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

Assault and Battery: Chemical Weapons

     Officers acted reasonably in using pepper spray in an attempt to subdue an emotionally disturbed suicidal man who was armed with an axe and had previously taken hostages, and in shooting and killing him when he responded to the pepper spray by lifting the axe and running towards them. Isom v. Town of Warren, No. 03-1765, 360 F.3d 7 (1st Cir. 2004).

Assault and Battery: Handcuffs

     Officer was improperly granted summary judgment on the basis of qualified immunity on claim that he used excessive force in the course of handcuffing suspect arrested under "rather benign circumstances," when a reasonable officer would know that this violates the Fourth Amendment. Kopec v. Tate, No. 02-4188, 361 F.3d 772 (3d Cir. 2004).

Defenses: Absolute Immunity

     Prosecutors were entitled to absolute immunity from liability for decision to prosecute town officials, regardless of whether they had a political motivation for doing so. Bernard v. County of Suffolk, #02-9313, 356 F.3d 495 (2nd Cir. 2004).

Defenses: Duty to Defend

     A determination by a county attorney that a police officer was not entitled to a legal defense by the county in a lawsuit brought by his neighbor was not arbitrary and capricious. Officer did not act within the scope of his employment but rather in the capacity of a private property owner, in allegedly interfering with the neighbor's use of his adjoining property. Salino v. Cimino, 802 N.E.2d 1100 (N.Y. 2003).

Defenses: Governmental Immunity

     Texas statute, T.C.A. Civil Practice and Remedies Code Secs. 101.021(1) and 101.062(b), which states that Tort Claims Act applied to claims against public entities arising out of a volunteer's action in the course of providing 911 service or response only when the action violates a statute or ordinance did not unambiguously waive governmental immunity for such claims, but instead appeared to be intention to restrict liability of those responding to 911 calls rather than creating further liability. City of Dayton v. Gates, #09-03-310 CV, 126 S.W.3d 288 (Tex. App., Beaumont 2004).

Defenses: Notice of Claim

     Court had no alternative but to dismiss plaintiff's claims against city and police chief and officers, when she failed to comply with Florida state statute requiring notice of the claim before filing suit. Wagatha v. City of Satellite Beach, No. 5D03-1372, 865 So.2d 620 (Fla. App. 5th Dist. 2004).

Defenses: Statute of Limitations

     Claims which accrued over four years ago based on Native American's arrest following a "prayer march" were barred by a Nebraska state statute of limitations. Poor Bear v. Nesbitt, 300 F. Supp. 2d 904 (D. Neb. 2004).

Domestic Violence

     City was not liable, under Florida law, for man's shooting of his wife, despite alleged negligent failure of officer to follow-up on promise to "talk" to the shooter about his alleged threat to her. Officer's failure to act was not the cause of the injuries, and no special relationship existed which would waive governmental immunity for the officer's conduct. City of Ocala v. Graham, No.5D02-3208, 864 So. 2d 473 (Fla. App. Dist. 5 2004).

False Arrest/Imprisonment: No Warrant

     Motorists from New York and surrounding states could not pursue claims for false arrest on the basis of the alleged failure of the state Department of Motor Vehicles to adequately keep track of motorist's changes of address, so that they were allegedly unaware that their drivers' licenses had been suspended. McGuire v. City of New York, 301 F. Supp. 2d 333 (S.D.N.Y. 2004).

     Complainant's signing of statement accusing individual of issuing a bad check gave police officer probable cause to arrest him. Wasilewicz v. Village of Monroe Police Department, 771 N.Y.S.2d 170 (A.D. 2d Dept. 2004).

False Arrest/Imprisonment: Warrant

     Trial court should not have dismissed civil rights claim by man arrested for the second time on the same warrant, since the facts alleged would have supported a conclusion that the officers acted unreasonably by failing to check on the warrant when confronted with the possibility that it might no longer be valid. Pena-Borrero v. Estremeda, No. 03-1084, 2004 U.S. App. Lexis 6949 (1st Cir. 2004).

     FBI agent who allegedly knowingly caused the arrest of the wrong man through the use of a facially valid warrant intended for the arrest of his brother was not entitled to qualified immunity. Lee v. Gregory, No. 02-57132, 2004 U.S. App. Lexis 6648 (9th Cir. 2004).

     Arrestee failed to show that there was a lack of probable cause for affidavits which served as the basis for the issuance of an arrest warrant on charges of violating a protective order, as required to support a claim against the official who swore out the affidavits. Freeman v. Bean, No. 02-5197, 88 Fed. Appx. 360 (10th Cir. 2004).

Firearms Related: Intentional Use

     Police officer was not entitled to qualified immunity on claim that he shot a fleeing pedestrian in the back after the pedestrian, who was armed, purportedly dropped his handgun. If facts were as plaintiff asserted, officer could not reasonably have believed that he was authorized to use deadly force without warning under the circumstances. Pablo Hernandez v. City of Miami, 302 F. Supp. 2d 1373 (S.D. Fla. 2004).

Freedom of Information

     The fact that certain records requested by plaintiff under Freedom of Information Act, 5 U.S.C. Sec. 552, once existed did not show that they remained in agency's custody or that there was any duty to retain them. CIA fully fulfilled its obligations under the Act, court rules. Wilbur v. C.I.A., #03-5142, 355 F.3d 675 (D.C. Cir. 2004).

