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

Administrative Liability: Training

     An arrestee's "bald assertions" that a city's policies for training its officers were inadequate and that the officer who arrested her for disorderly conduct had been involved in one prior instance of alleged misconduct (based on a newspaper report) were not sufficient grounds to impose liability on the city for violating her federal civil rights by inadequate training. Bobbitt v. The Detroit Edison Company, 216 F. Supp. 2d 669 (E.D. Mich. 2002).

Assault and Battery: Chemical

     Estate of aspiring "rap" musician who died when officers' use of pepper spray against him allegedly triggered a fatal asthma attack reaches $2.7 million settlement with city in wrongful death and civil rights lawsuit. Officers mistakenly believed that the decedent, seen riding in a taxi, was involved in the murder of a fellow officer and allegedly kicked and beat him in the course of the arrest, leaving his asthma inhaler at the scene of the arrest after using the pepper spray on him. Estate of Faison v. City of Orange, No. 00-1944 (KSH) U.S. District Court (D.N.J.), June 25, 2002, reported in The National Law Journal, p. B3 (Sept. 30, 2002).

Assault and Battery: Handcuffs and Restraints

     Deputy sheriff's alleged action in handcuffing an arrestee "too tightly" and refusing to loosen the handcuffs after learning that the arrestee had preexisting arm and shoulder injuries would have violated clearly established law. Turek v. Saluga, #01-3986, 01-4018, 47 Fed. Appx. 746 (6th Cir. 2002).

Damages: Punitive

     Full federal appeals court, overruling three-judge appeals panel, holds that jury award of $500,000 in punitive damages against a municipality for a police officer's alleged excessive use of force against an arrestee was violative of a U.S. Supreme Court decision from 1981, and rejects argument that city "waived" objection to the improper award. Chestnut v. City of Lowell, #00-1840, 00-1996, 305 F.3d 18 (1st Cir. 2002).

Defenses: Official Immunity

     Motorist's claim that he had been "threatened" and sworn at, as well as "slammed" on the hood of a patrol car in the course of a deputy's investigation of a report of shots being fired was insufficient to show "actual malice" as required to set aside the deputy's official immunity, and any "use" of the deputy's car in connection with the investigation was insufficient to support a waiver of sovereign immunity by the county. Use of profanity by police, in the absence of epithets or words indicating personal bias, does not show "actual malice." Tittle v. Corso, No. A02A0828, 569 S.E.2d 873 (Ga. App. 2002).

     Sheriff's office employees had official immunity from liability for an alleged improper sale of property seized from an art gallery in satisfaction of judgment, since they were performing actions within the scope of their authority in good faith. County was also entitled to sovereign immunity from alleged property owner's claim. Bowles v. Yeganeh, No. 05-01-00937-CV, 84 S.W.2d 252 (Tex. App. 2002).

Disability Discrimination

     Deaf arrestee could not recover damages against "unnamed" or "John Doe" officer defendants for alleged violation of Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12101 et seq., in connection with failure to attempt to communicate with him during his arrest through "auxiliary aids and services." No claims for damages may be brought under Title II against defendants in their individual capacities. Kennington v. Carter, 216 F. Supp. 2d 856 (S.D. Ind. 2002).

Domestic Violence

     City and police officials were not liable for officer's action of taking his former wife and others hostage. Officer's actions were not foreseeable and ex-wife's domestic violence complaints against officer were "unspecific" and spread over time. One instance of ignoring a domestic violence complaint, negligently overlooked because of a heavy workload, did not show a policy or practice of ignoring such complaints against police officers. Hansell v. City of Atlantic City, No. 01-2908, 46 Fed. Appx. 665 (3rd Cir. 2002).

     City and officers did not "create" the danger to three children who were murdered by their father by failing to enforce a restraining order against him after he abducted them, and therefore did not violate their substantive due process constitutional rights. Plaintiff mother did, however, assert a valid possible claim for violation of procedural due process based on Colorado state statute requiring reasonable efforts to enforce restraining orders. Gonzales v. City of Castle Rock, No. 01-1053, 307 F.3d 12258 (10th Cir. 2002).

     Untimely processing of paperwork at prosecutor's office which should have led to the arrest of the complainant's former boyfriend was not a denial of the complainant's due process right of access to the courts and did not violate her right to equal protection. Court rejects argument that liability could be based on prosecutor's alleged failure to train her staff to give the same priority to domestic violence complaints from unmarried complainants as complaints involving married complainants. No liability for subsequent shooting of woman by former boyfriend. Thomas v. City of Mount Vernon, 215 F. Supp. 2d 329 (S.D.N.Y. 2002).

