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

Assault and Battery: Chemical

     Officers' use of chemical spray against an arrestee and pushing of him was not excessive force when he was on top of a man on the floor with blood on the floor around them when they arrived at his apartment, and the arrestee was not cooperative with them. Officers had no obligation to believe arrestee's claim that he had acted in self-defense after the other man, his brother-in-law, had attacked him in an intoxicated condition. Lindsay v. Bogle, No. 02-6201, 92 Fed. Appx. 165 (6th Cir. 2004).

Assault and Battery: Physical

     Louisiana man who claimed that four officers detained him during a Mardi Gras parade, with one of them intentionally handling him in a way that dislocated his shoulders adequately asserted a claim for assault, battery, and false imprisonment against the city, its insurer, and the city police department under a vicarious liability theory. Doss v. Morris, #02-31215, 86 Fed Appx. 25 (5th Cir. 2004).

     Arrestee's federal civil rights lawsuit claiming that officers used excessive force against him was barred under the principles in Heck v. Humphrey, No. 93-6188, 512 U.S. 477 (1994), since he had been convicted of resisting an officer, and that conviction had not been set aside. The plaintiff did not claim that the officers used excessive force after he stopped resisting or that they used excessive force to stop his resistance, but instead that they attacked him with no reason to do so. Accordingly, his federal civil rights lawsuit was an improper challenge to the validity of his conviction. Arnold v. Town of Slaughter, No. 03-30941, 100 Fed. Appx. 321 (5th Cir. 2004).

     Arrestee's claim that officer transporting him to county jail "kind of manhandled me around" and "roughly transported" him in the "manner in which" the officer "took me out of the car and stuff like that" was insufficient to state a claim for excessive use of force. Dimmitt v. Ockenfels, # 03-170-P-DMC, 220 F.R.D. 116 (D. Me. 2004).

Defenses: Absolute Immunity

     Federal appeals court holds that trial court, in ruling on whether prosecutor and his investigator were entitled to absolute immunity in lawsuit over alleged tainted conviction of five men for felony-murder of a police officer, improperly believed that it must assume the truth of the plaintiffs' claims without examining the evidentiary support offered for those claims and their admissibility. Butler v. Cervantes, No. 02-57049, 370 F.3d 956 (9th Cir. 2004)

Defenses: Release Agreements

     Arrestee's release of city and officers from civil liability in exchange for dismissal of criminal charges of domestic violence against her was fully enforceable. Alabama statute prohibiting the crime of "compounding," punishing agreements offering something of value in exchange for not seeking prosecution of a crime, did not apply to city attorney's offer of release agreement. Penn v. City of Montgomery, No. 03-14207, 381 F.3d 1059 (11th Cir. 2004)

Defenses: Statute of Limitations

     Motorists' claims against individual officers that they were stopped and searched without probable cause were time-barred when they were not named as individual defendants until after the statute of limitations expired. While the city had allegedly refused to release the officers' names to the plaintiffs, the plaintiffs only filed their lawsuit one month before the statute expired, and failed to pursue discovery requests to obtain the officers' names until seven months later, so they were not entitled to tolling (extension) of the statute of limitations. Hines v. City of Chicago, #03-1595, 91 Fed. Appx. 501 (7th Cir. 2004).

     An arrestee's civil rights claim for coercive interrogation and torture by officers allegedly used to compel him to falsely confess to a murder did not accrue, for purposes of the statute of limitations, until his conviction was overturned. Accordingly, his claims were not time-barred. Patterson v. Burge, #03C4433, 328 F. Supp. 2d 878 (N.D. Ill. 2004).

Lawsuit against U.S. soldiers allegedly involved in My Lai Massacre on March 16, 1968 during the Vietnam War by residents of Vietnamese village was barred by applicable statutes of limitations. Soldiers did not act under color of state law, so federal civil rights claims under 42 U.S.C. Sec. 1983 were barred. Federal civil rights claims for direct violations of federal law under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), were barred under the four-year Utah state personal injury statute of limitations, which applied, despite the fact that the alleged misconduct occurred in Vietnam, as the federal court was not required to attempt to apply a non-existent "hypothetical" Vietnamese statute of limitations. Claims under the Alien Tort Statute, 28 U.S.C. Sec. 1350, were barred by a ten-year statute of limitations. International convention against the use of statutes of limitations to bar claims concerning war crimes did not apply, as the U.S. government had not adhered to that convention, and it also only applies to criminal prosecutions, and not to civil lawsuits for damages. Van Tu v. Kosters, #02-4209, 364 F.3d 1196 (10th Cir. 2004).

False Arrest/Imprisonment: No Warrant

     Arrest of motorist for driving under the influence of an intoxicant was adequately supported by probable cause even though she did not appear to be intoxicated in the officer's presence or at a hospital emergency room when she did not respond to attempts to rouse her at the scene of the accident, told the officer that she had taken a prescription narcotic and several other prescription medications, and a doctor at the hospital informed the officer that these medications could cause impairment and that the motorist had informed him that she "blacked out" prior to the accident. Keyes v. Ervin, #02-5509, 92 Fed. Appx. 232 (6th Cir. 2004).

     Police chief could reasonably believe that he had probable cause to arrest a man for disorderly conduct when he refused requests to cease videotaping a borough council meeting or move his video equipment, and thereby "disrupting" the meeting. Judgment in favor of defendant police chief, municipality, and mayor upheld. Tarus v. Borough of Pine Hill, No. 03-3100, 105 Fed. Appx. 357 (3rd Cir. 2004).

     Arrestee's claims for false arrest were barred by his convictions for disorderly conduct and fleeing from an officer. Burch v. Naron, #04-6006, 333 F. Supp. 2d 816 (W.D. Ark. 2004).