Governmental Liability: Policy/Custom

     The alleged failure to conduct an adequate investigation of a single incident of police officers' purported excessive use of force was insufficient to show the existence of a municipal policy as required for governmental liability. Byrd v. District of Columbia, 297 F. Supp. 2d 136 (D.D.C. 2003).

Insurance

     Under Georgia law, county which had not purchased liability insurance for damages arising from officers' negligence in the performance of their duties did not waive sovereign immunity and could not be held liable for motorists' injuries from collision with truck pursued by police. Smith v. Chatham County, No. A03A1133, 501 S.E.2d 388 (Ga. App. 2003).

     Mississippi statute that provides that a municipality's purchase of liability insurance waives a $50,000 limitation on the amount of liability stated in the Mississippi Tort Claims Act, A.M.C. Sec. 11-46-15, did not apply to a municipality's participation the Mississippi Municipal Liability Plan (MMLP), an agreement which constituted self-insurance or a risk-sharing pool. Town's maximum liability for death of motorist killed in collision with police officer, therefore, was $50,000. Mississippi Municipal Liability Plan v. Jordan, No. 2001-IA-01590-SCT, 863 So. 2d 934 (Miss. 2003).

Malicious Prosecution

EDITOR'S CASE ALERT:

     Police department forensic chemist could be sued for malicious prosecution for allegedly withholding exculpatory evidence and fabricating inculpatory evidence, even if she did not initiate the prosecution or make the decision to continue it. She was not entitled to qualified immunity in lawsuit brought by man who spent fifteen years in prison for a rape that DNA evidence now shows he did not commit. Pierce v. Gilchrist, No. 02-6241, 359 F.3d 1279 (10th Cir. 2004).

     Arrestee whose rape conviction was overturned after more than ten years of imprisonment failed to show that police officer named as defendant in his federal civil rights lawsuit took an active part in procuring or continuing his prosecution as required for malicious prosecution claim under Massachusetts state law. Miller v. City of Boston, 297 F. Supp. 2d 361 (D. Mass. 2003).

Off-Duty/Color of Law: Personal Action

     Genuine issue of fact as to whether off-duty housing authority police officers acted in the scope of their employment or for "wholly personal reasons" in assaulting two men precluded summary judgment for housing authority. Beauchamp v. City of New York, 771 N.Y.S.2d 129 (A.D. 2d Dept. 2004).

     Off-duty police officer's alleged threats to a man he encountered at a gym were not conduct under color of state law and therefore could not be the basis for federal civil rights claims against the officer and city. The officer was wearing street clothes and in no way used his governmental authority. Hallstein v. City of Hermosa Beach, No. 02-56507, 87 Fed. Appx. 17 (9th Cir. 2003).

Police Plaintiff

     Airline and airline security provider did not breach any duty to protect police officer who worked at airport baggage terminal when they allegedly failed to physically inspect a passenger's checked bag containing unlabeled and unreported chemicals which allegedly emitted smoke which injured officer when he opened bag after it remained unclaimed at baggage area. Di Benedetto v. Pan Am World Service, Inc., #03-7031, 359 F.3d 627 (2nd Cir. 2004).

Police Plaintiff: Firefighters' Rule

     Officer's claims for personal injuries she suffered while participating in a certified training course were barred, in California, under firefighter's rule and her assumption of the risk that she would be injured. Hamilton v. Martinelli & Assoc., #E031683, 110 Cal.App.4th 1012, 2 Cal.Rptr.3d 168, 2003 Cal. App. Lexis 1114 (4th App. Dist. 2003).

     "Firefighters' rule" in Connecticut did not apply to lawsuit by police officer against suspect he pursued onto third party's property for injuries suffered from a fall there. Jury award against suspect for $147,535 in damages upheld. Levandoski v. Cone, #16843, 841 A.2d 208 (Conn. 2004).

Procedural: Discovery

     Motorist suing for damages resulting from collision with police vehicle was entitled to discovery of the data collected by the defendants' experts when the highway was closed off to investigate the accident, including factual findings, calculations, measurements, diagrams, and related factual material. The fact that some of these materials may have been prepared for the purposes of litigation did not alter the result when the plaintiff could not gather the same information without "undue hardship" or by any other means. Russell v. City of Buffalo, 772 N.Y.S.2d 160 (A.D. 4th Dept. 2004).

Public Protection: 911 Phone Systems

     911 operator was not liable for man's murder of his wife and daughter based on classification of call by daughter as a family violence situation rather than a child injury in progress call. No violation of equal protection or due process was shown, and operator was entitled to qualified immunity. Beltran v. Amador, No. 03-50427, 2004 U.S. App. Lexis 7234 (5th Cir. 2004).

Public Protection: Disturbed/Suicidal Persons

     Estate of mentally ill man shot and killed by police officers after use of bean bag pellets and pepper spray failed to subdue him presented a genuine issue of fact as to whether officers had been inadequately trained in dealing with mentally ill persons and in the use of impact projectiles, and whether the alleged inadequate training caused his death. Herrera v. Las Vegas Metropolitan Police Department, 298 F. Supp. 2d 1043 (D. Nev. 2004).

