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Fbop All Regions Quarterly Report 1991oct-dec

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LITIGATION

1992 FIRST QUARTER REPORT

AWD

FTC

BIV

OTH

ANS

PEN

CLD

HIT

14

2

8

8

26

*

23

1

2

$82,500

36

10

8

13

8

25

249

63

4

1

0

SER

33

17

4

9

3

33

*

34

3

1

NCR

66

25

8

26

7

*

448

48

0

0

0

SCR

50

17

4

18

11

27

201

24

0

0

0

WXR

29

18

2

7

2

*

443

29

18

1

*

CO

19

2

2

8

7

8

97

8

5

0

0

265

103

30

89

43

119

229

31

5

$82,897

LOC

NOM

MXR

32

NER

TOT

HC

1438

SET

$

DEFINITIONS
LOC - LOCATION
NUN - NUMBER OP TOTAL LAWSUITS F7LED IN QUARTER
HC - NUMBER OP HABEAS CORPUS ACTIONS PILED
FTC NUMBER OP FTCA ACTIONS FILED
BIV - NUMBER OP BIVENS ACTIONS PILED
OTH - OTHER ACTIONS FILED
ANS - NUMBER OP LITIGATION REPORTS COMPLETED
PEN - PENDING
CLD - NUMBER OF ACTIONS CLOSED
BIT - NUMBER OF BEARINGS OR TRIALS (INCLUDE INFO IN NARRATIVE)
SET - NUMBER OP SETTLEMENTS (INCLUDE INFO IN NARRATIVE)
AWD - NUMBER OP AWARDS (INCLUDE INFO IN NARRATIVE)
GOVERNMENT ACTION AND DATE OF ACTION - (INCLUDE IN NARRATIVE)

397

.PS

LITIGATION OF INTEREST
MID-ATLANTIC REGION
SETTLEMENTS
Shouse v. DOJ, Southern District of Indiana.
A settlement of
$32,500 was reached due to the suggestion of the Magistrate.
A
former black correctional officer filed an EEO suit alleging she
was harassed due to her race and sex at USP, Terre Haute. Several
other women correctional officers supported her allegations so
settlement was deemed appropriate.
Hazime v. Sauvey, Eastern District of Michigan.
A settlement of
$50,000 was reached in this medical malpractice case. This joint
FTCA and Bivens case arose from allegations that the doctor had a
"hit list" of patients who were not to be seen on sick call without
her approval.
In this case, the plaintiff suffered a serious ear
infection which was not treated over several weeks.
In addition,
the plaintiff alleged the doctor placed a caustic sUbstance in his
ear while the doctor alleged she was burned by the patient.
Settlement of this case appeared appropriate since most of the
monies paid went toward attorneys fees and offset of the prisoner's
fine.
Settlement also avoid publicly airing the medical problems
at Milan at the time.
TRIALS
Parker v UNICOR, Southern District of Indiana.
Trial held on
December 16, 1991.
This personal liability case involved a work
related injury that the prisoner claimed was caused by assignment
to a job against his medical restrictions. The defendants were the
work supervisor and two unit staff. The magistrate has not issued
a ruling though one was expected by the end of January.
SIGNIFICANT CASES WON
Lester v. Thornburg, Eastern District of Michigan.
The Court
upheld our policy regarding not providing Muslim prisoner a diet
similar to the Kosher diet.
In addition, the Court ruled common
fare was also sufficient to meet constitution requirements in the
area of religious diets.
Fleschiq v. U.S., Eastern District of Kentucky.
The Court ruled
that a correctional officer who took a prisoner to his home and
raped her was not acting within the scope of his employment for
purposes of the Federal Tort Claims Act.
In addition, the Court
held, where there was no indication that the officer would commit
such an act, the government was not responsible for his actions.
The Court denied a motion to reconsider and we expect an appeal to
be filed.

