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

Assault and Battery: Handcuffs

     Arrestee, who was "thoroughly uncooperative" and allegedly intoxicated, did not have a "clearly established" Fourth Amendment right not to be tightly handcuffed, since various federal trial and appeals courts disagreed on the issue. Istvanik v. Rogge, #01-3395, 50 Fed. Appx. 533 (3rd Cir. 2002).

     Medical records did not support arrestee's claim that highway patrol officer used excessive force in handcuffing him following arrest for failure to produce driver's license. Arrestee claimed that handcuffs were so tight that his hands turned "blue," but medical records indicated a "pink" color to his hands on the night of the arrest. Andrews v. Elkins, 227 F. Supp. 2d 488 (M.D.N.C. 2002).

     Officer's alleged delay in loosening handcuffs for approximately ten minutes after arrestee complained that they were too tight, even if true, did not violate the arrestee's clearly established rights, so that the officer was entitled to qualified immunity from liability. Kopec v. Tate, 230 F. Supp. 2d 619 (E.D. Pa. 2002).

Assault and Battery: Physical

     Officers' use of force in subduing fleeing drug suspect who struck one of them and continued to resist arrest was objectively reasonable when it resulted only in "minor injuries." Moreland v. Dorsey, 230 F. Supp. 2d 1338 (N.D. Ga. 2002).

     Officers did not use excessive force in carrying a 79-year-old woman to their squad car after she refused to walk following her arrest for disorderly conduct, resisting arrest, and battery on an officer. The officers were not required to retreat in the face of her resistance to a lawful arrest. Grauerholz v. Adcock, 02-3083, 51 Fed. Appx. 298 (10th Cir. 2002).

Defamation

     Virginia prison warden could not pursue, in Virginia federal court, defamation claims against Connecticut newspapers for publishing articles, also posted on their Internet sites, concerning Connecticut state policy of housing some prisoners in Virginia correctional facilities. No personal jurisdiction over defendants solely on the basis of the posting of the articles on the Internet when there was no intention to reach Virginia readers. Young v. New Haven Advocate, No. 01-2340, 315 F.3d 256 (4th Cir. 2002).

Defenses: Indemnity

     City properly denied defense and indemnification of police officer when evidence showed that the officer acted for personal rather than work related reasons in conduct that resulted in the arrest of two female bar patrons after one of them allegedly rejected the officer's advances. In the Matter of Schenectady Police Benevolent Association v. City of Schenectady, 750 N.Y.S.2d 666 (A.D. 2002).

Defenses: Qualified Immunity

     Even if an officer "seized" a tenant in ordering him to vacate his home upon threat of arrest after a landlord told the officer that he wanted the individual removed, the seizure was reasonable under circumstances where the tenant had no written lease and did not pay rent, the house was under construction at the time, and the level of the dispute between the landlord and tenant was serious enough that the tenant had called the police. Even if the officer acted unreasonably, however, he was entitled to qualified immunity. White v. City of Markham, #01-2034, 310 F.3d 989 (7th Cir. 2002).

     Police detective was not entitled to qualified immunity when she searched jail records for the name of a suspect in the theft of checks from a retail store and is alleged to have randomly selected one of two suspects with almost identical names as the person sought and testified to that effect before the grand jury. Kentucky v. Young, #01-6219, 51 Fed. Appx. 543 (6th Cir. 2002).

Defenses: Statute of Limitations

     Three year statute of limitations for both Maryland state and federal malicious prosecution claims by inmate wrongfully incarcerated for rape and murder started to run on the date that the criminal proceedings terminated in his favor, but the claims for false arrest and imprisonment accrued as of the date of the original arrest. Gray v. Maryland, 228 F. Supp. 2d 628 (D. Md. 2002).

Disability Discrimination

     Hearing-impaired criminal complainant could pursue disability discrimination claim under the Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12132 et seq. against city based on allegation that officer acted with deliberate indifference towards her hearing disability in refusing to provide her with a qualified interpreter during a discussion concerning the crime, despite her repeated request to do so. Center v. City of West Carrollton, 227 F. Supp. 2d 863 (S.D. Ohio 2002).

False Arrest/Imprisonment: No Warrant

     Detectives who had motorist arrested on charges of striking one of them with her vehicle as they attempted to question her were not entitled to summary judgment based on a state court's finding of probable cause for the motorist's arrest at a preliminary hearing. The plaintiff, who was later acquitted of the charges, was not barred from pursuing her claim that the detectives lied about the incident based on the finding of probable cause, when the focus of her claim was that they also lied previously to obtain her arrest. Hinchman v. Moore, #00-2457, 312 F.3d 198 (6th Cir. 2002).

     Arrestee's wife was not falsely imprisoned under Kansas state law or for purposes of a federal civil rights claim when officers prevented her, for two hours, from reentering her house without an escort while they waited to obtain a search warrant for the home following a valid arrest of her husband for firing a revolver in an alleged aggravated assault. Price v. Cochran, 205 F. Supp. 2d 1241 (D. Kan. 2002).

     Transit police officer had a reasonable suspicion that a rapid transit passenger had failed to pay his fare, justifying an investigatory detention, when he observed him attempt to pass through a station gate twice with the use of an automated farecard and be denied entrance both times, and then saw him follow closely behind another passenger when he finally made it through the turnstile. Martin v. Mendoza, 230 F. Supp. 2d 665 (D. Md. 2002).

