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

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

Summaries from the November 2002

Assault and Battery: Physical

     Officers did not use excessive force in attempting to restrain a possibly intoxicated man whose mental condition was in question and who was swinging his arms wildly and struck at least one officer. No liability imposed for arrestee's subsequent death, allegedly from positional asphyxiation, when it took the efforts of three officers and the use of pepper spray to subdue him. Fernandez v. City of Cooper City, 207 F. Supp. 2d 1371 (S.D. Fla. 2002).

     Police officers did not use excessive force in the process of putting a detainee into their patrol car, even if they did act "roughly" in pushing and pulling him into the car. They acted in circumstances where the detainee refused to take a preliminary breath test or to have his photograph and fingerprints taken, and he yelled to protest his arrest and threatened to sue the officers, as well as actively resisting the officers' efforts to put him in the vehicle. Lockett v. Donnellon, #00-2169, 38 Fed. Appx. 289 (6th Cir. 2002).

Defenses: Notice of Claim

     State law claim for false arrest against county and police officers was properly dismissed for failure to comply with statutory notice of claim requirements contained in N.Y. McKinney's County Law, Secs. 50-e, subd. 1(a), 52. Evans v. Nassau County, 184 F. Supp. 2d 238 (E.D.N.Y. 2002).

Defenses: Official Immunity

     Officer did not have official immunity under Louisiana state law in a negligence lawsuit brought by an arrestee who claimed that he was injured by the too-tight application of handcuffs. The decision to apply the handcuffs did not involve policy matters, but instead was "ministerial." Saine v. City of Scott, No. 2002-265, 819 So. 2d 496 (La. App. 2002).

Defenses: Qualified (Good-Faith) Immunity

     Police officer's alleged failure, before signing affidavit in support of criminal complaint for cruelty to animals, to investigate the truthfulness and reliability of a videotape showing the conditions under which horses were kept and the accompanying statements made by a fellow officer was not "reckless disregard for the truth." Officer was entitled to qualified immunity in federal civil rights lawsuit over subsequent arrest under warrant. Pennington v. Penner, 207 F. Supp. 2d 1225 (D. Kan. 2002).

     Leader of narcotics task force was entitled to qualified immunity from civil rights lawsuit based on plaintiff's arrest and incarceration since plaintiff failed to identify any clearly established constitutional or statutory right that the defendant had violated. Fannon v. Shewell, #00-2081, 37 Fed. Appx. 744 (6th Cir. 2002).

Defenses: Statute of Limitations

     Plaintiff who settled his excessive force claim against four officers for a small sum 35 years ago, allegedly in exchange for the dropping of criminal charges against him, could not pursue a new lawsuit now on the basis of affidavits from one of the officers recanting his version of the incident and stating that all four officers lied in their testimony. Neither federal nor New York state law provided a basis for extending the statute of limitations. Pearl v. City of Long Beach, #01-7914, 296 F.3d 76 (2d Cir. 2002).

Dogs

     Mere conclusory allegations that the city had a policy of not adequately training officers in the use of dogs could not be the basis for federal civil rights liability for the city, in the absence of any evidence. Officer had objective reasonable basis for belief in probable cause for arrest for drug violation when dog located suspect during search for drug dealer, suspect possessed rolling papers, and friend with arrestee admitted he had been smoking marijuana. Collins v. City of Manchester, 208 F. Supp. 2d 123 (D.N.H. 2002).

Domestic Violence

     County and police department were not liable for alleged failure to protect a woman against continued domestic violence by a man who had previously been arrested on three separate occasions for abusing her. Plaintiff did not show that the defendants placed her in any greater danger or that there was any policy of inadequate training on domestic violence. O'Brien v. Maui County, #00-16571, 37 Fed. Appx. 269 (9th Cir. 2002).

County and sheriff's department was not liable for ex-husband's shooting of his ex-wife on the basis of the alleged failure to serve him with a domestic violence order of protection. State statute creating a duty to serve such orders in a timely manner did not create a federal claim for violation of civil rights for alleged failure to do so. Jones v. Union County, Tennessee, #01-5149, 296 F.3d 417 (6th Cir. 2002).

False Arrest/Imprisonment: No Warrant

     Arresting officer was not entitled to qualified immunity because it was clearly established under Maryland state law that the arrestee's small penknife was legal and could not be the basis for an arrest for carrying a concealed weapon. Sorrell v. McGuigan, #01-1565, 38 Fed. Appx. 970 (4th Cir. 2002).

     Woman's apparent voluntary presence in a stolen automobile provided officer with sufficient probable cause for an arrest. Sanders v. City of Philadelphia, 209 F. Supp. 2d 439 (E.D. Pa. 2002).

     Hispanic motorist who was a police officer did not establish liability for false arrest or violation of equal protection based on other officers stopping his vehicle when he was "driving erratically and the passenger car door was opened while the car was moving." The plaintiff showed no evidence that the officers were motivated by race or any other impermissible bias. Gonzalez v. City of New York, No. 00-9520, 38 Fed. Appx. 62 (2nd Cir. 2002).

