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

Assault and Battery: Handcuffs

     Arrestee's claim that his wrists were "sore," although uninjured, following his allegedly tight handcuffing, was not objectively sufficient for a federal civil rights claim for excessive use of force. Wilder v. Village of Amityville, 288 F. Supp. 2d 341 (E.D.N.Y. 2003).

     Claim that deputy sheriff "violently handcuffed" arrestee, causing physical injury, and that there was no justification for his action, was sufficient to state a claim for excessive use of force. Mladek v. Day, 293 F. Supp. 3d 1297 (M.D. Ga. 2003).

Assault and Battery: Physical

     Arrestee who claimed officers had used excessive force in arresting him following a traffic stop was not entitled to a reversal in his appeal of a jury verdict in favor of the defendant officers when he failed to point to any evidentiary or other legal rulings by the trial court that might have caused a reversible error. McIntosh v. Green, No. 03-6038, 82 Fed. Appx. 654 (10th Cir. 2003).

Attorneys' Fees: For Plaintiff

     Plaintiff who received $25,000 settlement from city on excessive force claim was a prevailing party entitled to an award of attorneys' fees after trial court incorporated settlement agreement into its dismissal order, but, under terms of settlement agreement, defendant city was entitled to an evidentiary hearing on the merits of the plaintiff's underlying claims prior to the determination of a reasonable amount of an attorneys' fee award. Smalbein v. City of Daytona Beach, No. 03-12113, 353 F.3d 901 (11th Cir. 2003).

     Arrestee awarded $5,000 on excessive force claim, $5,200 for severe emotional distress, and $25,000 in punitive damages, as well as pre-judgment interest of $31,031 was a prevailing party in his lawsuit against arresting officer, and therefore, rejection of his motion for attorneys' fees was improper in the absence of any special circumstances justifying a complete denial of such fees. Further proceedings ordered by federal appeals court. Poy v. Boutselis, No. 03-1201, 352 F.3d 479 (1st Cir. 2003).

Defenses: Notice of Claims

     New York state notice of claims statute, while applying to state law claims against police officers and police chief, did not apply to federal civil rights claims, and therefore the alleged failure to comply with the statute did not bar the plaintiff's federal civil rights claims. Ahern v. Neve, 285 F. Supp. 2d 317 (E.D.N.Y. 2003).

Defenses: Official Immunity

     Police officers' decision to make a warrantless arrest of an elementary school principal for allegedly obstructing an officer by hindering an arrest of two students for fighting was a discretionary action under Georgia law, entitling them to official immunity from liability for false arrest, false imprisonment, or malicious prosecution, so long as the plaintiff could produce no evidence that her arrest had been the result of malice or an intent to injure her by the officers. Reed v. DeKalb County, No. A03A1083, 589 S.E.2d 584 (Ga. App. 2003).

Defenses: Statute of Limitations

     Statute of limitations barred defamation claims brought by grand jury witness against deputy district attorney and county based on statements made to author of book allegedly falsely describing her as a "felony probationer." The time within which to bring the defamation lawsuit started to run, at the latest, when the book was published and distributed to the public, and was not extended based on the fact that the plaintiff allegedly did not discover that the material was in the book until she subsequently read it. Shively v. Bozanich, No. S094467, 7 Cal. Rptr. 3d 576, 80 P.3d 676 (Cal. 2003).

Dogs

     Police dog's biting of bystander rather than pursued car theft suspect was not the result of any municipal policy or custom. No liability for city for alleged violation of bystander's federal civil rights. Roddy v. Canine Officer, 293 F. Supp. 2d 906 (S.D. Ind. 2003).

Expert Witnesses

     Trial court was not required to make a detailed analysis of the reliability of psychiatric expert testimony, and it could take judicial notice of the admissibility of expert testimony in "well-known areas" of accepted expertise, such as psychiatry. Psychiatrist's testimony, therefore, that an arrestee falsified or exaggerated some of her symptoms stemming from force used during her arrest was admissible. Judgment in favor of defendant city and officers upheld. Samaniego v. City of Kodiak, No. S-10378, 80 P.3d 216 (Alaska 2003).

False Arrest/Imprisonment: Warrant

     FBI agent was not required to obtain a search warrant for a residence in addition to an arrest warrant for a suspect reasonably believed to be an occupant in order to enter a dwelling. Tyson v. Willauer, 289 F. Supp. 2d 190 (D. Conn. 2003).

Family Relationships

     Parents and siblings of adult allegedly killed by bullet from a pistol that had been in the possession of a police officer could assert a claim under New Mexico law for loss of consortium, and could recover damages if they could demonstrate that their relationships with the decedent were sufficiently close, financially or socially, so that it was foreseeable that an injury to the decedent would also harm them. Fitzjerrell v. City of Gallup, #22,119, 79 P.3d 836 (N.M. App. 2003).

     Father of adult son, in the absence of evidence that son was not emancipated, could not recover damages for violation of his parental liberty interest in son's companionship in lawsuit against city and police officers who allegedly shot and killed son. Federal appeals court, overturning prior lower court decisions in the Third Circuit, holds that the due process clause of the Fourteenth Amendment does not extent to a parent's interest in the companionship of an independent adult child. McCurdy v. Dodd, No. 02-2708, 352 F.3d 820 (3rd Cir. 2003).

