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Fbop Mxr Monthly Reports 1999jan-sep

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UNITED STATES GOVERNMENT

memorandum
I>ATE:

I

1999Mid-Atlantic Regional Office. Annapolis Junction. MD 20701

AlTNOF:

Bill Burlington, Regional Counsel
Mid-Atlantic Region

Sl:BJECI:

January 1999 Monthly Report

REPLY TO

TO:

AlTN:

}

February 8

Christopher Erlewine, General Counsel
Amy Whalen-Risley, Executive Assistant

ADMINISTRATIVE REMEDIES

JAN

Received
Answered

196
166

TORT CLAIMS

JAN

# Pending
# Received
# Answered
iI:Pending
'er Six Month

215
63
51
231
1

.'RIVACY

JAN

r

# Pending
# Received
# Answered
# Pending
# Over 20 Working Days

32
48
54
26
0

LITIGATION

JAN

Cases Pending
New Cases Received
Habeas Corpus
Bivens
FTCA
Other
Cases Closed
Cases Pending
Lit Reports Completed
Cases/Hearings or Trials
Settlements I Awards
$ Settlements/Awards
($ in Thousands)

306
19
11
2
2
4
16
309
15
0
1
$20.0

FEB

MAR APR

MAY JUN

JUL

AUG

SEP

OCT

NOV

FEB

MAR APR

MAY JUN

JUL

AUG

SEP

OCT

NOV DEC

FEB

MAR APR

MAY JUN

JUL

AUG

SEP

OCT

NOV

DEC

FEB

MAR APR

MAY JUN

JUL

AUG

SEP

OCT

NOV

DEC

3343

DEC

Page 2
MXR Monthly Report
SIGNIFICANT DECISIONS OR ADVERSE DECISIONS:
FMC Lexington- Tyrone Lamont Pratt v. J. T. Holland, et al.
- This case involves a challenge to BOP's old policy which
interprets 18 U.S.C. Section 922(g) as a crime of violence
precluding early release eligibility. The Court entered
judgment in favor of Petitioner, citing the Orr decision,
ordering the Respondent to immediately consider Petitioner for
a sentence reduction under 3621(e). We have taken steps to
preserve our appeal rights in anticipation of a ruling from
the Sixth Circuit in the Orr case (The U.S. Attorney's Office
supports Protective Notice of Appeal--we are awaiting
Litigation Branch's clearance from DOJ.)
FCI Milan- Graham v. Mercer, et al. - This Bivens case was
dismissed by the District Court under the PLRA, particularly
for failure to exhaust. The case is on appeal in the 6th Cir.
The AUSA and Kevin Walaskinski completed the final brief on
1/28/99, incorporating language that the BOP wanted to be
placed before the appellate court.
FCl Petersburg - Platshorn v. Hahn - The Fourth Circuit, in an
unpublished per curiam decision, affirmed the District Court's
dismissal of this habeas petition. Platshorn essentially
sought to have the ten year period of time served on the
parolable portion of his aggregated sentence applied to the
consecutive 33 year non-p&rolable sentence to which he was
paroled. The Court agreed with the Bureau's interpretation of
statutory authority.
SETTLEMENTS:
FMC Lexington- Wealtha Liggins v. USA - Plaintiff, an inmate
visitor represented by an attorney, alleges negligence in
relation to her 1993 fallon a step in the lobby of the
institution. Trial was set for February 16, 1999. Plaintiff
has actual medical bills of $12,000, and case law shows her
pain and injury figure should be in the $23,000 to $36,000
range. After factoring in contributory negligence on the part
of Plaintiff, research indicates this case is worth around
$20,000 at a minimum. Plaintiff's initial offer was $40,000,
which is in the reasonable range. Settlement authority was
granted to this amount. We have been informed by the AUSA
that the case has been settled for $20,000.
PCl Milan- Woods v. Pontesso & USA - This is an FTCA claim for
lost property. After a final determination letter on the
administrative claim was mailed to the claimant, an 0/1
investigation concluded improper staff conduct related to
gross negligence in handling the inmate's personal property
when he moved from one unit to another. The case was settled
for ·$300.00~

3344

Page 3
MXR Monthly Report

',···~l
..

)

•• ..,1

)
3345

')

Page 4
MXR Monthly Report
UPDATE ON CASES, TRIALS OR HEARINGS, ETC. NOTED IN PRIOR
REPORTS:
USP Terre Haute - Scott Rendelman v. USA. Lt. Jones - On
February 8, 1999, a bench trial will be held at the
institution. Rendelman alleges Lt. Jones assaulted him while
escorting him from the SHU to I-East.
FCI Memphis - Jackson v. United States - The bench trial in
this case initially scheduled to begin February 1, 1999, has
been rescheduled for April 1, 1999.
NEW RFRA CASES AND UPDATES ON PREVIOUSLY REPORTED CASES: None
CRIMINAL MATTERS:

)

J

FCl Beckley- Trevor Huie, Reg. No. 15143-075 - This inmate was
indicted January 13, 1999, for seriously assaulting a staff
member. He is charged with violating 18 U.S.C. § 111(a) and
(b), as the inmate changed into steel-toed boots prior to the
assault and the officer suffered serious injuries.
Arraignment is scheduled for February 2, 1999.
FCI Beckley - Brian Andrews, #04844-030, was arraigned
December 18, 1998, for Possession of Contraband (heroin). A
plea hearing was held January 25, 1999, at which time the
inmate pled guilty to the charge. Sentencing is set for April
12, 1999.
FCI Beckley - Christopher Gibson, #28880-037, was indicted on
December 2, 1998, for Possession of Contraband (heroin). He
was arraigned December 18, 1998, and trial is set for February
3, 1999.
FCl Manchester - u.S. v. Morey - This case is scheduled for an
in-court hearing and a pre-trial conference on February 5 and
19, 1999, respectively. Jury trial is scheduled for March 1,
1999. Defendant is charged with escape from FPC Manchester
and car-jacking.
FMC Lexington - Former FMC Lexington inmate James Thornton,
#04919-028, pled guilty to introducing controlled substances
into the institution through the visiting room. He will be
sentenced in the near future.

