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

Summaries from the March 2002

Assault and Battery: Physical

     Officer's shoving of a pedestrian who was asking for directions, which resulted in severe injuries requiring back surgery, was not conduct "shocking to the conscience" sufficiently egregious to state a claim for violation of the injured party's federal due process rights. Cummings v. McIntire, No. 01-1301, 271 F.3d 341 (1st Cir. 2001).

     Officer did not use excessive force in knocking arrestee's feet out from under him and grabbing him around the chest. Arrestee, who had just been taken into custody for being incapacitated by alcohol, said "no" as the officer attempted to handcuff him, and started walking away towards his house, where the officer knew the arrestee kept a BB gun. Flanigan v. Town of Colchester, 171 F. Supp. 2d 361 (D. Vt. 2001).

     A court security officer and two sheriffs' deputies did not use excessive force, as alleged, while taking plaintiff into custody at the conclusion of court hearing for violating a protection order concerning his ex-wife. Evidence failed to support plaintiff's story that the alleged "assault" rendered him "comatose" for several hours, and judge's affidavit supported officers' versions of events that he resisted being placed in handcuffs. Covillion v. Alsop, 145 F. Supp. 2d 75 (D. Me. 2001).

Damages: Punitive

     Florida state statute putting a cap on punitive damages, F.S.A. Sec. 768.73, did not apply to arrestee's claim for intentional violation of his civil rights. Statute's limit on the amount of punitive damages applied to negligence, strict liability, and products liability, rather than intentional wrongs. Appeals court orders further proceedings, however, on whether award of $102,500 in compensatory and $330,000 in punitive damages against off-duty deputy was justified under the facts or was excessive. St. John v. Coisman, No. 5D00-3031, 799 So. 2d 1110 (Fla. App. 5th Dist. 2001).

Defenses: Eleventh Amendment Immunity

     Estranged lover whose affair with female police officer married to state trooper ended "acrimoniously" could not seek damages against trooper in his official capacity, as this claim was barred by Eleventh Amendment immunity. Plea for injunction to prevent trooper from "perjurious" testimony in future court proceedings was "too speculative" to support granting relief. Stack v. City of Hartford, 170 F. Supp. 2d 288 (D. Conn. 2001).

Defenses: Qualified (Good-Faith) Immunity

     Arresting officers were not entitled to qualified immunity for arresting a man for a rape committed at a golf course when the facts showed only an eight-minute window of time in which he could have committed the offense, the victim failed to identify him in a line-up, and her description of her assailant did not include any of his "distinctive facial" features. Wrubel v. Bouchard, 173 F. Supp. 2d 716 (E.D. Mich. 2001).

     Police officers were entitled to qualified immunity for arresting suspect on drug charges after crack cocaine was found in the trailer which he co-owned with his sister. Subsequent dropping of charges after a third party also arrested pled guilty and accepted responsibility for all drugs found did not alter the fact that officers, based on the totality of the circumstances, acted reasonably in arresting the plaintiff at the time they did so. Lea v. Kirby, 171 F. Supp. 2d 579 (M.D.N.C. 2001).

Defenses: Statute of Limitations

     Malicious prosecution claims against officers, based on arrest pursuant to warrant, were not time-barred by Indiana's two-year statute of limitations since the claims did not accrue until the criminal prosecution was dismissed, rather than at the time of the arrest. Appeals court still upholds dismissal of claims against officers, however, in the absence of any allegation that they played an "essential or influential" role in obtaining the warrant or indictment. Snodderly v. R.U.F.F. Drug Enforcement Task Force, No. 99-3688, 239 F.3d 892 (7th Cir. 2001).

False Arrest/Imprisonment: No Warrant

     Officers had probable cause to arrest man for indecent exposure in forest preserve after two women visiting the park reported seeing a naked man "cavorting in the woods" in proximity to a group of children and the arrestee was later identified by name to one of the witnesses. Subsequent acquittal, based on lack of evidence of "lewd conduct," did not alter the existence of probable case to arrest. Pasiewicz v. Lake County Forest Preserve District, No. 00-4270, 270 F.23d 520 (7th Cir. 2001).

