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

Assault and Battery: Physical

     Deputies who were busy with other things in arrestee's residence when a fellow officer allegedly struck arrestee across the face and nose with a flashlight while she was restrained on the floor could not be held liable when they had no reason to anticipate this action nor could they have intervened in time to prevent it. Dixon v. Campbell, No. 02-1260, 58 Fed. Appx. 180 (6th Cir. 2003).

Attorneys' Fees: For Plaintiff

     Federal trial judge abused his discretion by issuing a ruling on an attorneys' fee petition in a settled civil rights lawsuit over wrongful arrest and illegal search of a residence, since the settlement agreement provided that the issue of attorneys' fees would be decided through mediation and resolution under the guidance of a magistrate judge. Settlement provided for a $100,000 payment to the plaintiff, and trial judge reduced plaintiff's attorneys' fees request by 70% from $291,358.75 to $87,407.62, along with granting $18,707.31 in costs. Hatcher v. Consolidated City of Indianapolis, No. 01-3550, 323 F.3d 513 (7th Cir. 2003).

     Arrestee who was awarded $2 in damages by a jury on his claim for violation of his First Amendment rights based on his arrest while he was protesting on the steps of city hall was not entitled to attorneys' fees, particularly when he previously declined two separate offers of judgment from defendant officers, requested $10,000 in damages, and lost his claim against the municipality and his claim for punitive damages. Pouillon v. Little, No. 01-1619, 326 F.3d 713 (6th Cir. 2003).

Damages: Punitive

     Evidence was sufficient for jury to award $15,000 to man beaten by police officer while sergeant stood by, but an award of $2 million in punitive damages was excessive, federal trial court rules, citing new U.S. Supreme Court case on proportionality of punitive damages to compensatory damages. Trial judge orders reduction of punitives to 45,000 or else a new trial on the issue of punitive damages. Waits v. City of Chicago, No. 01C4010, U.S. Dist. Ct. N.D. Ill. June 6, 2003, reported in Chicago Daily Law Bulletin, p. 1 (June 9, 2003).

     U.S. Supreme Court holds that a punitive damages award of $145 million was excessive in a case where the compensatory damages were $1 million. Such a disproportionate award of punitive damages violates the Due Process Clause of the Fourteenth Amendment. Courts reviewing punitive damages should consider: (1) the degree of reprehensibility of the defendant's misconduct, (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award, and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. State Farm Mutual Automobile Insurance Co. v. Campbell, #01-1289, 123 S. Ct. 1513 (2003).

Defenses: Absolute Immunity

     Prosecutor was entitled to absolute immunity for alleged suppression of exculpatory evidence in criminal prosecution and alleged instructions to witness to falsely implicate defendant during murder trial. Federal appeals court rejects argument that it should adopt an exception to prosecutorial immunity for "egregiousness" in cases of "drastic and systematic departure" from the proper exercise of prosecutorial power. Cousin v. Small, No. 01-30745, 325 F.3d 627 (5th Cir. 2003).

Defenses: Absolute Judicial Immunity

     Montana Supreme Court overturns, as erroneous, its prior decision that judicial and quasi-judicial immunity provided local governmental units in that state immunity from liability under 42 U.S.C. Sec. 1983, overruling Reisdorff v. County of Yellowstone, 989 P.2d 850 (Mont. 1999). Miller v. City of Red Lodge, No. 01-517, 65 P.3d 562 (Mont. 2003).

Defenses: Collateral Estoppel

     When the trial court found, in a criminal proceeding, that probable cause existed for the defendant's arrest, she was barred by "issue preclusion," (the defense of collateral estoppel) from asserting in a subsequent federal civil rights lawsuit following her acquittal on the underlying charges that she was illegally arrested without probable cause. Crumley v. City of St. Paul, Minn. No. 02-1257, 324 F.3d 1003 (8th Cir. 2003).

Defenses: Eleventh Amendment Immunity

     Florida State Department of Highway Safety and Motor Vehicles is an agency of the state and cannot be sued for damages under 42 U.S.C. Sec. 1983. "Neither a state nor its officials acting in their official capacities are 'persons' under Sec. 1983," the court noted, citing Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989). Dickinson v. Gonzalez, No. 3D00-927, 839 So. 2d 709 (Fla. App. 3d Dist. 2003).

Defenses: Service of Summons

     Plaintiff arrestee, serving as his own lawyer, showed sufficient good cause grounds for extension of time for the service of a summons on the arresting officer when process server could not obtain officer's home address, attempted to serve the officer at work several times, and was always told that the officer was not on duty, and eventually left the summons with another officer on duty who represented that he was authorized to accept service of process for the police department. Officer's motion to dismiss for failure to serve summons was therefore denied. Elkins v. Broome, 213 F.R.D. 273 (M.D. N.C. 2003).

Defenses: Statute of Limitations

     Arrestee's state law false arrest and intentional infliction of emotional distress claims accrued on the date of his arrest and his federal civil rights claim for arrest without probable cause accrued, at the latest, on the date he was sentenced, rather than on the date that his conviction was subsequently invalidated nine years later. Arrestee's claims were all time-barred under two year Illinois statute of limitations. U.S. Supreme Court decision in Heck v. Humphrey, 512 U.S. 477 (1994), holding that a federal civil rights claim for damages attributable to an unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated did not apply to claims for damages resulting from false arrest not made pursuant to a warrant, the court stated, citing Snodderly v. R.U.F.F. Drug Enforcement Task Force, 239 F.3d 892 (7th Cir. 2001). Day v. Conwell, 244 F. Supp. 2d 961 (N.D. Ill. 2003).