False Arrest/Imprisonment: No Warrant

     Officers had probable cause to arrest striking phone company workers based on statements by non-striking employees that the strikers had threatened them, along with a videotape viewed by one officer that showed threatening behavior. Arrestees had no claim for false arrest. Moore v. City of New York, 219 F. Supp. 2d 335 (E.D.N.Y. 2002).

     Police dispatcher's report to officer that motorist's vehicle had been reported stolen, even though later determined to be erroneous, was sufficient to give officer probable cause to make a warrantless arrest after stopping car for traffic violations. Miller v. City of Nichols Hills Police, 42 Fed. Appx. 212 (10th Cir. 2002).

False Arrest/Imprisonment: Warrant

     Detective's reliance on statement of witness, without further investigation, in applying for and obtaining a warrant for a suspect's arrest, was reasonable. The fact that statements of the witness may have been false did not alter the result. Villeda v. Prince George's County, Md., 219 F. Supp. 2d 696 (D. Md. 2002).

Family Relationships

     Alleged police conduct of giving false and defamatory information about murder suspect to his family members to make them fearful of him, ostracize him, and elicit false accusations against him, if true, violated his clearly established constitutional rights to familial relationships. Patel v. Searles, #00-9552, 305 F.3d 130 (2nd Cir. 2002).

Firearms Related: Intentional Use

     Police chief's shooting and killing of an intoxicated, disturbed man wielding a sword and verbally threatening bodily harm to officers was objectively reasonable, despite arguments that he failed to "exhaust" all other options available to "contain" the individual and violated a department policy by using deadly force with the hope of only wounding the suspect. Mace v. City of Palestine, Texas, 213 F. Supp. 2d 691 (E.D. Tex. 2002).

First Amendment

     Members of motorcycle organization denied entry to portions of county courthouse because of their refusal to remove clothing with "biker" symbols were entitled to a preliminary injunction, based on the likelihood of their success on the claim that the action violated their First Amendment rights. Sammartano v. First Judicial District Court, #01-16685, 303 F.3d 959 (9th Cir. 2002).

High-Speed Pursuit

     Proper legal standard for police civil rights liability for injuries to third parties resulting from collision with suspect's car during high-speed pursuit was whether officers intended to harm the pursued suspects physically or "worsen their legal plight," rather than deliberate indifference to the risk of harm. Epps v. Lauderdale County, Tenn., #00-6737, 45 Fed. Appx. 332 (6th Cir. 2002).

     Michigan intermediate appeals court upholds award of over $2.2 million against city for injuries to motorist and her child resulting from collision with vehicle being pursued by police. Appeals court rejects retroactive application of Michigan Supreme Court decision that changed state law governing the motor vehicle exception to governmental immunity in the state. Ewing v. City of Detroit, No. 225401, 651 N.W.2d 780 (Mich. App. 2002).

Insurance

     City, in purchasing liability insurance for liability of more than $2 million but less than $4 million, waived its statutory immunity under North Carolina law for the negligent conduct of its officers to the extent of the insurance, and could be sued, along with its officer, for detainee's alleged damages in excess of $3 million arising out of a collision of the officer's vehicle with another car while the plaintiff was riding in it while in custody. Defendant officer, in his official capacity, shared both the city's immunity and its waiver of immunity. See N.C.G.S.A. Sec. 160A-485. Clayton v. Branson, No. COA02-65, 570 S.E.2d 253 (N.C. App. 2002).

Loss of Evidence/Preservation of Evidence

     State trooper did not violate the First Amendment right of access to the courts of a vandalism victim by handling evidence with his bare hands and thereby making it useless for fingerprint analysis when there was no indication that he acted maliciously or deliberately. Additionally, trooper was acting in an objectively reasonable manner as the scattered firecrackers and CO2 canisters that he handled had been exposed to weather and were lying in snow and mud, and therefore were of "little value" for fingerprint analysis. Kampfer v. Vonderheide, 216 F. Supp. 2d 4 (N.D.N.Y. 2002).

Malicious Prosecution

     Arizona Supreme Court upholds $1.4 million malicious prosecution jury award against city and police detective for pawn shop manager after dismissal of charges of theft and trafficking in stolen goods. Gonzales v. City of Phoenix, No. CV-01-0170-PR, 52 P.3d 184 (Ariz. 2002).

     Detective's affidavit, on the basis of which an arrest warrant was obtained to arrest a postal employee for retaliating against a witness, had sufficient facts to support probable cause even though it also contained exculpatory claims of the employee which would have negated probable cause if the judge had decided to believe his version of the incident. Detective was not liable for malicious prosecution. Lewis v. Rock, #01-1329, 48 Fed. Appx. 291 (10th Cir. 2002).

