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of articles online at www.aele.org/law from the August 2004

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 August 2004

Administrative Liability: Supervision

     Supervisors of police officers who allegedly attacked political demonstrators at Presidential Inaugural Parade could not be held personally liable on alleged failure to properly train and supervise their subordinates, in the absence of any knowledge of past transgressions making such misconduct likely. International Action Center v. United States, No. 03-5163, 365 F.3d 20 (D.C. Cir. 2004).

     Police officials were not entitled to qualified immunity on supervisory liability claims based on their allowing a sergeant to supervise a "high impact" unit which was involved in the shooting death of a suspect. This was based on the sergeant's past disciplinary record, which allegedly showed that he could not control his emotions and was not "truthful and honest." There was a factual issue as to whether the officers allegedly involved in misconduct in the suspect's death acted on the sergeant's orders and whether the failure of higher-up supervisors to take stronger measures to discipline the sergeant had an "affirmative link" to the alleged violation of the decedent's rights. Court also holds, as to the officers, that there was a genuine factual issue as to whether the decedent had been carrying a gun and whether the officers planted a rifle next to his body after he was shot. Officers were therefore not entitled to qualified immunity on excessive force claim or judgment as a matter of law on defamation claim arising from publication in newspaper of photo showing gun next to body. Gonzalez Perez v. Gomez Aguila, 312 F. Supp. 2d 161 (D. Puerto Rico 2004).

Attorneys' Fees: For Plaintiff

     Federal appeals court overturns $288,000 attorneys' fee award against police officer who settled a false arrest claim for $10,000 rather than undergo a new trial on damages following a jury award of $1 in nominal damages. Because the result achieved was a private settlement, rather than a court judgment, the plaintiff was not a prevailing party entitled to any attorneys' fee award at all. Petersen v. Gibson, No. 02-4271, 2004 U.S. App. Lexis 11735 (7th Cir. 2004).

     Motorist shot by police officer after car chase, who was awarded $250,000 on his excessive force claim, was also entitled to an award of $95,836.65 for legal fees and $11,758.40 for costs, for a total of $107,595.05. Court rules that time attorney spent investigating the pursuit route and the scene of the shooting was compensable as part of attorneys' fee award, that the cost of hotel expenses for an out-of-state lawyer were not recoverable without an explanation for why it was necessary to hire an out-of-state lawyer. Reduction in requested fees was required based on plaintiff only prevailing against one of four defendants and on only two of fourteen claims originally asserted. Parker v. Town of Swansea, 310 F. Supp. 2d 376 (D. Mass. 2004).

Defenses: Qualified Immunity

     Officers were entitled to qualified immunity for arresting a motorist for refusal to obey orders to exit his vehicle to sign a speeding citation and for arresting his brother, a passenger, for interference with the officers in repeatedly advising the driver not to obey them. Use of pepper spray was also justified when vehicle occupants, in response to officer reaching his hand inside the vehicle, began to roll the window up on his arm. Lawyer v. City of Council Bluffs, No. 03-1032, 361 F.3d 1099 (8th Cir. 2004).

Defenses: Sovereign Immunity

     Delaware Supreme Court rules that state statutes waived sovereign immunity only to the extent that any loss was covered by insurance. Trial court therefore properly granted summary judgment in favor of police officer and state in lawsuit seeking to collect more than the amount of insurance available for injuries sustained by vehicle occupants in an accident involving a state police vehicle. Pauley v. Reinoehl, No. 679, 2002, 848 A.2d 561 (Del. 2004).

     Deputy sheriff, who was acting within the scope of his duties in driving evidence to a forensic lab at the time that his vehicle had an accident with another motorist's car, causing injuries, was entitled to sovereign immunity from liability for negligence under Alabama state law. Ex Parte Haralson, No. 1020783, 871 So. 2d 802 (Ala. 2003).

Defenses: Statute of Limitations

     Publication of newspaper article about murder of government informant did not provide his estate notice of a possible claim that the murder was caused by three FBI agents divulging the informant's identity to members of organized crime, so that the statute of limitations did not begin to run on the estate's federal civil rights claim. Trial court denies motion to dismiss lawsuit on the basis of statute of limitations, which did not begin to run until the plaintiffs knew or should have known, of both the death and the alleged factual cause of the death. Castucci v. United States, 311 F. Supp. 2d 184 (D. Mass. 2004).

Dogs

     Police supervisors were not entitled to summary judgment on the basis of qualified immunity on arrestee's claim that his rights were violated when he was injured by a police dog while fleeing from an allegedly stolen car. Supervisors could be held liable if they were deliberately indifferent to the risk of harm to suspects from improper dog attacks based on knowledge of past incidents, and their failure to correct the problem through effective training or discipline. Rosenberg v. Vangelo, #02-2176, 93 Fed. Appx. 373 (3rd Cir. 2004).

Domestic Violence

EDITOR'S CASE ALERT:

     Montana Supreme Court reinstates $358,000 award against county sheriff for allegedly failing to protect woman against fatal shooting by her husband. Sheriff had a duty to protect the wife on the basis of a special relationship created by a Montana state statute requiring him to provide a notice of rights and information on community resources to domestic violence victims, and he allegedly failed to provide such notices or information during a three year period of responding to domestic violence calls at the couple's residence. Massee v. Thompson, #03-567, 90 P.3d 394 (Mont. 2004).

False Arrest/Imprisonment: No Warrant

EDITOR'S CASE ALERT:

     Ex-mayor's verbal threat to ex-dogcatcher to "get you," yelled out a car window as he drove by, did not provide probable cause to arrest him for assault because there was no threatening gesture and no threat of imminent harm. Officer who consulted with prosecutor before making an arrest was entitled to qualified immunity, but prosecutor was not, since no reasonable prosecutor could have believed there were grounds for an arrest. Kijonka v. Seitzinger, #03-3158, 363 F. 3d 645 (7th Cir. 2004).

     Officer had probable cause to arrest a motorist on charges of driving with a suspended driver's license based on information in the city's computer indicating that the license had been suspended for failure to pay a fine. There was nothing to indicate to the officer that the computer information might be false. Evans v. City of New York, 308 F. Supp. 2d 316 (S.D.N.Y. 2004).