DNA Testing

     Arrestee had no constitutional right to pre-trial DNA testing, even though failure to do requested test allegedly delayed his release from detention for twenty-two months. Jimenez v. State of New Jersey, 245 F. Supp. 2d 584 (D. N.J. 2003).

Expert Witnesses

     Psychiatrists were qualified to testify as expert witnesses as to the psychological impact on juveniles attending a basketball tournament of allegedly unlawful detentions and searches of them by police officers. Since psychiatrists did not need forensic training or board-certification in child psychology to treat juveniles, their lack of these qualifications did not bar them from testifying. Psychiatric team leader who relied on data collected by a team member and did not himself personally examine the civil rights plaintiffs could testify as to his opinion. Williams v. Brown, 244 F. Supp. 2d 965 (N.D. Ill. 2003).

False Arrest/Imprisonment: No Warrant

     Police officer had sufficient probable cause to arrest a student on a charge of unlawfully carrying a deadly weapon onto school grounds based on school security guard's finding of a knife and gun in the student's car in the parking lot, where the officer was a bystander. Butler v. Rio Rancho Public School Board of Education, 245 F. Supp. 2d 1203 (D.N.M. 2002)

     State trooper was entitled to qualified immunity for arresting a motorist who refused to sign a reckless driving citation he issued after observing the driver speeding in a large tractor truck on an interstate highway in an area with hazardous conditions. Driver's subsequent acquittal of reckless driving did not alter the result, as the trooper could reasonably have believed that the charges were justified. Wood v. Kesler, No. 01-15827, 323 F.3d 872 (11th Cir. 2003).

False Arrest/Imprisonment: Warrant

     Arrestee could not pursue a federal civil rights claim based on her arrest under a facially valid warrant after county sheriff's office warrant clerk allegedly entered incorrect information into the National Crime Information Center (NCIC) database, confusing the arrestee's date of birth and social security number with those of another person with the same first and last name and middle initial. Negligence alone is not enough for a federal civil rights claim. Johnson v. Scotts Bluff County Sheriff's Dept., 245 F. Supp. 2d 1056 (D. Neb. 2003).

First Amendment

     Doctor who cursed police dispatcher and made statements that could be interpreted as threats against officers did not have a claim for violation of his First Amendment rights based on police department report of these statements to his employer, which contributed to his suspension from medical residency program. Cohen v. Smith, #01-1666, 58 Fed. Appx. 139 (6th Cir. 2003).

Freedom of Information

     Freedom of Information Act (FOIA) exemption permitting the withholding of personnel, medical and similar files which would invade personal privacy did not apply to documents including reporter's typed notes of interview with organization members and another document explaining how the notes were distributed to the FBI, since those interviewed knew they were speaking to a reporter, so there was no expectation of privacy. Government could properly remove names and identifying marks of FBI agent and IRS employee from documents requested under exemption for information compiled for law enforcement purposes. Billington v. U.S. Department of Justice, 245 F. Supp. 2d 79 (D.D.C. 2003).

Governmental Liability: Policy/Custom

     Insufficient evidence existed to show a "custom" of burglaries by police officers, so that claims against city for liability for officers' burglary of plaintiff's home were appropriate. There was also no showing that city policymakers had shown deliberate indifference to the need to properly train and supervise police officers. Hernandez v. Borough of Palisades Park Police Department, No. 02-2210, 58 Fed. Appx. 909 (3rd Cir. 2003).

Malicious Prosecution

     Arrestee allegedly misidentified as seller of drugs in undercover drug "buy" by police officers did not show that police officers failed to follow their standard operating procedures for identification, and therefore could not pursue her malicious prosecution claim against the state of New York, since nothing supported her assertion that the officers acted intentionally or recklessly in misidentifying her. Harris v. State of New York, 756 N.Y.S. 2d 302 (A.D. 3rd Dept. 2003).

Negligence: Vehicle Related

     Pedestrian struck by police department motor scooter in mall area of public park was properly awarded $5,795,015 in damages when expert testimony showed that her brain injuries placed her at risk for Alzheimer's disease, epilepsy, seizures and dementia. Reed v. City of New York, 757 N.Y.S.2d 244 (A.D. 1st Dept. 2003).

Off-Duty/Color of Law

     Deputy sheriff's alleged sexual abuse of his stepdaughter over a two and a half year period could not be the basis for holding the county vicariously liable for his actions under California state law, as he was not acting within the scope of his employment in doing so. K.G. v. County of Riverside, No. E030933, 131 Cal. Rptr. 2d 762 (Cal. App. 4th Dist. 2003).

Police Plaintiff: Firearms Related

     Parents who allegedly allowed their fugitive son access to their home and helped him avoid arrest owed a duty to a police officer their son subsequently shot and killed while trying to avoid apprehension to safely store and secure their handgun, which was used in the killing. Estate of Heck ex Rel. Heck v. Stoffer, 786 N.E.2d 265 (Indiana 203).

Police Plaintiff: Vehicle Related

     Police officer badly injured in vehicle collision with speeding hearse receives $10 million settlement. Data retrieved from "sensing and diagnostic module" in hearse, a "black box" data recorder increasingly becoming standard equipment in many commercial vehicles and luxury cars, proved that the hearse was going 63 miles per hour within two seconds of the impact despite a 45 mile per hour speed limit, and that the driver's braking only slowed the hearse down to 53 mph at the time of the impact. Tiedje v. Weinstein Brothers, Inc., No. 00L12335 (Circuit Court of Cook County, IL.), reported in The National Law Journal, p. A4 (April 21, 2003).

Police Plaintiff: Wrongful Death

     Estate of police investigator stabbed to death by outpatient from county mental health clinic could pursue claims against county based on alleged negligence in the monitoring and treatment of outpatient. Padula v. County of Tompkins, 756 N.Y.S.2d 664 (A.D. 2003).