False Arrest/Imprisonment: Warrant

     Officer who filed affidavit for arrest warrant had information which provided a reasonable belief that the arrestee had caused the death of his wife, entitling him to qualified immunity from a lawsuit for violation of the arrestee's Fourth Amendment rights. Gomez v. Atkins, #01-2112, 296 F.3d 253 (4th Cir. 2002).

Firearms Related: Intentional Use

     Officer did not use excessive force in shooting arrestee four times in the chest when he was armed with a tire iron and posed an immediate threat to another officer who was trapped under the vehicle which the officer was attempting to drive off in. Harris v. Lair, #01-1968, 37 Fed. Appx. 818 (7th Cir. 2002).

     Deputy did not use excessive force in shooting a suspect three times while arresting him when the suspect was accused of stealing several firearms and pulled out a weapon and fired, or appeared to do so. Turpin v. Mueller, #00-4585, 37 Fed. Appx. 151 (6th Cir. 2002).

First Amendment

     Officer who allegedly elbowed a protester at a lawyers' meeting did not violate her First Amendment rights when his alleged motive was personal revenge for being embarrassed at a prior event, rather than deterrence of political expression. Force officer used to remove protester from public event was reasonable. Kash v. Honey, #01-7794, 38 Fed. Appx. 73 (2nd Cir. 2002).

Governmental Liability: Policy/Custom

     Arrestee could not sue sheriff for liability for alleged assault by officer on the basis of failure to train and supervise, in the absence of any evidence of more than the single incident at issue. Zentner v. Dunbar, 205 F. Supp. 2d 924 (N.D. Ill. 2002).

Injunctive Relief

     Arrestee's roommate, who claimed that officer injured him during the course of the arrest, did not have standing to seek an injunction to prevent future similar incidents when it was "extremely unlikely" that similar circumstances would again occur, especially since the roommate had subsequently moved to a nursing home. Christopher v. Dept. of Highway Safety and Motor Vehicles, 209 F. Supp. 2d 1290 (S.D. Fla. 2001).

Malicious Prosecution

     Federal appeals court overturns $20,000 malicious prosecution award against sheriff's department arising from suspect's arrest for possession of marijuana with intent to distribute. The circumstances surrounding the plaintiff's acceptance of delivery of a package containing the drugs gave the officers probable cause to believe he was guilty of the charged offense. Gordy v. Burns, #01-30234, 294 F.3d 722 (5th Cir. 2002).

     State police officer was not liable for malicious prosecution or false arrest of man arrested for alleged criminal sexual conduct with a child on the basis of taking down "false information" from a deputy prison warden who called him. Arrestee did not show that officer was personally involved in the alleged violation of the arrestee's rights. Additionally, under Michigan law, the issue of probable cause was decided in court when the arrestee was bound over for trial at a preliminary hearing and he could not relitigate that issue. Morris v. Boyd, #01-1433, 39 Fed. Appx. 281 (6th Cir. 2002).

     Police officer lacked probable cause for pursuing prosecution of motorist a second time for allegedly having inadequate brakes on his vehicle since officer did not have either the training or authority to conduct a safety check of the motorist's vehicle. New trial granted on malicious prosecution claim. Hicks v. City of Buffalo, 745 N.Y.S.2d 349 (A.D. 2002).

Police Plaintiff: Firefighter's Rule

     Claim against highway patrol officers for injuries that city police officers suffered in collision with their vehicle after they joined city officers' pursuit of a car was barred by the firefighters' rule under California law. Highway patrol officers were "jointly engaged" in the pursuit even though they were not summoned to do so and were not in radio contact with the city police department or its officers. McElroy v. State of California, No. G028063, 122 Cal. Rptr. 2d 612 (Cal. App. 4th Dist. 2002).

Police Plaintiff: Premises Liability

     Police officer could not recover damages, under New York state law, from building owner for his injuries after he fell from an allegedly wobbly ladder borrowed from nearby gas station while checking the building's roof for criminal activity. Officer did not show a connection between his injury and the building owner's alleged negligent maintenance of his yard. Sconzo v. Emo Trans, Inc., 744 N.Y.S.2d 471 (A.D. 2002).

Police Plaintiff: Vehicle Related

     Police officer could not recover for injuries against driver of vehicle which dragged him as he was trying to make an arrest when he failed to establish, as required by New York state's "No-Fault" Law, McKinney's Insurance Law Sec. 5102(d), that he suffered "serious injuries." Murphy v. Arrington, 744 N.Y.S.2d 255 (A.D. 2002).

     Police officer could not bring common law negligence lawsuit against employing city based on injuries he suffered during a motorcycle training course, since he was performing his official duties at the time and received salary and medical benefits under the General Municipal Law Sec. 207-c. Brady v. City of New Rochelle, 744 N.Y.S. 2d 494 (A.D. 2002).

