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of articles online at www.aele.org/law from the August 2002

Note: This is the online version of the print edition that is mailed to subscribers. It only summarizes the featured articles found in the other three periodicals. The clickable links to actual court decisions (or arbitration awards) are in the three online periodicals, and are NOT duplicated in this summary.

Summaries from the August 2002

Assault and Battery: Chemical

     Officer's use of pepper spray was not unreasonable when arrestee had been climbing stairs toward the officer, screaming threats to harm him and gesturing wildly with his arms, ignoring the officer's order to stay back. Jim v. County of Hawaii, #00-16979, 33 Fed. Appx. 857 (9th Cir. 2002).

Assault and Battery: Handcuffs

     Officers' use of handcuffs during an investigatory stop of a suspect who fled from officers in a high crime area where there had recently been a shooting of a police officer by an individual with a machine gun and who had made a motion as though he were carrying a weapon was not an excessive use of force. Officers' display of their weapons during the stop was also justified. Mearday v. City of Chicago, 196 F. Supp. 2d 700 (N.D. Ill. 2002).

Assault and Battery: Physical

     Federal appeals court rules that trial judge improperly granted judgment as a matter of law to officers in excessive force claim brought by paranoid schizophrenic who testified that he had no recollection of the precise acts engaged in by the officers who apprehended him. The issue of whether the officers used excessive force under the circumstances was still for the jury to determine, and there was other evidence which could be used to make the determination. Santos v. Gates, #00-56114, 287 F.3d 846 (9th Cir. 2002).

     Arrestee's conviction for resisting arrest did not bar him from asserting a federal civil rights claim for excessive use of force. Since arrestee had pled no contest to the charge, he did not have an actual opportunity to litigate the issue of the officer's use of force, and it was possible that the officers used excessive force at some point during the encounter. Jones v. Marcum, 197 F. Supp. 2d 991 (S.D. Ohio 2002).

     Officers did not act unreasonably in "escalating" their use of force against large naked man running around hotel premises after their initial attempts to restrain him with lesser force failed, and they had reason to believe that he posed a risk to himself and others, including the officers. Officers were not liable for his subsequent death, found to have been caused by cardiovascular disease and the effects of multiple drugs, after a lengthy altercation. Caricofe v. Mayor and City Council of Ocean City, Maryland, #01-1809, 32 Fed. Appx. 62 (4th Cir. 2002).

Attorneys' Fees: For Defendant

     Defendant municipality was entitled to payment by plaintiff in civil rights case of its costs incurred after making a settlement offer when the offer was not accepted and the judgment finally obtained by the plaintiff was not more favorable to him than the offer, pursuant to Federal Rule of Civil Procedure 68. Payne v. Milwaukee County, #01-1818, 288 F.3d 1021 (7th Cir. 2002).

Defenses: Statute of Limitations

     An arrestee had to file his false arrest lawsuit within the applicable two year statute of limitations, despite the fact that the federal court would not have acted on his claim while his state criminal appeal arising out of the same incident was pending, since the cause of action for wrongful arrest accrued at the time of the arrest. Lawsuit filed after two year period was properly dismissed. Nesbitt v. City of Champaign, #01-3163, 34 Fed. Appx. 226 (7th Cir. 2002).

False Arrest/Imprisonment: No Warrant

     Officers had probable cause for arresting husband for criminal contempt and harassment based on wife's written complaint accusing him of violations of a protective order preventing him from being within 1000 feet of her. Officers had no reason to doubt the wife's claim that he had in person threatened to kill her and burn her house down, and one of the officers indicated that he conducted a personal investigation. Fulton v. Robinson, #00-9547, 289 F.3d 188 (2nd Cir. 2002).

     City and officer were properly held liable for $250,000 for making an arrest of a man in a washroom for "lewd conduct" without probable cause. Arrestee's conduct fell short of giving a reasonable officer grounds for an arrest, and damages were not grossly excessive, based in part on arrestee's mistaken impression that he faced sex offender registration if convicted of the offense. Fonseca v. City of Long Beach, #00-56714, 33 Fed. Appx. 846 (9th Cir. 2002).

     Police chief had probable cause to arrest a motorist for several traffic violations, and his subsequent search of the driver was incident to a lawful arrest and therefore did not violate the Fourth Amendment. Burley v. Nichelini, #00-16098, 34 Fed. Appx. 537 (9th Cir. 2002).

     Officers had probable cause to arrest homeowner for possession of stolen property based on anonymous "crime stoppers'" tip that stolen lawnmowers were on her property, together with discovery of one of the lawnmowers on the property and subsequent search that resulted in finding of second stolen lawnmower and other stolen property at her home. Subsequent court proceedings in which arrestee's husband pled guilty to criminal charges and charges against her were dropped in exchange did not alter the result. Reasonover v. Wellborn, 195 F. Supp. 2d 827 (E.D. Tex. 2001).