Positional Asphyxia

     Use of hog-tie restraint against arrestee who had a head wound and had been sprayed with pepper spray, and was also allegedly compliant at the time of the restraint, was an excessive use of force, and officers were not entitled to qualified immunity from possible liability for arrestee's subsequent death from positional asphyxia. There was also evidence to show that county officers widely used hog-tie restraints but that no training in the use of such restraints was provided. Garrett v. Unified Government of Athens-Clarke County, 246 F. Supp. 2d 1262 (M.D. Ga. 2003).

Procedural: Amendment of Complaint

     Arrestee pursuing federal civil rights claim against town and police officer arising out of his arrest and conviction for violation of a town ordinance could not seek, in the same proceeding, administrative review of his conviction, since state law requires filing for such review within 35 days. Doctrine in federal court that an amended complaint "relates back" to the date of the original filing date of the complaint could not be used to circumvent this time limit, and therefore state law claims in the lawsuit, which depended on the arrestee successfully challenging his conviction of the town ordinance, should be dismissed. Almanza v. Town of Cicero, 244 F. Supp. 2d 913 (N.D. Ill. 2003).

Procedural: Police Records/Reports

     Community group was entitled to access to disclosure of city police department records pertaining to civilian complaints of police misconduct, under Rhode Island statute, and trial court could waive costs of retrieval and award group reasonable attorneys' fees. Police chief was entitled however, to exclude Social Security numbers and badge numbers of police officers against whom complaints had been received. Direct Action for Rights and Equality v. Gannon, Nos. 99-22-Appeal, 819 A.2d 651 (R.I. 2003).

     Defendant in cocaine possession case did not present a plausible factual basis for his claim of police misconduct sufficient to provide good cause for discovery of confidential police personnel files of the officers involved in his arrest. Warrick v. Superior Court, No. B160462, 132 Cal. Rptr. 2d 810 (Cal. App. 2003).

Public Protection: Crime Victims

     Police officer and police legal advisor did not violate the due process rights of a 19-year-old mentally disabled girl by returning her, upon her request, to the home of a 39-year-old man she met over the Internet who she described as her boyfriend. They did not know that he had allegedly repeatedly raped her or that he would allegedly do so again after she was returned to his home, and they had no authority to detain her. Bukowski v. City of Akron, No. 01-4248, 326 F.3d 702 (6th Cir. 2003).

     Police department was not liable for allegedly failing to take action to prevent a workplace shooting after receiving a phone call from a workplace manager reporting a threat of violence to employees. City had no constitutional duty to investigate any particular threat of violence made by private persons. Hernandez v. City of Goshen, #02-3268, 324 F.3d 535 (7th Cir. 2003).

Public Protection: 911 Phone Systems

     Officer may have had a duty to protect a woman who called 911 when she was restrained in her apartment by an attacker, but his decision, in investigating the call, to knock, look in a window, and leave when he received no response was not unreasonable. May v. Franklin County Bd. of Com'rs, No. 01-4000, 59 Fed. Appx. 786 (6th Cir. 2003).

Racial Discrimination

     African-American motorist did not show that police officer's traffic stop of her vehicle was racially motivated. The officer had grounds to stop her based on observations of her vehicle crossing the center line of the highway, and there was no evidence that similarly situated persons of another race were not stopped and ticketed. Johnson v. Crooks, No. 02-1915, 326 F.3d 995 (8th Cir. 2003).

Search and Seizure: Home/Business

     Officer was not required to express his concern to a judge issuing a search warrant for the search of a home in a drug activity investigation when there was no evidence that any doubts he had about the informant's information were serious. Failure to acknowledge, in affidavit for the warrant, that the informant had given different numbers regarding the amount of cocaine he allegedly distributed for the suspect did not eliminate probable cause for the warrant. Molina Ex Rel. Molina v. Cooper, #02-1995, 325 F.3d 963 (7th Cir. 2003).

     Federal appeals court overturns jury award of damages to three bystanders detained by police during search of commercial building by police under search warrant and of damages to building owner for property damage during search. City could not be liable to bystanders, as there was no showing that there was a municipal policy or custom of detaining innocent bystanders to searches for an unreasonably long period of time. Damage done to building during search, which amounted to less than $500, did not amount to a "taking" for purposes of the Fifth Amendment, and building owner had no reasonable expectation that the building would remain free of legal searches. Two-hour deprivation of access to the building could not be the basis for a claim for damages either. Jones v. Philadelphia Police Department, No. 01-4202, 57 Fed. Appx. 939 (3rd Cir. 2003).

Sexual Assault and Harassment

     Federal appeals court upholds award of $1 in nominal damages and $7,428 in attorneys' fees against city which allegedly took no action and began no investigation of woman's complaints to police chief and mayor that a police officer with whom she had broken off an affair was harassing her and stalking her while on the job and in uniform. Attorneys' fee award, court states, should put police departments and cities "on notice" that they cannot simply ignore such complaints. Murray v. City of Onawa, Iowa, No. 02-2626, 323 F.3d 616 (8th Cir. 2003).

Wrongful Death

     Georgia Supreme Court holds that, under state law, a parent of an adult child murdered by his surviving spouse can pursue a wrongful death claim against the alleged murderer or against "other parties" that proximately caused the death, answering a question certified to it by the U.S. Court of Appeals for the Eleventh Circuit in a case where the murdered son's mother asserted state wrongful death claims against the wife, a police chief, and the city. The claims against the city and police chief were based on the fact that the alleged murderer was a police captain who had previously attempted suicide. The police chief had ordered her to remove all weapons from her home, but did not relieve her of her duties, and she used her service revolver to shoot and kill her husband. Carringer v. Rodgers, No. SO2Q1483, 578 S.E.2d 841 (Ga. 2003).