Firearms Related: Intentional Use

     Officer was not entitled to qualified immunity on claim that he shot a mentally ill man in the stomach as he pointed a butcher knife towards himself with suicidal intentions, as deadly force is only permissible when a suspect poses an imminent threat to an officer or to others. Buchanan v. City of Milwaukee, 290 F. Supp. 2d 954 (E.D. Wis. 2003).

     Officers had a reasonable belief that a man posed an imminent risk to their lives and the lives of commuters when he boarded a train dressed in army fatigues with a mask over his nose while carrying a wooden staff and military sword. Officers did not use excessive force in spraying him with pepper spray and shooting him without killing him after he refused to obey their orders to put the staff down and leave the train. Stevens v. Metropolitan Transportation Authority Police Department, 293 F. Supp. 2d 415 (S.D.N.Y. 2003).

Governmental Liability: Policy/Custom

     An African-American lesbian failed to state a claim against city based on alleged conspiracy by police officers to intimidate her into refraining from filing a cross-complaint against her former lover in a criminal trespass case. She claimed that a police detective she spoke to made offensive remarks about lesbians and subsequently called her at home to ask her out on a date. There was no showing that the alleged conduct, even if it took place, happened as the result of any municipal policy or custom discriminating against her on the basis of her gender or sexual orientation. Smith v. City of New York, 290 F. Supp. 2d 317 (E.D.N.Y. 2003).

Insurance

     Insurance policy issued to city for public officials and employment practices liability did not provide coverage for claims that city and police officers intentionally violated federally protected civil rights of African-American citizens. Coverage was barred under both "deliberate act" exclusion and "law enforcement" exclusion stated in the terms of the policy. Clarendon National Insurance Company v. City of York, Pennsylvania, 290 F. Supp. 2d 500 (M.D. Pa. 2003).

     County's purchase of liability insurance on vehicle used by sheriff's deputy in high-speed chase waived any defense of sovereign immunity on claims asserted by motorist for injuries to herself and her daughter when struck by vehicle deputy was pursuing. Summary judgment was still properly entered for deputy, however, as plaintiff failed to show that deputy acted in reckless disregard of proper procedure during the pursuit. Standard v. Hobbs, 589 S.E.2d 634 (Ga. App. 2003).

Malicious Prosecution

     Police officers' alleged withholding from prosecutors of the fact that the arrestee had provided his identification to them when they requested it was insufficient to constitute the suppression of exculpatory evidence. Arrestee himself had that information. Further, this fact was only related to the issue of whether the arrest was proper and was irrelevant to the arrestee's conviction on extortion, racketeering, and firearms charges, and therefore irrelevant for purposes of his malicious prosecution claim. Summary judgment entered for defendant officers. Ienco v. Angarone, 291 F. Supp. 2d 755 (N.D. Ill. 2003).

Negligence: Vehicle Related

     Introduction into evidence, in lawsuit against sheriff's department for injuries arising out of collision of his squad car with another motorist's vehicle, of motorist's conviction for failing to yield to an emergency vehicle was prejudicial, requiring a new trial. Injured motorist, despite violating a motor vehicle safety statute, still might have acted as a reasonably prudent person would act under the circumstances, and the introduction of evidence that another court had already decided that the plaintiff violated the statute "usurped" the jury's function in the personal injury lawsuit. Lepucki v. Lake County Sheriff's Department, No. 45A03-0212-CV-439, 801 N.E.2d 636 (Ind. App. 2003).

Police Plaintiff: Defamation

     Deputy sheriff was properly awarded $225,000 in damages against newspaper, its editor/publisher, and a columnist, based on articles which called him a "murderer" and accused him of beating a handcuffed arrestee to death with a flashlight. Georgia appeals court finds that statements were published with knowledge that they were false, or in reckless disregard of the truth. Lake Park Post, Inc. v. Farmer, #A03A0841, 590 S.E.2d 254 (Ga. App. 2003).

Police Plaintiff: Premises Liability

     Officer who was injured from a slip and fall allegedly caused by cracked and unstable marble step in building's common stairwell was properly awarded $400,000 in damages against the building owner by a jury. Evidence showed that the defect in the stair had been there for an "appreciable length of time" prior to the injury, demonstrating "culpable negligence" by the building owner. O'Neill v. Julav Realty, Ltd., 769 N.Y.S.2d 223 (A.D. 1st Dept. 2003).

Police Plaintiff: Vehicle Related

     Police officer injured by northbound vehicle when he attempted to make a U-turn to pursue a southbound vehicle had no claim for his injuries on the basis of negligence against the driver of either the southbound or northbound vehicles. Northbound vehicle's driver did not act negligently in attempting to proceed past the officer's car before he made a U-turn, and the alleged reckless driving of the southbound motorist was not the proximate cause of the officer's injuries. Officer might, however, be able to make out a claim against the southbound vehicle's driver on the basis of his reckless driving for which he was convicted of a statutory violation. Under New York General Municipal Law Sec. 205-e, proof of such a violation, if it directly or indirectly caused harm to the officer might be the basis of liability, a standard of proof less than common-law negligence. Aldrich v. Sampier, 769 N.Y.S.2d 338 (A.D. 3d Dept. 2003).

Privacy

     Motorist asserted a claim for violation of the Driver's Privacy Protection Act ("DPPA"), 18 U.S.C. § 2721, after police officer who pulled her over obtained private information from vehicle licensing records concerning her and her husband, allegedly without a permissible purpose for doing so, since he had no probable cause or reasonable suspicion to "run the plate" of the vehicle. Luparello v. Incorporated Village of Garden City, 290 F. Supp. 2d 341 (E.D.N.Y. 2003).