     Officer had probable cause to arrest television set renters for retaining the set after the rental period without making added payments, based on Ohio state statute making criminal depriving a person of their property. Hogan v. Rent-A-Center, Inc., 228 F. Supp. 2d 802 (S.D. Ohio 2002).

False Arrest/Imprisonment: Warrant

     Investigator was not entitled to qualified immunity for submitting affidavit which resulted in plaintiff being arrested as a felon in possession of a firearm when he had information from another state that the plaintiff had been arrested on felony charge, but no information suggesting that he had ever been convicted of the offense. Kearse v. Moffett, No. 01-2390, 311 F.3d 891 (8th Cir. 2002).

     Officers who obtained arrest warrant did not make any knowingly false or reckless statements in the affidavit and the inculpatory statements of a witness to the armed robbery established probable cause in a strong enough manner that their alleged failure to also include the supposedly exculpatory statements of two other witnesses did not undermine a finding that there had been probable cause for the arrest. Meyers v. Wolkiewicz, #02-1005, 50 Fed. Appx. 549 (3rd Cir. 2002).

     The alleged placing of an improper arrest warrant into the state computer system was insufficient to support a federal civil rights claim for an unreasonable arrest when the plaintiff arrestee did not dispute that a second outstanding warrant in the system was valid, and either warrant would have been sufficient to form the basis of his arrest following a traffic stop. Yglesias v. City of Dearborn, #01-1887, 51 Fed. Appx. 155 (6th Cir. 2002).

Firearms Related: Intentional Use

     Jury properly awarded damages to estate of man shot and killed as he held his mother hostage with a knife and threatened to kill her if his ex-girlfriend was not brought to him, D.C. high court rules, but jury's $2.1 million compensatory damages award is reduced to $180,000, and $3.999 million punitive damage award was improper since there was no evidence to support a finding that the officers shot the decedent with an "evil motive" or "actual malice." District of Columbia v. Jackson, No. 99-CV-756, 810 A.2d 388 (D.C. 2002).

First Amendment

     Arrestee, in characterizing an officer as an "asshole" did not say anything sufficient to place the statement outside the protection of the First Amendment as "fighting words." Additionally, even if the officer had probable cause to make an arrest for violation of the city's civil disturbance ordinance, there would be no justification for the arrest if the officer actually was motivated by retaliation for the arrestee's statements prior to the arrest. Greene v. Barber, #01-1247, 310 F.3d 889 (6th Cir. 2002).

     Officer was not entitled to summary judgment on liability for alleged false arrest when there was a material issue of fact as to whether the arrestee was actually taken into custody solely because he criticized the officer's conduct in arresting and allegedly beating another person, and requested his badge and vehicle identification numbers, which would have been protected speech. Baskin v. Smith, #01-1721, 50 Fed. Appx. 731 (6th Cir. 2002).

Freedom of Information

     Police department records generated during an investigation of an officer were exempt from disclosure under the California Public Records Act, Ann. Cal. Gov. Code Sec. 6250 et seq., even if there was no danger of disclosing an informants' identity or revealing investigative techniques, based on the policy concern of ensuring "candid disclosures" during such investigations. Rackauckas v. Superior Court, No. G030680, 128 Cal. Rptr. 2d 234 (Cal. App. 4th Dist. 2002).

     Personal e-mails sent and received by city employees are not "public records" subject to disclosure under Florida's public records law, F.S.A. Sec. 119.021. Times Publishing Company v. City of Clearwater, No. 2D01-3055, 830 So. 2d 844 (Fla. App. 2d Dist. 2002).

Governmental Liability: Policy/Custom

     Indian tribe should be treated as a municipality for purposes of a federal civil rights lawsuit by a newspaper reporter claiming that his federal constitutional rights were violated by his arrest and removal from tribal land by tribal police officers. Tribe could not be held liable under 42 U.S.C. Sec. 1983 in the absence of any claim that a tribal policy or custom caused the alleged injuries. Tribal police officer was entitled to qualified immunity for arresting reporter based on his refusal to leave meeting room after a request by the chairman of the tribal executive committee that he do so. Armstrong v. Mille Lacs County Sheriffs Department, 228 F. Supp. 2d 972 (D. Minn. 2002).

Malicious Prosecution

     Federal appeals court upholds $3.5 million damage award for alleged malicious prosecution of restaurant owner for arson of one of his restaurants. Off-duty police officer who worked for restaurant as security officer and a former restaurant employee who allegedly conspired with him to have the plaintiff arrested, convicted and sentenced are both found liable. Castellano v. Fragozo, #00-50591, 311 F.3d 689 (5th Cir. 2002).

Police Plaintiff: Products Liability

     A genuine issue of fact existed as to whether alleged defects in bicycle purchased by police bicycle patrol unit were the cause of the plaintiff officer's impotence. Yarchak v. Trek Bicycle Corporation, 208 F. Supp. 22d 470 (D.N.J. 2002).

