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

Summaries from the June 2002

Administrative Liability: Supervision

     Sheriff could not be held liable for "acquiescing" in deputy's alleged "improper conduct" with female passenger in his vehicle when he never learned of it until after a lawsuit was filed; deputy who filed bankruptcy could not be sued for this conduct when plaintiff took no steps in court to object to the discharge of the claim or to seek an exception to the discharge. Moor v. Madison County Sheriff's Department, No. 00-6004, 30 Federal Appendix 417 (6th Cir. 2002).

Assault and Battery: Chemical

     Use of O.C. (pepper spray) by officer attempting to handcuff "belligerent" person who ignored officers' requests and, at the least, passively resisted arrest was not an excessive use of force. Issues of fact existed, however, as to whether an officer held the arrestee around the neck and subjected him to an unreasonable risk of serious injury, causing a broken neck. Fultz v. Whittaker, 187 F. Supp. 2d 695 (W.D. Ky. 2001).

Assault and Battery: Handcuffs

     Arrestee was entitled to a new trial in his excessive force lawsuit against the arresting officer when jury was wrongly instructed that it must find that the arrestee suffered a "serious injury" to find for the plaintiff. Bastien v. Goddard, No. 00-2224, 279 F.3d 10 (1st Cir. 2002).

     Arrestee did not succeed in showing that officer used excessive force in the application of handcuffs during the arrest. Under the evidence presented, it was reasonable for officers to conclude that their suggestion of leaning forward in the police car had relieved the arrestee's pain, and his complaints were "similar to those normally voiced by others who are similarly restrained." Ostrander v. State of New York, 735 N.Y.S.2d 163 (A.D. 2001).

Assault and Battery: Physical

     In a lawsuit claiming an assault on an individual by a traffic enforcement agent, the city's failure to produce, for a deposition, a particular traffic enforcement agent after also failing to produce his incident report, did not, standing alone result in a conclusion that the agent committed the assault, so that summary judgment for plaintiff was properly denied. Quezada v. City of New York, 737 N.Y.S.2d 84 (A.D. 2002).

Defenses: Absolute Immunity

     Officers were entitled to absolute immunity for entering a building owned by the plaintiff for the purpose of enforcing a court-ordered home visit by social service workers conducting a home study of the care of children who resided there. Entry did not constitute a "search" and officers did not see or touch business or confidential records or even open the closet where the records were stored. Monroe v. Pueblo Police Department, No. 01-1112 30 Federal Appendix 778 (10th Cir. 2002).

     County prosecutor was not entitled to absolute immunity for allegedly making false statements in an application for an arrest warrant to revoke an arrestee's bail. An arrestee released on pretrial bail has a Fourth Amendment right to be free of unreasonable seizures. Prosecutor was, however, entitled to qualified immunity because it was not clearly established, in 1997, that there was a Fourth Amendment right not to have a prosecutor, seeking to revoke bail, personally attest to false allegations made by biased sources without further investigation. Cruz v. Kauai County, #00-15065, 279 F.3d 1064 (9th Cir. 2002).

Defenses: Eleventh Amendment Immunity

     County sheriff acted on behalf of the state in enforcing a state court injunction against the picketing of an abortion clinic and abortion doctor's home, and therefore was entitled to Eleventh Amendment immunity from liability in a federal civil rights lawsuit brought by activist. Gottfried v. Medical Planning Services Inc., No. 00-3488, 280 F.3d 684 (6th Cir. 2002).

Defenses: Governmental Immunity

      Arrestee's claim that an officer intentionally stomped on his leg and that officers acted wantonly was not sufficient to claim conduct, under Wisconsin law, W.S.A. 893.80(4), that invoked an exception to governmental immunity for "malicious acts" when arrestee's claim was for negligence and his proposed factual findings did not show that officers were motivated by ill will. Wilson v. City of Milwaukee, 138 F. Supp. 2d 1126 (E.D. Wis. 2001).

Defenses: Qualified (Good-Faith) Immunity

      Officer was entitled to qualified immunity when he made no material misrepresentations in an application for an arrest warrant for extortion and conducted a reasonable investigation first. Prosecutor's subsequent decision to dismiss the charges did not alter the result. Menebhi v. Mattos, 183 F. Supp. 2d 490 (D.R.I. 2002).

Defenses: Statute of Limitations

     Arrestee bringing a personal injury action under Mississippi state law against city and police officer was entitled to the benefit of an amendment to the Tort Claims Act, Miss. Code Ann.. Sec. 11-46-11(3), increasing the statute of limitations period which was enacted at a time when the claim was pending, so long as the claim was not already time-barred at the time of the amendment. Tie-Reace Hollingsworth v. City of Laurel, No. 2000-CA-01462-SCT, 808 So. 2d 950 (Miss. 2002).