     Officers did not have probable cause to arrest female officer for "obstruction" of their investigation of her boyfriend's apparent suicide when she did not physically interfere with them but merely refused to give them her date of birth. Summary judgment in false arrest lawsuit was still proper, however, since defendant officers did have probable cause to arrest her on another, closely-related offense. Williams v. Jaglowski, No. 00-2600, 269 F.3d 778 (7th Cir. 2001).

     New York intermediate appellate court overturns $170,000 award in favor of arrestee who claimed he was falsely arrested and prosecuted, and orders new trial. Trial court erroneous instructed jury that the validity of a warrantless arrest depended on an ultimate finding that the arrestee was guilty, rather than merely on a finding that probable cause existed at the time of the arrest. Mucius v. County of Nassau, 733 N.Y.S.2d 458 (A.D. 2001).

     Officers had probable cause to make a warrantless arrest of a man for allegedly hitting his girlfriend, based on her accusations, their observation of her "bruised and disheveled condition," and her expressed fear of further harm. Statements by other individuals challenging the truth of the girlfriend's version did not require the officers to forgo or delay making the arrest. Richardson v. City of Boston, No. 99-P-170, 758 N.E.2d 629 (Mass. App. 2001).

Firearms Related: Intentional Use

     Man who was shot by an officer, but not arrested or detained, was not owed a duty by the officer to provide him with medical care. Officers did not "shock the conscience" by firing at two men after they heard what they thought was the sound of a bullet being chambered into a gun and one of the officers believed that he saw a weapon being pointed. Carr v. Tatangelo, 156 F. Supp. 2d 1369 (M.D. Ga. 2001).

     Use of deadly force to apprehend a fleeing arrestee after a bank robbery was reasonable even though a bank teller had reported that the robber was unarmed. The officer heard shots being fired, and did not know that it was other officers who had fired the shots. Dudley v. Eden, #99-3738, 260 F.3d 722 (6th Cir. 2001).

First Amendment

     Bringing reckless driving charges against motorcyclist, if motivated to hinder or prevent him from filing a civil lawsuit against arresting officers who had engaged in a high-speed chase in which he was injured, could constitute a violation of his First Amendment rights, even if criminal charges would otherwise be warranted. Poole v. County of Otero, No. 00-2215, 271 F.3d 955 (10th Cir. 2001).

Freedom of Information

     Records of internal investigations of police officers against whom civil or criminal complaints had been filed were shielded from a freedom of information act request under West Virginia state law based on an "invasion of privacy" exemption applicable to the records. Manns v. City of Charleston Police Department, No. 28743, 550 S.E.2d 598 (W. Va. 2001).

High-Speed Pursuit

     Texas police officer was engaged in a discretionary action in pursuing a fleeing suspect, even though he was ordered by a superior to give pursuit, when the manner of conducting the pursuit was left to his discretion. Officer was therefore entitled to official immunity as a defense to a lawsuit brought by an individual injured in a collision with the pursued car. Clark v. University of Houston, No. 14-96-00005-CV, 60 S.W.3d 206 (Tex. App. 2001).

Insurance

     City waived any defense of sovereign immunity in lawsuit brought by motorist injured during police chase by participating in a liability risk pool on the date when the accident occurred. It could not reclaim its waiver of sovereign immunity by ceasing to participate in the state risk pool, in the absence of consent by the plaintiff motorist. Cromwell v. Rapid City Police Department, No. 21582, 632 N.W.2d 20 (S.D. 2001).