Public Protection: Crime Victims

     Oregon resident assaulted in front of her house could pursue lawsuit against city under state law for negligence based on police detective's alleged action of instructing a neighbor not to warn other residents about a robber thought to be operating in the area. Sande v. City of Portland, 9709-06947, A107724, 59 P.3d 595 (Or. App. 2002).

     Nightclub patron shot in its parking lot could pursue his lawsuit alleging that town's negligent inspection and licensing of club was a cause of his injury when there purportedly had been numerous prior police reports of violence and shootings in the parking lot of the building that housed the club, as well as complaints by neighbors about violence, disturbances, and public drinking there. Adams v. Traina, No. 36,306-CA, 830 So. 2d 526 (La. App. 2d Cir. 2002).

Public Protection: Disturbed Persons

     Family of former police officer and Vietnam vet with post-traumatic stress disorder, who died in the woods near his home after fleeing there in response to activation of SWAT-like team around his residence after officers saw a "red light" coming from a window in the home, presented sufficient evidence to create a jury question as to whether activation of SWAT team and its tactics created a foreseeable danger to the decedent in a manner shocking to the conscience. Estate of Smith v. Marasco, #02-1437, 2003 U.S. App. Lexis 1432 (3rd Cir. 2003).

Public Protection: Informants

     City and officer were not liable for gang slaying of informant who had provided information based on which an arrest for an earlier murder was made. Officer's action in failing to stop imprisoned murder suspect's letter, identifying the informant, from being mailed out may have been negligent but it did not violate the informant's constitutional rights. No evidence was present of an improper city policy or custom leading to the informant's killing. Gatlin v. Green, 227 F. Supp. 2d 1064 (D. Minn. 2002).

Public Protection: 911 Phone Systems

City which provided 911 phone system to respond to emergency calls and dispatched emergency medical technicians to assist one-year-old child choking on a grape was not liable for child's death based on alleged delay in arrival and failure to successfully rescue him. Federal appeals court rules that the city had no constitutional duty to provide competent rescue services. A "shocks the conscience" legal standard applied to the plaintiffs' due process claim, rather than a standard of "deliberate indifference." Brown v. Commonwealth of Pennsylvania Department of Health Emergency Medical Services Training Institute, No. 01-3234, 2003 U.S. App. Lexis 953 (3rd Cir. 2003).

Pursuits - Law Enforcement

     City, officers, and sheriff's department were entitled to immunity from liability on wrongful death claim brought by estate of motorist killed while he was being pursued in a high-speed chase, when there was evidence that the decedent had committed criminal offenses of aggravated assault, speeding, leaving the scene of an accident, reckless driving, driving under the influence of alcohol, and resisting arrest. There was a causal relationship between his criminal acts and his death, and the trial court did not have to make a factual finding as to whether the officers acted in reckless disregard for the safety of others under a state statute, A.M.C. Sec. 11-46-9(1)(c) requiring that an individual bringing a lawsuit against an officer not be involved in a crime at the time of the alleged injury. Tory v. City of Edwards, 2001-Ca-01316-COA, 829 So. 2d 1246 (Miss. App. 2002).

Racial Discrimination

     Issue of fact as to whether doctor experienced racially abusive harassment during his detention and questioning and whether this was motivated by a discriminatory purpose barred summary judgment for defendants on his equal protection claim, despite the fact that he failed to show that others similarly situated did not experience similar conduct. Sundaram v. County of Santa Barbara, #01-55972, 39 Fed. Appx. 533 (9th Cir. 2002).

Search and Seizure: Home/Business

     Officers' actions in entering a home without a warrant with their guns drawn was justified by the emergency aid exception to the Fourth Amendment's warrant requirement, and the officers were therefore entitled to qualified immunity, when they had been told that a woman might be in danger and they reasonably believed that she was inside the house. Martin v. City of Oceanside, 205 F. Supp. 2d 1142 (S.D. Cal. 2002).

Search and Seizure: Vehicle

     Motorist's claim that she did stop at a blinking red light barred summary judgment for officer in her lawsuit claiming that his stop of her vehicle violated her Fourth Amendment rights, since she had a clearly established constitutional right not to be stopped without reasonable suspicion that she had violated a traffic law. Lamarche v. Costain, 225 F. Supp. 2d 83 (D. Me. 2002).

Sex Discrimination

     A female former police officer failed to establish a claim for violation of her equal protection rights when there was no evidence of this other than her "conclusory allegation" that her arrest for disorderly conduct following a fight with her husband, combined with the failure to arrest her husband showed differing treatment due to gender. Additionally, arguable probable cause existed to arrest her and her arrest was carried out under an arrest warrant. Zandhri v. Dortenzio, 228 F. Supp. 2d 167 (D. Conn. 2002).

Access to Courts & ADR

     A police officer's civil rights suit against the city and others was properly dismissed because of his attorney's delays and lack of prosecution of the claims. Gripe v. City of Enid, #01-6430, 312 F.3d 1184, 2002 U.S. App. Lexis 24590 (10th Cir. 2002).

Age Discrimination - Entry

     Federal appeals court disallows a civil rights suit filed by a firefighter applicant who was rejected because he was over age 36; he lacked a property interest in a prospective position as a city firefighter. Moore v. Muncie Police and Fire Cmsn., #01-3175, 312 F.3d 322, 2002 U.S. App. Lexis 24598 (7th Cir. 2002).

