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

Summaries from the May 2002

Administrative Liability: Supervision.

     A possible claim for supervisory liability was stated by plaintiffs who claimed that supervisors of undercover drug agents selected agents with "inclinations" towards violence and "poor psychological profiles," and knew about, yet failed to investigate prior incidents of brutality. Adorno Colon v. Toledo Davila, 137 F. Supp. 2d 39 (D. Puerto Rico 2001).

Assault and Battery: Chemical

     Arrestee's standing conviction for obstructing an officer barred his excessive force claim against the arresting officer for using pepper spray against him, since an award in his favor would imply the invalidity of his conviction. California intermediate appeals court rules. Susag v. City of Lake Forest, No. D038608, 115 Cal. Rptr. 2d 269 (Cal. App. 2002).

Assault and Battery: Physical

     Jury properly awarded compensatory damages of $15,184 and punitive damages of $37,916 to bystander documenting police conduct at event who claimed that an officer assaulted him and tackled him to the ground while he had his hands up in the air. Defendant officer was not unfairly prejudiced by the admission of evidence concerning the conduct of other officers present on the occasion. Cummings v. Libby, 176 F. Supp. 2d 26 (D. Maine 2001).

     Officer did not "shock the conscience" by hitting a protester who grabbed him from behind while the officer was attempting to arrest another protester during a demonstration. Officer's action of swinging his arm backwards after protester had grabbed his ankles was also objectively reasonable under the Fourth Amendment. Darrah v. City of Oak Park, No. 00-1253, 255 F.3d 301 (6th Cir. 2001).

Attorneys' Fees: For Plaintiff

     Detainee was not a prevailing party entitled to an award of attorneys' fees in his federal civil rights lawsuit seeking the return of documents seized from him by officers during a traffic stop despite the fact that the defendants agreed to return photocopies of some of the documents. The court did not rule on any of the plaintiff's claims and the return of the photocopies did not prevent the city from using the documents to investigate and charge the plaintiff with credit card fraud. Richardson v. Miller, #01-1309, 279 F.3d 1 (1st Cir. 2002).

     Two arrestees awarded $501 and $1 in damages in their false arrest/excessive force lawsuit against the arresting officer are awarded $21,009.22 in attorneys' fees and $1,029 in costs by trial court as prevailing plaintiffs. Okot v. Conicelli, 180 F. Supp. 2d 238 (D. Maine 2002).

Defenses: Qualified (Good-Faith) Immunity

     Officer's arrest of suspect, in November 1997 in Michigan, for refusal to provide identification after being requested to do so did not violate clearly established constitutional law. Arresting officer and police chief were entitled to qualified immunity from liability. Risbridger v. Connelly, #00-2471, 275 F.3d 565 (6th Cir. 2002).

     Reasonable officers could disagree as to whether there was probable cause for arresting a motorist (who was a police officer) for intoxicated driving after a traffic stop following the motorist's vehicle being observed crossing the center and white lane-control lines, and after the motorist appeared to fail a field sobriety test and refused to take a second one. Fersner v. Prince George's County, Md., 138 F. Supp. 2d 685 (D. Md. 2001).

Dogs

     Officer's use of a police dog trained in a bite-and-hold technique to find and apprehend a motorist who ran away after what seemed to be a routine traffic stop was not an excessive use of force under the Fourth Amendment; motorist's fleeing gave officer some grounds to believe that more serious misconduct might have been involved. Officer did not know, for a fact, that motorist was unarmed. Kuha v. City of Minnetonka, 176 F. Supp. 2d 926 (D. Minn. 2001).

Expert Witnesses

     Expert witness testimony that officers should not have shot a fleeing suspect was admissible in excessive force lawsuit, even though the question of whether the officers actually saw the suspect possessing a weapon did not determine whether they could use deadly force. Expert's opinion could help the jury decide whether the officers' use of force was reasonable under the circumstances. Wilson v. City of Des Moines, 160 F. Supp. 2d 1038 (S.D. Iowa 2001).

False Arrest/Imprisonment: No Warrant

     Police officer had probable cause to arrest suspect for unlawful use of a credit card based on information provided by retailer that an unauthorized person, the suspect, had used the card to order a computer. Brown v. Sears Roebuck and Co., 736 N.Y.S.2d 671 (A.D. 2002).

     Louisiana appeals court upholds award of $200,000 in damages for police sergeant's action "without good cause" in arresting high school principal for allegedly "obstructing" child sexual abuse investigation. Principal contended that police personnel who attempted to get child released to them by school did not identify themselves as police and did not follow established school board policy for such releases. Dumas v. City of New Orleans, No. 2001-CA-0448, 803 So. 2d 1001 (La. App. 2001).