Domestic Violence

     Officers had probable cause, under Michigan law, to arrest a husband for domestic assault when they encountered his visibly upset wife, whose finger was bleeding and stated to them that she had told a 911 operator that he had been pushing and grabbing her and the children and had cut her finger in the course of physically taking the phone from her hand. Klein v. Long, #00-2235, 275 F.3d 544 (6th Cir. 2001).

False Arrest/Imprisonment: No Warrant

     Jury award of $27,000 for arrestee overturned by appeals court. Officer had probable cause to arrest plaintiff, a building manager, following an argument with a tenant's boyfriend in which the boyfriend told the officer that the plaintiff had hit him in the head with a pipe. Drayton v. City of New York, 739 N.Y.S.2d 44 (A.D. 1st Dept. 2002).

     Arrestee convicted of driving under the influence of alcohol was barred from bringing a federal civil rights lawsuit against arresting officer for false arrest arising out of the same incident, since an award on this claim would imply the invalidity of the conviction, which had not been overturned. Arrestee also could not pursue his due process claim for alleged deprivation of property (money) by the arresting officer when adequate state law remedies existed for this alleged intentional and unauthorized action. Davis v. Schifone, 185 F. Supp. 2d 95 (D. Mass. 2002).

      An arrestee who faced possible charges of "throwing a deadly missile," and who subsequently pled guilty to reduced charges of simple battery and resisting arrest could not sue officers for wrongful arrest and detention, but could pursue claims for excessive use of force and for officers entering his home to arrest him without a warrant. Moody v. City of Key West, No. 3D01-123, 805 So. 2d 1018 (Fla. App. 3d Dist. 2001), rehearing denied (2002).

     Sheriff had probable cause to arrest public accountant for alleged use of profanity at county board meeting after county commissioner told him that accountant had violated an ordinance against such expressions. Sheriff did not make an arrest, however, but merely asked accountant not to leave until a videotape of the meeting could be reviewed, and was entitled to qualified immunity even if this request could be considered a seizure. Gonser v. Twiggs County, 182 F. Supp. 2d 1253 (M.D. Ga. 2002).

False Arrest/Imprisonment: Warrant

     Police officers had probable cause to arrest timber worker on outstanding warrant for harvesting timber without a license. Officers, rather than acting out of malice, made the arrest only after confirming that the bench warrant was outstanding and after the arrestee was unable to provide documentary proof supporting his claim that he had paid the fine for the offense. Fuller v. Troup County, No. A01A1670, 558 S.E.2d 777 (Ga. App. 2002).

False Arrest/Imprisonment: Unlawful Detention

     Officers were not entitled to summary judgment on claim that they detained a shopping mall customer on suspicion of shoplifting without reasonable grounds to do so, but plaintiff customer failed to adequately allege a claim against the city for failure to train officers in arresting, detaining, and interrogating racial and ethnic minorities by citing only this incident in which officers allegedly subjected him to illegal seizure. Hall v. City of White Plains, 185 F. Supp. 2d 293 (S.D.N.Y. 2002).

First Amendment

     Officer was entitled to qualified immunity for arresting hunter for disturbing the peace and did not violate the hunter's First Amendment rights by making the arrest after the hunter complained about the officer's interruption of his stalking of an elk to check the hunter's license. The arrest was based on a prosecutor's independent determination that there was probable cause for the charges and there was no indication that the officer fabricated any facts in his report to the prosecutor. Petersen v. Cazemier, 164 F. Supp. 2d 1217 (D. Or. 2001).

Firearms Related: Intentional Use

     Family of man shot dead after he threw a knife at officers and screamed "Suicide by cop!" receives $1.25 million settlement in lawsuit against city in which plastic gun was allegedly "planted" at the scene of the shooting to justify it. Runnels v. City of Miami, U.S. Dist. Ct. No. 00-2930 (S.D. Fla. 2002).

Governmental Liability: Policy/Custom

     Arrestee stated a claim against county for sheriff's alleged policy of handcuffing all arrestees which he claimed was instituted with deliberate indifference to consequences such as his fall down a stairway following which he was injured. Jackson v. Sheriff of Ellis County, Texas, 154 F. Supp. 2d 917 (N.D. Text. 2001).

Governmental Liability: Supervision/Training

     City was not entitled to summary judgment on arrestee's claim that there was inadequate training and supervision on how to handle circumstances in which a judge has denied a warrant to search or seize an individual but officers believe that there is probable cause to do so. Pappas v. New Haven Police Dept., 175 F. Supp. 2d 288 (D. Conn. 2001).

