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

Assault and Battery: Choke Holds

     Trial court's determination that a trooper that detained a shopper in a grocery store did not use a choke hold in the apprehension was supported by the evidence that the officer had grabbed the detainee around the shoulders, rather than by the throat or neck, as well as officer's testimony that he never used choke holds and had never been taught or trained to use them. Wasserman v. Bartholomew, No. S-9604, 38 P.3d 1162 (Alaska 2002).

Assault & Battery: Physical

     Officer's alleged action in striking the arrestee's face and slamming his face into the floor after he had been subdued, if true, violated the Fourth Amendment's prohibition on excessive force so that officer was not entitled to qualified immunity from liability. Appeals court could decide legal issue on appeal despite officer's dispute of arrestee's version of the facts. Phelphs v. Coy, #00-4257, 356 F.3d 295 (6th Cir. 2002).

Defenses: Eleventh Amendment Immunity

     Georgia sheriff was an agent of the county, rather than an agent of the state, under prior precedent, so that he was not entitled to Eleventh Amendment immunity from suit against him in his official capacity for alleged excessive use of force. Manders v. Lee, #01-13606, 285 F.3d 983 (11th Cir. 2002).

Defenses: Qualified (Good-Faith) Immunity

     Officers acted objectively reasonably in forcing a diabetic motorist to a stop and forcibly removing him from his truck through the use of pepper spray, baton blows, and bites from a police dog when his erratic driving was serious enough that people might have been killed by it, and he refused to comply with lawful orders once he was stopped. Moore v. Winer, 190 F. Supp. 22d 804 (D. Maryland 2002).

Dogs

     Police officer did not use excessive force in releasing a police dog into the woods to search for and hold a suspect when he had reason to belief he had already committed serious crimes, including threatening someone with a gun while intoxicated, and posed an immediate threat to the safety of the officers and the public and was actively attempting to evade capture through flight. Neeley v. Samis, 183 F. Supp. 2d 672 (D. Del. 2002).

Domestic Violence

     Sufficient exigent circumstances existed for officer to make a warrantless entry into a home to make an arrest when he was called to the home to investigate a possible domestic dispute, noticed clothing strewn about the street in front of the residence, and was approached by a woman with an arm that appeared disfigured who told him that the man inside the house had broken her arm. Walker v. West Caln Township, 170 F. Supp. 2d 522 (E.D. Pa. 2001).

Expert Witnesses

     The trial court did not abuse its discretion in allowing expert witness testimony on the ultimate issue in the case of whether a deputy's use of force was proper against a Vietnam veteran who was fatally shot by a deputy responding to a domestic violence call. Crawford v. Bundick, No. 01-2864, 32 Fed. Appx. 785 (8th Cir. 2002).

Family Relationships

     Parents of motorist shot and killed by police officer could pursue a Fourteenth Amendment claim for the deprivation of their son's relationship despite the fact that he was an adult and had fathered a child, when he had never become part of another "family unit" since he had not married, but his siblings could not do so. Russ v. Watts, 190 F. Supp. 22d 1004 (N.D. Ill. 2002).

False Arrest/Imprisonment: No Warrant

     Two environmental activists (including the estate of one now deceased) awarded a total of $4.4 million in a lawsuit against three F.B.I. agents and three police officers for false arrest in case where they were injured when a homemade bomb exploded in their car. Arrest was based on a claim that arrestees were transporting the bomb to use for a terrorist act protesting the logging of redwood trees. Bari v. Buck, #911-01051CW, U.S. Dist. Ct. N.D. Cal. June 111, 2002), reported in The New York Times, National Print Edition, page A14 (June 12, 2002).

     Officer was entitled to official immunity from false arrest and assault lawsuit under Texas law based on his authority to inspect the record of a commercial vehicle, since his decision concerning whether to arrest the driver for failure to produce the record was discretionary rather than ministerial. Kersey v. Wilson, # 2-01-226-CV, 69 S.W.3d 794 (Tex. App. 2002).

     An officer was not liable for issuing a citation finding a motorist at fault for an accident despite motorist's contention that he did so in retaliation for the motorist having previously complained about the officer. The officer's investigation still provided probable cause for the issuance of the citation, based on the motorist's own admission, the other driver's account of the accident, and the apparent damage to the vehicles. An officer has qualified immunity to make an arrest or issue a citation when either it was objectively reasonable to believe that probable cause existed or reasonable officers could disagree on whether probable cause was there. Menon v. Frinton, #01-7639, 31 Fed. Appx. 735 (2nd Cir. 2002).

     Officer had probable cause to arrest bar owner for assault after bar patron told officer that owner had assaulted him and officer observed blood on patron's lips and owner admitted having struck a second patron. Officer, under these circumstances, was not required to investigate the bar owner's version of the incident more completely before making an arrest. Curley v. Village of Suffern, No. 99-9367, 268 F.3d 65 (2nd Cir. 2001).