Public Protection: Motoring Public & Pedestrians

Motorist allegedly injured because state police officers negligently failed to replace extinguished road flares at the scene of an accident failed to show any "special relationship" between himself and the state of New York which would impose any duty to take reasonable measures to protect him. Eckert v. State of N.Y., 771 N.Y.S. 2d 132 (A.D. 2d Dept. 2004).

Racial & National Origin Discrimination: Racial or ethnic profiling on traffic or street stops or enforcement efforts

     Officers' stops and detentions of African-American bicyclists, in response to information that "two black males" had stolen bicycles in the area, did not constitute selective enforcement of law based on race, in violation of equal protection. King v. City of Eastpointe, No. 01-2303, 86 Fed Appx. 790 (6th Cir. 2003).

     Arrestee's claim that city had a policy or custom of condoning a "systemic practice" of racial profiling on individuals with prior criminal records which resulted in his false arrest and imprisonment was adequate to state a claim against the city for municipal liability. Anderson v. County of Nassau, 297 F. Supp. 2d 540 (E.D.N.Y. 2004).

RICO

     Losses that individual allegedly incurred as a result of wrongful incarceration on narcotics charges, including loss of employment and wages, were "personal injuries," rather than injuries to the plaintiff's business or property, so that he was not able to bring a lawsuit under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Sec. 1964(c) against city officials and police officers who allegedly conspired to falsely arrest and maliciously prosecute him. Guerrero v. Gates, #02-56017, 357 F.3d 911 (9th Cir. 2004).

Search and Seizure: Home/Business

     Police officers were justified in making a warrantless entry into a home when they believed that there could be a woman inside who was "in trouble," and when two occupants of home, although they knew that a uniformed officer outside was seeking to speak with them, decided not to answer the door. Officers acted for the purpose of protecting the woman they believed was inside. Martin v. City of Oceanside, No. 02-56177, 360 F.3d 1078 (9th Cir. 2004).

EDITOR'S CASE ALERT:

     No exigent circumstances existed sufficient to justify no-knock "dynamic entry" into home. Federal appeals court upholds $2 million jury verdict against officer on unlawful entry claim, as well as against sergeant and Board of Police Commissions on inadequate training claims. Doran v. Eckold, No. 03-1810, 2004 U.S. App. Lexis 6479 (8th Cir. 2004).

     Police officers did not act in an unreasonable manner by continuing to search apartment after they allegedly realized that the apartment's inclusion in the search warrant might have been in error and that the suspect who was the target of the search possibly did not live there. Officers could reasonably believe that the warrant still gave them authority to conduct the search, since it was issued based on a belief that the targeted suspect controlled the apartment. Duarte v. Robards, No. 02-56563, 86 Fed. Appx. 270 (9th Cir. 2003).

Search and Seizure: Search Warrants

EDITOR'S CASE ALERT:

     U.S. Supreme Court finds that a search warrant which failed to describe the items to be seized during the search of a Montana ranch was "presumptively invalid," and that a federal agent who applied for the warrant and then led the raid executing it was not entitled to qualified immunity from liability, as the requirement in the Fourth Amendment that a warrant describe with particularity the "persons or things to be seized" is clearly stated. Groh v. Ramirez, #02-811, 124 S. Ct. 1284 (2004).

Search and Seizure: Person

     Delaware police officer was privileged, under state law, to pat down a passenger approached and questioned as he waited for a bus, under the terms of a statute allowing officers to search for dangerous weapons any person detained for questioning if officer possesses reasonable grounds for the belief that he is in danger if the person possesses a deadly weapon. Atamian v. Hauk, 842 A.2d 654 (Del. Super. Ct. 2003).

Sexual Assault and Harassment

     Officer acted in a personal capacity only and not within the scope of his employment when he allegedly embraced motorist who he stopped and arrested for driving under the influence of alcohol and later allegedly attempted to kiss her when she returned to retrieve her driver's license. Employer of officer, therefore, could not be held vicariously liable for his actions. Cockrell v. Pearl River Valley Water Supply District, No. 2002-CA-02090-SCT, 865 So. 2d 357 (Miss. 2004).

Attorneys' Fees and Legal Defense Rights

     Lawyers for a transsexual police officer that won a suit for sex discrimination and retaliation are awarded $553,726 in fees and costs by a federal judge who rejected the city's arguments that a 1.75 multiplier, to recognize the "novelty and difficulty" of the case, was excessive. Last year the plaintiff was awarded $320,511 in damages. An appeals bond in the amount of $873,726 will be required, and the court declined to stay its injunction. Barnes v. Cincinnati, #C-1-00-780, 42 (2050) G.E.R.R. (BNA) 257 (S.D. Ohio 2004).

Bill of Rights Laws

     Illinois now requires a sworn complaint as a precedent to a formal disciplinary interview of a law enforcement officer. Illinois Uniform Peace Officers' Disciplinary Act amendment, 50 ILCS 725/3.8.