     Officers were entitled to investigate further when man was found dressed only in his underwear in a van parked in a "park and ride" lot at a transit terminal and stated "you caught me" when officers approached. Suspect's action in trying to lock door to the van and holding it closed when officers tried to remove him from the vehicle for questioning gave officers grounds for an arrest for obstructing governmental administration. Diehl v. Munro, 170 F. Supp. 2d 311 (N.D.N.Y. 2001).

False Arrest/Imprisonment: Warrant

     An objectively reasonable officer could conclude that the failure to obtain a Washington state warrant after arresting a suspect in that state on a facially valid Oregon felony arrest warrant did not violate the suspect's constitutional rights. Case v. Kitsap County Sheriff's Department, No. 98-36260, 249 F.3d 921 (9th Cir. 2001).

Firearms Related: Intentional Use

     State trooper acted intentionally in shooting a motorist during a traffic stop, believing motorist was reaching for a gun. Because North Carolina Tort Claims Act did not allow recovery against the state for intentional injuries, the state Industrial Commission did not have jurisdiction over the estate's claim concerning the shooting. Fennell v. North Carolina Department of Crime Control and Public Safety, No. COA00-824, 551 S.E.2d 486 (N.C. App. 2001).

First Amendment

     City ordinance which prohibited residential picketing was a permissible time, place, and manner restriction on speech in the traditional public forum of residential streets so that arrests of anti-abortion protestors for disobeying it did not violate their First Amendment rights. Veneklase v. City of Fargo, No. 98-2147, 248 F.3d 738 (8th Cir. 2001).

     Use of a public school as a polling place did not automatically make it a traditional public forum and police officers did not violate petition circulators' First Amendment rights by removing them from the school property. United Food and Commercial Workers v. City of Sidney, Ohio, 174 F. Supp. 2d 682 (S.D. Ohio 2001).

Frivolous Lawsuits

     Attorney's continued "frivolous" filings after a warning from the court warranted a $1,000 fine and other sanctions. Lawyer, reacting to the trial court's concern that his 34-page civil rights complaint against various police departments "cannot be understood" responded with a 160-page "Amended Complaint" which "compounded the difficulties" and asserted claims that were "legally and factually nonsensical." Leuallen v. Borough of Paulsboro, 180 F. Supp. 2d 615 (D.N.J. 2002).

Governmental Liability: Policy/Custom

     Plaintiff did not show that the city had a custom or policy that caused the deprivation of his due process rights to his property in the absence of a pattern of similar incidents in which property seized during searches was not returned after it was determined that it had no connection to any crime. The fact that construction equipment was seized from two residences and that criminal charges related to the seizures were later both dropped did not show such a pattern when both searches were conducted on the same day by the same officer. Brown v. Knapp, 156 F. Supp. 2d 732 (N.D. Ill. 2001).

Interrogation

     Officers were not entitled to qualified immunity on arrestee's claim that they coerced her confession to participating in the making of bomb threats against her employer by lengthy questioning, verbal harassment, and making threats about the custody of her son. Edwards v. Pretsch, 180 F. Supp. 2d 499 (S.D.N.Y. 2002).

Malicious Prosecution

     Police officers' alleged failure to follow some leads or to take accurate investigation notes in child sexual abuse investigation only showed possible carelessness, rather than the malice required to support a claim under New York law by an arrested day care aide for malicious prosecution. Ramos v. City of New York, 729 N.Y.S.2d 678 (A.D. 2001).

Police Plaintiff: Firearms Related

     Operation of a police training school by a village was a "proprietary function" imposing the same duty of care and same liability as a private individual or institution would have had while engaging in the same activity. Municipality, school, and school personnel, including director and commanding officer were not entitled to governmental immunity under New York law from liability for trainee's injuries during firearms training exercise. Lemery v. Village of Cambridge, 736 N.Y.S.2d 503 (A.D. 2002).

     Police officer shot in the chest in a parking lot is awarded $1.3 million against employer of his attacker; officer's lawsuit claimed that employer knew about, but ignored drug use by its traveling work crews, including the attacker. Ianni v. Loram Maintenance of Way Inc., No. 96-151 (El Paso Co., Texas, 120th Dist. Ct.), reported in The National Law Journal, p. B3 (Feb. 11, 2002).