False Arrest/Imprisonment: Warrant

     Information that police detective allegedly omitted from his probable cause affidavit for an arrest warrant for a robbery suspect would have not altered the affidavit in a material way, so that the omission did not violate the suspect's Fourth Amendment rights. Garcia v. Gasparri, 193 F. Supp. 2d 445 (D. Conn. 2002).

     Detective was entitled to qualified immunity from liability on false arrest claim when he was present at, but did not participate in, a probable cause hearing. Detective had no affirmative duty to correct any testimony presented that he knew to be false or misleading, and even if he had such a duty, it would be unreasonable for the detective to believe that his conduct in subsequently making an arrest under the warrant issued at the hearing was unlawful. Pacheco v. Edgington, # 00-16937, 32 Fed. Appx. 299 (9th Cir. 2002).

     County and sheriff's department could not be held liable for civil rights violation for deputy's action in entering a home in alleged violation of the Fourth Amendment to execute a bench warrant against a third party (not the homeowner), in the absence of any evidence that the county or department had a custom or practice of relying on insufficient information in serving arrest warrants. Werbicki v. County of Los Angeles, #00-56801, 32 Fed. Appx. 302 (9th Cir. 2002).

Firearms Related: Intentional Use

     Factual issues existed as to whether officers reasonably believed that they saw a gun, a muzzle flash, or were otherwise threated with deadly force by a motorist that they shot and killed after stopping him for a traffic violation. Officers were therefore not entitled to qualified immunity from liability. Lee v. Hanna, No. 01-55403, 32 Fed. Appx. 937 (9th Cir. 2002).

     Off-duty police officer did not use excessive force in shooting a man he observed attempting to enter various homes in his neighborhood. Suspect was trying to escape from a house he did enter, and his right hand was out of the officer's sight when he rotated his shoulder, giving him reason to believe that he was in immediate threat of serious bodily harm. Billingsley v. City of Omaha, #01-1487, 277 F.3d 990 (8th Cir. 2002).

First Amendment

     Woman who allegedly intended to place religious leaflets on car windshields had standing to sue county prosecutor and superintendent of state patrol to enjoin, on First Amendment grounds, enforcement of state statute prohibiting such leafleting, since she faced a credible threat of enforcement of the statute after they refused to tell her lawyer that they would not enforce it. Deida v. City of Milwaukee, 192 F. Supp. 2d 899 (E.D. Wis. 2002).

Governmental Liability: Policy/Custom

     County sheriff was not liable for violation of civil rights on the basis of enforcement of a state court order for replevin (possession) of property (employer's records in the possession of a former employee) in the absence of any claim that the sheriff participated individually in the action or that the seizure was conducted pursuant to any official policy or custom. Buzzanco v. Lord Corporation, 173 F. Supp. 2d 376 (W.D. Pa. 2001).

     Plaintiff failed to show sufficient evidence of a city custom to impose liability for excessive use of force when only a single incident of use of such force was shown. A newspaper article reporting that 87 people a year filed complaints against the police department did not show how many of these complaints alleged the use of excessive force. Ward v. City of Des Moines, 184 F. Supp. 2d 892 (S.D. Iowa 2002).

High Speed Pursuit

     Passenger injured in high-speed pursuit of car in which she was riding is awarded $11 million by Illinois jury. Prado v. Evanston, Circuit Court of Cook County, Illinois, Law Division, reported in the Chicago Tribune, Section 2, page 5 (June 13, 2002).

Interrogation

     U.S. Supreme Court to review federal civil rights lawsuit over custodial interrogation of a wounded suspect while being treated in a hospital for life-threatening injuries. Suspect was never charged with a crime, so no statements were ever used in court, but appeals court ruled that he could still pursue his claims. Martinez v. Oxnard, No. 01-1444, cert. granted 2002 U.S. Lexis 4044. Appeals court decision below is Martinez v. City of Oxnard, No. 00-56520, 270 F.3d 852 (9th Cir. 2001).

Police Plaintiff: Defamation

     Mayor's critical statements about a police department with between five and eight members could not be the basis for a defamation lawsuit by one of the officers on the basis of a "small group theory" that the statements could be taken to apply to each individual officer. The mere conclusory belief that the statements reported in a newspaper article concerned the individual plaintiff officer were insufficient for liability under Virginia law. Dean v. Dearing, No. 011154, 561 S.E.2d 686 (Va. 2002).

Police Plaintiff: Products Liability

     Police officer who was struck by a police vehicle with an allegedly defective brake system failed to adequately present evidence of defective design in his products liability lawsuit against the car's designer and manufacturer. Bourgeois v. Garrard Chevrolet, Inc., No. 2002-C-0288, 811 So. 2d 962 (La. App. 4th Cir. 2002).

Procedural: Discovery

     Personnel records of police officers who would offer expert opinions in lawsuit on the alleged excessive use of force were not privileged from discovery under the West Virginia Freedom of Information Act, W.Va. Code 29B-1-1 et seq. or under state police regulations concerning the confidentiality of personnel files. The records also were not privileged as law enforcement investigatory materials or as official information. Rollins v. Barlow, 188 F. Supp. 2d 660 (S.D. W. Va. 2002).