Age Discrimination - Termination / Mandatory Retirement

     The Eleventh Amendment does not bar state troopers from seeking injunctive relief against a state government for age discrimination under the ADEA. State Police for Automatic Retirement Assn. v. DiFava, #01-158, 2003 U.S. App. Lexis 653 (1st Cir. 2003).

Arbitration Procedures

     New Jersey Supreme Court holds that when a party fails to attend arbitration and a default award is entered, the absent party still has a right to demand a hearing on the merits if the arbitrator fails to notify him or her of the award. America's Pride Construction v. Farry, A-87, 811 A.2d 906, 2002 N.J. Lexis 1787 (N.J. 2002).

     Arbitrator exceeded his authority in reinstating an employee who was fired for insubordination. The bargaining agreement gave management the right to discharge, and the arbitrator had no discretion to fashion remedy different from the parties' agreed-upon discipline. Poland Spring Corp. v. UFCW, AFL-CIO L-1445, #02-1064, 314 F.3d 29, 171 LRRM (BNA) 2641, 2002 U.S. App. Lexis 26553 (1st Cir. 2002).

Collective Bargaining - Duty to Bargain

     Massachusetts Supreme Court holds that management has no obligation to bargain with the police union over adopting a new policy requiring officers to enforce school attendance laws. City of Worcester v. Labor Relations Cmsn., #SJC-08712, 438 Mass. 177, 779 N.E.2d 630, 2002 Mass. Lexis 857 (2002).

     New York judge annuls a pay raise for sheriff's pilot; management failed to bargain the increase with the union. Putnam Co. PBA and Co. of Putnam Sheriff, #U-23036, 35 NYPER (LRP) P4561, 2002 NYPER (LRP) Lexis 159 (NY PERB-ALJ 2002).

Criminal Liability

     A Nevada criminal law, making it an offense to knowingly make a false allegation of misconduct against a peace officer, is declared unconstitutional by a federal court. Eakins v. State of Nevada, 219 F.Supp.2d 1113, 2002 U.S. Dist. Lexis 16405 (D. Nev. 2002).

     A California Penal Code section that punishes knowingly making a false complaint against a police officer does not violate the First Amendment, and is constitutional even though false complaints against other public officials are not crimes. People v. Stanistreet, #S102722, 29 Cal.4th 497, 58 P.3d 465, 127 Cal.Rptr.2d 633, 2002 Cal. Lexis 8287 (Cal. 2002).

Disability Rights and Benefits - Other Issues

     California appeals court rejects a mental disability retirement for a police officer who suffered allegedly retaliatory discipline and threats from fellow officers after he reported the use of excessive force by his coworkers. A rational fear for his own safety if he returns to work in the same agency is not enough; the claimant must show a likelihood of retaliation if he works in police agencies elsewhere in the state. City of Anaheim v. Nolan, #G028272, 104 Cal.App.4th 1170, 128 Cal.Rptr.2d 714, 2002 Cal. App. Lexis 5235 (4th Dist. Cal. App. 2002).

Disciplinary Interviews & Compelled Reports
     - Criminal Investigations and Immunity

     Sixth Circuit finds that police officers were not entitled to bring a damage suit against the chief of police, even if the I-A interrogation of the officers was partially criminal in nature, and Miranda rights were not observed. Lingler v. Fechko, #01-3554, 312 F.3d 237, 2002 U.S. App. Lexis 25131, 2002 Fed App. 0420P (6th Cir. 2002).

Disciplinary Offenses - Insubordination

     Federal appeals court upholds the termination of two civilian Navy Dept. workers who refused to be inoculated against anthrax.. Mazares v. Dept. of the Navy, #01-3337, 302 F.3d 1382, 2002 U.S. App. Lexis 18684 (Fed. Cir. 2002).

Disciplinary Punishment - In General

     Federal appeals court holds that a disciplinary punishment schedule, published in a manual, is not binding on an agency unless management has intended it to be binding. Farrell v. Dept. of Interior, 02-3108, 314 F.3d 584, 2002 U.S. App. Lexis 26350 (Fed. Cir. 2002).

     Five-judge appeals panel in New York sustains the termination of an NYPD officer for striking an arrestee with handcuffs. The accused officer had refused a pretrial offer of a 20-day vacation forfeiture penalty. Serras v. Kerik, #1650, 750 N.Y.S.2d 23, 2002 N.Y. App. Div. Lexis 10804 (A.D. 1st Dept. 2002).

Disciplinary Punishment - Disparate Treatment

     Federal court dismisses a civil rights suit filed by an ex-police officer who alleged that she was subjected to I-A investigations, criminal charges, and a psychological fitness test because of her gender. She failed to adduce any evidence of bias or bad motives.. Zandhri v. Dortenzio, #3:99CV1776, 228 F.Supp.2d 167, 2002 U.S. Dist. Lexis 21048 (D.Conn. 2002).

FLSA - Overtime - In General

     Officer loses a retaliation suit against the town. Disciplinary action was fairly imposed for unrelated misconduct. Kearney v. Town of Wareham, #02-1264, 2002 U.S. App. Lexis 25133, 8 WH Cases2d (BNA) 513 (1st Cir. 2002).

