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