     The mere fact that a Virginia implied consent statute gave police officers the right to ask that drivers submit to blood or breath tests when suspected of driving under the influence of alcohol did not give a driver a right to demand a blood test or breathalyzer. Motorist could still properly be arrested, in the absence of such tests, on the basis of the arresting officer's observations of the driver's speech, alertness, coordination, and ability to follow instructions. Edwards v. Oberndorf, 309 F. Supp. 2d 780 (E.D. Va. 2003).

     There was probable cause for arrest of a minor for "criminal mischief" based on officer's observation out of his window of minor kicking and ramming into a car, causing its alarm to sound, after the same alarm had sounded three or four times during the previous half-hour. Campbell v. Moore, #01-3474, 92 Fed. Appx. 29 (3rd Cir. 2004).

False Arrest/Imprisonment: Warrant

     Two officers who arrested the plaintiff acting in good faith pursuant to what appeared to be a facially valid arrest warrant could not be held liable for false arrest on the basis of alleged omissions of material information from the affidavit for the warrant, when they did not participate in preparing it. Cea v. Ulster County, 309 F. Supp. 2d 321 (N.D.N.Y. 2004).

     Police officer properly arrested a man under an outstanding facially valid bench warrant bearing his name, and had no reason to know that the man's brother had falsely given his name when previously arrested for shoplifting. Carter v. Baltimore County, Maryland, 95 Fed. Appx. 471 (4th Cir. 2004).

Firearms Related: Intentional Use

     Officers did not use excessive force in first using pepper spray and then shooting a motorist who pulled a knife on them after initially refusing to submit to a stop on suspicion of intoxicated driving. Gaddis v. Redford Township, #02-1483, 364 F.3d 763 (6th Cir. 2004).

     Officer acted in an objectively reasonable manner by shooting suspect during execution of search warrant on residence. Officer had been told that resident was suspected of homicide, had a violent history, and had previously shot a police officer, and that he was known to carry guns. The officer, on entering the home, saw the suspect lift his right arm and believed that an object he was carrying was a gun. The fact that the object subsequently turned out to be a Bic cigarette lighter did not alter the result. Trusdale v. Bell, No. 02-6398, 85 Fed. Appx. 691 (10th Cir. 2003).

First Amendment

     There were genuine issues of fact as to whether minister was arrested on three occasions solely for the words he spoke, and whether those words were constitutionally protected free speech or unprotected "fighting words" which provoked hostile crowd reactions threatening to cause riots. The arrestee is a evangelist who believes that his mission is to bring the gospel to college students and on these occasions, he went to various events or locations, preaching and, in one instance, carrying a sign stating that "Fornicators and drunkards will join Tupac in hell," referring to deceased "rap" musician Tupac Shakur, and allegedly, on one occasion, called female students "Catholic whores." City, however, was not shown to have failed to adequately train officers on First Amendment rights, as it taught officers to protect individual rights to free speech limited only by threats to the safety of the public. Victory Outreach Center v. Melso, 313 F. Supp. 2d 481 (E.D. Pa. 2004).

Freedom of Information

     Newspaper reporter who sought disclosure, under Freedom of Information Act (FOIA), 5 U.S.C. Sec. 552, of documents concerning investigation of FBI agents for allegedly making false statements in affidavits for arrest warrants was not entitled to documents that would not be able to be discovered in litigation, including documents covered by work product privilege, executive privilege, or attorney-client privilege. FBI could exclude from documents to be disclosed the names of employees involved in the investigation or in the subsequent decision-making, based on a law enforcement exemption under the statute. Wood v. FBI, 312 F. Supp. 2d 328 (D. Conn. 2004).

Insurance

     Insurer had an obligation, under law enforcement liability policy, to defend and indemnify village in class action lawsuit claiming that it had violated the Racketeer Influenced & Corrupt Organizations Act (RICO), 18 U.S.C. Sec. 1961 et seq. by allowing its constables to issue traffic tickets without authority to do so, despite dispute over whether village constables had law enforcement duties. Brewer v. Village of Old Field, 311 F. Supp. 2d 382 (E.D.N.Y. 2004).

Malicious Prosecution

     Police officer had probable cause to initiate criminal charges against the plaintiff based on statements he obtained from an off-duty officer who had been involved in a fight with the plaintiff, and an interview with a neighbor who had witnessed the incident, defeating any claim for malicious prosecution. A genuine issue, however, as to whether the off-duty officer acted in his capacity as an officer or purely as a private person during the fight precluded summary judgment on federal civil rights claims arising from the fight itself. Ousley v. Town of Lincoln Through Its Finance Dir., 313 F. Supp. 2d 78 (D.R.I. 2004).

Off-Duty/Color of Law: Firearms Related

     City was not liable for alleged wrongful shooting and killing of woman by off-duty police officer, despite alleged awareness of officer's "violent behavior" towards the victim on prior occasions and his alleged substance abuse. In addition to the officer not being on duty at the time of the incident, the police department was not notified of the situation occurring at the victim's residence, and was therefore not aware of any need to intervene. Burkhart v. Knepper, 310 F. Supp. 2d 734 (W.D. Pa. 2004).

Off-Duty/Color of Law: Moonlighting

     Union adequately alleged that off-duty police officers serving as security guards outside facility where its members were picketing in support of strike acted under color of law. City was also providing on-duty police officers at the site, and union claimed that city, employer, private security firm, and on- and off-duty officers conspired to intimidate union members and unlawfully arrest and harass them. Memphis American Postal, AFL-CIO v. Memphis, #02-5694, 361 F.3d 898 (6th Cir. 2004).

Off-Duty/Color of Law: Supervisory Liability

     Police chief had no duty, as a supervisor, to control the off-duty actions of a police sergeant which would make him liable for injuries that a police detective suffered in an off-duty fight with the sergeant. While the chief had the ability to impose disciplinary action for off-duty conduct, this did not impose any "affirmative obligation" on him to enforce the code of conduct in order to protect the detective. Murdock v. Croughwell, No. 16987, 848 A.2d 363 (Conn. 2004).