Police Plaintiff: Vehicle Related

     A New York police officer who was seriously injured when his police vehicle hit a public bus was properly awarded $1,347,500 for future lost earnings in a lawsuit against the bus company, but jury's award of $0 for future pain and suffering was "inconsistent and against the weight of the evidence." When officer's permanent injuries were "uncontroverted," no reasonable interpretation of the evidence supported the jury's decision that he was entitled to nothing for future pain and suffering. Hothan v. Metropolitan Suburban Bus Authority, 734 N.Y.S.2d 632 (A.D. 2001).

     The determination of whether a vehicle collision was an "accident" must be made from the point of view of the alleged wrongdoer rather than from the point of view of the insured victim for purposes of auto insurance uninsured motorist coverage. Police officer's injury from hit-and-run driver's intentionally trying to run him down in order to escape in a stolen vehicle was not the result of an "accident" under this test, so the officer could not recover under his uninsured motorist coverage. Shaw v. City of Jersey City, 787 A.2d 268 (N.J. Super A.D. 2002).

Privacy

     Decedent's family had no constitutionally protected privacy interest in preventing officer from making public statements containing information about his highly personal sexual behavior of an allegedly autoerotic nature, and were not entitled to a "name-clearing hearing." Livsey v. Salt Lake County, No. 00-4005, 275 F.3d 952 (10th Cir. 2001).

     City's purported failure to remove the arrestee's photo and arrest sheet from its records after they had been sealed under a criminal procedural rule did not violate his constitutional right to privacy. Crime victim's subsequent positive identification of plaintiff as the man who shot him based on viewing the photo gave the officers a "complete defense" to plaintiff's subsequent false arrest claim. Brown v. City of New York, 735 N.Y.S.2d 21 (A.D. 2001).

Procedural: Appeal

     City attorney's inability to access their office, located in proximity to the World Trade Center, for appropriately one month after the terrorist attack on the building was a "unique circumstance" warranting the trial court to extend the period of time for the city and police officers to file a notice of appeal of the jury's verdict and award of $21,003 in damages for an arrestee in his civil rights lawsuit. Ishay v. City of New York, 178 F. Supp. 2d 314 (E.D.N.Y. 2001).

Procedural: Discovery

     It was not an abuse of discretion for a trial court to dismiss a federal civil rights lawsuit against a city with prejudice based on plaintiff's failure to comply in a timely manner with orders for discovery. Serra-Lugo v. Consortium-Las Marias, #01-1441, 271 F.3d 5 (1st Cir. 2001).

Procedural: Jury Selection

     Trial judge did not abuse discretion in refusing to ask potential jurors in lawsuit over shooting by officer how they felt about certain highly publicized police misconduct cases. Questions asked were sufficient to probe jurors' views about police misconduct litigation generally and about potential biases in favor of officers. Monroe v. City of Phoenix, Ariz., No. 99-16974, 248 F.3d 851 (9th Cir. 2001).

Property

     Oregon appeals court holds that a city which "mistakenly" seized marijuana from a patient entitled to possess it under state statute must return the drugs to him despite federal law prohibiting the delivery of controlled substances. Court points to a provision of the federal statute immunizing law enforcement officers from civil or criminal liability for handling controlled substances if it is done within the performance of their duties. State of Oregon and City of Portland v. Kama, A109667, 39 P.3d 866 (Ore. App. 2002).

Public Protection: Motoring Public & Pedestrians

     County sheriff was not liable for injury to driver and passengers of motor vehicle injured when they hit rock on the highway that the sheriff observed and failed to remove. Idaho law would not impose on the sheriff a common law duty to remove rocks on the highway or warn motorists of them, and any statutory duty to remove obstructions from the highway were on the state, not the county. Udy v. Custer County, Nos. 26345, 26346, 34 P.3d 1069 (Idaho 2001).

Age Discrimination - Termination

     Federal appeals court upholds a management decision to terminate an older employee and replace him with a younger man who possessed superior computer skills. Lesch v. Crown, #00-4239, 2002 U.S. App. Lexis 3159 (7th Cir.).

     A state court jury in Massachusetts has awarded a former senior citizen van driver $165,000 plus $45,893 in interest because she was fired, at age 82. Kowalczyk v. Blackstone, Worcester Co. Super. Ct. (2002).

Applicant Rejections

     An employer's refusal to rehire former employees because of pension liability does not violate §510 of the Employee Retirement and Income Security Act (ERISA) 29 U.S. Code §1140. Becker v. Mack, #00-4414, 2002 U.S. App. Lexis 2622 (3d Cir. 2002).

Arbitration Procedures

     Arbitrator strictly enforces the time requirements to demand arbitration. The fact that a grievance hearing might prejudice a pending criminal case does not excuse compliance with the CBA's time limitations. Union official's failure to file a formal arbitration demand was not waived by his misunderstandings with the chief. City of Margate and Fraternal Order of Police, FMCS #01/09602, 116 LA (BNA) 985 (Hoffman, 2001).