Property

     Owners of cars and trucks allegedly destroyed or damaged after being towed to a city impound lot failed to establish that a city policy violated their right to due process by erroneously denying the presence of their vehicles there, or that the city was "deliberately indifferent" to the problem of city employees or agents allegedly stealing from or damaging vehicles placed in the lot. Gable v. City of Chicago, #01-1941, 296 F.3d 531 (7th Cir. 2002).

     Denial of arrestee's motion, at the conclusion of criminal prosecution, for return of seized pistol barred federal civil rights lawsuit for deprivation of property on the basis of police department property clerk's refusal to return the weapon. Lewandowski v. Property Clerk, 209 F. Supp. 2d 19 (D.D.C. 2002).

Public Protection: Crime Victims

Civil rights claim could be pursued on behalf of child allegedly abused in foster care by private person based on county official's alleged inadequate investigation into claims of mistreatment. Serena H. v. Kovarie, 209 F. Supp. 2d 453 (E.D. Pa. 2002).

Search and Seizure: Home/Business

     Police officers' alleged actions of obtaining a search warrant for a residence "attached" to a restaurant, but then also searching the restaurant under the same warrant violated clearly established law so that they were not entitled to qualified immunity from liability. Ruby v. Horner, #01-4003, 39 Fed. Appx. 284 (6th Cir. 2002).

Age Discrimination - General

     The EEOC plans to allow ADEA complainants to file a lawsuit, 60 days after filing of a charge with the Commission, and without waiting for a Notice of Dismissal or Termination to be issued. Procedures - Age Discrimination in Employment Act, 29 CFR Part 1626, 67 (155) Federal Register 52431-52433 (Aug. 12, 2002).

Age Discrimination - Promotion/Assignment

     A Texas county probation dept. has settled a failure-to-promote age bias claim for $5,000. The plaintiff was 40 years old when she was passed over. EEOC v. Bexar County Juvenile Probation Dept., #SA-01CA0474, 40 (1975) G.E.R.R. (BNA) 895 (W.D. Tex. 2002).

Applicant Rejections

     Pennsylvania state court dismisses a suit by an applicant, whose acceptance to the police academy was rescinded before he entered because of immature conduct during an alleged altercation with his wife. He lacked a vested property interest in the appointment and was not entitled to hearing before being disqualified. Snisky v. Penna State Police, #1653 C.D. 2001, 799 A.2d 961, 2002 Pa. Commw. Lexis 439 (Pa. Commw. 2002).

Arbitration Procedures

     Federal court in Philadelphia holds that the arbitrator should decide whether a group of workers may pursue claims of race discrimination in a class action, even if the bargaining agreement is silent on the issue of class remedies. Brennan v. ACE INA Holdings, #00-2730, 2002 U.S. Dist. Lexis 15039 (E.D. Pa. 2002).

     Alaska Supreme Court holds that the state's Labor Relations Agency had the power to decide questions of arbitrability. Fairbanks Fire Fighters Assn. L-1324 v. City of Fairbanks, #S-9715, 48 P.3d 1165, 2002 Alas. Lexis 77 (2002).

     Appeals court affirms an arbitration award that reinstated a public employee who verbally threatened to kill his supervisor. City of Harvey v. AFSCME, C-31, L-2404, #1-01-1354, 2002 Ill. App. Lexis 719 (Ill. App. 1st Dist. 2002).

Bill of Rights Laws

     Under the state's Public Safety Officers Procedural Bill of Rights law, a California appeals court affirms a writ of mandate compelling a police dept. to provide, to officers that undergo investigatory interrogation, copies of tape-recorded witness interviews and rough notes taken by investigators. San Diego P.O.A. v. San Diego (Bejarno), #D037812, 98 Cal.App.4th 779, 120 Cal.Rptr.2d 609, 2002 Cal. App. Lexis 4145 (Cal. App. 4th Dist. 2002).

     A police agency internal affairs index card listing all complaints made against a named officer, is a file "used for personnel purposes" under the state's Public Safety Officers Procedural Bill of Rights Act, for purposes of the officer's right to read and respond. Sacramento P.O.A. v. Venegas, #C030428, 124 Cal.Rptr.2d 666, 2002 Cal. App. Lexis 4584 (Cal. App. 3d Dist. 2002).

Criminal Liability

     Federal appeals court allows an officer's testimony in a prior civil lawsuit to be used against her in a criminal prosecution. Her failure to claim the Fifth Amendment privilege at the civil trial was critical. U.S. v. Vangates, #01-12967, 287 F.3d 1315, 2002 U.S. App. Lexis 6433 (11th Cir. 2002).

Disability Rights and Benefits - Offset and Subrogation

     California appellate court overturns a trial judge's order that a public employee disability fund deduct, from an ex-employee's monthly benefits, court-ordered restitution payable to a person that was criminally victimized by the former county worker. Board of Retir. of L.A. Co. v. Super. Ct. (People), #B158075, 124 Cal.Rptr.2d 850, 2002 Cal. App. Lexis 4606 (Cal. App. 2d Dist. 2002).