Police Plaintiffs: Firefighters' Rule

     Wisconsin Supreme Court declines to extend "firefighters' rule," barring landowners' liability for injuries firefighters suffer in coming onto their property to fight fires to injuries suffered by police officers in the course of performing their duties. Wisconsin police officer, therefore, was not barred from pursuing injuries claims against the owners of a loose dog which bit her. Cole v. Hubanks, No. 02-1416, 681 N.W.2d 147 (Wis. 2004).

Public Protection: Disturbed/Suicidal Persons

     Deputies serving judicial warrant for involuntary mental health confinement of disturbed man who had threatened to kill his sister did not act unreasonably in entering his apartment without knocking and announcing their purpose. Genuine issues of disputed fact as to the level of the disturbed man's "provocation" and resistance to the officers precluded summary judgment on his excessive force claims. Linbrugger v. Abercia, No. 02-221300, 363 F.3d 537 (5th Cir. 2004).

Public Protection: Ill Persons

     Police and EMTs who responded to a report of a man having a seizure were not entitled to summary judgment in lawsuit claiming that they created a further danger to him and used excessive force to restrain him, causing his death. Rivas v. City of Passaic, #02-3875, 365 F.3d 181 (3rd Cir. 2004).

Public Protection: Rescue Situations

     Even if police officers acted willfully and wantonly in failing to rescue victims of a residential fire, they were protected against liability under Illinois law based on governmental immunity for discretionary actions under 745 ILCS 10/2-201. The officers, the court finds, had a policy decision to make in balancing their possible chance of success in rescuing the fire victims against the risk to their own safety. Fender v. Town of Cicero, 807 N.E.2d 606 (Ill. App. 1st Dist. 2004).

Public Protection: Witnesses

     The mere fact that a murder witness had been served with a subpoena to compel her to testify did not create any affirmative obligation to protect her, so there was not liability when she was allegedly killed outside her home by the alleged perpetrator. She was not in custody and law enforcement did not create the danger to her by issuing the subpoena to testify. She was already in danger from the alleged perpetrator who could reasonably assume that she would testify. Rivera v. Rhode Island, 312 F. Supp. 2d 175 (D.R.I. 2004).

Racial/National Origin Discrimination

     Operators of school bus business stated a possible federal civil rights claim by alleging that a Massachusetts state trooper engaged in a campaign designed to make it difficult for them to operate their business, resulting in the non-renewal of at least one bus contract, on the basis that they had hired a number of employees of Russian heritage. Lecrenski Bros. Inc. v. Johnson, 312 F. Supp. 2d 117 (D. Mass. 2004).

RICO

     Village itself could not form criminal intent required for a claim under the Racketeer Influenced & Corrupt Organizations Act (RICO), 18 U.S.C. Sec. 1961, et seq. Village constables, in allegedly violating a state statute prohibiting offering false instruments for filing by writing traffic tickets without authority to do so, did not constitute predicate criminal acts for purposes of a RICO civil claim because they were not punishable by imprisonment for more than one year. Claim that village officials mailed notices regarding the allegedly invalid traffic citations, however, could constitute acts of mail fraud as part of an alleged scheme to enforce tickets. Brewer v. Village of Old Field, 311 F. Supp. 2d 390 (E.D.N.Y. 2004).

Search and Seizure: Home/Business

     Arab-American man who became involved in domestic dispute with his ex-wife did not show that officers violated his rights by accompanying her into the home to retrieve her belongings or that they engaged in gender or national origin discrimination in failing to pursue an investigation into her conduct when he claimed that she had "broken in" and stolen his property. Officers reasonably believed that ex-wife had the right to consent to their entry into the home and there was no showing that the man was treated any differently than similarly situated women or non-Arab-Americans. Harajli v. Huron Tp., 02-2169, 365 F.3d 501 (6th Cir. 2004).

     Former special agent in charge of DEA office who made an allegedly false statement to a federal investigator which was incorporated into an affidavit for a search warrant for the home and office of one of his former subordinate agents could not be held liable for a Fourth Amendment violation on that basis. There is no protection under the Fourth Amendment, the court rules, against a person lying about his personal memories of the past to investigators who subsequently use it as the basis of a search and seizure. The defendant lacked personal involvement in the investigation and search. Mueller v. Gallina, 311 F. Supp. 2d 606 (E.D. Mich. 2004).

Search and Seizure: Person

     Former Massachusetts Commissioner of Public Safety was not liable, on the basis of his role as supervisor, for state trooper's allegedly unlawful strip search of and lewd comments to female motorist during vehicle stop. Commissioner's prior discipline of trooper following investigation of four prior incidents, which included a six-month suspension without pay, could not be said to show deliberate indifference to the rights of female motorists. Clancy v. McCabe, 805 N.E.2d 484 (Mass. 2004).

     The alleged "manipulation" of supposedly "random" drug testing procedures in order to gather evidence of alleged drug use by particular federal employees for use in criminally prosecuting them, if true, would violate clearly established Fourth Amendment rights, so that agency officials were not entitled to qualified immunity from unreasonable search and seizure claim. Freeman v. Fallin, 310 F. Supp. 2d 11 (D.D.C. 2004).

Sexual Assault

     Sheriff did not act in a policy-making capacity for the county when he allegedly engaged in statutory rape of mentally handicapped female minor by using his police vehicle's lights and siren to pull over vehicle in which she was a passenger. County, therefore, could not be held liable, in federal civil rights lawsuit, for sheriff's actions. Wooten v. Logan, No. 02-5753, 92 Fed. Appx. 143 (6th Cir. 2004).

Age Discrimination - Entry

     Federal appeals court upholds maximum entry age of 32 for Boston police officers. Donohue v. City of Boston, #03-2227, 2004 U.S. App. Lexis 11204 (1st Cir. 2004).

Civil Liability

     Police chief had no duty to prevent an off-duty assault of one officer by another. The adoption of a code of conduct did not impose a duty on the chief of police to protect others from harm. Murdock v. Croughwell, SC#16987, 268 Conn. 559, 2004 Conn. Lexis 165 (2004).