Public Protection: Arrestees

     Officer was not liable for death of intoxicated arrestee because of alleged failure to confine him securely enough in police vehicle to prevent the struggle that led to his death. Proffitt v. Ridgway, #00-3229, 279 F.3d 503 (7th Cir. 2002).

Racial Discrimination

     Police department's pursuit of indictment and prosecution of former teacher for alleged sexual assault of minor student, based on student's false accusations was not racial discrimination, since teacher did not allege or show that the conduct was motivated by racial considerations. Clark v. La Marque I.S.D., 184 F. Supp. 2d 606 (S.D. Tex. 2002).

     Police officers did not engage in racial discrimination or selective enforcement of laws in stopping African-American motorist whose car was weaving in traffic and in shooting him when an altercation occurred during which he stabbed one officer. There was no evidence that any defendant had failed to enforce the law in a similar manner against similarly situated people of other races. Gaddis v. Redford Township, 188 F. Supp. 2d 762 (E.D. Mich. 2002).

Search and Seizure: Courthouse Security

     Security procedures for entry into county court facilities, including the use of x-ray machines and hand searches of persons, their belongings, and their clothing were a valid "administrative search" to which individuals wishing to enter the courthouse impliedly consented. Smith v. Washington County, C98-0531CV; A106905, 43 P.3d 1171 (Ore. App. 2002).

Search and Seizure: Home/Business

     Police officers were not subject to liability for the alleged improper destruction of property in a home during the execution of a residential search warrant on a "group liability" theory. Officers who remained outside of the home during the search could not be held liable for officers' alleged actions inside on the basis that they were "integral participants" in the allegedly unlawful conduct. Jones v. Williams, #00-56929, 286 F.3d 1159 (9th Cir. 2002).

     County sheriff did not violate the rights of pawnbrokers by conducting administrative searches of their businesses to ensure compliance with a Florida state record keeping statute, but statute did not empower him to immediately seize property for which records could not be produced. Quik Cash Pawn & Jewelry Inc. v. Sheriff of Broward County, 279 F.3d 1316 (11th Cir. 2002).

     Officers were entitled to qualified immunity for alleged improper search within hunter's deer hangpole located 25 yards from a wooden structure on a 50 acre tract of recreational land. There were genuine issues of material fact as to whether structure qualified as a "home" and whether the deer hangpole was within the curtilage of the "home" or in an open field. While it was clearly established that the Fourth Amendment warrant requirement applies to the curtilage of a home, the officers could reasonably have believed that the deer hangpole stood in open fields. Hart v. Myers, 183 F. Supp. 2d 512 (D. Conn. 2002).

Search and Seizure: Vehicle

     Vehicle owner had no privacy interest in auto parked on city street; no warrant was required to seize vehicle after default judgment issued for failure to pay parking fines. Administrative parking violation notices provided were sufficient to give vehicle owner notice of available pre- and post-deprivation remedies. Rackley v. City of New York, 186 F. Supp. 2d 466 (S.D.N.Y. 2002).

Arbitration Procedures

     California appeals court strikes down a law allowing public safety unions to demand binding arbitration of economic issues. County of Riverside v. Superior Court (Riverside Sheriff's Assn.), #E030454, 118 Cal.Rptr.2d 854, 2002 Cal. App. Lexis 4006 (4th Dist. App. 2002).

     Arbitrator rejects, as non arbitrable, a grievance from a deputy sheriff who received an offensive letter from the chief deputy. The mere fact that the preamble to the bargaining agreement recites as a purpose the promotion of cooperation and harmonious relations does not make every slight to a unit member the proper subject of an arbitration demand. Clark Co. Sheriff and Frat. Order of Police, FMCS Case #01/10019, 116 LA (BNA) 1266 (Kindig, 2001).

     A divided Seventh Circuit holds that an employee was not compelled to arbitrate her Title VII claim against the employer pursuant to a written agreement, because it required that each party pay its own attorney fees. Title VII authorizes the award of attorney's fees to the prevailing party. McCaskill v. SCI Mgmt. Corp., #00-2839, 285 F.3d 623, 88 FEP Cases (BNA) 705, 2002 U.S. App. Lexis 6068 (7th Cir. 2002).

     Second Circuit enforces an arbitration award even though the union breached the no-strike clause in the bargaining agreement. Mulvaney Mechanical v. Sheet Metal Workers L-38, 2002 U.S. App. Lexis 7720 (2nd Cir. 2002).

Bill of Rights Laws

     Law enforcement agencies in California won a limited right to conceal from probationary peace officers information gathered about them during employment background investigations. Although the Officers' Procedural Bill of Rights Act guarantees the right to view adverse comments in their personnel files, a divided Supreme Court held that an employee may waive the protections of the law for pre-employment conduct, but not on-the-job complaints. Riverside v. Superior Court (Madrigal), #S094675, 27 Cal.4th 793, 42 P.2d 1034, 2002 Cal. Lexis 1878, 02 CDOS 2783 (Cal. 2002).