False Arrest/Imprisonment: Warrant

     Officers who sought an arrest warrant based on a corrections officer's alleged sexual misconduct with a female inmate had arguable probable cause for his arrest despite some inconsistencies in complaining prisoner's story. Probable cause existed for the arrest, based on all the officers knew, even if some of it was not fully expressed in the application for the warrant. Escalera v. Lunn, No. 03-7121, 361 F.3d 737 (2d Cir. 2004)

     Woman arrested on a warrant for unlawfully depriving another of the custody of a child or visitation rights failed to show that the deputy sheriff who obtained the warrant fabricated any of the information in the warrant application. The deputy was therefore properly granted summary judgment in a false arrest lawsuit. Gray v. County of Los Angeles, #03-55012, 103 Fed. Appx. 112 (9th Cir. 2004).

     Probable cause existed for the arrest, pursuant to a warrant, of a civilian police department crime lab employee when work records and observations indicated she was at work at a second job as an aerobics instructor while claiming to work overtime at the crime lab. Her subsequent acquittal of the charges, based on her defense that she made up the overtime hours at other times, did not alter the result, since the investigating officer had ample facts, based on reasonably reliable sources of information to provide him with probable cause at the time of the arrest. Dintino v. Echols, #03-1517, 91 Fed. Appx. 783 (3rd Cir. 2004).

False Arrest/Imprisonment: Unlawful Detention

     Motorist's 38-day detention before a first appearance before a judge following an arrest by warrant violated his right to due process and shocked the conscience. Detainee was properly awarded $50,000 in damages and $46,929.50 in attorneys' fees and costs. Hayes v. Faulkner County, No. 03-3787 2004 U.S. App. Lexis 22521 (8th Cir. 2004).

Firearms Related: Intentional Use

     Officer was entitled to qualified immunity for shooting and killing a husband struggling on the floor with another officer summoned to the home because of a domestic dispute. Parks v. Pomeroy, No. 03-2043 2004 U.S. App. Lexis 23262 (8th Cir.2004).

     Officer did not use unreasonable force in shooting and killing an unarmed motorist who had crashed his car into a police vehicle and then continued to rev his engine, pushing it backwards and attempting to force it into a ditch. Officer's action was reasonable under the circumstances, and therefore did not violate the Fourth Amendment. Vanvorous v. Burmeister, #02-1150, 96 Fed. Appx. 312 (6th Cir. 2004).

     Question of whether officers used excessive force in shooting a man was for the jury to determine, and they could believe, on the basis of the evidence, that the suspect, who had pointed a gun at the officers was trying to escape and disbelieve the plaintiff's asserting that he was handcuffed and in police custody at the time. Federal appeals court upholds jury verdict for defendant officers. Palma v. Edwards, No 03-2019, 103 Fed. App. 3 (7th Cir. 2004).

     Officer acted in an objectively reasonable manner in shooting and killing an intoxicated belligerent suspect who ignored repeated orders to drop his gun when he raised both his arms simultaneously while still holding the gun. Estate of Martinez v. City of Federal Way, No. 03-35210, 105 Fed. Appx. 897 (9th Cir. 2004).

First Amendment

Editor's Case Alert:

     City's policy requiring everyone participating in a protest demonstration to submit to a metal detector search violated both the First and Fourth Amendment. Bourgeois v. Peters, #02-16886, 2004 U.S. App. Lexis 21487 (11th Cir. 2004).

     Indiana's curfew statute violated minor's First Amendment rights, even with the inclusion of an affirmative defense for minors arrested while going to or from First Amendment protected activities, since subjecting them to the possibility of arrest may improperly "chill" such activities, federal appeals court rules. Hodgkins v. Peterson, No. 01-4115, 355 F.3d 1048 (7th Cir. 2004).

     Officer violated arrestee's First Amendment rights by arresting him for disorderly conduct for yelling obscenities at a Canadian flag being carried in parade for the purposes of expressing his political opinion about the Canadian government's lack of support for U.S. military actions in Iraq. Officer was not entitled to qualified immunity from liability, as the arrestee's comments did not constitute "fighting words," and a reasonable officer would have known that there was no probable cause for an arrest. Levine v. Clement, No. CIV. A. 03-30206-KPN, 333 F. Supp. 2d 1 (D. Mass. 2004).

Freedom of Information

     A document concerning two individuals' interview with the FBI concerning the activities of a Lyndon LaRouche-affiliated group, the National Caucus of Labor Committees (NCLC), could be withheld from disclosure under the Freedom of Information Act (FOIA), 5 U.S.C. Sec. 552 under an exemption for information compiled for law enforcement purposes if the disclosure could reasonably be expected to reveal the identity of a confidential source. Billington v. U.S. Dept. of Justice, No. Civ. A. 92-0462, 301 F. Supp. 2d 15 (D.D.C. 2004).

Governmental Liability: Policy/Custom

     Plaintiffs failed to show that an official city policy or custom of deliberate indifference to the need for training of officers on the use of deadly force caused the death of a motorist shot and killed by an officer during a pursuit of his vehicle. Genuine issues of material fact as to whether the officer acted negligently, however, barred summary judgment for the city in a Texas state law claim. Lopez-Rodriguez v. City of Levelland, Texas, No. 03-10843, 100 Fed. Appx. 272 (5th Cir. 2004).

Interrogation

     Man who was pardoned after his rape and murder conviction was called into question by DNA evidence failed to show that the officers who interrogated him coerced a false confession for purposes of asserting a civil rights due process claim. In addition to being given a Miranda warning before the interrogation, the plaintiff produced no evidence that there was any psychological or physical abuse of him by the officers. Washington v. Buraker, No. Civ.A. 3:02CV00106, 322 F. Supp. 2d 702 (W.D. Va. 2004).

