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On-Line Edition http://www.aele.org/law June, 2006

AELE Monthly Law Summaries of articles online at www.aele.org/law from the: • AELE Law Enforcement Liability Reporter • Fire and Police Personnel Reporter • AELE Jail and Prisoner Law Bulletin

Sign up for e-mail notification that next month’s AELE County sheriff and other law enforcement officials were not publications are online: www.aele.org/e-signup.html liable for failing to protect woman from being murdered by her estranged husband based on their alleged failure to take Summaries from the June 2006 adequate measures in response to her report that he had AELE Law Enforcement Liability Reporter assaulted and raped her two weeks before. Kromer v. County of Onondaga, 809 N.Y.S.2d 723 (A.D. 4th Dept. 2006). The online edition has a featured article on all underlined cases plus the full opinion. Cases without underlining are noted in brief Emotional Distress only in the online edition, but will feature a link to the full opinion, Officers' actions in arresting a man for allegedly interfering if available on the Internet. with their interview of his companion about a report of a man driving a dirt bike and carrying a gun in the vicinity was not Assault and Battery: Physical "extreme and outrageous" as required for a claim for intentional Police officers did not use excessive force in restraining infliction of emotional distress under New York state law. Lee v. "psychotic and aggressive" man who refused to obey police McCue, No. 04CIV.6077, 410 F. Supp. 2d 221 (S.D.N.Y. 2006). orders to leave premises of music studio, refused orders to drop a pen he was holding, and resisted efforts to handcuff him. False Arrest/Imprisonment: No Warrant Gregory v. County of Maui, No. Civ. 04-00516, 414 F. Supp. 2d Arrest of four female minors for violation of a D.C. law 965 (D. Hawaii 2006). imposing only civil penalties for underage possession or consumption of alcoholic beverages stated a valid claim for Disability Discrimination violation of their Fourth Amendment rights. Doe v. Metro. Police Arrest of a deaf motorist for driving under the influence (DUI) Dep't of D.C., 2006 U.S. App. Lexis 10263 (D.C. Cir.). did not violate his right against disability discrimination under the Deputy was not entitled to qualified immunity for arresting a Americans with Disabilities Act (ADA) or the Rehabilitation Act, mobile home occupant inside her residence when there were since the basis of the arrest was not his disability, but rather factual issues as to whether he possessed either an arrest probable cause, based on observation of his driving, and the warrant or probable cause for the arrest at the time of entry. smell of alcohol on his breath, to believe that he was in fact Lepone-Dempsey v. Carroll County Commissioners, 159 Fed. intoxicated, along with failure of a roadside sobriety test. Bircoll Appx. 916 (11th Cir. 2005). v. Miami-Dade County, 410 F. Supp. 2d 1280 (S.D. Fla. 2006). Officer could arrest a suspect for her refusal to provide identification, and the arrestee therefore could not recover Domestic Violence damages on her civil rights claim alleging that the police Illinois Supreme Court rules that police officers who allegedly department had a policy of inadequate training on arrests for failed to assist domestic violence victim in response to 911 call refusal to provide identification. Coatney v. Las Vegas were not entitled to absolute immunity under state law on a Metropolitan Police Dept., 158 Fed. Appx. 790 (9th Cir. 2005). claim that their inaction was willful and wanton conduct which Officer responding to a report of a domestic disturbance caused her death when her husband subsequently shot her. between a mother and her 16-year-old daughter had probable More specific limited immunity provision of domestic violence cause to arrest the mother when she obstructed his efforts to statute applied instead, with an exception for willful and wanton investigate the incident by continuing to approach and interrupt conduct. Moore v. Green, 2006 Ill. Lexis 613. his conversation with the daughter after she had been told not to