Collective Bargaining - Duty to Bargain

     Arbitrator overturns a management decision to assign BoP facility officers to escort inmates to and from a clinic. It was a change of conditions and must be bargained. U.S. Fed. Bur. of Prisons and AFGE L-33, FMCS Case #01/11682, 116 LA (BNA) 1271 (Moore, 2002).

Criminal Liability

     SWAT member indicted for killing another officer during a training simulation. State v. Warzycha, Providence Co. Super. Ct. (Indictment, 2002).

Damages and Remedies

     The statutory cap on Title VII compensatory and punitive damages does not apply to front pay awards or to claims under state law. Hemmings v. Tidymans, #99-35932, 285 F.3d 1174, 88 FEP Cases (BNA) 945, 2002 U.S. App. Lexis 6686 (9th Cir. 2002).

Disciplinary Evidence - Exclusionary Rule

     Arbitrator holds that (1) the "Exclusionary Rule" does not apply in arbitration proceedings, and that (2) management has no duty to conduct a thorough investigation of an employee's misconduct. The sole issue is the guilt or innocence of the accused employee. City of Evansville and Amalgamated Transit Union L-878, FMCS Case #010135/07825-6, 116 LA (BNA) 1184 (Cohen, 2001).

Disciplinary Investigations

     Illinois appellate court reverses a $5+ million verdict to a utility employee for an overly intrusive internal investigation. Management had a right to learn whether he had abused his disability leave, and employers are allowed to access their own records. Schmidt v. Ameritech, #1-01-0463, 768 N.E.2d 303, 2002 Ill. App. Lexis 220 (Ill. App.1st Dist. 2002).

Disciplinary Interviews and Compelled Reports

     Under Title VII, employers have a legal duty to investigate a complaint of rape or sexual harassment. Jackson v. McCrory, Comm. Pl. Ct. of Phila. Co. (2002).

Disciplinary Punishment - In General

     Arbitrator upholds the termination of a uniformed municipal maintenance worker who, after a near collision, followed the other motorist to his house, then grabbed and verbally berated him. City of Petoskey and Teamsters L-214, FMCS Case #01/10976-8, 116 LA (BNA) 1176 (Brodsky, 2001).

     Arbitrator orders reinstatement for a private sector employee that called a superior a "half breed, red neck, mother-fucker." The misconduct was a one-time act, and discharge was an excessive punishment. Mr. Q's Enterprises and ITPEU, FMCS Case #01/141358, 116 LA (BNA) 1304 (White, 2002).

Fair Labor Standards Act - Overtime - in General

     OPM issues a final rule on federal firefighter basic and overtime pay. The new method eliminates standby duty pay and authorizes overtime for both FLSA exempt and nonexempt firefighters. OPM Firefighter Pay, 67 Fed. Reg. 15463 (4/2/02).

Family, Medical & Personal Leave

     Federal appeals court upholds an $84,000 jury award under the Family and Medical Leave Act for a private sector worker who was fired while convalescing after a suicide attempt. Chandler v. Specialty Tires, #0-5395/5593, 283 F.3d 818, 12 AD Cases (BNA) 1659, 2002 U.S. App. Lexis 4743, 2002 FED App. 0100P, 7 WH Cases 2d (BNA) 1217 (6th Cir. 2002).

     Police dept. violated the FMLA by denying promotional opportunities to a worker who took unpaid leave because of Graves' disease -- an autoimmune disorder associated with hyperthyroidism, burning eye sensations, nervousness, emotional swings, muscle weakness and palpitations. Darby v. Bratch, #01-2006, 287 F.3d 673, 7 WH Cases2d 1252, 2002 U.S. App. Lexis 6679 (8th Cir. 2002).

First Amendment Related

     Federal appeals court affirms the dismissal of a suit brought by a former sergeant, who alleged that he was demoted because of his membership in a controversial motorcycle club. There was no evidence the demotion, based on valid rule violations, was pretextual to punish him for his associational activities, or that the sheriff had been improperly influenced by the sergeant's superiors. Strahan v. Kirkland, #01-15493, 287 F.3d 821, 2002 U.S. App. Lexis 7214 (9th Cir. 2002).

Fringe Benefits

     Federal employees may now retain frequent flyer rewards, but cannot keep denied boarding compensation or select airlines based on their awards system. "Federal Travel Regulation Using Promotional Materials and Frequent Traveler Programs," 67 Federal Register No. 71, pp. 17946-47 (Apr. 12, 2002).

Handicap Laws - Constitutionality

     A state-controlled local police board is not a state office for 11th Amendment immunity purposes. Darby v. Bratch, #01-2006, 287 F.3d 673, 7 WH Cases2d 1252, 2002 U.S. App. Lexis 6679 (8th Cir. 2002).