     An interrogation which never resulted in any confession used in criminal proceedings could not be the basis for a federal civil rights lawsuit by an arrestee claiming that the interrogators violated his Fifth Amendment right against compelled self-incrimination. Gibson v. Picou, #03-3035, 101 Fed. Appx. 154 (7th Cir. 2004).

Juvenile Arrestees

     A "zero tolerance" policy allowing more severe treatment of children than adults, under which 12-year-old girl was arrested for eating a single french fry in a train station, while adults were given citations, was not unconstitutional. Hedgepeth v. Washington Metro Area Transit Auth., No. 03-7149, 2004 U.S. App. Lexis 22230 (D.C. Cir. 2004).

Malicious Prosecution

     Indictment of arrestee for second-degree attempted murder charge barred his claims for false arrest and malicious prosecution, in the absence of any proof that the indictment was returned because of a suppression of evidence, perjury, fraud, or other government misconduct. Rivas v. Suffolk County, No. CV95-387, 326 F. Supp. 2d 355 (E.D.N.Y. 2004).

     Officer was entitled to qualified immunity in motorist's lawsuit asserting claims for malicious prosecution and false arrest based on a pursuit that concluded with the motorist's vehicle colliding with a fire hydrant. Based on the motorist pleading guilty to disorderly conduct charges in exchange for the dismissal of other charges against him, the plaintiff could not show that the prosecution terminated in his favor or that the officer did not have probable cause for the arrest. Timmins v. Toto, No. 02-9206, 91 Fed. Appx. 165 (2nd Cir. 2004).

Police Plaintiffs: Firearms Related

Editor's Case Alert:

     Employer whose drug intoxicated employee shot a police officer responding to a domestic dispute he was having with his wife was properly held liable for $800,000 in compensatory and $500,000 in punitive damages. Evidence showed that supervisors were aware of, and even encouraged, work crew to use drugs to stay "alert" and awake while repairing railroad tracks. Loram Maintenance of Way, Inc. v. Ianni, No. 08-02-00049-CV, 141 S.W.3d 722 (Tex. App. 2004).

Property

Editor's Case Alert:

     Federal appeals court overturns summary judgment for city and county in lawsuit by homeless persons claiming that they have an unconstitutional policy or custom of seizing and destroying their property without proper notice and hearing. Cash v. Hamilton County Dept. of Adult Prob., No. 03-3916 2004 U.S. App. Lexis 23756 (6th Cir. 2004).

Racial/National Origin Discrimination

     Jury in federal civil rights lawsuit by Arabic owners of New York delicatessens could properly find, from the evidence presented, that a special task force did not single their business out for enforcement efforts on the basis of their national origin. The enforcement efforts concerned outdated food, trash buildup, loitering, overpricing of goods, and improper sales of drug paraphernalia and single cigarettes. The list of delis to be targeted by the task force was based on those with the greatest number of complaints. On an unlawful search and seizure claim, the jury could find, from the evidence, that the business owners consented to the search of the premises. While the jury verdict came three days after the September 11, 2001 terrorist attack on the World Trade Center attributed to persons of Arabic ethnicity, the plaintiffs were not entitled to a new trial on the basis of possible bias by the jury, when they failed to seek either a delay of the trial or a mistrial after the attacks occurred. Saleh v. City of Buffalo, #01-9298, 80 Fed. Appx. 119 (2nd Cir. 2003).

Search and Seizure: Home/Business

     Manager of medical office had a right to deny entry to probation officer and police officer at a time when the office was closed to the public. Arrest warrant they had for probationer who occasionally did odd jobs for office did not authorize entry for a search, in the absence of a search warrant for the office or exigent circumstances. Probation officer was not entitled to qualified immunity for entry. O'Rourke v. Hayes, No. 03-10795, 378 F.3d 1201 (11th Cir. 2004).

     Property owner could not pursue unlawful search and seizure claim against sheriff on the basis of his entry into his pasture, since he had no reasonable expectation of privacy in the pasture where he kept his cattle. Schroeder v. Kochanowski, No. 03-4108-JAR, 311 F. Supp. 2d 1241 (D. Kan. 2004).

Search and Seizure: Person

     Officers had sufficient reasonable suspicion for an investigatory stop of a restaurant patron when restaurant personnel told them that customers had overheard him discussing bank robberies with his companions and that he appeared to be a person identified as a wanted bank robber on a television program. Eisnnicher v. Bob Evans Farms Restaurants, No. 2:02-CV-1020, 310 F. Supp. 2d 936 (S.D. Ohio 2004).

Search and Seizure: Vehicle

     Summary judgment for officers on motorist's illegal search claim overturned because of a material issue of fact as to whether a firearm seized was visible from outside the vehicle. Boone v. Spurgess, No. 03-3841, 385 F.3d 923 (6th Cir. 2004).

Arbitration Procedures

     Arbitrator refuses to discipline a warden for his failure to respond to a disciplinary grievance, and also declines to enter a default award. Grievances should be decided on their merits unless the bargaining agreement provides for default awards. Fed. Bur. of Prisons and Council of Prison Locals AFGE, 119 LA (BNA) 1812 (Franckiewicz, 2004).

Attorney-Client Confidentiality & Ethics

     California appellate court holds that "a city attorney's office is not a 'law firm' within the meaning of the vicarious disqualification rule," and a city attorney's office is not disqualified from representing the city in a civil action after an attorney from the firm representing a plaintiff is hired as a deputy city attorney. City of Santa Barbara v. Superior Court of Santa Barbara Co. (Stenson), 122 Cal.App.4th 17 (2d Dist. 2004).