1 On-Line Edition http://www.aele.org/law June, 2006 do so. Sullivan v. City of Pembroke Pines, No. 05-12754, 161 fucking suicide bomber communist terrorist!" with "W.O.M.D. on Fed. Appx. 906 (11th Cir. 2006). Board" were a "true threat" not protected as free speech. Fogel Suspect's arrest on a charge of disorderly conduct after he v. Grass Valley Police Department, 415 F. Supp. 2d 1084 (E.D. placed "tombstones" bearing the names of his neighbors on his Cal. 2006). lawn and engaged in an altercation with one of his neighbors in an officer's presence was supported by probable cause. Purtell Interrogation v. Mason, No. 04C7005, 412 F. Supp. 2nd 903 (N.D. Ill. 2006). Suspect questioned, and searched on the premises of his employer, an auto manufacturer, during an auto vandalism False Arrest/Imprisonment: Warrant investigation, voluntarily consented to answer questions and to Arrest, pursuant to warrant, of man who allegedly threatened be searched by sheriff's deputy, so that he could not pursue a purported trespassers on his club's land by pointing a gun at federal civil rights claim for these actions. Aquino v. Honda of them did not violate his rights. Officer properly passed along the America, Inc., No. 04-4274, 158 Fed. Appx. 667 (6th Cir. 2005). man's denial of this to the prosecutor along with the statements Refusal to allow suspect to call his lawyer or otherwise speak of the complaining witnesses, and his mere denial was to his counsel while he was being interrogated could not be the insufficient to eliminate probable cause for the arrest. Grubbs v. basis for a claim of violation of his Sixth Amendment right to Bailes, No. 05-7076 2006 U.S. App. Lexis 10437 (10th Cir.). counsel when it occurred before he was charged, rather than Even without allegedly false information provided by police after the initiation of formal criminal proceedings. James v. York inspector in his affidavit for the arrest warrant, there was County Police Dept., 160 Fed. Appx. 126 (3rd Cir. 2005). probable cause to issue the warrant for the arrest of the suspect based on the minor victim's statements that he had repeatedly Malicious Prosecution touched her in the area of her , and a therapist's report Despite her claim that her first conviction for rape and indicating that the suspect had touched the victim's chest area sodomy, subsequently set aside, was caused by county and bottom. Guerrero v. San Francisco, 156 Fed. Appx. 36 (9th prosecutors withholding exculpatory materials in violation of her Cir. 2005). due process rights, she could not pursue her federal civil rights claim for malicious prosecution when she was again found guilty False Arrest/Imprisonment: Wrongful Detention of lesser charges and sentenced to time served on retrial. Stein Police officers did not violate a man's rights by detaining and v. County of Westchester, 410 F. Supp. 2d 175 (S.D.N.Y. 2006). questioning him after he was reported to be armed in a hardware store. Thurman v. Village of Homewood, 2006 U.S. Public Protection: Disturbed/Suicidal Persons App. Lexis 10881 (7th Cir.). Police chief and officers were not liable under Ohio state law for failure to prevent man's suicide in the absence of any Firearms Related: Intentional Use showing that they acted with a malicious purpose, in bad faith, •••• Editor's Case Alert •••• or in a wanton or reckless manner in responding to reports that Use of deadly force to shoot and kill a suspect fleeing from he had acted "suspicious" when unsuccessfully attempting to the scene of an undercover drug bust was only justified if, at the purchase a firearm at a store. Schoenfield v. Navarre, No. L-05- time of the shooting, the suspect's vehicle posed an imminent 1082, 843 N.E.2d 234 (Ohio App. 2005). danger to officers. Factual disputes as to whether or not that was the case made summary judgment in favor of the shooting Pursuits: Law Enforcement police detective improper. Sigley v. City of Parma Heights, No. Upholding a jury award against a city in a case where a 05-3035, 437 F.3d 527 (6th Cir. 2006). motorist was injured from a collision with a police cruiser engaged in a high speed pursuit, a Maryland appeals court ruled First Amendment that a police department order stating that, during such pursuits, A municipal ordinance requiring door-to-door canvassers officers were required to bring their vehicles to a full stop when who plan to "hand pamphlets or other written material" to they crossed an intersection against traffic control devices was residents or discuss with them "issues of public or religious admissible evidence. Baltimore v. Hart, 891 A.2d 1134 (Md. interest" to first register with the police department violates the App. 2006). First Amendment. Serv. Employees Int'l Union v. Mt. Lebanon, Officer was entitled to official immunity from