i

- 2 -

NEW CASES OF INTEREST
Razelrod v. DOJ, Eastern District of Kentucky.
The plaintiff is
requesting the BOP stop using an investigative technique which was
used on her during an investigation of a theft at FCI, Ashland.
The plaintiff confessed to taking the monies during the interview
and she is alleging the technique harasses women since she was
touched on the arm and leg during the interview. The technique is
still being used but is the same for both men and women.
NORTHEAST REGION
TRIALS
Michael Walker v. United states. et al., Southern District of New
York.
This was a Bivens complaint against four staff members in
which the inmate alleged excessive use of force in October 1983.
Inmate was being taken to the Special Housing unit at FCI otisville
and refused to remove his clothes for a visual search. Inmate was
aware of search requirement since he had been in Special Housing on
numerous occasions prior to this incident.
Inmate pushed staff
member who was trying to convince inmate to cooperate. other staff
then used force to take inmate down and allowed him up when he
agreed to cooperate with search. Trial held before Judge Knapp on
cember 3 and 4, 1991.
Judge ruled from bench in favor of all
defendants. The court determined that use of force was justified
by refusal of inmate to submit to search and that the medical
evidence did not support inmate's assertion of use of excessive
force.
Georgakis v. united states, District of Connecticut. FTCA case in
which former inmate at FPC Allenwood alleged medical malpractice.
Inmate served a four month term from November 28, 1988 to March
14, 1989.
Inmate was a medical doctor before his conviction.
Inmate alleges that improper medical treatment worsened a preexisting foot problem resulting in surgery after release from
custody. Inmate also alleged that he was not permitted to retain
his orthopedic shoes. Trial held before Judge Daly on December 16
and 17, 1991.
Inmate only asked once for medical assistance for
his foot despite seeing medical staff for other problems. Inmate
and his wife testified that inmate's feet were bleeding on the day
of his release.
Inmate then waited until May 10, 1989 (almost
three months after release)
to see his specialist.
Judge Daly
granted our motion for directed verdict at the end of Plaintiff's
case. The Judge found that the inmate was more than 50% negligent
and his cause of action was barred under Pennsylvania law of
comparative negligence.

- 4 -

indicated possible ischemia (shortness of blood to heart).
PA
administered nitroglycerin .for possible angina, to no relief. At
10:05 pm, PA contacted by phone Dr. Moore (CHP) who advised inmate
should be given stadol (an analgesic which probably masked the pain
and discomfort). At 11:20 pm, PA reported to Dr. Moore by phone
that inmate was resting quietly.
Dr. Moore advised PA to have
inmate returned to quarters and to have inmate go to sick call in
the morning.
Next morning, inmate was taken via ambulance to
Al toona Hospital, whose staff diagnosed a massive myocardial
infarction which commenced 12 hours prior. On January' 18, 1988,
inmate suffered an embolic event and on January 22, 1988, inmate
suffered cardiac arrest.
Inmate transferred to Springfield and
mandatorily released in May 1988.
Armed Forces Institute of
Pathology has opined that the failure to move inmate to hospital on
night of January 11, 1988 was outside acceptable medical practice.
In addition through questioning of PA and Dr. Moore, AUSA has
uncovered additional problems.
PA did not know what ischemia
meant, nO'additional ERG wa's'done before inmate-sent back to quarters, and Dr. Moore expressed that he thought inmate might have
been suffering a heart attack when PA called, but he just ruled it
out for no apparent reason.
Settlement conference with the Judge
on January 15, 1992 was not productive. Plaintiff is demanding as
settlement $1.4 million.
AUSA is working with economist and
medical expert on realistic prospect of settlement. No figure has
been reached at this time, although a range of $250,000 - $500,000
is expected. Permanent damage is probable, but inmate has no work
history. Recommendation for settlement authority will be forwarded
after AUSA completes evaluation.
AUSA does not think Plaintiff
will accept anything less than $1 million, which is too high. If
case is not settled, trial is tentatively scheduled for April 13,
1992. We may decide not to contest liability and limit the trial
to damages.
Perez v. united states, Eastern District of Pennsylvania.
FTCA
case out of FCI Loretto.
On June 1, 1989, Inmate Luis Perez,
36944-066, was sent for sinus surgery to outside doctor.
Doctor
purposely left a Tefla pad in nose following surgery with written
instructions for inmate to return on Monday (June 5, 1989). Inmate
complained on June 2 arid 6, 1989 of pain and soreness. On July 12,
1989, Inmate complained of smell of dead rat in his nose. He was
seen four additional times before further evaluation discovered pad
in nose on July 29, 1989, which was surgically removed that day.
There is an entry in the medical record from Dr. Moore (CHP) that
it was his fault that inmate was not returned for removal of pad.
The only possible defense is that the injury was work related.
There is some evidence that a chemical spill on inmate's face in
August 1988 caused the sinusitis which required the surgery. This
is a factual issue since inmate had some history of sinusitis prior
to accident and since complaints of sinus problems did no occur
until months after the accident. (Immediate problem from accident
was injury to eyes.) Case received in this office on January 2,
1992. AUSA is preparing recommendation of settlement not to exceed

