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Fbop All Regions Quarterly Reports 1992jan-sep

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LITIGATION
LOC

NUM

HC

FTC

MXR

42

19

NER

38

SER

BIV

OTH

ANS

PEN

CLD

5

11

17

29-

*

13

4

10

11

28

46

22

3

17

4

NCR

65

21

11

28

SCR

46

29

7

WXR

27

7

CO

10

5

TOT

274

116

HIT

SET

16

1

2

259

28

3

2

0

46

*

30

2

1

70

15

*

438

22

3

0

0

9

10

26

58

60

2

0

0

3

12

4

*

466

17

10

4

15771

1

3

1

17

83

18

2

1

34

90

62

146

191

23

10

1302

AWD
5400

0
21241

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

r- .

~_

..___ ION ANALYSIS

. THE NUMBER OF LAWSUITS FILED REMAINED APPROXIMATELY THE SAME WITH
265 FILED THE FIRST QUARTER AND 274 FILED THE SECOND QUARTER. THE
~OUNT OF MONETARY DAMAGES DUE TO SETTLEMENT OR AWARD DECREASED
FROM $82,897 THE FIRST QUARTER TO $21,241 THE SECOND QUARTER.

....~
:·~r·

~

r
1, HEARINGS OR TRIALS

NORTH

C~

REGION

castaneda v. Miller, Southern District of Illinois.
The plaintiff alleges that he was assaulted by USP Marion staff
after his removal from the general population to the special
housing unit.
At the trial, the inmate was unable to keep his
testimony consistent with the facts he had alleged in his FTCA
claim or the subsequent complaint.
The court,' after a short
recess, made its decision from the bench and dismissed the
plaintiff's action in its entirety.
NORTHEAST REGIOR
Bailey v. united states, Western District of Pennsylvania.
This FTCA case originated at FC! Loretto.
On January 11, 1988,
former inmate stephen Bailey complained to the PA at FCI Loretto of
chest pains radiating to each arm and shortness of breath.
Subsequently, he visited the PA on several occasions for rel~ted
problems. On January 22, 1988, the inmate suffered cardiac arrest.
The inmate was transferred to Springfield and mandatorily released
in May 1988.
The Armed Forces Institute of Pathology rendered an opinion on this
case stating, that when the staff failed to move the inmate to the
hospital on the night of January 11, 1988, they were acting outside
acceptable medical practice. In addition, through the questioning
of the PA and Dr. Moore, the AUSA has uncovered addi tional
problems. No additional EKG was done before the inmate was sent
back to his quarters. Dr. Moore expressed that the inmate might
have been suffering a heart attack when the PA called.
Nevertheless, he had ruled it out for no apparent reason.
The case was tried from April 13-17, 1992, and on May 3, 1992, the
court entered an adverse judgment against the Government. A final
settlement was made with the plaintiff for $243,000, $143,000 for
lost earnings, and 100,000 for pain and suffering.
Babcock v. Gawrysiak, Middle District of Pennsylvania.
This Biyens action,
against the former Health
Services
Administrator at USP Lewisburg, went to trial on February 3, 1992
and was dismissed on February 3, 1992. The plaintiff alleged that
the defendant had been deliberately indifferent to his medical
needs after the inmate had fallen from an upper bunk. Immediately
before jury selection, the court granted the plaintiff's motion to
dismiss his complaint.
Consequently, we have been pursuing the
costs against the inmate.

,

1

welty v. Gawrysiak, Middle District.of Pennsylvania.
This Bivens
action,
against the former Heal th Services
Administrator at USP Lewisburg, wen~ to trial on February 5, 1992.
The inmate, John Welty, had allegedly sustained a knee injury
during his work detail at USP Lewisburg.
He alleged that the
defendant, having been deliberately indifferent to his medical
needs, had delayed necessary surgery and failed to provide physical
therapy. After deliberation, the jury returned a verdict for the
defendant.
The plaintiff, however, has brought two other actions to recover
losses for the same injury. Although the judge dismissed his FTCA
complaint as it was time barred, the Inmate Accident compensation
complaint is still pending.
Young v. Quinlan, Third Circuit Court of Appeals.
with this Biyens action against tftestaffs at USP Lewisburg, Fer
seagoville, FCI El Reno, and the Central office, the plaintiff
alleges that staff had violated--his constitutional rights;
including, deliberate indifference to medical needs, improper
procedure during a prison discipline hearing, improper transfer
from Fcr seagoville to USP Lewisburg, failure to protect him from
attacks by other inmates, subjection to unsanitary conditions, and
conspiracy to
murder the plaintiff.
During August 1990, the
District Court had granted summary judgement in the favor of the
defendants. The Third Circuit has reversed the decision in part
concerning the grant of summary judgment on two issues; the court
held that an issue of fact existed as to wheather some of the
defendants failed to protect the inmate from attacks, and whether
some of the defendants subjected the inmate to inhumane conditions
when co~fining him to a dry cell after a disciplinary infraction.
The Third Circuit court remanded the case to the District Court.
Gaggi v. Lansing, Eastern District of New York.
This combination Federal Tort Claims Act and Bivens case was filed
by the inmate's estate and focuses on the alleged wrongful death of
the inmate at MCC New York.
On April 16, 1988, the inmate
complained to a physician's assistant that he had been experiencing
chest pains and gas pains for two days. The inmate had had a known
history of coronary artery disease and hypertension. The PA had
treated him with anti-gas medication and Motrin. Later that same
day the inmate experienced more severe pain and was escorted to the
MCC hospital under his own power.
Shortly thereafter he had a
cardiac arrest and died. The case was settled in April, 1992. The
United states Attorneys Office has requested that we not disclose
the amount of the settlement in this case.

2

SOUTHEAST REGION

netty Nicholson V. D.Ve
Alabama.

Industries~

et al., Northern District of

A post office employee, alleging that a defective mail gurney had
caused her permanent injury on November 11, 1989, brought a product
liability action against UNICOR and a private firm.
The judge
dismissed the action against UNICOR without prejudice because the
plaintiff was unable to proceed under the Federal Tort Claims Act.
Eanl Chisolm V. United states, Northern District of Florida.
On March 20, 1984 a former inmate, while on a bathroom visit at
FCI-Tallahassee, was hit on the head with a brick. The bathroom
had been under repair when the accident occurred. The inmate filed
an FTCA claim that the court denied. A lawsuit was filed seeking
$200,000 in damages, and the case went to trial on January 8, 1992.
The judge rendered a verdict of-for the plaintiff of $750.
Affirming the original decision, the court denied the government's
"Motion for Reconsideration." An appeal was not made.
MID-ATLANTIC REGION
Thomas v. Lewis
On March 5, 1992, Thomas brought this case before the Fourth
circuit. The inmate alleged that Federal Marshals would not take
him from a state institution to a federal institution after being
sentenced to both a state and federal term. The Bureau appealed
the order of the District Judge which granted credit against the
Federal sentence for time spent in state custody on an unrelated
sentence. The Fourth Circuit vacated the district court's order.
The appellate court held that a federal sentence does not commence
to run until the inmate is received at the institution for service
of his federal sentence.
Parker v. UNICOR
On December 16, 1991 this case was tried in the Southern District
of Indiana. This personal liability action involved a work related
~nJury.
The inmate claimed the injury was caused by a job
assignment that was outside his medical restrictions. The case was
tried on December 16, 1991.
The' magistrate issued a ruling in
favor of the defence, and we are awaiting the court's ratification.
Nazelrod v. DOJ, Eastern District of Kentucky.
The plaintiff, an employee at FCI Ashland, brought a Title VII law
suit. The plaintiff sought a court order restraining the BOP from
using an investigative technique on her during the staff's
investigation of a theft at FCI, Ashland. The plaintiff alleged
3

that staff members had sexually harassed her because she. was
touched on the arm and leg during the interview before her
confession to the theft. This technique is still in use and is the
same for both men and women.
The Court dismissed the case on
procedural issues.
WBS'l'BRH REGIOR