Disciplinary Interviews - Garrity Warnings

     Maryland appellate court affirms that public employees must answer questions, if required to do so, that specifically, directly, and narrowly relate to the performance of their official duties or their fitness for continued employment. Superiors must give a clear order (and advice of rights) to interviewed employees. Dept. of Pub. Sfty. v. Shockley, #2081 S. T. 2000, 790 A.2d 73 (Md.Sp.App. 2002).

Disciplinary Punishment

     Arbitrator sustains a charge, brought against a VA hospital police officer, of failing to assign an officer to protect a nurse who needed to meet with an employee who had a history of losing control. A disciplinary suspension of five days was excessive, and was reduced to one day. Central Ark. Veterans Healthcare and AFGE L-2054, FMCS #01/0523-11049-3, 116 LA (BNA) 1008 (Crow, 2002).

Disciplinary Searches

     California appeals court allows the search of an employer-owned computer used at an employee's home; he had signed a consent form and was obligated to permit the inspection. TBG Insur. v. Super. Ct. (Zieminski), #B153400, 2002 Cal. App. Lexis 1839 (Cal. App. 2d Dist. 2002).

Ergonomics

     Controversial proposed OSHA Rule to be rewritten as guidelines.

Employee Harassment - Nonsexual

     Federal court rejects a fire lieutenant's sexual harassment claim, but allows a retaliation claim. Used condoms and gay material were put in his desk; his gear was smeared with excrement. Management responded inadequately to his complaints and then refused to let him work for medical reasons. Jury awards him $1,237,500. Bianchi v. Philadelphia, #99-CV-2409 (E.D.Pa).

Fair Labor Standards Act - Overtime

     Federal court dismisses a suit by California state corrections officers seeking damages against their superiors, in their individual capacities for failing to timely pay retroactive overtime pay increases. The court held that managers were not "employers" under the FLSA, and even if they were, sovereign immunity applies because the state was the real party in interest. Baird v. Kessler, #S-00-1619, 172 F.Supp.2d 1305, 2001 U.S. Dist. Lexis 19106 (E.D. Cal. 2001).

Fair Labor Standards Act - Exemptions

     Although GS-12 first line supervisory border patrol agents were entitled to overtime, GS-13 Agents In Charge and Assistant Patrol Agents In Charge were exempt from the FLSA. Bates v. U.S., #96-931, 51 Fed. Cl. 460; 2002 U.S. Claims Lexis 7 (Ct.Cl. 2002).

Family and Medical Leave

     Divided Supreme Court strikes down a DoL regulation requiring employers to inform workers that authorized leave counts against their FMLA 12 week entitlement. Ragsdale v. Wolverine World Wide, #006029, 2002 U.S. Lexis 1936.

     Evidence that the plaintiff's father suffered from severe depression, which prompted the plaintiff to take time off, was sufficient to create triable issues of fact under the FMLA. Scamihorn v. General Truck Dr. Un., #00-55722, 2002 U.S. App. Lexis 3369 (9th Cir.2002).

Free Speech

     Seventh Circuit upholds right of a detective to sue for a retaliatory transfer. He pursued an investigation that revealed damaging allegations about a politician who is a close friend of the chief of police. Delgado v. Jones, #01-1460, 2002 U.S. App. Lexis 3669 (7th Cir. 2002).

     Ninth Circuit upholds a whistleblower's lawsuit alleging retaliation for speaking out against prison conditions. In mixed-motive cases, the burden of justifying adverse personnel action falls on the employer. Allen v. Iranon, #99-16896, 2002 U.S. App. Lexis 3892 (9th Cir. 2002).

     Communications that are part of an employee's regular job duties are not matters of public concern. Police officer had claimed that he was terminated because of negative reports he had written about other officers during his prior tenure as a police civilian employee. Those reports lack First Amendment protection. Gonzalez v. Chicago, 239 F.3d 939 (7th Cir. 2001).

Handicap Laws - Accommodation

     Federal court awards compensatory damages, back and front pay, and attorney's fees to a sheriff's officer who was unable to work as a jailer after a heart attack, and was not told of a senior dispatcher's vacancy. Appeals court remands for further clarification.Bristol v. Bd. of Co. Cmsnrs., #00-1053, 2002 U.S. App. Lexis 2937 (10th Cir.).