Arbitration Procedures

     Court refuses to overturn an arbitration award that rejected the punishment of an off-duty corrections officer that illegally possessed TV cable decoders. Disparate penalties shown. Rhode Island Dept. of Corrections v. Bro. of Correctional Officers (Algasso), #02-1793, 2002 R.I. Super. Lexis 156 (Super. Ct. Providence 2002).

Collective Bargaining - Duty to Bargain

     Seventh Circuit holds that an employer was required to bargain with the union over the use of covert videocameras in the workplace. National Steel v. NLRB, #01-3798, 324 F.3d 928, 2003 U.S. App. Lexis 6515 (7th Cir. 2003).

     Illinois appellate court concludes that a dispute of whether overtime pay for sheriff's deputies should be given as direct salary or comp. time is a bargaining issue and subject to mandatory arbitration. The fact that there was a past practice of awarding comp. time is not determinative. County of St. Clair v. Illinois F.O.P., #5-01-0990, 2003 Ill. App. Lexis 552 (5th Dist. 2003).

     Management did not violate the bargaining agreement when it changed merit rules without bargaining with peace officers' union, where the agency followed a long-time past practice of developing new rules through work groups involving all agency employee units, and where the union was invited to participate. San Diego School Dist. and Schools Peace Officers Assn., 118 LA (BNA) 247 (Riker, 2003).

Criminal Liability

     Suburban Cleveland police officer, moonlighting as a store detective, is convicted of involuntary manslaughter. During a struggle, he crushed the skull of a shoplifter. State of Ohio v. Jameel Talley, Cuyahoga Co. Com. Pleas Ct. (2003).

Disability Rights and Benefits

     Appellate court affirms decision to deny a disability pension to a police officer who injured his ankle. The evidence showed he was able to work as a HVAC technician and to ride his motorcycle. Rizzo v. Bd. of Tr. Evergreen Park Police Pension Fund, #1-02-0747, 2003 Ill. App. Lexis 476 (1st Dist. 2003).

Disciplinary Offenses

     Appeals court upholds the firing of a Chicago officer who failed to report that shots were fired at a fleeing vehicle and fatally shot an unarmed passenger. The panel also upheld a one-year suspension of an officer who falsely claimed that the driver had attempted to run over the officers. Daniels v. Police Bd., #1-01-2419, 2003 Ill. App. Lexis 535 (1st Dist. 2003).

     Appellate court reinstates the termination of an off-duty detention officer that assaulted his wife. Opp v. City of Huntington Beach, #G025947, 2003 Cal. App. Unpub. Lexis 920 (4th Dist. 2003).

Disciplinary Punishment

     Rhode Island Supreme Court reverses an arbitrator and upholds the termination of a corrections officer. The officer had been fired because a missing handcuff key was found in the possession of an inmate, with whom the officer had formed a personal friendship. State v. Rhode Island Bro. of Correctional Officers (Ryan), 819 A.2d 1286 (R.I. 2003).

     Arbitrator rejects a "shop talk" defense and affirms a ten-day suspension of a corrections officer who screamed profanity in the presence of an inmate. County of Blair (PA) and AFSCME Dist. C-83, FMCS Case #99/16996, 118 LA (BNA) 238 (Miller, 2002).

     Texas appellate court affirms the termination of a sheriff's deputy who was fired for having sex with an inmate. Bexar Co. Sheriff's Dept. v. Sanchez, #04-02-00251, 2003 Tex. App. Lexis 813 (4th Dist. 2003).

Disciplinary Searches

     A divided federal appeals court holds that an anonymous letter, accusing a prison employee of having a gun in his car, was an insufficient basis to search the vehicle while it was parked on prison property. Wiley v. Dept. of Justice, #02-3044, 2003 U.S. App. Lexis 9175 (Fed. Cir. 2003).

Fair Labor Standards Act - Overtime

     The actual number of hours worked, including overtime, should be used in calculating firefighters "hourly pay" for purposes of setting damages due for underpayment. Singer v. City of Waco, #01-51185, 324 F.3d 813, 2003 U.S. App. Lexis 5858 (5th Cir. 2003).

Fair Labor Standards Act - Meal periods

     Federal court opts for the "benefit of the employer" test, rather than the "completely relieved of duty test" in finding that detective lunch periods were not compensable time. Harris v. City of Boston, #2002-10123, 2003 U.S. Dist. Lexis 4984 (D.Mass. 2003).

Family, Medical & Personal Leave

     An employer could fire a worker who took FMLA leave to care for his wife and newborn child, and was actually managing his wife's restaurant. The employer had a rule prohibiting "unauthorized work for personal gain" while on leave. Pharakhone v. Nissan, #01-5955, 324 F.3d 405, 2003 U.S. App. Lexis 6289, 2003 FED App. 0098P (6th Cir. 2003).

Firearms - Restrictions on Wearing

     Federal appeals court sustains the termination of a corrections officer who was convicted of assaulting his live-in girlfriend. His conviction implicated the federal domestic violence gun ban. White v. Dept. of Justice, #02-3329, 2003 U.S. App. Lexis 9177 (Fed. Cir. 2003).

First Amendment Related

     Federal appeals court holds that management did not violate clearly established First Amendment law in suspending a police officer for his hornblowing activities during a municipal ceremony. The disruption was not speech or conduct related to a matter of public concern. Meaney v. Dever, #02-1783, 2003 U.S. App. Lexis 7505 (1st Cir. 2003).

Free Speech

     County Ethics Commission in Maryland declines a waiver for the police chief to write a book or screenplay about his role in the 2002 DC area sniper shootings. The chief has filed a suit for injunctive relief. Ethics Cmsn. Opinion No. 03-011 (Montgomery Co., MD, 2003); Moose v. Kellar, #8:03-cv-01414-RDB (D. Md. filed 5/14/2003).