Gra9Y y. Crabtree, Ninth Circuit Court of Appeals.
In the Ninth Circuit, a criminal defendant was convicted of
violating his probation and sentenced to a term of imprisonment.
Because the individual had spent time in a CCC as a condition of
his probation, the court granted him jail time credit against his
new term of imprisonment for that period of time. That ruling
was contrary to the BOP's practice of denying jail time credit
unless the time was served in a "jail type" facility. However,
because the case involved lIold law" and t:ould not have directly
overturned the Ninth Circuit's previous ruling in Brown y. Rison,
authorization to seek a rehearing en bane, or certiorari to the
U.S. Supreme Court, was denied.

u.s. v. Robert Anderson, Northern District of California.
The District Court judge has ordered the Attorney General/BOP to
pay for psychiatric care costs of a conditionally released
indi vidual who is no longer in the custody of the Attorney General.
The Bureau is recommending to the Department of Justice that this
case be appealed because: (1) The district court has ordered the
Bureau to take actions which are outside of its statutory authority
and has thereby violated the separation of powers doctrine. And
(2) the order contravenes the plain meaning and intent of Chapter
313 of Title 18.
U.s. y Wallstrum, Northern District of California.

The inmate alleges that he is due "jail credit" on the instant
sente~ce for an 18 month period spent on writ from an earlier
federal sentence. The inmate seeks IIdual credit" for the 18 months
for both his instant and earlier sentence.
Martel Black y. Dobre, District of Nevada.
An inmate who was sentenced in the 8th circuit sought 9th cir.

Brown y. Rison credit towards a sentence computation for time he
had spent in a halfway house as a condition of pretrial release.
SOOTH CENTRAL REGJ:OH

Shaw y. Thornburgh, Western District of Oklahoma.
In this Biyens action out of Fel, El Reno, the plaintiff alleges
that he was cut with a razor blade by a Correctional Officer and
seeks $500,000.00 in damages.
The plaintiff's allegations are
4

essentially correct.
A correctional officer, who is no longer
employed by the Bureau of Prisons, appears to have intentionally
cut an inmate's hand with a razor blade. The Bureau of Prisons has
recommended against Department of Justice representation for the
former staff member.
McFarlane v. INS. et al., Eastern District of Louisiana.
In this Bivens and FTCA action out of FDC, Oakdale the plaintiff
has challenged the authority of the united states to hold INS
detainees beyond the completion of their convictions.
The
plaintiff seeks immediate release from custody or immediate
deportation. This case is one of several cases which was recently
filed by INS Detainees at both FCI, and FDC, Oakdale.
The
detainees allegations include having been required to work against
their will during job assignments and having been confined to
housing areas with convicted felons.
II • SR'Pl'T·EJlRNTS
NORTHEAST REGION

Apatano v. united states, District of New Jersey.
This is an FTCA case in which inmate Librado Apatano alleges that
staff at FCI otisville were negligent and caused him to slip and
fallon an icy walkway. At the arbitration hearing, the arbitrator
recommended no award because the plaintiff had failed to establish
liability by the United states.
On
November
7, 1991, the
arbitrator found no negligence under New York state law.
The
plaintiff filed a demand for trial de novo. The Magistrate Judge
urged a settlement for a nuisance value of $3250 at pretrial
conference, and both parties settled for that amount.
Vallade v. United states, Middle District of Pennsylvania.
This is an FTCA case out of USP Lewisburg wherein the plaintiff
Ishmael Vallade, afte~ being escorted to the shower room in
handcuffs, slippedon a piece of soap and fell, resulting in his
back injury. Although the Inmate sought $150,000 in damages, the
case was settled for $250.
Forte v. united states, Eastern

D~strict

of Pennsylvania.

This is the combination of a Federal Tort Claims Act and a Bivens
action. The plaintiff alleged that staff members at FeI Danbury
were liable for his injury and for subsequent medical care afforded
by USMCFP Springfield.
An outside consultant had performed neck
surgery on the plaintiff on September 7, 1988.
On November 7,
1988, the plaintiff had suffered the near collapse of a lung.
A
medical expert advised that the post operative care by the BOP had
not been consistent with community standards.
Specifically, the
5

r

plaintiff had not been immobilized after surgery and had not been
placed in an elevated position. The plaintiff's lying in a flat
position had been the proximate caus.e of the lung injury. The case
was settled in February, 1992 for $50,000.00, with $25,000.00 of
the proceeds attached by the united states to pay plaintiff's
criminal fine.
SOUTH

CENT.RAL

REGION

Rivera v. U.S., Southern District of Texas.
The plaintiff alleged that the medical staff had failed to timely
diagnose and treat an infection of his spine. He was evaluated and
treated at FCI La Tuna, FCI Big spring and FCI Forth Worth. The
plaintiff is now a paraplegic. He was released from custody in
1984 or 1985.
Due to many factual and legal problems with the
case, the Department of Justice has approved a settlement in the
amount of $1.3 million in March, 1992.
MID-ATLANTIC REGION
Naderman v. U.S., Southern District of Indiana.
The inmate alleged" that he had been denied medical treatment for
appendici tis while en route for two days from El Reno to Terre
Haute. The magistrate urged a settlement. There was no evidence
of negligence, but the case was settled for $5000 because the cost
of the trial would have been over $15,000.
Butler v. U.S., Eastern District of Kentucky.
This was an FTCA suit for the loss of an inmate's personal
property. ~he inmate sought damages of $5000 but accepted $400 for
settlement of his claims.
CENTRAL

OFFICE

Doe v. BOP, et al., Northern District of Illinois.
This was a Bivens action brought by an HIV-positive dentist from
MCC Chicago for the BOP's disclosure of the dentist's medical
condition. On March 24, 1992, the parties reached a settlement
resulting in the dismissal of the suit and an insignificant
modification of the BOP's disclosure procedures. In the settlement
agreement, the BOP paid no monetary damages and made no admissions
of liability.

6

III. PENDING LITIGATION
NORTHEAST REGION
perez v. united states, western District of pennsylvania.
This is an FTCA case out of FCI Loretto. On June 1, 1989, inmate
Luis Perez, 36944-066, was sent to an outside doctor for sinus
surgery.
The doctor purposely left a Tefla pad in the inmate's
nose following the surgery. The doctor gave written instructions
for the inmate to return on June 5, 1989. On June 2 and 6, 1989,
the inmate complained of pain and soreness.
The doctor saw the
inmate 4 additional times before making a further evaluation. On
July 29, 1989, an examination revealed the pad in his nose, which
was to be surgically removed that day. Dr. Moore made an entry in
the patient's medical record (CHP) stating that he was at fault for
the inmate's condition. The delay in removing the pad apparently
caused no permanent injury, and, as a result, the damages hav~ been
- limited to pain and suffering. The- plaintiff seeks $500,000 in
damages.
The AUSA sees this case as having a nuisance value of
- about $10,000. Because liability is probable, settlement is being
pursued.
MID-ATLANTIC REGION
Barrv v. Whalen, Eastern District of Virginia.
Former D.C. mayor Marion Barry has filed this claim against five
BOP staff members at Petersburg and one DOJ employee.
The
disciplinary action .taken against the former mayor regarding
allegations of misconduct with a female visitor is the topic of
this suit. Mr. Barry alleges that the staff violated his right to
privacy, and that they were in the wrong when taking disciplinary
action against Mr. Barry. On May 18, 1992, a hearing was held on
our motion to dismiss. We are awaiting the court's ruling.
Peterson v. U.S., Eastern District of Michigan.
A former contract employee at FCI, Milan, alleging that the warden
improperly denied her the right to visit an inmate, filed this
action against the warden and a unit manager. The suit is not only
a Bivens action but also a request for the plaintiff's right to
visit.
The court has yet to ~ule on the plaintiff's and
defendant's motions to dismiss.
SOOTH CENTRAL REGION

·Young v. Meece, Northern District of Texas.
An African-American male has appealed the MSPB decision stating
that he sexually harassed a European-American female.
The
plaintiff contends that the firing was racially motivated.
A
7

hearing was held in this action to set a trial date.
aailes v. united states, Northern

D~strict

of Texas.