Handicap Laws - Specific Disabilities

     Federal court in N.Y. holds that the ability to get along with others is "a major life activity" within the meaning of the ADA; the plaintiff suffers from bipolar disorder. Jacques v. DiMarzio Inc., 97-CV-2884, 2002 U.S. Dist. Lexis 3399 (E.D.N.Y. 2002).

Hearing (Audio) Impairment

     Boston jury orders reinstatement and awards $847,785 in back pay and damages to a man who was expelled from the police academy because of his audio impairment. Dahill v. Boston, 98-CV-11441 (D.Mass. 2002).

     A court's refusal to provide videotext display for an individual with a hearing impairment, who was a party to litigation, violated the ADA's reasonable accommodation requirement. Duvall v. County of Kitsap, # 99-35934, 260 F.3d 1124 (9th Cir. 2001).

Heart Problems

     N.Y. Corrections officer was entitled to statutory benefits for heart disease, notwithstanding a long history of smoking and a family predisposition to heart disease. White v. Co. of Cortland, 3 No. 18, 2002 N.Y. Lexis 487 (N.Y. 2002).

Injuries to Employees

     New York correctional facility counselor awarded $109,000 for injuries sustained when her chair collapsed. Kwartler v. State of N.Y., #91739 (N.Y.Ct.Cl. 2002). New York jury awards a firefighter $2.3 million against a motorist who struck him while passing a fire truck. The plaintiff suffered a fractured ankle, requiring surgery and six screws. McNamara v. Hittner, #11535/00 (N.Y. Supr. Ct., Richmond Co. 2002).

Military Leave

     Federal appeals court holds that military training laws did not protect an employee who deliberately falsified his time card. Hill v. Michelin N.A., #00-2202, 252 F.3d 307 (4th Cir. 2001).

Pending Legislation

     FBI oversight: Chairman of the Senate Judiciary Committee Patrick Leahy (D-Vt.) and Sen. Charles Grassley (R-Iowa) have introduced legislation which would give the Justice Dept's inspector general permanent jurisdiction over the FBI, include FBI employees under the Federal Whistleblower Act, and create an FBI internal security division. Federal Bureau of Invest. Reform Act of 2002, S. 1974.

Pleading Requirements

     Supreme Court overturns a "heightened pleading standard" for employment discrimination cases adopted by the Second Circuit. In a unanimous decision, the justices said an employee does not need to plead a prima facie case in a discrimination complaint and may make a "short and plain statement" of the claim. Swierkiewicz v. Sorema, #00-1853, 122 S.Ct. 992 (2002).

Pregnancy Policies and Discrimination

     Where the evidence shows that the plaintiff was fired because of absenteeism, not her pregnancy, she could not recover under the Pregnancy Discrimination Act of 1978. Stout v. Baxter Healthcare, #99CV129, 2002 U.S. App. Lexis 2573 (5th Cir. 2002).

Probationary Employment

     California appellate court holds that placing an officer, accused of rape, on inactive duty status, did not extend his probationary period. Winter v. Los Angeles, B148898, 2002 Cal.App. Lexis 2557 (2002).

Privacy Rights

     Appeals court overturns a ruling against a police captain who was sued because a subordinate officer had videotaped a woman while undressing at the academy. The captain had no knowledge of four prior incidents involving the trooper. The captain was unaware of, and was not informed by his predecessor of any performance or disciplinary issues involving the male officer. Poe v. Leonard , #00-9024, 2002 U.S. App. Lexis 2530 (2nd Cir. 2002).

Race Discrimination - In General

     Eighth Circuit allows an at-will employee can sue a former employer under 42 U.S. Code §1981. Skinner v. Maritz, #00-2569, 253 F.3d 337 (8th Cir. 2001).

     If a minority promotional candidate was not clearly more qualified than the persons ultimately promoted, and if there was no evidence of intentional discrimination, the employer was entitled to judgment as a matter of law. Millbrook v. IBP, Inc., #01-1189, 280 F.3d 1169 (7th Cir. 2002).

     Profiling: Baltimore City Police major abruptly retires after issuing a memo to subordinates that targeted all blacks found near a bus stop for stop-and-question tactics, following a reported rape at that location.

Race: Reverse Discrimination

     A white applicant who scored so low on a police entry exam does not have standing to challenge racial preferences, because he would not have been hired if there were no preferences in place. Donahue v. Boston, #00-10884-JLT, 2001 U.S. Dist Lexis 20964 (D.Mass. 2001).

Retirement Rights and Benefits

     Merit Systems Protection Board holds that U.S. Navy police officers at the Norfolk Naval Shipyard were not entitled to law enforcement officer retirements. Street v. Dept. of the Navy, #DC-0842-00-0210-I-1, 2002 MSPB Lexis 41 (MSPB 2002).