Civil Service

     The transfer of several functions from the Civil Service Cmsn. to the city's director of personnel was unlawful. The personnel director is not independent and the purpose of a Civil Service Cmsn. is to protect police department employees from the potential prejudices of management. Seattle Police Officers' Guild v. City of Seattle, #52042-3-I,89 P.3d 287 (2004).

Collective Bargaining - Duty to Bargain

     FLRA regional office concludes that management, in creating a physical fitness program for Pentagon police officers, was not required to bargain over a grandfather exemption clause or the creation of a medical review and physical fitness board. Pentagon Force Protection Agency and Frat. Order of Police DPS Labor Committee, FLRA Case #WA-CA-04-0251 (Wash. Region, 2004).

Disability Rights and Benefits - Continuing Eligibility/ Testing

EDITOR'S CASE ALERT:

     Illinois appeals court holds that disability benefits may be revoked for an officer who no longer is disabled, even though there are no light duty positions available to him. Rhoads v. Bd. of Tr. of Calumet City Policemen's Pension Fund, #1-03-2012, 2004 Ill. App. Lexis 579 (1st Dist. 2004).

Disability Rights and Benefits - Hearing procedures and appeals

     Employee's physician, who treated her for fibromyalgia and found her to be totally disabled, was entitled to deference, absent contrary evidence. Hatcher v. Barnhart, #03-3459, 2004 U.S. App. Lexis 10056 (8th Cir. 2004).

Disciplinary Hearings - Untenured

     Federal appeals court reverses a $333,820 verdict for race discrimination brought by a former city employee, and remands for a new trial the issue of damages incurred by plaintiff due to the City's failure to provide him with an adequate name-clearing hearing. Patterson v. City of Utica, #03-7285, U.S. App. Lexis 10722 (2d Cir. 2004).

Disciplinary Investigations

     Reversing a jury verdict, an appellate court finds that the defendants did not violate the First Amendment rights of a motor vehicle inspector by firing him for making persistent, false accusations of sexual harassment. The defendants were entitled to rely on the conclusions of the I-A investigations. Johnson v. State of Louisiana, #03-30087, 2004 U.S. App. Lexis 8840 (5th Cir. 2004).

Disciplinary Offenses - In General

     Airport authority did not commit unfair labor practice when it discharged an employee who brought a firearm in his vehicle to work, where possession of a firearm violated agency policies. Airport Auth. of Washoe Co. and Airport Auth. Emplees. Assn., 119 LA (BNA) 920, FMCS Case #03/12713 (Staudohar, 2004).

Disciplinary Procedures - In General

     LAPD settles a suit brought by the union; management agrees not to permanently reassign officers charged with misconduct, until a Board of Rights hearing is held. Temporary duty restrictions and reassignments still permitted, but now officers will be able to take an administrative appeal. $350,000 to be paid to 80 officers. Roe v. Parks, #00-cv-10811 (C.D. Cal. 2004).

E-Mail/Internet - Legal Issues

     Divided appellate court in Pennsylvania upholds management's prohibition against having pornographic matter on state owned computers. Burchell v. Unemployment Comp. Bd., #2198 C.D. 2003, 2004 Pa. Commw. Lexis 328 (Comm. 2004).

FLSA - Overtime - In General

     Ninth Circuit holds that an officer is not entitled to select a specific day to use his comp time. Mortensen v. County of Sacramento, #03-15185, 2004 U.S. App. Lexis 10163 (9th Cir. 2004).

FLSA - 7K Exemption

     City's failure to adopt a work period under the FLSA results in large overtime liability. Double damages were due for all nonexempt Boston police officers. Harris v. Boston, #2002-10123-RBC, 2004 U.S. Dist. Lexis 5954 (D. Mass. 2004).

Family, Medical & Personal Leave

     Supreme Court declines review of an appellate holding that management did not violate the FMLA or Title VII when it fired a city employee upon his return from leave, after concluding that his work product was poor. Phelan v. City of Chicago, #03-1209, cert. den. 2004 Lexis 2782 (2004); ruling below at 347 F.3d 679 (7th Cir. 2003).

     Arbitrator holds that a pregnant employee who was absent from work for six days due to abnormal pain and bleeding, was entitled to leave without pay under FMLA, where she submitted doctor's letter substantiating her condition on the first day she returned. Her need for leave was a medical emergency. Dept. of Homeland Security and AFGE L-1917, 119 LA (BNA) 833 (Lang, 2004).

First Amendment Related

     First Circuit holds that police officials failed to demonstrate that they were entitled to qualified immunity from retaliation claims of investigators who claimed that they were discharged or denied benefits because of their investigation of government corruption. Rivera-Jiménez v. Pierluisi, #02-2439, 362 F.3d 87 (1st Cir. 2004).

Handicap Discrimination - Accommodation

     The EEOC has ruled, in an advisory letter dated Apr. 29, 2004, that the ADA does not impose on employers a duty to dispose of used syringes of employees that must use them to treat medical conditions, such as diabetes. An employer also is not required to provide syringes used in the treatment of medical conditions because these are needed on and off the job, the EEOC said in another advisory letter dated Mar. 23, 2004. 42 (2059) G.E.R.R. (BNA) 474.

Homosexual & Transgendered

     Employee Rights Sixth Circuit resurrects the discrimination and retaliation claims of a pre-op transsexual fire lieutenant, who suffered insults and disciplinary action, and who was to take at least three psychological fitness exams with the hope that he would resign. Smith v. City of Salem, #03-3399, 2004 U.S. App. Lexis 10611 (6th Cir. 2004).

Injuries to Employees

    New York's highest court reverses two verdicts won by the widows of slain NYPD officers totaling $1.4 million, and a third case involving an officer killed in crossfire. N.Y. state law offers a wrongful death remedy only under narrowly defined circumstances. Although public employers are obliged to provide a safe workplace, state law was not intended to impose specific requirements to eliminate the special risks of police work. Williams v. City of New York, #13, and McCormick v. City of New York, #56, 2004 N.Y. Lexis 1027 (2004).