Civil Liability

     Citing Lapides v. Board of Regents, 535 U.S. 613 (2002) the Ninth Circuit holds that if a state agency removes an employment-related civil rights lawsuit from state to federal court, it waives any Eleventh Amendment immunity. Embury v. King, #02-15030, 2004 U.S. App. Lexis 4860 (9th Cir. 2004).

Criminal Liability

     Former Baltimore City Police Commissioner pleads guilty to misusing more than $20,000 from an off-the-books police account to pay for liquor, lavish meals, hotel rooms and extramarital affairs. U.S. v. Edward Norris, (D.Md. 2004).

Disciplinary Appeals & Challenges - In General Statutory preemption:

     The Civil Service Reform Act precludes a claim challenging a FBI letter of censure, on the ground that the Bureau violated its own regulations. Graham v. Ashcroft, #03-5025, 358 F.3d 931 (D.C. Cir. 2004).

Disciplinary Hearings - Proof Required

     Arbitrator holds that the Air Force did not have just cause to discharge an employee who was accused of assaulting a coworker in his residence, where a third employee, who was a witness to the alleged assault, decided not to testify. Hearsay statements about the event did not provide sufficient proof to uphold the termination. Warner Robins Logistics Center and AFGE L-987, Grievance #ARB 02-96, 119 LA (BNA) 402 (Nicholas, 2003).

Disciplinary Hearings - Untenured

     Ninth Circuit holds that placing of a termination notice containing stigmatizing information in a county employee's personnel file, where a state law required for public release on request, constituted publication, and the lack of an opportunity for a name-clearing hearing violated his rights of due process. Because the right to a name-clearing hearing was clearly established they were not entitled to assert qualified immunity. Cox v. Boxer, #00-35887, 359 F.3d 1105 (9th Cir. 2004).

Disciplinary Investigations

     Bell-Colwell Report on FBI discipline points to deficiencies and software inadequacies. Study of the FBI's Office of Professional Responsibility (2004).

Disciplinary Procedures - In General

EDITOR'S LEGISLATIVE ALERT:

     Washington Governor signs domestic violence legislation aimed at armed law enforcement officers. It requires applicant screening, immediate reporting, separate criminal and administrative investigations, the recovery of agency weapons, and other measures. S-6161, an amendment to Rev. Code of Wash. §10.99.020, H-1645 and S-6384 (signed 3/15/04).

Disciplinary Punishment - In General

     A divided appeals court in Kansas reinstates a police officer that allowed an unlicensed motorist to drive home after a traffic stop, filed a false incident report, and prematurely deactivated his in-car recorder to cover up the procedural impropriety. The statute required "gross" misconduct, and the majority found the officer's errant behavior did not rise to that level. Jones v. Kansas St. Univ., #90,475, 81 P.3d 1243 (Kan. App. 2004).

Discovery, Publicity and Media Rights

     Virginia Supreme Court rules that e-mails between public officials are not subject to the state's FOIA, because like letters, they were not simultaneous. Beck v. Shelton, #030723, 2004 Va. Lexis 40 (2004).

Drug Abuse and Rehabilitation

     Supreme Court declines to review the ADA suit of a firefighter who was fired after a drug arrest and for failing to undergo outpatient therapy as required by an earlier disciplinary settlement. O'Brien v. Hackensack, #03-906, 124 S.Ct. 1422, 2004 U.S. Lexis 1111 (2004); prior decis. at 2003 U.S. App. Lexis 12434 (Unpub. 3d Cir. 2003).

Fair Labor Standards Act - Overtime - in General

     In a suit brought by paid officers, a federal court in Texas finds that unpaid reserve polices officers were volunteers, not employees, under the FLSA. Cleveland v. City of Elmendorf, #SA-02-CA-0395, 2004 U.S. Dist. Lexis 925, 9 WH Cases2d (BNA) 539 (W.D.Tex. 2004).

FLSA - Overtime - Canine Officers

EDITOR'S CASE ALERT:

     Ninth Circuit declines to follow the FLSA provision that allows management and the union to agree on flat compensation for a K9 officer, because the amount was grossly inadequate. Leever v. Carson City, #02-16525, 2004 U.S. App. Lexis 4201 (9th Cir.), citing DoL/W&H Letter Opinion of Aug. 11, 1993, 1993 DOLWH Lexis 28,1993 WL 901171.

Hairstyle and Appearance Regulations

     California appellate court rejects a suit against the state by a firefighter who lost his job because of a state OSHA regulation banning facial hair, which he allowed to grow to alleviate a skin disorder (PFB). Vernon v. St. of California, #A101244, 116 Cal.App.4th 114, 2004 Cal. App. Lexis 224 (1st Dist. 2004).

Handicap Laws / Abilities Discrimination - Specific Disabilities

     Federal court finds that a factual issue existed as to whether a former police officer's fibromyalgia substantially limited her ability to walk, because she uses cane when walking and she has significant back pain. Jackson v. City of Chicago, #02 C 3057, 293 F.Supp.2d 836 (N.D.Ill. 2003).

Holiday and Premium Pay

     Arbitrator orders a city to pay premium wages to all police officers, and not just some, who worked in the aftermath of 9/11. If premium pay was given to officers on one shift, "then it must be so for the entire bargaining unit." City of Columbus, Ohio and FOP L-9, 119 LA (BNA) 299 (Paolucci, 2003).