     Municipal employee who alleged that he was threatened with arrest if he did not resign did not show a violation of equal protection, since other former employees were not similarly situated, as they were not facing possible criminal charges. Bligh v. Town of Bloomfield, #01-7294, 33 Fed. Appx. 573 (2nd Cir. 2002).

False Arrest/Imprisonment: Warrant

     Police officer was not liable for false arrest for allegedly putting false information concerning arrestee's alleged confession to robbery in affidavit for arrest warrant. Affidavit contained other evidence which supported a finding of probable cause even without the alleged false statements. Baca v. Bennett, #01-1104, 34 Fed. Appx. 626 (10th Cir. 2002).

     City and officer were liable for violation of federal civil rights after officer's mistaken use of wrong form for citation made motorist believe that he could contest ticket by mail, resulting in his subsequent arrest under warrant for failure to appear in court. Intermediate New York reviewing court upholds overturning of state law negligence award, however. Marin v. City of New York, 739 N.Y.S.2d 523 (Sup. 2002)

     Man arrested under warrant on charges of falsely swearing, in firearms purchase form, that he had not been convicted of a felony, could pursue his false arrest claim based on genuine issue of material fact as to whether he showed the arresting officers a certificate of conviction which showed them that he had previously been convicted of a misdemeanor rather than a felony. There was also a genuine issue as to whether the investigating officer, who wrote the affidavit which was the basis for the warrant, knew that the prior conviction was only for a misdemeanor. Thompson v. Sweet, 194 F. Supp. 2d 97 (N.D.N.Y. 2002).

Firearms Related: Intentional Use

     Off-duty police officer who pursued and then shot and killed unarmed man who alleged stole a lawn mower from his garage was not entitled to qualified immunity from federal civil rights claim. Estate of Thurman v. City of Milwaukee, 197 F. Supp. 2d 1141 (E.D. Wis. 2002).

First Amendment

     Virginia state statute, Virginia Code Sec. 46.2-930, prohibiting loitering on bridges, being used to prevent anti-abortion protesters from gathering there, was unconstitutionally vague, providing inadequate notice of what conduct was prohibited, but city was not liable for damages under 42 U.S.C. Sec. 1983, as plaintiffs failed to show that any deprivation of their rights was caused by an official municipal policy or custom. Lytle v. Doyle, No. 299CV1366, 197 F. Supp. 2d 481 (E.D. Va. 2001).

Governmental Liability: Policy/Custom

     Police officer's claim that state law enforcement agency imposed a "ticket quota" policy, even if true, did not violate the officer's equal protection or due process constitutional rights and did not violate the Constitution's "Privileges and Immunities" clause. Officer had no standing to assert the Fourth Amendment rights of those who might be "illegally searched or seized" solely because of the alleged policy's existence. Gravitte v. North Carolina Division of Motor Vehicles, #01-1718, 33 Fed. Appx. 45 (4th Cir. 2002).

     Georgia sheriff was the county's final policymaker in relation to his law enforcement duties, including the maintenance and recall of criminal warrants, and acted on behalf of the county rather than the state, so that the county could be held liable for his actions. Summary judgment for the county by trial court reversed on appeal. Grech v. Clayton County, Georgia, #01-13151, 288 F.3d 1277 (11th Cir. 2002).

     A county's failure to keep records of oral complaints made against police officers did not constitute a persistent and widespread practice or custom of authorizing or encouraging police misconduct where the county did maintain a formal procedure for receiving written complaints and kept records of those. Gardner v. Hill, 195 F. Supp. 2d 832 (E.D. Tex. 2001).

High-Speed Pursuit

     Illinois jury awards $11 million to 17-year-old passenger injured in car allegedly pursued at 70 m.p.h. by officers who wanted driver because of outstanding warrant on drug charges. Municipality found liable for 80% of award, while driver of pursued car found liable for 20%. Salonica Prado v. The City of Evanston, et al., No. 97L-14541, Circuit Court of Cook County, Illinois, Law Division, June 11, 2002, reported in The Chicago Daily Law Bulletin, p. 3 (July 12, 2002).

Police Plaintiffs

     Bar owner held liable for $4.5 million to injuries off-duty officer suffered from attack by patron when he went there to celebrate his graduation from SWAT team training. Zelaya v. U.S. Euro Micro Ventures, No. 00-32681(6), Miami-Dade County, Fla., Circuit Court, Feb. 26, 2002, reported in The National Law Journal, p. B4, May 13, 2002.

Privacy

     Sheriff's office did not violate the privacy rights of a 13-year-old girl when it issued a press release stating that she had engaged in consensual sex with an 18-year-old man whom she had met on the internet. There was no reasonable expectation of privacy in the statements she made to law enforcement officers and the press release was "substantially true," defeating any defamation claim. Loeks v. Reynolds, #01-1183, 34 Fed. Appx. 644 (10th Cir. 2002).

