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Fbop Mxr Monthly Report 1998nov

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UNITED STATES GOVERNMENT

)

memorandum
DATE:

December

10,

1998Mid-Atlamic Regional Office. Annapolis Junction. MD 20701

ATrNOF:

Bill Burlington, Regional Counsel
Mid-Atlantic Region

SllBJECT:

November

REPLY TO

TO:

ATT!IO:

1998

Monthly Report

Wallace H. Cheney, General Counsel
Amy Whalen Risley, Executive Assistant

ADMINISTRATIVE REMEDIES

JAN FEB

MAR APR

MAY JUN JUL

Received
Answered

135
143

229
178

168
174

TORT CLAIMS

JAN FEB

187
181

MAR APR

230 195 179
68
54
75
91
71
58
195 179 190
0
0
0
) .. .,t to C.O. with recommended settlement memo

# Pending
# Received
# Answered
# Pending
It Over Six Month

RIVACY

JAN FEB

13
43
34
# Answered
23
# Pending
1
# Over 20 Working Days
*File has been requested from archives.

# Pending
# Received

LITIGATION
Cases Pending
New Cases Received
Habeas Corpus
Bivens
FlCA
Other
Cases Closed
Cases Pending
Lit Reports Completed
Cases/Hearings or Trials
Settlements/Awards
$ Settlements/Awards
., Thousands)
, t 3cted figures

23
24
34
12
2*
* *One

JAN FEB

160
201

190
62
60
191
0

MAR APR

214
156

MAY JUN JUL
191
42
38
195
0

195
49
83
154
1

154
45
67
138
0

MAY JUN JUL

24
12
23
54
54
36
41
42
53
23
18
24
0
4**
0
file requested from

MAR APR

200
194

o·

o

)

3253

OCT NOV DEC

225
195

212
268

191
254

AUG SEP
138
47
30
149
1

AUG SEP

261
13
7
5
1
0
12
261
21
0
0
0

261
36
11
3
2
20
25
272
7
0
0
0

179
170

OCT NOV DEC

149 166
53
59
43
40
166 171
1
1

18
35
26
30
47
52
52
54
32
57
43
56
35
30
26
37
2·
3*
1*
2
archives; another request

MAY JUN JUL

338 331
329 314 273
7
11
16
16*
4*
4
4
7
6
3
5·
1
5
6
1
1
2
2
0
1
0
1
3
2
14
19
28
21
62
331
329 314 273 261
15
12
13
14
8
2
2
1
4
0
1
1
2
2
0
$13.9+ $9.0
$147.7 $52.0

AUG SEP

171
68
34
188
1*

OCT NOV DEC
37
19
32
55
36
50
19
38
1*
1*
archives sent wrong file.

AUG SEP

OCT NOV DEC

272
17
5
5
3
4
10
281
8
1
0
0

284
18
10
3
2
3
15
287
19
0
0
0

281
17
8
3
1

5
15
284
12
0
0
0

287
12
8
1
1
2
3
296
12
1
0
0

Page 2
MXR Monthly Report

)

)

ITEMS OF INTEREST, PERSONAL LEAVE, BUSINESS TRIPS, MOVES, ETC.

SITUATION OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS
WASTE SITES, ETC.:
Execution Date for Paul Hammer - We learned this week that
Paul Hammer had recently indicated that he intends to abandon
the appeal which he recently filed.
Inmate Hammer has
previously been given a January 14, 1999, execution date by
Judge Muir . This date was stayed by Hammer's initial decision
to file an appeal.
FMC Lexington - On November 16,
antin compassionate rele
_ _ On November 19,
Lex ng on staff, was flown by
al air charter to Fl o t·ida.
where he will reside in a state nursing home. _ w ' : ' : l be
on ten years of supervised release.
Much cred~lI~ t o FM C
Lexington staff for facilitating the release process.
particularly Chief Social Worker Darrell Lauer, who
coordinated the release plans for .......