This is an FTCA action wherein the plaintiff argues that the
government acted negligently by losing numerous legal papers
belonging to the plaintiff during his transferrals from LEX to BIG
to SPG to FTW. A hearing was held in this action to set a date for
trial.
HORTH CENTRAL REGION

-

I<ikumura v. USA
The plaintiff complained that, while he was away from his cell
during a recreation period, staff members stole commissary items
from his cell.
The staff members deny any involvement in the
inmate/s alleged loss. Trial was held on March 10, 1992, and a
decision is pending.
Sizemore v. Miller
The
plaintiff
alleged
that
staff
members
violated
his
constitutional rights by placing him in a strip cell without any
items of personal comfort for an extended period of time and by
beating him. On March 30, 1992, the trial began and was expected
to last for two weeks.
CENTRAL OFFICE

Horne v. U.S., District of the District of Columbia.
This FTCA action stems from the wrongful death of an inmate who
died from heart disease at FCl Petersburg. Opinions of two cardiac
surgeons convey that the medical care given to Mr. Horne was not up
to community standards.
The Bureau conceded liability and is
contesting the amount of damages. Trial on damages is tentatively
scheduled for April, 1993.
IV. MISCRI,TNlEOUS
WESTERN REGION

INS/Soler issues
"Soler" motions or writs for deportation hearings by alien inmates
continue to increase in the Western Region.
Although Mike Hood
reports that the SCRO is beginning to see these, the volume of
litigation has been unique to the Western Region because of the
Soler decision, which was appealed for rehearing en bane.
This
rehearing has been denied (4/9/92) and we expect petitioners will
start to move for action on the stayed cases. Although the issue
8

one that the BOP can resolve, the .litigation is a concern in
region since the warden is usually the first named defendant.
APproximately 48 new filings occurred in the quarter.
'Henthorn requests

lL S , v. Henthorn, 931 F.2d 29 (9th 1991) requires the united
iates to make a search of law enforcement employee's personnel
tiles for information relating to employee's honesty & veracity
when the employee is to be called by the U.S., and when the defense
=akes a request for review of the file. The AUSA is not required
to personally review the file, the Regional Counsel Personnel
Officer handles the review for BOP employees.
The process for
handling a Henthorn request is the subject of a General Counsel
Memorandum assuring a uniform handling of all requests from AUSAS.
Requests usually include multiple witnesses and a short turn
around time as requests are generally made very close to the trial
date.

u.s.

v. Cruz, Southern District of California.

This case has resulted in a guilty verdict in the second
hostage-taking trial. In order to save Bureau witnesses the trauma
of a second court appearance, the AUSA charged career criminal
statute rather than the actual kidnapping/hostage counts.
Cruz
a sentence of 360 months to life.

9

·

~

.TIGATION - 1992 SECOND QUARTER REPORT
HIT

SET

25

2

0

0

278

33

3

4

1#

49

277

28

0

1

702

2

N/A

494

18

3

0

a

21

7

49

208

47

a

2

7

28

38

N/A

488

25

6

a

6

3

6

1

13

80

8

0

0

a
a

143

31

123

73

194

184

14

7

5702*

ANS

PEN

CLD

1

36

N/A

14

16

47

2

7

8

24

13

34

59

28

2

WXR

87

15

CO

16
371

BIV

LOC

NOM

HC

FTC

MXR

34

18

2

13

NER

53

20

2

SER

49

32

NCR

73

SCR

TOT

OTH

1825

AWD

5000

DEFINITIONS:

#
N/A
LOC
NUM
HC

ANS PEN CLD -

Settlement award sealed by the court.
Not Available - no method of tracking this information
Location
Number of Total Lawsuits Filed in Quarter
Number of Habeas Corpus Actions Filed
Number of FTCA Actions Filed
Number of Bivens Actions Filed
Other Actions Filed
Number of Litigation Reports Completed
pending
Number of Actions Closed
HIT - Number of Hearings or Trials (Narrative analysis follows)
SET - Number of Settlements (Narrative analysis follows)
AWD - Number of Awards
LITIGATION - 1992 SECOND QUARTER REPORT
LOC

NUM

HC

FTC

BIV

OTH

ANS

MXR

42

19

NER

38

SER

HiT

SET

5

11

17

29

16

1

2

13

4

10

11

28

28

3

2

0

46

22

3

17

4

46

30

2

1

70

NCR

65

21

11

28

15

NfA

438

22

3

0

0

SCR

46

29

7

9

10

26

58

60

2

0

0

WXR

27

7

.3

12

4

NfA

466

17

10

4

15771

"0

10

5

1

3

1

17

83

18

2

1

0

34

90

62

146

1302

191

23

10

21241

PEN
N/A

259
N/A

CLD

AWD

5400

I

274

116

IGATION - 1992 SECOND QUARTER REPORT
~

HIT

SET

16

1

2

259

28

3

2

0

46

*

30

2

1

70

15

*

438

22

3

0

0

9

10

26

58

60

2

0

0

3

12

4

*

466

17

10

4

15771

1

3

1

17

83

18

2

1

0

34

90

62

146

191

23

10

CLD

29

*

11

28

17

4

11

28

29

7

2W

7

10

5

OTH

ANS

5

11

17

13

4,

10

46

22

3

NCR

65

21

SCR

46

WXR

co

HC

FTC

MXR

42

19

NER

38

WC

-

PEN

BIV

NOM

~

--

AWn
5400

!-'"

5ER
~

TOT

274

116

~302

21241

LOC - LOCATION
NOM - NUMBER OF TOTAL LAWSUITS FILED .IN QUARTER
HC - NUMBER OF HABEAS CORPUS ACTIONS FILED
FTC - NUMBER OF FTCA ACTIONS FILED
BIV - NUMBER OF BIVENS ACTIONS FILED
- OTHER ACTIONS FILED
- NUMBER OF LITIGATION REPORTS COMPLETED
- PENDING
CLD - NUMBER OF ACTIONS CLOSED
BIT - NUMBER OF HEARINGS OR TRIALS (INCLUDE INFO IN NARRATIVE)
SET - NUMBER OF SETTLEMENTS (INCLUDE INFO IN NARRATIVE)
AWD - NUMBER OF AWARDS (INCLUDE INFO IN NARRATIVE)
GOVERNMENT ACTION AND DATE OF ACTION - (INCLUDE IN NARRATIVE)

LITIGATION

1992 FIRST QUARTER REPORT

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

*

19

2

2

8

7

8

97

8

5

0

0

265

103

30

89

43

119

229

31

5

$82,897

NUM

MXR

32

NER

&

HC

Awe

FTC

LOC

1438

SET

397

$

1992 OUARTERLY LITIGATION REPORT
THIRD QUARTER

I. HEARINGS OR TRIALS
NORTHEAST REGIO}f

Bailey v. United States, Western District of Pennsylvania.
Bailey, a former inmate at FC! Loretto, brought this case to trial
alleging that treatment from the BOP for his heart attack
constituted medical malpractice.
Armed Forces Institute of
Pathology reviewed this case and stated that some of the care
provided was outside acceptable medical practice.
Following, a
trial on April 23, 1992 the judge found the government liable and
awarded damages in the amount of $243,000. However, the plaintiff
requested reconsideration of the award, and the judge increased the
amount to $258,460. No appeal has been taken because there are no
legal grounds upon which to appeal.
Bartsch v.
Appeals.