Collective Bargaining - Duty to Bargain

     Massachusetts Labor Cmsn. orders a town to bargain over the use of new defibrillators. The bargaining demand was not waived by the union's silence until after the defibrillator training was completed. Town of Somerset and IBPO L-518, #MUP-01-2957 (Mass. Labor Cmsn., 2004).

Defamation - In General

     Iowa Supreme Court sustains a verdict of $96,000 in compensatory and $60,000 in punitive damages for a woman deputy who sued a male deputy for sending an altered photo of her, in uniform, with her breasts exposed. The justices also reversed a trial court order dismissing the county and the sheriff from liability for negligent retention of the male officer. Kiesau v. Bantz, 686 N.W.2d 164 (2004).

     Iowa Supreme Court holds that prosecutorial immunity does not apply to a county attorney who told a police chief and a mayor that he would not prosecute any cases involving the office because he had lied to investigators about his wife's death. The officer was fired and sued the county attorney for defamation, interference with employment contract, and unlawful dissemination of "intelligence data." Beck v. Phillips, 685 N.W.2d 637 (Iowa 2004).

Disciplinary Interviews & Compelled Reports - Garrity Warnings

     Seventh Circuit reinstates a civil rights suit brought by a city worker who, while facing criminal prosecution for drug possession, refused to answer questions at an internal interview. The city had failed to inform him that his answers would be immunized from use in a criminal case. Franklin v. City of Evanston, 384 F.3d 838 (7th Cir. 2004).

Disciplinary Offenses - In General

     Seventh Circuit reinstates a civil rights suit brought by a city worker who, while facing criminal prosecution for drug possession, refused to answer questions at an internal interview. The city had failed to inform him that his answers would be immunized from use in a criminal case. Burleson v. Hancock Co. Sheriff's Dept., 872 So.2d 43 (Miss. App. 2003); cert. den., 873 So.2d 1032 (2004); cert. filed, #04-180, 73 U.S.L.W. 3113 (8/3/04).

Disciplinary Punishment - In General

     Arbitrator affirms the termination of a school employee who threatened to kill four coworkers and his union representative. The grievant "named the people he was going to kill and apparently was only troubled by the logistical problem of getting around throughout the school district in the shortest period of time to expeditiously kill all of his targets. That chilling information ... provided ample justification for [management's] immediate concerns and subsequent actions." Anchorage School Dist. and Alaska Public Employees Assn., 119 LA (BNA) 1313 (DiFalco, 2004).

     Federal appeals court sustains an arbitration decision upholding the termination of a deputy sheriff for a misdemeanor domestic violence conviction. Morrison v. Warren, 375 F.3d 468 (6th Cir. 2004).

     Where an appellate court overturns some, but not all disciplinary counts, the penalty of termination must be reversed, and the matter must be reconsidered by the Board that imposed the discharge, especially when the nonsustained offenses were the more serious charges. Hathaway v. Dept. of Justice, 2004 U.S. App. Lexis 19367 (Fed. Cir. 2004).

Disciplinary Punishment - Fines & Extra Duty

     Arbitrator rejects a grievance by a public school teacher seeking paid time off to view a series of self-improvement videotapes. He was ordered to view the tapes as a corrective measure after he treated students in a derogatory, degrading and offensive manner. Because of the disciplinary nature of the principal's order, he was not entitled to paid time off to view the tapes. East Guernsey Bd. Educ. and E.G. Teachers Assn., 120 LA (BNA) 30 (Skulina, 2004).

Discovery, Publicity and Media Rights

     Federal appeals court affirms a district court decision to unseal documents related to the VSP's investigation of a murder where the release of the documents would not affect the integrity of the investigation. Virginia State Police v. The Washington Post, 2004 U.S. App. Lexis 20629 (4th Cir.2004).

Handicap Laws / Abilities Discrimination - Specific Disabilities

     EEOC issues an "informal guidance letter" that employers may not disclose to employees that a coworker has hepatitis C, citing 29 C.F.R. §1630.14(b) and (c). The Commission noted that the information "is considered confidential, and an employer has an obligation under the ADA to safeguard it." EEOC Advisory Letter, 73 (9) G.E.R.R. (BNA) 2137 (6/17/04).

Health Insurance & Benefits

     Arbitrator holds that management violated the bargaining agreement by unilaterally imposing deductibles on employee medical benefits. The terms "deductible" and "coinsurance" are not interchangeable. City of Middletown and IAFF L-336, 120 LA (BNA) 8 (Braverman, 2004).

Military Leave

     At 69 Fed. Reg. 56265 (9/20/04) the Dept. of Labor, Veterans' Employment and Training Service has issued proposed rules to implement the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S. Code §4331(a). No practice of employers or agreements between employers and unions can reduce benefits that the Congress has secured. When adopted, the rules will be codified at 20 C.F.R. Part 1002.

National Security Issues

     President Bush orders a common identification card standard for access to federal facilities. "Policy for a Common Identification Standard for Federal Employees and Contractors," Homeland Security Presidential Directive No. 12, 42 (2074) G.E.R.R. (BNA) 847.

Past Practices, Precedents & Zipper Clauses

     When the bargaining agreement is subject to two interpretations, an arbitrator must look to the past practices of the parties. In the past, a doctor's note for sick leave had not been required for absences under three consecutive days, and an arbitrator holds that management could not require one of a deputy to justify multiple absences of fewer than three days. Kitsap Co. and Deputy Sheriff's Guild, 119 LA (BNA) 1753 (Gaba, 2004).

Pay Disputes - In General

     Arbitrator holds that a city violated the bargaining agreement when it refused to pay a police officer for 12 partial days of jury duty, even though the city changed the officer's schedule so that the jury appearances would not conflict with his scheduled duty. City of Urichsville, Ohio and Fraternal Order of Police, 119 LA (BNA) 1723 (Harlan, 2004).