     Family of deceased former police sergeant had no claim for violation of the constitutional right to privacy or due process based on police lieutenant's ordering of autopsy and photographs of the decedent's body. His actions did not constitute a taking of property, and the surviving family was not deprived of their father's body, or prevented from disposing of it as they saw fit. Additionally, the body was not disturbed from a resting place. Helmer v. Middaugh, 191 F. Supp. 2d 283 (N.D.N.Y. 2002).

Procedural: Evidence

     State troopers destroyed tapes relating to an incident in good faith pursuant to normal practices before any litigation was pending, and additionally, the plaintiffs received transcripts of the tapes, so that there could be no adverse inference as to "spoilation of evidence" in an arrestee's claim for injuries. Arrestee could not collect damages for his fall and cracked skull while restrained at the police station following his arrest for driving while intoxicated, based on testimony by plaintiff's own expert witness that he was properly restrained, and that, while there were alternative restraining methods, they posed their own risks. Raymond v. State, 740 N.Y.S.2d 743 (A.D. 2002).

Public Protection: Crime Victims

     California Supreme Court rules that county and sheriff's department were not liable for negligence for failing to protect a woman from being fatally shot by her ex-husband at a courthouse. The defendants did not increase the risk of harm to the decedent, and the posting of signs "warning" persons of the alleged lack of security at the courthouse would have discouraged litigants from resorting to the courts. Those entering courthouse were, in any event, aware that persons entering were not screened for weapons. Zelig v. County of Los Angeles, #S081791, 119 Cal. Rptr. 2d 709, 45 P.3d 1171 (Cal. 2002).

     Police officer's failure to immediately report his reasonable suspicion that a female middle school teacher was sexually abusing one of her female students did not subject him or the city liable for violation of the student's due process rights. Doe v. City of Marion, 196 F. Supp. 2d 750 (N.D. Ind. 2002).

Racial Discrimination

     Hispanic gunshot victim did not produce any evidence that he was subjected to differential treatment, ill will, or vindictive action by a police officer who allegedly delayed summoning an ambulance for him. Plaintiff did not adequately plead facts to support an equal protection "class of one" claim. Additionally, there was no "special relationship" between the plaintiff and the city imposing a duty to protect him from harm when he was not in custody and the police officers did not create his need for medical assistance. Torres v. City of Chicago, 194 F. Supp. 2d 790 (N.D. Ill. 2002).

Search and Seizure: Home/Business

     Resident of a home who was not its owner had a reasonable expectation of privacy, but his privacy was not violated by noncompliance with the "knock-and-announce rule" when he was not present during the execution of a search warrant. Further, as a non-owner, he lacked standing to assert a claim for damage to the property, such as the breaking of doors. Eiland v. Jackson, #01-3139, 34 Fed. Appx. 40 (3rd Cir. 2002).

     Colorado Supreme Court holds that U.S. and Colorado constitutions protect an individual's "fundamental right to purchase books anonymously," and imposes a requirement under state law that bookstores be given an opportunity for an adversarial hearing prior to the execution of a search warrant seeking customer purchase records, to balance the need for the search against the privacy interests of the customers. Tattered Cover, Inc. v. City of Thornton, #01SA205, 44 P.3d 1044 (Colo. 2002).

Arbitration Procedures

     Appeals court overturns an arbitration award that ordered reinstatement of a deputy who repeatedly used marijuana and lied about it to his superiors. Washington Co. Police Officers v. Washington County, #A114208, 181 Ore. App. 448, 45 P.3d 515, 2002 Ore. App. Lexis 727 (2002).

     A party who objects to arbitration must wait until the arbitrator concludes the dispute with a final opinion, before challenging the arbitration process by judicial actions. Montgomery Co. v. Montgomery Co. Educ. Assn., #1817 CD 2001, 797 A.2d 432, 2002 Pa. Commw. Lexis 275 (Pa. Cmwlth 2002).

     Arbitrator rules that a city did not violate the bargaining agreement when it had to replace the dental coverage with a more expensive policy, which required a worker co-payment. The contract was silent on dental plan coverage. Oklahoma City and FOP L-123, FMCS #01/05071, 116 LA (BNA) 1502 (Moreland, 2002).

Associating with Known Criminals

     California Appeals Court upholds the termination of a clerk, at a police association's insurance office, for having an ongoing intimate relationship with a convicted felon. Access to officers' confidential files was incompatible with her behavior. Ortiz v. L.A. Police Relief Assn., #B148574, 2002 Cal. App. Lexis 4192, 02 C.D.O.S. 4813 (Cal.App.2d Dist. 2002).