Police Plaintiffs

     Transit authority could be sued under Federal Employers' Liability Act (FELA), 45 U.S.C. Sec. 51, for injuries police officer suffered while providing security for parking lot authority maintained at railroad station. Greene v. Long Island Railroad Co., No. 00-9292, 280 F.3d 224 (2nd Cir. 2002).

Police Plaintiff: Malicious Prosecution

     Officer fired after motel clerk allegedly falsely accused him of robbing the motel is awarded $4 million against the motel owner and the owner's corporation in malicious prosecution lawsuit. Askew v. Patel, No. SC-2000-CV-1601, (Muscogee Co., Ga., State. Ct.), reported in The National Law Journal, p. B2 (March 18, 2002).

Police Plaintiff: Suicide Related

     Town and police supervisory personnel were not liable for failing to prevent a police officer's suicide with his service revolver; even if a due process obligation existed to take additional steps to prevent the suicide, it was not clearly established in 1998 when officer took his life, entitling individual defendants to qualified immunity. Estate of Smith v. Town of West Hartford, 186 F. Supp. 2d 146 (D. Conn. 2002).

Procedural: Discovery

     Plaintiff in lawsuit against city and unnamed police officers for injuries suffered when officers allegedly drove a police vehicle into her was not entitled to an extension of time to conduct further discovery when she provided no explanation for why she failed to conduct any discovery during a previous 60-day extension period. Another extension of the discovery period would expose individual officers unfairly to further inquiries aimed at justifying litigation against them almost four years after the incident in question. Lockwood v. City of Philadelphia, 205 F.R.D. 448 (E.D. Pa. 2002).

Public Protection: 911 Phone Systems

     City was not liable for man's death based on 911 operator's decision to refer call asking for ambulance to a private ambulance company rather than dispatching a city ambulance. City policy and custom did not allow the reference of emergency calls to such private companies. Beswick v. City of Philadelphia, 185 F. Supp. 2d 418 (E.D. Pa. 2001).

Racial/National Origin Discrimination

     Arrestee subsequently acquitted on drug charges failed to provide sufficient evidence to show that he was subjected to unequal treatment, including his arrest, because of his African-American race, in violation of his right to equal protection. No evidence was presented that police were aware of other people who were not African-Americans who should have been arrested and prosecuted for drug sales, but failed to act. Silberberg v. Lynberg, 186 F. Supp. 2d 157 (D. Conn. 2002).

Search and Seizure: Persons

     Children's Fourth Amendment rights were not violated when they were subjected to medical examinations for suspected sexual assault pursuant to a search warrant despite their claim that it violated their rights to conduct the search over their objections. The exams were properly conducted by medical personnel and were authorized by a warrant supported by probable cause, so that the search was not unreasonable. Pelster v. Walker, 185 F. Supp. 2d 1185 (D. Ore. 2001).

Wiretapping and Video Surveillance

     Police supervisor was entitled to qualified immunity for state trooper's alleged videotaping of female civilian who was serving as a model for a training video while she undressed in an office to prepare for her role. Poe v. Leonard, #00-9024, 282 F.3d 123 (2nd Cir. 2002).

Age Discrimination - Entry

     Federal court refuses to dismiss an ADEA suit by a 61-year-old police applicant. Purdy v. Town of Greenburgh, #00 Civ. 4363, 178 F.Supp.2d 439 (S.D.N.Y. 200).

Arbitration Procedures

     U.S. Supreme Court declines to review a Massachusetts Supreme Court decision upholding an arbitration award that reinstated a police officer who used excessive force. Courts may not set aside an arbitrator's award because judges disagree with the reasoning. If the arbitrator found the use of force to be reasonable, then the award is not a violation of public policy. City of Lynn v. Thompson, #SJC-08487, 435 Mass. 54, 754 N.E.2d 54 (Mass. 2001); cert. den., 122 S. Ct. 1071 (2002).

     An employee who signs an arbitration agreement, but does not approve subsequent modifications, is not bound by the revised provisions. Brennan v. Bally, 153 F.Supp.2d 408, 2001 U.S. Dist Lexis 9882 (S.D.N.Y. 2002).

     Arbitration clause in the employment agreement was enforceable under the Federal Arbitration Act even though it was not enforceable under state law because it provided for arbitration elsewhere under the laws of another state. Jensen v. Rice, 809 So. 2nd 895, 2002 Fla.App. Lexis 2973 (Fla. App. 2002).

Back Pay Claims and Awards

     Supreme Court reverses a back pay award won by an illegal immigrant. Federal immigration policy foreclosed backpay to an undocumented alien. Hoffman Plastic Compounds v. NLRB, #00-1595, 122 S.Ct. 1275 (2002).