Hairstyle and Appearance Regulations

     Fourth Circuit revives a suit brought by a Rastafarian corrections officer who was repeatedly disciplined for wearing deadlocks. Booth v. Maryland Dept. of Corr. Serv., 02-1657, 2003 U.S. App. Lexis 8156 (4th Cir. 2003).

     Federal appeals court holds that a judge can ban Islamic headwear in the courtroom. "Jews will not wear yarmulkes. I am Catholic and the Pope would not wear a miter," said the judge. U.S. v. James, #02-3424, 2003 U.S. App. Lexis 9199 (7th Cir.).

Handicap Discrimination - Specific Disabilities

     Fifth Circuit finds that chronic pancreatitis was an impairment for ADA purposes but the worker was unable to show that the condition substantially limited his ability to eat food, even if recurring temporary conditions caused him to miss work. Waldrip v. General Electric, #02-30155, 325 F.3d 652 (5th Cir. 2003).

Impasse Arbitration

     California Supreme Court strikes down a mandatory impasse arbitration law. It violated a section of the state constitution empowering counties and charter cities to set compensation for their employees. Riverside County v. Superior Court (Riverside Sheriffs Assn.), #S107126, 66 P.3d 718 (2003).

Injuries to Employees

     New York's highest court allows a suit, brought by an injured firefighter against a building owner, where he showed a connection between code violations and the fire. Giuffrida v. Citibank, #2-48, 2003 N.Y. Lexis 989 (N.Y. 2003).

Last Chance Agreements

     Arbitrator holds that a county employee, who was disciplined for drinking on duty, was not subject to a last-chance agreement, when management decided to give him a letter of suspension warning him that any further infractions "will result in termination," where the terms of letter were not negotiated with union. Martin County Bd. of Cmsnrs. and Martin Co. Public Employees, 116 LA (BNA) 1697 (Smith, 2002).

Out of Title Assignments

     Arbitrator holds that a municipality violated a bargaining agreement when public works employees were not called out to remove a damaged street light and a police officer removed the damaged pole. Overtime pay awarded. Bor. of West View and Utility Wkrs. Union of Amer. L-416, 118 LA (BNA) 143 (Dissen, 2003).

Racial Harassment

     Eighth Circuit affirms a jury verdict of only $1 for a minority firefighter who claimed a racially hostile work environment. Mems v. City of St. Paul, #02-1834, 2003 U.S. App. Lexis 8150 (8th Cir. April 30, 2003).

Residency Requirements

     Arbitrator finds that a city did not have just cause to discharge a firefighter who owned a house in the city, but also had a residence outside the city in which his wife and child resided. The city ordinance did not prohibit employees from alternatively occupying more than one residence. City of Warren, Ohio and IAFF L-204, 118 LA (BNA) 129 (Duff, 2003).

Sex Discrimination

     Federal court rejects the suit filed by an overweight smoker, alleging that she was unfairly disqualified by the qualifying fitness test for a SWAT-narcotics sergeant position. Stahl v. Wyandotte Co., #01-2539, 244 F.Supp.2d 1181 (D. Kan. 2003).

Sexual Harassment

     Federal appeal court holds that an employer can be vicariously liable for harassment by a nonsupervisory superior coworker if the harasser has the authority to create a hostile work environment for subordinate coworkers. Mack v. Otis Elevator, #02-7056, 326 F.3d 116, 2003 U.S. App. Lexis 6948, 91 FEP Cases (BNA) 1009 (2nd Cir. 2003).

     Seventh Circuit revives a complaint. Although the plaintiff failed to use the employer's complaint procedures in a timely fashion, she made an oral report of harassment only eight days after the last act of harassment and her suit should not have been dismissed. Hardy v. Univ. of Illinois, #02-2454, 2003 U.S. App. Lexis 8679 (7th Cir. 2003).

     Private employer agrees to pay $10 million to settle harassment complaints of 91 women employed at a suburban Chicago soap facility. EEOC v. The Dial Corp., #99 C 3356 (N.D. Ill. 2003).

Union and Associational Activity

     Union was not liable for a breach of its duty of fair representation when it chose not to pursue the arbitration of a forced transfer of one of two employees who were bitter enemies in the workplace. Driver v. U.S. Postal Service and Amer. Postal Workers Union, #01-6079, 2003 FED App. 0140P, 2003 U.S. App. Lexis 9195 (6th Cir. 2003).

Visual Acuity Standards

     An applicant with monocular vision was not a qualified individual under the ADA, as he could not meet defendant's vision standards. Dyke v. O'Neal Steel, #01-2821, 2003 U.S. App. Lexis 8480 (7th Cir. 2003).

Whistleblower Requirements and Protection

     Ninth Circuit affirms the criminal contempt conviction of a police practices researcher who violated a court protective order when he gave copies of 79 LAPD files to TV journalists, exposing efforts by officials to shield police officers from domestic violence prosecutions. The defendant's story also aired on the CBS news show, 60 Minutes. The Supreme Court has denied review. Mullally v. City of Los Angeles, #01-55620, 49 Fed. Appx. 190, 2002 U.S. App. Lexis 22535 (Unpub. 9th Cir. 2002); cert. denied, 2003 U.S. Lexis 3025 (2003).

     Federal appeals court rejects a First Amendment and whistleblower suit by a police chief, alleging that he was fired for continuing an investigation of city council members, instead of referring it to an outside agency as requested by the mayor, and for referring to the mayor as Hitler. Tharling v. City of Port Lavaca, 02-20061, 2003 U.S. App. Lexis 9159 (5th Cir. 2003).