Positional Asphyxia

     County was properly held liable for death of arrestee subjected to "total appendage restraint procedure," when expert testimony indicated that he died of positional asphyxia, but jury's assessment of damages at $2 million was excessive when decedent had limited future financial prospects, and probably would have been sent back to prison, had he survived, for firing a gun at passing motorists in a busy intersection. Nelson v. County of Los Angeles, #B161431, 113 Cal. App. 4th 783, 6 Cal. Rptr. 3d 650 (Cal. App. 2003).

Procedural: Class Action

     Federal trial court declines to certify class action on behalf of former arrestees in homicide cases who were detained, never charged, and then released. In case claiming that city has a long-standing policy of making arrests without probable cause in homicide cases, court finds that proposed class did not meet the requirement that questions of law or fact common to members of the class predominate over issues affecting only individual members or that a class action is a superior method for the fair and efficient resolving of the claims. Abby v. City of Detroit, 218 F.R.D. 544 (E.D. Mich. 2003).

Procedural: Evidence

     Plaintiff who was shot by police officer could not withhold his medical records in a federal civil rights lawsuit against the city and officer on the basis of doctor-patient privilege or medical records privilege, nor could he assert the right of privacy based on a provision of the California state constitution to prevent the disclosure of those records. The plaintiff, who claimed that he was shot in the back because the officer was in poor physical condition and was therefore unable to pursue him on foot, was also entitled in the case to the disclosure of the officer's medical records, including those in a workers' compensation file. Hutton v. City of Martinez, 219 F.R.D. 164 (N.D. Cal. 2003).

Public Protection: 911 Phone Systems

EDITOR'S CASE ALERT:

     California Supreme Court rules that there is no liability for a public entity or its employees based on the alleged delay or failure to dispatch emergency personnel and equipment in response to a 911 call for assistance. Exception under statute for actions taken in bad faith or with gross negligence do not impose a general duty to provide assistance, but rather define the level of negligence needed to support liability once aid is actually rendered. Eastburn v. Regional Fire Protection Authority, No. S107792, 7 Cal. Rptr. 3d 552, 80 P.3d 656 (Cal. 2003).

Public Protection: Crime Victims

     City and police officials had no duty to protect apartment complex security guard against alleged murder by a man he used pepper spray against while on the job, despite an alleged threat to kill the security guard when the guard had him arrested. Dependents of Reid v. City of Canton, No. 2002-CA-00721-COA, 858 So.2d 163 (Miss. App. 2003).

Racial Discrimination

     African-American plaintiff's claim that officers discriminated against her by not investigating threats against her or arresting the person who made the threats because of her race and her prior lawsuit against the city was sufficient to state a claim for violation of the right to equal protection of law. Farrar v. City of Chicago, 291 F. Supp. 2d 747 (N.D. Ill. 2003).

Search and Seizure: Home/Business

     Homeowner failed to prove her claims that officers executing a search warrant at her residence caused unreasonable property damage or planted evidence of drugs there. Heft v. Moore, No. 02-4110, 351 F. 3d 278 (7th Cir. 2003).

Search and Seizure: Person

     City ordinance which allowed police officers to subject persons under 21 years of age to a warrantless breath test for alcohol use upon reasonable suspicion was unconstitutional and not justified by a "special needs" exception to the warrant requirement or exigent circumstances. Spencer v. City of Bay City, 292 F. Supp. 2d 932 (E.D. Mich. 2003).

     Federal trial court erred in dismissing convicted plaintiff's federal civil rights lawsuit asserting claims for alleged unreasonable searches and seizures prior to, during, and subsequent to his arrest. A finding that the arrestee's Fourth Amendment rights were violated did not necessarily imply the invalidity of the convictions. Hughes v. Lott, #02-11508, 350 F.3d 1157 (11th Cir. 2003).

Search and Seizure: Vehicle

     Motorist convicted of cocaine trafficking on the basis of evidence uncovered during search of his vehicle following a stop for following too closely behind another vehicle could not pursue a federal civil rights claim seeking money damages for alleged unlawful search and seizure when his conviction had not been set aside, and a damage award would necessarily imply the invalidity of his conviction. Ballenger v. Owens, #02-7394, 352 F.3d 842 (4th Cir. 2003).

     Police had probable cause to conduct a warrantless search of the trunk of a city-owned motor vehicle being used by a fire department employee based on information obtained by a confidential informant that the employee had unlawfully been collecting absentee ballots at a house party and had placed a bag of them in the trunk of his city vehicle. Luellen v. City of East Chicago, #02-3188, 350 F.3d 604 (7th Cir. 2003).

Strip Searches

     Strip searches of patrons during execution of search warrant for drug transactions at nightclub were unlawful when carried out without individualized reasonable suspicion of possession of drugs or probable cause, and sheriff was not entitled to qualified immunity for conducting the searches. Federal appeals court upholds award of $100 in nominal damages and $15,000 in punitive damages for each plaintiff. Williams v. Kaufman County, No. 02-10500, 352 F.3d 994 (5th Cir. 2003).