Conflicts of Interest

     Second Circuit reverses the convictions of three ex-NYPD defendants in the Louima scandal. Joint representation by a union-provided attorney resulted in a conflict of interest between the defendants. U.S. v. Schwarz, #00-1479, 283 F.3d 76 (2nd Cir. 2002).

     Office of Government Ethics publishes new and revised exceptions relating to the prohibition on federal employees having financial interests in matters in which they participate in an official capacity. Exemption Amendments Under 18 U.S. Code 208(b)(2), 67 (53) Fed. Reg. 12443-46 (Mar. 19, 2002).

Disability Rights and Benefits - Offset and subrogation

     City was entitled to deduct, from its payments to a disabled firefighter, those amounts paid him under a state disability benefits program. Farber v. City of Utica, 2002 N.Y. Lexis 490 (N.Y. 2002).

Disciplinary Procedures - In General

     The Dept. of Defense did not violate its own procedural regulations when it revoked the security clearance of an employee for the failure to disclose his marijuana use on a security questionnaire. Duane v. U.S. Dept. of Defense, #00-1309, 275 F.3d 988 (10th Cir. 2002).

Disciplinary Punishment - In General

     Arbitrator overturns the firing of a police officer for sexual harassment and imposes a one-year suspension. This was not a continuing violation and the grievant had many years of unblemished service. City of Boston and AFSCME C-93/L-804, 116 LA (BNA) 906 (Remmes, 2001).

     Louisiana appellate court overturns a civil service decision that had reinstated a police officer who was administratively charged with committing a battery on his wife. "The public puts its trust in the police department as a guardian of its safety, and it is essential that the appointing authority be allowed to establish and enforce appropriate standards of conduct for its employees sworn to uphold that trust." Taylor v. New Orleans Police Dept., #2000-CA-1992, 804 So.2d 769 (La.App. 4 Cir. 2001).

Disciplinary Searches

     Federal appeals court upholds management's seizure of a laptop issued to an employee. Evidence was admissible because the employer had an announced policy that management could inspect the computers furnished for the use of the employees. Muick v. Glenayre Electronics, #00-3299, 280 F.3d 741 (7th Cir. 2002).

Drug Abuse and Rehabilitation

     Arbitrator reinstates a municipal equipment operator who was fired for testing positive on a random drug test. A two month suspension was proper, in light of 19 years of good service. City of Oklahoma City and AFSCME L2406, FMCS Case #01/16221, 116 LA (BNA) 1117 (Jennings, 2002).

Employee Harassment - Nonsexual

     Federal court rules that a jury reasonably could find that two white male employees who repeatedly asked a white female worker "How is your nigger doing?" -- on an almost daily basis for several months -- was sufficiently pervasive and severe to create an objectively hostile work environment. EEOC v. Quality, 2002 U.S. Dist. Lexis 1766, 88 FEP Cases (BNA) 99 (D. Minn. 2002).

Emotional Distress

     Woman ex-firefighter loses a sexual harassment appeal against the city and a superior, but her claim for the intentional infliction of emotional distress survives. Coworker displayed a photo of a naked woman who resembled the plaintiff to 15 others, which caused her to suffer clinical depression. Hale v. City of Dayton, #18800, 2002 Ohio App. Lexis 474 (Ohio App. 2d Dist. 2002).

Free Speech

     Federal appeals court affirms awards of $158,542 and $46,750 given an ex fire chief and his brother, a former firefighter; they were removed from their positions because the ex-chief's wife spoke out critically on changes in the fire dept. Naucke v. City of Park Hills, #01-1808, 01-1809, 2002 U.S. App. Lexis 4990 (8th Cir. 2002).

Handicap Laws / Accommodation

     Supreme Court upholds the priority of seniority systems, whether imposed by management or required by a bargaining agreement. US Airways v. Barnett, #00-1250, 2002 U.S. Lexis 3034 (2002).

Handicap Laws/ Applicant/Employee Medical Exams

     Federal court strikes down a N.Y. prison rule requiring employees to submit a doctor's diagnosis after each sick leave absence. Fountain v. N.Y. Corr. Serv., #99-CV-389, 2002 U.S. Dist. Lexis 4100 (N.D.N.Y. 2002).

Handicap Laws/ Specific Disabilities

     Federal court holds that a corrections officer with a back injury that prevents him from restraining prisoners was neither "disabled" nor a "qualified individual" under the ADA. Marsolais v. Mass. Dept. of Corr., #98-11709, 2002 U.S. Dist. Lexis 3991 (D. Mass. 2002).

Heart Problems

     County corrections officer who suffered a heart attack was entitled to disability benefits even though only a hearing officer found that less than 25% of the disability related to his job duties. White v. Co. of Cortland, 97 N.Y.2d, 766 N.E.2d, 740 N.Y.S. 2nd 288, 2002 N.Y. Lexis 487, 2002 N.Y. Int. 0021 (N.Y. 2002).