Off-Duty/Color of Law

     Federal trial court improperly accepted stipulation in a lawsuit that an off-duty police officer was acting under color of state law at the time that his friends allegedly assaulted a patron at a restaurant. Off-duty officers who act for purely personal purposes do not act under color of law, and whether this officer did so was a legal issue that had to be determined by the court. Neuens v. City of Columbus, #01-4257, 303 F.3d 667 (6th Cir. 2002).

Off-Duty/Color of Law: Firearms Related

     City and police chief were not liable for off-duty officer's alleged shooting and killing of a man during a fight that occurred when he accompanied a friend to assist him in a property dispute with his ex-wife in another jurisdiction. The officer was in plain clothes, had no police authority in that jurisdiction, did not identify himself as a police officer, and was acting for his own private purposes. Officer's alleged misuse of his weapon was not foreseeable and there was no basis for a claim for negligent retention and supervision of him. Phelan v. City of Mount Rainier, No. 98-CV-1096, 805 A.2d 930 (D.C. 2002).

Police Plaintiff: Firefighters' Rule

     Police officer's claim for damages against restaurant to which he was summoned to break up fight was barred by the firefighter's rule since the injury was inflicted as a result of the same negligent act that required the call for police assistance. Farmer v. B&G Food Enterprises, Inc., No. 2000-CA-00722-SCT, 818 So. 2d 1154 (Miss. 2002).

Police Plaintiff: Vehicle Related

     Intermediate Illinois appeals court overturns summary judgment for cab company in lawsuit by a police officer based on injuries suffered when he was struck by a cab while directing traffic and dragged for several feet. Genuine issues of material fact existed as to whether the cab driver was an independent contractor or an employee/agent of the company and whether he was acting within the scope of his employment/agency when he struck the officer. Davila v. Yellow Cab Company, No. 1-01-4366, 776 N.E.2d 720 (Ill. App. 2002).

Property

     Following the conclusion of criminal proceedings, an arrestee could seek money damages under Florida law for the value of property impounded which could not be returned as it could not be located. Forbes v. State of Florida, 826 So. 2d 421 (Fla. App. 2002).

Public Protection: Motoring Public & Pedestrians

     Even if city had an intentional policy of not enforcing its speeding laws, that would be insufficient to impose liability on municipality for the death of two children killed by an allegedly speeding motorist as they attempted to cross the street. Childrens' parents also failed to establish liability based on purported inadequate investigation. White v. City of Toledo, 217 F. Supp. 2d 838 (N.D. Ohio 2002).

Search and Seizure: Home/Business

     City ordinances regulating pawn shops, under which officers made seizures of jewelry from plaintiff's shop on several different occasions, did not violate his Fourth Amendment or due process rights. The ordinances require either a warrant or consent from the store owner for the seizure of property and provide a mechanism under which a pawn broker may obtain a hearing regarding the seized property. Plaintiff consented to two of the seizures, and a third seizure took place under a valid warrant. Larson v. City of Denver, #01-1301, 41 Fed. Appx. 355 (10th Cir. 2002).

Search and Seizure: Person

     Federal officials could not be held liable for alleged violation of civil rights of accused drug smuggler who underwent emergency surgery to remove leaking balloons of heroin from his abdomen. Plaintiff admitted that he was not aware of any direct involvement "whatsoever" by the named federal defendants, but sued them purely in their supervisory capacity. Nwaokocha v. Hagge, #02-0057, 47 Fed. Appx. 55 (2nd Cir. 2002).

Search and Seizure: Vehicle

     Impoundment of motorist's truck after a minor traffic accident, based on the vehicle not being licensed, registered, or insured was not an illegal seizure, since it was based on the state's determination that such vehicles are a threat to public safety. Search of vehicle was justified as a safety precaution because of the motorist's affiliation with a group known to carry weapons and assert that they were not subject to the law. Bybee v. City of Paducah, #01-6440, 46 Fed. Appx. 735 (6th Cir. 2002).

     Officer who impounded a motorcycle could reasonably have believed that he had a basis to do so because of a stolen vehicle report from the motorcycle's seller, despite information that the motorcycle was the subject of a private contract dispute, when the alleged purchaser refused to cooperate with the officer's investigation by showing proof of payment, proof he had obtained title, or, indeed, the location of the motorcycle. Officer was entitled to qualified immunity under these circumstances from Fourth Amendment claim. Pickens v. Miller, 216 F. Supp. 2d 1011 (N.D. Cal. 2002).

Sexual Assault and Harassment

     While city could not be held vicariously liable for police officer's alleged sexual abuse of juvenile participants in police department's Explorer program, it did have a duty to protect the youths against such abuse and there was a genuine issue of fact as to whether that duty had been breached. Doe v. City of Murrieta, No. E029190, 126 Cal. Rptr. 2d 213 (Cal. App. 2002).