Pay Disputes - In General

     Arbitrator refuses to enforce a side agreement to pay a police officer more than the wages indicated in the bargaining agreement. "The rights and remedies of a bargaining unit member with respect to wages derive solely from the terms of the collective bargaining agreement entered into between the employer and the representative union. An employer cannot enter into separate, private agreements with individual members of the bargaining unit where the effect of such agreements would be to contradict the terms of the collective bargaining agreement." Borough of Brentwood and Teamsters L-205, Pa. Bur. of Mediation #4195, 119 LA (BNA) 1020 (Dissen, 2003).

Psychological Exams and Standards - Conduct Justifying a Required Exam

     Seventh Circuit reverses the dismissal of a suit against a police psychologist, the village and others, where the plaintiff officer was ordered to submit to an intrusive fitness-for-duty exam after he narrowly lost an election to the incumbent mayor. McGreal v. Ostrov, #02-3405, 2004 U.S. App. Lexis 9059 (7th Cir. 2004).

Racial Harassment

     In a Title VII suit brought against the New York Div. of Military and Naval Affairs, alleging racially harassing and retaliatory actions by a National Guard superior while they were acting in their civilian capacities, the action was properly dismissed because the challenged conduct was integrally related to the military's unique structure and was therefore nonjusticiable. Overton v. N.Y., #03-6008, 2004 U.S. App. Lexis 10805 (2d Cir. 2004).

Religious Discrimination

     Supreme Court rejects appeal by a state trooper who refused assignment on a casino boat. Endres v. Indiana State Police, # 03-1183, cert. denied 124 S.Ct. 2032, 2004 U.S. Lexis 2778 (4/19/04); ruling below at 2003 U.S. App. Lexis 13027 (7th Cir. 2003) and in state court at 794 N.E.2d 1089 (2003).

Resignations

     U.S. Supreme Court declines to review an Oklahoma appeals court ruling that concluded that a public employee's angry phone call to superiors, where she said she had "quit playing ball" and they could find another "flunky to pick on" could be interpreted as an oral resignation, and that she forfeited any further rights of due process. Burkhardt v. Oklahoma ex rel. Dept .of Rehab. Serv. (Unpub. Okla. App. 2003); cert. den. 2004 U.S. Lexis 3868 (2004).

Retirement Rights and Benefits

     Supreme Court holds that employers cannot reduce pensions for workers who retire early and then go to work somewhere else. In a unanimous ruling the justices held that ERISA [29 U.S. Code §1053(a)(3)(B)] protects against lowered benefits that take effect after a worker has retired -- in this case, the plaintiffs "retired" at age 39. Central Laborers' Pension Fund v. Heinz, #02-891, 2004 U.S. Lexis 4028 (2004).

Sex Discrimination - In General

     FBI agent, who was disciplined because of a variance between electronic building records and her time sheets could maintain a suit for retaliation, based on a prior sex discrimination complaint. Velikonja v. Mueller, #03-0832, 2004 U.S. Dist. Lexis 6701 (D.D.C. 2004).

Sex Discrimination - Reverse Discrimination

     Seventh Circuit affirms the dismissal of a reverse discrimination claim that the plaintiff was fired as a probationary Treasury Agent (for taking too long to complete assignments and exercising poor judgment) because he is a white male, while women agents were not disciplined for more egregious behavior. He was able to cite only a single instance of supposedly disparate treatment. Katerinos v. U.S., #02-3247, 2004 U.S. App. Lexis 9294 (7th Cir. 2004).

Sexual Harassment - In General

     Supreme Court holds that to establish "constructive discharge," a plaintiff alleging sexual harassment must show that the abusive working environment became so intolerable that her resignation qualified as a fitting response. Pennsylvania State Police v. Suders, #03-95, 2004 U.S. Lexis 4176 (2004).

Transfers - Disciplinary or Punitive

     Federal appeals court rejects the retaliation lawsuit of a police lieutenant who claimed he was transferred to light duty because he gave negative testimony about the chief of police in another officer's civil rights trial. The lieutenant did not suffer an adverse employment action because his lost pay and benefits were retroactively restored. Mylett v. City of Corpus Christi, #03-40774, 2004 U.S. App. Lexis 8729 (5th Cir. 2004).

Union and Associational Activity

     Federal appeals court upholds an unfair labor practice charge against a city bus operator that, without resorting to the bargaining process, restricted the right of the union to post notices on the employer's bulletin boards. ATC v. NLRB, #03-3476, 2004 U.S. App. Lexis 10789 (7th Cir. 2004).

     California Public Employment Relations Board judge rules that management violated state law by placing an administrator on leave and then demoting her, because she testified in support of two subordinate workers at a grievance hearing, resulting in a back pay award. Cal. State Employees Assn. v. Dept. of Consumer Affairs, #SA-CE-1385-S, 2004 PERC (LRP) Lexis 48.

Workers' Compensation - Claim Validity

EDITOR'S CASE ALERT:

     Connecticut Supreme Court upholds a claim raised by a corrections officer's estate that he contracted HIV and died of AIDS as a result of his suppression of prison altercations. Doe v. Dept. of Correction, #SC 16840, 268 Conn. 753, 2004 Conn. Lexis 191 (2004).

Access to Courts/Legal Info

     Prisoner could not pursue federal civil rights claim over alleged interference with his right of access to the courts based on warden's decision to end his telephone access to legal personnel. The prisoner failed to show that this resulted in prejudice to his ability to pursue non-frivolous litigation. Additionally, the prisoner was not denied access to a telephone system which was monitored, and failed to show that he had submitted a request form to make an unmonitored phone call to legal personnel on that system. Robinson v. Gunja, #03-1262, 92 Fed. Appx. 624 (10th Cir. 2004).