Last Chance Agreements

     Arbitrator upholds the termination of an officer for two minor offenses, where he was subject to a last chance agreement. Pike County Sheriff and the FOP Ohio, FMCS #01/1135, 116 LA (BNA) 843 (Kindig, 2001).

Political Activity/Patronage Employment

     The wife of a firefighter had standing to challenge a city charter provision that prohibits city employees from contributing money to a candidate for mayor or city council. IAFF of St. Louis v. City of Ferguson, #01-2277, 283 F.3d 969, 2002 U.S. App. Lexis 4750 (8th Cir. 2002).

Privacy Rights

     Arbitrator holds that management can prohibit personal passwords on employer-provided computers, without resorting to the bargaining process. Saint Gobain Norpro and United Steelworkers of America, L-1761-11, FMCS Case #010226/06676, 116 LA (BNA) 960 (Fullmer, 2001).

Probationary Employment

     California Supreme Court holds that a probationary officer is protected by the Public Safety Officers Procedural Bill of Rights, which prohibits putting secret and derogatory information in a employee's personnel file; generally, those rights cannot be waived. A newly appointed officer can, however, waive the right to inspect the contents of a background investigation if the allegations relate to conduct before he was hired, but not to conduct after he was employed. County of Riverside v. Super. Court of Riverside Co. (Madrigal), #S094675, 27 Cal. 4th 793, 42 P.3d 1034, 2002 Cal. Lexis 1878 (Cal. 2002).

Race and Sex Discrimination

     A black female who received a pay raise that $658 smaller than that of a younger light-skinned black male colleague did not suffer an adverse employment action. Milligan v. Citibank, #00 Civ. 2793, 2001 U.S. Dist. Lexis 16105 (S.D.N.Y. 2001).

Race: Reverse Discrimination

     Federal jury awards more than $2.2 million in damages to 10 white Chicago firefighters who were passed over for promotions. Biondo v. City of Chicago, #88-CV-3733, 2002 U.S. Dist. Lexis 3463, 2002 WL 335317 (N.D. Ill. 2002).

     White officers who did not receive a high enough composite score to be "bumped" from a sergeant's list lacked standing to pursue a discrimination lawsuit, because they suffered no injury. Aiken v. Hackett, #00-5227/5451, 281 F.3d 516 (6th Cir. 2002).

Racial Harassment

     Police officer's lawsuit for enduring a retaliatory, hostile work environment because of his opposition to a superior's orders to enforce the law in a discriminatory manner was not unlawful discrimination because of his "race, color, religion, sex or national origin" within the meaning of Title VII. Johnson v. San Antonio, #00-50834, 273 F.3d 1094, 2001 U.S. App. Lexis 22658 (5th Cir. unpub.); cert. den. #01-924, 122 S. Ct. 1204 (2002).

Rule Making

     NLRB Counsel issues guidance on drafting notices using plain language. Office of the NLRB General Counsel Memorandum OM 02-43 (Mar. 11, 2002).

Sex Discrimination - In General

     Fifth Circuit holds that a Texas woman firefighter applicant was entitled to recover $23,000 because she was asked "inappropriate" questions during her interview. She was later admitted to the academy and then flunked out. A $877,000 verdict for retaliatory termination was set aside by the trial and appellate courts. Montemayor v. City of San Antonio, # 00-50681, 276 F.3d 687 (5th Cir. 2001).

Sex Discrimination - Reverse Discrimination

     Gender-norming physical fitness standards for police officers did not violate the equal protection rights of male applicants. Alspaugh v. Cmsn. on Law Enf. Stds., #220156, 246 Mich. App. 547, 634 N.W.2d 161 -- relying on state laws and decisions.

     A general "no strike" clause in a bargaining agreement does not prohibit "sympathy strikes" to support non unit coworkers, unless the right to engage in supporting job actions was clearly and unmistakably waived in the bargaining agreement. Childrens Hosp. v. Calif. Nurses Assn., #00-15636, 2002 U.S. App. Lexis 4601 (9th Cir. 2002).

Taxation

     Where statutory attorney's fees are awarded to the prevailing party and not directly to the lawyer, the litigant is liable for the payment of income taxes on that award. Sinyard v. C.I.R., #99-71369, 268 F.3d 756, 2001 U.S. App. Lexis 20886 (9th Cir. 2001).