Federal

Bureau of Prisons,

Third Circuit Court of

This is a Bivens action against former Warden Keohane and
unidentified SIS lieutenants at USP Lewisburg. The plaintiff was
one of four inmates who had requested and was denied protective
custody. In his complaint the plaintiff alleged that the inmate
investigations were not properly conducted.
The district court
granted the motion to dismiss for failure to state a claim. The
case was appealed and argued before the Third Circuit Court of
Appeals on July 9, 1992.
The Court of Appeals recognized that
courts afford prison officials broad discretion when deciding who
is to receive protective custody. No decision has been rendered at
this time.
united states v. Motto, Eastern District of Pennsylvania.
An inmate at FCr Danbury was serving an old law sentence of 13

years.
The sentence was recently imposed after resentencing was
ordered on appeal.
The inmate filed a Rule 35 motion alleging
improper medical care and denial of CCC placement. The inmate was
sent to FMC Rochester, which initially placated the Judge and
caused her to withhold a decision on the Rule 35 motion.
The
inmate returned to FeI Danbury after recei ving treatment for
chronic hepatitis C.
Following a hearing, the court granted the
Rule 35 motion and o~dered the sentence reduced. The inmate was
released on July 31, 1992.

2

KID-ATLANTIC REGION
Barry v. Whalen, Eastern District of Virginia.
The former Washington, D.C. mayor filed this case against five BOP
staff members and one DOJ employee for disciplinary action taken
against Barry for his alleged misconduct with a female visitor.
Barry dismissed Warden Pat Whalen as a defendant prior to the
hearing. The court dismissed all of the remaining defendants, but
has given the plaintiff leave to amend on one issue that the DHO
had determined before the hearing. The court then resolved all of
the other issues in the defendants' favor.
To date no
administrative tort claim has been filed, but an amended complaint
was filed, and we have a motion for summary judgment pending.
Reed v. Braxton, Eastern District of Virginia.
Plaintiff alleged that the BOP had no authority to correct an error
in his sentence computation.
Both the D.C. and federal judges
ordered the plaintiff's two sentences to be consecutive: however,
both the BOP and D.C. computed the sentence from when he arrived in
federal custody. When the error was discovered a year later, the
BOP made a correction and set the starting date of his federal
sentence back.
At the hearing, the district court denied
plaintiff's motion.
He has filed an appeal notice in the Fourth
Circuit.
NORTH CENTRAL REGION
Dune y. united states of America, southern District of Illinois.
In this action, the plaintiff, an inmate at uSP Marion, alleged
that he slipped and fell on ice and snow in a recreation cage on
three separate occasions during December 1989.
An evidentiary
hearing was conducted at the penitentiary on June 4, 1992 and the
judge determined that the inmate failed to prove the elements of
his allegations. The court granted judgment in our favor.
McKoy v. Brennan, western District of Wisconsin.
This action raised the question of BOP's obligations, if any, to
provide an inmate access to state law materials, or to otherwise
provide some form of assistance to federal inmates in state law
cases. The action was dismissed with prejudice on June 10, 1992,
and on July 27, 1992 the court denied plaintiff's motion for
reconsideration.

3

WESTERN REGIOR

u.s.

v. Goetz, Northern District of California.

The court sentenced the defendant to the minimum sentence for
counterfei ting under the 1984 guidelines. It was ordered that time
served in a drug rehabilitation program shall be a condition of
release, and shall be credited toward the service of the sentence.
The court held hearings to determine whether the conditions of the
program are as restrictive as those in the case of Brown v. Rison.
The court has also invited the defendant to appeal to the Ninth
Circuit which could uphold its ruling in Brown.
Grant v. Taylor, Central District of California.
The magistrate held a hearing on May 19 at FPC Boron on the
inmate's allegations that the Warden denied his furlough
application in retaliation for his activities as a "jailhouse
lawyer."
In June, the court issued a ruling and upheld the
Warden's decision, finding that the decision was not "arbitrary or
capricious."
Coupar v. UNleOR, Department of Labor.
Following a hearing, the Administrative Law Judge for the
Department of Labor issued a recommended order that Inmate coupar
is an "employee" for purposes of "whistleblower" protection. The
BOP's position is that federal inmates are not entitled to
protection as a "whistle blower" under CERLCA or CM as they are
not "employees, II and UNlCOR is not an "employer." This is only a
reco~ended
decision which is automatically reviewed by the
Secretary of Labor. The BOP will file an appeal with the Secretary
of Labor.
II. SBTI'T.RIIR!!1T$

SOUTHEAST REGIO.

Cochran v. Southerland. et a1., Northern District of Alabama.
An inmate claimed that he was dismissed from a business office job
at FC! Talladega in retaliation for filing an administrative
remedy.
Because the court denied the government's motion to
dismiss and the rlsk of trial, the case was settled by reinstating
him to his former job and paying him $702 in back wages.
The
plaintiff's attorney reserved the right to bring an action for
attorney's fees against the BOP.

4·

X

,~~I'~
NORTBEAS'l' REGION

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Gaggi v. Lansing I Eastern District of New York.

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This case is based on the FTCA and Bivens.
The plaintiff, the
inmate's estate, alleged wrongful death at MCC New York. The Armed
Forces Institute of Pathology reviewed the case and determined that
the BOP deviated from acceptable medical care.
The case was
settled in May, 1992. The U.S. Attorney's Office has requested
that we not disclose the amount of the settlement because of the
pUblicity surrounding this case.

.1

Perezv. united states, western District of Pennsylvania.
This was an FTCA case out of FCI Loretto. On June 1, 1989, Inmate
Perez was sent for sinus surgery to an outside doctor. The doctor
purposely left a Tefla pad in Perez's nose for the institution
physician to remove at a later date. The pad was not removed as
instructed. Perez requested $500,000 in damages. The plaintiff
had no permanent injury; therefore, damages were limited to pain
and suffering. The case was settled for $12,000.
Coa-Pena v. United States, Middle District of Pennsylvania.
This FTCA case was filed by Inmate Coa-Pena at USP Lewisburg
alleging that staff members lost some of his property on transfer
from FC! Ray Brook to USP Lewisburg.
Rather than pursue the
requested $431.60 in damages, USP Lewisburg Paralegal Jeff Fromm
convinced Coa-Pena to settle for six pairs of confiscated sneakers.
Moore v. united states, District of Connecticut.
inmate brought a FTCA case for property allegedly worth $300
which was lost in transit from FC! Danbury to FMC Rochester. The
case was settled for $200 and three pairs of confiscated sneakers.

An

Worthington v. Bureau of Prisons, southern District of New York.
Former Inmate Robert Worthington alleged that staff members gave
him improper medical treatment at Fcr otisville in this FTCA case.
Worthington arrived at Fcr otisville on January 8, 1987 with
advanced glaucoma in his left eye, and he lost vision in that eye
,later that year.
Our medical expert does not think that the blindness in the eye was
caused by the plaintiff's medical treatment by the BOP. However,
even in a favorable scenario, our expert believes that the BOP
ophthal~ologist gave Worthington less than
optimal follow up
treatment.
BOP's main defense at trial is expected to be
causation. This argument is that the blindness was inevitable and
was not the result of BOP negligence. The court has requested that
settlement be explored.
We will probably support a reasonable
5

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settlement, given the permanent injury and the lack of optimal
care. No settlement figures have been presented at this time.
NORTH CENTRAL REGIOR