liability for 2006 U.S. App. Lexis 10596 (3d Cir.). injuries to three passengers and death of driver in vehicle struck While the statements "Allah praise the Patriot Act," and by car fleeing from him during high-speed pursuit. Hanse v. "JIHAD on the First Amendment," painted on the side of an Phillips, 623 S.E.2d 746 (Ga. App. 2005). arrestee's car, were protected speech under the First Police officer was not liable in a federal civil rights lawsuit for Amendment, there was a genuine factual issue as to whether either death of child passenger in vehicle pursued after it fled other statements on the vehicle, such as that the driver was 'a license checkpoint or injuries to passengers in car struck by 2 On-Line Edition http://www.aele.org/law June, 2006 pursued vehicle when he was only attempting to seize the driver investigation, lasting twenty minutes, and involving the of the fleeing car, did not know the child was in the pursued handcuffing of the driver while the car trunk and inside were vehicle, and the collision was an unintended consequence of the searched did not violate the motorist's Fourth Amendment pursuit. Sanders v. City of Union Springs, No. 2:04-cv-757, 405 rights, despite the fact that it turned out that she and her vehicle F. Supp. 2d 1358 (M.D. Ala. 2005). were not involved in any criminal activity. Lavender v. City of Blue Ash, No. 05-3058, 162 Fed. Appx. 548 (6th Cir. 2006). Racial Discrimination Truck driver of Iranian national origin failed to show that he State Constitutional Claims was prevented from using a gasoline restroom or paying for his The constitutional right against unreasonable seizure under gas on the basis of his race, but was entitled to further the Pennsylvania state Constitution does not provide an proceedings on his assertion that an off-duty police officer arrestee with any greater protect than is provided by the U.S. working as a security guard there arrested him for disorderly Constitution's Fourth Amendment, and there is no right, under conduct and trespass without probable cause. Pourghoraishi v. state law, to recover money damages for an alleged violation of Flying J, Inc., No. 05-1107, 2006 U.S. App. Lexis 9875 (7th Cir.) this state constitutional right. Jones v. City of Philadelphia, 890 A.2d 1188 (Pa. Cmwlth. 2006). Search and Seizure: Home/Business Police officers' warrantless entry into backyard and residence Summaries from the June 2006 were justified by reports of gunshots coming from the home and Fire and Police Personnel Reporter the failure of the residents inside to respond to knocks on the door. Causey v. City of Bay City, 442 F.3d 524 (6th Cir. 2006). The online edition has a featured article on all underlined cases Even if police officers were "intruding" into the curtilage of the plus the full opinion. Cases without underlining are noted in brief suspect's home by speaking to his mother and brother on the only in the online edition, but will feature a link to the full opinion, home's porch, and even if they were trespassing by staying after if available on the Internet. the brother asked them to leave, this did not constitute an illegal search. Murphy v. Gardner, No. 02CV01918, 413 F. Supp. 2d Applicant Rejections 1156 (D. Colo. 2006). Federal court upholds the rejection of a black state trooper applicant who had an expunged record for theft. Foxworth v. Search and Seizure: Search Warrant Penn. State Police, #03-CV-6795, 402 F.Supp.2d 523, 2005 Officers' initial entry into garage apartment adjacent to home U.S. Dist. Lexis 30136, 97 FEP Cases (BNA) 505 (E.D. Pa.). being searched under warrant for drugs was a reasonable mistake, but genuine factual issues as to whether they acted Attorneys' Fees and Legal Defense Rights reasonably in continuing the search there and detaining the Transsexual police officer, who won a jury verdict on her sex occupants for approximately an hour and a half required further discrimination claim, recovers a supplemental award of proceedings. Harman v. Pollock, No. 04-4294, 2006 U.S. App. attorneys' fees of $90,344 plus expenses of $2,540 for Lexis 10886 (10th Cir.). successfully defending the appeal before Sixth Circuit and U.S. Supreme Court. A lodestar multiplier of 1.75 that was applied to Search and Seizure: Vehicle the trial-related legal fees should not apply to the appellate work. Mother and her five children could proceed with their lawsuit Barnes v. City of Cincinnati, #1:00-cv-780, 2006 U.S. Dist. Lexis asserting civil rights