)

Fcr Milan - The institution attorney was contacted 0 .:
December 3, 1998, by an attorney at Main Justice,
Environmental Law Division, concerning a superfund Sl:~ : 11
Northeastern Indiana, and possible waste that was gel l~ ld~ed b~ '
FCI Milan UNICOR many years ago.
The attorney was n-:,.·, ·,·ed t c
the Commercial Law Branch, OGC , as they have coordina: ,'."
issues arising from superfund sites in Northwestern,
... .
FCI CUMBERLAND - On November 3 0, Chief Judge Zieglel' C:

3254

~hE-

Page 3
MXR Monthly Report
western~' ennsylvania

ordered the BOP to transpo r t
inmate
to a hospital in Pittsburgh for a
. ~)
death-be V1 S1t W1t his mother.
This inmate is a high
~'"'
profile "underboss " in organized crime out of Pittsburgh.
<I
Upbb. review the ~den . obj ·~cted to . the trip for sCGuri~.ty
re'a sons so we fi~ ' -a motion to vaioGate the order bised" upon
the court 's lack ;f jurisdiction to order, rather than
recommend, this course of action. The motion was granted.
The court has now issued an order recommending that the inmate
be transported to Pittsburgh for family visitation at the
funeral home, and has made arrangements with the Marshal's
Service to provide a special security detail at the funeral
home.
The Warden has written a letter to the Court that would
deny the recommendation, citing the safety of staff and high
potential for escape.
Prisoner Litigation Reform Act:

,)

FCI Ashland - Bush v. Lowry - As previously reported, Judge
Wilhoit entered an order denying our Motion to Dismiss based
on PLRA exhaustion, following the Garrett and Lunsford
decisions which held that exhaustion is not required in money
damages only Bivens cases. We sought approval to bring an
interlocutory appeal, based upon the new favorable decision
from the 11th Circuit in Alexander.
Turning down our request
for permission to appeal, DOJ informed our Litigation' Branch
that they will not allow any exhaustion appeals to be brought
until our administrative remedy rule is amended.
However, we
are authorized to continue raising the exhaustion argument in
the district courts and in cases where appeals have already
been brought.
FCI Milan - Willis v. Leona rd - The Magistrate Judge issued a
favorable R&R in which the Court analyzed the Waive. ~ ! Re~l~'
provision of PLRA and indicated that there is a heig:l: e n e d
standard of review, which warrants clarification by : ::'.' '-: h
Circuit.
The Court proceeded to recommend dismissal p::: '"uan:
to the 12(b) (6) standard.
FCI Milan - Graham v. Mercer. et al - This case was d.:;".. :sseci
pursuant to a review by the Court under the exhaust. c o.
requirements of the PLRA.
The AUSA and the institu: ; :':.
attorney are seeking publication of the decision.
SUBSTANTIVE PLEADINGS (COMPLAINT, MOTION FOR SUMMARY
ETC.) : None

~~GMEN7,

SETTLEMENTS :

)

FCI Memphis - Litrell v . United States - (failure t c ': . ,; ::: o s,"
throat cancer case).
On Tuesday, December 2, 1998. ~ " . : ......
Mellady, Attorney, FCl Memphis, spoke to the AUSA o~·

3255

Page 4
Monthly Report

MXR

Nashville, Tennessee, who is handling this case. He indicated
that the Court has set a settlement conference for Friday,
January 15, 1999. The AUSA expects a report early next week
from our expert (an oncologist at the VA in Nashville)
concerning how the medical treatment would have been different
had the cancer been diagnosed sooner. Based on the October 8,
1998, memorandum Matthew sent to Bill Burlington concerning
settlement of this case, Matthew would like to move forward
with some discussions concerning a reasonable assessment of
the Plaintiff's damages. Matthew plans to attend the
settlement conference and would like to have authority to
settle if we can arrive at an appropriate amount.
FCI Butner,- Inmate Dee Farmer has initiated settlement

discussions with the u.s. Attorney's Office in Colorado.
Farmer has four cases pending there, and is offering to settle
those cases in exchange for the Bureau not stating opposition
to his parole application. We have requested that all pending
cases be included in the settlement agreement, including the
case of Farmer v. Hawk, now pending in the District of
Columbia Court of Appeals.
ADVERSE DECISIONS OR SIGNIFICANT DECISIONS:
FCI Memphis - Sheets v. DOJ -(Title VII case: sexual

harassment, sex discrimination, retaliation and constructive
discharge). On Wednesday, November 25, 1998, the institution
attorney was contacted by AUSA Brian Quarles who informed him
that the .jury had 2;et.\1,rn~d'a verdict in favor of the Plaintiff·
awardingh~l:-·.$25;,OOO . £.or... dispa.rate· ..treatment/ sex
a:i.efcri~:tiS~ii~;~J~~'S·i~-tlO·~>£dr"·;i1~*Ual\:,·.::ttarassment ,. '.': ;$"1.-&0 :.',&Q,Q <:rqr
'retaliat1oriand -$11'6 ,"o60'''in'lJack pay.. At the close of the'"
Government's case, AUSA Quarles moved for a Judgment as a
Matter of Law. The Judge stated that she was denying the
motion and submitted the case to the jury with the
understanding that she was reserving her authority to review
the jury's verdict. Based upon what we still believe to be an
convincing legal defense, we intend to file a Renewed Motion
for Judgment after Trial pursuant to Rule 50(b) of the Federal
Rules of Civil Procedure.
UPDATE ON CASES, TRIALS OR HEARINGS, ETC. NOTED IN PRIOR
REPORTS:
FCI Beckley - Depew v. Hawk - This inmate originally filed

suit in Massachusetts claiming his right to receive privileged
written communications from his attorney had been wrongfully
restricted for one year after sado-masochistic magazines were
mailed in under the guise of legal mail. The case was