     Arbitrator holds that management violated the Federal Whistleblowers Protection Act and a Michigan state law when it fired an employee who notified a corruption task force about alleged illegal activity in his department. Reinstatement and back pay ordered. City of Detroit and Individual Grievant, 118 LA (BNA) 135 (Hodgson, 2003).

     Ninth Circuit sustains an award of $1,150,000 in compensatory damages and $1,150,000 in punitive damages against a private sector employer that wrongfully terminated a radiation safety officer that had reported nuclear safety violations. Freund v. Nycomed Amersam, 01-56491/4, 2003 U.S. App. Lexis 7537 (9th Cir. 2003).

Access to Courts/Legal Info

      Prisoner's allegations that correctional officials denied him access to the law library, filed false disciplinary charges against him, and arranged to transfer him in retaliation for his actions in filing a federal civil rights lawsuit against them adequately stated a claim for denial of access to the courts. Federal appeals court notes that Defendant officials did not respond to these claims, and that the prisoner claimed to have been denied access even to the applicable rules on summary judgment before his other claims were rejected on the Defendants' summary judgment motion. Goodman v. Smith, No. 02-6313, 58 Fed. Appx. 36 (4th Cir. 2003).

     Prisoner did not assert a valid federal civil rights claim for denial of access to the courts since he failed to allege that the conduct he complained of prevented him from pursuing any non-frivolous legal claim challenging his conditions of confinement or his conviction. Ruiz v. Bouchard, #02-1962, 60 Fed. Appx. 572 (6th Cir. 2003).

Attorneys' Fees

     Federal appeals court holds that limits on attorneys' fees awards established by the Prison Litigation Reform Act applied to prisoner's successful challenge to retroactive change in rules concerning the date of his eligibility for parole hearing. These limits apply to all lawsuits brought by prisoners, not just those concerning "prison conditions," but also those challenging the length of confinement. Jackson v. State Board of Pardons and Paroles, #02-15545, 2003 U.S. App. Lexis 9773 (11th Cir.).

Damages: Punitive

     U.S. Supreme Court holds that a punitive damages award of $145 million was excessive in a case where the compensatory damages were $1 million. Such a disproportionate award of punitive damages violates the Due Process Clause of the Fourteenth Amendment. Courts reviewing punitive damages should consider: (1) the degree of reprehensibility of the defendant's misconduct, (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award, and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. State Farm Mutual Automobile Insurance Co. v. Campbell, #01-1289, 123 S. Ct. 1513 (2003).

Defenses: Governmental Immunity

     California Supreme Court overturns $175,006 award to man beaten by another detainee in city jail while confined there for public intoxication. Plaintiff, arrested for public intoxication, was a "prisoner" while confined, entitling city to governmental immunity, despite subsequent decision not to pursue charges. Teter v. City of Newport Beach, No. S106553, 66 P.3d 1225 (Cal. 2003).

Disability Discrimination

     Despite the prisoner having a medical condition that required him to only be assigned to a lower bunk, prison officials did not engage in disability discrimination by disciplining him for his disobedience to a housing order when the evidence showed that he refused his new cell assignment not on the basis of his alleged disability, but because he refused to be celled with a black inmate. Prisoner's broad claim that the housing of inmates of different races together could cause a "prison riot" was insufficient to show that prison officials were "deliberately indifferent" to his safety. Hoover v. Keating, No. 02-5136, 59 Fed. Appx 288 (10th Cir. 2003).

Drugs and Drug Screening

     Prisoner was properly disciplined for violating rule against the use of controlled substances. Correctional officer who tested the prisoner's urine sample was certified and qualified to do so. Perez v. Goord, 757 N.Y.S.2d 382 (A.D. 2003).

Employment Issues

     Arbitrator did not have the authority to reduce the discipline of a correctional officer from termination to a 60-day suspension in circumstances where the misconduct involved the development of an inappropriate personal relationship with an inmate. The officer's relationship with the inmate created a potential security risk. State of Rhode Island v. Brotherhood of Correctional Officers, No. 2001-590-Appeal, 819 A.2d 1286 (R.I. 2003).

     Correctional officer's memo to his employer, requesting vacation time to "spend the Christmas holiday" with his parents, even though it did mention their failing health, was not sufficient to inform the department that he was seeking family leave as he was entitled to do under a California state statute, to take care of his parents. Denial of his request, therefore, did not violate his rights or subject the employer to liability. Stevens v. California Department of Corrections, No. C039896, 132 Cal. Rptr. 2d 19 (Cal. App. 2003).

False Imprisonment

     New York Department of Correctional Services was not barred from extending a prisoner's sentence based on a prior error in calculating his tentative conditional release date. The Department had a "continuing, non-discretionary, ministerial duty" to make accurate calculations of terms of imprisonment, a duty that "requires it to correct known errors." Maguire v. New York State Division of Parole, 757 N.Y.S.2d 391 (A.D. 2003).

Good Time

     Under Mississippi law, a claim challenging the forfeiture of earned good time credit accrued after the prisoner was notified of the forfeiture for an alleged violation of prison rules. The prisoner's failure to make any attempt within a statutory thirty-day time limit to challenge the forfeiture made his claim time-barred. Boler v. Bailey, No. 2002-CP-00838-COA, 840 So. 2d 734 (Miss. App. 2003).

Governmental Liability

     Federal appeals court rules that prisoner could pursue his claim against the District of Columbia asserting that it had a policy or custom that caused him to suffer inadequate medical treatment once he was transferred to a Virginia state prison while serving a D.C. sentence. Prisoner should not, appeals court holds, be required to show that D.C. officials acted with subjective deliberate indifference in order to pursue his claim. Baker v. Dist. of Columbia, No. 01-5205, 326 F.3d 1302 (D.C. Cir. 2003).