Union and Associational Activity

     Federal appeals court holds that a union that is the exclusive bargaining representative can charge all members of the bargaining unit, members and non-members alike, its costs in organizing other similar employers within the same labor market as the bargaining unit. It affirms a NLRB ruling that everyone's wages are raised through increased union penetration. United Food Workers v. N.L.R.B., #99-71317, 2002 U.S. App. Lexis 4754, 169 LRRM (BNA) 2786 (9th Cir. 2002).

Vehicle Related

     GSA asks all federal agencies to prohibit employees from using hand-held cell phones while driving government owned vehicles, and to provide hands-free devices. GSA Motor Vehicle Management Bulletin FMR B-2, 67 (41) Federal Register 9453-9454 (3/1/02).

Whistleblower Requirements and Protection

     Jury awards a police officer more than $3 million in compensatory and punitive damages in a suit against his town and named officers. He endured 7 years of threats and harassment, after reporting fellow officers for misconduct. Pisano v. Twp. of Parsippany, #MRS-L-002351-97 (Morris Co., N.J. Super. Ct.), 2/18/2002 Natl. Law Journal, p. B5).

Wrongful Discharge - In General

     Where a civil service commission is the final policy maker on personnel matters in the sheriff's office, the county is not a proper party defendant in a damage suit alleging wrongful termination. Crockett v. Shields, #99-35687, 2001 U.S. App. Lexis 2613 (9th Cir. 2001); cert. den. #01-743, 2002 U.S. Lexis 661 (2002).

Damages: Punitive

     County board of supervisors could be sued, overcoming qualified immunity, based on alleged prior decisions in bad faith to indemnify county sheriffs from punitive damage awards which purportedly proximately caused subsequent violations of plaintiff's constitutional rights. Navarro v. Block, #99-55623, 250 F.3d 729 (9th Cir. 2001).

Defamation

     Prisoner did not present a valid claim for defamation based on Department of Corrections' truthful description of him, on its website, as a "convicted robber." The fact that the prisoner had a pending appeal from his conviction did not alter the result, and, once he was convicted, he was no longer entitled to a "presumption of innocence." Wells v. Goord, #01-172, 29 Federal Appendix 693 (2nd Cir. 2002).

Defenses: Absolute Immunity

     Prosecutor was entitled to absolute immunity in lawsuit over alleged delay in transmitting to the jailer her decision to drop charges against a detainee, resulting in continued confinement when no charges against detainee were pending. Prosecutor was exercising prosecutorial functions in her actions. Neville v. Classic Gardens, 141 F. Supp. 2d 1377 (S.D. Ga. 2001).

Defenses: Qualified (Good-Faith) Immunity

     Physicians and nurses involved in prisoner's care prior to his death from severe dehydration were not entitled to qualified immunity from liability when there were numerous disputed factual issues about what happened. Mabrey v. Farthing, 280 F.3d 400 (4th Cir. 2002).

DNA Tests

     Florida state DNA testing statute upheld against state constitutional privacy challenge. Requirement that all felons convicted of certain offenses undergo a DNA blood test also did not violate a juvenile felon's Fourth Amendment rights, since the public's legitimate interests in identifying the perpetrators of crime, absolving the innocent, and preventing recidivism outweighed a felon's diminished expectation of privacy. L.S. v. State of Florida, 805 So. 2d 1004 (Fla. App. 2001).

Drugs and Drug Screening

     California prisoners could pursue claim against state parole authority that it violated federal disability discrimination law to have an "unwritten policy" of automatically denying parole to prisoners with a history of drug abuse problems. Thompson v. Davis, #01-15091, 282 F.3d 780 (9th Cir. 2002).

False Imprisonment

     Continued confinement of prisoner for a longer period of time than that stated in his sentence did not result in liability of county for false imprisonment and federal civil rights violation when the order specifying the date of the end of his work release program, violation of which resulted in his reincarceration, was a "facially valid order" of a court with proper jurisdiction. Holmberg v. County of Albany, 738 N.Y.S.2d 701 (A.D. 2002).

Medical Care

     Prisoner did not adequately present a case that prison officials acted with deliberate indifference to his lumbar spine arthritis. A mere showing that the prisoner was dissatisfied with the particular course or treatment, or even a showing of medical malpractice, is not the same as a showing of deliberate indifference to a serious medical need. Walker v. Zunker, #01-2895, 30 Federal Appendix 625 (7th Cir. 2002).

     Even if prison doctor acted properly in postponing surgery for a pretrial detainee due to his pending appearance in court on murder charges, he did not provide any reason for an alleged delay in obtaining approval for medically needed surgery once he had been sentenced. He therefore was not entitled to qualified immunity from the prisoner's Eighth Amendment claim. Baker v. Blanchette, 186 F. Supp. 2d 100 (D. Conn. 2001).