Interrogation

     Criminal suspect stated a prima facie claim for violation of his constitutional rights based on police sergeant's alleged "coercive interrogation" after he had been shot five times by another officer and was undergoing medical treatment for life-threatening injuries in an emergency room. Interrogated suspect was allegedly "losing consciousness sporadically" during questioning and was not read Miranda warnings. Martinez v. City of Oxnard, # 00-56520, 270 F.3d 852 (9th Cir. 2001).

     Store customer was not "seized" when a police officer questioned him after he participated in a fight with store employees. Officer did not arrest or restrain him, and only later sent him a summons in the mail, precluding false arrest claims under Pennsylvania state law or federal civil rights claim. Colbert v. Angstadt, 169 F. Supp. 2d 352 (E.D. Pa. 2001).

Loss of Evidence/Preservation of Evidence

     Alaska Supreme Court recognizes claims for damages for spoilation of evidence by third parties. Claim by injured motorcyclists that state trooper intentionally removed driver of the truck which hit them from the scene of the accident in order to prevent him being tested for marijuana use stated a claim for interference with their right to pursue a lawsuit against the driver. Hibbits v. Sides, No. S-9630, 34 P.3d 327 (Alaska 2001).

Off-Duty/Color of Law

     Off-duty police officer working as a private security guard at a hotel was not entitled to assert public official immunity from lawsuit for personal injuries filed by hotel guest struck by bullet that officer fired during gun battle with two armed robbers in hotel lobby. Genuine issue of material fact existed, however, as to whether officer was acting as a private security guard and within the scope of his employment, during the gun battle. Lovelace v. Anderson, No. 70, Sept. Term. 1999, 785 A.2d 726 (Md. 2001).

Other Misconduct: Conspiracy

     City marshal who "accompanied" a fired worker off the premises of a private company owned by the city mayor did not act under color of law in doing so. Joint activities of mayor and marshal did not constitute a "conspiracy" sufficient to support federal civil rights liability. Marshal's mere presence did not violate fired employee's rights and he did not use force or take employee into custody, but rather merely "stood by" in case a disturbance developed. Staudinger v. Hoelscher, Inc., 166 F. Supp. 2d 1335 (D. Kan. 2001).

Police Plaintiffs: Products Liability

     Police officer who suffered major injuries while responding to distress call after his vehicle hit at tree at high speed is awarded $15.2 million by jury in lawsuit claiming that the steering mechanism of the car was defective. Hernandez v. Ford Motor Co., No. MID-L-10461-97 (Middlesex Co., N.J. Super. Ct. Jan. 18, 2002), reported in The National Law Journal, p. B5 (Feb. 4, 2002).

Procedural: Evidence

     Plaintiff arrestee's prior history of drinking habits, ownership of guns, and use of prescription drugs was properly admitted into evidence when the plaintiff answered questions on those issues on cross-examination without objections. Trial judge's comments about arrestee acting as his own lawyer in false arrest lawsuit did not require a new trial. O'Brien v. Johnson, 800 So. 2d 64 (La. App. 4th Cir. 2001).

Property

     Wisconsin state statute governing the return of seized property, W.S.A. 968.20, did not authorize trial court to award the fair market value of the property once it was no longer in the possession of the governmental entity which seized it. Property owner who was acquitted on the charge of receiving stolen property was not entitled to an award of money damages under the statute when city had given the property to another person it believed to be the rightful owner. In te Return of Property in State v. Glass, No. 99-2389, 628 N.W.2d 343 (Wis. 2001).

     Wife could not recover money damages in federal civil rights lawsuit against county sheriff alleging that deputy sheriffs violated her procedural due process rights by seizing her personal property on behalf of her husband. State law proceeding for "wrongful attachment" gave the wife an adequate post-deprivation remedy for the allegedly wrongful seizure. Nicholson v. Moates, 135 F. Supp. 2d 1185 (M.D. Ala. 2001).