Disciplinary Evidence - Admissibility

     Wisconsin Supreme Court affirms a civil service decision not to allow introduction of after-acquired proof of additional misconduct. The sergeant was not given prior notice of the charge. Board of Regents, Univ. of Wisconsin v. Wisconsin Personnel Cmsn. (Brenon), #01-1899, 2002 WI 79, 646 N.W.2d 759, 2002 Wisc. Lexis 475 (2002).

Disciplinary Offenses - Sufficiency of Proof

     Arbitrator accepts the excuse that a city employee unknowingly ate marijuana brownies, because the baker corroborated his story. City of Oklahoma City and AFSCME L-2406, FMCS Case #01/11126-8, 116 LA (BNA) 1394 (Eisenmenger, 2002).

Disciplinary Punishment

     Appeals court affirms an arbitration award that reinstated a public employee who verbally threatened to kill his supervisor. City of Harvey v. AFSCME, C-31, L-2404, #1-01-1354, 2002 Ill. App. Lexis 719 (Ill. App. 1st Dist. 2002).

Disciplinary Searches

     Federal appeals court finds an FBI search of a city agency's offices was illegal. City attorney lacked the authority to consent to a search, which was not for employment-related purposes. Jones v. U.S., #01-10352, 286 F.3d 1146, 2002 U.S. App. Lexis 7132 (9th Cir. 2002).

FLSA - Administrative & Executive Exemptions

     Appeals court finds that various city employees were exempt from the FLSA; the fact that the city docked their pay if they failed to work a full eight-hour day did not alter their exempt status. Demos v. City of Indianapolis, #01-2952, 2002 U.S. App. Lexis 17934 (7th Cir. 2002).

Family, Medical & Personal Leave

     Arbitrator finds that management did not violate the bargaining agreement when it limited firefighters' annual, sick, or injury leave so that only one per shift would be allowed; the CBA gave the city an unqualified right to determine staffing levels. City of Del City and IAFF L-2171, FMCS Case #01/14531, 117 LA (BNA) 393 (McReynolds, 2002).

     State trooper wins $40,000 in damages and $626,000 in attorney's fees and costs for rejection of his leave request to care for a newborn infant. Knussman v. Maryland, #B-95-1255, 40 (1975) G.E.R.R. (BNA) 894 (D.Md. 2002) -- on remand from 272 F.3d 625, 2001 U.S. App. Lexis 24037 (4th Cir. 2001).

First Amendment Related

     Federal Court in New York refuses to dismiss a wrongful termination suit. Plaintiff was promptly and pretextually fired after testifying against the county in another lawsuit. Catletti v. County of Orange, #01 Civ 8530, 207 F.Supp.2d 225, 2002 U.S. Dist. Lexis 11326 (S.D.N.Y. 2002).

     Opening a city council meeting "in the name of Jesus Christ" violated the Religion clause of the First Amendment. Rubin v. City of Burbank, #B148288, 124 Cal.Rptr.2d 867, 2002 Cal. App. Lexis 4619 (Cal.App. 2d Dist. 2002).

Free Speech

     Appeals court rejects a First Amendment and retaliation claim of a demoted black woman commander who had publicly criticized the sheriff's dept. She had been demoted because a backlog of 6,000 warrants had not been entered into the computer and other deficiencies. Pool v. VanRheen, #00-35997, 297 F.3d 899, 2002 U.S. App. Lexis 14671, 89 FEP Cases (BNA) 793 (9th Cir. 2002).

Handicap Laws / Abilities Discrimination - In General

     Federal appeals court dismisses a suit by a firefighter who was physically unable to perform his duties for 11 months. "Only a permanent or long-term condition will suffice to qualify a person for the ADA's protection." Rinkenberger v. City of Clearwater, MN, #01-3835, 2002 U.S. App. Lexis 15560 (Unpub., 8th Cir. 2002).

Handicap Laws / Abilities Discrimination - Accommodation - General

     Third Circuit holds that a disabled EMT, who asked for a transfer to a dispatching position, was not required to watch for job openings or to file formal applications for vacant posts. Shapiro v. Twp. of Lakewood, 292 F.3d 356, 2002 U.S. App. Lexis 10302 (3rd Cir. 2002).

     A state agency's removal of an ADA case, from state to federal court, constituted a waiver of its sovereign immunity for that case. Estes v. Wyoming, #00-8069, 2002 U.S. App. Lexis 18324 (10th Cir. 2002).

Handicap Laws / Abilities Discrimination - Psychiatric

     Appeals court rejects the ADA claims of a worker who was fired for insubordination and threats of violence, and not because of her failure to submit to a medical examination. When an employer's inquiries about the mental health of an employee reflect a concern for the safety of coworkers, management may require the employee to undergo an examination. Williams v. Motorola, 00-13820, 2002 U.S. App. Lexis 18276 (11th Cir. 2002).