Handicap Laws/Abilities Discrimination - Specific Disabilities

     A district adjudication officer with the Immigration and Naturalization Service who suffers from chronic muscle pain is not disabled; her impairment did not substantially limit a major life activity, including working. Stein v. Ashcroft, #00-4326, 284 F.3d 721, 2002 U.S. App. Lexis 4560 (7th Cir.2002).

     Ex-officer's claim that his narcolepsy was not accommodated by the sheriff is involuntarily settled for $26,000 by his creditors, acting through bankruptcy procedures. Larson (substituted for Buniger) v. Waterman, #01-CV-441 (D.Colo. 2002), removed from Montrose County, Colo., Dist. Ct. (#01cv8). Settlement reported in the Denver Post, 4/25/2002.

Obesity

     Writing in the case of a 400 lb., 5'9" woman employee, the New Jersey Supreme Court finds that morbid obesity is a protected handicap under state law. Viscik v. Fowler Equip. Co., #A-38 Sept. Term 2001, --- A.2d ---, 2002 N.J. Lexis 360 (N.J. 2002).

Pay Disputes - Overtime Claims

     A worker who received $20 an hour plus $150 per week "per diem" for field work was entitled to have the $150 counted as part of his base wages for FLSA time and one-half overtime pay purposes. Berry v. Excel Group, #01-40239, 288 F.3d 252, 2002 U.S. App. Lexis 7243, 7 WH Cases2d (BNA) 1313 (5th Cir. 2002).

Political Activity/Patronage Employment

     The jobs of county sheriff's deputies were protected under the First and Fourteenth Amendments for not supporting the sheriff, as they were not confidential or policy-making employees. Heggen v. Lee, #00-6315, 284 F.3d 675, 18 IER Cases (BNA) 732, 2002 U.S. App. Lexis 4374, 2002 FED App. 0094P (6th Cir. 2002).

Privacy Rights

     Federal court refuses to dismiss a suit by a former police chief against town officials who revealed confidential information about his medical problems to the local newspaper. Public officials might have a privilege if the condition is a "proper matter of public concern." Pouliot v. Town of Fairfield, #01-CV-179, 184 F. Supp. 2d 38 2002 U.S. Dist. Lexis 2599 (D. Me. 2002).

     The two-year statute of limitations in the federal Privacy Act (5 U.S. Code §552a) begins to run when a person first becomes aware of errors in a report or record; a new cause of action does not arise with each subsequent adverse determination which is based on erroneous records. Harrell v. Fleming, #01-6134, 285 F.3d 1292, 2002 U.S. App. Lexis 6670 (10th Cir. 2002).

Promotional Rights, Procedures and Performance Appraisals

     Arbitrator upholds the right of management to consider sick leave use when making decisions about promotions and awards for correctional officers. Federal Transfer Center and AFGE L-171, FMCS Case #01/08836, 116 LA (BNA) 1170 (Goodman, 2002).

Religious Discrimination

     Appeals panel finds that a seniority clause on job assignments in a bargaining agreement takes precedence over the religious beliefs of a male driver who refused to work with women on overnight assignments. Virts v. Consol. Frtwys., #00-5501, 285 F.3d 508, 88 FEP Cases (BNA) 801, 2002 U.S. App. Lexis 6005, 2002 FED App. 0114 (6th Cir. 2002).

Residency Requirements

     Arbitrator upholds the termination of a police officer who claimed that he resided in his cousin's basement, but filed tax returns and sought a homeowner's tax exemption for property he owns in an adjacent city. Town of Cicero and IL FOP, FMCS Case #011120/02420-A, 116 LA (BNA) 1322 (Goldstein, 2001).

Sexual Harassment - In General

     A volunteer is not an employee for Title VII purposes, and her claim for sexual harassment must fail. York v. Assn. of the Bar, #01-7908, 286 F.3d 122, 88 FEP Cases (BNA) 833, 2002 U.S. App. Lexis 5947 (2nd Cir. 2002).

     Judge overturns a jury verdict of $150,000, that had been awarded because an employer aggressively investigated an off-duty sexual harassment claim. Jackson v. McCrory, Comm. Pl. Ct. of Phila. Co. (2002). (The opinion was not published, but was summarized in the Legal Intelligencer of April 16, 2002).

Sexual Harassment - Verdicts, Settlements & Indemnity

     Appellate court affirms a jury award of $625,000 in compensatory and $500,000 in punitive damages. Although the conduct was not especially severe, it continued for many years. Mancini v. Twp. of Teaneck, #A-2186-00T5, 794 A.2d 185, 2002 N.J. Super. Lexis 165 (N.J. App. 2002).

Stress Related Claims and Defenses: Disciplinary Action - Punishment

     Divided Michigan appellate court allows an employee who was disciplined for harassing women, to recover comp. benefits for the depression which followed his suspension. Daniel v. WCAC Dept. of Correction, #224423, 248 Mich.App. 95, 638 N.W.2d 175,2001 Mich. App. Lexis 215 (2001).