Back Pay Claims and Awards

     Federal appeals court rules that the federal Back Pay Act reverts to the date of the adverse action, and an award of back pay for periods pre-dating the adverse action was erroneous. Mattern v. Dept. of Treasury, #01-3253, 2002 U.S. App. Lexis 10257 (Fed. Cir. 2002).

Collective Bargaining - In General

     Labor board finds that an employee, who criticized management in a union newsletter, was protected against disciplinary action by engaging in "concerted activity." Phoenix Transit Sys. and Amal. Transit Union L-1433, #28-CA-15177, 2002 NLRB Lexis 170, 337 NLRB No. 78 (NLRB 2002).

Damages, Remedies and Enforcement of Settlements

     President signs H.R. 169, requiring federal agencies to pay the settlement costs for discrimination an whistleblower cases from agency budgets. Notification and Federal Anti-Discrimination and Retaliation Act, 5 U.S. Code §2301 (§101 et seq.), Pub. L. No. 107-174 (2002).

Death Benefits

     Federal appeals court holds that the DoJ, in determining eligibility for a $100,000 federal death benefit, was not obliged to adopt the findings of a police report that concluded the deceased was killed in the line-of-duty. The deceased, who was off-duty and driving to work in his personal vehicle, was struck by a car being chased by other officers. The DoJ denied benefits, based on a finding that the deceased was unaware of the chase, and was not attempting to assist the other officers. The appeals court reversed a Court of Federal Claims decision that had overturned the DoJ determination. Demutiis v. U.S., #01-5041, 2002 U.S. App. Lexis 10259 (Fed. Cir. 2002).

Disability Rights and Benefits - Benefit Disputes

     Prison food service manager was entitled to occupational disability benefits following a fall, even though he had aggravating preexisting conditions, including morbid obesity and an asymptomatic degenerative back condition. Langford v. Employees Retirem. Sys. of Tex., #03-01-00081, 73 S.W.3d 560, 2002 Tex. App. Lexis 2873, 2002 WL 704675 (Tex.App. 2002).

Disciplinary Evidence - Admissibility/In General

     Arbitrator allows a city to introduce an employee's medical record into evidence. Although "hearsay" is usually inadmissible in a judicial proceeding, AAAA Labor Arbitration Rule 28 permits hearsay evidence in arbitration hearings. Town of Harwich [Mass.] and IBPO L-392, AAA Case #11-309-00999-1, 116 LA (BNA) 1461 (Alleyne, 2001; Rptd. 2002).

Disciplinary Evidence - Exclusionary Rule

     Illinois appellate court refuses to exclude surveillance evidence because the Chicago Municipal Code (§2-152-340) requires the city's inspector general to complete investigations within six months. "The length of the investigation resulted in a more thorough investigation, which arguably protected plaintiff from being discharged without cause. These facts support a finding for admission of the evidence." Fedanzo v. City of Chicago, #1-01-0582, 2002 Ill. App. Lexis 413 (Ill. App. 2002).

Disciplinary Interviews / Criminal Investigations

     Incriminating statements given by a law enforcement officer to his superiors, after he had received the Miranda warnings, were admissible in his criminal prosecution. At no time did his superiors advise him that he had to answer questions as a condition of continued employment. State v. Koverman, #01SA210, 38 P.3d 85, 2002 Colo. Lexis 58 (2002).

Disciplinary Interviews / Insubordination - Refusal to Answer

     Federal appeals court upholds the termination of a public employee who declined to answer I-A questions relating to possible criminal conduct. Both the investigator and her lawyer gave her bad advice to take the Fifth Amendment. She may have a remedy against her lawyer for malpractice, but is not entitled to get her job back. Atwell v. Lisle Park Dist., #01-2520, 286 F.3d 987, 2002 U.S. App. Lexis 6775, 18 IER Cases (BNA) 901 (7th Cir. 2002).

Disciplinary Interviews / Weingarten Rights

     DC Circuit upholds a NLRB decision that extends Weingarten rights to nonunion employees. Supreme Court declines review. Epilepsy Fdn. of NE Ohio v. NLRB, #00-1332, 268 F.3d 1095, 2001 U.S. App. Lexis 23722, 168 LRRM (BNA) 2673 (D.C. Cir. 2001); cert. den. 70 U.S.L.W. 3756 (2002).

Disciplinary Searches

     Fourth Circuit denies an en banc rehearing in the Los Alamos Lab whistleblower lawsuit. Action leaves intact a three-judge holding that the FBI agents violated the Fourth Amendment when they conducted a warrantless search of a DoE whistleblower's password protected computer files after his roommate consented to the search. Trulock v. Freeh, #00-2260, 289 F.3d 829, 2002 U.S. App. Lexis 7044 (Unpublished Order, 4th Cir. 2002).