Campbell v. U.S.A., Southern District of Illinois.
The plaintiff alleges that subsequent to his transfer to USP Marion
from a state facility his television was packed and remailed by
Marion staff in a negligent manner causing the television to be
damaged in transit.
There is no question the television was in good working condition
at USP Marion.
In doubt is the manner in manner in which it was
packed, and the treatment of the package received while in the
possession of the U.S. Postal Service. The action was settled by
the AUSA for $65.00 on July 2, 1992.
.
Abodeely et ale v. united states v. st. Luke's Hospital, District
of Minnesota.
The plaintiffs in this action, a former inmate at FPC Duluth and
his wife, alleged that the medical staff had acted negligently in
delaying transportation to the hospital, which resulted in
permanent injury to Abodeely's heart. The damages sought totalled
$850,000.
The government represented to the court that certain
defendants were employed by the government at the time the alleged
tort occurred.
The government later determined that those
defendants were employees of st. Luke's Hospital.
However, the
court would not allow the government to amend its answer because
this would prejudice the plaintiffs, who could no longer sue the
individuals since the statute of limitations had run. A compromise
and settlement was reached for $45,000 in June, 1992. The united
states and St. Luke's Hospital split this amount and each paid
$22 ,500.
The individuals inyol ved in this case are now BOP
employees.
SOOTH CENTRAL REGIOR

Lamb y. Barr, Western District of Texas.
African-American female
alleging that staff members
against her.
Both parties
Agreement in April 1992. The
a promotion to GS-11. .
An

at La Tuna brought an EEO action
sexually and racially discriminated
signed a stipulation for Compromise
settlement awards Ks. Lamb $5,000 and

6

•

III.

CASES OF IH'l'EREST

MID-ATLANTIC REGION
Thomas v. Lewis, Fourth Circuit Court of Appeals.
On May 5, 1992, the Fourth Circuit issued a favorable opinion for
the Bureau, and reversed the district court's decision.
The BOP
had appealed the district judge's order granting credit against the
federal sentence for time spent in state custody on an unrelated
sentence.
NORTHEAST REGION
Forte v. United states. et a1., Eastern District of Pennsylvania.
Although this case was listed as a settled case in the last
quarterly report, former inmate Forte has requested to withdraw his
prior agreement to settle this case.
In February, 1992, the
parties had agreed to settle for $50,000 with $25,000 of the
proceeds attached by United states to pay the inmate's criminal
fine.
However, when his attorney presented the settlement
stipulation to Forte for signature, Forte refused to sign,
apparently unhappy with the settlement of $25,000 and with the
attorney I s fee of $12,500.
The AUSA is attempting to compel
settlement under agreed terms. On July 13, 1992, U.s. Magistrate
Judge Angell held a conference in an attempt to resolve the
settlement, and ordered an evidentiary hearing for July 30, 1992
unless Forte agrees to the same terms.
santos v. united states. et al., Second Circuit Court of Appeals.
Former Inmate Ana santos brought an FTCA and Bivens action against
former MCC Warden Doug Lansing and two former MCC staff members.
One of the staff member defendants was a correctional officer who
was denied representation by the U.S. Attorney, and the other was
a physician1s assistant who has not yet been served or requested
representation. santos alleges that the correctional officer raped
her in July 1987, and that she requested an abortion from the PA in
September 1987. The PA ordered a pregnancy test and allegedly told
Santos not to say anything about the pregnancy because santos could
be punished.
santos was transferred to theFCI Alderson on
September 30, 1987, released from custody on March 31, 1988, and
had a son on May 3, 1988. The officer admitted to having sex with
the inmate but denied it was a rape.
On June 16, 1992, the court denied our motion to dismiss Doug
Lansing from the Bivens action based on qualified immunity.
The
court held that plaintiff's rights, as alleged in the complaint,
were clearly. -established at the time the events complained of
occurred. The U.S. Attorney1s office is appealing this decision to
the Second Circuit Court of Appeals.
The U.S. Solicitor General
7

authorized an appeal of the qualified immunity issue in August,
1992.
The U.S. Attorney's office is assigned responsibility for
handling the appeal.
SOUTH CENTRAL REGION

West v. Clark, Western District of Tennessee.
This is a Bivens action out of FCI Memphis in which the plaintiff
has sought injunctive relief, as well as compensatory and punitive
damages in the amount of $20,000, from a defendant who allegedly
conducted himself in a racially offensive manner. The plaintiff's
allegations are essentially correct.
The plaintiff, an AfricanAmerican, alleges that the defendant, a European-American and
quality assurance manager at UNICOR, handed him a racially
inflammatory document, and in doing so, laughed about the matter.
The staff member did this in the presence of the plaintiff as well
as other staff members and inmates.
The Bureau of Prisons has
recommended against Department of Justice representation for the
staff member, and the Department has not yet rendered a decision.
Disciplinary action was taken against the employee, and he received
a reprimand.
Goggin v. United States, Western District of Tennessee.
This is an FTCA action out of FCI Memphis wherein the plaintiff has
sought $375,000 in damages and attorneys fees as compensation for
alleged medical malpractice. Specifically, the plaintiff alleges
that medical staff members did not accurately diagnose an ankle
injury which resulted in permanent damage as well as in unnecessary
pain and suffering.
The case is in the discovery stage.
It is
possible that the court may rule against the United States, as the
record indicates there is merit to the plaintiff's complaint.
WESTERN REGION
Mills v. Taylor, Ninth Circuit Court of Appeals.
The panel of judges have applied Brown v. Rison jail credit in this
case, thus granting dual credit to a loth Circuit sentence. Appeal
will be taken and the Department of Justice will be handling the
appeal.
Grady v. Crabtree, Ninth Circuit Court of Appeals.
The Ninth Circuit overruled the district court's decision
dismissing a habeas petition for "jail credit" and expanded Brown
v. Rison to include time spent in a halfway house as a condition of
probation upon commitment for probation violation.
The U.S.
Attorney for . the District of Oregon and the Criminal Division of
the DOJ will support an appeal.
8

u .s. v. Anderson,

Northern District of California.

The court found Defendant Anderson not guilty by reason of insanity
( 18 U.S.C. 4243), and has conditionally released him to the custody
of his sister along with supervision by the U.S. Probation Office.
The court also ordered that the costs of medical/psychiatric care
be paid by the Attorney General / BOP.
Although the U.S. Attorney
f iled an appeal, it will be withdrawn. This decision was based on
the determination that placement will be cost effective in spite of
all the administrative hurtles. Moreover, the risk of an adverse
decision from the Ninth Circuit is considered too great to pursue
the issue.
u .S.v Checchini, Ninth Circuit Court of Appeals.
The Plaintiff spent 88 days under house arrest in Italy pending the
outcome of extradition proceedings to the United States.
At his
trial, the district court denied plaintiff's claim that he was
entitled to credit against his sentence for the days spent under
house arrest in Italy. On appeal, the court held that according to
Uni ted States v. Wilson, the Attorney General, rather than the
district court, is vested with the authority to grant credit for
time spent under house arrest.
This is the only Ninth Circuit
decision to acknowledge or apply Wilson.
u.S. v. Cheryl Graham, District of Arizona.
An FCI Safford employee, sentenced for her guilty plea to Theft of
Government Property, was committed to custody for 16 months and
ordered to pay restitution of $66,795.32. This amount was equal to
the embezzled institution funds.
u.S. v. Bravo, Southern District of California.
The court sentenced Inmate Bravo to life without possibility of
parole because he was an armed career criminal. Bravo was one of
two inmates who took a correctional officer hostage at MCC San
Diego in December 1990. Co-defendant Alvarez was sentenced earlier
this year.
Martin & Chronicle v. BOP, Ninth Circuit Court of Appeals.
The appellants, Martin and the San Francisco Chronicle, have each
filed a petition for rehearing !ill ~ with the Circuit.
We
anticipate a response from the court shortly.