- 5 -

$30,000.
Plaintiff has requested $500,000 in complaint.
It
appears no permanent injury caused by delay in removal of pad.
Damages limited to pain and suffering. The recommendation from the
AUSA and the NERO will be forwarded to the OGC as soon as possible.
Forte v. United states, et al., Eastern District of Pennsylvania.
Combination FTCA and Bivens case arising out of FCI Danbury and
medical care afforded by USMCFP springfield. Inmate Daniel Forte,
10367-016, alleged that FCI Danbury work supervisor improperly
ordered him to lift a heavy pot knowing that he had a medical
restriction against lifting.
Inmate transferred to springfield
where he had neck surgery (diskectomy) by outside consultant on
September 7, 1988. On November 7, 1988, the inmate suffered a near
collapse of the right lung, requiring insertion of chest tube to
expand the lung.
On November 13, 1988, lung was fully expanded.
AUSA advises that her medical expert has opined that the post
operative care by springfield was not consistent with accepted
medical practice. Inmate was not immobilized after surgery· and was
not placed in an elevated position.
Lying in a flat position
following the surgery was the proximate cause of the lung injury.
Attorneys for Plaintiff and AUSA have tentatively agreed to try to
settle for $50,000.
AUSA is forwarding her recommendation.
If
case does settle, $25,000 of proceeds will be attached by united
States to pay inmate's criminal fine.
Recommendation will be
forwarded after review of AUSA's memo.
SOUTHEAST REGION

TRIALS
Wal ter A. Halaburda v. Richard Thornburg, Northern District of
Georgia. This is a case where a former employee of the Bureau of
Prisons alleged that he was discharged in retaliation for assisting
an employee in filing an EEO complaint. The case had a possibility
of undue publicity and a possible impact upon staff moral.
The
case was recommended for dismissal on August 12, 1991 after a trial
on the merits by the special master assigned.
The plaintiff has
filed objections to the report.
SOUTH CENTRAL REGION

NEW CASES OF INTEREST
Apostolo v. ortiz, Western District of Texas. An FTCA action
initially filed in Texas State Court wherein an individual who
had been selected by a local college to teach a course at FCl,
Bastrop was not allowed to do so, alleges he is the victim of
tortious damage. The case has been moved to federal court.
Apparently former Warden ortiz determined the plaintiff to be a
dishonest individual, and informed Blinn College officials that
Mr. Apostolo would not be allowed to teach the course. Torts
Branch has informed the Bureau that they are interested in

- 6 -

handling this action.
cruse v. Lt. Rupert, Western District of Tennessee. Case where
inmate alleges a BOP staff member stood by and allowed a u.s.
Marshal to severely beat the inmate. Discussions with the staff
member indicate that there may be some merit to the allegations
raised. We will be following this case very closely.
Lamb v. Barr, Western District of Texas. An EEO complaint
wherein an individual alleges race and sex discrimination (the
employee is African-American, and female). She alleges that of
all of the promotions at Fel, La TUna in 1991, none have gone to
African-American females. It is interesting to note that the
Warden at FCl, La Tuna at the time in question was J.D. Williams.
WESTERN REGION

9TH CIRCUIT ISSUES
Brown v. Rison / Chalker Cases:
(The Brown holding: Credit for pretrial CTC time for preguidelines cases. The Chalker holding: Both the BOP and
sentencing Judge have authority to grant CTS in guidelines
cases. )
These unique 9th Circuit holdings continue to confound and amaze
and create splits, not just between circuits, but within districts and even divisions of districts, especially in the area of
Brown v. Rison credit for guideline cases sentenced in other than
the 9th Circuit. The Bureau·s position, that Brown does not
apply to guidelines cases, carries little weight to judges who
view Chalker as the ultimate holding for sentencing credit.
Several Wardens have expressed concern that they will be called
into Court by an angry judge for non-compliance with a J & C we
consider illegal.
HEARINGS
u.s. v. Lail, Northern District of California. Motion to
Enforce/Withdraw a Plea Agreement: Inmate argued successfully
that BOP DHO action constituted "charges" barred by terms of plea
agreement. BOP ordered to restore all DHO sanctions (697 days GT
and 30 days in seg.)
u.s. v. Sanchez, Northern District of California. Federal public
Defender argued female defendant entitled to benefit of ICC and
lack of female facility constituted a violation of equal protection. Matter still under submission, surrender date extension
granted.

e

.

u.S. v Espinosa, District of Arizona. Inmates argument for
application of Brown v. Rison CTC credit to guidelines case was
not successful. District court held that Brown was not applicable
to guidelines cases since the term "official detention" was
delineated in 18 U.S.C. 3585 and the Bail Reform Act, U.S.C.
3142-3156, whereas "in custody" under 18 U.S.C. 3568 had never

- 7 -

been defined by Congress.

u. s. v. cruz, District of Southern Cal ifornia.