     Massachusetts Labor Relations Commission holds that it was an Unfair Labor Practice to change the payroll period from weekly to biweekly, without bargaining with the union. Worcester County Sheriff's Office and Massachusetts Correction Officers Federated Union, #SUP-4531 (Mass. LRC 2004).

     Federal appeals court rejects a pay discrimination suit filed by 18 former Chicago Police crime lab scientists who were absorbed into the Illinois State Police Forensic Services Division. The plaintiffs were unable to prove the transfer process failed to account for their seniority, or that incumbent ISP scientists were paid more than them because they were white; 27 of 51 the former CPD scientists were minorities. Boyd v. Illinois State Police, 2004 U.S. App. Lexis 20576 (7th Cir. 2004).

Pay Disputes - Overtime Claims

     Federal court refuses to dismiss a FLSA claim of 53 hours raised by a NYPD lieutenant, who was required to stay at home as a result of an internal affairs investigation. Nonnenmann v. City of N.Y., 2004 U.S. Dist. Lexis 8966 (S.D.N.Y. 2004).

Psychological Counseling

     A therapist has a duty to warn a third person if he believes his patient poses a serious risk of grave bodily injury to another. In this case, a former police officer that was undergoing therapy carried out a homicidal threat. The court also noted that when a communication of the serious threat of physical violence is received by a therapist from a member of the patient's immediate family and is shared for the purpose of facilitating and furthering the patient's treatment, the fact that the family member is not technically a "patient" does not defeat the psychotherapist-patient privilege. Ewing v. Goldstein, 120 Cal.App.4th 807 (2d App. Dist. 2004).

Promotional Rights, Procedures and Performance Appraisals

Editor's Case Alert:

     State court overturns the process of "rounding" promotional scores because it defeats the "Rule of Three" and would artificially create a larger pool of eligible candidates. In a separate action in federal court, two sergeants win $385,000 in compensatory and $500,000 in punitive damages, for being passed over in retaliation for their bringing legal actions challenging the promotional process. Kelly v. City of New Haven, 2004 Conn. Super. Lexis 68 (New Haven 2004) and Kelly v. Wearning, #3:02-CV-1120 (D.Conn. 2004).

Race Discrimination - In General

     Fifth Circuit joins other circuits in holding that res judicata is a bar to relitigating an unsuccessful Title VII discrimination and retaliation lawsuit. Davis v. Johnson, 383 F.3d 309 (5th Cir. 2004).

Race: Affirmative Action & Quotas

     Seventh Circuit finds that the Chicago Fire Dept's use of two promotional lists (one of whites, and one for minorities) and the promotion of candidates from each list based on the percentage of each racial category who actually took the promotional test, was unlawful. Minorities with lower test scores were promoted over white applicants who had higher test scores. However, a jury verdict for back pay differential and damages for white plaintiffs was vacated because it was based on implausible estimates that all of the white lieutenants were certain to become captain. Biondo v. City of Chicago, 382 F.3d 680 (7th Cir. 2004).

Race and National Origin Discrimination

     Federal court approves a potential $20 million settlement for NYPD Latino and African American police officers. Court also allows $4.8 million in attorneys' fees. Latino Officers Assn. v. City of New York, #99-CV-9568 - and - Guardians Assn. of the Police Dept. of N.Y. v. City of New York, #99-CV-4960; settlement rptd. at 42 (2077) G.E.R.R. (BNA) 930 (S.D.N.Y. 2004).

Race and Sex Discrimination

     EEOC applies new management guidelines to promote diversity and de-emphasize raw statistics when measuring the federal workforce. EEOC Management Directive 715.

Reductions in Force

     Pennsylvania court blocks elimination of eight fire companies in Philadelphia. Management must bargain with the union on fiscal cuts that affect firefighter and public safety. Philadelphia Fire Fighters Union, L-22, v. City of Philadelphia, 2004 No.3755 (Cm.Pls. 2004).

Religious Discrimination

     Ninth Circuit upholds the termination of an evangelical Christian supervisor who violated an employer's policies when she criticized a subordinate's homosexuality and asked her to attend church. The subordinate transferred to another office because the supervisor's actions made her uncomfortable. Bodett v. CoxCom Inc., 366 F.3d 736 (9th Cir. 2004).

     Colorado federal jury finds that a Catholic business owner engaged in religious harassment when he required two subordinates, one an atheist and the other a Lutheran, to sign a prayer. One plaintiff was awarded $50,000 in compensatory damages, $45,000 in punitive damages, and $15,364 in back pay. Another plaintiff was awarded $50,000 in compensatory damages of $15,000 and punitive damages of $35,000. Defendant also was assessed attorneys' fees of $147,730 plus costs of $11,944. Millazzo v. Universal Traffic Services, 289 F.Supp.2d 1251 (D. Colo. 2003).

Retirement Rights and Benefits

     A public employee benefit plan using public funds is not subject to the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829. Gualandi v. Adams, 385 F.3d 236 (2d Cir. 2004).

Sexual Harassment - In General

     Although the plaintiff's initial claims for sexual harassment are time-barred, she is not precluded from attempting to show a causal link between the earlier harassment and more recent alleged acts of discrimination or retaliation. Porter v. California Dept. of Corrections, 383 F.3d 1018 (9th Cir. 2004).

Union and Associational Activity

     A union composed of sheriff department employees is not a "public entity" within meaning of Colorado Governmental Immunity Act, and is not entitled to governmental immunity from lawsuits. Podboy v. FOP L-27, 94 P.3d 1226 (2004).

Whistleblower Requirements and Protection

     Federal appeals court rejects an allegedly involuntary retirement claim from a whistleblower. She failed to exhaust her administrative remedies. Rhodes v. Office of Personnel Mgmt. (IRS), 385 F.3d 236 (Unpub. Fed. Cir. 2004).