9

iTIGATIOH - 1992 THIRD QUARTER REPORT

FTC

BIV

OTB

18

2

13

53

20

2

SER

49

32

2

NCR

73

24

SCR

59

WXR

ANS

PEN

CLD

HIT

1

36

N/A

25

14

16

47

278

7

8

49

13

34

2

28

2

21

7

87

15

7

28

38

CO

16

6

3

6

TOT

371

143

123

LOC

NUM

MXR

34

NER

HC

31

SET

AWD

2

0

0

33

3

4

#

277

28

0

1

702

N/A

494

18

3

0

0

49

208

47

0

2

N/A

488

25

60

0

0

1

13

80

8

0

0

0

73

194

1825

184

14

7

5000

5702#

DEFINITIONS

#

- Settlement award sealed by the court.

N/A - Not Available - no method of tracking this information
LOC
NUM
C
'S

-

Location
Number of Total Lawsuits Filed in Quarter
Number of Habeas corpus Actions Filed
Number of FTCA Actions Filed
~lV
Number of Bivens Actions Filed
OTH
Other Actions Filed
ANS
Number of Litigation Reports Completed
PEN
Pending
CLD
Number of Actions Closed
HIT - Number of Hearings or Trials (Narrative analysis follows)
SET - Number of Settlements (Narrative analysis follows)
Awe - Amount of Awards
LITIGATION ANALYSIS
There was an increase in the number of lawsuits filed in the third quarter,
with 371 filed in the third quarter and 274 filed in the second -quarter. The
amount of monetary damages due to settlement or award increased this quarter
over the second quarter.
However, the total amount of money awarded this
quarter cannot be calculated because a settlement out of the Northeast Region
has been sealed by the court.

1992 LITIGATION QUARTERLY REPORT
FOURTH QUARTER
I.

HEARINGS OR TRIALS

CENTRAL OFFICE
Cameron v. Thornburgh. et al., District of Columbia
On September 24, 1992, oral arguments were heard in the case of
Cameron v. Thornburgh. et al., Case No. 91-5055, D.C. Cir.
The
case is a Bivens action against BOP staff for allegedly failing to
provide inmate Cameron with a low-salt diet, as prescribed by a
physician. The district court granted qualified immunity to the
defendants. Inmate Cameron appealed that ruling.
Kimberlin v. J. Michael Quinlan. et al., u.S. Court of Appeals for
the District of Columbia
On october 16, 1992, oral argument was held before the u.s. Court
of Appeals for the D.C. Circuit regarding the District Court's
failure to dismiss the Bivens claims in this action.
The
government has filed a renewed motion for summary judgment
regarding Kimberlin's allegations of illegal wiretapping in
violation of Title III. Discovery continues in the District Court
on the claims against the united States, which included the
deposition of former Attorney General Dick Thornburgh on October 2,
1991. In early October, Senator Carl Levin issued a report which
concluded that inmate Kimberlin had been the subject of political
retaliation. The Inspector General has initiated an investigation
into Kimberlin's allegations, and both the Bureau of Prisons and
the Torts Branch are cooperating in that investigation.
MID-ATLANTIC REGIOR
Evans v. captain Wolfe. et al.,

Southern District of Indiana

This case was a Bivens/FTCA claim in which the plaintiff alleged
that he was assaulted by BOP staff after the he had assaulted a
female psychologist. Following a two-day trial, the jury returned
a verdict in favor of the defendants and the court entered
judgement in favor of the United States on the tort claim. In a
post-trial order dated October 14, 1992, the court denied a motion
for retrial and imposed sanctions on the plaintiff in the amount of
$470.12. This sanction was imposed because the plaintiff refused
to answer questions· during a deposition and failed to provide
wri tten responses pursuant to a court order.
If the plaintiff
1

fails to pay within 21 days, the government may move to attach
plaintiff's inmate account.
Peterson and Balistreri v. Bogan, Eastern District of

Michiga~

This case involves a former contract teacher's request for
visitation and authorization to marry an FCI Milan inmate.
The
warden denied the request due to serious security concerns.
Plaintiffs, the inmate and former teacher, filed a Request for
Preliminary Injunction.
The magistrate submitted a report on
August 6, 1992, recommending that plaintiffs be allowed to marry at
FCI, Milan and that the former employee be allowed to visit. Judge
Woods issued an order accepting the magistrate's report on
September 30, 1992, granting Plaintiffs' Motion for Preliminary
Injunction. The government filed a motion to stay the preliminary
injunction, which is pending before the court.

u.s.

v. Daniels, Northern District of West Virginia

On July 7, 1992, inmate Richard Daniels was convicted by a federal
jury in the Northern District of West Virginia of assault with a
dangerous weapon arising from an inmate on inmate assault at FCI,
Morgantown.

u.s.

v. Ceballas, Eastern District of Virginia

On July 31, 1992 a federal court convicted inmate Ceballas of
assault on a federal employee. The incident occurred in February
1992, when inmate Ceballas attacked James Michael Hodge at FCI,
Petersburg.
Two inmates testified for the government.
Ceballas
was sentenced to 36 months consecutive to any sentence now being
served.

u.s.

v. Gallo, Eastern District of Kentucky

Inmate Lourdes Gallo, a 32 year old female Mariel Cuban detainee,
was found guilty after a criminal trial in a prosecution for
assault on a federal employee. The inmate punched a PHS nurse in
the head causing bruises. The incident occurred at FMC Lexington.
On september 24, 1992 the district court imposed a four month
sentence.
NORTHEAST REGIOR

Bartsch v.
Appeals

Federal

Bureau of Prisons,

Third Circuit Court of

This was a Bivens action against former Warden Keohane and
unidentified SIS Lieutenants at USP Lewisburg. An attorney filed
this action on behalf of four inmates who had requested and were
2

denied protective custody.
The district court granted the
government's motion to dismiss for failure to state a claim. The
case was argued before the Court of Appeals on July 9, 1992. On
August 10, 1992, the Third Circuit affirmed the dismissal of the
complaint for failure to state a claim.
The Court of Appeals
focused on the allegations of each of the four inmates in the
complaint. The complaint alleged that the investigations were not
properly conducted.
The Court of Appeals recognized the broad
discretion afforded to prison officials in deciding who will
receive protective custody.
The Court of Appeals applied a
deliberate indifference standard and found that the facts alleged
in complaint did not state a constitutional violation.
united states v. Carter, Eastern District of Pennsylvania
At a July 28, 1992 sentencing hearing the defendant argued for a
downward departure from the sentencing guidelines because the
Bureau of Prisons was not able to provide adequate medical care.
The defendant, who was serving a separate federal sentence, had
tested HIV positive. The judge rejected the defendant's arguments
concerning Bureau medical care and sentenced the defendant to the
normal range of the guidelines.
United states v. Gambina, Middle District of Pennsylvania
This case involves the criminal prosecution of inmate Ralph
Gambina, who is charged with plotting to escape from USP Lewisburg
by kidnapping Warden Brennan and his family. The inmate was first
housed at FCI otisville. After the charges surfaced, the inmate
was transferred to USP Marion. The judge issued a writ of habeas
corpus ad prosequendum to bring the inmate to trial.
The judge
ordered the u.s. Marshal to bring the inmate closer to the court
house located in Williamsport,
Pennsylvania,
so he could
communicate with the Federal Public Defender.
The Bureau of
Prisons decided to permit the U.S. Marshal to place the inmate at
FCI Schuylkill. The Public Defender moved the court to order the
inmate to be housed at USP Lewisburg. A hearing was held on July
28, 1992, in which USP Lewisburg Associate Warden Don Romine
testified concerning the decision not to place the inmate at USP
Lewisburg. Judge McClure denied the Public Defender's motion after
the hearing. The judge held that FCI Schuylkill was of sufficient
proximity for the attorney to meet with the inmate. The court did
not reach jurisdictional arguments addressing the court's ability
to designate the place of incarceration.
There were no reports of pending trials or hearings received from
institutions within these regions: Southeast, North Central, South
Central and Western.
3

