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

Administrative Liability: Supervision

     Arrestee's civil rights complaint, in restating the legal standard for supervisory liability and then alleging that the supervisor failed to train and supervise officers, was insufficient to state a claim for supervisory liability for officers' alleged false arrest and malicious prosecution of plaintiff, when there were no facts alleged to show that the defendant police superintendent had notice of the officers' purported misconduct or to connect his conduct to their actions. Also, as a matter of federal law, the fact that the year that the plaintiff's claim accrued was a leap year, with 366 rather than 365 days did not entitle him to an extra day to file his complaint to comply with a one-year statute of limitations, when the incident occurred past the month of February. Rodriguez Esteras v. Solivan Diaz, 266 F. Supp. 2d 270 (D. Puerto Rico 2003).

Administrative Liability: Training

     Inadequate training of police officer in the handling of hostage situations was not the cause of the death of liquor store manager who was taken hostage by a disturbed person. Ross v. Town of Austin, Ind., No. 02-3830, 2003 U.S. App. Lexis 19151 (7th Cir.).

Attorneys' Fees: For Plaintiff

     Trial court did not abuse its discretion in enhancing an award of attorneys' fees by a 1.5 multiplier when the prevailing plaintiff's federal civil rights lawsuit was "particularly undesirable" for an attorney, as shown by the plaintiff's difficulty in obtaining legal representation and the consequent need for the trial court to appoint a lawyer. Oberfelder v. Bertoll, #01-17302, 67 Fed. Appx. 408 (9th Cir. 2003).

     Two arrestees who obtained $8,000 settlement from officer and city after prevailing at trial on their excessive force claims are awarded a total of $25,071.64 in attorneys' fees and expenses, rather than the $77,935.74 they requested. Trial court reduces the number of compensable hours for each of the plaintiffs' attorneys by 50% due to their failure to provide "sufficiently detailed contemporaneous time records, and court also reduces appropriate hourly rates for chief counsel from $350 to $225, for a junior associate attorney from $200 to $120, and for law students from $90 to $60. Martinez v. Hodgson, 265 F. Supp. 2d 135 (D. Mass. 2003).

Defamation

     City and county were not liable for defamation based upon mistaken depiction of plaintiff's photograph from his pistol permit application as being a suspected murderer with the same name. The defendants had a constitutional privilege against liability for defamation under New York state law in the absence of any evidence that they acted in a "grossly irresponsible manner." The plaintiff also could not recover against the defendants under a theory of negligence in supplying the photograph to a television network. Colon v. City of Rochester, 762 N.Y.S.2d 749 (A.D. 4th Dept. 2003).

Defenses: Collateral Estoppel

     Decision of state court in criminal proceeding declining to find that arrestee's Fourth Amendment rights were violated by officers arresting and searching him in undercover drug operation barred him for relitigating the issue again in a federal civil rights lawsuit against undercover and arresting officers, so that lawsuit was barred by the defense of collateral estoppel. The arrestee had an adequate opportunity to call witnesses on the issue and to cross-examine prosecution witnesses at his criminal trial, where it was determined that his arrest was lawful. Mitchell v. Hartnett, 262 F. Supp. 2d 153 (S.D.N.Y. 2003).

     Decision of federal court dismissing an arrestee's civil rights claim did not have a collateral estoppel effect barring her claim for false arrest in state court, when the federal court did not decide the issue of whether the arrest, made pursuant to a warrant, was supported by probable cause. A remaining genuine issue of whether the warrant was obtained by officers acting in "reckless disregard for the truth" by refusing to consider exculpatory evidence made available by the arrestee's spouse made summary judgment on the lawsuit improper. Martinetti v. Town of New Hartford Police, 763 N.Y.S.2d 189 (A.D. 4th Dept. 2003).

Defenses: Qualified Immunity

     Police officer was entitled to qualified immunity against arrestee's claim that taking him into custody for a misdemeanor purportedly committed outside of the officer's presence was a violation of his Fourth Amendment rights. As a matter of federal constitutional law, the U.S. Supreme Court has left the issue open in Atwater v. Lago Vista, 532 U.S. 318 (2001), the trial court found, and the U.S. Court of Appeals for the Fourth Circuit in Street v. Surdyka, 492 F.2d 368 (4th Cir. 1974) expressly ruled that warrantless arrests for misdemeanors committed outside of their presence, even if a violation of Maryland state law, do not violate the Fourth Amendment so long as the arrest is supported by probable cause. Shultz v. Smith, 264 F. Supp. 2d 278 (D. Md. 2003).

     Deputy was entitled to qualified immunity for arresting a man for violating the terms of an injunction prohibiting him from having any contact with or threatening another individual when he was told, in responding to a 911 call placed from a restaurant, that the arrestee had been there and raised his fist toward the protected man, and then confirming the validity of the injunction. The disputed facts as to whether the deputy "did not like" the arrestee or whether the arrestee had been served with the injunction did not alter the result. Riebsame v. Prince, 267 F. Supp. 2d 1225 (M.D. Fla. 2003).

Defenses: Statute of Limitations

     Vehicle owner's claim for alleged unreasonable seizure of her vehicle accrued, for purposes of a three year statute of limitations on the date that she realized that her vehicle had been seized, rather than a later date when she obtained clear title to the vehicle. Lawsuit was therefore time-barred. Jonker v. Kelley, 268 F. Supp. 2d 81 (D. Mass. 2003).

     New Jersey's two-year statute of limitations on the filing of a federal civil rights lawsuit began to run on the day that a police officer took his neighbor's son into custody and to the police station for throwing rocks and dirt into the officer's swimming pool, even if the plaintiffs did not then know their "legal rights," since they did know that the incident took place. Simone v. Narducci, 262 F. Supp. 2d 381 (D.N.J. 2003).