Public Protection: Motoring Public & Pedestrians

     City and sheriff had no duty, under Louisiana law, to control traffic for the protection of pedestrians, and therefore were not liable for injury to visitor to Halloween haunted house suffered when he was struck by a car on an adjacent street. Arthur v. City of DeRidder, No. 01-0305, 799 So. 2d 589 (La. App. 3d Cir. 2001).

Search and Seizure: Home/Business

     City could not be held liable for damages allegedly caused by officers' warrantless search of apartment when there was no evidence that the city's official policies or practices contributed to or caused the alleged unconstitutional search. New trial required, however, on jury verdict for officers, when jury instructions were confusing and might have led the jury to believe that the officer's subjective intent to violate the plaintiff's rights was required for liability, rather than a finding of objective unreasonableness. Hudson v. New York City, #99-7256, 271 F.3d 62 (2nd Cir. 2001).

Search and Seizure: Person

     Federal customs agents who strip-searched and x-rayed a female traveler entering the country at an airport, and ordered a pelvic exam after she disapproved of the treatment of the only other African-American passenger on the plane were not entitled to qualified immunity. Initial stop and search was "routine," but subsequent actions were not supported by reasonable suspicion and violated the Fourth Amendment. Brent v. Ashley, No. 99-12169, 247 F.3d 1294 (11th Cir. 2001).

Collective Bargaining - In General

     Ohio appeals court enforces arbitration award confirming a bargaining agreement between the union and the sheriff, which the county commissioners had refused to sign. FOP v. Halleck, #99-CO-71, 143 Ohio App.3d 171, 757 N.E.2d 831, 2001 Ohio App. Lexis 2123 (7th Dist. Ohio. App. 2001).

Collective Bargaining - Duty to Bargain

     Ohio appeals court holds that a city had to bargain before increasing the number of eligible captains and firefighters who qualify for promotions. Steubenville Firefighters L-228 v. City of Steubenville, #00 JE 5, 2001 Ohio App. Lexis 4527 (7th Dist. Ohio App. 2001).

     FLRA affirms an arbitrator's ruling that a federal employer was not required to bargain over a unilateral implementation of penalties for computer security violations. Social Security Adm. and AFGE-GC, #0-AR-3381 , 2001 FLRA Lexis 110, 57 FLRA No. 85 p. 459 (FLRA, 2001).

Defamation

     California appeals court strikes down a law that allowed peace officers to sue citizens for knowingly making a false complaint of misconduct. Walker v. Kiousis, #E029822, 93 Cal.App. 4th 1432, 2001 Cal. App. Lexis 2584, 114 Cal.Rptr.2d 69, 01 C.D.O.S. 10003 (4th Dist.).

Disability Rights and Benefits: Heart, Lung and Presumption Laws

     Maryland's highest court disallows a city the opportunity to challenge, with expert testimony, the factual basis for a statutory presumption that heart disease of a police officer or firefighter is not job-related. Testimony must be specific to each claimant. City of Frederick v. Shankle, #24 Sept. Term 2001, 785 A.2d 749, 2001 Md. Lexis 934 (2001).

Disciplinary Appeals

     Wisconsin Supreme Court interprets statutes providing judicial review and collective bargaining to allow a terminated public employee to appeal to the courts, or force binding arbitration -- but not both. Eau Claire Co. v. Teamsters L-662, #98-3197, 2000 WI 57, 235 Wis.2d 385, 611 N.W.2d 744.

Disciplinary Evidence - In General

     Iowa Supreme Court upholds an order for a security chief to submit to a voiceprint to confirm that he made an obscene phone call. A state law prohibiting the use of polygraph examinations did not apply. Theisen v. Covenant Medical Center, #105/99-0533, 636 N.W.2d 74, 2001 Iowa Sup. Lexis 205, 18 IER Cases (BNA) 114, 39 (1940) G.E.R.R. (BNA) 1346 (Iowa, 2001).

Disciplinary Offenses - In General

     Pennsylvania State Police sergeant is suspended without pay for allegedly auctioning police equipment on the eBay Internet site; items included radar guns and riot helmets. "Pa. Police Commander in Online Scam," Associated Press, Dec. 20, 2001.