\
_, .• J

FMC Lexington - Former mental health unit inmate Rogeliio
Garcia-Fierro, #05926-000, was sentenced to 54 months of

3346

Page 5
MXR Monthly Report
imprisonment for two counts of assault, stemming from a 1997
assault on a unit psychologist and recreation specialist.
FCI Petersburg - United States v. Richard Stitt - Richard
Stitt is a pre-sentence inmate housed at Petersburg facing the
death penalty. Stitt's attorney complained to the Judge that
BOP was denying Stitt sufficient telephone access to call him
and that efforts to communicate with the Captain had been
unsuccessful. The Warden sent a letter to the AUSA (and the
AUSA passed it on to the Judge) advising that Stitt had made
or attempted to make 91 calls since 12-3-98. The letter
explained the monitored vs. unmonitored calling procedures.
Neither Stitt nor his attorney had requested any privileged
calls. The AUSA notified us that the court told Stitt's
attorney that now that the attorney knows the proper
procedures the court does not want to hear from him again on
this issue. The letter also noted that the Captain had only
received one message from the attorney and he had returned the
call the same day.
SITUATIONS OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS
WASTE SITES, ETC.:
FCC Butner- On February II, 1999 a show cause hearing is
scheduled before the Environmental Protection Agency in
Atlanta, GA regarding the Notice of Violation issued to the
FCI and the Hospital arising from fa~lure to obtain generator
permits in a timely fashion. Currently all necessary permits
are in place. The Commercial Law Branch will be providing
representation.
USP Terre Haute - Ion Scan Appeal--Harry Borom - We have just
responded to our second visitor appeal of the suspension of
their visiting privilege, based on a positive Ion Scan
reading. We really appreciated the assistance provided to us
by Paul Layer on this case.
I think many of the problems
that were identified at the December teleconference are being
addressed by Paul and Security Technology.
FCI Milan - FCI Milan'received a Letter of Demand from EPA
concerning liability in the XXKEM sites in Toledo, Ohio
($65,000 in damages involving 44 responsible parties). The
Commercial Law Branch was immediately notified, as well as the
General Counsel for UNICOR. Jeff Lomjoco has been working
with the DOJ Environmental Law Defense Division on this
matter. EPA has been contacted, and all parties will be
discussing potential settlement. It appears at this time that
the Judgment Fund will cover any settlement.

/

)

Personnel Issues
Staff Leave and Travel

3347

Page 7
MXR Monthly Report
New Litigation Cases by Institution and Type
Received During the Month of January 1999

BIV
FTCA
HC
OTH
TOT

ALD

ASH

BEC

BUT-

CUM

ELK

LEX

MAN

MEM

0
0
0
0
0

0
0
0
0
0

0
0
0
0
0

0

0

1

1
1

0
0

0
0
0
0
0

0
0

0
0
0
0
0

- Represents both the

0
4

5

0
2

1

0
1

1

0
1

MIL
1

0
3
0
4

MRG

PET

SEY

0
0
3
0
3

0
0

0
0
0
0
0

1

0
1

THA
1

0
1

0
2

TOT

2
2
11
4
19

Fe. and LSC.

---' ... _., ,.--.. ,. _.,

3348

- ..

-----~.,

'--'I

)

UNITED STATES GOVERNMENT

memorandum
DATE:

A1TNOF:

Bill Burlington, Regional Counsel
Mid-Atlantic Region

SUBJECT:

February 1999 Monthly Report

REPLYTO

ro:
A~:

Christopher Erlewine, General Counsel

Amy Whalen-Risley, Executive Assistant

ADMINISTRATIVE REMEDIES

JAN

FEB

Received
Answered

196
166

152
189

TORT CLAIMS

JAN

FEB

# Pending
# Received
# Answered
Pending
lr Six Month

215
63
51
231
1

231
64
71
220
1

FOI/PRIVACY

JAN

FEB

# Pending
# Received
# Answered
# Pending
# Over 20 Working Days

32
48
54
26
0

26
52
40
38
0

LITIGATION

JAN

FEB

Cases Pending
New Cases Received
Habeas Corpus
Bivens
FTCA
Other
Cases Closed
Cases Pending
Lit Reports Completed
Cases/Hearings or Trials
Settlements!Awards
"tlements!Awards
I Thousands)

306
19

309
14
8
3
2
1
14
309
16

Y

,"

..

March 15, 1999Mid-Atlantic Regional Office. Annapolis Junction. MD 20701

11
2
2
4
16
309
15
0
1
$20.0

MAR APR

MAY JUN

JUL

AUG SEP

OCT NOV DEC

MAR APR

MAY JUN

JUL

AUG SEP

OCT NOV DEC

MAR APR

MAY JUN

JUL

AUG SEP

OCT NOV DEC

MAR APR

MAY JUN

JUL

AUG SEP

OCT NOV DEC

1

0
0

)

3369

L

Page 2
MXR Monthly Report

)