Inmate Property

     Ohio prisoner had no constitutional right to a typewriter to begin with, and therefore had no right to retain a memory typewriter with a five page memory, which had earlier been permitted, after state correctional officials altered the rules to only permit typewriters with a one-line memory or less. McClintick v. Lazaroff, #2002-1771, 786 N.E.2d 1284 (Ohio. 2003).

Mail

     Opening of incoming letter, marked "legal papers", but suspected of not being from an attorney, outside of the prisoner's presence, and inspection of it for contraband, which resulted in the finding of marijuana, did not violate the prisoner's Sixth Amendment right to counsel or his due process rights, even if it did violate a state administrative code section. State of Wisconsin v. Steffes, No. 02-1300-CR, 659 N.W.2d 445 (Wis. App. 2003).

     Prisoner's claim that an officer intentionally deprived him of one issue of a magazine to which he subscribed because the officer disliked the magazine's views, and lied about doing so, was sufficient to state a First Amendment free speech claim. Prisoner did not, however, state a valid claim for violation of his right to religious freedom, since, while the Pagan Revival magazine purported to have a religious theme, he did not claim that the magazine had anything to do with his religious practices or that his failure to receive it interfered with the exercise of his religion. Lindell v. Doe, #01-2527, 58 Fed. Appx. 638 (7th Cir. 2003).

Medical Care

     Trial court properly denied an injunction to a prisoner who claimed that prison officials were deliberately indifferent to his need for treatment for hepatitis C by withholding the preferred "Rebetron" drug therapy. There was evidence that treating the prisoner with this medication would be "counter-productive" and even dangerous based on his history of substance abuse and failure to enroll in a substance abuse treatment program. Before the appeals court, the prisoner produced documents showing the earlier completion of such a program and evidence that other similar prisoners were given the requested treatment without being required to participate in substance abuse treatment, raising the possibility that he will, on remand, be able to establish deliberate indifference or improper selective enforcement of the treatment policy. Conti v. Goord, No. 02-0084, 59 Fed. Appx. 434 (2nd Cir. 2003).

     Federal civil rights claim over medical care could not be based on mere disagreement over the proper course of medical treatment, but prisoner could pursue his claim as to whether the "repeated, foreseeable, and lengthy delays he experienced in getting his substitute blankets upon transfer to higher-security units of the prison rises to the level of deliberate indifference." Linderman v. Vail, No. 01-35684, 59 Fed. Appx. 180 (9th Cir. 2003).

Parole

     Mississippi Department of Corrections was not liable for parolee's alleged rape of woman based on discretionary decision not to revoke his parole when he failed to report to parole officer within 72 hours of his release from his custody in Illinois. Evidence failed to show gross or reckless failure to supervise parolee or that there was any knowledge of the parolee's intent to harm a particular person. Connell v. State Ex Rel. Mississippi Department of Corrections, #2002-CA-00135-SCT, 841 So. 2d 1127 (Miss. 2003).

Prison Litigation Reform Act: Exhaustion of Remedies

     Because the plaintiff was a prisoner when he brought his lawsuit concerning an alleged assault by prison personnel and forced medication, his failure to exhaust available administrative remedies required dismissal of his lawsuit, despite the fact that he had subsequently been released from custody while his lawsuit was pending, federal appeals court rules. Cox v. Mayer, No. 02-5102, 2003 U.S. App. Lexis 11554 (6th Cir.).

     Illinois prison officials failed to prove that plaintiff prisoner failed to exhaust his available administrative remedies on his federal civil rights lawsuit asserting that they violated his constitutional rights by failing to ship 99 boxes, containing over 2,800 pounds of his property to California after he was transferred there. Prisoner stated that he did not know, until after his transfer, that the material would not be shipped, and it was "doubtful" that he could use Illinois administrative remedies once he was in a California prison. Prisoner's federal lawsuit was barred, however, by his prior Illinois state court mandamus action seeking to force the shipment of the boxes, in which the state court had rejected his claim. Walker v. Page, No. 00-3990, 59 Fed. Appx. 896 (7th Cir. 2003).

Prison Rules and Regulations

     Prison rule prohibiting noncompliance with designated boundaries and schedules of living units and work assignments was sufficient to provide prisoner with adequate notice that his action in returning to the dining hall to eat a second breakfast when he was supposed to go to a medical area for a blood test was a violation of the rule. Court rejects prisoners due process challenge to discipline based on this rule violation. Nelson v. Hayden, No. 28031, 67 P.3d 98 (Idaho App. 2003).

Prisoner Assault: By Inmate

     No liability for federal prison officials for death of prisoner stabbed by another inmate following a fight over a chess game. Having one officer supervising 219 inmates with violent propensities during a facility-wide move did not, by itself, establish either a violation of civil rights or negligence under the Federal Tort Claims Act, in the absence of any expert testimony or other evidence that this caused the assault. Officer did not act with deliberate indifference to assaulted prisoner's serious medical needs when he summoned help as soon as he learned of the stabbing. Robinson v. U.S. Bureau of Prisons, 244 F. Supp. 2d 57 (N.D.N.Y. 2003).

     Prison officials were not liable for a "vicious beating" a prisoner suffered from an inmate in an adjoining cell who had previously threatened him. Defendant officials were never made aware of that threat, and the assailant's prior attack on another inmate had been against someone scheduled to testify against him, which was not the case in the immediate incident. Taylor v. Little, No. 01-5651, 58 Fed. Appx. 66 (6th Cir. 2003).