Fringe Benefits

     Arbitrator denies a union request for an increase in a detective's clothing allowance. The city actually paid more than surrounding communities and the fact that the IRS now requires employers to withhold taxes on clothing allowances is not a valid basis for an increase. City of Chehalis, WA (Police) and Teamsters Union, L-252, #15864-I-01-366, 116 LA (BNA) 1424 (Downing, 2002).

Genetic Privacy & Testing

     EEOC and a multistate employer settle a class action lawsuit challenging genetic testing. 36 workers to receive $2.2 million. EEOC v. BNSF Rwy., #02cv456 (E.D. Wis. 2002); EEOC v. BNSF Rwy., #01cv04013, 1 ABA Journal e-Report 21 (N.D. Iowa 2002).

Handicap Laws / Abilities Discrimination - In General

     Federal appeals court finds that an arthritic employee was terminated because of computer misuse and writing an inflammatory memo, rather than reasons related to his disability. Dvorak v. Mostardi Platt Assoc., #00-4309, 2002 U.S. App. Lexis 9030 (7th Cir. 2002).

Handicap Laws/ Abilities Discrimination - Accommodation

     Supreme Court upholds a EEOC Reg. allowing employers to reject disabled applicants where the job environment would be unusually hazardous for them. Chevron v. Echazabal, #00-1406, 2002 U.S. Lexis 4202 (2002).

Handicap Laws / Abilities Discrimination - Specific Disabilities

     An employee with a medical condition resulting in his being unable to read more than half of the workday, is not a qualifying disability under the ADA. Szmaj v. AT&T, #01-3379, 2002 U.S. App. Lexis 9977 (7th Cir. 2002).

     A county employee with ocular albinism and corrected vision of 20/60 was not disabled under the ADA. Manz v. Gaffney, #CV 99-8442, 2002 U.S. Dist. Lexis 8363 (E.D.N.Y. 2002), relying on Colwell v. Suffolk County Police Dept., 158 F. 3d 635, 8 AD Cases (BNA) 1232 (2d Cir. 1998).

Health Insurance & Benefits

     Arbitrator rules that a city did not violate the bargaining agreement when it had to replace the dental coverage with a more expensive policy, which required a worker co-payment. The contract was silent on dental plan coverage. Oklahoma City and FOP L-123, FMCS #01/05071, 116 LA (BNA) 1502 (Moreland, 2002).

Light Duty Assignments

     Eight Circuit upholds a ruling that a claimant's subjective complaints of back pain must be supported with objective medical evidence to verify severity, and that the employee was able to return to light work. Ramirez v. Barnhart, #01-2911, --- F.3d ----, 2002 WL 1181052, 2002 U.S. App. Lexis --- (8th Cir. 2002).

Privacy Rights

     Federal employees: Ninth Circuit holds that the Civil Service Reform Act bars federal employee claims under the Privacy Act, affirming the dismissal of a suit brought by two deputy U.S. Marshals. Orsay v. Justice Dept., No. 00-16860, 289 F.3d 1125, 2002 U.S. App. Lexis 9127(9th Cir. 2002).

     They claimed that the Marshals Service violated their rights to be free from unreasonable searches by requiring them to undergo fitness-for-duty examinations, in order to return from extended time off without pay. Appeals court holds that a mayor's public disclosure that the chief of police was undergoing treatment for stress was not an egregious enough humiliation to support a federal privacy claim. Cooksey v. Boyer, #01-3133, 289 F.3d 513, 2002 U.S. App. Lexis 8730 (8th Cir. 2002).

Race Discrimination - In General

     Ninth Circuit overturns a trial court and upholds the use of an internal pool for statistical purposes in identifying an alleged disparate impact. Paige v. State of California, #01-55312, 2002 U.S. App. Lexis 10279, 02 C.D.O.S. 4730 (9th Cir. 2002).

Race or Sex Discrimination - Disparate Discipline

     Seventh Circuit rejects comparative evidence of disparate disciplinary action, where the coworkers were supervised by different superiors. Snipes v. IL Dept. of Corrections, #01-3148, 2002 U.S. App. Lexis 9728 (7th Cir.).

Religious Discrimination

     Newark and EEOC settle lawsuit over grooming policies and overtime assignments for Muslim police officers. City agrees to accommodate their religious practices and pay compensatory damages. U.S. v. City of Newark, #00-CV-2368 (D.N.J. 2002).

Residency Requirements

     Residency requirement of City of Chicago for employees stationed at O'Hare airport is constitutional. Fedanzo v. City of Chicago, #1-01-0582, 2002 Ill. App. Lexis 413 (Ill. App. 2002).

Sex Discrimination - In General

     New York's highest court gives 9% per year prejudgment interest to a victim of discrimination who waited 12 years for a trial. To hold otherwise would encourage employers to seek delays. Matter of Aurecchione v. N.Y. St. Div. of Human Rights, 2#47, 2002 NY Int. 41, 2002 N.Y. Lexis 898 (2002).