SIGNIFICANT DECISIONS OR ADVERSE DECISIONS:
OSP TERRE HAUTE - Scott Rendelman v. U.S.A. and Lt. Jones.
The Judge held a bench trial at the institution on February 8,
1999, in this Bivens excessive force case. At the conclusion
of the case, judgment from the bench was issued in favor of
our staff.
FCI CUMBERLAND - ATKINS v. BIDWELL- On February 8th, Judge
Catherine Blake in the District of Maryland dismissed this
habeas case brought by an FCI Cumberland inmate who sought
credit for time out of custody (May 1990--0ctober 1992) after
being mistakenly released from FCI-Butner, instead of being
held to serve a consecutive 94 month federal sentence. The
mistake was caught within days, the inmate knew there had been
a mistake, and when the Marshals attempted to regain custody,
the inmate made himself unavailable despite a requirement that
he report to his Probation Officer.
In October, 1992, Atkins
was arrested by DC Police in a local restaurant, picking up
new charges of assault on a police officer and a weapons
violation, which landed him in DC custody until he was
released to our detainer in May, 1995. The court found no
gross negligence to support a waiver of jurisdiction over the
inmate and also rejected the application of estoppel because
Atkins knew all along that he was out due to mistake. The
court also rejected application of the "doctrine of credit for
time at liberty du~ to erroneous release." While the release
itself was "simple negligence n by the BOP through no fault of
the inmate, lithe same cannot be said for the two and half year
period he remained in the community. I~ Further, he was not a
Iflaw abiding member of society" while he was out. Finding
that "Atkins I interest in serving his sentence in one
continuous segment is outweighed by society's interest in
having him serve the full term which was legally imposed,"
the habeas petition was denied. We are seeking publication of
this case because it succinctly summarizes in one opinion the
current law applicable to mistaken release.
FCI BECKLEY-Depew v. Hawk - Inmate originally filed suit in
Massachusetts because his right to receive privileged written
communications from his attorney, Mel Dahl, had been
restricted for one year. This restriction was imposed after
it was discovered that the attorney abused legal mail to
introduce explicit sado-masochistic publications. The case,
originally filed in Boston, was transferred to the Southern
District of West Virginia. In November, the inmate's attorney
was disbarred as a result of his resignation (made in the face
of pending unrelated disciplinary charges). On February 4,
1999, the Magistrate Judge entered an R&R recommending
dismissal of this case and upholding our actions.

3370

Page 3
MXR Monthly Report

FCl ELKTON - Washington v. LaManna - We received a favorable
recommendation from Magistrate Judge Gallas in this Bivens
case alleging exposure to Environmental Tobacco Smoke (ETS).
The Magistrate Judge agreed with our arguments: (1) Under
Wells v. Brown, 891 F.2d 591 (6 th Cir. 1989) a pro ~
complaint that fails to specifically allege the defendants are
being sued in their individual capacity is to be construed
against the defendants in their official capacity; (2) because
it was an official capacity suit, the complaint was barred by
sovereign immunity; and (3) the plaintiff failed to allege
exhaustion of administrative remedies which required dismissal
under the PLRA.
FCI BECKLEY-Michel v. Olson - Inmate challenged the manner in
which staff computed his sentence, arguing that it should have
begun on the date he was sentenced, despite the fact he was
released on bond and ordered to self-report (which he did not
do). The Magistrate Judge entered an R&R requesting
additional briefing on the applicability of a recent Fourth
Circuit case, u.S. v. Evans, 159 F.3d 908 (4 th Cir. 1998). In
Evans, the Fourth Circuit interpreted the term "custody" as
used in the federal escape statute. In the R&R, the
Magistrate Judge suggested the Evans decision may have
modified the manner by which rlcustody" under 18 U.S.C. §
3585(a) (Commencement of Federal sentence) is interpreted.
The Magistrate Judge implied that the inmate could be
considered to have been in federal "custody" ·as of the date
and time his federal sentence was imposed, despite the fact he
was released on bond. Objections to the R&R have been filed.

SETTLEMENTS:
FCl MEMPHIS-Littrell v. United States - This is an FTCA
medical malpractice claim arising out of our alleged failure
to diagnose the plaintiff's throat cancer while he was
incarcerated at Memphis, Marion, and Oakdale. We have
received OGC authorization to settle up to $25,000. A $15,00
offer was made by the AUSA in the case. A settlement
conference was held on March 5, 1999. The Magistrate adjourned
the conference for one month after it became apparent that the
inmate and his attorney were having difficulties (Mr. Littrell
upped his demand from $300,000 to $500,000 during the
conference). It appears that the attorney may be attempting
to withdraw from the case.

3371

Page 4
MXR Monthly Report

)
UPDATE ON CASES, TRIALS OR HEARINGS, ETC. NOTED IN PRIOR
REPORTS:
FMC LEXINGTON - On February 26th in Sam Hall v. Mary Ellen
Thoms, Judge Forester denied Plaintiff's Motion for a TRO
regarding medical treatment of alleged heart problems.
(FMC
Lexington received 24 hours notice of the scheduling of the
hearing.)
FCI MEMPHIS-Ashley v. United States, ---F.Supp.2d---i 1997 WL
1073359 (W.D.Tenn.) This property loss FTCA claim arising out
of the October 20, 1995, disturbance at FCI, Memphis has been
published as we requested. We received permission to assert
the Discretionary Function Exception, which the court used to
bar recovery.
FCI MEMPHIS - The bench trial in Jackson v. United States, a
riot-related FTCA case concerning smoke inhalation, initially
scheduled to begin on February 1, 1999, has been rescheduled
for April 1, 1999.
')
.....

CRIMINAL MATTERS:
FCI MEMPHIS - Inmate Iniquez, Reg. No. 09700-000, assaulted
Inmate Garay, Reg. No. 31895-004, with closed fists and a
33-inch piece of metal. The FBI and U.s. Attorneys office
declined prosecution and released the case for administrative
discipline.
FCI BUTNER-U.S. v. Stitt - In this death penalty case out of
Norfolk, Virginia, Inmate Stitt received three death
sentences, three life sentences, and 780 months. The Bureau
has been approached by the prosecutor with a request to
quickly have Stitt designated and moved from a county jail to
a more secure facility.
FCI BECKLEY-Brian Andrews - Inmate was arraigned December 18,
1998, for Possessing Contraband (Heroin). A plea hearing was
held January 25, 1999, at which time the inmate pled guilty to
the charge. Sentencing is set for April 12, 1999.
FCI BECKLEY-Trevor Huie - Inmate was indicted January 13,
1999, for seriously assaulting a staff member. He is charged
with violating 18 U.S.C. § III (a) and (b) (Assaulting a
Federal Officer - Enhanced Penalty), as the inmate changed
into steel-toed boots prior to the assault and the officer
suffered serious injuries. The inmate was arraigned
February 2, 1999. Trial is set for April 6, 1999.