Free Speech

     Federal court overturns a $100,000 jury verdict for an NYPD officer who was unable to prove the Police Commissioner knew of the alleged retaliation or tolerated a custom of retaliation against officers who are critical of police brutality. Davis v. City of N.Y., #00 Civ. 4309, 228 F.Supp.2d 327, 2002 U.S. Dist. Lexis 17701 (S.D.N.Y. 2002).

Handicap Laws/ Abilities Discrimination - In General

     Plaintiffs are not limited by the $300,000 federal cap on damages available under the ADA if a parallel state law lacks a damage cap. Gagliardo v. Connaught Laboratories, #01-4045, 311 F.3d 565, 2002 U.S. App. Lexis 23953 (3d Cir. 2002).

Handicap Laws / Abilities Discrimination - Specific Disabilities

     Employee with panic disorder and agoraphobia, causing her to fear leaving home and to avoid traveling, is a qualified individual with a disability under the ADA, even though she would not suffer symptoms if she were medicated. Kuechle v. Life's Companion, #C9-02-233, 653 N.W.2d 214, 2002 Minn. App. Lexis 1273.

Homosexual & Transgendered Employee Rights

     New York has become the 13th state to prohibit anti-gay bias. The Sexual Orientation Non-Discrimination Act took effect in Jan. 2003. A-01971 and S-720, amending Executive Law §§291-6, Civ. Rts. Law §40, and Educ. Law §313 (Eff. 1/17/2003).

Occupational Safety & Disease

     California enacts a law imposing a minimum penalty of $5,000 on employers who fail to report a serious injury or illness of an employee to Cal/OSHA within eight hours of its occurrence. An employer, officer, management official, or supervisor who knowingly fails to report a death is guilty of a misdemeanor and faces a fine of up to $15,000 (corporations up to $150,000). Health and Safety Code §102346.

Polygraph Exams

     A divided Louisiana Supreme Court allows polygraph evidence in police disciplinary hearings. U. S. Supreme Court declines review. Evans v. DeRidder Mun. Fire and Police Civ. Serv. Bd., #01-C-2466, 815 So.2d 61, 2002 La. Lexis 962; cert. den., 2003 U.S. Lexis 636 (2003).

Privacy Rights

     California appellate court upholds a police association's suit for injunctive relief against a city for not keeping officer records confidential at disciplinary hearings, under Penal Code §832.7. San Diego Police Officers' Assn. v. City of San Diego Civil Serv. Cmsn., #D038685, 104 Cal.App.4th 275, 128 Cal.Rptr.2d 248, 2002 Cal. App. Lexis 5120 (Cal. App. 4th Dist. 2002).

Reductions in Force

     Arbitrator reinstates all fulltime dispatchers, where the entire unit was furloughed for fiscal reasons, but only two police officers and two firefighters were laid off. Because the officers assigned to replace the dispatchers earned more, there was no financial justification for singling out the dispatchers for furlough. City of Fostoria, Ohio and Ohio PBA Dispatchers Unit, 117 LA (BNA) 1093, AAA Case #53-L-390-001712 (Lalka, 2002).

Retirement Rights and Benefits

     A Norfolk naval base police officer was not a law enforcement officer under 5 U.S. Code §8336(c)(1), and was not entitled to enhanced retirement benefits. Koenig v. Dept. of the Navy, #02-3126, 2003 U.S. App. Lexis 629 (Fed Cir. 2003). Also see Watson v. Dept. of the Navy, 262 F.3d 1292 (Fed. Cir. 2001).

Sex Discrimination - In General

     Woman deputy dog warden, who won $300,000 in a federal sex discrimination suit after she was not promoted to warden, was not entitled to recover additional damages from the county commissioners, in their individual capacities, in a parallel suit brought in state court, under state law. Kirkhart v. Keiper, #2001-P-0069, 2002 Ohio 6472, 2002 Ohio App. Lexis 6255, 2002 Ohio 6472 (Ohio App. 2002).

Sex Discrimination - Equal Pay & Opportunity Claims

     A reorganization is not an adverse employment actions for the purposes of a Title VII unlawful retaliation claim. Gu v. Boston Police, #01-2354, 312 F.3d 6, 2002 U.S. App. Lexis 24316 (1st Cir. 2002).

Sexual Harassment - In General

     Arbitrator determines that while a woman city employee suffered severe mental anguish after a male firefighter displayed a porn pic that resembled her, she failed to seek paid injury leave within the specified time limit, and was not so mentally distraught as to excuse the delay. City of Dayton and IAFF L-136, 117 LA (BNA) 1142, AAA Case #52-390-00021-00 (Imundo, 2002).

     Supreme Court declines to review a decision that a plaintiff's unpaid, volunteer activities -- for a nonprofit organization that provided her workspace and clerical support -- was not an "employee" under Title VII, and her claims of sexual harassment are not actionable. York v. Assn. of Bar of City of N.Y., #02-667, review denied at 2002 U.S. Lexis 9280, 71 U.S.L.W. 3415; ruling below, #01-7908, at 286 F.3d 122, 2002 U.S. App. Lexis 5947, 88 FEP Cases (BNA) 833 (2d Cir. 2002).