     Federal appeals court upholds a one-year limitation of the Navy's law enforcement retirement credit, 5 C.F.R. §831.906(e-f). Stearn v. Dept. of the Navy, #01-3013, 280 F.3d 1376 (Fed. Cir. 2002).

Sexual Harassment - In General

     Appeals court affirms the dismissal of a suit against a police lieutenant who had singled out a woman officer for scrutiny during a uniform inspection. Hilt-Dyson v. Chicago, #01-2095, 2002 U.S. App. Lexis 2947 (7th Cir.).

Sexual Harassment - Same Gender

     Ninth Circuit rules that a male employee who was taunted for effeminate behavior had suffered sexual harassment for purposes of Title VII. Nichols v. Azteca, #99-35579, 256 F.3d 864 (9th Cir. 2001).

Telephone & Pager Monitoring / Audio & Video Taping

     Campus police, who suspected that a cashier was stealing money, lawfully installed a hidden video camera aimed at an employee's desk. Cowles v. State, #S-8831 (Opin. No. 5418), 23 P.3d 1168 (Alas. 2001); cert. den., 122 S.Ct. 1072 (2002).

Whistleblower Requirements and Protection

     NYPD pays $1.5 million to settle lawsuits brought by two high ranking officers who allegedly were sanctioned for refusing to change the findings in a sexual harassment investigation in the Staten Island command. Donovan v. Safir (S.D.N.Y.); Marsh v. Safer 99 Civ. 8605 (S.D.N.Y.).

     New Jersey jury awards a police officer over $3 million for harassment, after he reported that fellow officers were involved in selling blue jeans overseas. Award included $2 million for past pain and suffering, $545,000 for future lost wages and punitive damages. Pisano v. Township of Parsippany, No. MRS-L-002351-97 (Morris Co., N.J. Super. Ct.).

Access to Courts/Legal Info

     Civil rights lawsuit filed by prisoner acting as his own lawyer should be regarded as received, for purposes of the statute of limitations, when it was delivered by him to prison officials rather than when it was finally received by the court; the statute of limitations might also be tolled, appeals court finds, while prisoner waited to received court documents that he needed to prepare his complaint, so that he would be in the same position as a nonincarcerated litigant or one with a lawyer. Walker v. Jastremski, #97-2721, 274 F.3d 652 (2nd Cir. 2001).

Defenses: Qualified Immunity

     Conflicting expert witness opinions concerning the treatment a prison physician rendered to an inmate suffering from AIDS and hepatitis C created a material question of fact as to whether the doctor acted with deliberate indifference, so that appeals court did not have jurisdiction to consider doctor's appeal of trial court's denial of qualified immunity when the doctor only sought to challenge the finding that an issue of material fact existed. Moore v. Duffy, No. 00-2222, 255 F.3d 543 (8th Cir. 2001).

Disability Discrimination: Prisoners

     Federal appeals court rules that Congress did not properly abrogate states' Eleventh Amendment immunity from suit in enacting disability discrimination statutes concerning public services. Eleventh Amendment immunity barred mentally ill prisoners' class action lawsuit against Louisiana state correctional department for purported violations of the Americans With Disabilities Act (ADA) and Rehabilitation Act. Reickenbacker v. Foster, #00-31121, 274 F.3d 974 (5th Cir. 2001).

     Hearing-impaired detainee could pursue his disability discrimination complaint against warden of pretrial detainment facility and county court system for failing to provide an interpreter and other services to accommodate his disability. County court system could not assert Eleventh Amendment immunity during its ongoing merger with the state system. Chisolm v. McManimon, #00-1865, 275 F.3d 315 (3d Cir. 2001).

     Prison superintendent and deputy superintendent did not act with deliberate indifference to disabled (wheelchair confined) inmate's serious medical needs when the deputy approved recommendations for his transfer to another facility where his medical concerns could be better addressed and superintendent promptly responded to inmate's requests by asking medical personnel to make an assessment. Navedo v. Maloney, 172 F. Supp. 2d 276 (D. Mass. 2001).

Employment Issues

     Correctional department internal affairs investigator was entitled to First Amendment protection for his report concerning a correctional officer's alleged wrongdoing and use of excessive force during a prison riot, Factual issues existed as to whether he was subsequently constructively discharged in retaliation for his report and his refusal to alter it, or whether he merely resigned because he was unhappy with his job. Bailor v. Taylor, 170 F.Supp. 2d 466 (D. Del. 2001).