     Strikes and Retaliation Second Circuit enforces an arbitration award even though the union breached the no-strike clause in the bargaining agreement. Mulvaney v. SMWIA L-38, 288 F.3d 491, 2002 U.S. App. Lexis 7720, 169 LRRM (BNA) 3089 (2nd Cir. 2002).

Taxation

     Police association was liable for unrelated business income taxes for "royalty" received from the publication of "The Arkansas Trooper," even though the parties labeled their agreement a "Royalties and Licensing Agreement." Arkansas State Police Assn. v. Cmsnr. of Internal Rev., #01-2255, 282 F.3d 556, 2002 U.S. App. Lexis 3480 (8th Cir. 2002).

Untruthfulness & Resume Fraud

     Justice Dept. indicts a Deputy U.S. Marshal for perjury, following an intimate relationship with an alternate juror in the Oklahoma bombing prosecution of Timothy McVeigh. Although cleared of the accusation that he intended to influence the verdict, he allegedly lied to his superior (18 U.S. Code §1001) and before a grand jury (18 U.S. Code §1623) about his contacts with the juror. U.S. v. Benny Bailey, #1:02 CR 00095 (D.Colo. 2002); DoJ Press Release 02-103.

     Arbitrator sustains the firing of a worker who consciously omitted listing prior surgeries and disability claims in her pre-employment application. Birmingham Steel and U.S.W.A. L-9777, FMCS Case #00/08457, 116 LA (BNA) 61 (Doering, 2001).

Vacation Pay

     Arbitrator rules that a city violated the bargaining agreement, which set a maximum on amount of annual leave that employees could accrue, by refusing to compensate a firefighter on his retirement, where he was unable to take planned leave due to an injury. City of Tulsa and IAFF L-176, FMCS Case #01/04286, 116 LA (BNA) 1192 (Jennings, 2001).

Whistleblower Requirements and Protection

     Federal court in Connecticut dismisses some, and upholds some of the pleadings in a suit by a suspended detective, who alleges retaliation for investigating other officers for drug-related corruption. Russo v. City of Hartford, #3-97-CV-2380, 184 F.Supp.2d 169, 2002 U.S. Dist. Lexis 2555 (D.Conn. 2002).

Access to Courts/Legal Info

     Prisoner did not show that correctional facility's institutional inspector violated his right to access to the courts by refusing to issue him grievance forms which he could use to challenge his conditions of confinement when prisoner did not claim that there was no other source for the forms or that he had made other attempts to pursue his grievance. Watley v. Goodman, #01-3860, 31 Fed. Appx. 169 (6th Cir. 2002).

     Prisoner adequately alleged that restrictions on his access to a prison law library violated his right of access to the courts when he claimed that the small amount of library time he was allowed resulted in the dismissal of his appeal from denial of motion for post-conviction relief as untimely. Colvin v. Schaublin, #01-3038, 31 Fed. Appx. 170 (6th Cir. 2002).

     Prisoner acting as a "jailhouse lawyer" for other prisoners by assisting them with their legal work did not assert a valid claim for right of access to the courts absent a showing that these other prisoners were denied court access. "Prison officials may prohibit or limit jailhouse lawyering unless doing so interferes with an inmate's ability to present his grievances to a court," and a "jailhouse lawyer's right to assist another prisoner is wholly derivative of that prisoner's right of access to the courts." Ziegler v. McGinnis, #01-1492, 32 Fed. Appx. 697 (6th Cir. 2002).

Disability Discrimination

     In disability discrimination claim against correctional defendants by prisoner suffering from diabetes and heart condition, prisoner was not required to exhaust administrative remedies to pursue a claim under Title II of the Americans With Disabilities Act (ADA), 42 U.S.C. Sec. 12112(a)(2) covering access to governmental programs, but government officials were not subject to individual liability under this section of the statute. Further, injunctive and declaratory relief were inappropriate when prisoner had been transferred from facility, so there was no longer an ongoing controversy over his alleged denial of participation in work and educational programs. Mitchell v. Massachusetts Department of Correction, 190 F. Supp. 2d 204 (D. Mass. 2002).

Employment Issues

     Department of Corrections failed to rebut prison employee's prima facie case that he was demoted in retaliation for his filing of a whistleblower report concerning a meat theft from the prison kitchen, and therefore would be liable for retaliation under a state statute. 43 P.S. Sec. 1423 et seq. O'Rourke v. Commonwealth of Pennsylvania, 778 A.2d 1104 (Pa. 2001).

     Correctional officials should have been granted qualified immunity in lawsuit by African-American correctional employee terminated following an investigation of his alleged choking of a handcuffed inmate, since he failed to adequately show a possible equal protection violation. Inmon v. Arkansas Dept. of Correction, #00-2113, 245 F.3d 1030 (8th Cir. 2001).