Age Discrimination - In General

     Federal appeals court declines to overturn a $246,774 ADEA verdict because the plaintiff's economic expert allegedly lacked "sufficient facts and data, scientific principles, and reliable methods" to render a valid opinion. Hartley v. Dillard's, #02-1298, 2002 U.S. App. Lexis 23727 (8th Cir. 2002).

Arbitration Procedures

     Terms of the bargaining agreement evidenced an intent and contractual obligation to arbitrate all disputes, and survive the expiration of the agreement. The Providence Journal Co. v. Providence Newspaper Guild, #01-2430, 308 F.3d 129 (1st Cir. 2002).

     A seven-justice N.Y. Court of Appeals reversed an intermediate appellate decision that had overturned an arbitration award. Although both employees were guilty of safety violations, there was no public policy in New York which required public employers to terminate employees for their conduct. The arbitration awards, imposing a lesser penalty, were reinstated. NYCTA v. Transp. Workers Union, #106, 2002 N.Y. Lexis 2840, 2002 N.Y.Int. 0107 (N.Y., 2002).

     Michigan appellate court declines to overturn an arbitration award that reinstated a corrections officer who had an expunged arrest record for misdemeanor possession of marijuana in his home. Office of State Employer v. UAW Local 6000, 2002 WL 31082148 (Unpub. Mich.App. 2002).

     The American Arbitration Association's Labor Arbitration Rules and the National Rules for the Resolution of Employment Disputes were amended in 2002. See www.adr.org

Certification Rights, Standards and Procedures

     Nebraska Supreme Court rejects a challenge to the state's peace officer decertification procedures. Hauser v. Nebraska Police Standards Advisory Council, #S-01-467, 264 Neb. 605, 650 N.W.2d 760 (2002).

Defamation - In General

     Federal appeals court rejects a libel action brought by a former FBI official who was accused of having advance knowledge about the 1998 Pan Am 103 bombing. Revell v. Hoffman, #01-6169, 2002 U.S. App. Lexis 22624 (10th Cir. 2002).

     Jury awards an applicant for a federal immigration officer position over $30,000 in compensatory and $500,000 in punitive damages against a former employer who falsely accused him of theft and revealing classified military information. Ake v. Hirazumi, #994566, 45 (9) ATLA L. Rptr. (Unpub. Hawaii Cir. Ct. 2002).

Demotions

     Federal appeals court rejects a challenge to a demotion where the employee was never eligible for the promotion she received. Barrett v. Social Secur. Admin., #02-3081, 309 F.3d 781 (Fed Cir. 2002).

     California appellate court holds that officers who are reassigned to lower pay grades or who are deselected from bonus positions have a property interest in those pay grades or bonus positions, which invokes due process rights. LAPPL v. Los Angeles, #B151027, 102 Cal. App.4th 85, 124 Cal.Rptr.2d 911 (Cal. App. 2d Dist. 2002).

Disciplinary Appeals & Challenges - In General

     Although federal employees must elect which remedy to pursue, the MSPB has held that a Border Patrol Agent who chose to challenge her termination via grievance and arbitration was not precluded from taking an administrative appeal after the union refused to process her grievance. Rodriguez v. Dept. of Justice, #DA-0752-01-0211-I-2, 2002 MSPB Lexis 1196 (MSPB 2002).

Disciplinary Punishment - In General

     Arbitrator reduces a penalty from termination to a 120-day suspension. Officer was drinking in a bar on his beat and had consensual sex in a vehicle, stopped in a public park. City of Port Arthur and P. A. Police Officers Assn., AAA Case No. 70-390-00208-2, 117 LA (BNA) 760 (Moore, 2002).

     Federal appeals court reverses the firing of a 28-year postal employee who assisted another person with fraudulently obtaining a mortgage. The conduct, though criminal, was not egregious enough to warrant termination. O'Keefe v. U.S. Postal Service, #01-3280, 2002 U.S. App. Lexis 23061 (Fed. Cir. 2002).

Fair Retail Credit Act

     Employer settles with a rejected applicant who allegedly failed a background check. Employer failed to disclose the source of the derogatory information, in violation of the Fair Credit Reporting Act, 15 U.S. Code §1681. Cook v. U. S. F. I, #01-CVS-8171, 45 (9) ATLA L. Rptr. (Unpub. N.C. Super. Ct., Guilford Co. 2002).

Free Speech

     Tenth Circuit rules against a former detective in the JonBenet Ramsey murder case who, because of the chief's gag order, was unable to publicly defend herself against media allegations of incompetence. Arndt v. Koby, #01-1356, 2002 U.S. App. Lexis 22701 (10th Cir. 2002).

     Appeals court rejects a First Amendment suit by an outspoken corrections officer who claimed that a superior was having an affair with another officer, and retaliated by denying him a promotion and imposing unfavorable assignments. The allegations did not implicate a matter of public concern. Albert v. Mitchell, #00-4271, 42 Fed. Appx. 691 (Unpub. 6th Cir. 2002).