Defenses: Collateral Estoppel

     Prisoner was barred, by collateral estoppel, from relitigating in federal civil rights lawsuit claims arising from the first of two fires in his cells, based on a prior state court proceeding rejecting his claim that the state was negligent in connection with that fire and therefore responsible for the loss of his property. Under collateral estoppel, since the prisoner had a full and fair opportunity to litigate the issue once, the decided issue could not be revisited. No such bar existed as to claims arising from a second cell fire which he claimed was an "attack" on his life by a correctional officer, or subsequent alleged retaliatory actions against the prisoner, since these were not addressed in the prior state court proceeding. Hernandez v. Goord, 312 F. Supp. 2d 537 (S.D.N.Y. 2004).

Defenses: Notice of Claim

     California state officials could raise defense that plaintiff prisoner failed to show compliance with notice of claim provision of state Tort Claims Act, Cal. Gov. Code Sec. 911.2, after merely stating that the prisoner failed to state a claim, since compliance with the six month notice requirement was an element of any claim for money damages against a public entity in California. State of California v. Superior Court (Bodde), No. S114171, 13 Cal. Rptr. 3d 534, 90 P.3d 116 (Cal. 2004).

Defenses: Statute of Limitations

     "Mailbox rule," considering documents filed with the court when submitted to correctional officials for mailing, applied to a prisoner's lawsuit against county officials for allegedly failing to protect him from physical attack by other prisoners in the county jail. Lawsuit was therefore considered timely filed when presented to officials for mailing within the applicable two-year statute of limitations, since the plaintiff prisoner had no control over what happened to his papers once they were submitted. Halladay v. Board of County Commissioners of the County of Okmulgee, No. 99,801, 90 P.3d 578 (Okl. Civ. App. Div. 4 2004).

Disability Discrimination: Prisoner

     Prison officials were not deliberately indifferent to insulin dependent prisoner's need for a proper diet in prescribing a "self-monitored" diabetic diet in which the prisoner was responsible for choosing the proper food, and he was given counseling and education on how to do so. Additionally, substitutes for certain foods for diabetic inmates were made available. Court also rules that the Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12132, and Rehabilitation Act, 29 U.S.C. Sec. 794, and their prohibition on "disability discrimination" did not give the inmate a general federal cause of action for challenging the medical care provided for his insulin dependent diabetes. These statutes provide a basis for challenging discriminatory treatment or denial of benefits on the basis of a disability, and do not provide a basis for challenging the medical treatment of underlying disabilities. Carrion v. Wilkinson, 309 F. Supp. 2d 1007 (N.D. Ohio 2004).

Filing Fees

     Louisiana prisoner's lawsuit seeking damages and injunctive relief concerning alleged improper retaliation against him for challenging the results of a disciplinary hearing would be stayed until all accrued filing fees and costs are paid, since there was no indication that he was in imminent danger of serious bodily injury. Nichols v. Cain, 871 So. 2d 654 (La. App. 1st Cir. 2004).

First Amendment

     Prisoner in psychiatric housing unit asserted a valid claim for unlawful retaliation against him for reporting that a correctional officer exposed his penis to him and made vulgar remarks, and then falsely accused him of misconduct after he refused to refrain from reporting the incident. Austin v. Terhune, #02-16546, 367 F.3d 1167 (9th Cir. 2004).

     Former prisoner could pursue claims for nominal damages for alleged violations of his First Amendment rights while incarcerated despite provision in Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(e) preventing him from pursing claims for compensatory damages in the absence of physical injury. Further, the fact that the prisoner had been released did not make his claim moot, as nominal damages are past damages. McDaniels v. McKinna, #03-1231, 96 Fed. Appx. 575 (10th Cir. 2004).

Frivolous Lawsuits

     Inmate's lawsuit claiming a "massive conspiracy" against him by nineteen correctional officials or employees was frivolous, and he did not show an exhaustion of available administrative remedies as required under Texas law prior to filing suit. Additionally, his affidavit of prior civil litigation history merely described three prior lawsuits as "dismissed," without informing the court that they had been deemed frivolous or malicious, and he had a pattern of filing frivolous lawsuits which had previously resulted in a federal court barring him "for life" from filing further civil lawsuits against correctional officials and employees without prior written court permission. Bishop v. Lawson, #2-03-076-CV, 131 S.W.3d 571 (Tex. App.-Fort Worth 2004).

Inmate Funds

     Alabama correctional officials did not violate prisoner's rights by withholding part of the monetary benefits paid to him for injuries suffered while participating in a work-release program, and using that money to pay for part of the cost of the prisoner's incarceration. The prisoner was not an "employee" within the meaning of the state's workers' compensation statute, so that the protections of the statute against garnishment or seizure of benefits awards did not apply. Further, even if he had been interpreted to be an "employee," the benefits were in lieu of wages, and therefore the seizure of them to pay for part of the cost of incarceration was authorized under state law. Gober v. Alabama Dept. of Corrections, No. 2020064, 871 So. 2d 838 (Ala. Civ. App. 2003).

Medical Care

     Prison doctor's decision to discontinue prior course of treatment of prisoner for gastrointestinal problems and to prescribe allegedly "less effective" medications was insufficient to show deliberate indifference to serious medical needs. Doctor's removal of prisoner from "chronic care" list, even though it resulted in prisoner having to make a $3 co-payment each time he requested medical care, was not a violation of his rights when it did not result in any denial of medical care because of the fee. White v. Correctional Medical Services, Inc., No. 03-2097, 94 Fed. Appx. 262 (6th Cir. 2004).

     Failure of prison medical employees to surgically repair prisoner's bilateral inguinal hernia was not deliberate indifference to a serious medical condition when prison physician examined prisoner thirteen times over an eighteen months, wrote "numerous" prescriptions, and ordered several tests. Lawrence v. Virginia Dept. of Corrections, 308 F. Supp. 2d 709 (E.D. Va. 2004).

Negligent Hiring, Supervision, Retention and Training

     Female former inmates of federal community confinement center operated by a private company failed to show that company was negligent in failing to uphold a one-year security experience requirement when transferring an employee to a "resident advocate" position, since they failed to demonstrate that there was any connection between the employee's lack of security experience and his alleged sexual abuse of inmates. Company could not be held vicariously liable for the alleged abuse simply on the basis of the employer-employee relationship. There was, however, a triable issue of whether the company was negligent in retaining the employee after it received a report of his alleged sexual harassment of one female prisoner. Adorno v. Correctional Services Corp., 312 F. Supp. 2d 505 (S.D.N.Y. 2004 ).