Job Classification Rights

     OPM revises its 1991 federal firefighter standards to recognize EMT, hazmat and structural firefighting duties. Position Classification Standard for Fire Protection and Prevention Series, GS-0081.

National Origin Discrimination

     Federal appeals court rejects a Hispanic police officer's parallel discrimination and retaliation suit as res adjudicata; he lost a state court challenge to a decision to grant him only non duty-related disability benefits after a heart attack. The officer had testified against management in a prior employment discrimination case. Garcia v. Village of Mount Prospect, #02-2869, 2004 U.S. App. Lexis 3226 (7th Cir. 2004).

     NYPD settles a bias action and establishes a $20 million compensation fund to satisfy the discrimination claims of Latino and African American officers. The suit alleged that the NYPD was hostile to Hispanic and black officers by allowing graffiti and slurs, that began in the academy and continued into precinct houses. Latino Officers Assn. v. City of New York, #99-9568 (S.D.N.Y. 2004).

Out of Title Assignments

     Arbitrator overturns an order the Fire EMTs administer flue shots to city workers. It fell outside of their normal duties as emergency responders. City of Madison Heights, Mich. and M.H. Fire Fighters Assn. 119 LA (BNA) 390 (Sugerman, 2003).

Past Practices, Precedents & Zipper Clauses

     Arbitrator holds that management does not violate the bargaining agreement by attempting to limit police officers from being unnecessarily subpoenaed to appear in court proceedings, but cannot direct officers to ignore lawfully issued subpoenas. Bor. of Charleroi, Pa. and Teamsters L-205, 119 LA (BNA) 385 (Dissen, 2003).

Pay Disputes - Overtime Claims

     Arbitrator concludes that management did not violate the bargaining agreement when it declined to pay overtime to a firefighter who took a medical exam during his off-duty hours; medical exams was not among the categories triggering overtime. City of Cincinnati and L-48 IAFF, 119 LA (BNA) 421 (Donnelly, 2004).

Polygraph Exams

EDITOR'S CASE ALERT:

     Federal appeals court rejects various claims against the Illinois State Police and its polygraph examiner. The plaintiff had been fired after his polygraph exam allegedly revealed deception. Although the plaintiff found an "expert" who disputed the reliability of the scoring, there was no proof that the exam was intentional mis-scored, or that the scoring of the exam was substandard. Smock v. Nolan, #03-1546, 2004 U.S. App. Lexis 4874 (7th Cir. 2004).

Race and Sex Discrimination

     Appeals court rejects suit filed by two black male state employees because the agency head chose a white female to be the agency's business manager; she had a degree in business administration and accounting, was a Certified Public Accountant, had extensive experience in finance and accounting, and had served as the Chief Financial Officer for various businesses. Bankhead v. Knickrehm, #03-2356EA, 2004 U.S. App. Lexis 4621 (8th Cir. 2004).

Religious Discrimination

     Appeals court sustains the termination of a social worker that failed to call 911 to assist a person in her care, and instead tried "to drive out the demons" for the afflicted person with prayer and a strange language. The panel rejected her defense that she was fired for practicing the Pentecostal Christian religion. Howard v. Family Agency, #243973, 2004 Mich. Ct. App. Lexis 410 (2004).

Sex Discrimination - In General

     Eleventh Circuit concludes that a public employee, who initially was fired, did not suffer an "adverse employment action" and could not sue for gender bias because the termination decision was overturned in an administrative appeal. Stavropoulos v. Firestone, #02-16486, 2004 U.S. App. Lexis 3532 (11th Cir. 2004).

Sexual Harassment - In General

     Federal court finds that a supervisor's remarks were severe and pervasive enough to refuse to dismiss a woman police officer's suit. Her husband, also a police officer, could not maintain a claim for retaliation. Although denied a transfer, it was a lateral position and he suffered no economic loss. Valenti v. City of Chicago, #01 C 8581, 2004 U.S. Dist. Lexis 2779 (N.D. Ill. 2004).

     Appeals court affirms dismissal of sex discrimination and retaliation claims, because the plaintiff did not suffer an adverse employment action and the employer had a legitimate, non-pretextual reason for marking her absent without pay. Her harassment claim also fails because the harassers were not her "supervisors" and the employer was not negligent in remedying the alleged harassment. Rhodes v. Illinois Dept. of Transp., #03-1651, 359 F.3d 498 (7th Cir.2004).

     While the presence of pornographic movies and magazines in the workplace created a hostile work environment for the only woman at the job site, a federal appeals panel noted that the person in charge was not her supervisor and the agency has a zero tolerance policy. Rhodes v. Illinois Dept. of Transportation, #03-1651, 359 F.3d 498 (7th Cir. 2004).

Wrongful Discharge/Discipline: Damages & Settlements

     Federal appeals court affirms a $1,268,087 award to 274 former housing authority police officers that were fired without the 60-day pretermination notice required in the federal Worker Adjustment and Retraining Notification Act (WARN), 29 U.S. Code §2101 et seq. Although government entities are exempt, there is an exception for public housing authorities. The damage award also could not be offset by job severance payments because these were made as part of unrelated settlement of other labor issues involving the plaintiffs. Castro v. Chicago Housing Auth., #03-2892, 2004 U.S. App. Lexis 4576 (7th Cir. 2004).