Light Duty Assignments

     ADA does not require an employer to create a permanent light duty position. Watson v. Lithonia, #02-1423, 203 F.Supp.2d 1303 (7th Cir. 2002).

National Origin Discrimination

     An allegedly discriminatory policy of classifying Hispanic employees as temporary employees for longer periods of time than white employees, which deprived them of longevity pay and retirement compensation was not a continuing violation for the purpose of avoiding the statutes of limitations. City of Hialeah v. Rojas, 2002 U.S. App. Lexis 23252 (11th Cir. 2002).

Pay Disputes - Overtime Claims

     Arbitrator disallows a fire union's grievance complaining about a reduction in overtime after more firefighters were hired. City of Claremore and IAFF L-1077, FMCS Case #01/0627-12769-8, 117 LA (BNA) 722 (Marks-Barnett, 2002).

Picketing

     Federal court affirms a county's liability for retaliatory action after several officers engaged in "informational picketing," but reduces the jury's verdict of $300,000 per officer to $75,000 per officer. Burden of proving that plaintiffs failed to mitigate their damages fell on the employer. Clopp v. Atlantic County, #00-1103, 2002 U.S. Dist. Lexis 18898 (D.N.J. 2002).

Privacy Rights

     Appellate court sets aside a $75,000 jury verdict. City's attorney allowed third parties to observe a large photo of a naked woman -- the wife of a city employee who had used a city-owned digital camera to make the photograph. Haynes & Boone v. Chason, #12-00-00374-CV, 81 S.W.3d 307 (2001; rev. den. 2002).

Promotional Rights, Procedures and Performance Appraisals

     Appeals court rejects a damage suit filed by a rejected promotional candidate who said the chief blacklisted him because he had been critical of the chief's policies. Bombalicki v. Pastore, #AC 21719, 71 Conn. App. 835, 804 A.2d 856 (2002).

Psychological Exams and Standards
- Impairment or Disability Under ADA or Rehab Act

     EEOC District Office finds that a police officer was "disabled" and that ordering him to submit to additional fitness for duty evaluations was unlawful. EEOC ex rel. Tucker and City of Tempe Police Dept., #350-A1-2326 (2002).

Race Discrimination - In General

     Second Circuit affirms damages of $50,000 each for 24 officers who were involuntarily transferred, because of their race, following the Abner Louima torture scandal. Patrolmen's Benevolent Assn. v. City of New York, 00-9538, 310 F.3d 43, 2002 U.S. App. Lexis 21656 (2nd Cir. 2002).

Racial Harassment

     Black former police officer, who endured racial taunts from white coworkers, will receive a court-approved settlement of $112,754, plus $84,246 in legal fees, for personal injury and emotional distress. Harrell v. Oak Hill, #6:02-cv-00018, 40 (1981) G.E.R.R. (BNA) 1033 (Unpub., M.D. Fla. 2002).

Releases & Waivers

     Federal appeals court rejects the whistleblower claims of former employees who signed a release of claims "arising out of my employment at, or termination of employment." Thomas v. U.P.R.R., #01-2631, 2002 U.S. App. Lexis 21995 (8th Cir. 2002).

Retirement Rights and Benefits

     Pennsylvania appellate court holds that detectives employed by district attorneys are not members of a police force for early retirement purposes. Allegheny Co. Detectives Assn. v. Allegheny Co. Retirement Bd., #188 C.D. 2002, 804 A.2d 1285 (Pa. Cmwlth. 2002).

     California reserve police officer, who received minimum wage rate and served 1 or 2 days per month for 27 years, was not "honorably retired" to qualify for the right to carry a concealed firearm on retirement. Haas v. Meisner, 2002 Cal. App. Lexis 4933 (4th Dist. 2002).

Sexual Harassment - In General

     Federal court refuses to dismiss a private citizen's §1983 suit for harassing conduct, brought against a detective and village. Blasetti v. Pietropolo, #02 Civ. 2792, 213 F.Supp.2d 425 (S.D.N.Y. 2002).

     California's employment laws do not create employer liability when a nonemployee client or customer sexually harasses an employee. Salazar v. Diversified Paratransit, #B142840, 2002 Cal. App. Lexis 4869 (Cal. App. 2d Dist. 2002).

Union and Associational Activity

     En banc appeals court holds that a nonunion employee is required to pay his share of the union's cost in recruiting members outside of the bargaining unit. Supreme Court denies review. United Food and Comm Wrkrs. L-1036 v. NLRB, 284 F.3d 1099 (9th Cir. en banc); cert. den. Mulder v. NLRB, #01-1867, 71 U.S.L.W. 3338, 2002 U.S. Lexis 8430 (2002).