     Jail's failure to send a deputy to accompany a detainee to two hospitals to which he was transported by private ambulance for possible drug overdose problems did not violate his constitutional rights, even if sheriff's department employees were motivated, in this action, by a desire to relieve the county of the burden of paying for the treatment. Detainee still remained in the "constructive" custody of the sheriff's department, and therefore was properly returned to the jail following treatment. Lutz v. Smith, 180 F. Supp. 2d 941 (N.D. Ohio 2001).

     Former Georgia inmate settles medical malpractice claim against Department of Corrections for $280,000 concerning delay while in custody of diagnosis and treatment of syndrome which, if not treated, can lead to irreversible nerve damage in the bladder and bowel regions. Jury awards $600,000 against private medical services corporation involved in providing of care, and appeals court upholds trial court decision not to deduct settlement with governmental entity from jury award since "any amount less than $600,000 would be clearly inadequate in light of the overwhelming evidence of the serious, permanent and debilitating injuries" defendants caused the plaintiff to suffer. Ara Health Services v. Stitt, 551 S.E.2d 793 (Ga. App. 2001).

Negligent Hiring, Retention, Supervision, and Training

     Department of Corrections was entitled to summary judgment in lawsuit brought by prison employee's estate against department claiming that it negligently hired, supervised and monitored another prison employee who shot and killed the decedent. Washington state statute RCW 4.92.100 unambiguously requires that claims against the state shall be verified, and verification by plaintiff's attorney, rather than plaintiff, was insufficient when the plaintiff claimant was not incapacitated, a minor, or a non-resident of the state. Shannon v. State of Washington, No. 26446-3-II, 40 P.3d 1200 (Wash. App. 2002).

Prison Conditions: General

     Jail inmate's lawsuit claiming that the jail had cells that smelled of urine, poor means of transporting prisoners, bad living conditions, nurses with "bad attitudes," "unruly and abusive" guards, and that he was denied adequate medical care was sufficient to give the defendant jail officials notice of the claims against them so that they could file an answer and prepare for trial. While some of his allegations were "generalized," they were neither "vague nor conclusory." Evans v. Nassau County, 184 F. Supp. 2d 238 (E.D.N.Y. 2002).

     Prison officials did not impose cruel and unusual punishment on a prisoner, in violation of his Eighth Amendment rights, by restricting his rights to in-cell water for six days as a punishment after he flooded his cell, when he was allowed access to water elsewhere at least twice per officer shift. Temporary placement of inmate in a cell not equipped to accommodate his wheelchair did not constitute disability discrimination when it was done after he soiled his regular cell with feces and urine. Beckford v. Portuondo, 151 F. Supp. 2d 204 (N.D.N.Y. 2001).

Prison Litigation Reform Act: Exhaustion of Remedies

     Prisoner's lawsuit claiming he was subjected to a hot prison cell with poor ventilation which caused respiratory distress was properly dismissed for failure to exhaust available administrative remedies. While the prisoner did file and pursue an administrative grievance, he did not show that he ever appealed the denial of the grievance. Lyons-Bey v. Curtis, #01-1574, 30 Federal Appendix 376 (6th Cir. 2002).

     The Prison Litigation Reform Act requires a court, before analyzing whether a prisoner has stated a federal civil rights claim under the Eighth Amendment, to first assess whether the plaintiff has exhausted available administrative remedies. Prisoner's claims were therefore dismissed, without prejudice, for failure to do so. Serrano v. Alvarado, 169 F. Supp. 2d 14 (D. Puerto Rico 2001).

Prisoner Assault: By Inmates

     Sheriff was not deliberately indifferent to risk of harm to detainees, although detainees were exposed to an objectively substantial risk of harm, specifically of assault and injury by other inmates, in overcrowded jail. While facility was overcrowded, the sheriff took "immediate and reasonable measures" to attempt to alleviate problems associated with overcrowding. Further sheriff was not present at the jail on the evening of the assault, and did not direct that the two plaintiff detainees be housed in the area of the jail where the assault occurred. Hedrick v. Roberts, 183 F. Supp. 2d 814 (E.D. Va. 2001).

Prisoner Assault: By Officers

     While there was insufficient evidence to hold county liable for alleged beating death of detainee at the hands of prison guards, individual officers were not entitled to qualified immunity from liability. A claim that "low-level" county officials falsified reports after prisoner's death did not show a "well-settled" county custom of excessive force, but there was a genuine issue of whether guards participating in beating acted maliciously and sadistically. Gailor v. Armstrong, 187 F. Supp. 2d 729 (W.D. Ken. 2001).