Extradition

     Trial court properly granted summary judgment to county and county sheriff on prisoner's claim that he was extradited from Ohio to Texas without the procedural protections to which he was entitled under the Uniform Criminal Extradition Act. Vinson v. Ohio, #01-3398, 31 Fed. Appx. 193 (6th Cir. 2002).

First Amendment

     Federal prisoner stated a possible claim against the Bureau of Prisons for violation of federal Privacy Act based on a claim that he was transferred and reclassified as a "special offender" based on false accusations of misconduct against him in alleged retaliation for his exercise of his First Amendment rights. Toolasprashad v. Bureau of Prisons, #00-5424, 286 F.3d 576 (D.C. Cir. 2002).

     Prison's maintenance of different policies on conditions of confinement of death row prisoners and prisoners serving non-capital sentences did not constitute First Amendment retaliation against death row prisoners where the differing policies and treatment did not depend on whether the prisoner facing death had appealed their sentence. Further, while this difference in treatment may have made life "more unpleasant" for those on death row, the conditions were not so different from those faced by other inmates as to constitute cruel and unusual punishment or serve as a deterrent against filing law suits. Apanovitch v. Wilkinson, #01-3558, 32 Fed. Appx. 704 (6th Cir. 2002).

Marriage/Procreation

     Federal appeals court by 6-5 vote rules that a prisoner serving a sentence of 100 years to life plus eleven years had no constitutional right to provide his wife with a sperm specimen that she could use to be artificially inseminated. Gerber v. Hickman, #00-16494, 2002 U.S. App. Lexis 9749 (9th Cir.)

     Woman who pled guilty to providing a prohibited object to an inmate, a cryogenic sperm preservation kit intended to preserve her inmate husband's sperm, was not entitled, post-conviction, to the return of the confiscated seminal fluids. Wife was not entitled to equitable relief in the form of return of the seized property since she had "unclean hands," having bribed a correctional officer to smuggle her husband's semen out of the prison. U.S. v. Parlavecchio, 192 F. Supp. 22d 349 (M.D. Pa. 2002).

Medical Care

     Paraplegic inmate was properly awarded $250,000 for deliberate indifference to his serious medical needs which resulted in him developing severe ulcers on his lower back and buttocks from failure to follow medical orders concerning his care. County policies prevented jail medical personnel from providing adequate care. Lawson v. Dallas County, #00-11078, 286 F.3d 257 (5th Cir. 2002).

Medical Care: Mental Health

     Prisoner's mental health disorder, diagnosed as bipolar disorder, was sufficiently serious so that deliberate indifference to his resulting medical needs, including anxiety he allegedly suffered due to a lack of medication review, would violate the Eighth Amendment. Further proceedings ordered as to whether manager of counseling treatment services purposefully misdiagnosed prisoner's mental illness or denied medication review. Page v. Norvell, 186 F. Supp. 2d 1134 (D. Ore. 2000).

Prison Litigation Reform Act: Exhaustion of Remedies

     New Jersey state prison inmates who alleged racial discrimination and conspiracy to violate their rights on the basis of race following the fatal stabbing of a correctional officer by a inmate could pursue their federal civil rights lawsuit without pursuing supposed remedies described in state prison's inmate handbook. Court finds that grievance procedures described were not sufficiently clear and that therefore no available administrative remedies existed for inmates to exhaust before filing suit. In Re Bayside Prison Litigation, No. 97-5127, 190 F. Supp. 22d 755 (D.N.J. 2002).

     Prisoner who claimed correctional officers severely beat him was required to exhaust available administrative remedies before filing suit despite the fact that they could not lead to monetary awards. Actions including the disciplining of the officers or the transfer of the prisoner to another facility where he would not be under their supervision were possible responses to an administrative complaint, and the administrative exhaustion requirement of the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(a) requires a prisoner to exhaust any procedure that has authority to take "some action" in response to his complaint. Larkin v. Galloway, #00-1414, 266 F.3d 718 (7th Cir. 2001).

     Prisoner who claimed that correctional officials had subjected him to a substantial risk of being attacked and sodomized by other prisoners by placing him in a particular prison unit without adequate security and protection had to exhaust available administrative remedies before bringing suit in federal court. Exhaustion requirement was intended to curtail frivolous prisoner litigation, and by 1995, prisoners filed more than 25% of the cases filed in federal trial courts, which Congress concluded included more frivolous lawsuits than suits pursued by "any other class of persons." Torres v. Alvarado, 143 F. Supp. 2d 172 (D. Puerto Rico 2001).

Prisoner Assault: By Inmates

     Prison officials did not show deliberate indifference to prisoner's safety by placing him in the general population days before his parole date, where he was stabbed, since they were not aware of any enhanced risk, and were therefore entitled to qualified immunity. O'Connor v. Terhune, #01-15517, 32 Fed Appx. 314 (9th Cir. 2002).

     Federal prison psychologist was entitled to qualified immunity for failing to take any action to prevent violent attack after patient prisoner reported threats. Psychologist reasonably believed that prisoner, who was paranoid, and who was being treated for symptoms of psychosis and depression, was not in any real danger. Swan v. U.S., #01-15847, 32 Fed. Appx. 315 (9th Cir. 2002)..