Whistleblower Requirements and Protection

     Federal appeals court rejects the whistleblower claims of former employees who signed a release of claims "arising out of my employment at, or termination of employment." Thomas v. U.P.R.R., #01-2631, 308 F.3d 891 (8th Cir. 2002).

Workers' Compensation - Exclusive Remedy

     Injured N.C. firefighter could simultaneously recover under the Worker's Comp. Act and sue an instructor for willful and wantonly negligent conduct. Seymour v. Lenoir County, #COA01-972, 567 S.E.2d 799 (2002).

Wrongful Discharge - In General

     Federal appeals court affirms $1.25 million in compensatory and $110,000 in punitive damages awarded to a former NYPD officer for harassment, retaliation, a forced resignation and the intentional infliction of emotional distress. Gonzalez v. Bratton, #01-7826, 2002 U.S. App. Lexis 21521 (2nd Cir. 2002).

Access to Courts/Legal Info

     Iowa prisoners found to have adequately shown that prison policy barring their communications with other inmates serving as "jailhouse lawyers" resulted in actual injury to their pending post-conviction proceedings as required for purposes of First Amendment claim of denial of right of access to the courts. Bear v. Kautzky, #01-3462, 305 F.3d 802 (8th Cir. 2002).

     Prison officials' actions in allegedly opening prisoner's legal mail outside of his presence, failing to forward legal filing fees, and requiring prisoner to surrender his word processor did not deny the prisoner his constitutionally guaranteed right of access to the courts when he failed to show that prejudice resulted to a non-frivolous claim. Baker v. Wells, No. 01-2532, 39 Fed. Appx. 150 (6th Cir. 2002).

     Trial court abused its discretion in refusing to appoint a lawyer to represent an inmate who had a claim of arguable merit concerning the adequacy of his medical treatment for HIV and heart conditions and where "numerous technical rulings" against plaintiff showed that he had "significant difficulty" in advancing his case in the absence of legal representation. Montgomery v. Pinchak, No. 99-5081, 294 F.3d 492 (3rd Cir. 2002).

     Dismissal of prisoner's claim that prison library was inadequate and violative of his right of access to the courts as frivolous was proper when the prisoner had no right to pursue state tort claims or medical malpractice claims as federal civil rights lawsuits as he sought to do, and when one of his other federal civil rights claims was dismissed as frivolous. The sole remaining lawsuit which was the basis for his claim suffered no prejudice. Thomas v. Rochell, #02-5189, 47 Fed. Appx. 315 (6th Cir. 2002).

AIDS Related

     Mother of prisoner who died of AIDS could not pursue claim for injunctive relief since the decedent was no longer incarcerated, and failed to adequately allege that the defendant medical personnel knowingly acted with deliberate indifference to the medical needs of the decedent and other prisoners with AIDS. Pubill-Rivera v. Curet, 218 F. Supp. 2d 89 (D. Puerto Rico).

     Federal Bureau of Prisons (BOP) could not be sued under 42 U.S.C. Sec. 1983 for alleged inadequate treatment of HIV-positive inmate housed in correctional facility under contract with the District of Columbia since the BOP did not act under "color of state law," and prisoner's general assertion that D.C. employees provided him inadequate medical care "pursuant to the policy, custom, and practice of the District of Columbia Department of Corrections" was insufficient to show a D.C. policy without any factual support. Private corporation that contracted with the District to operate correctional facility could only be liable for a violation of the Eighth Amendment on the basis of a showing of an official policy or custom of either the corporation or the District. Gabriel v. Corrections Corporation of America, 211 F. Supp. 2d 132 (D.D.C. 2002).

Defenses: Qualified Immunity

     Correctional officers who reported, in good faith, seeing a prisoner indecently expose his genitals in a public area of the prison were entitled to qualified immunity against convicted rapist's federal civil rights lawsuit against them, filed after his disciplinary conviction was overturned on appeal because of damage to the audiotape of the hearing. Sand v. Steele, 218 F. Supp. 2d 788 (E.D. Va. 2002).

     Law concerning a prisoner's claim that he was retaliated against by prison officials in retaliation for his exercise of his First Amendment rights was not clearly established in the Sixth Circuit prior to that court's decision in Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999) (en banc). Defendant prison officials were therefore entitled to qualified immunity. Williams v. Ollis, No. 01-2460, 42 Fed Appx. 694 (6th Cir. 2002).

Diet

     Placing a prison on a restricted "food loaf" diet after he was disciplined for his sexual misconduct of masturbating with butter did not violate his due process rights. "Food loaf" had been shown to meet nutritional and caloric requirements for human beings and prisoner's argument that it caused his hemorrhoids to bleed days after the restriction expired was mere "speculation." Griffis v. Gundy, #02-1449, 47 Fed. Appx. 327 (6th Cir. 2002).