Disability Discrimination

     Officers did not violate the Fourth Amendment rights of a woman with Down Syndrome or subject her to disability discrimination by making a warrantless entry into her apartment in response to her 911 call, seizing her, and involuntarily taking her to be hospitalized in a psychiatric unit. Anthony v. City of New York, #01-7987(L), 339 F.3d 129 (2nd Cir. 2003).

Domestic Violence

     Officers had probable cause to arrest husband for harassing his wife, even though both husband and wife told the officers that a scratch on the wife was caused "unintentionally." Evidence that he had taken something from his wife's hands in a manner that caused injury was enough for the officers to make an inference that he had an intent to harass or scare her, and officers, knowing that the husband had been making threats, did not believe the wife's statements. Shortz v. City of Montgomery, 267 F. Supp. 2d 1124 (M.D. Ala. 2003).

     Deputy's observation of woman's injuries and receipt of her sworn statement accusing her boyfriend of assault were sufficient to provide probable cause for an arrest of her boyfriend, despite any factual dispute about the woman's credibility. Probable cause for the arrest precluded claims for both false arrest and malicious prosecution. Thomas v. County of Putnam, 262 F. Supp. 2d 241 (S.D.N.Y. 2003).

False Arrest/Imprisonment: No Warrant

     Warrantless arrest of resident during execution of valid search warrant for her home did not violate her rights, based on evidence found, which officers believed, at the time, was crack cocaine. Officers earlier violated federal criminal statute by pretending to be census workers, but such conduct cannot be the basis for a federal civil rights claim. Frison v. Zebro, No. 02-2226, 339 F.3d 994 (8th Cir. 2003).

     Officer had probable cause to arrest suspect following discovery of what he believed to be crack cocaine during a lawful investigatory detention. Officer was not liable for alleged deliberate indifference to serious medical needs of arrestee who subsequently died from a drug overdose caused by ingesting cocaine, since the officer did not see the arrestee swallow it, the arrestee denied swallowing drugs, and the officer did summon paramedics when the arrestee became ill. Weaver v. Shadoan, No. 01-5656, 340 F.3d 398 (6th Cir. 2003).

     Assuming, without deciding, that an officer's issuance of citations for "enticement" to a motorist was a Fourth Amendment seizure, it was reasonable, based on statements by two young boys that a man resembling the motorist had asked them if they wanted a ride home and by one of the boys giving the license plate number of the motorist's truck, along with the motorist's admission to having spoken to the boys. Appeals court also rejects plaintiff's claim that he was subject to racial discrimination as black person by the issuance of the citation. "Generic evidence that 44% of the people arrested in his county are black," although they constitute only 11% of the population, standing alone, "does not indicate a discriminatory effect in arrests generally, and it certainly does not indicate a discriminatory effect with respect to the specific ordinance at issue in this case." Jefferson v. City of Omaha Police Department, No. 02-3085, 335 F.3d 804 (8th Cir. 2003).

     Dentist was not unlawfully "seized" by officers who refused to leave his office until he made himself available for service of process in a civil lawsuit concerning his tenancy, since the mere acquisition of jurisdiction by a court over a person in this manner is not a Fourth Amendment "seizure." The argument that the method of service did not comply with Missouri state law would not alter the result. Williams v. Lu, No. 02-3475, 335 Fed. 3d 807 (8th Cir. 2003).

False Arrest/Imprisonment: Warrant

     Arrest of motorist during a traffic stop under a warrant quashed by the court, but still in the sheriff's computer system, could not be the basis under Arizona law for a claim for false arrest. Deputy had a privilege to make an arrest under an "invalid warrant fair on its face." Torrez v. Knowlton, #2 CA-CV 2002-0087, 73 P.3d 1285 (Ariz. App. Div. 2 2003).

Firearms Related: Intentional Use

     Officers acted in an objectively reasonable manner in shooting at persons who they believed, even if mistakenly, were going to use deadly force against them. Carr v. Tatangelo, No. 01-14621, 338 F.3d 1259 (11th Cir. 2003).

     Firing at a car with the intent to stop a suspect, when the officer did not succeed in doing so, was not a "seizure" for purposes of a Fourth Amendment claim for excessive use of force. The officer did not physically impair the suspect's ability to leave the scene, since he missed hitting him, so no constitutional violation was shown. Adams v. City of Auburn Hills, No. 02-1379, 336 F.3d 515 (6th Cir. 2003).

     Officers did not use excessive force by using non-lethal bean-bag gun and pepper spray to subdue a suspect who had assaulted two neighbors and his wife, threatened the occupants of a next door apartment with knives, and then barricaded himself in his apartment, threatening to "kill" officers if they attempted to enter, and continued to resist them after they did so. Disputed facts about whether the arrestee was then nude or still holding his knife at the time did not change the outcome. Peoples v. Kimmey, No. 02-1109, 67 Fed. Appx. 506 (10th Cir. 2003).

First Amendment

     Arrestee's chanting of words in protest of police requirement that persons seeking to attend a protest rally submit to a pat down search, including "two, four, six, eight, fuck the police state," was constitutionally protected speech under the First Amendment for which he could not face arrest for disorderly conduct in the absence of any evidence that his words presented a "clear and present danger" of a violent reaction by the crowd. Arresting officer, however, was entitled to qualified immunity from liability, since he believed that the arrestee was trying to incite the crowd, which had become disorderly the previous day.  Spier v. Elaesser, 267 F. Supp. 2d 806 (S.D. Ohio 2003).