     Prisoner did not show that correctional officer was deliberately indifferent to the risk of an assault by another inmate on the prisoner by including his name as the informant in a misconduct report introduced at a hearing against his cellmate. Cellmate did not have a violent history, and there was no evidence the officer was aware of a significant risk that he would attack the prisoner. Williams v. McGinnis, 192 F. Supp. 22d 757 (E.D. Mich. 2002).

Prisoner Assault: By Officers

     Prison guard's alleged actions of shoving prisoner against a wall, poking him in the chest, and yelling at him in a threatening manner, all in reaction to the prisoner writing him a threatening letter, did not violate the Eighth Amendment, since it involved "minimal force" intended to maintain or restore discipline. Rendelman v. U.S., #99-56858, 32 Fed. Appx. 804 (9th Cir. 2002).

Prisoner Death/Injury

     Indiana federal court jury awards $56.5 million to family of DUI arrestee who died in jail "drunk tank" following alleged assault by deputy, including choking and use of pepper spray. Moreland v. Dieter, No. 3:99CV0607, U.S. District Court (N.D. Ind. May 9, 2002), reported in The National Law Journal p. B1, May 20, 2002.

Prisoner Discipline

     Inmate sufficiently pleaded facts to support his claim that officials retaliated against him by imposing disciplinary sanctions for his "jailhouse lawyering" activities when defendants did not assert whether the prisoner had actually committed prison rule violations which would defeat the retaliation claim. Williams v. Manternach, 192 F. Supp. 2d 980 (N.D. Iowa 2002).

Prisoner Transfers

     Correctional officials did not violate prisoner's constitutional rights by refusing to transfer him to a facility nearer to his home and by allegedly placing incorrect codes in his file that made him ineligible for a transfer. A "prisoner has no inherent constitutional right to be confined in a particular prison or to be held in a specific security classification." Nunez v. FCI Elkton, #01-3970, 32 Fed. Appx. 724 (6th Cir. 2002).

Religion

     Orthodox Jewish inmates in Colorado correctional facilities were entitled to be supplied kosher meals free of charge. Suggested 25% co-payment requirement was an impermissible burden on the exercise of religion. Beerheide v. Suthers, #00-1086, 286 F.3d 1179 (10th Cir. 2002).

     Prison's refusal to accommodate an inmate's request for a special religious diet did not violate the First Amendment when the prisoner was provided with an adequate diet to maintain good health even if the items which violated his religious dietary restrictions were not eaten. The First Amendment requires that prison officials provide an inmate with food that is adequate without violating his religious dietary restrictions. Alexander v. Carrick, #00-1261, 31 Fed. Appx. 176 (6th Cir. 2002).

Segregation: Disciplinary

     Pretrial detainee cannot be put in segregation as a punishment for a disciplinary offense without notice and an opportunity to be heard, and an issue of fact existed as to whether the detainee was placed in lockdown segregation purposes for 34 days for punishment or preventive purposes. Further, the prisoner's claim that he was placed in lockdown segregation for 11 days in retaliation for pursuing his lawsuit sufficiently stated a possible claim for violation of his rights. Higgs v. Carver, #01-1559, 286 F.3d 437 (7th Cir. 2002).

Sexual Offender Programs

     U.S. Supreme Court rules that prisoners may be offered incentives to participate in treatment and rehabilitation programs in which they are required to disclose prior acts that may be crimes without violating the compelled self-incrimination prohibitions of the Fifth Amendment. McKune v. Lile, #00-1187, 2002 U.S. Lexis 4206.

Smoking

     Placing a non-smoking inmate in a cell for 42 days with a cellmate who was a heavy smoker did not amount to cruel and unusual punishment, despite non-smoker's discomfort and irritation. Jones v. Bayer, 190 F. Supp. 2d 1204 (D. Nev. 2002).

Workers' Compensation

     Evidence supported administrative law judge's determination that an employee's work as a prison guard was a contributing factor to his fatal heart attack, entitling his widow to workers' compensation death benefits. Doctor's testimony indicated that employee would not have died when he did in the absence of the physical and mental stress he experienced at work on the day of his fatal heart attack. Phillips Correctional Inst. v. Yarbrough, No. A00A22265, 548 S.E.2d 424 (Ga. App. 2001).

     Arizona state statute exempting 50% of a debtor's disposable income from attachment to satisfy child support obligations did not apply to a prisoner's workers compensation disability benefits since these benefits were not wages or salary and the prisoner was not a debtor who needed a portion of his income for self-maintenance. Prisoner's ex-wife, therefore, was entitled to the full amount of the prisoner's benefits for child support in the absence of his successfully modifying the order of support and assignment of benefits. Hanley v. Industrial Commission of Arizona, #1 CA-IC 00-0085, 21 P.3d 856 (Ariz. App. 2001).