Disciplinary Procedures - Delays & Time Limits

     Appellate court reverses disciplinary action against an officer who allegedly engaged in a sex act in a public restroom, because management delayed serving him with formal charges. The union contract required action within 60 working days after his acquittal of criminal charges. In the Matter of Piper, #18336, 142 Ohio App.3d 765, 757 N.E.2d 3, 2001 Ohio App. Lexis 2209 (2d Dist. Ohio App. 2001).

Domestic Partner Rights

     Congress funds domestic partner benefits for D.C. public employees. H.R. 2944, the District of Columbia Appropriations Act, passed the House (302 to 84) and the Senate by (79 to 20) on Dec. 7, 2001.

     Anchorage court refuses to order domestic partner benefits for Alaska public employees. Alaska Civil Liberties Union v. State of Alaska, Superior Court, 3rd Judic. Dist. (16 Nov. 2001).

Fair Labor Standards Act - 7K Exemption

     Fire dept. paramedics and emergency medical technicians were not  exempt from overtime compensation (until they exceed 53 hrs. per week) as "firefighters," as they did not qualify for the 207(k) exclusion. Vela v. City of Houston, #00-20770, 2001 U.S. App. Lexis 26779 (5th Cir. 2001).

Handicap Laws and Abilities Discrimination - In General

     Termination of a service technician for excessive work absences was a legitimate, nondiscriminatory and nonpretextual reason, in spite of his medical conditions (immune deficiency and clinical depression). Van Campen v. IBM, #1-00-2155, 2001 Ill. App. Lexis 924 (Ill. App. 2001).

Homosexual & Transgendered Employee Rights

     Minnesota's Supreme Court reverses a ruling that an employer must allow a transvestite to use the restrooms of his or her choice. Restricting access to restrooms by biological gender is not sexual orientation discrimination. Goins v. West Group, #CX-00-706, 635 N.W.2d 717, 2001 Minn. Lexis 789 (2001).

Impasse Arbitration

     Special impasse legislation for New York City's police officers and firefighters is constitutionally valid. PBA of City of N.Y. v. N.Y. State PERB, #3 No. 171, 2001 N.Y. Lexis 3813, 2001 NY Int. 149 (N.Y. 2001).

Privacy Rights

     Federal court in Ohio excuses a city from damage liability for releasing personal information about named undercover police officers, but also issues an injunction, requiring officials to notify the officers about future informational requests. Kallstrom v. City of Columbus, #C-2-96-00124, 165 F.Supp.2d 686, 2001 U.S. Dist. Lexis 16315 (S.D. Ohio).

     A divided Federal Labor Relations Authority holds that an arbitrator may award damages to a federal employee for Privacy Act violations. AFGE L-987 and Air Force Materiel Command, Robins A.F.B., Ga., #0-AR-3324, 57 FLRA No. 97 p551, 2001 FLRA Lexis 122, 39 (1937) G.E.R.R. (BNA) 1268.

Race or Sex Discrimination - Disparate Discipline

     Federal court dismisses a 1983 suit against the chief and another, alleging that criminal charges were maliciously brought against two police employees who were charged criminally with the misuse of computers. Lyles v. Montgomery Co., #DKC 2000-2021, 162 F.Supp.2d 402, 2001 U.S. Dist. Lexis 18950 (D. Md. 2001).

Taxation

     A successful plaintiff in a federal age discrimination lawsuit is responsible for paying taxes on the amount of attorney's fees awarded. Sinyard v. Cmsnr. Internal Rev., #99-71369, 268 F.3d 756, 86 FEP Cases (BNA) 1417, 2001 U.S. App. Lexis 20886 (9th Cir.); affirming T.C. Memo 1998-364, 1998 Tax Ct. Memo Lexis 365 (Tax Ct. 1998).