II. SETTLEMENTS
A. PROPERTY SETTLEMENTS

MID-ATLANTIC REGION

Mears V. U.S., Northern District of West Virginia
This case involves a claim under the FTCA for lost property. The
plaintiff alleged loss of property at FCI, Petersburg in september
of 1990.
A stipulated settlement in the amount of $126.98 was
reached on September 21, 1992.
NORTHEAST REGIOR

Buh! v. Hershberger, Southern District of New York
In this FTCA case, an inmate at USP Marion alleged BOP
responsibility for the loss of his sneakers while at FCI otisville.
The inmate requested damages of $75.00. The court strongly urged
the Assistant u. S. Attorney to settle the case.
The inmate
rejected a settlement offer of $58.00. The inmate settled for one
pair of sneakers.
Khalig v. United states, Eastern District of Pennsylvania
In this FTCA case, an inmate at FCI Schuylkill alleged that the BOP
lost his property during his transfer from MCC New York to FCI
Schuykill. The Northeast Regional Office concluded that the box of
property was mailed to the wrong address. The only remaining issue
left was the value of the property. The inmate claimed a value of
$855.00 for lost clothes and a pair of eyeglasses. He rejected an
offer to settle for $325.00. The Assistant u.S. Attorney arranged
for two telephone conferences on September 3 and September 21, 1992
wi th the inmate, the magistrate, and a BOP attorney.
The
magistrate persuaded the inmate to settle for $225.00 and a pair of
government issued eyeglasses.
SOUTH CENTRAL REGION
Hernandez y. united States, Eastern District of Texas
The plaintiff alleged that staff at FCI Texarkana lost legal papers
valued at approximately $5,000.00. The BOP initially offered the
plaintiff $25.00 in response to Mr. Hernandez' administrative tort
claim, but at trial BOP determined $250.00 to be a more equitable
settlement offer. A $250.00 dollar out of court settlement was
agreed upon by all parties, and the case was dismissed on July 9,
1992.

4

B. OTHER SETTLEMENTS

NORTHEAST REGION
Sanchez v. united states, Southern District of New York
This complaint was filed as a combination Bivens, Federal Tort
Claims Act, and 42 U.S.C. §1983 claim against New York City
officials and the united states. On June 28, 1990, the inmate, a
state prisoner who was in the custody of New York City authorities
at Rikers Island, was produced at MCC New York via a federal writ
of habeas corpus ad testificandum to testify in federal court. The
inmate finished testifying on June 29, 1990 and the federal judge
ordered the state officials to take the inmate back to MCC New
York. The inmate remained at MCC New York until August 17, 1990.
The inmate alleged in his.complaint that he was held 45 days beyond
the date of his parole. The MCC staff made numerous contacts with
New York city officials in an attempt to return the inmate to
Rikers Island. The case manager at MCC New York confirmed that the
inmate had received a parole date, however, the parole could not
take effect until he was returned to New York City custody. While
the New York City officials were primarily at fault, the united
states was partly responsible. The case against the united states
settled for $3,000; the case against the New York City officials
settled for $25,000.
Friedman y. Meese, District of Connecticut
This case was a class action suit by Yale Legal Services, on behalf
of FCI Danbury inmates, protesting exposure to asbestos at FCI
Danbury. A joint motion to dismiss was granted by the district
judge on August 11, 1992, ending this prolonged litigation. (This
case was first filed in 1987 by an inmate who alleged that he was
exposed to asbestos as he was forced to work wi th tar which
contained asbestos.)
A voluntary stipulation of dismissal was
executed by both parties.
The stipulation invol ved no money
damages. The Bureau agreed to continue to do what it had already
planned to do, which is to abate all asbestos from FCl Danbury.
The stipulation also included a confirmation of our written policy
stating that inmates are not permitted to remove asbestos as part
of their work.

5

III.

CASES OF INTEREST

NORTH CENTRAL REGION

u.s.

v.

Michael Gurgone, Northern District of Illinois

Inmate Gurgone is near the end of a seven year term for attempted
robbery. He has a long criminal history of robbery, burglary, and
weapon possession.
Further, he is currently not eligible for
furloughs or CTC placement.
On September 24, 1992, Judge
Leinenweber ordered the BOP to interrupt inmate Gurgone's sentence
of imprisonment for four days in order to allow his attendance at
his son's wedding and reception dinner. The Bureau objected to the
inmate's release for the following reasons:
1) separatees resided
in the community where the inmate was to be released, 2) he did not
qualify for furlough, ~) his release date was not until June, 1993,
and 4) the court was without authority to order a temporary release
of the inmate under the conditions and reasons present in this
case.
On September 30, 1992, the judge rescinded his Order
interrupting inmate Gurgone's sentence.
Kikumura

v.

Turner,

Southern District of Illinois

The plaintiff, an inmate at USP Marion and a member.of the Japanese
Red Army, alleges that USP Marion's rejection of two Japanese books
sent to him violates his First and Eighth Amendment rights.
BOP
staff at Marion followed an internal regulation that requires
foreign publications to be sent directly from the publisher.
Currently the institution is in the process of re-drafting its
institution supplement (internal regulations) to address the
receipt of foreign publications.
The proposed supplement will
discuss the qualifications to receive such materials and the
acceptable sources for the publications.
The current national
rules on inmate correspondence, found at 28 CFR §540.10, do not
address the issue of whether an inmate who does not comprehend
English may receive foreign language publications.
Addi tionally , staff are attempting to assess the inmate's true
English reading comprehension skills to determine if his receipt of
foreign language texts is necessary.
NORTHEAST REGIOR

Santos v. united States. et al., Southern District of New York
This FTCA/Bl.Vens case brought by former inmate Ana santos was
discussed in last quarter's report.
This Bivens lawsuit names
former warden Doug Lansing, a former correctional officer (who was
denied representation by U.S. Attorney) and a physician's assistant
6

(who has not yet been served or requested u.s. representation).
All the defendants were employed at MCC New York at the time the
allegations occurred. santos alleged that the correctional officer
raped her in July 1987 and that she requested an abortion from the
physician's assistant in september 1987. The physician's assistant
ordered a pregnancy test and allegedly told santos not to say
anything because she could get in trouble. Santos was transferred
to FCI Alderson on September 30, 1987, released from custody on
March 31, 1988, and had a son on May 3, 1988. The officer admitted
having sex with the inmate, but denied it was rape.
On June 16, 1992, the judge denied the Northeast Regional Office's
motion to dismiss Doug Lansing from the Bivens action. The court
held that the complaint alleged a cause of action against Mr.
Lansing for failing to adequately train and supervise staff at MCC
New York, and for promoting an atmosphere where the violation of
inmates' abortion rights could occur. The court also held that an
inmate's constitutional right to an abortion is clearly
established. The u.s. Attorney's office has requested a rehearing
with the District Court. On August 3, 1992, the Solicitor General
granted the Bureau's request to file for an interlocutory appeal to
the Second Circuit. A notice of appeal has been filed.
NORTH CENTRAL

