encouraged the guards' alleged actions. Prisoner's claims against four guards allegedly involved were barred by a one-year statute of limitations when he failed to commence the action against them within a year. Coleman v. Dept. of Rehab. & Corrections, #01-3169, 46 Fed. Appx. 765 (6th Cir. 2002).

Prisoner Death/Injury

     Washington state statutes which barred the payment of permanent partial disability benefits for workplace injuries to prisoners who had no family beneficiaries and were "unlikely" to be released from prison found to violate their due process and equal protection rights by state supreme court. Willougby v. Dept. of Labor and Industries of the State of Washington, No. 71950-1, 57 P.3d 611 (Wash. 2002).

     A city jail was a "public building" for purposes of a public building exception to governmental immunity under Michigan state law, but an individual detained in the jail was an "inmate" of the jail and therefore not entitled to recover under that exception to the city's statutory immunity from liability. See M.C.L.A. Sec. 691.1406. Additionally, the prisoner's claims that the city jail was "not clean," did not have a place to sit (resulting in her back hurting), and that a telephone was not readily available were not the kind of "structural conditions" required to claim liability under the public building exception. Bobbitt v. The Detroit Edison Company, 216 F. Supp. 2d 669 (E.D. Mich. 2002).

Prisoner Discipline

     Prisoner's due process rights were not violated at disciplinary hearing by a defect in the audio recording of the testimony, despite a state law requirement that an electronic record be kept, or by the hearing officer's alleged failure to call witnesses who the inmate failed to sufficiently identify. Dixon v. Goord, 224 F. Supp. 2d 739 (S.D.N.Y. 2002).

Prisoner Restraint

     County jail personnel's actions in strapping a female detainee naked and spread-eagle to a restraining board for three and a half hours and failing to cover her, allowing her to be observed by male officers, violated her constitutional right to privacy, but defendants were entitled to qualified immunity on federal civil rights claim, as the right violated was not "clearly established" at the time. State law award of $2,500 in damages for violation of privacy is upheld. Hill v. McKinley, #01-2574, 311 F.3d 899 (8th Cir. 2002).

Procedural: Discovery

     A plaintiff prisoner's refusal to answer questions at a deposition was not sufficient to justify the "drastic sanction" of dismissal of his claims when the judicial order authorizing the deposition failed to have any language compelling the plaintiff to answer questions under penalty of dismissal, but rather, only a general statement that "noncompliance" could lead to sanctions. Dawes v. Coughlin, 210 F.R.D. 38 (W.D.N.Y. 2002).

Religion

Massachusetts intermediate appeals court rules that prison must allow Muslim prisoners to wear kufi religious caps, even if housed in disciplinary housing units. Abdul-Alazim v. Superintendent, No. 99P-1302, 778 N.E.2d 946 (Mass. App. 2002).

Telephone Access

     Jail's refusal to allow pretrial detainee access to a telephone to arrange for bail after he was placed in disciplinary segregation for violations of jail rules did not violate his Fourteenth Amendment due process rights. The detainee still had the ability to use the mail and to meet with his attorney in relation to bail issues. Simpson v. Gallant, 223 F. Supp. 2d 286 (D. Maine. 2002).