Overcrowding

     Alleged failure of city to alleviate overcrowding in jail, resulting in unsanitary conditions, could possibly be a basis for liability for prisoner's death from bacterial meningitis. Doctor's failure to treat prisoner for this condition, however, did not show deliberate indifference, when he testing the prisoner for meningitis and concluded that he did not have that condition. Brown v. Mitchell, 308 F. Supp. 2d 682 (E.D. Va. 2004).

Parole

     Federal appeals court rejects California inmates' claim that governor and Board of Prison Terms engaged in an unconstitutional conspiracy to enforce an "unwritten policy" of denying parole to prisoners serving life sentences. Prisoners' damage claims were barred and federal courts cannot enjoin state officials on the basis that their actions or policies allegedly conflict with other state law. McQuillion v. Schwarzenegger, No. 01-16037, 369 F.3d 1091 (9th Cir. 2004).

Prison & Jail Conditions: General

     Federal appeals court upholds injunctive orders requiring the remedying of "filthy" conditions, inadequate mental health care, inadequate ventilation, and malfunctioning toilets on death row in Mississippi prison, but rejects a number of other injunctive orders by trial court, including requirement of a preventative maintenance program, as not supported by the evidence or improper micro-management. Russell v. Johnson, #03-60529, 2004 U.S. App. Lexis 13890 (5th Cir. 2004).

Prison & Jail Construction and Closing Issues

     Mississippi governor's purported veto of a portion of a state statute addressing the funding of state prisons was unconstitutional and therefore a "nullity, so that purported termination of contract for the private housing of prisoners in Delta Correctional Facility was improper. Barbour v. Delta Corr. Facility Authority, No. 2002-CA-01510-SCT, 871 So. 2d 703 (Miss. 2004).

Prison Litigation Reform Act: Attorneys' Fees

EDITOR'S CASE ALERT:

     Prison Litigation Reform Act's cap on attorneys' fees at 150% of damage award does not apply in cases where the parties privately settle the lawsuit, and subsequently enter a stipulation of dismissal of the claim in the trial court. Torres v. Walker, No. 03-102, 356 F.3d 238 (2nd Cir. 2004).

Prison Litigation Reform Act: Exhaustion of Remedies

     Prisoner was excused from having to exhaust administrative remedies before filing federal civil rights lawsuit against jail employees' alleged use of excessive force against him both in reliance of then applicable case law later rejected by U.S. Supreme Court, and also because his transfer to another facility made administrative remedies at the county jail no longer "available" to him. Rodriguez v. Westchester County Jail Corr. Dept., No. 02-0325, 2004 U.S. App. Lexis 12488 (2nd Cir. 2004).

     Prisoner's federal civil rights lawsuit against correctional officials for allegedly keeping him locked in a cell without adequate heating and ventilation was improperly dismissed for failure to exhaust available administrative remedies. Under prison's grievance policy, these issues were non-grievable since they involved many prisoners. Figel v. Bouchard, #03-1567, 89 Fed. Appx. 970 (6th Cir. 2004).

     Trial court improperly dismissed prisoner's lawsuit concerning prison officials' alleged failure to protect him from another inmate on the basis of failure to exhaust available administrative remedies without considering prisoner's claim that prison officials prevented him from exhausting his administrative remedies by beating him, threatening him, denying him grievance forms and writing implements, and transferring him to another facility. Trial court could also have considered his claim that complaints to the FBI constituted an informal exhaustion of his administrative grievances sufficient to satisfy the requirements of the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e. Failure to exhaust administrative remedies is an "affirmative defense," and is subject to "estoppel" barring the defense if prison officials actually did prevent a prisoner from pursuing a grievance. Ziemba v. Wezner, No. 02-0340, 366 F.3d 161 (2nd Cir. 2004).

     Prison officials could assert a prisoner's failure to exhaust available administrative remedies as a defense in a second summary judgment motion in his federal civil rights lawsuit after having failed to do so in a first summary judgment motion, and even after the time period for filing such a motion had expired. First, the defendants had also alleged this defense in their answer to the complaint. Second, since the defendants could have asserted the same defense at trial, allowing the summary judgment motion to be filed saved the prisoner the expense of preparing for a trial that he would have lost. Summary judgment for prison officials upheld. Villante v. Vandyke, No. 03-0044, 93 Fed. Appx. 307 (2nd Cir. 2004).

Prisoner Classification

     Federal Bureau of Prison's changed interpretation of statute, 18 U.S.C. Sec. 3621(b) as limiting its authority to place prisoners in community confinement centers (CCC) to only the final ten percent or six months of a sentence, whichever was less, was not entitled to deference, as it was a legal interpretation of a statute, rather than a regulation adopted pursuant to the BOP's rule-making authority. Court rules that the interpretation was invalid, since the statute grants the BOP the authority to designate or transfer prisoners to a CCC at any time prior to the end of their sentence. Further, any application of this policy to the plaintiff prisoner's sentence was an improper retroactive enhancement of his punishment, violative of the "ex post facto" clause of the U.S. Constitution. Crowley v. Federal Bureau of Prisons, 312 F. Supp. 2d 453 (S.D.N.Y. 2004).

Prisoner Discipline

EDITOR'S CASE ALERT:

     Disciplinary hearing officer's decision in maximum-security prison to deny prisoner's request to call inmate he allegedly beat as a live witness in the hearing was not a denial of due process. Other prisoner's written statement was received, and officer reasonably exercised his discretion to protect the witness against possible reprisal in case his testimony was not as the accused prisoner wanted. Brown v. Braxton, No. 03-6763 2004 U.S. App. Lexis 13626 (4th Cir. 2004).