Defense motion t.o
return inmate to MCC for trial preparation and complaint regarding segregation conditions at USP Lompoc (cruz on trial for staff
hostage incident). Judge Rhodes. Motion granted in part,
conditions of return to MCC negotiated with MCC.

u.s.

v Kaiserman, Central District of California. Multiple hearings relating to housing, conditions and location for this postconviction female.
(Also the subject in an excessive force torts
case. )

SETTLEMENTS
Bobby Joe Floyd v. Meese. et al., Central District of California.
11/12/91 stipulated settlement - $10,000.
Inmate at USP, Lompoc
was assaulted with a pipe by another inmate, however, he claimed
that he slipped in the shower. He was examined by a Physicians
Assistant and then housed in Administrative Detention without
seeing a.physician for about 20 days. He wa~-treated in .. Administrative Detention by Physicians Assistants for headaches
and black eyes. Finally, he was diagnosed by physician as
suffering from a skull fracture. The Physicians Assistant who
did not immediately report the case to a physician was
subsequently disciplined.
NORTH CENTRAL REG70N
TRIALS
castaneda v. Miller. Southern District of Illinois. Trial scheduled January 29, 1992. In this case the plaintiff alleges he was
assaulted by USP Marion staff after transfer from general population to the Administrative Detention Unit. Facts surrounding
this case reveal that on the date in question, the plaintiff was
involved in a fight with several other inmates as reflected in
wounds consistent with fighting. Plaintiff was forcibly separated from other inmates and removed to the hospital//Administrative
Detention. Staff maintain that only the minimal force necessary
to restore order to the cell house was utilized.

1992 FIRST QUARTER REPORT

LITIGATION

SET

FTC

BIV

OTH

ANS

PEN

CLD

HIT

14

2

8

8

26

*

23

1

2

$82,500

36

10

8

13

8

25

249

63

4

1

0

SER

33

17

4

9

3

33

*

34

3

1

NCR

66

25

8

26

7

*

448

48

0

0

0

SCR

50

17

4

18

11

27

201

24

0

0

0

WXR

29

18

2

7

2

*

443

29

18

1

*

CO

19

2

2

8

7

8

97

8

5

0

0

265

103

30

89

43

119

229

31

5

$82,897

LOC

NUM

MXR

32

NER

TOT

HC

1438

AWD

397

$

NARRATIVE ANALYSZS
DEFINITIONS
LOC - LOCATZON
NUH - NUMBER OF TOTAL LAWSUITS FILED IN QUARTER
HC - NUMBER OF HABEAS CORPUS ACTIONS FZLED
FTC NUMBER OF FTCA ACTIONS FILED
BIV - NUMBER OF BIVENS ACTIONS FILED
OTB - OTHER ACTZONS FILED
ANS - NUMBER OF LITIGATION REPORTS COMPLETED
PEN - PENDZNG
CLD - NUMBER OF ACTIONS CLOSED
BIT - NUMBER OF HEARINGS OR TRIALS (INCLUDE INFO IN NARRATIVE)
SET - NUMBER OF SETTLEMENTS (INCLUDB INFO IN NARRATIVE)
AWD - NUKBER OF AWARDS (INCLUDE INFO IN NARRATIVE)
GOVERNMENT ACTION AND DATE OF ACTION - (INCLUDE IN NARRATIVE)
LITIGATION -

LOC

NUM

MXR

41

NER

1991 FOURTH QUARTER REPORT

FTC

BIV

OTH

ANS

PEN

CLD

HIT

SET

AWD

15

4

21

1

36

*

20

1

0

1

25

10

4

6

4

29

278

15

2

1

0

SER

43

22

5

11

5

43

*

25

1

0

0

NCR

54

25

5

14

8

*

354

32

1

1

0

SCR

55

28

9

10

8

26

29

47

0

0

0

WXR

29

14

4

11

*

*

*

*

*

*

*

6

0

2

5

2

7

86

9

3

2

0

253

114

33

78

28

141

747

148

8

4

1

CO
'TOT

HC

NARRATXVB AHALYSXS
LXTIGATIOH
1ST QUARTER 1992

There was not a noticeable change in the number of lawsuits filed,
with 253 filed in the 4th quarter, 1991 and 265 filed in the 1st
quarter, 1992. There was an increase in the number of hearings and
trials with 8 reported in the 4th quarter and 31 reported in the
1st quarter. We will watch this trend. The other categories did
not change significantly.

 

 

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