claims based on officers' actions in 8826, 97 FEP Cases (BNA) 1168 (S.D. Ohio 2006). approaching her car with guns drawn in front of her house when they mistakenly believed that her 14-year-old son, who exited Civil Liability the vehicle, was a fugitive they hoped to apprehend at a nearby Striking a subordinate employee with three-ring binder and house. Couden v. Duffy, 2006 U.S. App. Lexis 10801 (3d Cir.). loudly berating her was not a Fourth Amendment "seizure," that Officers had a reasonable articulable suspicion of criminal would entitle the sheriff's employee to recover against her conduct sufficient to stop and search suspect's truck, based on supervisor. Reyes v. Maschmeier, #05-12720, 2006 U.S. App. information from a confidential informant and other information Lexis 9886 (11th Cir. 2006). suggesting that the suspect and an accomplice were buying decongestant tablets containing pseudoephedrine in large Collective Bargaining - In General quantities to use for the manufacture of methamphetamine. Oklahoma Supreme Court upholds a municipal employee Kilgore v. City of Stroud, 158 Fed. Appx. 944 (10th Cir. 2005). collective bargaining law as constitutional. City of Enid v. PERB, Officer's stop of a motorist's vehicle was based on #101,729, 2006 OK 16, 2006 Okla. Lexis 12, 179 LRRM (BNA) that the vehicle matched the description of 2328. a getaway car involved in an armed bank nearby, so that the 3 On-Line Edition http://www.aele.org/law June, 2006

Collective Bargaining - Duty to Bargain Firefighters were entitled to have lump-sum buyouts of their New York municipalities have exclusive authority to make sick leave included in their regular rate of pay, for purposes of initial eligibility determinations, and it is not a mandatory subject calculating overtime under the Fair Labor Standards Act. Acton of bargaining. Poughkeepsie Prof. Firefighters' Assn. v New v. City of Columbia, #04-3985, 436 F.3d 969, 2006 U.S. App. York St. Pub. Empl. Relations Bd., #2006-33, 2006 N.Y. Lexis Lexis 3005, 11 WH Cases2d (BNA) 359 (8th Cir. 2006). 569, 2006 NY Slip Op 2289 (2006). Family, Medical & Personal Leave Disability Rights and Benefits Federal appeals court rejects a claim that the FMLA covers - Line of duty related / disputed unlimited break time to use toilet facilities because of diarrhea Illinois court holds that a firefighter was entitled to have all of induced by diabetes medication. "We are unable to locate a his sick leave and vacation benefits reinstated for the period of case where temporary FMLA leave was awarded ... [for] periodic time that he was off work because of a work related injury that time away from a desk throughout the work day. Mauder v. he incurred when he fell down the stairs while reporting for roll Metro. Transit Auth., 2006 U.S. App. Lexis 9306 (5th Cir. 2006). call. Mabie v. Vil. of Schaumburg, #1-05-2457, 2006 Ill. App. Arbitrator holds that a county violated the law when it denied Lexis 259 (1st Dist. 2006). FMLA leave to employee to care for her grandmother with Alzheimer's disease; the employee was required to show that Disciplinary Appeals & Challenges- In General grandmother served as her parent when she was child and Arizona appellate court holds that a merit or civil service employee stood in loco parentis. County of Allegheny and A.C. commission has jurisdiction to hear the claim of a former Employees, 122 LA (BNA) 155, Pa. Bur. of Mediation employee who alleges that his or her resignation was coerced Grievance #5720 (Miles, 2005). and was a constructive discharge. LaWall v. Pima County Merit Sys. Cmsn., #2 CA-CV 2005-0140, 2006 Ariz. App. Lexis 34. Hairstyle and Appearance Regulations & Discrimination In a 7-to-4 decision, the Ninth Circuit upholds the firing of a Disciplinary Investigations woman employee who refused to wear facial makeup. •••• Editor's Case Alert •••• Jespersen v. Harrah's, #03-15045, 2006 U.S. App. Lexis 9307 Ex Florida deputy and his wife awarded $1,231,700 against (9th Cir. en banc 2006). the county. The plaintiffs were falsely accused of bringing drugs into the jail -- and management allegedly botched the internal Handicap Laws / Abilities Discrimination - Regarded as investigation. Femminella v. Palm Beach County, Docket #50- Disabled 204 CA 002604, CFN 20060081517 (15th Circuit Court, Fla.). Rejected police applicant with missing fingers is awarded $500,000 damages. He had 10 years of experience as a police Disciplinary Punishment - In General officer in other nearby