Wiretapping & Video Surveillance

EDITOR'S CASE ALERT:

     Federal court rules that "hand off" procedure under which evidence gathered by one investigating unit under wiretap orders was "handed off" to another investigating unit without disclosing the wiretap as a source of the evidence, resulting in prosecutions in which the existence of the wiretaps was never disclosed, was "per se unconstitutional," but that individual police and prosecution defendants who participated in the practice were entitled to qualified immunity from money damages, since the unconstitutionality of this practice was not previously established. Whitaker v. Garcetti, 291 F. Supp. 2d 1132 (C.D. Cal. 2003).

Arbitration Procedures

     Appeals court rejects a second demand for arbitration, after the employer failed to advance the costs for the first arbitration hearing. Sink v. Aden, #02-35323, 2003 U.S. App. Lexis 24773 (9th Cir. 2003).

     Although courts should not modify or set aside an arbitration award, absent a defect, the issue of whether a party is in compliance with an arbitration award is properly decided by a court. An appellate panel upholds a trial court ruling that a sheriff's modified staffing of the jail, during the graveyard shift, complied with the award. Ohio Patrolmen's Benev. Assn. v. Cuyahoga Co., #82238, 2003 Ohio 4349 (Ohio App.8th Dist. 2003).

Bargaining Unit Determinations

     Illinois appellate court upholds a Labor Board determination that a sheriff's correctional sergeants were not supervisors and constitutes an acceptable bargaining unit. County of Vermilion v. Illinois Labor Rel. Bd., #4-02-0928, 2003 Ill. App. Lexis 1529 (4th App. Dist. 2003).

Civil Liability

     The Illinois legislature has restored the right of state workers to sue for violation of the ADA, ADEA, FMLA, FLSA and the 1964 Civil Rights Act. It waives state immunity, under the 11th Amendment, to employment-based federal civil rights statutes. 2003 Amendments to the State Lawsuit Immunity Act, 745 ILCS 5/1.5.

Collective Bargaining - Duty to Bargain

     Where there was no established past practice and the bargaining agreement was silent, management could unilaterally increase the number of firefighters used as "floaters." Anderson Twp. and A.T. Prof F/F, IAFF L-3111, FMCS #03/02863, 118 LA (BNA) 1801 (Goldberg, 2003).

Collective Bargaining - In General

     Federal Labor Relations Authority upholds a management decision to deny bargaining rights to certain Transportation Security Administration workers. DHS Transportation Security Admin. and AFGE, #WA-RP-03-0023, 59 FLRA No. 63 (FLRA 2003).

Conflicts of Interest

     California appellate court overturns the firing of an officer because the attorney who prosecuted the charges also had served as a legal advisor to the Personnel Board.". Qunitero v. City of Santa Ana, #G031275, 2003 Cal. App. Lexis 1912 (4th Dist. 2003).

Contagious & Infectious Diseases

     Federal judge in Washington enjoins the DoD from inoculating service personnel for anthrax, without their consent or a Presidential proclamation of exigent circumstances. Doe #1 v. Rumsfeld, #03-707, 2003 U.S. Dist. Lexis 22990 (D.D.C. 2003).

     Under the Smallpox Emergency Personnel Protection Act of 2003, P.L. 108-20, 117 Stat. 638, the Health and Human Services Dept. has issued an interim final rule implementing a $42 million program to provide medical and financial benefits to persons suffering health problems from smallpox vaccinations. The program provides for a $262,100 lump-sum payment to families of emergency response and other workers killed by the vaccine. Smallpox Vaccine Injury Compensation Program, 68 Fed. Reg. 70079 (12/16/03).

Criminal Liability

EDITOR'S CASE ALERT:

     Ohio appeals court affirms the conviction of a police chief that inadvertently shot the windshield of his car, and in attempt to cover it up, he faked a story that an escaped man had shot the windshield; he also forged employee payroll checks and kept a portion of the funds for himself. State of Ohio v. Sommer, #02COA046, 797 N.E.2d 559 (Ohio App. 2003).

Disciplinary Evidence- Admissibility/In General

     Supreme Court declines to review a 2-to-1 appellate court holding that that a black male DoD employee, who was fired for poor performance, could not establish satisfactory job performance through the testimony of his coworkers. King v. Rumsfeld, #02-1313, 328 F.3d 145, 2003 U.S. App. Lexis 8694 (4th Cir. 2003); cert den. 2003 U.S. Lexis 9002 (2003).

Disciplinary Interviews & Compelled Reports - Untruthfulness

     A fire captain with 18 years of service was fired for failing to cooperate truthfully in an I-A investigation of a "blue flu" sickout in 2000, when 141 out of 194 firefighters called in sick during a four days. An appellate court found that the decision to terminate him was not made in good faith or with just cause, even though he gave evasive answers during an I-A interview to questions regarding a telephone conversation. Lacombe v. Lafayette City-Parish Consol. Govt., #03-483, 2003 La. App. Lexis 3122 (La.App.3rd Cir., 2003).

Disciplinary Punishment - In General

     Appeals court rejects claims of retaliation, national origin and age discrimination. Postal service properly "concluded that reinstating an employee who had been terminated because of an arrest for selling drugs inside a post office facility was not in the best interest of USPS even though the criminal charges were subsequently dismissed following a mistrial." Sarullo v. U.S. Postal Service, #01-4203, 2003 U.S. App. Lexis 25847 (3rd Cir. 2003).

Discovery, Publicity and Media Rights

     The Defense Dept's Inspector General will no longer post routine audits on its website. Reports must now be "specifically approved for public release." "Inspector General Data Posted on the Inspector General Web Site," staff memo dated 5 Dec. 2003.