REGIOR

Robert James Howard v. FeI Englewood, District of Colorado
Inmate Howard alleged a violation of his constitutional right to
practice religion when he was not allowed to practice satanism at
FCI Englewood.
In particular, Howard wishes to introduce items
which he believes are necessary to his religious practices into the
institution.
These include skulls, dead animals, Claws,
appendages, and other similar articles. A motion to dismiss has
been filed and a ruling is pending. The Department of the Navy
also has an interest in this case.
It seems that Satanism
practiced on-board ship is an occasional problem for them.
Farmer v. U.S.A., western District of Wisconsin;
Farmer v. Mothersead. et al., Western District of Missouri
Farmer v. Haas. et al., Western District of Wisconsin
These cases have been appealed by plaintiff to the Seventh Circuit
after the government prevailed at trial. In all of these cases,
Farmer complains of the Bureau of Prisons' alleged failure to
accommodate his transsexualism. In particular, he seeks surgery
and 'estrogen treatment. Inmate Farmer is not satisfied with the
psychiatric treatment he is receiving. Litigation of this case is
interesting because of the procedural issues and the atypical
subject matter. Farmer has filed essentially the same claim in two
different states (Wisconsin and Missouri) and in two types of
actions (two cases are Bivens actions and one is a FTCA claim).
The Assistant U. S. Attorney is attempting to have Farmer's claims
7

concerning FCI Oxford dismissed as res judicata pending a favorable
outcome of the appeal. Consolidation of the wisconsin and Missouri
case might also be attempted.
SOUTH CER'l'RAL REGION
Harper v. Clark, Western District of Tennessee
This is a Bivens action by an inmate against Warden Clark and other
Inmate Systems personnel at FCI Memphis, Tennessee. The plaintiff
has alleged that his sentences were improperly applied by the
Bureau of Prisons. Apparently, the inmate was sentenced by the
court without any indication whether his second sentence was to run
concurrent or consecutive to his first sentence. Based on Bureau
of Prisons' policy, the defendants interpreted the plaintiff's
sentence as consecutive because the court was silent as to this
issue. Approximately one year later, the sentencing judge ruled
that the sentences were to be served concurrently. Nevertheless,
because of Bureau of Prisons policy, the defendants continued to
compute inmate Harper's sentences as consecutive. The government
filed a Motion for Summary Judgment based upon qualified immunity.
On September 24, 1992, the court issued an order denying the
defendant's motion.
However, the court pointed out that the
defendants should have appealed the court's order that they
believed to be illegal, and not simply ignored it. The order was
not appealed because the time for appeal had passed by the time the
Bureau learned of the court's order.
veteto v. Ralph. et al., Western District of Oklahoma
This is a Bivens action against several Bureau of Prisons
employees, including Herbert Patterson, a Correctional Officer. In
his lawsuit, the plaintiff has alleged that he was physically and
verbally assaulted at FCI El Reno in December 1989 and in September
1990. This case is significant in that there appears to be merit
to the plaintiff's complaint as it pertains to one of the named
defendants. An investigation into this matter by the Office of
Internal Affairs found that defendant Herbert Patterson did assault
Mr. Veteto as alleged.
Based on this investigation, the South
Central Regional Office did not recommend representation for Mr.
Patterson from the Department of Justice, and his request was
denied ~y Main Justice on September 24, 1992. Mr. Patterson was
reduced in rank from a GS 8 to a GS 7 and suspended for 30 days as
a result.

8

WESTERN REGION

Mills v. Taylor, Ninth Circuit Court of Appeals
This case involves a published Ninth Circuit Court of Appeals
decision granting prior custody credit under 18 U.S.C. § 3585 for
time spent in a half way house as a condition of release on bond.
The government's Motion for Reconsideration with Request for
Rehearing en banc was denied. Currently only inmates sentenced in
the Ninth Circuit receive prior custody credit for time in
community programs as a condition of release. The Bureau and DOJ
interpret the applicable sentencing statute, 18 U.S.C. § 3585, as
prohibi ting the award of such credit. The Bureau will recommend to
the Solicitor General the filling of a writ of certiorari to the
Supreme Court.
Tyree v. Lum and Taylor, Central District of California
This is a Bivens case in which the plaintiff claims money damages
for the time that he was held beyond the date of his release. By
way of background, the plaintiff previously won a case against
Warden Larry Taylor for an award of prior custody credit for the
time he spent in a community treatment center. The plaintiff won
his case by citing Ninth Circuit caselaw, even though he was
sentenced in the Tenth Circuit, which has caselaw specifically
preventing the award of such credit.
Because the plaintiff was
successful in this prior suit and is considered a "late release" as
a result of the Ninth Circuit decision, he now sues Warden Taylor
and AUSA Jennifer Lum for money damages. Tyree previously filed a
FTCA action for damages due to his late release and it was
dismissed on summary judgment.

9

LITIGATION - 1992 FOURTH QUARTER REPORT
AWD

H/T

SET

32

3

1

0

322

30

5

4

0

51

N/A

37

2

0

0

4

N/A

513

34

0

0

0

16

5

53

239

50

0

2

0

7

21

5

N/A

N/A

12

6

0

0

4

1

6

2

19

60

10

1

0

0

150
TOT
352
DEFINITIONS •

34

117

48

186

205

17

7

0

BIV

OTH

ANS

PEN

CLD

1

15

5

N/A

277

22

5

23

21

63

51

29

0

16

6

NCR

54

22

8

20

SCR

72

39

12

WXR

60

27

CO

13

FTC

HC

LOC

NUM

MXR

28

7

NER

74

SER

.

#
N/A
LOC
NUM
HC
FTS
BIV
OTH
ANS
PEN
CLD
H/T
SET
AWD

-

1,411

Settlement award sealed by the court.
Not Available - no method of tracking this information
Location
Number of Total Lawsuits Filed in Quarter
Number of Habeas corpus Actions Filed
Number of FTCA Actions Filed
Number of Bivens Actions Filed
Other Actions Filed
Number of Litigation Reports Completed
pending
Number of Actions Closed
Number of Hearings or Trials (Narrative analysis follows)
Number of Settlements (Narrative analysis follows)
Number of Awards

LITIGATION - 1992 THIRD QUARTER REPORT

e

LOC

NUM

HC

FTC

BIV

OTH

MXR

34

18

2

13

NER

53

20

2

SER

49

32

NCR

73

SCR

ANS

PEN

CLD

1

36

N/A

14

16

47

2

7

8

24

13

34

59

28

2

WXR

87

15

CO

16

6

TOT

371

143

H/T

SET

25

2

0

0

278

33

3

4

1#

49

277

28

0

1

702

2

N/A

494

18

3

0

0

21

7

49

208

47

0

2

7

28

38

N/A

488

25

6

0

0

3

6

1

13

80

8

0

0

0

31

123

73

194

184

14

7

5702*

1825

AWD

5000

'.

LITIGATION - 1992 FOURTH QUARTER REPORT
LOC

NUM

MXR

28

NER

FTC

BIV

OTH

ANS

PEN

CLD

HIT

7

1

15

5

N/A

277

32

74

22

5

23

21

63

322

SER

51

29

0

16

6

51

NCR

54

22

8

20

4

SCR

72

39

12

16

WXR

60

27

7

CO

13

4

352

150

TOT

HC

SET

AWD

3

1

0

30

5

4

0

N/A

37

'2

0

0

N/A

513

34

0

0

0

5

53

239

50

0

2

0

21

5

N/A

N/A

12

6

0

0

1

6

2

19

60

10

1

0

0

34

117

48

186

205

17

7

0

1,411

DEFINITIONS

NIA - Not Available - no method of tracking this information.
LOC
NUM
HC
FTS
BIV
OTH
ANS
PEN
CLD

-

Location
Number of Total Lawsuits Filed in Quarter
Number of Habeas Corpus Actions Filed
Number of FTCA Actions Filed
Number of Bivens Actions Filed
other Actions Filed
Number of Litigation Reports Completed
pending
Number of Actions Closed
HIT - Number of Hearings or Trials (Narrative analysis follows)
SET - Number of Settlements (Narrative analysis follows)
AWD - Amount of Awards
LITIGATION ANALYSIS
There was a slight decrease in the number of lawsuits filed in the
fourth quarter, with 352 filed in the fourth quarter and 371 filed
in the third quarter.
Overall, the number of lawsuits filed from
the first quarter to the fourth quarter of ·FY 92 increased, with
265 filed in the first quarter, 274 in the second quarter, 371 in
the third quarter, and 352 in the fourth quarter.
The amount of
mon~tary damages awarded in the fourth quarter was zero.

 

 

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