Handicap Laws / Abilities Discrimination - Specific Disabilities

     Federal court dismisses an ADA suit by an asthmatic corrections officer who was fired for missing work more than a third of her scheduled workdays during the nine months preceding her termination. Thorner-Green v. NYC Dept. of Corrections, #00-CV-489, 207 F.Supp.2d 11, 2002 U.S. Dist. Lexis 12177 (E.D.N.Y. 2002).

Homosexual & Transgendered Employee Rights

     Federal court declines to dismiss a suit by a lesbian schoolteacher for a hostile work environment caused by students. Lovell v. Comsewogue Sch. Dist., #01CV7750, 214 F.Supp.2d 319, 89 FEP Cases (BNA) 1189, 2002 U.S. Dist. Lexis 15002 (E.D.N.Y. 2002).

     California appellate court affirms a $500,000 jury verdict to a fired gay police recruit. Hoey-Custock v. City of Oakland, #A094881, 2002 Cal. App. Unpub. Lexis 7692, 40 (1975) G.E.R.R. (BNA) 894 (Unpub. Cal. App. 2002).

Privacy Rights

     Supreme Court holds that a State's removal of a lawsuit to federal court waives Eleventh Amendment immunity. Lapides v. Bd. of Reg. of the Univ. of Ga., 122 S.Ct. 1640, 2002 U.S. Lexis 3220 (2002).

Past Practices, Precedents & Zipper Clauses

     Arbitrator upholds a grievance that a federal agency previously paid for two or three union officials to attend a national benefits conference and cut the number to only one in 2002. There was a nexus between upcoming negotiations and the conference. General Services Administration and AFGE C-236, 117 LA (BNA) 436 (Hockenberry, 2002).

Political Activity/Patronage Employment

     Tenth Circuit refuses to dismiss the suit of a reserve deputy who was decommissioned after he expressed support for a person who intended to run against the sheriff in the next election. Bass v. Richards, #01-1202, 2002 U.S. App. Lexis 16440 (10th Cir. 2002).

Race or Sex Discrimination - Disparate Discipline

     A discriminatory retaliation complaint filed by a correctional officer is rejected -- where the plaintiff and other officers disciplined for attendance violations were not similarly situated. Disciplinary records of other officers was properly excluded. Snipes v. IL Dept. of Corrections, #01-3148, 291 F.3d 460, 2002 U.S. App. Lexis 9728, 88 FEP Cases (BNA) 1681 (7th Cir. 2002).

Racial Harassment

Federal court declines to dismiss a suit by a white manager at a juvenile facility who claims that he was subjected to racial harassment and false accusations of being a Klansman. Paxson v. Cook County, #02-C-2028, 2002 U.S. Dist. Lexis 15647 (N.D.Ill. 2002).

Sexual Harassment - In General

     Eighth Circuit affirms a verdict of $142,735 against the State of Missouri for two non-employee contractual nurses assigned the work at a Dept. of Corrections facility. Hunt v. State of Missouri, #00-3490, 297 F.3d 735, 89 FEP Cases (BNA) 867, 2002 U.S. App. Lexis 15773.

     Tenth Circuit rules that physical losses must accompany an award for mental anguish. Wilson v. Muckala, #00-5131, 2002 U.S. App. Lexis 17283 (10th Cir. 2002).

     Federal appeals court reverses a jury verdict for the plaintiff, that found sexual harassment and constructive discharge; the alleged harassment was neither severe nor pervasive. Duncan v. G.M. Corp., #00-3544, 300 F.3d 928, 89 FEP Cases (BNA) 1105, 2002 U.S. App. Lexis 17369 (8th Cir. 2002).

     A warning to an employee not to discuss her complaint of sexual harassment with anyone did not excuse her delay in bringing a legal action. An employer "has a right to take steps to prevent an employee from spreading what may be groundless rumors concerning improper conduct by another employee." Beckel v. Wal-Mart, #02-1208, 2002 U.S. App. Lexis 17876 (7th Cir. 2002).

Sexual Harassment - Verdicts, Settlements & Indemnity

     Michigan appeals court affirms a $21 million verdict for a woman who endured seven years of harassment. Gilbert v. Daimler-Chrysler, #227392, 2002 Mich. App. Lexis 1168 (Unpub. Mich.App. 2002).

     California appeals court affirms a sexual harassment award against a city housing authority in the amounts of $500,000 for emotional distress damages, $173,866 in interest, $611,898 in attorneys' fees, and $11,986 in costs and $30,000 in discovery sanctions. Walker v. San Francisco Housing Auth., #A0954767, 100 Cal.App.4th 685, 122 Cal.Rptr.2d 758, 2002 Cal. App. Lexis 4442 (2002).

Transfers - Disciplinary or Punitive

     Tenth Circuit affirms a $75,000 verdict for a SWAT officer who was involuntarily transferred after he testified that the department's firearms training programs were deficient. Schneider v. C&C of Denver, #01-1199, 2002 WL 1938583, 2002 U.S. App. Lexis 17605 (10th Cir.2002).