E-Mail/Internet - Legal Issues

EDITOR'S CASE ALERT:

     Third Circuit upholds the right of an employer to access an employee's e-mails stored on the employer's mail server. Fraser v. Nationwide Mut. Insur., #01-2921, 2003 U.S. App. Lexis 24856 (3rd Cir.).

Employee Searches

     Federal judge in Pittsburgh orders the warden of the county jail to stop requiring workers to take off their socks during random searches, but allowed jail management to require employees to remove their shoes and belts. Allegheny County Prison Employees Independent Union v. Co. of Allegheny, #03-CV-1075 (Unpub. W.D.Pa. 2003).

Handicap Laws / Abilities Discrimination - Light Duty

     Appeals court rejects an ADA claim that a police officer, who had frequent absences arising from prior injuries, was "disabled" under federal or state law. "The inability to perform a single, particular job does not constitute a substantial limitation on the major life activity of working." There were no permanent light duty positions, and the city lawfully terminated the officer for medical reasons. Epps v. City of Pine Lawn, #02-3064, 2003 U.S. App. Lexis 25741(8th Cir. 2003).

Heart Problems

     Although a former police officer was able to show that he suffered job-stress induced coronary artery disease, he failed to prove this was "peculiar to" his former occupation. In Connecticut, benefits are limited to a "disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment. Malchik v. Div. of Criminal Justice, #SC17016, 2003 Conn. Lexis 483 (Conn. 2003).

     The President signed legislation creating a presumption that public safety officers who suffer a fatal heart attack or stroke died in the line of duty for purposes of federal survivor benefits. The Public Safety Officers' Benefit Act death payment for 2003 was $267,494, and is indexed annually. Hometown Heroes Survivors Benefits Act of 2003, 42 U.S. Code §3796(k), Pub. L. No. 108-182.

Homosexual & Transgendered Employee Rights

     Michigan's governor has issued an order banning discrimination against homosexuals in state employment; it is the 10th state to take such action. Additionally, Michigan is the only state to protect overweight workers. Executive Directive No. 2003-24.

Inefficiency, Performance Standards, Negligence and Incompetence

     Arbitrator upholds the demotion of a technician who had substandard performance; the demotion was non-disciplinary and management has a right to return an employee to a position that he previously had performed in a satisfactory manner. Philotechnics and Laborers L-155, 118 LA (BNA) 1725 (Corbett, 2003).

Injuries to Employees

     New York's highest court has ruled in three consolidated cases that police and law enforcement personnel do not have to prove that their duties involved a "heightened risk" to receive on-the-job injury benefits. "If the Legislature had intended to restrict ... eligibility to employees injured when performing specialized tasks, it easily could have and surely would have written the statute to say so." Theroux v. Reilly; Wagman v. Kapica; James v. Yates Sheriff's Dep't., No. 139-141, 2003 N.Y. Lexis 4029 (2003).

National Origin Discrimination

     Court dismisses a discrimination complaint filed by a Russian immigrant who was fired from his job as a criminal investigator. His supervisor may be unpleasant, unfair, and arbitrary, but that does not prove discrimination. Neishlos v. New York City, #00Civ.914, 2003 U.S. Dist. Lexis 19554 (S.D.N.Y. 2003).

Promotional Rights, Procedures and Performance Appraisals

     The decision to not fill or to abolish a position must be made in good faith and not motivated by a political objective. Unless required by its charter to have any particular number of police lieutenants, whether a vacancy must be filled rests in the discretion of the city council. A Civil Service Commission lacks the authority to declare and fill a vacancy. Pugh v. Civil Serv. Cmsn. for Beckley, #31232, 2003 W. Va. Lexis 158 (2003).

Race Discrimination - In General

     A divided Fourth Circuit rejects a lawsuit claiming that a police chief, in investigating claims of racial bias in the agency, wrongfully interviewed only black members of the department. Supreme Court declines review. Williams v. Hansen, #02-1573, 326 F.3d 569 (4th Cir. 2003); cert. den. #03-381 (2003).

     Federal appeals court rejects a claim that a white supervisor can sue for race discrimination and retaliation because he reprimanded a black subordinate, and allegedly suffered harassment by black superiors. The harassment was not severe, and he received a promotion. Supreme Court declines review. Twisdale v. Snow, #02-1736, 325 F.3d 950; cert. den., 2003 U.S. Lexis 9207 (2003).

Releases & Waivers

     Federal appeals court dismisses a disability discrimination action brought by the EEOC, because the employee had settled his injury claim with the employer, releasing "any and all cases in any and all forms or forums at any stage of appeal or processing." Nicklin v. Henderson, #02-5183, 2003 U.S. App. Lexis 25738 (6th Cir.).

Resignations

     Arbitrator finds that a "resign or be fired or prosecuted" ultimatum was a constructive discharge, and the officer's prompt withdrawal of his resignation was binding on the agency. Lucas Co. Sheriff and Ohio PBA, 118 LA (BNA) 1673, FMCS #03/01146 (Weisheit, 2003).

Sex Discrimination - In General

     A federal court in Pennsylvania has denied summary judgment to a city that was sued by a woman sergeant that was passed over for lieutenant. The city manager had cited her lack of experience as a detective, although the chief allegedly denied her that assignment because of she was married with children. Shesko v. City of Coatesville, #01-CV-6780, 2003 U.S. Dist. Lexis 21579 (Unpub. E.D. Pa. 2003).