Freedom of Information

     State police department records concerning alleged sexual misconduct of state trooper with female minor who filed federal civil rights lawsuit were of "great public importance" as they involved alleged "misdeeds by public officials," so that newspaper was entitled to release of records, but information identifying the alleged victims, confidential informants, and officers cleared of wrongdoing would be removed first, since the release of such information might have a "chilling effect" on future investigations of sexual misconduct. Haber v. Evans, 268 F. Supp. 2d 507 (E.D. Pa. 2003).

Governmental Liability: Policy/Custom

     Man arrested by mistake during investigation of theft of water from a city fire hydrant failed to show that his arrest was caused by any city policy or custom. Federal appeals court overturns jury award of $1 in nominal damages and in excess of $90,000 in attorneys' fees and costs. Zuniga v. City of Midwest City, No. 02-6076, 68 Fed. Appx. 160 (10th Cir. 2003).

Insurance

     Nebraska county's purchase of liability insurance with limits in excess of $1 million liability cap in state Tort Claims Act did not waive the county's protection under that cap. Nebraska Supreme Court upholds trial court decision limiting total recovery of motorist injured in auto accident with police patrol car to $1 million. Motorist was entitled, in addition to $1 million damage award, to $5,822.67 in expenses incurred in proving that his medical expenses were fair and reasonable. Salazar v. Scotts Bluff County, No. S-02-656, 665 N.W.2d 659 (Neb. 2003).

     City's purchase of liability insurance did not constitute a waiver of governmental immunity under Georgia state law for claims against the city by an arrestee seeking damages for the actions of an officer on the basis of purported false arrest and imprisonment, and malicious prosecution, and the city's own alleged negligent hiring and retention of the officer. Reese v. City of Atlanta, No. A03A0896, 583 S.E.2d 584 (Ga. App. 2003).

Interrogation

     Officers could not have reasonably believed that suspect voluntarily consented to being detained, transported to the police station, and interrogated for over five hours, after being approached at his home by officers with guns drawn. Hatheway v. Thies, 335 F.3d 1199 (10th Cir. 2003).

Negligence: Vehicle Related

     Sheriff's department was 55% at fault in case where a pedestrian was hit by a drunk driver while helping to direct traffic around an accident scene. The injured pedestrian sued both the drunk driver and the sheriff, claiming sheriff's deputies negligently failed to stop at the first accident scene. Award against sheriff was limited to proceeds of $1 million insurance policy, from which attorneys' fees for defense were deductible, but the cost of an appellate bond was not. Edwards v. Daugherty, No. 02-354, 848 So. 2d 787 (La. App. 3d Cir. 2003).

Police Plaintiff: Defamation

     Ohio police officer could not obtain damages for defamation based on civil rights organization's actions in distributing a letter which accused the police department of "killing, raping, planting false evidence," and himself of using a "marine-style chokehold" to kill an unarmed suspect. Statements in the letter were opinions protected under the free speech provisions of the Ohio state constitution. An average reader, the court holds, "would be unlikely to infer that the statements were meant to be factual," since the entire letter "was a call to action and meant to cause outrage in the reader," and the particular statements were "clearly hyperbole, the opinion of the writer, and were offered to persuade the reader that an immediate crisis was occurring in the city." The court also noted that the letter did include reference to the outcome of a trial in which the officer was found not guilty on an assault charge and a mistrial was declared on an involuntary manslaughter charge. Jorg v. Cincinnati Black United Front, No. C-030032, 792 N.E.2d 781 (Ohio App. 1st Dist. 2003).

Procedural: Discovery

     Sheriff was entitled to a judicial order quashing a portion of a discovery order compelling the production of the home addresses and photographs of ten active law enforcement officers in a civil lawsuit alleging false imprisonment, malicious prosecution and battery. Such information was exempt from disclosure under state public records statute, and the plaintiff failed to show exceptional necessity or unusual circumstances justifying the production of the documents. Henderson v. Perez, 833 So. 2d 390 (Fla. App. 2d Dist. 2003).

Public Protection: Crime Victims

     FBI agent and United States government were not liable for the death of a man allegedly killed on the orders of reputed organized crime leaders who were allegedly government informants. Alleged conspiracy by FBI agents did not cause victim's death and was not aimed at causing his death, but rather to preserve the organized crime leaders in question as informants. Estate of Halloran v. United States, 268 F. Supp. 2d 91 (D. Mass. 2003).

Public Protection: Motoring Public and Pedestrians

     Officers who picked up an intoxicated man at night on a road and gave him a ride to a convenience store, leaving him there, were not liable for his subsequent death by being struck by a vehicle as he lay in the middle of the road. Officers did not create the danger posed by him walking in an intoxicated condition, nor did they put him in a more dangerous position than he was before they picked him up.   Cartwright v. City of Marine City, No. 02-1728, 336 F.3d 487 (6th Cir. 2003).

Search and Seizure: Persons

     Officers were not entitled to qualified immunity on the claim that they violated the rights of spectators at a basketball tournament by conducting a "wholesale, invasive search" of a large number of people present without individualized suspicion that they possessed weapons, since the need for individualized suspicion before a search for weapons was clearly established. Williams v. Brown, 269 F. Supp. 2d 987 (N.D. Ill. 2003).

Search and Seizure: Vehicle

     Deputy was entitled to qualified immunity for stop, search, and brief detention of motorist based on a witnesses report that she had seen persons carrying "guns or squirt guns" getting into a van similar to the one he was driving. Haynie v. County of Los Angeles, No. 01-55731, 339 F.3d 1071 (9th Cir. 2003).

     Officer did not detain a stopped motorist for an unreasonable length of time. His decision, while writing a citation for a lane violation, to seek assistance from his supervisor and wait for the supervisor to arrive, made after the driver demanded the names and badge numbers of the officers involved in the stop, was reasonably related to the circumstances that caused the stop in the first place. Wilson v. Trumbull County, Ohio, No. 02-3134, 69 Fed. Appx. 282 (6th Cir. 2003).