     Corrections lieutenant who was laterally transfer failed to prove she was the victim of retaliatory action after she opposed the termination of a native-American officer. Petersen v. Utah Dept. of Corrections, # 01-4090, 301 F.3d 1182, 2002 U.S. App. Lexis 17415, 89 FEP Cases (BNA) 1182 (10th Cir. 2002).

Union and Associational Activity

     Fifth Circuit affirms a back pay judgment for an officer who was fired because of his union involvement, but holds that $224,000 in damages for emotional distress was too high. Hitt v. Connell, #01-50117, 301 F.3d 240, 2002 U.S. App. Lexis 15334, 170 LRRM (BNA) 2789 (5th Cir. 2002).

     A divided NLRB holds that an inquiry to a worker regarding the "union sympathies of employees" is not per se coercive and is not "unlawful interrogation" in violation of §8(a)(1) of the National Labor Relations Act. John W. Hancock, Jr., Inc. and United Steelworkers of Amer., #11-CA-18716, 2002 NLRB Lexis 381, 337 NLRB No. 183 (2002).

     Sixth Circuit holds than an employer did not unlawfully discriminate against a union, under the National Labor Relations Act, by permitting the Girl Scouts and Salvation Army to solicit on its property, while denying union representatives the same privilege. Albertson's Inc. v. NLRB, #00-2359, 301 F.3d 441, 2002 U.S. App. Lexis 16668, 2002 FED App. 0281P, 170 LRRM (BNA) 2769 (6th Cir. 2002).

     Appeals court holds that employees cannot be directly solicited to appear in an anti-union video. Allegheny Ludlum v. NLRB, #01-2338, 301 F.3d 167, 2002 U.S. App. Lexis 17664, 170 LRRM (BNA) 2923 (3rd Cir. 2002).

Vehicle Related

     Arbitrator refuses to reinstate a police officer. During his six years on the job, the officer was at fault in seven on-duty vehicle collisions. City of Houston and "J" Individual Grievant, AAA Case #70-390-00017-02, 117 LA (BNA) 408 (Moore, 2002).

Whistleblower Requirements and Protection

     Fifth Circuit holds that the adoption of a Whistleblower law which allows damages against a state employer does not waive Eleventh Amendment immunity in federal court for other claims. Martinez v. Texas Dept. of Criminal Justice, #00-51135, 300 F.3d 56, 2002 U.S. App. Lexis 14915 (5th Cir. 2002).

Wrongful Discharge - In General

     Texas appeals court dismisses a suit by an ex-deputy sheriff who alleged that he was fired because he refused to commit perjury; the Texas legislature did not waive the sovereign immunity of counties for wrongful termination suits. Salazar v. Lopez, #04-02-00115-CV, --- S.W.3d ---, 2002 Tex. App. Lexis 5697 (Tex. App. 2002).

Access to Courts/Legal Info

     Prison officials' alleged actions of opening prisoner's legal mail outside his presence, failing to forward legal filing fees, and requiring prisoner to surrender his word processor did not deny him access to the courts since he did not show that it resulted in prejudice to a non-frivolous legal claim. Baker v. Wells, No. 01-2532, 39 Fed. Appx. 150 (6th Cir. 2002).

Disability Discrimination: Employees

     Firing of state correctional officer, allegedly for refusing to take a mandatory tuberculosis test, was not disability discrimination in violation of the federal Rehabilitation Act. Appeals court rejects the argument that the employer regarded him as disabled on the basis of his alleged sensitivity to the test. Patterson v. Illinois Department of Corrections, #01-3456, 37 Fed. Appx. 801 (7th Cir. 2002).

Extradition

     Prisoner's claim against officers that they carried out an extradition order which they knew was invalid was not so frivolous as to justify summary dismissal of his federal civil rights lawsuit. Judge and prosecutor, however, were entitled to absolute immunity for their actions resulting in issuance of order to extradite prisoner to another state allegedly based on a criminal charge that had already been dismissed. Burrows v. Cherokee County Sheriff's Office, #01-3281, 38 Fed. Appx. 504 (10th Cir. 2002).

First Amendment

     Prisoner stated a claim for unlawful retaliation in violation of his First Amendment rights by asserting that he was told that he was removed from the prison laundry because he wrote to his congressional representative. He also stated a possible equal protection claim by asserting that he had received more severe discipline for a sexual incident because of his sexual orientation. Federal appeals court orders further proceedings as to whether plaintiff prisoner exhausted available administrative remedies on those claims. Feaster v. U.S. Bureau of Prisons, No. 00-0118, 37 Fed. Appx. 15 (2nd Cir. 2002).

Governmental Liability: Policy/Custom

     California sheriff acted on behalf of the county in establishing a policy segregating gang members in a special unit in the county jail, rather than on behalf of the state. The county, therefore, could be liable for his actions in continuing to hold a former gang member in the unit, which allegedly resulted in the prisoner being beaten to death by five of his cellmates. Eleventh Amendment immunity did not apply. Cortez v. County of Los Angeles, #00-56781, 294 F.3d 1186 (9th Cir. 2002).