Smoking Rights/Restrictions & Air Quality Claims

     The GSA has asked all federal agencies to prohibit the use of tobacco products within any vehicles owned or leased by the government. GSA has banned tobacco in fleet vehicles controlled by GSA since 1993. The ban was expanded on the recommendation of the Federal Fleet Policy Council. GSA Motor Vehicle Management Bulletin, 67 (72) Fed. Reg. 18205 (4/15/02).

Statistical Evidence

Ninth Circuit overturns a trial court and upholds the use of an internal pool for statistical purposes in identifying an alleged disparate impact. Paige v. State of California, #01-55312, 2002 U.S. App. Lexis 10279, 02 C.D.O.S. 4730 (9th Cir. 2002).

Whistleblower Requirements and Protection

     FAA settles whistleblower claim. Aviation specialist was fired for going outside the chain of command to report to the FBI that a Saudi national, with a name similar to a 9-11 hijacker, had attended a FAA flight school. Office of Special Counsel ex rel. Hopkins v. DoT, #CB-1208-02-0004-U-1, 40 (1963) G.E.R.R. (BNA) 568 (Settlement, 2002).

     First Circuit holds that states have sovereign immunity from federal administrative proceedings that are initiated by state employees to invoke federal whistleblower protections. Rhode Island Dept. of Environ. Mgmt. v. United States, #00-2326, 286 F.3d 27, 2002 U.S. App. Lexis 6423(1st Cir. 2002).

Workers' Compensation - Claim Validity

     Appeals court rejects a comp. claim for psychic injuries resultant from coworker gossip when she had a sexual affair with another married employee. Atascadero Unif. Sch. Dist. v. W.C.A.B., 02 C.D.O.S. 4596, 2002 Cal. App. Lexis 4162 (Cal.App. 2d Dist. 2002).

Attorneys' Fees

     Inmate was a "prevailing party" after he was awarded only $1 in nominal damages in his lawsuit accusing correctional officers of using excessive force against him, but an award of attorneys' fees was not warranted in view of his limited success, since a jury found in favor of one of the two officers, he had sought $790,000 in damages, the case did not involve "significant legal issues," and there was no injunctive relief granted. Ciaprazi v. County of Nassau, 195 F. Supp. 22d 398 (E.D.N.Y. 2002).

Defenses: Eleventh Amendment Immunity

     District of Columbia correctional officials could not assert an Eleventh Amendment immunity defense in a federal civil rights claim filed against them in their official capacity by a prisoner. Eleventh Amendment immunity only applies to states, and the District of Columbia is not a state. Jones v. Barry, #01-2092, 33 Fed. Appx. 967 (10th Cir. 2002).

Diet

     Prisoner's claim that he was negligently served a meal in custody that contained a grasshopper did not state a viable claim under Ohio law, since he did not claim that any exception to a state statute providing immunity for governmental functions applied. Blackwell v. Patten, No. C100-5364, 767 N.E.2d 310 (Ohio Com. Pl. 2001).

Disability Discrimination: Prisoners

     U.S. Supreme Court rules that punitive damages may not be awarded in private lawsuits under provisions of the Americans With Disabilities Act (ADA) and Rehabilitation Act prohibiting disability discrimination by public entities or the recipients of federal funding. Decision overturns $1.2 million award against city for failure to provide wheelchair restraints in a vehicle in which a wheelchair-bound detainee was transported and injured. Barnes v. Gorman, #01-682, 122 S. Ct. 2097 (2002).

Employee Injury/Death

     Deputy was properly awarded damages for slip and fall on wet terrazzo floor in jail outside of her office. Evidence showed that sheriff's office was negligent in failing to address a problem with recurring condensation on the floor where the deputy slipped. Award of $250,170 for lost earning capacity, however, was excessive, because of deputy's other significant health problems so that award would be reduced to $122,085. Gorton v. Ouachita Parish Police Jury, No. 35,432-CA, 814 So. 2d 95 (La. App. 2002).

Escape

     County was not liable to parents under 42 U.S.C. Sec. 1983 for escaped prisoner's actions in killing one of their sons based on policies or customs that allegedly allowed the prisoner to escape. In shooting at the parent's sons, the prisoner did not act under color of state law, and the county was not aware that the victims of the prisoner's actions, as opposed to the public at large, faced any special danger from the escaped prisoner. Gaston v. Houston County, Texas, 196 F. Supp. 2d 445 (E.D. Tex. 2002).