     A state income tax law that taxes mandatory contributions by federal employees, but does not tax similar contributions of state and local employees does not violate the federal law prohibiting discriminatory taxation against federal workers, 4 U.S. Code §111. Kerr v. Killian, #1-CA-TX-00-0023, 32 P.3d 408, 2001 Ariz. App. Lexis 122 (Ariz. App. 2001).

Untruthfulness & Resume Fraud

     Arbitrator upholds the termination of an officer who lied about having sex in a police car while on duty. City of Cuyahoga Falls, Ohio and Fraternal Order of Police, FMCS #010302/007108-6, 116 LA (BNA) 545 (2001).

Chemical Agents

     Prisoner's claim that officials' use of tear gas to enforce lockdown was an excessive use of force was contradicted by videotape showing that prisoners, including the plaintiff, did not return into their cells when the order to do so was initially given. Prisoner's claim that he "begged" for medical attention but that prison employees would not help him was also contradicted by videotape which showed officers asking him whether he needed medical attention and him replying that he did not. Fairweather v. Giles Dalby Correctional Facility, 154 F. Supp. 2d 921 (N.D. Tex. 2001).

Defenses: Eleventh Amendment Immunity

     Inmate's claims that state department of corrections violated state labor laws by failing to compensate inmates adequately for work assignments and refusal to allow them to bargain collectively were barred by Eleventh Amendment immunity, as were his claim that his rights were violated when he was locked in his cell for twenty days under keep-lock conditions when ammunition was found in several areas of the prison accessible to inmates. Bryant v. N.Y. State Department of Correction Services, 146 F. Supp. 2d 422 (S.D.N.Y. 2001).

Disability Discrimination

     U.S. Supreme Court to rule on the issue of whether punitive damages may be awarded against a municipality in a lawsuit for damages brought under Section 504 of the Rehabilitation Act or Section 202 of the Americans With Disabilities Act. Barnes v. Gorman, #01-682, cert. granted, 122 S. Ct. 864 (2002).

DNA Tests

     Update: federal appeals court overturns trial court decision ruling that a convicted rapist had a constitutional due process right to DNA testing on evidence in his case in an attempt to prove his innocence. Harvey v. Horan, #01-6703, 2002 U.S. App. Lexis 923 (4th Cir.).

Exercise

     Further proceedings were required to determine factually whether plaintiff prisoner was actually deprived of meaningful exercise opportunities for twenty eight days while under a restraint order following his verbal harassment of a correctional officer. Issues included whether the handcuffs and waist chain restraints kept on him prevented him from "meaningfully exercising" in an exercise area, and whether he had any meaningful opportunity for in-cell exercise, as well as the question of whether prison officials' actions were justified under the circumstances. Williams v. Goord, 142 F. Supp. 2d 416 (S.D.N.Y. 2001).

Frivolous Lawsuits

     Texas statute requiring indigent prisoners to file an affidavit listing the prior lawsuits they have filed and their disposition, or else face dismissal of their lawsuit as frivolous or malicious, did not violate prisoner's rights under the U.S. or Texas constitution. Plaintiff whose lawsuit was dismissed for failure to file required affidavit was the "veritable poster child" for the rational basis of the statute, court comments, with over 175 prior lawsuits and 16 prior published appellate decisions in which he was the appellant. the claims asserted have already been litigated.  Thomas v. Bilby, No. 06-00-00113-CV, 40 S.W.3d 166 (Tex. App. 2001).

Insurance

     The existence of a surety bond removed the protection of governmental immunity from the sheriff and jailer in a prisoner's suit under North Carolina law alleging negligence and neglect in medical treatment of his hemophilia. Lawsuit alleged failure to properly respond to plaintiff's nose bleed, causing him to ultimately require ten days of hospital treatment. Summey v. Barker, No. COA00-106, 544 S.E.2d 262 (N.C. App. 2001).