Sexual Harassment - In General

     Arbitrator upholds a 10-day suspension of a male county employee who asked a woman coworker, "When are you going to let me squeeze the Charmin?" County of Sacramento and United Public Employees L-1, 118 LA (BNA) 1702 (Bogue, 2003).

     Federal appeals court holds that a dispatcher trainee stated a claim for harassment because of her gender. Although an instructor's misconduct was pervasive and hostile, the class had both a male and female student. He also treated her differently, and the city could not assure her that she would not be retaliated against. Her termination, however, was for just cause and was not related to her harassment complaint. Thomas v. Town of Hammonton, #02-3983, 2003 U.S. App. Lexis 24431 (3d Cir.2003).

Whistleblower Requirements and Protection

EDITOR'S CASE ALERT:

     LAPD pays $6 million to settle nine federal lawsuits and two state claims brought by nine current and former officers, who alleged retaliation after they reported or testified about misconduct. Jones v. City of Los Angeles, #00-CV-11505 (C.D. Cal., settled 2003).

     Under the federal and Maryland Whistleblower Acts, an employee's complaint about the behavior of a supervisor is not a protected disclosure. Thus, a state corrections employee has no cause of action based on alleged retaliation for filing a grievance against the warden. The retaliation complaint lacked a "public interest" component. Montgomery v. Eastern Correctional Institution, #2003-13, 835 A.2d 169 (2003).

Access to Courts/Legal Info

     Ohio Supreme Court deputy clerks' application of court rules to prisoner's attempted filing of an untimely memorandum in his pending appeal did not violate his right to equal protection of law, since the rules applied equally to all those seeking to pursue appeals before the court. State Ex Rel. Fuller v. Mengel, 2003 Ohio 6448, 800 N.E.2d 25 (Ohio 2003).

Defenses: Statute of Limitations

     Further proceedings were required to determine whether claim by heirs of juvenile detainee who died while participating in exercises while incarcerated was barred by a statute of limitations or whether the statute of limitations for filing a federal civil rights claim was extended by their timely filing of a state law claim that arose out of the same factual circumstances. Lucchesi v. Bar-O Boys Ranch, No. 02-17079, 353 F.3d 691 (9th Cir. 2003).

Disability Discrimination: Prisoners

     Prisoner's heart condition of Prinzmetal's angina did not constitute a "disability" under the Americans with Disabilities Act, ADA, 42 U.S.C. Sec. 12101 et seq. since it did not normally limit his capacity to work. Denial of prisoner's request to transfer to prison work camp, which would allow him to earn reductions in his sentence at a faster rate, based on camp's inability to provide him with adequate medical care for his condition, did not constitute disability discrimination. Charbonneau v. Gorczyk, No. 01-312, 838 A.2d 117 (Vt. 2003).

DNA Tests

     Pennsylvania statute authorizing Department of Corrections to obtain a DNA sample from an inmate while they were incarcerated for enumerated offenses, including robbery and burglary, did not entitle it to do so when prisoner's sentence for robbery and burglary had expired, and while he was serving a sentence for a different offense. Smith v. Department of Corrections, 837 A.2d 652 (Pa. Cmwlth. 2003).

First Amendment

EDITOR'S CASE ALERT:

     Federal appeals court reinstates prisoner's claim that he was determined to be a prison gang member in retaliation for his jailhouse lawyering activity in pursuing grievances on behalf of himself and other inmates, in violation of his First Amendment rights. Evidence used had been found insufficient during two prior investigations of suspected gang affiliation. Bruce v. Ylst, #01-17527, 351 F.3d 1283 (9th Cir. 2003).

     Wisconsin prisoner failed to show that transfer to another facility was a violation of his First Amendment rights and retaliatory for his participation in prior lawsuits against prison employees, as there was no evidence that those who authorized the transfer knew of these prior lawsuits. Johnson v. Kingston, 292 F. Supp. 2d 1146 (W.D. Wis. 2003).

Inmate Funds

     Twenty percent deduction from Pennsylvania inmate's prison account to pay his criminal fine was authorized by statute and requirement that he pay small amounts for expenses such as medical visits, copying expenses, and personal hygiene supplies did not constitute cruel and unusual punishment or otherwise violate his rights. Neely v. Department of Corrections, 838 A.2d 16 (Pa. Cmwlth 2003).

Inmate Property

     Former prisoner could not pursue federal civil rights claim over personal property allegedly taken from him and not returned to him when he was released from county jail when Indiana state law provided adequate procedures for asserting claims for losses of property caused by state employees. Batchelder v. Arnold, 291 F. Supp. 2d 820 (N.D. Ind. 2003).

Mail

     Federal appeals court rules that prison's requirement that books received from vendors have special shipping labels attached or else not be delivered to prisoners unduly burdened inmates' First Amendment rights. Policy was unreasonable and arbitrary, as it was applied to packages of books and other publications but not to other packages that could just as easily contain contraband. Ashker v. California Department of Corrections, #02-17077, 350 F.3d 917 (9th Cir. 2003).

Medical Care

     Five-hour delay in transporting detainee to hospital after he repeatedly complained of chest pain did not render jailers liable for his death twelve hours after hospitalization, in the absence of any evidence that the defendants actually perceived or had knowledge of a "substantial risk" of serious harm. Joseph v. City of Detroit, 289 F. Supp. 2d 863 (E.D. Mich. 2003).