3372

Page 5
MXR Monthly Report

FCI BECKLEY-Christopher Gibson - Inmate was indicted on
December 2, 1998, for Possessing Contraband (Heroin). He was
arraigned December 18, 1998. The inmate pled guilty to the
charge at the plea hearing held February 22, 1999.
FCI ELKTON-United States v. Dumersier - Inmate Dumersier was
sentenced to a five month consecutive sentence for assaulting
a staff member.
FCI ELKTON-United States v. Gaines - Inmate Gaines was
sentenced to six months, plus two years supervised release,
for escape from the Camp.
FCI ELKTON - Two new cases have been accepted for prosecution:
Todd Turner # 17630-039, & Ronald Perry # 28443-037, Assault
(Inmate on Inmate); and Alexander, Michael # 33454-060,
Introduction of Narcotics.
....)
.,'

FCI MANCHESTER - U.S. v. Morey - On February 19, 1999, the
defendant pled guilty to escape from FPC Manchester and
car-jacking. A sentencing date has not been set.
SITUATIONS OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS
WASTE SITES, ETC.:
FCC BUTNER (Commercial Law Branch matter) - The Environmental
Protection Agency conducted a hearing in Atlanta on February
11, 1999, regarding the Notice of Violation for failure to
obtain air permits for generators and boilers at the complex.
The EPA assessed fines totaling $344,000. There is potential
for a 75% discount on the fine if the Bureau designs a
supplemental environmental project at the complex that is
acceptable to the EPA. There are two projects now under
consideration, one involving the acquisition of land adjacent
to the complex and converting it to wetlands, and the other
involving conversion of some of our institution vehicles to
compressed natural gas.
FCI BECKLEY - On February 12, 1999, Judge Murdock, u.s.
Administrative Law Judge, Office of Hearings and Appeals, held
the first Social Security and Disability Hearing at FCI
Beckley.
OSP TERRE HAUTE - On January 29, 1999, the Regional Counsel's
Office for the Mid-Atlantic Regional Office was contacted by

3373

Page 6
MXR Monthly Report

)

an attorney from the Civil Division of the Departmenc of
Justice who indicaced chac che Department was not going co
represent 5 of 6 individual defendants in an excessive use of
force case arising ouc of Terre Haute broughC by Inmace Karamo
Kaba,_ Reg~ No. 0· , 601-052. This determinatinn was ma~· l:iased
upon a deci~ion by the Ci v il Rights Division to open·~ . ­
criminal investigation.
On February 26, 1999, USP Terre
Haute was advised that the Department had agreed to expedite
the Civil Rights invescigation and hoped to have a decision
within 30 days . Currently, the defendants are required co
respond to the c ourt on April 5, 1999.
Staff and the Union at USP Terre HauCe are very concerned
about the prospect that those employees will have to hire and
pay for private counsel. The Executive Staff at USP Terre
Haute have attempted to explain the representation syscem at
v arious forums to help staff understand where, why and how
such decisions are being made.
The Warden is als o atcempting
to contact the FBI to help schedule the interviewing of
staff/inmates. We know that OGC is working closely wich the
Civil Division and the Civil Rights Division to resolve chis
issue.
Staff Leave and Travel

)

.>
3374

)

page 7
MXR Monthly Report
New litigation Cases by Institution and Type
Received During the Month of February 1999

BIV
FTC A
HC
OTH
TOT

ALD

ASH

0
0
0
0
0

0
0
0
0
0

BEC
1

0
0
0
1

BUT·

CUM

ELK

LEX

MAN

MEM

Mil

MRG

0
0
3
0
3

0
0

0
0
0
0
0

1

0
0
0
0
0

0
0
0
0
0

0

0
0
0
0
0

1

0
1

0
1

0
2

1
1

0
2

PET
1
1
1
1
4

SEY

THA

TOT

0
0
0
0
0

0
0

3
2
8

PET
1
1
2

SEY

1

0
1

1
14

*Represents both the FCI and LSCI
New litigation Cases by Institution and Type
Received Calendar Year to Date

BIV
FTCA
HC
OTH
TOT

ALD

ASH

0
0
0
0
0

0
0
0
0
0

BEC
1

BUT·

CUM

ELK

0
1
3

0

0
0

0
0
0

4

1

8

1

2
0
3

1

0
1

LEX
1

0
1
0
2

MAN

MEM

0
0

0
0
0
0
0

1

0
1

*Represents both the FCI and lSCI

)

,.'

3375

MIL
1
1
4

0
6

MRG

0
0
3
0
3

1

5

0
0
0
0
0

THA
1

0
2
0
3

TOT
5
4
19

5
33

UNITED STATES GOVERNMENT

'\

memorandum
April 13, 1999Mid-Atlantic Regional Office, Annapolis Junction, MD 20701

DATE:

ATl'NOF:

Bill Burlington, Regional Counsel
Mid-Atlantic Region

SUBJECI':

March 1999 Monthly Report

REPLY TO

ro:
ATI'N:

Christopher Erlewine, General Counsel
Amy

Wha~en-Risley,

Executive Assistant

ADMINISTRATIVE REMEDIES

JAN FEB

Received
Answered

196
166

TORT CLAIMS

JAN FEB

# Pending
# Received
# Answered

215
63
51
231
1

# Pending

" .)er Six Month

.IRIVACY

152
189

231
64
71
220

1

JAN FEB
26
52
40
38
0

# Pending
# Received
# Answered
# Pending
# Over 20 Working Days
• File archived

32
48
54
26
0

LITIGATION

JAN FEB

Cases Pending
New Cases Received
Habeas Corpus
Bivens
FTCA
Other
Cases Closed
Cases Pending
Lit Reports Completed
Cases/Hearings or Trials
Settlements/Awards
$ SettlementslAwards
.. ,:., Thousands)
)stics will be provided when

306
19
11
2
2
4
16
309
15
0

1
$20.0

309
14
8
3
2

MAR APR MAY JUN JUL

AUG SEP

OCT NOV DEC

AUG SEP

OCT NOV DEC

AUG SEP

OCT NOV DEC

AUG SEP

OCT NOV DEC

244
176

MAR APR MAY JUN JUL
220
66
49
228
0

MAR APR MAY JUN JUL
38
50
58
30

,.