Access to Courts/Legal Info

     Federal trial court was wrong to dismiss prisoner's civil rights lawsuit claiming that the confiscation of his legal papers resulted in the loss of "several lawsuits." While the manner in which the prisoner presented the claims may have been "artless," the complaint alleged facts which, if true, would be sufficient to require relief. Thomson v. Washington, #03-2304, 2004 U.S. App. Lexis 6086 (7th Cir. 2004).

     Wisconsin prisoner failed to show that prison officials denied him access to courts by refusing to provide him copies of his previously submitted grievance concerning his disciplinary conviction. Prisoner failed to show that the dismissal of his pending court proceeding was based on his failure to provide the court with a copy of the past grievance form, and therefore failed to show that he suffered actual harm. Tyler v. Bett, #03-2727, 86 Fed. Appx. 970 (7th Cir. 2004).

Death Penalty

     Prisoner was not entitled to a stay of execution on the basis of his claim that if a lethal injection was administered to him in an improper way, he could experience severe pain without any visible indication of it. In Re Williams, #04-3014, 359 F.3d 811 (6th Cir. 2004).

Defenses: Notice of Claim

      Florida prisoner failed to provide adequate notice of his negligence claim against the Department of Corrections to satisfy notice provision of statute waiving sovereign immunity for claims against the state. Prisoner's first letter misidentified the correctional facility in which he had been incarcerated, and second letter was not copied to the state Department of Insurance, which was therefore never given knowledge of the need to investigate or respond to the claim. Maynard v. State, #1D02-1048, 864 So. 2d 1232 (Fla. App. 1st Dist. 2004).

Defenses: Procedural

     Under Missouri law, a county sheriff's department and the medical department of the sheriff's department were merely components of the county and could not be separately sued. Further, a local government entity without the capacity to be sued under state law cannot be sued in federal court. Catlett v. Jefferson County, 299 F. Supp. 2d 967 (E.D. Mo. 2004).

Diet

     Prisoner suffering from diabetes did not show an excessive risk of harm to his health from the inclusion of pork in his prescribed diabetic diet. Doctor only included a reference to a pork-free diet because prisoner requested it and there was no evidence that the inclusion of pork threatened the prisoner's health or that the calories provided were inadequate. Hall-Bey v. Cohn, #02-3731, 86 Fed. Appx. 200 (7th Cir. 2004).

Disability Discrimination: Prisoners

     Prisoner failed to adequately show that he was discriminated against on the basis of disability when prison officials denied him use of a computer and took his calculator away. An affidavit by an individual stating that he had a learning disability was insufficient to show that he was disabled, and evidence showed that he was denied the use of the computer only after being disciplined for inappropriate conduct. Additionally, calculator was removed on the basis of a possible security risk. Damron v. North Dakota Com'r of Corrections, 299 F. Supp. 2d 970 (D.N.D. 2004).

Inmate Funds

     Kansas prison policy requiring inmates to save 10% of all money into a trust account did not violate the due process rights of prisoners serving life sentences. The state had a legitimate interest in making sure that prisoners had some money available to help in their readjustment if they were released, and in providing some money for the inmate's estate if they died while in custody. Ellibee v. Simmons, No. 91,050, 85 P.3d 216 (Kan. App. 2004).

Mail

     Federal court properly rejected prisoner's federal civil rights claim since the First Amendment rights of inmates to receive commercial bulk mail was not "clearly established" when he was refused receipt of a "Green Lantern" comic book, so that prison officials were entitled to qualified immunity. Court upholds rejection of other magazines with sexual ads or "role-playing content." Further proceedings ordered, however, on state law free speech claims. Bahrampour v. Lamper, #02-3519, 356 F.3d 969 (9th Cir. 2004).

Medical Care

     Even if prisoner received inadequate medical care after secretly ingesting cocaine upon his arrest, resulting in his death in custody, county was not liable to his estate in the absence of any evidence that an official policy of providing inadequate care was the cause of his injuries. Graham v. County of Washtenaw, No. 02-1614, 358 F.3d 377 (6th Cir. 2004).

     Federal trial court approves settlement between the parties in class action lawsuit by diabetic inmates claiming denial of adequate medical care. Settlement was fair in guaranteeing certain types of treatment to prisoners and providing for the monitoring of the treatment. Gaddis v. Campbell, 301 F. Supp. 2d 1310 (M.D. Ala. 2004).

     Prisoner's assertion that prison medical staff did not inform him of nor treat him for tuberculosis and denied him follow-up treatment after foot surgery was sufficient to state a claim for deliberate indifference to serious medical needs in violation of the Eighth Amendment. Allah v. Artuz, #01-0067, 86 Fed. Appx. 455 (2nd Cir. 2004).

     Orthopedic surgeon was not entitled to qualified immunity on prisoner's claim that he deliberately failed to schedule him for needed shoulder surgery for almost two years and also knew that an excessive delay might cause permanent disability. Benjamin v. Schwartz, 299 F. Supp. 2d 196 (S.D.N.Y. 2004).