Medical Care

     Prisoner could not demonstrate that prison doctor was "deliberately indifferent" to his serious medical needs when all he alleged amounted to inadvertent failure to provide medical care, or, at worst, negligence (ordinary medical malpractice). Additionally, prison doctor relied on specialist's recommendation in determining treatment for avascular necrosis of the femoral head. Palermo v. Correctional Medical Services, Inc., 148 F. Supp. 2d 1340 (S.D. Fla. 2001).

Prison Litigation Reform Act: Exhaustion of Remedies

     Prisoner's lawsuit, over incident which occurred prior to the enactment of the Prison Litigation Reform Act, with its exhaustion of remedies requirement, but which was filed after the enactment of the law, was properly dismissed for failure to exhaust remedies by filing a written complaint with the prison. McCoy v. Gilbert, No. 00-1354, 270 F.3d 503 (7th Cir. 2001).

     Prisoner may have sufficiently exhausted "available" administrative remedies if, as he claimed, prison officials failed to comply with his requests to be furnished with grievance forms. Miller v. Norris, #00-1053, 247 F.3d 736 (8th Cir. 2001).

     Further proceedings ordered to determine whether prisoner exhausted available administrative remedies in lawsuit alleging denial of his right to practice his Jewish religion. Plaintiff alleged that prison officials prevented him from pursuing administrative remedies further by either stating or implying that no further avenues were available for him. Lyon v. Krol, #00-3283, 270 F.3d 563 (8th Cir. 2001).

Prisoner Assault: By Inmates

     Correctional officers were not entitled to qualified immunity in lawsuit alleging that they watched television all evening while on duty and, as a result, failed to break up a fight between two cellmates which resulted in the death of one of them. Two cellmates allegedly belonged to rival gangs, but Commissioner of Corrections and warden lacked sufficient knowledge of the two gangs and their purported rivalry to be liable for failing to change a practice of allowing members of the two gangs to be housed in the same cell. Rodriguez v. Connecticut, 169 F. Supp. 2d 39 (D. Conn. 2001).

     Correctional officials and employees who allegedly had knowledge of prisoners' death threats against inmate subsequently murdered at his prison printshop workplace yet took no protective actions were not entitled to qualified immunity from liability. Flint v. Kentucky Department of Corrections, No. 00-5129, 270 F.3d 340 (6th Cir. 2001).

     Prisoner's allegations of negligence against sheriff, county, and detention guard were insufficient to support a federal civil rights lawsuit against them for failure to prevent an assault by another inmate which resulted in a broken jaw. Further, federal court would not hear state law negligence claim, since an identical claim had already been resolved in state court. Lawson v. Toney, 169 F. Supp. 2d 456 (M.D.N.C. 2001).

Prisoner Assault: By Officers

     Federal trial court rules that prison officers did not necessarily violate the Eighth Amendment by beating a prisoner while he was handcuffed and that defendant officers were entitled to qualified immunity in prisoner's federal civil rights lawsuit. Piedra v. True, 169 F. Supp. 2d 1239 (D. Kan. 2001).

     Prisoner who claimed she was assaulted by jail personnel during her incarceration could not amend her lawsuit to seek damages against individual officers when her initial complaint appeared to name them as defendants only in their official capacity, officer asserted in his answer that he was being sued in his official capacity, and discovery in the case had closed. Lopez-Buric v. Notch, 168 F. Supp. 2d 1046 (D. Minn. 2001).

     Prisoner's claim that a corrections officer intentionally slammed a cell door on a prisoner's hand and then waited an hour before allowing him to get medical attention for serious injuries to his hand, (including two cuts, swollen fingers, and loss of power and feeling in fingers and hand), stated a claim for violation of the Eighth Amendment. Ducally v. Rhode Island Department of Corrections, 160 F. Supp. 2d 220 (D.R.I. 2001).