communities. Kreger v. Baldwin, #05- Termination of a public employee for repeated personal use 0789 (W.D. Pa. 2006). of his government computer during work time was for just cause. Dept. of Veterans Affairs and AFGE L-1594, 122 LA (BNA) 106, Handicap Laws / Abilities Discrimination FMCS Case #0503101 (Hoffman, 2006). - Specific Disabilities D.C. Circuit reverses a verdict of $64,180 plus $157,397 in FLSA - Overtime - Canine Officers attorney's fees for a police officer with a blood disease. The A bargaining agreement did not waive time-and-one-half evidence did not match the claimed impairment. Gasser v. Dist. overtime claims by U.S. Park Police canine officers. Long v. of Columbia, #04-7018, 2006 U.S. App. Lexis 7893 (D.C. Cir. United States, #05-143C, 69 Fed. Cl. 566, 2006 U.S. Claims 2006). Lexis 36 (Fed. Cl. 2006). Firefighter with multiple sclerosis was a disabled person under Texas disability discrimination laws. Davis v. City of FLSA - Overtime - In General Grapevine, #2-05-145-CV, 2006 Tex. App. Lexis 1877 (2d App. Labor Dept. issues opinions that FLSA exempt employees Dist. 2006). cannot be docked for lost or broken equipment (including laptops and cell phones); exempt workers who fail to make up Homosexual & Transgendered Employee Rights part of workday (because of a personal absence) cannot be •••• Editor's Case Alert •••• disciplined; canine officers can be paid less than their regular Federal court refuses to dismiss a suit filed by a job applicant rate for dog care; and a civilian code enforcement officer can for a terrorism analyst position who was rejected because he volunteer as an unpaid police reserve officer without running was planning gender reassignment surgery. Schroer v. afoul of the FLSA. Wage and Hour Opinion Letters, FLSA2006- Billington, #05-1090, 2006 U.S. Dist. Lexis 14278 (D.D.C. 2006). 2, 6, 7 and 10. 4 On-Line Edition http://www.aele.org/law June, 2006

Inefficiency, Performance Standards, Negligence The city had used a mathematics test to screen applicants and Incompetence where only 59% of African American applicants and 66% of Arbitrator declines to reduce the termination of a 17-year Hispanic applicants passed, as opposed to 85% of the white veteran officer that had a series of minor deportments and applicants. U.S. v. Virginia Beach, #2:06-cv-00189, 44 (2153) inefficiency problems. "It is not the arbitrator's role to impose his G.E.R.R. (BNA) 422 (E.D. Va. 2006). own standard of discipline ... unless ... the discipline imposed ... is so unreasonable as to warrant such intervention." City of Race or Sex Discrimination - Disparate Discipline Vallejo and Vallejo P.O.A., 121 LA (BNA) 1659, CSMCS Case # Eighth Circuit, in a 2-to-1 holding, denies a new trial in a civil ARB 04-2674 (Silver, 2006). suit brought by a police sergeant against the Board of Police Commissioners alleging that they violated his due process rights Injuries to Applicants, Trainees, Participants & Observers and maliciously prosecuted him for excessive force because of Martial arts instructor was not liable for the injuries suffered his race. Moran v. Clarke, #04-2902, 2006 U.S. App. Lexis 8794 by a student who was a willing participant. Bevolo v. Carter, (8th Cir. 2006). #04-4220, 2006 U.S. App. Lexis 9874 (7th Cir. 2006). Retaliatory Personnel Action Light Duty Assignments A police chief was not entitled to dismissal of a suit claiming Federal court finds that a police dept. policy abolishing a retaliatory transfer where the officer's speech was on a matter permanent light-duty positions for disabled officers did not of public concern, and where the unconstitutionality of the chief's violate the ADA, even if officers were not individually assessed actions was clearly established at the time they occurred. Miller for suitable positions. Management's employment decisions v. Jones, #05-1932, 2006 U.S. App. Lexis 9566 (7th Cir. 2006). were based on a reasonable physical criteria and applied on an individualized basis. Allen v. Hamm, #RDB 05-879, 2006 U.S. Seniority Dist. Lexis 6707, 17 AD Cases (BNA) 1206 (D. Md. 2006). Arbitrator concludes that seniority is measured from the date a person begins work, not the date that he or she was hired. Physical Fitness Requirements, Agility Tests and Standards Nationwide Parking Services and Teamsters L-961, 122 LA Federal court rejects a police applicant test that (BNA) 121, FMCS Case # 05/51375 (DiFalco,, 2005). disproportionately disqualified women applicants because it contained sit-ups