     Even if jail medical personnel were deliberately indifferent to insulin-dependent diabetic's serious medical needs by giving him only one insulin shot over a 48 hour period--when he normally received up to four shots per day--the county sheriff's office could not be held liable in the absence of an official policy or custom causing the deprivation. Engelleiter v. Brevard County Sheriff's Department, 290 F. Supp. 2d 1300 (M.D. Fla. 2003).

     Even if prisoner suffered a serious injury when allegedly defective cell doors closed on him, he could not pursue a constitutional claim for inadequate medical care against prison officials in the absence of facts that showed that they acted with deliberate indifference in denying him such care. Burks v. Nassau County Sheriff's Department, 288 F. Supp. 2d 298 (E.D.N.Y. 2003).

     Prisoner's claim that a prison official had canceled his prescribed medical treatment with a pain reliever, muscle relaxer and physical therapy on the ground that the prison could not afford the cost was sufficient to assert a claim for inadequate medical care. Wilson v. Vannatta, 291 F. Supp. 2d 811 (N.D. Ind. 2003).

Medical Care: Mental Health

     Psychiatrist was entitled to summary judgment on prisoner's claim against him alleging unjustified forced administration of anti-psychotic drugs and excessive doses of one such drug, causing memory loss, headaches, twitching, and confusion. Prisoner failed to properly present expert testimony or other medical evidence sufficient to establish a claim of deliberate indifference to his serious medical needs, or that the psychiatrist had subjective knowledge that there was an excessive risk to the prisoner's health and that the psychiatrist then failed to act on the basis of that knowledge. Roberson v. Goodman, 293 F. Supp. 2d 1075 (D.N.D. 2003).

Prison Conditions: General

     Two prisoners, confined for 24 hours in an "unsanitary" isolation cell designed for one prisoner in which a clogged floor drain resulted in feces and urine remaining on the cell floor, could not recover damages for mental or emotional injuries in the absence of a prior physical injury. Alexander v. Tippah County, Mississippi, No. 02-61033, 351 F.3d 626 (5th Cir. 2003).

Prison Litigation Reform Act: Filing Fees

     Dismissal of prisoner's civil rights lawsuit against correctional officials was justified under the Prison Litigation Reform Act, 28 U.S.C. Sec. 1915(b) for his repeated failure to make monthly partial payments towards the court filing fee. Cosby v. N.R. Meadors, No. 02-1540 (10th Cir. 2003).

     Under the Prison Litigation Reform Act's rules concerning the payment of filing fees, a prisoner attempting to proceed in a federal civil rights lawsuit as a pauper could not postpone payment of the full filing fee until after he was released, and was required to make installment payments of at least 20 percent of the monthly income credited to his prisoner account until the fee was paid. Ippolito v. Buss, 293 F. Supp. 2d. 881 (N.D. Ind. 2003).

     Trial court was not required to give a reason for denying a prisoner's motion to proceed without paying filing fees after prisoner failed to comply with the Prison Litigation Reform Act's requirements for a waiver of fees. Massey v. Inmate Grievance Office, No. 2229, 837 A.2d 1040 (Md. App. 2003).

Prisoner Classification

     Bureau of Prisons' application to prisoner of a statutory requirement limiting the amount of time an inmate can spend in a community confinement center to 10% of his total sentence was not a violation of his rights. The fact that the prisoner was sentenced before a Deputy Attorney General's opinion on the subject was issued did not alter the result. Adler v. Menifee, 293 F. Supp. 2d 363 (S.D.N.Y. 2003).

Prisoner Assault: By Inmates

     Detainee who was in the process of bonding out of a county jail when he was attacked by other inmates and injured was still an "inmate" for purposes of a Mississippi state statute providing governmental entities and employees immunity under state law for injury claims by prisoners. State Supreme Court also rules that an exception to governmental immunity for wanton or reckless disregard by a governmental employee does not apply to claims by prisoners. Love v. Sunflower County Sheriff's Department, No. 2002-CA-01724-SCT, 860 So. 2d 797 (Miss. 2003).

     Correctional officers could not be held liable for prisoner's injuries from stabbing by his cellmate. Their awareness of cellmate's plans to "fake a hanging" and statement that the prisoner would help him "one way or another" did not provide them with specific knowledge of a particular threat of assault as required to show deliberate indifference to a serious risk of harm. Carter v. Galloway, No. 02-16635, 352 F.3d 1346 (11th Cir. 2003).

     Prisoner could not succeed in suing correctional officials for allegedly failing to protect him from assault by another inmate who he was convicted of murdering. Appeals court rules that any injuries plaintiff prisoner suffered, including his conviction and subsequent placement in solitary confinement, were the result of his "affirmative act of murder," rather than any failure on the part of the defendants. Encarnacion v. Dann, #02-0312, 80 Fed. Appx. 140 (2nd Cir. 2003).

Prisoner Discipline

     Prisoner was entitled to further proceedings concerning alleged denial of due process in disciplinary hearing when the disciplinary board allegedly refused to allow live testimony of witnesses without providing a reason for doing so, and also allegedly refused to review allegedly exculpatory evidence on surveillance videotape of incident. Ashby v. Davis, No. 02-3007, 82 Fed. Appx. 467 (7th Cir. 2003).

     Alleged failure to allow prisoner to present live testimony at prison disciplinary hearing was harmless when he failed to indicate which witnesses he wanted to call or what he expected them to say, and adequate evidence supported charge that he had unauthorized sexual contact with a prison visitor. Sargent v. Knight, #02-3489, 82 F.3d. Appx. 472 (7th Cir. 2003).