     Placing parking tickets on illegally parked cars was sufficient to provide due process notice to vehicle owner of the claimed parking violations and of the fact that accumulating three unpaid and unappealed such tickets could result in the placing of an immobilizing "wheel boot" on the auto. Plaintiff showed, however, that the city failed to provide a "meaningful opportunity" to be heard before or after the placement of such a "boot" on his car, since the tickets did not explain how to contest the validity of the placement or explain how and when the "boot" could be removed. Individual defendants, however, including the city's mayor, a police officer, and a parking monitor, were entitled to qualified immunity from liability because the law in the area of "wheel booting" was not clearly established. Gross v. Carter, 265 F. Supp. 2d 995 (W.D. Ark. 2003).

Alcohol Abuse, Testing & Rehabilitation

     Off-duty police officers who were detained and subjected to urine tests for intoxication after a street fight cannot shield the test results from the prosecutor. Fagan v. Superior Ct. (People), #A102525, 2003 Cal. App. Lexis 1288 (1st App. Dist. 2003).

Arbitration Procedures

     Arbitrator holds that management did not waive its right to object to an untimely request for arbitration, when it participated in the FMCS arbitrator selection process. Bur. of Prisons, Beaumont TX and AFGE L-1010, 118 LA (BNA) 1086 (Moreland, 2003).

Certification Rights, Standards and Procedures

     A new California law clarifies that the state lacks the authority to administratively revoke a POST peace officer certificate. Prior law prohibited any person who has been convicted of a felony from holding office as a peace officer or being employed as a peace officer. The new law provides that a plea of guilty to a felony, pursuant to a deferred entry of judgment program, would not alone disqualify a person from being a peace officer unless a judgment of guilty was entered. S.B. 221.

Criminal Liability

     Ninth Circuit affirms an order that a public official, who pled guilty to accepting a bribe under 18 U.S. Code §666, must pay restitution to the city in the amount of bribe money received. U.S. v. Gaytan, #02-50377, 2003 U.S. App. Lexis 18403 (9th Cir. 2003).

Disciplinary Offenses

     Arbitrator upholds the disciplinary suspension of an Air Force employee who repeatedly made verbally abusive comments in the workplace - including a suicide threat. Tinker AFB Oklahoma and AFGE L-916, 118 LA (BNA) 963 (Crow, 2003).

Disciplinary Punishment - In General

     Supreme Court declines to review a ruling that upheld the termination of a police officer who had violated the deadly force policy when, unable to see clearly either his target or his surroundings, he fired one or more shots at a vehicle that was moving away from him and was no longer a threat to either him or bystanders. Joseph v. Salt Lake City Civil Serv. Cmsn., 53 P.3d 11; cert. den. 71 U.S.L.W. 3666 (2003).

     Arbitrator finds that the demotion of a sergeant for allowing another officer to take a test for him was excessive punishment. Management is ordered to restore the grievant's rank, subject to a 30-day disciplinary suspension. Reno Police Dept. and Police Supervisory and Employees Assn., 118 LA (BNA) 926 (D'Spain, 2003).

Disciplinary Punishment - Disparate Treatment

     Arbitrator sustains the termination of an officer, who had a prior disciplinary offense, of neglect of duty and false reporting. He was sitting in a remote area outside his patrol zone on the graveyard shift, did not see his sergeant arrive for 20 minutes, and then falsely claimed he was only there a short period while on a meal break. The union's attempt to show disparate punishment failed. The other three cases involved a resignation; a last chance agreement for a 19 year veteran; and first-time discipline against the third officer. Management had no duty to conduct an I-A investigation where a sergeant saw the misconduct and there were no witnesses who had not been interviewed. City of Cooper City and Broward Co. PBA, 118 LA (BNA) 842 (Hoffman, 2003).

E-Mail/Internet - Legal Issues

     Management had just cause to discipline a county employee who used the computer system to send sexually-related messages, where "common sense" should have dictated that matters of a sexual nature are inappropriate in workplace. Co. of Sacramento and United Public Employees L-1, 118 LA (BNA) 699 (Riker, 2003).

Employee Harassment - Nonsexual

     Jury awards $1.9 million to gay cook in a state prison who claimed he was verbally harassed by coworkers because of his sexual orientation. Hope v. St. of Calif. Youth Auth., #BC258985, 41 (2021) G.E.R.R. (BNA) 826 (Los Ang. Co. Super. Ct. 2003).

Health Insurance & Benefits

     Arbitrator holds that a sheriff's dept. violated the bargaining contract when it unilaterally changed the health insurance plan, based on the recommendations of a cost containment board. Lucas County Sheriff's Office and Ohio PBA, 118 LA (BNA) 929 (Coyne, 2003).

Homosexual & Transgendered Employee Rights

     California discrimination laws now include transgendered persons. A.B. 196, amending the Calif. Fair Employment and Housing Act.

     The 9th U.S. Circuit Court of Appeals reinstates a lawsuit by a former Air Force physician who was required to reimburse his medical school expenses after revealing he is homosexual. Hensala v. Dept. of the Air Force, #01-16791, 2003 U.S. App. Lexis 18938 (9th Cir. 2003).