Medical Care: Mental Health

     Statements by state prison psychologist to mentally ill prisoner who made suicidal threats that no one would care if he died did not constitute deliberate indifference to serious medical needs, when psychologist also recommended that the prisoner remain under observation, and the prisoner had access to other psychologists at the prison, as well as to a psychiatrist to whom he had been referred. Means v. Cullen, 297 F. Supp. 1148 (W.D. Wis. 2003).

Medical Records

     Release of state inmate's medical records to Attorney General after inmate asserted a medical malpractice claim against the state for alleged administration of incorrect medication by prison staff was not authorized under New York state law, so inmate was entitled to an award of $500 in damages. Davidson v. State of N.Y., 771 N.Y.S.2d 197 (A.D. 3d Dist. 2004).

Officer Assault: By Inmate

     Correctional officer was properly awarded $250,000 on his counterclaim against prisoner even though this exceeded the damages requested, in light of the unprovoked nature of the prisoner's attack and the seriousness of the "life-threatening" injuries suffered by the officer. Douglas v. McCarty, #03-6776, 87 Fed. Appx. 299 (4th Cir. 2003).

Parole

     Pennsylvania prisoner was not entitled to a judicial order requiring the state Board of Probation and Parole to grant him parole. Despite his claim that a sentencing judge and prosecutor sent unfavorable recommendations to the Board in retaliation for his filing of a successful federal habeas petition, the Board followed established procedures in denying parole, and the denial was justified by the reasons given. Burkett v. Frank, 841 A.2d 646 (Pa. Cmwth. 2004).

Prison Litigation Reform Act: Exhaustion of Remedies

     Dismissal of federal prisoner's claim for alleged loss of his property due to negligence of prison employees was proper. No such claim could be brought under Federal Tort Claims Act, and prisoner failed to exhaust available prison grievance procedure as to any civil rights claim. Further, mere negligence leading to loss of property cannot be the basis of a constitutional claim. Steele v. Federal Bureau of Prisons, #02-1492, 355 F.3d 1204 (10th Cir. 2003).

Prisoner Assault: By Inmates

     Lieutenant who assigned a prisoner a new cellmate who subsequently sexually assaulted him was not liable, despite prisoner's claim that he feared an assault from a Latin Kings gang member. There was no showing that the sexual assault had anything to do with this gang, and there was no evidence from which the lieutenant could be said to be aware of a substantial risk of harm from pairing these two prisoners together. Riccardo v. Rausch, #02-1961, 359 F.3d 510 (7th Cir. 2004).

Prisoner Assault: By Officers

     Federal appeals court upholds dismissal of claims against warden, videographer and corrections officer who did not have physical contact with prisoner but who witnessed his transfer to segregation unit in the absence of any evidence that they ordered or condoned the excessive use of force by others. Court orders further proceedings, however, as to whether prisoner was unnecessarily beaten once he arrived in cell. Fillmore v. Page, No. 02-3208, 358 F.3d 496 (7th Cir. 2004).

     Genuine factual issues as to whether correctional officers suffocated detainee after he stated his desire to surrender during altercation barred summary judgment on excessive force claim brought by detainee's estate. Bozeman v. Orum, 302 F. Supp. 2d 1310 (M.D. Ala. 2004).

Prisoner Classification

     Prisoner was entitled to a preliminary injunction against the Bureau of Prisons' (BOP) new regulation which had the effect of delaying his release to a halfway house until 90% of his sentence had been served. Prisoner claimed that regulation was adopted in violation of Administrative Procedure Act, 5 U.S.C. Sec. 553 (b,c,d). Colton v. Ashcroft, 299 F. Supp. 2d 681 (E.D. Ky. 2004).

Prisoner Death/Injury

     Federal appeals court reinstates prisoner's claim under the Federal Tort Claims Act for negligently caused injuries resulting from him falling from his top bunk after he was given a medical pass entitling him to a bottom bunk. Bultema v. U.S., No. 02-3490, 359 F.3d 379 (6th Cir. 2004).

Prisoner Discipline

     Refusal to allow prisoner to call inmate witnesses at administrative segregation hearing did not violate his procedural due process rights when the inmates were asked the questions the prisoner prepared and their audiotaped responses were played at the hearing. Rosales v. Bennett, 297 F. Supp. 2d 637 (W.D.N.Y. 2004).

     Pre-trial detainee's claim that deputy sheriff found him guilty of a major offense he was not charged with, and which had no factual connections to the actual charges brought stated a claim for violation of due process. Jones v. Brown, 300 F. Supp. 2d 674 (N.D. Ind. 2003).

Prisoner Restraint

     Prisoner was not entitled to damages for use of back restraints after his disciplinary conviction. He failed to show that their use was an "atypical and significant hardship in relation to the ordinary incidents of prison life," and rash which he allegedly suffered from the use of the restrains was not "serious harm" as required to support a claim for deliberate indifference to a serious medical need. Tasby v. Cain, #03-30334, 86 Fed. Appx. 745 (5th Cir. 2004).