3256

Page 5
MXR Monthly Report
transferred to the Southern District of West Virginia.
Motions for Summary Judgment were filed.
In November, the
inmate's Attorney, Mel Dahl, was disbarred as a result of his
resignation (in light of pending disciplinary charges). The
District Court has been notifiec: that Mel Dahl is no·lcnger
.licensed to pra~tice l a w . '
.
FMC Lexington - Gravenmier v. Holland. et ale - This is a
Bivens case alleging deprivation of adequate pain medication
for a back condition. On November 16, 1998, FMC Lexington
staff received notice that Plaintiff died of natural causes
while in state custody. Plaintiff apparently contracted an
infection while in the county jail and was in intensive care
for a number of days. The cause of death was apparently
unrelated to the subject matter of this case. Once a copy of
the death certificate is obtained, a Notice of Death of
Plaintiff and Motion to Dismiss will be filed.
FCl Memphis - Bermal-Manes.v. Luttrell, (INS case). On Monday,
November 30, 1998, the Judge conducted an evidentiary hearing
in this habeas corpus petition. This hearing followed the
Court's October 1, 1998, Order granting the Petitioner's writ
of habeas corpus.
In that Order the Court decided that INS
has failed to demonstrate a rationale relationship between the
Petitioner's detention (excess of 13 years) and the goal of
protecting the public. The Court also determined that it had
jurisdiction to review the INS Review Panel decision in this
case. The Government filed a Notice of Appeal staying the
Court's Order.
Finally, the Court did state that the
Petitioner is not entitled to unconditional release, but that
the Court would convene another evidentiary hearing to
consider that issue. We are reporting this case for
informational purposes, given the number of Cuban detainees in
BOP facilities.
USP Terre Haute - Karamo V. Breakvill - This is the ca~~ we
reported last month where the District Court issued a
preliminary injunction that dealt with the issue of f(n~! poin:
restraints. On December 3 1998, the inmate was trans f (".!' r~d
to USP Marion. Based on the language of the entry thrt~
accompanied the preliminary injunction, which states ~ :~c1: the
entry does not regulate the BOP's treatment of Karamo ci: ciny
institution other than USP Terre Haute, we feel, unle:.:. flt?
returns to USP Terre Haute before . December 20 (when !..u·· :.
expires) that the PI has been made moot and, therefo!·. :"(~!~
not have any bearing on this or any other institution.
I

)
..-

FCl Butner - Blohm v. Johnson. et ale - We received n
favorable R&R in this case. An inmate held pursuant ~
:~
u. s. C. § 4246 brought this civil rights action claiml ::::
invasion of privacy, battery and civil conspiracy, ar~': :· ..l~~!~
that he has illegally and unconstitutionally been sui ., ..•~:! •
involuntary medication since July 1994. All claims ri'J •• :.!.~

3257

Page 6
MXR Monthly Report
defendant Dr. Sally Johnson were dismissed due to her status
as an officer of the u.S. Public Health Service pursuant to
Title 42 U.S.C. §233 (a) . The Court recommended dismissal
holding that the remaining defendants were entitled to
qualified immunity because the hearing was conducted in
accordance with applicable law and satisfied due process
requirements, citing Washington v. Harper, and based on the
record showing the plaintiff's condition justified involuntary
medication.
REPRESENTATiON NOT RECOMMENDED FOR STAFF: None
SiGNiFICANT FTCA CLAIMS: None
MEDiCAL MALPRACTICE CASES UPDATE:

)

"

FMC Lexington - Maltz' & Maltz v. USA - An answer to the
complaint (FTCA action alleging failure to diagnose
Plaintiff's lung cancer) was filed. A dispositive motion for
summary judgment may later be filed once our expert is
obtained and additional discovery is conducted. Plaintiff's
expert does not appear to factually support plaintiff's theory
of causation.
FCi Petersb~rg - Tommv Lee Suber v. Carlos Ascencio. et al. In this Bivens case, the inmate alleges the orthopedic
specialist recommended surgery for a torn rotator cuff in
August of 1997, but ·the institution failed to schedule the
surgery.
Plaintiff claims he has suffered for more than a
year with pain in his shoulder from the injury which occurred
at Milan while working in food service. Service on the
defendants was attempted by sending their summons and
complaints to the u.S. Attorney's Office.