and push-ups components that lacked Sexual Harassment - Verdicts, Settlements & Indemnity criterion-related validity. United States v. City of Erie, #04-4, Treasury Dept. agrees to settle a class action of 32 sexual 411 F.Supp.2d 524, (W.D. Pa. 2005). harassment claims at the Denver Mint for $8,990,000. Wylie v. Treasury Dept., EEOC #07A4001244, 44 (2152) G.E.R.R. (BNA) Privacy Rights 392 (EEOC 2006); Agency #03-0008C; prior decis, Appeal DEA agent who was videotaped while he accidentally shot #07A40012 rptd. at 2004 EEOPUB Lexis 7016 (EEOC 2004). himself sues the federal government for privacy violations. Video was uploaded onto the Internet and was the subject of Workers' Compensation - Exclusive Remedy talk show hosts, Paige v. U.S., #1:06-cv-00644-EGS (D.D.C. Florida Supreme Court rules that the state's Worker's Comp. 4/7/2006). law did not bar a wrongful death suit filed by the family of a police crossing guard who was fatally injured because of a faulty Promotional Rights, Procedures county traffic signal. Although the county was the employer of and Performance Appraisals the deceased and the defendants, they worked in different Appellate court rejects the claim that a "vacancy" is created departments, at different locations, and had different job duties. in the ranks when a senior police officer is called up for Aravena v. Miami-Dade County, #SC04-2349, 2006 Fla. Lexis temporary active duty in the military. McElroy v. City of Temple, 556 (Fla. 2006). #03-03-00741-CV, 2006 Tex. App. Lexis 2056 (2006).

Retirement Rights and Benefits Summaries from the June 2006 Indiana holds that a mandatory retirement age still applies to Jail and Prisoner Law Bulletin employees who were enrolled in a five-year DROP program. City of Gary v. Mitchell, #45A03-0504-CV-192, 843 N.E.2d 929, The online edition has a featured article on all underlined cases 2006 Ind. App. Lexis 409 (2006). plus the full opinion. Cases without underlining are noted in brief only in the online edition, but will feature a link to the full opinion, Race Discrimination - In General if available on the Internet. DoJ settles a lawsuit against the Virginia Beach Police Dept. 5 On-Line Edition http://www.aele.org/law June, 2006

Access to Courts/Legal Info Federal appeals court reverses trial court's dismissal of Trial court improperly dismissed prisoner's lawsuit claiming prisoner's claim that his rights were violated when he did not that reduced access to prison law library resulted in him losing receive prescribed blood pressure monitoring or his high blood in an action to obtain certain "credit time" that he was entitled to. pressure medication for a nine-day period. Munn v. Toney, No. Marshall v. Knight, 2006 U.S. App. Lexis 10395 (7th Cir.). 05-1320, 433 F.3d 1087 (8th Cir. 2006) Prisoner failed to show that he suffered any actual injury to Prisoner's personal belief that his penile pain could be his right of access to the courts from a correctional officer's relieved by circumcision was insufficient, under the Eighth alleged confiscation of some legal materials from him. Asad v. Amendment, to require correctional officials to have the Crosby, No. 04-13825, 158 Fed. Appx. 166 (11th Cir. 2005). procedure performed for free. Adsit v. Kaplan, 410 F. Supp. 2d 776 (W.D. Wis. 2006). Drugs and Drug Screening County detention facility did not act with deliberate Substantial evidence supported a disciplinary determination indifference to detainee's medical problems. While the medical that a prisoner had violated rules against drug use. Callender v. care provided for his complaint of a broken ankle was not Goord, 809 N.Y.S.2d 218 (A.D. 3rd Dept. 2005). always what he desired, he was examined when admitted to the facility, given pain killers, and medically examined on eleven Homosexual and Bisexual Prisoners subsequent occasions. Redd v. Conway, 160 Fed. Appx. 858 Juvenile facility in Hawaii ordered to take steps to remedy (11th Cir. 2005). "pervasive" sexual, physical, and verbal abuse of lesbian, gay, Prisoner raised possibly viable claims as to whether bisexual, or transgender juvenile wards, and to stop, except in correctional officers acted with deliberate indifference, after he emergencies, using isolation as a means of "protecting" such had surgery, to his need for pain medications and pillows for his wards. R.G. v. Koller, 415 F. Supp. 2d 1129 (D. Hawaii 2006). injured hand. Prewitt v. Roos, 160 Fed. Appx. 609 (9th Cir. and 2006 U.S. Dist. Lexis 21254. 2005).