MAR APR MAY JUN JUL
309
15
10
2
2

1

,

14
309
16
1

47
277
12
1

0
0

0

0

we regain access to LMS.

3755

Page 2
MXR Monthly Report

(

SIGNIFICANT DECISIONS OR ADVERSE DECISIONS:
Pelissero v. Thompson, 1999 WL 133112 (4th Cir. 1999)- On
March 12, 1999, the Fourth Circuit reissued an opinion
supporting the Bureau of Prisons approach to early release for
inmates who successfully complete a RDAP . The case involved
the May 1995 rule and Program Statement, Definition of the
Term. Crimes of Violence. The earlier opinion had incorrectly
interpreted the 1997 rule, when in fact, both inmate
/
plaintiffs completed RDAP before October, 1997.
The new
opinion, confines itself to the old rule and program statement
#5162.02.
Orr v. Hawk, (6 th Circuit, 1999): In an order dated March 15,
1999 (which is not yet in Westlaw), the 6 th Circuit amended
. its opinion at 156 F . 3d 651, and held that the 1995 rule and
Program Statement, Definition of the Term . Crimes of Violence,
were invalid for failing to conform to the case law on what
constitutes a crime of violence under 18 U.S.C. §924.
In
effect, the amendment means the published decision no longer
invalidates the 1997 rule.

\ ....

FCI CUMBERLAND-MAYFIELD v. HENRY - On March 24, 1999, District
Judge Messitte of the District of Maryland, ruled that the
Inmate Financial Responsibility Program was constitutional.
The Court found no improper delegation of authority by another
District Court had occurred where financial obligations were
ordered "to ' be paid immediately." The Court held that the
Bureau's efforts to collect the financial obligations were
lawful and appropriate, and finally, Inmate Mayfield had
voluntarily availed himself of the benefits of the IFRP
program and could not now be heard to complain . We are
seeking publication of this order.
SETTLEMENTS:
Brewer v. US -(Wrongful death, FTCA case regarding deceased
Manchester inmate, Jason Stump) - We received the AFIP report
in this $1.8 million case, which involves the death of a 24
year old inmate, who died with two dependents.
Both the
plaintiff's expert· and AFIP concur that the failure to timely
diagnose a brai~ " tumor resulted in inmate Stump's death . Had
a CAT scan or MRI been done in a time
manner, the tumor
,could have been
and surgica
removed .

NEW RFRA CASES AND UPDATES ON PREVIOUSLY REPORTED CASES,

3756

b5

Page 3
MXR Monthly Report
TRIALS OR BEARINGS:

On March 31 st , a conference
call was held 'by Susan Van Baalen and Robert Danage, Regional
Chaplaincy Administrator, regarding the Common Fare Pilot
Program in MXR.
This pilot seeks to test the sincerity of an
inmate's religious beliefs, when the inmate asks to be placed
on common fare. We will begin the pilot in May, after the
Union reviews the draft Operations Memorandum.
MXR Cammon Pare Pilot Program:

...

......... -

pel BECKLEY-Depew v. Bawk - Inmate originally filed suit in
Massachusetts because his right to receive privileged written
communications from his attorney, Mel Dahl, had been
restricted for one year (case transferred to Southern District
of West Virginia). This restriction was imposed after it was
discovered that the attorney abused legal mail to introduce
explicit sado-masochistic publications. In November, the
inmate's attorney was disbarred as a result of his resignation
(made in the face of pending unrelated disciplinary charges) .
On February 4, 1999, the Magistrate Judge entered an R&R
recommending dismissal of this case and upholding our actions.
In March, the Judge determined the inmate was prejudiced when
the Magistrate disallowed Depews.former attorney to send one
privileged mailing transferring the case files and work
product to Depew. We were inclined to permit the mailing,
however, the Magistrate Judge denied the request before we
could inform the court and Mr. Dahl. On March 23rd the Judge
signed an ordering granting one privileged mailing to provide
Depew with the files.

PCI BECKLEY-Michel v. Olson - This is the sentence computation
case where the Magistrate Judge entered an R&R requesting
·additional briefing on the applicability of a recent Fourth
Circuit case, u.s. v. Evans, 159 F.3d 908 (4th Cir. 1998). In
the R&R the Magistrate Judge suggested the Evans decision may
modify the manner in which the tenn "custody" is interpreted
for commencement of a Federal sentence. The Magistrate Judge
implied that the inmate could be considered to have been in
federal '·custody" as of the date and time his federal sentence
was imposed, despite the fact he was released on bond.
Objections to the R&R were filed. The Judge has upheld the
Magistrate's determination that further development of the
record is needed.

Fez MEMPBZS-JACKSON V. u.s. - A bench trial was held on
April 1, 1999, in this medical malpractice case arising out of
the 10-20-95 disturbance. Local paramedics had triaged the
inmate at the front gate for transportation to a local
hospital without BOP approval. Our chief medical officer went
to the front gate, examined the inmate, determined that he did
not need to go to an outside hospital, and sent him back to

3757

Page 4
MXR Monthly Report
the Health Services Unit.
awaiting a written order.