.J

FCI Petersburg - Bergquist v. u.s. - This is an FTCA case
alleging a PA's failure to refer the plaintiff to a doctor
resulted in a delay in the diagnosis of his colon cancer. The
AUSA and the institution paralegal interviewed the former FeI
Petersburg doctor, Dr. Naval. He remembered that he first saw
the plaintiff in the hallway and asked him how he was doing
and the inmate informed him of his complaints.
It was then
that Dr. Naval examined Bergquist and referred him immediately
for colon cancer screening. Bergquist was not referred to Dr.
Naval by the PAis. The AUSA has obtained a medical' expert to
review Bergquist's medical record. A scheduling order was
issued November 11, 1998, settirig pretrial conference for
February 19, 1999; and discovery conclusion by January 29,
1999'. The Trial will be set for a day certain within 4-6

3258

Page 7
MXR Monthly Report

i

weeks of the pretrial conference.

)

SIGNIFICANT ADMINISTRATIVE REMEDIES: None
NEW RFRA CASES AND UPDATES ON PREVIOUSLY REPORTED CASES: None
ALTERNATIVE DISPUTE RESOLUTION EFFORTS: None
18 U.S.C. § 3621(e) LITIGATION:
Pelissero v. Thompson - (4th Circuit) - In a 2-1 decision, a
panel upheld the Bureau's old and new rules on early release.
A Petition for Rehearing With Suggestion For Rehearing En Bane
was filed on behalf of the inmates, pointing out that the
Court addressed the 1997 Interim Rule, whereas BOP applied the
1995 Rule to each appellant. On November 27, 1998, the Court
vacated its opinion at 155 F.d. 470 (4th Cir. 1998), and
remanded the matter back to the panel. The Court declined
Petitioner's suggestion that the matter should be heard by the
full court.

)

,)

FCI Beckley - Boyle. Segerson & Williams v. Hemingway - These
inmates were originally deemed ineligible for early release
under P.S. 5162.02, based on their two-point enhancements for
weapons. Although not parties in Wiggins v. Wise, these
inmates were subsequently deemed eligible under the Wiggins
decision. Based on the Fourth Circuit's Pelissero decision,
the Bureau subsequently determined the inmates were ineligible
for early release under P.S. 5162.02. The inmates requested a
preliminary injunction to prevent the Bureau from denying
their eligibility for early release, relying on statements
made by the Bureau in past cases to support their position
that the Bureau had entered into a "Consent Decree" or
"Settlement Agreement". Based on the recent action by the
Fourth Circuit, vacating the Pelissero decision, the inmates
are again deemed eligible for early release under Wiggins v.
Wise. A motion to dismiss the inmates' request for
preliminary injunction will be filed, based on the lack of a
live case or controversy_
FCl Beckley - Bayles v. Wise - A motion to reinstate this case
has been filed. The inmate originally filed her action in the
wake of Wiggins v. Wise, and a Judgment Order was entered
remanding the case to the Bureau to determine her eligibility
for early release in a manner consistent with Wiggins. The
Bureau subsequently determined her to be eligible for early
release. The Bureau intended to file a Motion to Vacate
Judgment Order in this case, based on the Fourth Circuit's
Pelissero decision. Although the Bureau had not yet filed the
Motion, the inmate requested a preliminary injunction to
prevent the Bureau from changing her eligibility for early
release. This case has been consolidated with Boyle et. ale

3259

,

,

t

~
~.-.

-

-

Page 8
MXR Monthly Report
v. Hemingway_ Based ~n the recent action by the Fourth
CirCJ.l..j t i vacat:i.ng the '-Pelissero decis~on, the Bureau .d6i:2.~ not
int:end-to file a mot.iC»;. ·to vacate the."Judgment order '-:at-· "i:his
time: As the inmate is considered eligible for early release,
a motion to dismiss the inmate's request for preliminary
injunction will be filed, based on the lack of a live case or
controversy_
FMC Lexington - Pratt v. Holland - The petitioner has filed a
habeas petition alleging the BOP improperly interpreted Felon
in Possession of a Firearm as a crime of violence.
Petitioner's eligibility has been determined under P.S.
5162.02. Petitioner cites the Sixth Circuit decision in Orr.
In our response we set forth what we felt were the Sixth
Circuit's errors in arriving at their decision in Orr, and
request the Court to follow the applicable precedent in Davis
v. Beeler, or in the alternative, hold the case in abeyance
pending the Sixth Circuit's ruling on the Government's Motion
for Rehearing in Orr.
Moore v. Chandler - This habeas case
challenges the denial of early releas~ eligibility under
3621(e) for an inmate who received a two-point enhancement
because another member of the drug conspiracy possessed a
firearm.
In a November 24, 1998, Opinion, the court, relying
on Orr v. Hawk, reconsidered its prior ruling in Davis V.
Beeler. The court found the policy allowing considera~ion of
factors outside the offense is in conflict with the plain
language of the VCCLEA. The court also held "the BOp'may not
rely on the sentencing enhancement for possession of a firearm
to deny eligibility for early release." The court has glven
us 20 days to reconsider our position in light of this ruling.
FCI Manchester