     D.C. Department of Corrections employees facing closure of a D.C. reformatory were not entitled to federal competitive status for the purpose of retirement benefits and "entitlement" to federal employment simply because some federal prisoners were committed to D.C. prisons. The passage of the D.C. Comprehensive Merit Personnel Act, D.C. Code Secs. 1-201.01 established a city personnel system apart from that of the federal government. Lucas v. United States, Nos. 00-5149, 00-5191, 268 F.3d 1089 (D.C. Cir. 2001).

Escape

     A state statute, Tenn. Code Ann. Sec. 39-16-605, applied to the escape of a prisoner from a private facility in Tennessee when the prisoner was convicted of an offense in Montana and placed in the private prison under a contract between the Montana correctional authorities and the private prison company. The court ruled that such prisoners were not "unlawfully imprisoned." Tennessee v. Lankford, 51 S.W.2d 212 (Tenn. Crim. App. 2001).

     The U.S. Supreme Court recently denied review of the case, rejecting a petition for certiorari arguing that such incarceration of an out-of-state prisoner in a private for-profit facility without consent or waiver of extradition denied the inmate due process and made his Tennessee conviction for escape void. McKeon v. Tennessee, No. 01-922, cert. denied, 2002 U.S. Lexis 741.

False Imprisonment

     State Department of Corrections was required to honor court accepted plea agreements with prisoners and sentencing court's imposed sentences, and could not unilaterally modify those sentences based on its own determination, for instance, that such sentences violated a state statute concerning when prisoners were entitled to concurrent rather than consecutive sentences. Correctional officials usurped judicial power by doing so. Prisoner's due process rights, however, were not violated, as they had no right to sentences which violated state statutes, and those sentences "must be vacated." Hamilton v. Freeman, No. COA00-1470, 554 S.E.2d 856 (N.C. App. 2001).

     Mentally disabled former prisoner and his mother stated a claim against city and county for failure to adequately train their employees in case where improper identification of him as a fugitive sought in a warrant from another state allegedly led to his extradition and two-year imprisonment. Lee v. County of Los Angeles, #98-55807, 240 F.3d 754 (9th Cir. 2001).

Medical Care

     The failure of a physician's assistant to x-ray a prisoner's jaw, which would have revealed that it was broken, did not constitute deliberate indifference to a serious medical need, but merely a disagreement between the prisoner and medical personnel as to what forms of diagnostic treatment to utilize. Lindsay v. Dunleavy, 177 F. Supp. 2d 398 (E.D. Pa. 2001).

     Prison officials were granted permission to force feed an inmate who went on hunger strike for three weeks at the point where his hunger strike becomes threatening to his life. The prisoner stopped eating because he said he was upset about his daughter's death, and the court granted prison authorities the right to monitor his condition through blood tests and to feed him intravenously or through a feeding tube at the point that his life is in jeopardy. In Re Robert Weeks, Circuit Court, Livingston County, Ill., reported in The Chicago Tribune, p. 13 (Jan. 26, 2002).

     Seven-day delay between prison doctor's observation of a "positive skin change" on diabetic detainee's foot and subsequent treatment raised a genuine issue of whether there was deliberate indifference to prisoner's serious medical needs in case where subsequent infection resulted in two toe amputations and stump revision surgery. Spencer v. Sheahan, 138 F. Supp. 2d 837 (N.D. Ill. 2001).

     A cut to a prisoner's finger, even if the skin was "ripped" off, as the prisoner claimed, was not sufficiently serious to be the basis for a federal civil rights claim for denial of adequate medical care. Sonds v. St. Barnabas Correctional Health Services, 151 F. Supp. 2d 303 (S.D.N.Y. 2001).

Prison Litigation Reform Act: Exhaustion of Remedies

     A prisoner's federal civil rights claim does not accrue until  he has exhausted available administrative remedies. Prisoner must specifically plead such exhaustion in their complaint. Exhaustion requirement applies whether the claim is pursued in federal or state court. Martin v. Ohio Dept. of Rehabilitation and Correction, No. 00CA37, 749 N.E.2d 787 (Ohio App. 2001).

     Since the passage of the Prison Litigation Reform Act, courts may no longer examine available grievance procedures to determine whether they would serve the inmate's intended purpose. State of Florida has adopted a rule giving prisoners a right to file a grievance regarding reprisals against inmates who have filed complaints, and prisoner could not pursue a lawsuit without first pursuing such a grievance. Hollingsworth v. Brown, No. 1D00-3126, 788 So. 2d 1078 (Fla. App. 2001).

     A prisoner's assertion that pursuing available administrative remedies would be futile did not excuse his failure to pursue prison grievance procedures before filing his federal civil rights lawsuit, as required by the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(a). Freytes v. Laboy, 143 F. Supp. 2d 187 (D. Puerto Rico).