Uniforms, Clothing and Equipment

     A transit authority's dress code requiring all employees to wear pants as part of a uniform, is not an unconstitutional infringement when applied to a woman employee who wants to wear a skirt. Zalewska v. County of Sullivan, #02-7099, 2003 U.S. App. Lexis 393 (2nd Cir. 2003).

Access to Courts/Legal Info

     Prisoners' claims that they lost legal materials and documents when prison's policy on use of memory and disk-based word processors and computers changed could be the basis for a lawsuit for interference with the right of access to the courts. Waff v. South Dakota Dept. of Corrections, #01-3501, 51 Fed. Appx. 615 (8th Cir. 2002).

     Prisoner convicted of being an inmate in possession of a weapon and other charges was not denied the right to a public trial because the trial was held at the correctional institution. Facility constructed a courtroom in its visiting area which allowed members of the public to view the proceedings through windows opening onto the courtroom, giving visitors full audio and visual access to the proceedings. State of Oregon v. Cavan, 59 P.2d 553 (Or. App. 2002).

Defamation

     Virginia prison warden could not pursue, in Virginia federal court, defamation claims against Connecticut newspapers for publishing articles, also posted on their Internet sites, concerning Connecticut state policy of housing some prisoners in Virginia correctional facilities. Young v. New Haven Advocate, No. 01-2340, 315 F.3d 256 (4th Cir. 2002).

Defenses: Issue Preclusion

     Tennessee prisoner who unsuccessfully pursued prior federal lawsuit asserting essentially the same claim that his constitutional rights were violated by housing him in conditions exposing him to second-hand tobacco smoke and that he was subject to retaliatory transfer to a facility without a non-smoking section barred his present lawsuit in state court since the issues presented had already been decided. Sweatt v. Tennessee Dept. of Correction, 88 S.W.2d 567 (Tenn. App. 2002).

     Prisoner could not pursue her claim that her retention in "TB hold" segregated housing, due to her refusal to submit to a tuberculosis test and prison's refusal to give her a requested vegetarian diet violated her right to religious freedom under the First Amendment. Both these claims could have been made in a prior civil rights lawsuit involving the same facts and same parties, but she did not raise them. Plaintiff, who had filed five "essentially similar" suits challenging these actions was enjoined from filing further lawsuits without prior court approval. Word v. Croce, 230 F. Supp. 2d 504 (S.D.N.Y. 2002).

Defenses: Judicial Bias

     U.S. magistrate judge's prior participation in settlement discussions in the case did not, by itself, require his recusal under 28 U.S.C. Sec. 455(b)(1) for "personal knowledge of disputed evidentiary facts concerning the proceeding." Magistrate judge does, however, recuse himself because a settlement was previously reached, and the current litigation required, among other things, resolution of a dispute between the parties as to the meaning of the settlement agreement, for which it was not beyond the realm of possibility that the magistrate judge could be called as a witness by either side and he was also concerned about the possible damage to the "appearance of impartiality." The case concerned a pre-operative transsexual prisoner's claim against the federal Bureau of Prisons seeking estrogen therapy. Black v. Kendig, 227 F. Supp. 2d 153 (D.D.C. 2002).

Disability Discrimination: Prisoners

     County jail inmate failed to state a claim for disability discrimination under the Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12131 et seq. when she did not specify which programs, activities, services, or benefits she was allegedly denied on the basis of her disability. Smith v. Franklin County, 227 F. Supp. 2d 667 (E.D. Ky. 2002).

Drugs & Drug Screening

     Disciplinary decision that prisoner violated rules prohibiting the unauthorized use of a controlled substance was supported by "substantial evidence," including two positive urine tests for the presence of opiates and evidence that the tests and the storage and handling of the samples was properly carried out. Herring v. Goord, 750 N.Y.S.2d 373 (A.D. 2002).

Employee Injury/Death

     Indiana state law did not impose any duty on the federal Bureau of Prisons to assist a diabetic employee who was involved in a fatal auto accident while driving home after becoming ill at work. Defendant had no responsibility to give him medical assistance, prevent him from leaving, or provide him with transportation home. No liability for employee's death under the Federal Tort Claims Act, 28 U.S.C. Sec. 2680(a). Stockberger v. United States, 225 F. Supp. 2d 949 (S.D. Ind. 2002).

Escape

     Youth adjudicated a juvenile delinquent did escape from a "detention facility" within the meaning of a New York criminal statute, McKinney's Penal Law Sec. 205.10, subd. 1, when he jumped out of the window of a cabin at a camp operated by the N.Y. State Division for Youth. People v. Juarbe, 749 N.Y.S.2d 665 (Sup. 2002).

Frivolous Lawsuits

     Trial court did not abuse its discretion by dismissing as frivolous a prisoner's claim that he was subjected to cruel and unusual punishment by being woken during the night and having lights in his cell which were "too bright." No alleged facts were objectively harmful enough to constitute a violation of the Eighth Amendment. Woodruff v. Paulson, #02-8027, 51 Fed. Appx. 822 (10th Cir. 2002).