)

FCl Milan - Taylor v.

Pontesso - This habeas was an 0::1
Program Statement RDAP case which the BOP won at the :. ~ !~~ r 1 ct
Court Level.
The inmate appealed and in light of Orl' ~h~
District Court required briefing by October 15, 1998. -:'n.·
Court granted our motion to deny the inmate bail, and w... n!"~
filing a protective notice of appeal due to the 6th C:I:-~l~'r.
delay in ruling on the Government's motion for reheal ~ nc: ~:~
the Orr case.
SIGNIFICANT NEW CRIMINAL REFERRALS SINCE LAST MONTH'S REPORT:

,)

USP Terre Haute - Inmate
signed a plea bargain on November 24, 1998, for 24
months, 3 years supervised
assessment.
Inmate

3260

C'cru.··~·~~ ~

'-

',\J~

\'.'

U

Page 9
MXR Monthly Report
I

1

signed a plea bargain on November 24, 1998, for 15 consecutive
months and a $100 special assessment. Both of the offenses
were drug related.
FCI Manchester - u.s. v. Clark - This criminal case is
scheduled for trial on December 7, 1998, in London, Kentucky.
This case concerns inmate Ernest Clark's assault upon another
inmate at FCI Manchester. Defendant's Motion to Dismiss on
the basis of selective prosecution was denied by the Court in
September 1998.
FCI Milan - u.s. v. Snow - The criminal trial of inmate Snow
has been delayed until after the first of the year.
Snow is
being prosecuted for assault on a correctional officer. The
officer is no longer employed by the BOP, and this has created
some difficulty, which has been resolved.
SUCCESSFUL PROSECUTIONS OR ANY ACQUITTALS SINCE LAST MONTH'S
REPORT:
USP Terre Haute - Inmate Lonnie Taylor, Reg. No. 95147-071,
was found guilty of second degree murder on November 14, 1998,
in a jury trial.
Inmate Taylor used a 2x4 to hit inmate Bruce
Campbell on the right side of his head, above and behind his.
right ear. This blunt force trauma resulted in the death of
inmate Campbell.
REHABILITATION ACT: None
Ensign Amendment Cases: None
Dismissals Under PLRA: None

)

3261

Page 10

MXR Monthly Report
New litigation Cases by Institution and Type
Received During the Month of November 1998

BIV
FTCA
HC
OTH
TOT

J MAN I MEM

ALD

ASH

BEC

BUT·

CUM

ELK

LEX

0
0

0
0
0
0
0

0
0
1
1

0
0
0
1
1

0
0
0
0
0

0
0

0
0

I

2

I

2

0
2

2

,
I

0
1

!

0

i

2

I

I

0
0
0
0
0

I

j

Mil

MRG

0
0
0
0
0

0
0
0
0
0

0
0
2

I

0

J

2

PET
1

0
0
0
1

SEY

THA

0
0
0
0
0

0
1
0
0

TOT
1

,

f
1

8
2
12

1

;
i

·Represents both the FCI and lSCI
New Litigation Cases by Institution and Type
Received Calendar Year to Date
ASH
1

BEC.
1

1
3

0

0

2

0

0
3

3
4

BUT·
5
1
5
25

8

36

ALD+
BIV
FlCA
HC
OTH
TOT

0

4

·BUT represents both the FCI and the LSCI
ALD •

MEM

Mil

2
2
1

MAN
1
2
2
1

1
1

3
3

7

9

1

,

11

6

10

16

CUM
4
2

ELK.
4

LEX

0

16

3
4
11

2
24

6

.Corrected figure (case counted twice)

.>

3262

MRG.
2

PET
3

0
6
0
8

0
5

0
8

SEY

THA

0
0
1
0
1

6

TOT
37

4
9
2
21

73
41
167

16

+Case counted for BEC should have been

 

 

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