Jail & Prison Fires Prison Litigation Reform Act: Attorneys' Fees North Carolina appeals court upholds rejection of state Federal appeals court rules that statute restricting attorneys' agency's motion to dismiss claims for liability for the death of fees awards in prisoner lawsuits to 150% of the damage award four inmates and serious injuries to another in a fire at a county applies to lawsuits filed by prisoners over incidents that occurred jail. Multiple Claimants v. N.C. Dept. of Health and Human before their incarceration. Plaintiff prisoner awarded $1 in Services, 626 S.E.2d 666 (N.C. App. 2006). nominal damages in excessive force case was therefore only entitled to $1.50 in attorneys' fees, rather than the $9,680 Mail awarded by the trial judge. Robbins v. Chronister, 435 F.3d Prison rules limiting inmates to one free stamp a month for 1238 (10th Cir. 2006) non-legal mail, and prohibiting them from receiving stamps in the mail from friends and family did not violate prisoner's rights Prison Litigation Reform Act: Exhaustion of Remedies and was reasonably related to legitimate security concerns. Requirement, under Prison Litigation Reform Act, that a Johnson v. Goord, 2006 U.S. App. Lexis 9887 (2d Cir.). prisoner exhaust available administrative remedies prior to filing a federal civil rights lawsuit applies to prisoners held in a Medical Care privately-run state prison. Bias v. Cornell Corrections, Inc., 159 Federal pre-trial detainee's lawsuit, claiming inadequate Fed. Appx. 868 (10th Cir. 2005). medical treatment resulting in various injuries at several county jails and federal , was properly dismissed, both for failure Prisoner Discipline to exhaust available administrative remedies, and because the While it was a mistake to deny inmate's request to call as a facts alleged, if true, constituted only negligence, which is witness a correctional officer present during an incident for insufficient to state a claim for violation of federal civil rights. which the inmate was charged with inciting to riot, this error was Acosta v. U.S. Marshals Serv., No. 05-1733, 2006 U.S. App. harmless when his testimony would not have altered the Lexis 9882 (1st Cir. April 19, 2006) resulting imposition of punishment. Grossman v. Bruce, No. 05- Doctor's alleged failure to provide adequate treatment for 3155 2006 U.S. App. Lexis 11194 (10th Cir.). detainee's heart condition, resulting in permanent heart damage, Substantial evidence, including a misbehavior report, may have been medical malpractice, but there was no evidence testimony by the author of the report, and the inmate's own that he knew about and failed to treat that heart condition or admission that he had another prisoner's legal papers, "consciously disregarded" his medical needs, barring a claim for supported a disciplinary determination that the inmate was guilty violation of constitutional rights. Self v. Crum, No. 04-1037, 439 of the unauthorized exchange of property. Kalwasinski v. Goord, F.3d 1227 (10th Cir. 2006) 810 N.Y.S.2d 224 (A.D. 3rd Dept. 2006). 6 On-Line Edition http://www.aele.org/law June, 2006

The allegation that a prison hearing officer violated Kansas Smoking state Department of Corrections procedural regulations was Prisoner's allegations concerning smoking by correctional insufficient, by itself, to state a constitutional claim for violation officers on several occasions were insufficient to state a claim of the right to fundamental fairness of a disciplinary proceeding. for a violation of his Eighth Amendment rights by exposing him Starr v. Bruce, No. 94,061, 129 P.3d 583 (Kan. App. 2006). to environmental tobacco smoke. These individual incidents did Prisoner's right to call witnesses in disciplinary proceeding not demonstrate exposure to an unreasonably high level of such was violated, requiring the setting aside of the finding that he smoke. Bacon v. Taylor, 414 F. Supp. 2d 475 (D. Del. 2006). was guilty of violating disciplinary rules. Crosby v. Selsky, 807 N.Y.S.2d 666 (A.D. 3rd Dept. 2005). Strip Searches: Prisoners •••• Editor's Case Alert •••• Racial Discrimination A misdemeanor charge of being under the influence of a Prisoner failed to establish a valid claim for racial drug, standing