Impasse Arbitration

     California amends a law providing for binding arbitration of wages and benefits for peace officers and firefighters, although it permits the arbitrator's award to be ignored if it is rejected by a unanimous vote of the county Board of Supervisors or the city Council. The override provision was placed in the law to respond to a recent California Supreme Court ruling declaring the binding arbitration law unconstitutional because it deprived County Boards and City Councils of their authority to set wages and benefits for their employees. S.B. 440

Inefficiency, Performance Standards, Negligence and Incompetence

     Arbitrator finds that management violated the bargaining agreement when it discharged an employee without giving her coaching or a reasonable opportunity to improve. Int. Rev. Serv. and NTEU, 118 LA (BNA) 967 (Abrams, 2003).

Injuries to Employees

     The New Jersey "fireman's rule" does not bar injury claims against the defendants for their negligence in starting or failing to prevent a fire. Roma v. U.S., #02-3820, 2003 U.S. App. Lexis 19177 (3d Cir. 2003).

     A federal jury in Los Angeles has awarded $2 million in damages to a retired police officer who was shot in the back by an off-duty deputy sheriff who was trying to disarm the officer's intoxicated son at a wedding reception. Morales v. Co. of Ventura, #2:01cv04121 (C.D.Cal. 2003).

Past Practices, Precedents & Zipper Clauses

     Management did not violate the bargaining agreement when teachers were assigned as cafeteria monitors, even though management had not made these assignments in past. Newbury Local Sch. Dist. and Newbury Educ. Assn., 118 LA (BNA) 982 (Skulina, 2003).

Picketing

     Picketing off-duty firefighter, who engaged in a verbal confrontation with the county's chief executive, was not protected by the First Amendment; 30-day suspension upheld. Travers v. Jones, #02-14043, 323 F.3d 1294 (11th Cir. 2003).

Privacy Rights

     California appellate court concludes that a dentist did not violate medical confidentiality when he reported to I-A that a police officer had tried to get a prescription for an opiate without medical justification. There is a public policy encouraging citizens to report possible misconduct of police officers. Shaddox v. Bertani, #A097480, 110 Cal.App.4th 1406, 2 Cal.Rptr.3d 808 (2003). Note: If the disclosure is for the purpose of aiding a criminal prosecution, the result would be different. The Ninth Circuit has ruled that a psychiatrist could not testify against a patient who made dangerous or threatening confessions during therapy. U.S. v. Chase, #01-30200, 2003 U.S. App. Lexis 17420 (9th Cir. 2003).

Psychological Exams and Standards
- Fitness for Continued Duty or a Return to Active Duty

     EEOC appellate decision finds that a postal worker was retaliated against by management after she reported sexual harassment. Backpay awarded for a suspension for refusing to take an "unnecessary" fitness-for-duty examination plus $50,000 in damages for mental anguish. A postal worker filed several equal employment opportunity complaints, alleging that various incidents constituted unlawful employment discrimination, and were in reprisal for complaining about sexual harassment. Amen v. Potter, U.S. Postal Service, Appeal #07A10069, 2003 EEOPUB Lexis 53 (EEOC 2003).

Race Discrimination - In General

     Ninth Circuit affirms liability and punitive damages in a discriminatory termination case. The only black officer was fired after he complained of profiling. Bell v. Clackamas Co., #01-35508, 2003 U.S. App. Lexis 17041 (9th Cir. 2003).

Race - Reverse Discrimination

     Eleventh Circuit reaffirms that absent a valid affirmative action plan, race may not be used as a factor to hire, transfer, or promote candidates. White firefighters were not promoted to captain because the chief waited for the eligibility list to expire. Williams v. City of Jacksonville, #02-14191, 2003 U.S. App. Lexis 16678 (11th Cir. 2003).

Sex Discrimination - In General

     Tenth Circuit holds that the 11th Amendment does not bar a suit by a state employee raising a gender discrimination retaliation claim. Crumpacker v. State of Kansas, #02-3197, 338 F.3d 1163, 2003 U.S. App. Lexis 16314 (10th Cir. 2003).

Sexual Harassment - In General

     A sexual harassment claim against the Chicago Police fails. The ex-officer failed to report a coworkers gender-biased slurs until after she flunked the academy. Durkin v. City of Chicago, No. 02-2358, 2003 U.S. App. Lexis 17541 (7th Cir. 2003).

Sexual Harassment - Retaliation

     Teasing of a woman officer was neither severe nor pervasive, but whether she was fired for legitimate reasons, or as a pretext to mask retaliation for complaining, was a question of fact. Cruz v. Pennridge Regional Police Dept., #02-4372, 2003 U.S. Dist. Lexis 12962 (E.D. Pa. 2003).

Sexual Harassment - Verdicts, Settlements & Indemnity

     Public employer pays $435,000 to employees who inadvertently saw porn pics on computers owned by the city. Management failed to respond to their complaints. Adamson v. Minneapolis Public Library, #03-CV-2521 (D. Minn. 2003).

Training Rights, Requirements and Cost Reimbursement

     Missouri appellate court enforces a standard form reimbursement agreement. It was not an unlawful assignment of future wages or an unconscionable adhesion contract. Smith v. Kriska, #ED82062, 2003 Mo. App. Lexis 1335 (2003).

Transfers - Disciplinary or Punitive

     Arbitrator finds that management transferred two officers for disciplinary reasons in violation of the bargaining agreement. City of El Paso and El Paso POA, 118 LA (BNA) 855 (Allen, 2003).

Uniforms, Clothing and Equipment

     Federal court holds that a county violated an employee's rights by firing her for repeatedly wearing a cross pendant. Daniels v. City of Arlington, #00-11191, 246 F.3d 500 (5th Cir.) not followed. Draper v. Logan County Library, #1:02CV-13 (W.D.Ky. 2003).

Visual Acuity Standards

     Monocular vision (blindness in one eye) is not a disability under the ADA unless a plaintiff can also show that the loss of vision affects his ability to engage in daily activities. Congleton v. Weil-McLain, #01-CV-2237, 2003 U.S. Dist. Lexis 15573 (E.D. Pa. 2003); prior decis. at 2002 U.S. Dist. Lexis 12266.