     Federal appeals court upholds criminal conviction under 18 U.S.C. Sec. 242 of three corrections officers for depriving a prisoner of his civil rights in an incident in which two of the officers allegedly beat him and then the prisoner was prevented for a time from receiving medical care for his resulting injuries. Trial court did not abuse its discretion in refusing to grant separate trials for individual defendants. United States v. Daniels, #00-30624, 281 F.3d 168 (5th Cir. 2002).

Prisoner Discipline

     Prison warden did not violate inmates due process rights by initially refusing to grant his appeal from a hearing officer's determination that he had violated prison rules forbidding the use of controlled substances, even though the prisoner's positive urine test for opiates was due to his use of prescription medicine. The prisoner's placement in segregation did not interfere with a protected liberty interest. Nichols v. Maryland Correctional Institution--Jessup, 186 F. Supp. 2d 575 (D. Md. 2002).

Prisoner Suicide

     Jailer's alleged awareness of detainee's prior suicide attempt seven months before was not sufficient, standing alone, to impose liability for detainee's successful suicide, in the absence of any indication that there was a strong likelihood that the detainee would commit suicide when he did. Holland v. City of Atmore, 168 F. Supp. 2d 1303 (S.D. Ala. 2001).

Religion

     Rastafarian prisoner's claim that prison's denial of his request to wear dreadlocks violated his right to religious freedom and constituted sex discrimination was improperly dismissed by trial court without fair notice and opportunity to be heard being provided to prisoner, who was acting as his own lawyer. Appeals court also rules that exhaustion of remedies provision of Prison Litigation Reform Act is an affirmative defense, rather than a pleading requirement, with the burden on the defendants to show non-exhaustion. Wyatt v. Terhune, #00-16568, 280 F.3d 1238 (9th Cir. 2002).

     Disposing of a prisoner's medical blood samples in a manner inconsistent with his Jehovah's Witness religious beliefs--by failing to pour it on the ground and cover it with dust--did not violate his right to freely exercise his religion. Schreiber v. Ault, #01-1760, 280 F.3d 891 (8th Cir. 2002).

     State prison's denial of request of Shi'ite Muslims for separate group religious services from Sunni Muslims was not facially violative of their First Amendment rights. Shi'ite prisoner's rights may have been violated by use of joint services by a chaplain hostile to their sect to disparage their beliefs, but state correctional authorities enactment of new protocol prohibiting such disparagement addressed the problem. Pugh v. Goord, 184 F. Supp. 2d 326 (S.D.N.Y. 2002).

Sexual Assault

     Female inmate sexually assaulted by prison guard was properly awarded $15,000 in compensatory and $5,000 in punitive damages against prison security director and $25,000 in punitive damages against warden for failure to protect her against the assault, based on guard's prior actions that a jury could have found put them on notice that he posed a substantial risk of serious harm to female prisoners. Riley v. Olk-Long, #00-3411, 282 F.3d 592 (8th Cir. 2002).

Sexual Harassment

     Correctional officials were entitled to qualified immunity in lawsuit brought by prison nurse. Plaintiff failed to adequately establish that defendants' decision to transfer her to another facility where inmates had allegedly made threats against her life was motivated by a desire to retaliate against her for opposing a supervisor's alleged sexual harassment of a subordinate. Strouss v. Michigan Department of Corrections, No. 99-2501, 250 F.3d 336 (6th Cir. 2001).

Strip Search: Prisoners

     Prisoner was entitled to a new trial on his claim that a correctional officer violated his rights, since the evidence presented in the original trial was insufficient to support the jury's conclusion that the officer relied on permissible facts in deciding to perform a body cavity search. Lee v. Perez, 175 F. Supp. 2d 673 (S.D.N.Y. 2001).

     County's concerns about jail security did not justify its prior policy of searching all city arrestee's without any individual or class-wide findings of reasonable suspicion, and its amended policy, under which all city felony arrestees and arrestees held on default warrants were strip-searched without any regard for any individual characteristics violated the Fourth Amendment. Additionally, the city could be held liable for the strip-searches of female arrestees at the county jail under the county's unconstitutional blanket strip search policy, based on the city's policy of sending only female arrestees to the county jail. Ford v. City of Boston, 154 F. Supp. 2d 131 (D. Mass. 2001).

     Individual plaintiff who opted out of class action over county policy on strip and visual body cavity searches stated a possible claim for a violation of the Massachusetts state constitution Declaration of Rights, Article XIV. Ford v. City of Boston, 154 F. Supp. 2d 123 (D. Mass. 2001).

Workers' Compensation

     Prisoner who claimed he was injured while working at penitentiary laundry was entitled to a new hearing on his workers' compensation claim because the hearing examiner's findings in denying claim were contradicted by the "vast weight" of the evidence presented. Sweets v. Workers' Safety & Compensation Division, #01-75, 42 P.3d 461 (Wyo. 2002).