Access to Courts/Legal Info

     Representation of prisoner by an appointed lawyer was sufficient to provide access to the courts, barring his claims for denial of his rights based of lack of materials from jail's law library. Bourdon v. Loughren, No. 03-0196, 386 F.3d 88 (2d Cir. 2004).

     The fact that a Tennessee inmate was incarcerated did not make him immune from the legal requirement that he offer expert witness affidavits opposing the defendants' motions for summary judgment in his medical malpractice lawsuit arising out of the death of his mother. Additionally, the fact that he was acting as his own lawyer and was incarcerated did not entitle him to the appointment of a "special master" to assist him in the discovery process. Prisoner also had no arguable right to appointed medical experts. "Courts should not allow pro se litigants, including incarcerated prisoners, to shift the burden of litigation to the courts or to their adversaries." The court also noted that "indigent civil litigants, unlike indigent criminal defendants, possess neither a constitution nor statutory right to court-appointed assistance." Hessmer v. Miranda, No. M2001-02056-COA-R3-CV, 138 S.W.3d 241 (Tenn. Ct. App. 2003).

     Iowa inmates were not third-party beneficiaries of a contract between the state Department of Corrections and the state Office of the Public Defender to supply legal services to prisoners. Additionally, two plaintiff prisoners failed to show that their constitutional rights were violated by the failure to provide them with more assistance in connection with court proceedings when one of them did not show that he had been denied any specific request, and the second was represented by a competent appointed lawyer. There was a genuine issue of material fact, however, as to whether a third prisoner's constitutional right to file a petition for a writ of certiorari in the U.S. Supreme Court was violated by the existence of an inadequate prison law library and the refusal of the public defender's contract attorney to assist him. Walters v. Kautzky, No. 02-1177, 680 N.W.2d 1 (Iowa 2004).

     Even if prison law librarian failed to timely complete prisoner's request for copies of certain documents, this did not show an unconstitutional denial of his right of access to the courts, when the documents in question would not have changed a federal magistrate's conclusion that certain defendants in the prisoner's civil rights lawsuit should be dismissed for lack of personal involvement in the incidents at issue, and that the history of his treatment for respiratory problems, including a mix-up in his prescriptions, showed nothing more than negligence at most, and was inadequate to show a constitutional violation. Rumsey v. Michigan Department of Corrections, No. 03-CV-72221-DT, 327 F. Supp. 2d 767 (E.D. Mich. 2004).

Attorneys' Fees

     Prisoner who prevailed on his claim that his right of access to the courts was unconstitutionally interfered with by denial of physical access to the prison's law library (allowing him only to request particular materials be brought to him in his cell by providing their precise citation) was entitled to an award of $99,981.43 in attorneys' fees and costs. Amount of attorneys' fees award in case were not limited by the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(d)(1)(A) when a settlement agreement provided that fees would be awarded under 42 U.S.C. Sec. 1988. LaPlante v. Pepe, #01-10186-NG, 307 F. Supp. 2d 219 (D. Mass. 2004).

Chemical Agents

     Prison employees did not use excessive force by spraying prisoner with pepper spray after he refused to exit a shower. The evidence showed that they applied the force used in a good-faith effort to maintain or restore discipline, and not maliciously to cause injury or pain. A videotape of the incident showed that the prisoner refused to obey several direct orders to leave the shower before the use of the pepper spray. Additionally, the use of the spray only caused discomfort, rather than any physical injury. Jennings v. Mitchell, No. 03-1922, 93 Fed. Appx. 723 (6th Cir. 2004).

Defenses: Service of Process

     Inmate acting as his own attorney was entitled to rely on service of his lawsuit on defendant prison officials by the U.S. Marshals Service when he adequately identified the defendants. Failure to achieve timely service on the defendants was therefore excused. Ruddock v. Reno, #01-179, 104 Fed. Appx. 204 (2nd Cir. 2004).

Defenses: Statute of Limitations

     Prisoner's civil lawsuit concerning alleged improper confiscation of legal papers from his cell was regarded as filed when he delivered it to prison officials for forwarding to the court, even though it was ultimately not actually received by the court within the applicable six-month statute of limitations period. Court also rules that lawsuits against a public entity or public employee are governed by the six-month specific statute of limitations rather than a longer statute of limitations applicable to private defendants. Moore v. Twomey, No. C044749, 16 Cal. Rptr. 3d 163 (Cal. App. 3d Dist. 2004).

Drugs and Drug Screening

     California prisoner's disciplinary punishment for possession of drugs was adequately supported by "some evidence" based solely on positive urinalysis test, even if it would have been insufficient under state law to support a criminal conviction. Loss of 120 days of good time credits, however, was excessive under state statute. In re Dikes, No. A104121 121 Cal. App. 4th 825;18 Cal. Rptr. 3d 9 (Cal. 1st App. Dist. 2004).

     Failure of a misbehavior report to use the term "cannabinoids" in describing the positive results of an accused prisoner's second urine drug screening test was insufficient as a basis to overturn a guilty determination in a prison disciplinary proceeding. The report was adequate in stating that the first drug test indicated the use of cannabinoids, and that the second test "also proved positive." Sabater v. Selsky, 772 N.Y.S.2d 733 (A.D. 3d Dept. 2004).

Emotional Distress

     Federal appeals court reverses $1.1 million in emotional distress damages against U.S. government by family of prisoner who died in federal detention center, based on trial court's failure to make explicit findings concerning the severity of the family's emotional distress. Trentadue v. U.S., No. 01-6444, 2004 U.S. App. Lexis 22156 (10th Cir. 2004).