Whistleblower Requirements and Protection

     Los Alamos Lab reinstates law enforcement whistleblower and offers $930,000 plus back pay. Walp v. Univ. of Calif., (prelitigation settlement). Also see, Hearing Testimony, "Procurement and Property Mismanagement and Theft at Los Alamos National Laboratory" (2003).

     University of California settles a second whistleblower lawsuit arising over financial irregularities revealed at its Lawrence Livermore facility near Berkeley. The plaintiff, a lab worker who turned informant, received $33,000 in lost wages, $264,000 for medical and sickness expenses, and $264,000 in general damages -- plus attorney's fees and costs of $428,000. Doggett v. Regents of the Univ. of Cal., #829369 (Super. Ct. Alameda Co. Cal.).

     Federal appeals court holds that a police report, revealing misconduct of a fellow officer, is protected "speech" and addressed a matter of public concern. Their terminations violated the First Amendment. Taylor v. Chief of Police Keith, No. 01-6460, 338 F.3d 639, 20 IER Cases (BNA) 3532003 U.S. App. Lexis 15602, 2003 FED App. 0270P (6th Cir. 2003).

     Terminated Utah public employee was entitled to collect compensatory and punitive damages for whistleblowing. Youren v. Tintic Sch. Dist., #01-4131, 2003 U.S. App. Lexis 18768 (10th Cir. 2003).

Access to Courts/Legal Info

     Pennsylvania and Massachusetts correctional authorities had a "shared responsibility" to make sure that a prisoner convicted of murder in Pennsylvania and then transferred to a Massachusetts prison had access to the courts, but prisoner did not show that he was entitled to an injunction requiring that he be given access to Pennsylvania legal materials when correctional officials arranged for legal representation for him in Pennsylvania post-conviction proceedings. Correctional officials can satisfy a prisoner's right of access to the courts either by providing access to law libraries or access to legal assistance. "A prison need not provide both; either one can be sufficient." Hannon v. Allen, 241 F. Supp. 2d 71 (D. Mass. 2003).

AIDS Related

     Mother of prisoner suffering from hepatitis C and AIDS who died within a day of being transferred from jail medical facility to hospital failed to show that doctors at hospital acted with deliberate indifference to his serious medical needs. Default judgments entered against two correctional employees based on claim that prisoner received no follow-up or special treatment for months after being diagnosed with hepatitis C and as being HIV positive. Rivera v. Alvarado, 240 F. Supp. 2d 136 (D. Puerto Rico, 2003).

Computers, E-Mail, Internet Issues

     Federal court strikes down as unconstitutional Arizona statute prohibiting prisoners from communicating with Internet websites through the mails or otherwise or receiving mail from them. Court finds that prohibition is not reasonably related to a legitimate penological purpose and that other statutes and policies already prohibit communication involving fraud, harassment of victims, communication with minors, and other purported purposes of the ban on communication with Internet service providers. Canadian Coalition Against the Death Penalty v. Ryan, 269 F. Supp. 2d 1199 (D. Ariz. 2003).

Defamation

     Prisoner's libel and slander claims against federal prison employee for calling him a liar and a "vexatious litigant with a morally deviant character" could not be pursued under the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 2671 et seq., since that statute specifically exempts defamation claims. Beckwith v. Hart, 263 F. Supp. 2d 1018 (D. Md. 2003).

Diet

     Inmate's placement on a diet of "nutri-loaf" as a punishment was not cruel and unusual, despite his repeated regurgitation of the food, and his ultimate vomiting of blood. Prison nurse only knew of two instances in four days in which inmate vomited and provided proper medical advice. No hearing was required prior to imposition of a temporary "nutri-loaf" diet, since it was not an "atypical and significant hardship" in relation to the "ordinary incidents of prison life." Gates v. Huibregtse, No. 02-2887, 69 Fed. Appx. 326 (7th Cir. 2003).

Disability Discrimination: Inmates

     Illinois court rules that sovereign immunity barred a paraplegic inmate's claim seeking damages against prison warden for alleged disability discrimination under Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12132. State did not consent to be sued by prisoners based on ADA violations, and Congress had not abrogated the state's immunity under the statute. Evans v. Page, No. 5-02-0126, 792 N.E.2d 805 (Ill. App. 5th Dist. 2003).

DNA Tests

     Federal appeals court panel rules that statute requiring federal parolees submit a DNA sample to be included in a database violates the Fourth Amendment as a "suspicionless search" for law enforcement purposes. United States of America v. Kincade, No. 02-50380, 2003 U.S. App. Lexis 20123 (9th Cir.).

Drugs and Drug Screening

     Evidence of positive drug test, positive retest, and positive independent retest which prisoner requested were sufficiently reliable to support his disciplinary conviction for drug use. Direct testimony by director of laboratory which did testing was not necessary when documentation was presented at hearing concerning the reliability of the testing procedure and the chain of custody of the sample tested. Claypool v. Nebraska DCS, No. A-02-812, 667 N.W.2d 267 (Neb. App. 2003).

Federal Tort Claims Act

     U.S. government's alleged negligent failure to supervise experiments in which prisoner's testicles were exposed to high levels of radiation could not be the basis of liability under the Federal Tort Claims Act, since such failure fell within a "discretionary function" exception to the Act. Bibeau v. Pacific Northwest Research Foundation, Inc., No. 01-36147, 339 F.3d 942 (9th Cir. 2003).