The Judge did not rule, so we are

pel BUTHER-Micala v. Hawk, et ale - We received a favorable
R&R and order in this case where a mental ~ealth inmate
alleged that involuntary medication violF
~is First
Amendment rights because the medication
-ed with his
religious beliefs regarding fasting ani
The
Magistrate stated that the involunta~·
procedure
was constitutionally sound based upor
v. Harper.
~though the inmate had not demonstr
I dangerous
behavior, there was significant evj
~his inmate had
experienced dangerous psychotic epib,
ne past, and the
doctors were not required to wait unti~
plaintiff's
condition deteriorated to an uncontrollab~ . state before they
could medicate him. The court also commented on the BOP
regulation for involuntary medication, stating that "gravely
disabled" would not be considered an independent basis for
involuntary medication, but would be read in the context of "
dangerousness" for self harm. The court did hint that this
conclusion was compelled by the absence of a definition of a
gravely disabled" in the regulation. The court further noted
that "inability to function in the open mental health
population" as a grounds for involuntary medication, would not
pass constitutional muster.
\.,........

FCI PETERSBURG - BERQOIST v. OSA - This is an FTCA medical
malpractice ca.se. The government expert's report was
submitted to the court in declaration form on February 25,
1999, asserting that there was no negligence on the part of
the u.s. in treating plaintiff's colon cancer. On March 5,
1999, the district court entered an order granting the
government's Motion for Sununary Judgment and dismissed this $1
mdllion law suit.
PCI PETERSBURG - PLATSHORN v.· HAHN - This never ending habeas
petition regarding aggregation of a parolable and
non-parolable sentences, was previously reported as being
affirmed by the Fourth Circuit. However, on March 1, 1999,
Platshorn's attorney (the attorneys in the D.C. Chatman-Bey
case) filed a petition for rehearing and rehearing en banco
pel PETERSBURG - ZAKlYA v. RENO - This case involves inmate
Douglas Ross, Reg. No. 29950-037, whose sentence expired on
February 29, 1996, but remains in BOP custody as he refused to
Sign an agreement required by 18 U.S.C. § 3724(e) to contact
the USPO and set up an installment schedule for an unpaid
fine. The Government filed a reply on March 8, 1999,
reasserting that petitioner is not being held in custody
because of an inability to pay the fine, and he may walk
through the prison door whenever he chooses by signing the
form; the current petition is a successive petition, and abuse
of writ as the matter has been decided in a published opinion

3758

Page 5
MXR Monthly Report
('..

which was affinned by the Fourth Circuit.
CRIMINAL MATTERS:

PCI BECKLEY - Trevor Huie, Reg. No. 15143-075, was scheduled
for trial on April 6, 1999, for seriously assaulting a staff
member. The Federal Public Defender on the case has notified
the U.S. Attorney's Office that the inmate will plead guilty
to the charge.
PCI BECKLEY - Tremayne Hubbard, Reg. No. 20872-038 was
indicated February 10, 1999, for assaulting another inmate.
He was arraigned in March.
PCI MEMPHIS - U.S. v. Bosley - This case involved the inmate's
escape from the satellite camp. He walked away on 8-1-97 and
was detained by local law enforcement officials following a
routine traffic stop on 8-4-97. Bosley pled guilty to escape
in December 1998. On March 29, 1999, he was sentenced to one
year imprisonment and three years supervised release. This
was a downward departure from the Sentencing Guidelines range
of 18-24 months, based on the defendant's assumption of
responsibility and attempt to voluntarily turn himself in. He
argued he was on his way back to the camp when the vehicle he
was riding in was stopped.

FMC LEXINGTON - Francisco Guilarte-Felipe, Reg. No. 09393-000,
a Mariel CUban on the mental health unit, was indicted for
assault on a staff member. He struck a counselor without
provocation while in the Central Park area of the institution.
PCI MANCHESTER - U.S. v. Alderman - The defendant is scheduled
for sentencing on April 23, 1999, for assault on staff.
SITUATIONS OP INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS
WASTE SITES, ETC.:

PCI MEMPHIS - The institution has a deaf inmate who has a
pending DHO hearing. Throughout the investigative stage, the
inmate has indicated he needs a qualified sign language
interpreter present at the hearing. After reviewing the
Rehabilitation Act, DOJ regulations, and pertinent case law,
we decided we had an effective alternative means of
communication in compliance with the Act and Regulations, and
could deny the request. However, when the institution
attorney, Matthew Mellady, briefed the Warden, AW, Captain,
and DHO on the matter, they decided to take the safe route and
hire the interpreter at a cost of $56 for a 2-hour session.
The institution had already contracted with the interpreter to
assist in drug education class in which the inmate is
enrolled.
PCI MEMPHIS - Institution legal staff hosted a tour for the
two law clerks from both the district court and the 6th

3759

Page 6
MXR Monthly Report

(

Circuit.
FMC LEXINGTON - On March 16, 1999, Warden Thoms and
institution attorney, Joe Tang, met with the United States
Attorney , the Chief of Civil, and AUSA Kessinger.
FMC
Lexington requested the meeting to discuss ways to improve
relations with the local judiciary and other federal agencies,
especially the U.S. Marshals Service.
Personnel Issues
FCI MEMPHIS - Matthew Mellady, Attorney, along with the Warden
and ISM, attended a Justice Prisoner and Alien Transportation
System Conference in Memphis on March 16, 1999.
FCI BUTNER - Michelle Fuseyamore, Attorney, will be attending
an Environmental Regulation Course, in St . Louis·, Missouri, .
April 6-9, 1999.
FeI MANCHESTER - The institution was selected by the Regional
Office to receive a legal intern position for the summer of
1999 .
Staff Leave and Travel
'.

'.