First Amendment

     Prisoner could pursue his claim that correctional officials retaliated against him for his participation in African/African American Cultural Coalition and his pursuit of grievances and lawsuits, even if he had no independent constitutional right relating to the complained of specific deprivations. Prisoner failed, however, to show that defendants' motives were retaliatory or used excessive force against him. Cunningham v. O'Leary, #00-3729, 40 Fed. Appx. 232 (7th Cir. 2002).

Insurance

     Mississippi county's immunity from wrongful death lawsuit brought over death of mentally ill detainee incarcerated in county jail while awaiting involuntary commitment proceeding was waived under state law to the extent of the monetary limits of the liability insurance policy purchased by the county. Boston v. Hartford Accident and Indemnity Company, #2000-CA-00968-SCT, 822 So. 2d 239 (Miss. 2002).

Medical Care

     Diabetic prisoner could pursue his claim that failure to eat meals after administration of insulin injections could cause pain and stress to his body and brain to the point of unconsciousness and coma, in violation of the Eighth Amendment. Federal appeals court also rules that prisoner's alleged failure to exhaust available administrative remedies is an "affirmative defense" which may be waived or forfeited by a defendant. McCargo v. Guelich, #99-3017, 47 Fed. Appx. 96 (3rd Cir. 2002).

     Prisoner did not claim that the alleged ignoring of his requests for medical attention at county jail was caused by a county policy or custom, therefore he could not pursue a federal civil rights claim against the county. Watson v. Gill, No. 01-6249, 40 Fed. Appx. 88 (6th Cir. 2002).

     Doctor who made a correct diagnosis of prisoner's hand injury and doctor who prescribed oral antibiotics by telephone were not deliberately indifferent to the prisoner's medical needs but there were genuine material facts as to whether other medical personnel were deliberately indifferent to and left untreated prisoner's subsequent pain. Walker v. Benjamin, #00-2769, 293 F.3d 1030 (7th Cir. 2002).

     Prisoner's claim that county jailers and county medical personnel provided him with inadequate medical treatment for his hepatitis C was not rendered frivolous simply because of his inability to identify the defendants by name, but his complaint was still subject to dismissal without prejudice because of his failure to demonstrate that he had exhausted all available administrative remedies before filing suit. McCallum v. Gilless, #01-5897, 38 Fed. Appx. 213 (6th Cir. 2002).

Parole

     Amendment to Michigan state parole statute allowing the prosecutor or crime victim to appeal a parole decision, but not granting that right to a prisoner, M.C.L.A. Sec. 791.234, did not adversely impact on prisoner when the amendment had not taken effect at the time of his parole denial or denial of reconsideration, so he could not pursue his equal protection claim. Bickley v. Marscke, No. 01-1835, 44 Fed. Appx. 698 (6th Cir. 2002).

     Nothing in a Wisconsin statute, W.S.A. 304.02, establishing an early release program for prisoners in order to address overcrowding required the Department of Corrections to extend eligibility to prisoners who had been convicted of assaultive crimes. Ghashiyah v. Bertrand, Nos. 01-4034, 01-4195, 44 Fed. Appx. 736 (7th Cir. 2002).

Prison Litigation Reform Act: Exhaustion of Remedies

     Prisoner did not demonstrate exhaustion of remedies in his federal civil rights claim over alleged inadequate medical treatment when his complaint did not involve any named defendants and no documentation was provided for any of his grievances. Glenn v. Campbell, #01-6063, 40 Fed. Appx. 21 (6th Cir. 2002).

     Prisoner must show that he exhausted his available administrative remedies before filing a federal civil rights lawsuit over prison conditions, rather than while his lawsuit is pending in court. Failure to do so requires dismissal of the complaint under 42 U.S.C. Sec. 1997e(a). Mack v. DeWitt, No. 01-4163, 40 Fed. Appx. 36 (6th Cir. 2002).

     Prisoner did not adequately exhaust his available administrative remedies prior to filing suit when prison officials failed to respond to many of his grievances and did respond to one of his grievances, since prisoner could have filed a timely appeal but failed to do so. The doctrine of "substantial compliance" did not apply to the prisoner's exhaustion requirement when his cause of action accrued after the effective date of the Prison Litigation Reform Act. Lewis v. Washington, No. 00-2017, 300 F.3d 829 (7th Cir. 2002).

Prisoner Assault: By Inmates

     Prisoner failed to show that his injury from assault by another prisoner was caused by the facility's cell assignment policy of allowing inmates to choose their own cellmates. Prisoner had previously shared his cell with his alleged attacker without prior incident and did not inform correctional employees that he had any dispute with cellmate or feared any harm from him. Washington v. LaPorte County Sheriff's Department, #01-3812, 306 F.3d 515 (7th Cir. 2002).