First Amendment

     Refusal of West Virginia prison officials to allow prisoner to receive or possess certain books found to be obscene did not violate his First Amendment or due process rights. Policy applied advanced legitimate penological interests in security and rehabilitation. Cline v. Fox, 266 F. Supp. 2d 489 (N.D.W. Va. 2003).

Governmental Liability: Policy/Custom

     Lawsuit by New York prisoners against over fifty correctional employees concerning more than forty separate and unrelated incidents at fourteen different prisons over a period of almost ten years was properly dismissed, federal appeals court rules. Complaint failed to establish the existence of a policy or practice existing throughout the state correctional system or even within one prison which caused a violation of Eighth Amendment rights. Claims included alleged assaults by correctional officers, failure to protect inmates from assaults by other prisoners, and failure to provide medical care for injuries. Additionally, none of the plaintiffs stated that they had exhausted available administrative remedies prior to filing suit. Webb v. Goord, #02-0097(L), 340 F.3d 105 (2nd Cir. 2003).

Inmate Funds

     Federal appeals court orders further proceedings to determine whether state Department of Prisons, in taking from a prisoner the interest earned on his inmate trust account for the use of a fund for the "benefit of all offenders" owed him any just compensation. Prisoner would be entitled to compensation if the interest earned on his funds exceeded his share of the costs of administering inmate trust accounts. McIntyre v. Bayer, No. 01-55169, 339 F.3d 1097 (9th Cir. 2003).

Inmate Property

     Indiana prisoner had a state constitutional right to pursue a small claims action seeking compensation for prison employees' alleged damage to his color television set, but had no right to an order that he be transported to the court hearing. Normal trial rules testing the legal sufficiency of the complaint did not apply to small claims proceeding. Niksich v. Cotton, No.48A02-0210-CV-851, 793 N.E.2d 1189 (Ind. App. 2003).

     Indiana prisoner's claim that state officials took away his watch were not sufficient to state a federal civil rights claim when there were adequate remedies under state law for the loss of personal property. Craft v. Mann, 265 F. Supp. 2d 970 (N.D. Ind. 2003).

Marriage/Procreation

     Ohio prisoner had a clearly established right to marry his girlfriend, but it was not clearly established that he had the right to affirmative assistance from correctional officials in obtaining a marriage license. Correctional officials were therefore entitled to qualified immunity from liability for money damages for initially failing to provide such assistance. Couple, who married following settlement of their federal civil rights lawsuit, were not "prevailing parties" entitled to an award of attorneys' fees when they did not obtain a judgment on the merits of their claim or a court-ordered consent decree. Toms v. Taft, No. 01-4035, 338 F.3d 519 (6th Cir. 2003).

     Parole rule which absolutely prohibited parolee traveling internationally to the Philippines to marry a woman with whom he had been corresponding did not violate his constitutionally protected right to marry or to travel, and was justified by the state's desire to avoid losing all right to supervise the parolee once he was outside the country. The rule did not absolutely prohibit him from marrying, but merely affected the timing or place of his marriage plans. Williams v. Wisconsin, No. 02-4233, 336 F.3d 576 (7th Cir. 2003).

Medical Care

     Inmate's assertion that doctor was aware of his back and throat pain caused by acid reflux but failed to adequately treat it was sufficient to state a claim for deliberate indifference to a serious medical need. Bond v. Aguinaldo, 265 F. Supp. 2d 926 (N.D. Ill. 2003).

     Prison doctor did not act with deliberate indifference to serious medical needs of a prisoner suffering from tuberculosis and anxiety symptoms. Doctor examined the prisoner four times in a two-month period, required laboratory tests to be performed, and prescribed medication, and determined that he did not observe symptoms serious enough to require transferring the prisoner to a medical facility. Butler v. Madison County Jail, 109 S.W.3d 360 (Tenn. App. 2003).

Parole

     African-American prisoner's claim that parole board chairman improperly made threats against him in violation of his First Amendment rights and constituting racial discrimination seven years before his parole was revoked was untimely and barred by the statute of limitations. Norwood v. Michigan Department of Corrections, No. 02-1779, 67 Fed. Appx. 286 (6th Cir. 2003).

Prison Conditions: General

     Allegation that Indiana prison cells in special detention unit were "very small" and that prisoners were denied out of cell recreation, along with allegations that the cells were "filthy," totally lacked sanitation, and had inadequate ventilation and air circulation systems, along with inadequate fire safety and smoke detection systems stated a possible claim for violation of the Eighth Amendment prohibition on cruel and unusual punishment. Boyd v. Anderson, 265 F. Supp. 2d 952 (N.D. Ind. 2003).

Prisoner Assault: By Inmates

     New York state commissioner of correctional department, in merely sending prisoner a response letter advising him to address his safety concerns with local officials and his counselor, was not sufficiently involved in alleged failure to protect prisoner against assault by other inmates to be held liable. Plaintiff prisoner also did not exhaust available administrative remedies before filing lawsuit claiming that correctional officer identified him to other prisoners as a "snitch" and then failed to protect him against assault. Burgess v. Morse, 259 F. Supp. 2d 240 (W.D.N.Y. 2003).

Prisoner Assault: By Officer

     Prisoner could not pursue a federal civil rights lawsuit alleging that correctional officers assaulted him without provocation and used excessive force against him when success in his claim for damages would imply the invalidity of his disciplinary conviction for assault and battery and "insolence" arising from the same incident. The prisoner's claims were barred by the principles established in Heck v. Humphrey, 512 U.S. 477 (1994), since his disciplinary conviction had not been set aside. Denham v. Shroad, No. 02-1821, 56 Fed. Appx. 692 (6th Cir. 2003).