Prisoner Suicide

     Private psychiatric hospital and not-for-profit company which owned it were not immune under Tennessee law for potential liability for county jail inmate's suicide on the basis of their employee's alleged action in telling county jail that suicide protocol precautions were not necessary for this prisoner. Employee also qualified as a "state employee" because of his service in screening prisoners to determine if hospitalization was appropriate, and as a state employee, he was entitled to statutory immunity, but this did not alter the result as to the hospital or its owner. Shelburne v. Frontier Health, 126 S.W.3d 838 (Tenn. 2003).

Private Prisons and Entities

     Under New Jersey state law, state and county correctional facility could be held vicariously liable for alleged medical malpractice by private contractors that provided medical care to now deceased inmate, since their duty to provide adequate health care to the prisoner could not be delegated. Prisoner allegedly died because he was either denied or given inadequate dosages of prednisone medication for "Paroxysmal Nocturnal Hemoglobinuria with hemolytic episode" (PNH), a condition for which the only potential cure is a bone marrow transplant. Scott-Neal v. N.J. State Dept. of Corrections, 841 A.2d 957 (N.J. Super. A.D. 2004).

Religion

EDITOR'S CASE ALERT:

     Prison did not violate the religious freedom rights of inmate members of the "Church of the New Song" who were in lock-up during the religion's "celebration of life" feast by denying them trays of food from the banquet. Appeals court upholds ruling that there was insufficient evidence to show that the Church required its members to hold this feast, and the ban on receipt of the trays was reasonably related to legitimate institutional security goals. Goff v. Graves, No. 02-1279, 2004 U.S. App. Lexis 5832 (8th Cir. 2004).

Segregation: Disciplinary

     Penalty of placement in disciplinary segregation for a 15 day period with no loss of good time credits was not a sufficiently "atypical and significant" hardship that it implicated a prisoner's due process rights. Marksberry v. Chandler, No. 2002-CA-001920-MR, 126 S.W.3d 747 (Ky. App. 2004).

Sexual Harassment

     California prisoner could not seek damages under 42 U.S.C. Sec. 1983 for sexual harassment by officers based on mere verbal harassment. Prisoner claimed that one officer unzipped his clothing and told the inmate to grab the officer's penis, walking away laughing when he refused, and that a second officer held a candy bar towards his genital area, flipping it up and down, and then responding "I don't kiss and tell" when the inmate asked if this action was directed towards him. Minifield v. Butikofer, 298 F. Supp. 2d 900 (N.D. Cal. 2004).

Sexual Offender Programs and Notification

     Federal appeals court rejects prisoner's claim that his constitutional rights were violated by requiring him to participate in sexual offender treatment program requiring him to admit to his offense, under penalty of a loss of privileges, including denial of visitation with his minor child, if he failed to participate. Wirsching v. State of Colorado, #00-1437, 360 F.3d 1191 (10th Cir. 2004).

     Retroactive application of a rule making a prisoner incentive program dependent on participation in a sexual offender treatment program was not an impermissible enhancement of punishment of prisoner convicted of rape and aggravated sodomy. Carroll v. Simmons, #03-3236, 89 Fed. Appx. 658 (10th Cir. 2004).

Smoking

     Prisoner who is former cancer research scientist could pursue claim that prison policies exposed him to excessively high levels of environmental tobacco smoke by housing him with smoking cellmates. Lehn v. Holmes, #01-1957, 2004 U.S. App. Lexis 7206 (7th Cir. 2004).

Strip Searches: Prisoners

EDITOR'S CASE ALERT:

     Misdemeanor detainee, who was awarded $1 in nominal damages in lawsuit challenging blanket policy of strip searching all detainees at county jail regardless of the nature of their charges, did not have any basis to seek injunction against such searches, since he could not show that he had a likelihood of being rearrested and sent to the same facility again and subjected to a similar search. Shain v. Ellison, #02-9262, 356 F.3d 211 (2nd Cir. 2004).

Transsexual Prisoners

     Placement of intersexual (hermaphrodite) prisoner with both male and female characteristics in segregated confinement for 438 days with severely limited privileges solely because of status of ambiguous gender was not a violation of the Eighth Amendment. Such placement was not aimed at punishment, but at protecting the safety of the inmate and other prisoners, and the plaintiff prisoner was provided with all basic necessities. Court also rejects equal protection claim. Continuation of administrative segregation beyond 30 days, however, without a hearing and with no attempt to "elevate" prisoner's living conditions was "completely arbitrary and capricious," and lacked a rational basis. Prison officials should have known this, and were therefore not entitled to qualified immunity, but only nominal damages of $1 were awarded, in the absence of evidence of actual harm, such as lasting mental or physical damages resulting from the segregated confinement. Plaintiff would also be awarded expert costs, attorneys' fees, and court costs as a prevailing party under 42 U.S.C. Sec. 1988. DiMarco v. Wyoming Dept. of Corrections, 300 F. Supp. 2d 1183 (D. Wyo. 2004).

EDITOR'S CASE ALERT:

     Federal appeals court reinstates claim against prison warden for alleged failure to protect transsexual inmate from an attack by a maximum-security prisoner. Plaintiff prisoner raised a sufficient factual issue as to whether the warden had knowledge of the possible risk to her safety because of her vulnerability and her attacker's status as a "predator," but failed to act to protect her. Greene v. Bowles, No. 02-3626, 361 F.3d 290 (6th Cir. 2004).