Prisoner Suicide

     Georgia county correctional facility personnel took steps to monitor prisoner known to be a suicide risk after he previously attempted to harm himself and were not liable for his successful suicide in his cell which he accomplished by "unique methods," fashioning a tourniquet from a bed sheet and a crutch he had in his cell which he needed to walk after he broke his leg. Middlebrooks v. Bibb County, 582 S.E.2d 539 (Ga. App. 2003).

Private Prisons

EDITOR'S CASE ALERT:

     Prisoner's claim that his constitutional rights to adequate conditions and medical care were being violated in a private prison in Ohio where he was incarcerated under a contract with the District of Columbia, and that D.C. officials knew or should have known of this, but failed to take corrective action was sufficient to state a federal civil rights claim against the District. Warren v. District of Columbia, No. 02-7120, 353 F.3d 36 (D.C. Cir. 2004).

Religion

     Prison policy prohibiting inmates from purchasing Muslim prayer oils and keeping them in their cells was rationally related to a legitimate interest in deterring drug use, since the oils could mask the scent of drugs, but federal appeals court orders further proceedings under federal statute requiring a showing of a compelling state interest and use of the "least restrictive means" to justify a "substantial burden" on prisoner religious practices. Hammons v. Saffle, No. 02-5009, 348 F.3d 1250 (10th Cir. 2003).

     Muslim prisoner adequately stated a claim against a correctional officer for violating his right to exercise his religion by confiscating his prayer musk oil from his cell when he had the prison chaplain's approval to possess the oil and he was told, in response to his grievance against the officer, that prisoners were allowed to have such oil in their cells. Baltoski v. Pretorius, 291 F. Supp. 2d 807 (N.D. Ind. 2003).

Segregation: Disciplinary

     Prisoner who had been convicted, although not yet sentenced, had no due process liberty interest in not being placed in disciplinary segregation, and therefore was not entitled to a hearing before his placement there. Tilmon v. Prator, 292 F. Supp. 2d 898 (W.D. La. 2003).

Sexual Assault

     Homosexual prisoner did not successfully show that prison guard was deliberately indifferent to his safety in placing him with a cellmate who subsequently raped him. The plaintiff's statement to the guard that he was "nervous" about being placed in a cell with another prisoner was insufficient to show that the guard in fact knew of the risk and ignored it. Alleged three-day delay in providing medical treatment following the rape did not show inadequate medical care, in the absence of any showing that the delay caused any harm. Harvey v. California, No. 02-16539, 82 Fed. Appx. 544 (9th Cir. 2003).

Sexual Discrimination

     New Jersey intermediate appeals court upholds Merit System Board's decision that county was entitled to designation of eight Juvenile Detention Officer positions as "male-only" on the basis of "bona fide occupational qualification" because of privacy interest of male juvenile detainees in not being viewed by female officers while showering, using toilet, and being strip-searched. In the Matter of Juvenile Detention Officer Union County, 837 A.2d 1101 (N.J. Super. A.D. 2003).

Strip Searches: Prisoners

     Federal trial court certifies class action challenging county's alleged policy of conducting strip searches of all pre-arraignment jail detainees without reasonable suspicion of possession of weapons or contraband. Nilsen v. York County, 219 F.R.D. 19 (D. Me. 2003).

Telephone Access

     Indiana intermediate appeals court, overturning trial court's dismissal of lawsuit, rules that trial court had jurisdiction to determined whether sheriffs and the state had the authority to enter into contracts with telephone service providers concerning charges for collect calls from inmates and to obtain profits from such charges. Argument that plaintiff prisoners and their families and attorneys had to first exhaust administrative remedies before a state utility regulatory commission rejected. Alexander v. Cottey, No. 49A02-0301-CV-32, 801 N.E.2d 651 (Ind. App. 2004).

     Prisoner could not bring claims against the Department of Corrections under the Telecommunications Act of 1996, 47 U.S.C. Sec. 153, et seq., because it is not a telecommunications company or local exchange carrier. Prisoner also failed to state a claim against the Department under federal anti-trust law based on his complaint that phone charges to inmates were excessive. Bowers v. T-Netix, 837 A.2d 608 (Pa. 2003).

Transsexual Prisoners

     Prisoner suffering from gender identity disorder (GID) stated an Eighth Amendment claim for inadequate medical care based on allegation that prison officials refused to provide any evaluation of and treatment of this condition, and that state Correctional Department had a policy prohibiting any hormone or surgical treatment for inmates suffering from GID regardless of their medical condition. While the Eleventh Amendment barred claims against prison officials in their official capacities, the plaintiff prisoner stated a claim against the Commissioner of the New Hampshire Department of Corrections in his individual capacity. Barrett v. Coplan, 292 F. Supp. 2d 281 (D.N.H. 2003).

Work Release

     Removal of New York prisoner from work release program violated his right to procedural due process when he did not receive advance notice of the hearing, information about the evidence to be used against him, and an opportunity to present an opposing point of view. Kroemer v. Joy, 769 N.Y.S.2d 357 (Sup. 2003).

Workers' Compensation

     Under state of Washington workers' compensation statute, county jail inmate trusty was entitled to medical benefits as a volunteer worker performing assigned duties without pay for injuries suffered in the course of his job. In re Wissink, # 22113-0-III, 81 P.3d 865 (Wash. App. 2003).