Prisoner Assault: By Officers

     Jury verdict in favor of officers upheld in prisoner's lawsuit claiming that they beat him while he was being moved during a transfer made necessary by a prison riot that occurred five days before; trial court did not abuse its discretion by excluding from evidence in the case the officers' suspension following the riots. Okal v. Verfuth, #99-3277, 275 F.3d 606 (7th Cir. 2001).

Prisoner Discipline

     Prisoner who was placed in punitive segregation in special housing unit as punishment for disciplinary offenses was entitled to procedural due process at disciplinary hearings when he had spent 1,300 days in special housing unit confinement, but the record showed that he received adequate due process and that the hearing officer was sufficiently fair and impartial, despite being the supervisor of the security staff who responded to the incident at issue. Espinal v. Goord, 180 F. Supp. 2d 532 (S.D.N.Y. 2002).

     Post-deprivation disciplinary hearing after prisoner was put into segregation based on his alleged involvement in bringing drugs into the prison was sufficient to satisfy due process requirements. Riggins v. Walter, No. 93-3124, 279 F.3d 422 (7th Cir. 2001).

Prisoner Restraint

     Pre-trial detainees were entitled to after-the-fact procedural due process protections when they were required to be put in additional restraints when being moved within or outside the jails. This includes the right to a hearing, written decision, and timely review of appeal from placement in special restraint status. Such restraint must be imposed for a legitimate security purpose rather than an impermissible purpose of punishment. Benjamin v. Fraser, #00-9093 & 00-9095, 264 F.3d 175 (2nd Cir. 2001).

Procedural: Discovery

     In a class action lawsuit by city jail inmates who were diagnosed with mental illness, plaintiffs had the right to obtain the discharge planning records of former inmates already released as part of the discovery. Brad H. v. City of New York, 729 N.Y.S.2d 348 (Sup. 2001).

Procedural: Summary Judgment

     Trial court should not have entered a summary judgment in favor of officers on prisoner's racial discrimination civil rights lawsuit simply because the prisoner, who was acting as his own lawyer, failed to file any papers in opposition to the motion for summary judgment. Trial court still should have examined the officers' submissions to determine if they met their burden of showing that there were no material issues of fact remaining for trial, because if they had not, summary judgment was inappropriate. Amaker v. Foley, #01-0018, 274 F.3d 677 (2nd Cir. 2001).

Religion

     Appeals court orders reconsideration of whether federal prisons violate the constitutional rights of Catholic prisoners through a rule denying them the use of wine in taking communion. Levitan v. Ashcroft, No. 00-5346, 281 F.3d 1313 (D.C. Cir. 2002).

     "Liberal Catholic Church" member stated possible claim for violation of the right to equal protection based on allegation that prison chaplain required him to recertify his religious request for a vegetarian diet more frequently than African-American prisoners with similar requests were required to. Caldwell v. Caesar, 150 F. Supp. 2d 50 (D.C. 2001).

Restitution

     California Supreme Court strikes down state's "Son of Sam" law as violating the First Amendment. New York jury, under revised "Son of Sam" law, awards $100 million against convicted killer of police officer, stopping payment of $237,500 civil rights judgment award to prisoner in prison discipline case; those funds may go to slain officer's family. Keenan v. Superior Court of Los Angeles County, No. S080284, 27 Cal. 4th 413, 40 P.3d 718 (2002); Byrne v. McClary, No. 12614/01 (Nassau Co., N.Y. Sup. Ct.), reported in The National Law Journal, p. A4, March 4, 2002.

Sexual Harassment

     Male prisoner's claim that female correctional employee asked him to have sex with her and to masturbate in front of her and other female staff members, even if true, did not suffice to state a claim for sexual harassment in violation of the Eighth Amendment. Employee's action of calling him a "stoolie" in front of other inmates after he filed a grievance over the alleged harassment was also not a basis for recovery. Prisoner did state a claim for retaliatory transfer following his grievance filing. Morales v. Mackalm, No. 00-0113, 278 F.3d 126 (2nd Cir. 2002).

Strip Search: Prisoners

     Sexual offenders' claim that they were subjected to visual body cavity searches as retaliation for laughing at officers and harassed for their status as sex offenders did not warrant injunctive relief. Prisoners' claim for damages was barred by a provision of the Prison Litigation Reform Act prohibiting claims for mental or emotional injury without a prior showing of physical injury. Seaver v. Manduco, 178 F. Supp. 2d 30 (D. Mass. 2002).