alone, was insufficient to justify the discrimination. While he filed grievances stating that "racism is and visual body cavity search of a woman at a county jail who prevailing" at the correctional facility, and accusing white never entered the jail's general population. Individualized employees of being "racist" and "hateful," he failed to allege that reasonable suspicion of possession of drugs, other contraband, he had suffered any "specific hardships" as a result of such or weapons was required before conducting such a search, but racism. Jackson v. Madery, 158 Fed. Appx. 656 (6th Cir. 2005). officers were entitled to qualified immunity because the law on the subject was not clearly established at the time of the search. Religion Way v. County of Ventura, 2006 U.S. App. Lexis 9878 (9th Cir.). Parolee's claim that his First Amendment rights were violated Factual issues as to whether visual body cavity searches when he was required, during a mandated sex offenders' were needed on all incoming detainees at county jail, and program, to recite a prayer with the word "God" in it should whether the urethral swabbing of all detainees violated their have been analyzed under the Establishment Clause, prohibiting Fourth and Fourteenth Amendment rights precluded summary coercion to participate in religious activity, rather than on the judgment for defendant correctional officials. Thompson v. basis of whether his belief that he should only say "God" while County of Cook, 412 F. Supp. 2d 881 (N.D. Ill. 2005). praying at home at night was a "serious" religious belief. Federal trial court preliminarily approves $12 million Munson v. Norris, 435 F.3d 877 (8th Cir. 2006). settlement of class action lawsuit challenging policy of While inmate's belief that "the Creator Yahweh" mandated conducting suspicionless strip searches of detainees who were that he should not cut his hair was a sincerely held religious ruled releasable after court appearances. Court also approves belief, a prison policy which limited "Afro style" hair length to four finds attorneys' fee award of one-third of the settlement fund, or inches was reasonably related to legitimate prison interests in $4 million. Bynum v. D.C., 412 F. Supp. 2d 73 (D.D.C. 2006). preventing the concealment and transportation of contraband, aiding in the identification of inmates, and improving inmate Stun Belts/Guns hygiene. Meggett v. Pennsylvania Dept. of Corrections, 892 Complaint alleging that officers repeatedly stunned prisoner A.2d 872 (Pa. Cmwlth. 2006). with a stun gun to compel him to obey orders that they knew he If a prison chaplain intentionally left a prisoner's name off of a was unable to comply with should not have been dismissed. list of those allowed to attend Native American religious Brown v. Thompson, 159 Fed. Appx. 119 (11th Cir. 2005). ceremonies, he would have violated the prisoner's rights. Meyer v. Teslik, No. 05-C-269, 411 F. Supp. 2d 983 (W.D. Wis. 2006). Voting Rights of Shiite Muslim inmates were not violated by the The Voting Rights Act does not apply to statutes barring availability of only an allegedly Sunni Muslim service at a state voting by incarcerated or paroled prisoners. Hayden v. Pataki, prison. The services were considered "unified" Muslim services 2006 U.S. App. Lexis 11187 (2d Cir. 2006). by prison authorities, and prisoners were also allowed to engage in individual prayers. Orafan v. Goord, 411 F. Supp. 2d 153 Work/Education Programs (N.D.N.Y. 2006). Inmate suffering from chronic obstructive pulmonary disease from dust and smoke accompanying his work as a welder failed Segregation: Administrative to show that he had informed the supervisor overseeing prison Inmate's placement in administrative segregation for a period jobs of the risk to him allegedly posed by his working conditions. of nineteen days was insufficient to involve a possible violation Flanyak v. Hopta, 410 F. Supp. 2d 394 (M.D. Pa. 2006). of a due process protected liberty interest. Gilmore v. Goord, Sign up for e-mail notification that next month’s AELE No. 02-CV-6560, 415 F. Supp. 2d 220 (W.D.N.Y. 2006). publications are online: www.aele.org/e-signup.html Copyright © 2006, AELE, Inc. ISSN 1541-0765 «««««««««««««««««»»»»»»»»»»»»»»»»» 7