First Amendment

     Prison policy prohibiting prisoners from receiving publications, such as books and magazines, as gifts, violated their First Amendment rights, but federal appeals court rules that the law on this subject was not "clearly established" until it had upheld a similar ruling in another case on appeal, entitling defendant prison officials to qualified immunity from liability. Sorrels v. McKee, #01-35222, 287 F.3d 1213 (9th Cir. 2002).

Frivolous Lawsuits

     Prisoner's federal civil rights lawsuit, along with Texas state Tort Claims Act claim, over the loss of two pairs of sunglasses was properly dismissed as frivolous. Prisoner's declaration that he was able to pay the filing fee and intended to pay it, did not exempt him from the screening process for frivolous lawsuits applied to complaints filed by paupers when he did not actually ever pay the fee. Johnson v. Texas Department of Criminal Justice, #08-01-00247-CV, 71 S.W.2d 492 (Tex. App.--El Paso 2002).

Inmate Property

     Provisions of Federal Tort Claims Act do not waive the federal government's immunity from suit for a prison guard's alleged wrongful detention of prisoner property. Prisoner also could not pursue civil rights lawsuit over failure to return property, when adequate administrative post-deprivation remedies were available. Rendelman v. United States of America, #99-56858, 32 Fed. Appx. 804 (9th Cir. 2002).

Mail

     Prison mail room supervisor was entitled to qualified immunity from prisoner's lawsuit over his failure to send out outgoing legal mail which was sealed in violation of Michigan Department of Corrections policy which required prisoners who needed a postal loan to send out legal mail to submit it unsealed. Supervisor had no reason to believe that this violated clearly established law, and the prisoner failed to show that he was prejudiced in his court case by this action, as required to prove a claim for violation of the First Amendment right of access to the courts. Smith-El v. Steward, #01-5646, 33 Fed. Appx. 714 (6th Cir. 2002).

Medical Care

     Arkansas prisoner with asthma and "painful knot" in his side adequately stated claims for deliberate indifference to his medical problems by prison farm doctor and nurse, based on alleged denials of treatment, and stated claim against warden and state corrections director for "abdication of policy-making and oversight" responsibilities. Appeals court also finds prisoner adequately exhausted his available administrative remedies. Leach v. Norris, #01-3315, 34 Fed. Appx. 510 (8th Cir. 2002).

     Alleged failure of county correctional center nurse to dispense prisoner's medication for his HIV condition in a timely manner was not sufficiently serious to constitute deliberate indifference to serious medical needs in violation of the Eighth Amendment even if it did cause aches, pains and joint problems. Resulting symptoms were not a condition of "urgency" or one which might produce "death, degeneration or extreme pain." Evans v. Bonner, 196 F. Supp. 2d 252 (E.D.N.Y. 2002).

     Inmate's complaint about the denial of a chair for his cell in order to alleviate his back pain was insufficient to state a claim for deliberate indifference to his serious medical needs, and merely pointed to a disagreement he had with medical personnel over the adequacy of his treatment. Hutton v. Wilkinson, #01-3667, 34 Fed. Appx. 463 (6th Cir. 2002).

Prison Litigation Reform Act: Exhaustion of Remedies

     Prisoner adequately exhausted his available administrative remedies on his claim of deliberate indifference to his medical needs before filing his federal civil rights lawsuit when he received a favorable result on his grievance, even though he did not take his claim to the highest level possible. Prisoner was not required to appeal a favorable grievance decision, and a further appeal would not have given him any additional relief. Brady v. Attygala, 196 F. Supp. 2d 1016 (C.D. Cal. 2002).

     Prisoner's complaint that failure of prison officials to provide him with a kosher food diet violated his right to exercise his religion should be dismissed without prejudice because of his failure to exhaust available administrative remedies provided under Tennessee state law. Watler v. Campbell, #01-5646, 33 Fed. Appx. 764 (6th Cir. 2002).

     Inmate's alleged pursuit of his grievance through informal channels under New York law was relevant to the issue of whether he had exhausted available administrative remedies before pursuing his federal lawsuit. Federal trial court allows prisoner to proceed with conducting discovery concerning his informal grievance. Perez v. Blot, 195 F. Supp. 2d 539 (S.D.N.Y. 2002).

     Prisoner was required to pursue a grievance with the prison's chief medical officer before filing a federal civil rights lawsuit over the alleged denial of necessary medical treatment even if, as he claimed, it would have been futile to do so. The requirement of exhaustion of available administrative remedies in 42 U.S.C. Sec. 1997e(a) does not contain a futility exception. Farrell v. Addison, #01-7094, 01-7127, 34 Fed. Appx. 650 (10th Cir. 2002).

Prison Litigation Reform Act: Mental Injuries

     Federal appeals court rejects plaintiff prisoner's argument that "any" physical injury is sufficient to support a claim for mental or emotional distress under the provisions of the Prison Litigation Reform Act, and also rejects the argument of defendant correctional officials that an "observable or diagnosable medical condition requiring treatment by a medical care professional" was required. Plaintiff prisoner must, court rules, show more than minimal physical injury. Oliver v. Keller, #00-15849, 289 F.3d 623 (9th Cir. 2002).