Homosexual and Bi-Sexual Prisoners

     Segregation of male homosexual inmates was justified by legitimate penological interests in prison safety and security. Preventing homosexual and heterosexual inmates from sharing cells was a rational means of preventing violence between groups and preventing homosexual inmates from sharing cells was a rational means of preventing sexual activity and spread of sexually transmitted diseases. Appeals court also upholds disparate treatment between male homosexual and female homosexual prisoners. to rational basis. Veney v. Wyche, #01-6603, 293 F.3d 726 (4th Cir. 2002).

Inmate Funds

     Federal appeals court rules that seizure of funds in prisoner's account derived from his veteran's disability benefit check to pay a court-ordered fine violated his rights under a federal statute. Court also rules that doing so without a pre-deprivation hearing could violate due process and that the prisoner's rights were enforceable under a federal civil rights statute. Higgins v. Beyer, #99-5556, 293 F.3d 683 (3rd Cir. 2002).

Medical Care

     Correctional facility's policy requiring pregnant prisoner to obtain a court order for and pay all costs of a non-therapeutic abortion, which allegedly prevented a prisoner from obtaining a timely abortion while incarcerated did not violate her Fourteenth Amendment rights. Federal court rules that the prisoner's demand for a non-therapeutic abortion for financial and emotional reasons was not a "serious medical need" for purposes of an Eighth Amendment claim. Victoria v. Larpenter, 205 F. Supp. 2d 580 (E.D. La. 2002).

     North Dakota inmate's claim that he was denied treatment altogether for his hepatitis C, and that the correctional facility's medical director prevented him from seeing doctors because of his prior lawsuits against her adequately alleged a violation of his Eighth Amendment rights. Burke v. North Dakota Corrections and Rehabilit., No. 02-1922, 294 F.3d 1043 (8th Cir. 2002).

     Prisoner's kidney stones and stress disorder constituted serious medical needs, but prison doctors were not deliberately indifferent to those needs, since they treated the kidney stone condition with pain relievers and a medication to reduce calcium levels, as well as catheterization and diet management, and a psychiatrist encouraged the prisoner to get counseling for his stress. Thomas v. Webb, #01-6257, 39 Fed. Appx. 255 (6th Cir. 2002).

     Prisoner's alleged "flat feet" (or "fallen arches") did not constitute a serious medical condition sufficient to support a claim for deliberate indifference in violation of the Eighth Amendment. Johnson v. Medford, 208 F. Supp. 2d 590 (W.D.N.C. 2002).

Parole

     State of Massachusetts was not liable for released parolee's shooting of police officer eight years after his release. Parole decision was "too remote as a matter of law" from the incident in question to serve as a basis for liability. Kent v. Commonwealth, 437 Mass. 312, 771 N.E.2d 770 (2002).

Prison Conditions: General

     Prisoner's claim that he was confined for four nights and five days in a stripped basement intake cell with no personal hygiene items, no cleaning supplies, and minimal clothing and bedding did not suffice to show a violation of his Eighth Amendment rights against cruel and unusual punishment. Estrada v. Kruse, No. 01-1381 38 Fed. Appx. 498 (10th Cir. 2002).

Prison Litigation Reform Act: Exhaustion of Remedies

     County jail inmate who was transferred to a state facility before he commenced his federal civil rights lawsuit claiming that correctional officers assaulted him had no available administrative remedies to exhaust before filing suit, since the county jail's administrative remedies were only available to facility residents. Ligon v. Doherty, 208 F. Supp. 2d 384 (E.D.N.Y. 2002).

     Prisoner's failure to file a timely appeal from a disciplinary board's decision denying his grievance was a failure to exhaust administrative remedies, requiring dismissal of his lawsuit under the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(a). African-American bi-sexual prisoner could not pursue claim that he was treated differently than white heterosexual prisoner involved in the same incident of alleged sexual conduct. Thomas v. Doyle, #01-1773, 39 Fed. Appx. 373 (7th Cir. 2002).

     Prisoner failed to completely exhaust available administration remedies as required by the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(a) before filing his federal civil rights lawsuit claiming that officers used excessive force against him and that a prison doctor subsequently denied him medical care for resulting injuries. Rodriguez v. Hahn, 209 F. Supp. 2d 344 (S.D.N.Y. 2002).

     HIV-positive prisoner who allegedly suffered from AIDS failed to exhaust his available administrative remedies under New York state law as required by the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(a) before filing his federal civil rights lawsuit claiming inadequate medical care. Dismissal of the lawsuit without prejudice was required when prisoner submitted an initial grievance, but took no additional steps when he received no response. Reyes v. Punzal, 206 F. Supp. 2d 431 (W.D.N.Y. 2002).