Employee Injury/Death

     Manufacturer of smoke grenade had a duty under Minnesota state law to provide a warning of the danger of use of the product indoors. Court finds that there was a genuine issue of fact as to whether the sale of the manufacturer to a successor corporation made the successor corporation liable in a products liability lawsuit by a prison guard injured during a training exercise using the smoke grenade. Gamradt v. Federal Laboratories, #03-3658, 380 F.3d 416 (8th Cir. 2004).

Federal Tort Claims Act

     Surviving family of federal prisoner who died from cancer while incarcerated did not have standing under the Federal Tort Claims Act, 28 U.S.C. Sec. 2671 et seq., to pursue claims for emotional distress they allegedly suffered from his death. Gonzalez-Jiminez De Ruiz v. U.S., #03-10274, 378 F.3d 1229 (11th Cir. 2004).

     U.S. government could not be sued, under the Federal Tort Claims Act, 28 U.S.C. Sec. 2671 et seq., for negligent hiring, supervision, management, and training of an officer who allegedly raped a female jail inmate while assigned to transport her between correctional facilities. Because the underlying claim arose out of the alleged commission of intentional wrongdoing, the rape, and the FTCA only provides for lawsuits based on negligence, the U.S. government was immune from the plaintiff's claims. Martinez v. U.S., No. CV02-1164, 311 F. Supp. 2d 1274 (D.N.M. 2004).

Filing Fees

     Massachusetts inmate's lawsuit against prison superintendent and the Commissioner of Corrections was properly dismissed for his failure to pay a reduced filing fee of $25 ordered by the trial court. Despite the fact that his account had been frozen to pay his restitution, a state statute required the prison superintendent to disburse funds for such costs to the court for inmates claiming to be indigent, and the plaintiff failed to submit a written request to the superintendent for such payment. Cepulonis v. Superintendent, Mass. Corr., #03-P-1452, 813 N.E.2d 882 (Mass. App. Ct. 2004).

First Amendment

     Prisoner's allegations that officers confiscated and destroyed his property, threatened to transfer him, and assaulted him in retaliation for his filing of grievances were sufficient to state a claim for violation of his First Amendment rights. Appeals court rejects the "Catch 22" argument that no claim was stated because the prisoner was undeterred by these actions from continuing to assert his First Amendment rights. Rhodes v. Robinson, No. 03-15335 380 F.3d 1123 (9th Cir. 2004)

     Prisoner failed to show that his placement in administrative segregation after he finished a period of disciplinary segregation was in retaliation for his exercise of his First Amendment rights in complaining of prison officials' alleged racism. The stated reasons for placing the prisoner, who had previously been convicted of drug trafficking activities within the prison, in administrative segregation were within the scope of established policy. Hall-Bey v. Hanks, No. 02-4050, 93 Fed. Appx. 977 (7th Cir. 2004).

Medical Care

     Warden was not entitled to summary judgment in lawsuit alleging that he was deliberately indifferent to paraplegic prisoner's medical needs and "inhumane housing conditions," or on disability discrimination claims seeking injunctive relief. Disability discrimination claims seeking money damages rejected. Miller v. King, No. 02-13348, 384 F.3d 1248 (11th Cir. 2004)

     Prisoner who complained of chest pains and was later diagnosed as suffering from a hiatal hernia or gastroesophageal reflux disease and high blood pressure did not show that county jail officers acted with deliberate indifference to his serious medical needs by immediately treating him with over-the-counter antacids. There was no evidence that the prisoner suffered any lasting physical injury, and he was later given prescription heartburn medication. Stedman v. Dunn, #03-3261, 98 Fed. Appx. 769 (10th Cir. 2004).

     Estate of jail prisoner who contracted bacterial meningitis and died from it while incarcerated could pursue claim that conditions in the facility, including overcrowding, poor ventilation, and structural defects caused or contributed to the prisoner's death in violation of the Eighth Amendment. There were factual issues concerning whether the defendants failed to maintain sanitary conditions in the jail and whether jail medical personnel were deliberately indifferent to the prisoner's resulting medical condition. Brown v. Mitchell, No. CIV.A. 3:03CV820, 327 F. Supp. 2d 615 (E.D.Va. 2004).

     Prisoner failed to show that pharmacy, in allegedly filling his prescription with the wrong medication, was deliberately indifferent to his serious medical needs or conspired to interfere with his civil rights. The prisoner also failed to provide any evidence that the mistake was based on a racial motivation. Davila v. Secure Pharmacy Plus, No. 3:02CV652, 329 F. Supp. 2d 311 (D. Conn. 2004).

Parole

     Oregon Parole Board's retroactive application of an amended parole statute to extend the release date of a prisoner convicted of raping and sodomizing his daughter violated his constitutional right against retroactive enhancement of his punishment. Brown v. Palmateer, No. 03-35618, 379 F.3d 1089 (9th Cir. 2004).

Prison & Jail Conditions: General

     An eight-day deprivation of hygiene products was not serious enough to constitute a violation of the Eighth Amendment prohibition on cruel and unusual punishment. Dopp v. W. Dist. of Okla., #04-6065, 105 Fed. Appx. 259 (10th Cir. 2004).

Prison Litigation Reform Act: Exhaustion of Remedies

     Man held under Illinois sexually dangerous persons statute, under which criminal proceedings are stayed for the purpose of treatment for mental illness was a pretrial detainee properly classified as a "prisoner" for purposes of the exhaustion of remedies requirement and "three strikes" rule of the Prison Litigation Reform Act. His lawsuit asserting a claim for alleged inadequate access to prison law library was therefore properly dismissed for failure to exhaust available administrative remedies. Kalinowski v. Bond, No. 02-3273, 358 F.3d 978 (7th Cir.), cert, denied, 124 S. Ct. 2843 (2004).