Prisoner Classification

     Prisoner who was reclassified into a classification in which he could not earn good time credits based on a disciplinary conviction for failing to obey prison's grooming policy could not pursue federal civil rights claim for damages when the disciplinary conviction had not previously been set aside. Diaz v. Terhune, 173 F. Supp. 2d 1026 (N.D. Cal. 2001).

Prisoner Death/Injury

     Jail officials were not liable for pretrial detainee's death from ingestion of cocaine when he denied that he had done so and refused medical attention. Arresting officers and intake personnel at the jail all offered to get him medical assistance if he required it and all asked him whether he had swallowed drugs. Watkins v. City of Battle Creek, No. 00-1502, 273 F.3d 682 (6th Cir. 2001).

Prisoner Suicide

     Texas county juvenile detention facility reaches $100,000 settlement in lawsuit brought by family of 15-year-old who hung himself in his cell with a sheet. Creel v. Denton County, Denton Co., Texas, Cir. Ct., October 5, 2001, reported in The National Law Journal, p. B5 (Jan. 7, 2002).

     County sheriff's statement to the media that a jailor was watching a tv monitor and saw a pretrial detainee put a sheet around his neck was not admissible evidence in a lawsuit over the detainee's suicide. The statement did not come under a public records and reports exception to the hearsay rule, since it was not the result of the jail's investigation.. Ellis v. Jamerson, 174 F. Supp. 2d 747 (E.D. Tenn. 2001).

     Police dispatcher/jailer on duty when arrestee committed suicide was not liable, in the absence of subjective knowledge that there was a strong likelihood that arrestee would make the attempt at that time. Arrestee's prior alleged history of suicide attempts, drug abuse and mental problems did not, by themselves, show such knowledge when she did not exhibit suicidal threats or actions on the day of her most recent incarceration. Bowens v. City of Atmore, 171 F. Supp. 2d 1244 (S.D. Ala. 2001).

Private Prisons

     Private company and individual employee defendants who operated a correctional facility under a contract with the state were "state actors" for purposes of a federal civil rights claim under 42 U.S.C. Sec. 1983. Palm v. Marr, 174 F. Supp. 2d 484 (N.D. Tex. 2001).

Religion

     Year-long delay in building a sweat lodge to allow Native American inmates to practice their religion at a newly opened prison violated their First Amendment free exercise rights, but did not violate their right to equal protection. Court rules, however, that prison officials were entitled to qualified immunity from liability for money damages for the First Amendment claim as the law on the subject was not previously clearly established. Youngbear v. Thalacker, 174 F. Supp. 2d 902 (N.D. Iowa 2001).

Sexual Assault

     Mother of juvenile detainee allegedly sexually assaulted and abused by warden in juvenile detention facility did not show that alleged assault was caused by the failure of state employees to mention warden's prior marijuana conviction when writing letters of reference to obtain warden position. Warden had previously received a pardon on that conviction from the governor and the conviction had been effectively expunged, with a criminal records search not revealing it. K.S., v. Summers, No. 2001 CW 0794, 799 So. 2d 510 (La. App. 2001)

     Prisoner stated an Eighth Amendment claim for sexual assault against private medical service employees brought into correctional facilities. Prisoner, who was pregnant at the time, claimed that two nurses sexually assaulted her by conducting an internal exam without gloves, asking if she was HIV positive, giving her hugs and kisses, and giving her one of their home phone numbers.. Goode v. Correctional Medical Services, Inc., 168 F. Supp. 2d 289 (D. Del. 2001).

Strip Searches: Prisoners

     Policy of county jail which subjected all incoming prisoners to strip searches and delousing procedure without any suspicion of possession of contraband or weapons was unreasonable and county jail officials were not entitled to qualified immunity. Provision of Prison Litigation Reform Act prohibiting awards for mental distress without evidence of physical injury did not apply when plaintiffs were former, as opposed to current, prisoners. Doan v. Watson, 168 F. Supp. 2d 932 (S.D. Ind. 2001).