Prison Litigation Reform Act: Filing Fees

     The filing fee provision of the Prison Litigation Reform Act, 28 U.S.C. Sec. 1915, does not require several prisoners who joined together to file a single lawsuit as paupers to each pay the full filing fee. Burke v. Helman, 208 F.R.D. 246 (C.D. Ill. 2002).

Prisoner Assault: By Inmates

     Prisoner's claim that corrections officer returned a weapon (a laundry bag filled with rocks and cement) to his fellow-inmate assailant and thereby facilitated a second assault on him by a fellow inmate adequately stated a claim for deliberate indifference by the officer to the risk of such a second attack. Peate v. McCann, #00-2937, 294 F.3d 879 (7th Cir. 2002).

     Jury properly awarded $22,500 to ex-gang member slashed with razor by another prisoner. Evidence was sufficient for jury to conclude that prison employees acted with deliberate indifference to safety of the prisoner, who had previously complained about officers at the facility, and allegedly left the door to the assailant's cell open, facilitating the assault. Cantu v. Jones, #01-50905, 293 F.3d 839 (5th Cir. 2002).

     A prisoner's assertion that a prison official deliberately exposed him to the risk of assault by other inmates by telling another inmate that the prisoner had tried to "set him up" for disciplinary charges by planting a knife in his cell stated a claim for violation of the Eighth Amendment right to be free of cruel and unusual punishment. Johnson-Bey v. Ray, #01-3382, 38 Fed. Appx. 507 (10th Cir. 2002).

Prisoner Assault: By Staff

     Medical personnel did not use excessive force in taking blood and urine samples from a pretrial detainee for the purpose of evaluating his competency to stand trial. Personnel merely insisted that he cooperate. Lawsuit challenging actions was dismissed for failure to exhaust available administrative remedies, but prisoner's appeal focused on the merits of his claims rather than on this issue. Cuesta v. Wates, #01-2452, 39 Fed. Appx. 358 (7th Cir. 2002).

Religion

     Trial court's interim order requiring prison officials to make weekly deposits of $15 in Jewish prisoner's inmate account to allow him to buy kosher foods from the commissary at cost was not violative of the Eleventh Amendment since it addressed the ongoing alleged violation of denial of a religious diet, rather than representing an award of damages for past injuries. Love v. McCown, #02-1155, 38 Fed. Appx. 355 (8th Cir. 2002)

Search and Seizure: Body Cavity

     Manual search of prisoner's rectal cavity for the purposes of preventing drugs from entering an administrative segregation unit did not violate his Fourth Amendment or Eighth Amendment rights when carried out in prison infirmary's emergency room by medical personnel. Alleged violation of prison regulation requiring the exhaustion of other search methods first did not establish a constitutional violation. Wiley v. Serrano, #00-55997, 37 Fed. Appx. 252, 2002 U.S. App. Lexis 9736 (9th Cir. 2002).

Sexual Assault

     New York female prisoner adequately alleged that correctional officials knew of prior sexual misconduct of correctional officers with female inmates, including the one she said sexually assaulted her, but failed to take action to prevent it. Defendant officials were not entitled to qualified immunity. Morris v. Eversley, 205 F. Supp. 2d 234 (S.D.N.Y. 2002).

     Under Illinois state law, sheriff could not be held vicariously liable for the alleged sexual misconduct of a correctional officer with a female prisoner. Dorsey v. Givens, 209 F. Supp. 2d 849 (N.D. Ill. 2001). In a related decision, the court held that the officer's alleged sexual misconduct was not within the scope of his employment, so that he was not entitled to indemnification from his employer under state law. Dorsey v. Givens, 209 F. Supp. 2d 850 (N.D. Ill. 2001).

Sexual Offenders Programs

     Illinois Sexually Violent Persons Commitment Act did not violate a parolee's due process right. In re: Detention of William Allen, No. 2-00-1379, 772 N.E.2d 354 (Ill. App. 2nd Dist. 2002).

Smoking

     Prisoner failed to show that the level of his forced exposure to second hand smoke violated his right to be free from cruel and unusual punishment when the facts showed that he had been housed in a smoke-free facility, and that prison officials enforced a no-smoking policy with disciplinary sanctions imposed on prisoners who smoked. This showed that, whatever levels of second-hand smoke the prisoner was exposed to, prison officials were not "deliberately indifferent" to the risk of harm that second-hand smoke posed to him. White v. Caruso, #00-2257, 39 Fed. Appx. 75 (6th Cir. 2002).

Visitation

     Federal appeals court overturns dismissal of federal civil rights claim that prison policy prohibiting same-sex kissing and hugging during visits, except for family members, violated the right to equal protection of the homosexual partner of an inmate. Whitmire v. State of Arizona, #00-16896, 298 F.3d 1134 (9th Cir. 2002).

Workers' Compensation

     Workers' compensation total disability benefits under Connecticut law could not be discontinued while claimant was incarcerated. Laliberte v. United Security, Inc., No. 16631, 801 A.2d 783 (Conn. 2002).