3760

(

New Litigation Cases by Institution and Type
Received During the Month of March 1999

BIV
FTCA
HC
OTH
TOT

ALD

ASH

BEC

BUT-

CUM

ELK

LEX

MAN

MEM

0
0
0
0
0

0
0
0
0
0

0
1
0
0
1

0
0
1
0
1

0
0
2
0
2

0
0
1
0
1

0
0
0
0
0

0
0
1
0
1

0
0
1
0
1

MIL
1

0
1
0
2

MRG

0
0
0
0
0

PET
0
1

2
1

4

SEY

MXR

0
0
0
0
0

0
0
1
0
1

SEY

0
0
0
0
0

THA
1

TOT

2
2
10
1

0
0
0
1

15

MXR

THA

TOT

0
0
1
0
1

2
0
2
0
4

7

-Represents both the FCI and LSCI
New Litigation Cases by Institution and Type
Received Calendar Year to Date

BIV
FTCA
HC
OTH
TOT

ALD

ASH

BEC

BUT-

CUM

ELK

0
0
0
0
0

0
0
0
0
0

1
1
0
0

0
1
4
4

2

9

0
1
4
0
5

0
0
2
0
2

LEX
1

0
1
0
2

MAN

MEM

MIL

MRG

0
0
2
0
2

0
0
1
0
1

2
1
5
0
8

0
0
3
0
3

-Represents both the FCI and LSCI

II" "',

3761

PET
1
2
4
2
9

6

29
6

48

UNITED STATES GOVERNMENT

,,--

"

memorandum
DATF.:

May

10,

1999Mid-Arlantic Regional Office. Annapolis Junction, MD 20701

ATTN OF:

Bill Burlington, Regional Counsel
Mid-Atlantic Region

SlIBJEC'T:

April 1999 Monthly Report

REPLY TO

TO:

AnN:

Christopher Erlewine, General Counsel
Amy Whalen-Risley, Executive Assistant

ADMINISTRATIVE REMEDIES

JAN

FEB

MAR APR

Received
Answered

196
166

152
189

244
176

TORT CLAIMS

JAN

FEB

MAR APR

Pending
Received
Answered
Pending
nver Six Month

215
63
51
231
1

231
64
71
220

220
66
49
228
0

RIVACY

JAN

FEB

MAR APR

#
#
#
#
r

If

' ..... - ~ .

•

MAY JUN

JUL

AUG

SEP

OCT

NOV DEC

MAY JUN

JUL

AUG

SEP

OCT

NOV DEC

MAY JUN

JUL

AUG

SEP

OCT

NOV DEC

MAY JUN

JUL

AUG

SEP

OCT

NOV DEC

182
172

228
52
55
221
0

26
32
38
30
# Pending
52
48
50
56
# Received
54
40
58
53
# Answered
26
38
30
33
# Pending
4·"
0
0
# Over 20 Working Days
1•
*File archived; * *three files being retrieved from archives
LITIGATION

JAN

FEB

MAR APR

Cases Pending
New Cases Received
Habeas Corpus
Bivens
FTCA
Other
Cases Closed
Cases Pending
Lit Reports Completed
Cases/Hearings or Trials
Settlements/Awards
$ Settlements/Awards
-, Thousands)

306
19
11
2
2
4
16
309
15
0
1
$20.0

309
14
8
3
2
1
14
309
16
1
0
0

309
15
10
2
2
1
47
277
12
1
0
0

277
23
14
2
1
6
41
259
15
2
0
0

3781

Page 2
MXR Monthly Report
SIGNIFICANT DECISIONS OR ADVERSE DECISIONS:
peI MEMPHIS-Jackson v. U.S. - This is a medical malpractice
case arising out of the riot of October 20, 1995. A bench
trial was held on April 1, 1999, and judgment. was rendered in
favor of the defendant. This decision wraps up a very
significant chapter in the story of FC!, Memphis. We have now
concluded all of the litigation surrounding the inmate riot.
In brief, we now have four successful criminal prosecutions,
no liability under either Bivens or the FTCA (although we did
pay a few claims administratively) and five different district
court opinions concluding that our response to the riot was
reasonable in all aspects (medical care, emergency response,
disposition of property, housing conditions, and use of
restraints) .
FCI ALDERSON- Bayles v. Wise - A Motion to Set Aside Judgment
Order Pursuant to F.R. Civ. P. Rule 60(b) was filed in March.
This inmate was granted relief in accordance with Wiggins v.
Wise based on this district's determination that the 2-point
enhancement provision of Section 9 in P.S. 5162.02 was
invalid. The basis of the motion was the recent Pelissero
decision which upheld the 2-point provision of P.S. 5162.02.
The Motion was denied in April. The inmate will be released
to a half-way house May 9, 1999.
SETTLEMENTS: None.
NEW RPRA CASES AND UPDATES ON PREVIOUSLY REPORTED CASES,
TRXALS OR HEARINGS:
MXR Common Fare Pilot Program - The Common Fare Pilot Program
in MXR and at other selected institutions began May 1. A new
OM #020-99 has. been issued which explains the pilot. This
pilot seeks to test the sincerity of an inmate's religious
beliefs when he asks to be placed on common fare. We expect
an increase in BP-9's and litigation as inmates currently on
common fare are re-evaluated between May 1 and May 16.
OSP Terre Haute - Kaba v. Lt. Breckbill, et ale - This is the
Bivens case where the Department delayed granting of
representation to all but one of the defendants until the FBI
completed an investigation. The FBI has completed their local
investigation, but since inmates that need to be interviewed
have been transferred, other FBI offices still need to
complete their part of the investigation. The AUSA handling
the case has just requested a second extension of 30
additional days.
FCl MEMPHIS-Love v. United States - This is an FTCA case where
the inmate was hit on the head by a falling vent cover. Our
investigation revealed that staff knew the vent was loose,

3782

(

Page 3
MXR Monthly Report
submitted a work order for repair and two weeks later, the
repair still not done, it fell and hit the inmate on the head.
(The vent cover was located directly above his cell door.)
Liability is clear, and this case is about damages.
FCi BECKLEY-Eichler v. u.s. - This is an FTCA case arising
from an accident with the institution's bus. Depositions of
the Bureau staff members involved in the accident that remain
at FCI Beckley were held on March 12, 1999. The deposition of
the staff member that transferred from FCI Beckley was taken
at FCI Jesup on April 19, 1999. A similar bus was sent by
Terre Haute to FMC Lexington for review by accident
reconstruction experts for each side.
FCX BECKLEY- Depew v. Hawk - On April IS, 1999, the court
entered an order allowing recently disbarred attorney Mel Dahl
to mail one package containing the inmate's case file and
materials to inmate Depew by April 30, 1999, and ordered the
Bureau to treat the package as special mail. On May 3, 1999,
the package was received. Mel Dahl did not follow the
requirements outlined in the letter and required by policy.
However, the mail was treated as special mail based on the
order entered April 15, 1999.