Prisoner Assault: By Officer

     Prison superintendent could not be held liable for correctional officer's alleged unprovoked assault on prisoner when he had no reason to know of any particular risk to the inmate prior to the incident, and no personal participation in the incident. Prisoner also had no due process right to have his grievance about the alleged assault thoroughly investigated. Torres v. Mazzuca, 246 F. Supp. 2d 334 (S.D.N.Y. 2003).

     Using a plastic medication box to beat back a prisoner's hand after he reached his arm through the trap in the door of his cell in violation of prison rules was not an excessive use of force. Officer's action only led to minor injuries and the force used was proportionate to the threat the prisoner's actions presented. White v. Matti, #02-2761, 58 Fed. Appx. 636 (7th Cir. 2002).

Prisoner Death/Injury

     Kansas prisoner could pursue claim against state for personal injuries he suffered while operating a road grader at a correctional institution and was not required under state law to exhaust his administrative remedies before filing suit, under applicable state regulation. K.A.R. 44-16-104. Bates v. State of Kansas, No. 88,757, 67 P.2d 168 (Kan. App. 2003).

Prisoner Discipline

     New Jersey appeals court orders new hearing for prisoner found guilty of threatening a correctional officer based on improper denial of prisoner's request to confront, question, and cross-examine the accusing officer and present live testimony by another correctional officer who witnessed the incident. Hearing officer's determination of credibility solely based on accusing officer's written statements violated prisoner's 6th Amendment rights. Jones v. Department of Corrections, 819 A.2d 1 (N.J. Super. A.D. 2003).

     Composition of disciplinary board which found prisoner guilty of participating in a riot did not violate his right to due process even if it violated a prison policy that it should be composed of employees of the private company managing the prison rather than employees of the state department of corrections. Constitutional due process merely requires that the decision maker be impartial. Sampson v. Davis, #02-3037, 58 Fed. Appx. 217 (7th Cir. 2003).

     An investigation into a prisoner's report that he had been raped by his cellmate on multiple occasions provided substantial evidence to support a disciplinary determination that he was guilty of violating prison disciplinary rules against sexual activity and that the activity was consensual. Umber v. Murphy, 757 N.Y.S.2d 379 (A.D. 2003).

     A prisoner could not be found guilty of unauthorized conduct or misuse of state property based on the presence of unauthorized files on computer disk he had handled. Prisoner had been authorized to use the disk to create files on the disk clearly identified as his, and the disk was in a common area where others had access to it. Bartley v. New York State Department of Correctional Services, 757 N.Y.S.2d 380 (A.D. 2003).

Private Prisons

     Private corporation operating correctional facility was not liable for violating a prisoner's liberty interest by placing him in medium security status. Prisoner was not entitled to any particular status and the company's officials had explained the basis for the classification. Additionally, his placement in disciplinary segregation for committing a battery while in prison did not violate his rights when there was nothing "atypical" about the conditions in segregation. The city in which the prison was located could not be held liable for any alleged violation of the prisoner's rights when there was nothing to show that the city had any role in operating the prison. Byrd v. Cornell Corrections, Inc., No. 02-6316, 60 Fed. Appx. 191 (10th Cir. 2003).

Public Protection

     State of New York was not liable for robbery committed by an adjudicated juvenile delinquent who fled a foster home after he was released from a state youth correctional facility. Plaintiff crime victim did not show that the state youth correctional authorities had any duty to the robbery victim or any special relationship with him, so that liability could not be based on alleged negligence in failing to apprehend and return delinquent to custody after he violated the terms of his conditional release. Anton v. State of New York, 757 N.Y.S.2d 338 (A.D. 2003).

Religion

     Jail officials had an objectively reasonable belief that they were not violating a Muslim prisoner's religious freedom rights by denying him a vegetarian diet and were therefore entitled to qualified immunity from liability for doing so. Kind v. Frank, No. 02-1969, 2003 U.S. App. Lexis 10754 (8th Cir.).

Sexual Assault

     Texas correctional agency was not liable for alleged sexual assault on female prisoner at state jail by male guard in men's restroom. Intermediate appeals court rejects argument that facility's physical layout was a proximate cause of the alleged assault, bringing the claim within an exception for harms arising from the condition of state property to the immunity provided under a state tort claims act. Bonham v. Texas Department of Criminal Justice, No. 03-02-00389-CV, 101 S.W.3d 153 (Tex. App. 2003).

Sexual Misconduct

     Federal trial court sets aside jury's award of $1 in nominal damages and $30,000 in punitive damages to female prisoner who sued correctional officer who allegedly engaged in an inappropriate relationship with her, including taking photographs of her and writing her love letters. Plaintiff prisoner failed to exhaust available administrative remedies, as required by the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(a). Her participation in the departmental investigation that led to the officer's resignation was not the same as pursuing available grievances on her own behalf, and the fact that money damages, the only thing she sought after his resignation, were not available under the grievance procedure did not render those procedures "unavailable." Hock v. Thipedeau, 245 F. Supp. 2d 451 (D. Conn. 2003).

Smoking

     Prisoner with high blood pressure was not subjected to cruel and unusual punishment by being housed in the same cell with smokers, particularly since prison officials twice transferred him to other cells upon his request, when it was proven that his cellmates were in fact smokers. Taylor v. Boot, #02-1683, 58 Fed. Appx. 125 (6th Cir. 2003).

Telephone Access

     Department of Corrections telephone access regulations prohibiting three way or conference calls from correctional facility phones were properly adopted to prevent use of phone systems for illegal activities. Statements that a defendant made after being added to a phone call from an inmate to a co-defendant which the Department was monitoring were not "unlawfully" intercepted, when Department did announce to the initial parties to the call that their conversation would be recorded and attempted to prevent additional parties from being added to the call. Commonwealth v. Ennis, 785 N.E.2d 677 (Mass. 2003).