     Determination that prisoner was guilty of violating rules against violent conduct, assaults against correctional staff, refusing direct orders, and property damage was supported by substantial evidence, including officers' testimony and video surveillance tape. Nothing in the record showed that the hearing officer was biased against the prisoner or based the determination of guilt on anything aside from the evidence presented at the hearing. Porter v. Goord, 776 N.Y.S.2d 355 (A.D. 3d Dept. 2004).

     Finding of guilt on charges of assaulting another inmate and related charges was adequately supported by substantial evidence at disciplinary hearing. The absence of the assault victim from the hearing, who the prisoner wanted to call as a witness, was adequately explained by the hearing officer and by the victim's signed witness refusal form. Lebron v. Goord, 775 N.Y.S.2d 434 (A.D. 3d Dept. 2004).

Prisoner Restraint

     Prison official was entitled to qualified immunity against prisoner's claim that he used excessive force against him when handcuffing him, resulting in a lacerated wrist and injured thumb. The prisoner admitted that he violated facility cuffing procedures by withdrawing his uncuffed hand and disobeying the officer's orders, and defendant reasonably believed that the plaintiff prisoner was trying to pull the cuffs into his cell in order to possibly use them as a weapon. Avery v. Anderson, No. 03-4213, 94 Fed. Appx. 735 (10th Cir. 2004).

Prisoner Suicide

     Alleged failure of correctional employees to attempt to resuscitate an inmate found hanging in his cell did not violate any clearly established constitutional right in the absence of any evidence that the inmate had a pulse or was breathing at the time a corrections officer arrived at the cell. Dipace v. Goord, 308 F. Supp. 2d 274 (S.D.N.Y. 2004).

Racial & National Origin Discrimination

     African-American inmate did not show that he had been subjected to racial discrimination in work assignments. Prisoner's "rambling" statement concerning what occurred demonstrated, "at most," that there may have been a "personality clash" between the prisoner and some officers. Additionally, the prisoner had no property right to his job or to working any particular number of hours, so his claim that he was given fewer hours of work than some other inmates was not relevant. Miles v. Wiser, 847 A.2d 237 (Pa. Cmwlth. 2004).

Religion

EDITOR'S CASE ALERT:

     Prison did not violate prisoners' First Amendment right to exercise their religion by disallowing a request for group worship by a religious group which advocates racial separatism. Rejection of request was reasonably related to legitimate security concerns. Further proceedings are ordered, however, on whether the denial of group worship was the "least restrictive means" available to prevent racial violence, as required by federal statute. Murphy v. Missouri Dept. of Corr., No. 02-3874, 2004 U.S. App. Lexis 12239 (8th Cir).

     Prison did not violate "Charismatic Christian" inmate's right to religious freedom by failing to use his new "religiously inspired" name and by failing to honor his religious vegetarian dietary requests. Use of his commitment name in prison computers used when preparing money orders and official documents was justified by legitimate penological interest in holding down costs, since computers were programmed with commitment names. Prisoner was offered a vegetable option in lieu of the meat main course on meals, and a legitimate concern about controlling costs justified denying his requests for raw vegetables, fresh fruit, nuts, honey, whole wheat bread, cheese and grains. Ephraim v. Angelone, 313 F. Supp. 2d 569 (E.D. Va. 2003).

Search: Prisoners/Cells

     Jail booking procedures, including a pat-down search, the collection of personal property, and the detention and handcuffing of the person being booked, were reasonable, even when applied during one hour detention of individual being processed pursuant to criminal summons for an offense only punishable by fine. Petersen v. Farnsworth, No. 03-4032, 2004 U.S. App. Lexis 11711 (10th Cir).

Segregation: Administrative

     Federal prison officials were improperly granted summary judgment in pretrial detainee's lawsuit claiming that he was placed in administrative detention in extremely harsh conditions for over 500 days purely for the purpose of punishment and without required procedural due process. Magluta v. F.P. Sam Samples, No. 03-11667, 2004 U.S. App. Lexis 14116 (11th Cir).

Sexual Assault

     Appeals court orders further proceedings on whether woman should be allowed to proceed on lawsuit concerning her alleged gang rape in county jail over thirty years ago. Plaintiff argued that the statute of limitations should be extended because of her mental illness, and trial court made improper inferences, in the appeals court's opinion, in ruling on that issue. Douglas v. York County, No. 03-2086, 360 F.3d 286 (1st Cir. 2004).

Terrorism, Enemy Combatants, & Military Prisoners

EDITOR'S CASE ALERT:

     U.S. Supreme Court rules that foreign nationals detained in Guantanamo Bay, Cuba, captured in Afghanistan hostilities, have a right to access to U.S. courts to challenge the legality of their detention, and that U.S. citizen detained as an "enemy combatant" for allegedly fighting against the U.S. in Afghanistan, also had a due process right to access to a "neutral decision maker" to challenge the factual basis for his detention. In a third case involving a U.S. citizen detained as an "enemy combatant" on U.S. soil for alleged involvement in terrorist conspiracy, Court does not reach ultimate issues because of procedural defects in court filing. Rasul v. Bush, No. 03-334, 2004 U.S. Lexis 4760; Hamdi v. Rumsfeld, No. 03-6696, 2004 U.S. Lexis 4761; Rumsfeld v. Padilla, No. 03-1027, 2004 U.S. Lexis 4759.

Visitation

     Maximum security prison did not violate prisoner's rights under either U.S. Constitution or Alaska State Constitution by ordering him not to hold his wife's hand during prayers when granted a contact visit. His right to religious freedom did not require prison to allow hand-holding, kissing, or embracing during such a visit, and the rule was reasonably related to legitimate interests in keeping the prison free of contraband. Temporary suspension of contact visits after prisoner allegedly violated the rule did not violate his right to due process. Larson v. Cooper, #S-10327, 90 P.3d 125 (Alaska 2004).

Work/Education Programs

     Washington state statute, RCWA 72.09.100(1), under which Department of Corrections entered into contract with private company allowing them to employ convicts in its business, violated a state constitutional provision, Art. 2, Sec. 29, concerning the employment of prisoners by private entities, and prohibiting such transactions. Washington Water Jet Workers Association v. Yarbrough, No. 70814-2, 90 P.3d 42 (Wash. en banc., 2004).