     Defendants in prisoner's federal civil rights lawsuit were entitled to summary judgment when he failed to make specific allegations from which the trial court could determine which, if any, of his claims he had exhausted available administrative remedies on, as required by 42 U.S.C. Sec. 1997e, and he failed to identify the prison employees named as defendants in his lawsuit in his grievances and failed to assert grievances about any specific action allegedly performed by them. Williams-El v. McLemore, No. CIV. 98-74042, 327 F. Supp. 2d 784 (E.D. Mich. 2004).

     When the plaintiff prisoner showed that he had exhausted available administrative remedies as to some claims in his lawsuit, but not as to others, the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e, did not require the dismissal of his lawsuit in its entirety. Prisoner stated an arguable due process claim by alleging that he was not given any outside exercise for a period of time and was prevented from showering for weeks during his disciplinary confinement in a special housing unit when the only evidence supporting the discipline was an accusation from a confidential informant that he had been selling drugs. Ortiz v. McBride, No. 02-0088, 380 F.3d 649 (2nd Cir. 2004).

     Prisoner, who received favorable rulings in his prison grievances concerning alleged inadequate medical treatment, and specifically, special orthopedic footwear provided to him after foot surgery, sufficiently exhausted his available administrative remedies when the favorable rulings allegedly failed to result in any relief. Appeals court states that a prisoner who does not receive promised relief under such circumstances is not required, under the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e, to file yet another grievance concerning that. Abney v. McGinnis, #02-0241, 380 F.3d 663 (2nd Cir. 2004).

Prisoner Assault: By Officers

     Illinois prisoner awarded $28,000 in compensatory damages and $22,000 in punitive damages on his claim that he was beaten by correctional officers who allegedly were angry that he was taking too much time to pack his property prior to a transfer to another facility. Mickey v. Dargis, #99C-7281, U.S. Dist. Ct., N.D. Illinois, reported in Chicago Daily Law Bulletin, p. 25 (October 1, 2004).

Prisoner Discipline

     Appeals court orders further proceedings on prisoner's claim that he was falsely charged and disciplined for misconduct in retaliation for prior grievances and lawsuits against a correctional officer. Summary judgment for defendant officer was improper without considering another inmate's affidavit concerning officer's alleged retaliatory intent, and the issue of proximity in time between prisoner's exercise of his First Amendment rights and the alleged retaliatory action. Muhammed v. Close, #02-1043, 379 F.3d 413 (6th Cir. 2004).

     Illinois prisoner was entitled to a new hearing in his prison disciplinary case when Department of Corrections refused to interview witnesses for his defense in response to his request. Gilchrist v. Synder, #4-03-0629, 814 N.E.2d 147 (Ill. App. 4th Dist. 2004)

     Misbehavior report based on signed statements gathered from witnesses to alleged assault and fighting was sufficient to support disciplinary action against accused prisoner. Appellate court rejects the argument that the author of the report had to witness the fight himself in order for the report to be relied on in the hearing. Howard v. Goord, 779 N.Y.S.2d 871 (A.D. 3d Dept. 2004).

     Prisoner's disciplinary conviction for making threats and interfering with an employee was adequately supported by correctional officer's statement that he had screamed racial epithets, profanity, and threats at her when she told him that she could not stay after the prisoner said that he was "not finished" with her. The differing versions of the incident presented by the prisoner and others "presented a credibility issue" that the hearing officer was free to resolve against the prisoner. Goncalves v. Donnelly, 779 N.Y.S. 842 (A.D. 3d Dept. 2004).

Prisoner Injury/Death

     Jail personnel were not deliberately indifferent to a substantial risk of injury or death for pretrial detainee subsequently found dead in her cell either from self-hanging or from strangulation by another person. There were no prior signs that the detainee, arrested for allegedly operating a vehicle under the influence of drugs, was suicidal and there was no information from which they would have known that she was at risk of harm by someone else, and no evidence that the jailers themselves murdered her. Stiltner v. Crouse, No. 1:03 CV 00078, 327 F. Supp. 2d 667 (W.D.Va. 2004).

Prisoner Suicide

     Sheriff was not entitled to qualified immunity to claim that he was deliberately indifferent in his training and supervision of personnel in dealing with the risk of suicide in a county jail where two prior suicides had occurred. Detainee who threatened suicide was allegedly placed in an isolation cell and given a blanket with which he hung himself a half hour after making the threat. Wever v. Lincoln County, No. 03-3633, 2004 U.S. App. Lexis 22974 (8th Cir. 2004).

Prisoner Transfer

     Prisoners who were convicted and sentenced in Hawaii but then incarcerated in Oklahoma had no due process right to be confined in Hawaii. Federal appeals court also rejects prisoners' argument that their transfer to a prison "on the mainland" constituted "banishment" from Hawaii. Overturf v. Massie, No. 04-6037, 385 F.3d 1276 (10th Cir. 2004)

Sexual Assault

     Federal appeals court rules that if prison officials and employees actually declined to protect homosexual prisoner from repeated prison rape because of his sexual orientation, that would violate clearly established law, so that qualified immunity on that claim should be denied. Race discrimination claim dismissed for failure to exhaust available administrative remedies. Johnson v. Johnson, No. 03-10455 385 F.3d 503 (5th Cir. 2004).

Work/Education Programs

     Private industry was not entitled to any relief against federal prison industry for alleged unauthorized expansion of production of office furniture. Plaintiffs also failed to show that these actions constituted a "taking" of its property right to a certain market share of federal purchases of such furniture. Coalition for Gov't Procurement v. Fed. Prison Indus., Inc., No. 01-2231, 365 F.3d 435 (6th Cir. 2004).