     Prisoner stabbed 16 times by fellow inmates and left paralyzed from the waist down receives $300,000 settlement of lawsuit claiming that jail personnel failed to implement policies requiring that he be separated from rival gang members and ignored his requests for protection. Mayoral v. Sheahan, No. 96C7249, U.S. Dist. Ct., Northern District of Illinois, Eastern Division, reported in The Chicago Daily Law Bulletin, p. 3 (November 8, 2002).

Prisoner Assault: By Officers

     Federal appeals court orders new trial on damages following jury's award of $750,000 in compensatory and $750,000 in punitive damages to prisoner who claimed prison guards beat him in his cell and later, resulting in months of wheelchair confinement. Trial judge improperly told jury that they could award damages for mental or emotional distress when the plaintiff prisoner had said he was not seeking any. Poullard v. Turner, #01-30587, 298 F.3d 421 (5th Cir. 2002).

     Prisoner could not pursue lawsuit for damages against correctional officers he claimed attacked him without provocation when he had not previously overturned disciplinary violations for assault and battery against the officers arising from the same incident. Hinton v. Hansen, #9201447, 47 Fed. Appx. 325 (6th Cir. 2002).

Prisoner Death/Injury

     New York State could not be held liable for a prisoner's injuries while using an allegedly defective exercise machine at a correctional facility in the absence of any proof that there was actual or constructive knowledge of the defect which would have provided an opportunity to repair it. Valentine v. State of New York, Claim No. 98679, 747 N.Y.S.2d 282 (N.Y. Ct. Cl. 2002).

Prisoner Suicide

     Dismissal in federal court of wrongful death lawsuit brought over detainee's action of hanging himself in county jail barred relitigation of the estate's wrongful death and negligence claims in state court. Quinn v. Estate of Jones, No. 2000-CA-00977-SCT, 818 So. 2d 1148 (Miss. 2002).

Prisoner Transfer

     Prisoner had no justifiable expectation that he would be housed in any particular correctional facility and was therefore not entitled to an injunction mandating that he be moved elsewhere. No constitutional right was violated when prisoner was placed in a special housing unit after refusing to share a cell with a specific fellow prisoner. Johnson-Bey v. Ray, No. 01-3382, 38 Fed. Appx. 507 (10th Cir. 2002).

     Prisoner who requested a transfer to a United Kingdom facility to serve out the remainder of his Illinois sentence for killing a co-worker had no due process liberty interest in such a transfer under an Illinois statute, 730 ILCS 5/3-2-3.1, which provided that the Governor of the state may authorize the Director of Corrections to consent to transfers or exchanges of offenders. Rickard v. Sternes, #01-3011, 44 Fed. Appx. 738 (7th Cir. 2002).

Segregation: Administrative

     Placement of prisoner in administrative segregation while disciplinary charge was pending was not cruel and unusual punishment since it was not an "atypical and significant hardship" and had no impact on the duration of his confinement. Lynch-Bey v. Bolden, No. 02-1240, 44 Fed. Appx. 696 (6th Cir. 2002).

Sexual Assault

     Drivers' license examiner's alleged conduct of forcing female inmate in work release program to have sex with him in exchange for special privileges, and under threat of being removed from the program, violated clearly established Eighth Amendment law and was sufficiently outrageous to support a claim for intentional infliction of emotional distress under Oklahoma state law. Smith v. Cochran, 216 F. Supp. 2d 1286 (N.D. Okla. 2002).

Strip Searches

     Misdemeanor arrestees were entitled to a preliminary injunction and class certification in their lawsuit challenging alleged county practice of routinely strip searching pre-trial detainees even in the absence of reasonable suspicion that they possessed weapons or other contraband. Even though the number of strip searches had decreased "dramatically" since the litigation began, an injunction might help prevent a return to the "old ways" after the lawsuit was completed. Dodge v. County of Orange, 209 F.R.D. 65 (S.D.N.Y. 2002).

Telephone Access

     Pretrial detainee did not have a constitutionally protected liberty interest in telephone usage on the basis of Alaska state statute, and restrictions that were imposed by state jail on his telephone access did not violate his due process or First Amendment rights. Valdez v. Rosenbaum, #01-35300, 302 F.3d 1039 (9th Cir. 2002).

Visitation

     U.S. Supreme Court to review constitutionality of Michigan prison regulations banning visits from inmate's minor relatives and former prisoners who are not family members. Federal appeals court struck down regulations as applied to non-contact visits. Bazzetta v. McGinnis, #01-1635, 286 F.3d 311 (6th Cir. 2002), cert. granted sub nom., Overton v. Bazzetta, #02-94, 71 U.S.L.W. 3387 (12/02/2002).