Inmate Funds

     "Booking fee" charged to inmate returning to county jail for new sentencing hearing violated his right to equal protection of the law and substantive due process when the same fee was not charged to inmates returning to the county jail from state prisons in order to testify in court proceedings. Joseph v. Henderson, #2D01-5256, 2003 Fla. App. Lexis 207 (2003).

Mail

     A jail employee's alleged accidental opening of pretrial detainee's legal mail outside of his presence was insufficient to constitute a violation of his First Amendment rights. Appeals court also finds no violation of First Amendment rights in actions preventing detainee from sealing his outgoing personal mail because of jail policy of inspecting such mail for security risks. Beese v. Liebe, #02-1401, 51 Fed. Appx. 979 (7th Cir. 2002)

Medical Care

     Prisoner's claim that he is currently being denied medical care for acid reflux and painful cysts on his vocal cords could pursue his lawsuit without prepaying a filing fee, despite having three previous lawsuits which were dismissed for failure to state a claim, under an "imminent danger" exception. State prison non-medical personnel, however, were not subject to liability for deliberate indifference to his serious medical needs when they relied on the medical judgment of prison medical personnel in denying the prisoner's medical grievances. Bond v. Aguinaldo, 228 F. Supp. 2d 918 (N.D. Ill. 2002).

     Former director of Michigan Department of Corrections was not entitled to qualified immunity from liability for death of diabetic prisoner allegedly resulting from policy mandating only "minimal standards" of health care for prisoners with chronic illnesses and/or requiring prisoner to purchase his own insulin. Young Ex Rel. Estate of Young v. Martin, #02-1036, 51 Fed. Appx. 509 (6th Cir. 2002).

     Oklahoma jail reaches $385,000 settlement with prisoner who gave birth, in custody, to a premature child who died within hours. Lawsuit claimed that prisoner made repeated requests for medical attention which were ignored by the defendants A federal jury's verdict in favor of the defendants was overturned by the trial judge prior to the settlement. Smith v. Oklahoma County, No. 00-CV-512 (W.D. Okla. Dec. 11, 2002), reported in The National Law Journal, p. B2 (Jan. 27,2003).

     Prison doctor who allegedly told prisoner that nothing was wrong with his wrist was not liable for deliberate indifference to serious medical need for treatment for fracture when the inmate did receive "prompt and substantial" care in the two months following the accident in which the injury occurred, including two wrist splints, x-rays, a bandage to wrap his wrist, and a wrist brace, as well as nonprescription pain medication. Additionally, prisoner was eventually taken to an orthopedic specialist for further care. Prisoner did, however, assert a possible federal civil rights claim against prison nurse who, allegedly against doctor's orders, confiscated his wrist brace and did not replace or repair it. Andrews v. Hanks, #01-1454, 50 Fed. Appx. 766 (7th Cir. 2002).

Parole

     Parole Board's statement to prisoner that he could apply for parole again after a period of eighteen months did not create a new parole eligibility date at the end of that period, but merely served to notify him that the board would not consider him for parole during that period of time. Edmond v. Hancock, # 2001-CP-01165-COA, 830 So.2d 658 (Miss. App. 2002).

     Prisoner's parole release date was properly rescinded when there was evidence sufficient to show that he engaged in "significant misbehavior" in violation of prison rules prohibiting prisoners from making harassing or intimidating phone calls. Bishop v. Smith, 751 N.Y.S.2d 82 (A.D. 2002).

Prison Conditions: General

     Five-hour barefoot detention in a cell without a toilet was not a sufficiently serious deprivation to constitute cruel and unusual punishment or violation of due process rights of pre-trial detainee. Ledbetter v. City of Topeka, #02-3202, 2003 U.S. App. Lexis 2134 (10th Cir.).

Prison Litigation Reform Act: Exhaustion of Remedies

     County sheriff and other jail personnel, in allegedly interfering with a detainee's ability to exhaust administrative remedies on his grievances, as required by the Prison Litigation Reform Act before proceeding with a federal civil rights lawsuit, might be subject to liability for interfering with the detainee's constitutional right of access to the courts on several claims which were non-frivolous. Complete absence of legal materials at jail prevented detainee of learning of exhaustion requirement or attempting to comply with it, and plaintiff was told his complaints were not subject to grievance procedure. Davis v. Milwaukee County, 225 F. Supp. 2d 967 (E.D. Wis. 2002).

     Nebraska Supreme Court, in prisoner's lawsuit claiming that his rights were violated by being celled with another inmate who smoked tobacco, rules that Prison Litigation Reform Act's requirement, in 42 U.S.C. Sec. 1997e(a), that inmates exhaust available administrative remedies before pursuing federal civil rights lawsuits is an affirmative defense, rather than a necessary element of the plaintiff's claim. In reaching this ruling, the court overturned its own prior ruling in Pratt v. Clarke, 258 Neb. 402, 604 N.W.2d 822 (1999). Cole v. Isherwood, No. 8-00-665, 653 N.W.2d 821 (Neb. 2002).

     Federal trial court was required under 42 U.S.C. Sec. 1997e(a) to dismiss, without prejudice, prisoner's federal civil rights lawsuit over prison conditions when he had failed to exhaust available administrative remedies prior to filing suit but was in the process of doing so when the motion to dismiss was filed. McKinney v. Carey, #01-17436, 311 F.3d 1198 (9th Cir. 2002).