Prisoner Assault: By Inmates

     Prison employees were not deliberately indifferent to a risk of harm to a prisoner assaulted by another inmate after he was allowed to "wander about" unescorted in violation of prison policy. Employees' actions were, at most, negligent, but they had no basis to foresee that the assailant posed a particular risk to the injured prisoner. Benner v. McAdory, #01-2140, 34 Fed. Appx. 483 (7th Cir. 2002).

Prisoner Assault: By Officers

     City correctional officer did not use excessive force against prisoner who was uncooperative and acted "erratically" during the booking process and intake search, regardless of whether the Fourteenth Amendment or the Eighth Amendment standards were applied, federal appeals court rules. Williams v. City of Las Vegas, #00-17487, 34 Fed. Appx. 297 (9th Cir. 2002).

     Prisoner who claimed that correctional officer assaulted him in retaliation for his prior lawsuits against correctional officers did not present an adequate claim that other prison officials or employees knew of the risk of this happening and were deliberately indifferent to it. Ribot-Carino v. Laboy, 196 F. Supp. 2d 131 (D. Puerto Rico 2002).

Prisoner Classification

     Kansas correctional "incentive programs" placing prisoners in various "levels" and according them privileges accordingly based on their participation in what prisoners described as "involuntary behavioral modification" systems did not violate prisoners' due process rights. Love v. McKune, #01-3332, 33 Fed. Appx. 369 (10th Cir. 2002).

Prisoner Discipline

     Prisoner could not sue for damages for alleged due process violations in prison disciplinary proceeding for hitting fellow inmates with a baseball bat or pursue claim that disciplinary charges were brought against him for racially discriminatory reasons. No such lawsuit was permitted unless the disciplinary conviction was first set aside. Prisoner's claim for habeas corpus was his proper avenue for restoration of lost good time credits, and his placement in punitive segregation for 30 days was not an "atypical and significant hardship" implicating a protected liberty interest. Portley-El v. Brill, #00-1923, 288 F.3d 1063 (8th Cir. 2002).

     Evidence was sufficient to find prisoner guilty of violating correctional correspondence procedures when there was testimony that he had previously been notified that his cousin, to whom he mailed a letter, had been added to his "negative correspondence list." Even if prisoner was correct that the addition of the name to the list was unauthorized, he was not entitled to ignore the listing and mail the letter. Gibson v. Goord, 741 N.Y.S.2d 577 (A.D. 2002).

Prisoner Restraint

     U.S. Supreme Court holds that alleged use of "hitching post" to restrain prisoner outside in hot weather for seven hours without bathroom breaks and with only one or two water breaks, if true, established an Eighth Amendment violation, for which defendant prison officials were not entitled to qualified immunity defense at summary judgment phase of proceedings. Hope v. Pelzer, #01-309, 122 S. Ct. 2508 (2002).

Prisoner Transfers

     Alleged violation of Interstate Corrections Compact in transferring prisoner from Florida state prison to one in Kansas was not a violation of federal law which could be the basis of a claim for damages under 42 U.S.C. Sec. 1983. Halpin v. Simmons, #01-3301, 33 Fed. Appx. 961 (10th Cir. 2002).

Religion

     Federal Bureau of Prisons' (BOP) action of housing federal prisoners who were Rastafarians or Muslims in Virginia state facilities with a grooming policy prohibiting long hair and beards violated the prisoners' rights under the Religious Freedom Restoration Act. Court orders BOP to transfer such prisoners to other facilities. Gartrell v. Ashcroft, 191 F. Supp. 2d 23 (D.D.C. 2002).

     Claim that prisoner was punished for fasting for religious reasons by being placed "in the hole" was sufficient to state a claim for violation of his First Amendment right to practice his religion. Lomholt v. Holder, #02-1427, 287 F.3d 683 (8th Cir. 2002).

     Self-professed Wiccan witch was not entitled to injunctive relief on his claim that prison chaplain and librarian failed to deliver to him his religious mail concerning his continuing education in the field of "metaphysical theology." Benham v. Priest, #01-2360, 34 Fed. Appx. 465 (6th Cir. 2002).

Sexual Assault

     Hospital and correctional department were not vicariously liable for therapist's alleged fondling of female prisoner and subsequently contacting her after her release and coercing her into prostitution. The therapist's alleged actions were entirely for his own interests and were not in furtherance of the defendants' interests. There was also no liability for negligent hiring and supervision since nothing indicated that the therapist's alleged actions were foreseeable. Garcia v. Montefiore Medical Center, 740 N.Y.S.2d 307 (A.D. 2002).