Prisoner Death/Injury

     A reasonable jury could only conclude that the plaintiff prisoner's throat or lung cancers were caused by his cigarette smoking, when the offered opinion of his expert witness that they were caused by exposure to thoriated tungsten welding rods during his prison work assignment as a welder was not reliable or relevant. Expert's testimony was excluded and summary judgment granted for defendant prison officials. Burleson v. Glass, 268 F. Supp. 2d 699 (W.D. Tex. 2003).

Prisoner Discipline

     Prisoner could pursue federal civil rights lawsuit challenging procedures used in prison disciplinary proceeding or the resulting administrative sanction, such as placement in segregation without first having disciplinary determination set aside, since a successful claim would not necessarily result in any earlier release from incarceration, federal appeals court rules. Ramirez v. Galaza, #00-15994, 334 F.3d 850 (9th Cir. 2003).

     Alaska Supreme Court rules that imposition of discipline on prisoner based on a hearing conducted by a single hearing officer did not violate state constitutional right to due process, even if administrative code then required a hearing by three hearing officers, in the absence of any showing of bias. Brandon v. State of Alaska Dept. of Corrections, No. S-10056, 73 P.3d 1230 (Alaska 2003).

     Disciplinary finding that prisoner who was observed trying to stab another inmate with a pen was guilty of possessing contraband that could be classified as a weapon was not supported by substantial evidence. Court rules that an "unaltered pen" was not contraband, but that prisoner was properly found guilty of violating rules against assaulting other prisoners. Lamage v. Selsky, 760 N.Y.S.2d 561 (A.D. 3d Dept. 2003).

Prisoner Suicide

     Correctional officer could be found to have acted with deliberate indifference to an inmate's suicide threat if he actually, as alleged, responded to the threat by encouraging him to go ahead, leaving the area for a time, and refusing to return when other inmates tried to inform him of the inmate's hanging himself. Olson v. Bloomberg, No. 02-1874, 339 F.3d 730 (8th Cir. 2003).

     Jail's failure to provide a second nighttime jailer, even if it violated the provisions of an earlier consent decree concerning jail conditions did not establish a violation of the rights of a pretrial detainee who committed suicide during night hours when only one jailer was on duty. Sole jailer did not act with deliberate indifference to the needs of the detainee, who had allegedly expressly threatened suicide, by waiting for approximately one hour and 46 minutes between conducting checks of the prisoner's cells. Cagle v. Sutherland, No. 02-13131, 334 F.3d 980 (11th Cir. 2003).

     Prisoner's failure to object, in the trial court, to a magistrate's report and recommendations resulting in the dismissal of his claims that correctional officials were deliberately indifferent to his suicide attempts by allowing him to possess and swallow razor blades, barred his arguing any of his claims on appeal. Bacon v. McGarry, No. 02-4194, 71 Fed. Appx. 19 (10th Cir. 2003).

Prisoner Transfer

     Montana prisoner did not have any state-created liberty interest in being housed in a particular correctional facility and was therefore not entitled to an order preventing his being transferred to a different prison. Wright v. Mahoney, No. 02-575, 71 P.3d 1195 (Mont. 2003).

     Missouri prisoner failed to adequately plead facts showing that he was denied transfer to a Canadian prison in retaliation for his filing of civil lawsuits against state and prison officials. Charron v. Holden, No. WD 61747, 111 S.W.3d 553 (Mo. App. W.D. 2003).

Public Protection

     State youth correctional officials could not be held liable for seventeen-year-old juvenile offender's shooting and killing of taxi driver after he was released from custody. State of Alaska had no duty to use due care in deciding whether or not to extend the juvenile's commitment and there was no showing that the offender presented a "particularized" threat to the person he killed. State of Alaska v. Sandsness, No. S-9910, 72 P.3d 299 (Alaska 2003).

Search: Guards/Employees

     While reasonable suspicion, not probable cause, was the legal standard required to search a prison employee's car while parked in a correctional institution's parking lot, an eleven month old anonymous tip that he was keeping a 9 mm gun in his car did not provide reasonable suspicion for the search when there was no independent corroboration of any information received and no indication of how the tipster obtained his information. Wiley v. Department of Justice, No. 02-3044, 328 F.3d 1346 (Fed. Cir. 2003).

Sexual Assault

     Female prisoner stated a claim for violation of her Eighth Amendment rights by male correctional officer who allegedly made sexual advances towards her and by supervisors who allegedly took no remedial action despite prior complaints of similar conduct by the same and other officers towards other female prisoners. Williams v. Prudden, No. 02-1754, 67 Fed. Appx. 976 (8th Cir. 2003).

Sexual Harassment

     Male correctional officer was properly awarded $750,000 in compensatory damages for alleged sexual harassment by a female co-worker and the alleged failure to his superiors to adequately remedy the problem, along with $850,000 in attorneys' fees and costs. New Jersey Supreme Court upholds, however, reversal of $3 million punitive damages award, based on inadequate jury instructions concerning willful indifference by upper management which failed to explain the term "upper management." Further proceedings ordered on issue of punitive damages. Lockley v. State of New Jersey Department of Corrections, 828 A.2d 869 (N.J. 2003).

Visitation

     Denial of family visits to prisoner did not violated any constitutionally protected liberty interest, and his inability to "visit with whom he wishes is an 'ordinary incident of prison life,'" and "part of the penalty that criminals pay for their offenses against society." Macedon v. California Department of Corrections, 67 Fed Appx. 407 (9th Cir. 2003).

Work/Education Programs

     Prisoner in Tennessee had no constitutional right to a particular job assignment or to prison employment in general, and therefore could not pursue claim for violation of due process based on prison's failure to restore him to his former job after his disciplinary conviction was reversed. Carter v. Tucker, No. 03-5021, 69 Fed. Appx. 678 (6th Cir. 2003).