Prisoner Assault: By Officers

     Prison officials were not liable for prisoner's injuries from being struck in the head by a tear gas canister fired during an inmate disturbance, when there was no showing that the canister was fired maliciously or sadistically. Torres-Viera v. Laboy-Alvarado, #01-2712, 311 F.3d 105 (1st Cir. 2002).

Prisoner Death/Injury

County was not liable for prisoner's death on the basis of alleged negligence in forcing the decedent to sleep near an inmate who was infected with tuberculosis, which was alleged to have caused his fatal pulmonary problems. County was entitled to immunity under Texas Torts Claim Act, V.T.C.A. Civil Practice & Remedies Code Sec. 101.001 et seq. Dismissal of claims against the county, however, did not bar deceased prisoner's wife from proceeding with her claim against a jail employee individually. Sykes v. Harris County, #01-00-01162-CV, 89 S.W.3d 661 (Tex. App. -- Houston [1st Dist] 2002).

Prisoner Discipline

     Evidence supported disciplinary hearing's conclusion that inmate was guilty of violating prison rules prohibiting trafficking in tobacco. Disciplinary board's statement that it believed the staff conduct report and investigation report to be true and accurate adequately informed the prisoner of the basis of its decision. Godby v. Hanks, #01-4307, 51 Fed. Appx. 592 (7th Cir. 2002).

     Prisoner could not pursue his federal civil rights lawsuit challenging his disciplinary conviction for destroying state property when he had not previously succeeded in setting the disciplinary conviction aside. Prisoner was precluded from doing so under the U.S. Supreme Court's decision in Heck v. Humphrey, 512 U.S. 477 (1994), requiring that a disciplinary conviction be set aside before a prisoner may pursue a claim under 42 U.S.C. Sec. 1983. Gates v. Vannatta, #01-3597, 51 Fed. App. 597 (7th Cir. 2002).

Prisoner Suicide

     Lawsuit for wrongful death based on prisoner's suicide which named health care provider as a defendant did not have to comply with medical malpractice lawsuit requirement of submission of an expert affidavit of merit. Correctional officers who allegedly failed to follow jail policies for monitoring and inspecting the prisoner's cell were not protected by qualified immunity from wrongful death action, as their duty of inspecting the cells on a schedule was "clear and certain," rather than requiring the exercise of personal judgment. Clark v. Prison Health Services, Inc., #A02A1014, 372 S.E.2d 342 (Ga. App. 2002).

Procedural: Discovery

     In lawsuit alleging that officer at juvenile correctional facility sexually assaulted a male minor prisoner, there was good cause to postpone the deposition of the minor plaintiff for a short time until after his release from custody in order to protect the minor from the possibility of further psychological harm. Williams v. Greenlee, 210 F.R.D. 577 (N.D. Tex. 2002).

Public Protection

     Alabama Supreme Court overrules prior caselaw providing that all state officials have no duty to protect unforeseeable members of the public from harm resulting from escaped prisoners. New rule, except for parole officials, is that the trial court must consider, on a case-by-case basis whether there was a duty to protect third parties and whether the defendant officials were entitled to qualified immunity defense. Ryan v. Hayes, #1001578, 831 So. 2d 21 (Ala. 2002).

Religion

     Federal trial court rules that Religious Land Use and Institutionalized Persons Act of 2000 is unconstitutional as an "establishment of religion" in case where "Hebrew Israelite" religious believer asked for kosher food diet. Madison v. Riter, 2003 U.S. Dist. Lexis 1094 (W.D. Va.).

     Prison's denial, to high security Native American prisoner, of access to a "sweat lodge" did not violate his right to freely practice his religion, as denial was justified by legitimate security concerns. Gonzalez v. Litscher, 230 F. Supp. 2d 950 (W.D. Wis. 2002).

     Native American prisoner's claims that his First Amendment religious rights and his due process rights were violated when his religious property, including fur and feathers, were destroyed by the "unauthorized act" of a prison employee were properly dismissed as frivolous. Due process claim regarding his property was barred because there was an adequate post-deprivation remedy for the loss of the property under Indiana state law. His religious freedom claim was barred because he did not allege that the confiscation of the property restricted his exercise of his religious beliefs or that the prison employee acted because of the religious nature of the items or to discriminate against his Native American religion. O'Banion v. Anderson, #01-4201, 50 Fed. Appx. 775 (7th Cir. 2002).

Strip Searches

     Sheriff's policy of conducting strip searches of all detainees arriving at county jail was "clearly" unconstitutional, and trial court indicates its opinion that reasonable suspicion of possession of contraband or weapons was required to conduct such searches on those suspected of felonies, as well as misdemeanors, but sheriff was entitled to qualified immunity from liability for such a search on detainee arrested for a felony, since it was not clearly established, in 1999, that this was a violation of the detainee's rights. Murcia v. County of Orange, 226 F. Supp. 2d 489 (S.D.N.Y. 2002).

Youthful Prisoners

     Officer was entitled to qualified immunity for conducting warrantless strip searches of five minors at juvenile home suspected of possession of drugs. Reynolds v. City of Anchorage, 225 F. Supp. 2d 754 (W.D. Ken. 2002).