\

......

FCX BECKLEY-Williams v. Conley - Pursuant to an order entered
April 6, 1999, a hearing was held on April 7, 1999, regarding
inmate Williams' claim that inadequate medical treatment
provided at FCI Beckley resulted in additional portions of his
amputee stump being removed due to infection. Based on the
evidence presented by the Clinical Director at the hearing,
the court found no evidence the inmate's health was in
immediate danger. The court informed the inmate he had
inappropriately filed the case as a § 2241 and that it would
be appropriate under either Bivens or FTCA. The court
requested a private attorney to represent the inmate and
ordered the Bureau to provide a complete copy of the inmate's
medical record to the attorney by May 7, 1999. After
obtaining the inmate's consent to release the information, a
copy of the medical record was provided to the attorney.
FCi MiLAN-Nor.man v. Pontesso - Injunction: On April 13, 1999,
a status conference via telephone was held with the DOJ
attorney and Paul Layer on this Ensign Amendment case. The
magistrate is leaning toward a transfer of venue due to the
inmate's transfer to a federal facility in Texas. Plaintiff's
appointed counsel did not object to such a suggestion.
FCi MiLAN-Sexton v. USA-

This FTCA case involves the slip

3783

Page 4
MXR Monthly Report

(

and fall of a visitor at FCI Milan on January 30, 1997, in the
parking lot . We have pictures showing the parking lot was ice
covered and documents indicate we did not have salt for a
period of time prior to the fall, the day of the fall, and
after the fall.
The visitor broke her wrist. She is
represented by counsel who clearly wants the $250,000 damages.
We finished responding to requests for documents and
interrogatories on April 19, 1999, and just received a request
for admissions on April 30, 1999 . This case has a very bad
fact pattern.
CRIMINAL MATTERS:
FCI MANCHESTER-U.S. v. Alderman - On May 21, 1999, the
, Defendant is scheduled to be sentenced for possession of
narc oti cs.
FCI MANCHESTER-U.S . v. McSwain - Inmate and two ci vilians were
indicted on April 23, 1999, for attempted drug introduction
and possession of narcotics in the visiting room.
FCI MANCHESTER-U.S. v. Dugger - An inmate was indicted on
April 23, 1999, for attempted drug introduction and possession
of narcotics in the visiting room.

(
",

FCI MANCHESTER-U.S. v . Huffman - An inmate was indicted on
April 28, 1999, for attempted drug introduction and possession
of narcotics in the visiting room .
FCI BECKLEY was indicted January 13, 1999, for
seriously assaUlting a staff member. He is charged with
violating IB U.S.C. § 111(a) and (b), as the inmate changed
into steel-toed boots prior to the assault and the officer
suffered serious injuries. The inmate was arraigned
February 2, 1999. Trial was set for April 6, 1999. On
April 7, 1999, inmate"""pled guilty to the charge.
Sentencing is schedulea-for July 6, 1999.
FCI BECKLEY was indicted February 10, 1999
for assaUlting another inmate.
Trial was scheduled for May 5,
1999, but was rescheduled for June 7, 1999, when the court
granted the inmate's request for substittltion of counsel the
week before trial.
FCI BECKLEY was arraigned
December IB, 199B, for Possessing Contraband (heroin).
A plea
hearing was held January 25; 1999, at which time the inmate
pled guilty' to the charg'e .
The inmate was sentenced to IB
months (consecutive) on April 12, 1999 .
SITUATIONS OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS

3784

Page 5
MXR Monthly Report

(

WASTE SITES, ETC.:
Regional Counsel's Office - On Friday, April 30, 1999, in
celebration of "Law Day," the Regional Counsel's Office held a
reception.
This year's theme (established nationally by the
ABA) was "Celebrate Your Freedom" with emphasis on "Quest for
Equality. " The guest speaker was Larry Adams, AUSA, District
of Maryland. He was very complimentary regarding the support
provided the U. S. Attorney's Office by the Regional Counsel's
Office and stated that the BOP is one of the top two or three
Agencies out of the 60 Agencies they deal with in the Civil
Division. Mr. Adams went on to discuss how he feels the BOP's "
Quest for Equality" shows up in the fair way Federal inmates
are treated.
Regional Counsel's Office - On April 28, Marian Callahan,
Assistant Regional Counsel, was the featured "speaker" at a
regular teleconference for institution safety managers in the
region hosted by Dennis Stamper, Regional Safety
Administrator. Marian reminded the Safety Mangers of the
crucial role they play in both the remedy and tort processes
in terms of effective fact-gathering and investigation.
She
also stressed the importance of good, contemporaneous
investigations of accidents, including the need for photos,
and statements of witnesses (staff, inmate and civilian),
where necessary . The Safety Managers were asked to
communicate with the institution legal staff concerning
accidents, and to anticipate a tort claim rather than wait for
the claim to come in to start an investigation . Marian also
discussed CECA and BOPCA claims.
FMC LEXINGTON - An attorney representing the family of
deceased inmate Tracy Hearlson, 24663-086, filed a tort claim
alleging wrongful death and personal injury arising out of the
September 1998 death of Hearlson . Hearlson was found dead in
a common area on the outpatient mental health unit, his head
caved in, apparently by a fire-extinguisher.
To date, nobody
has been indicted for this crime.
Personal Issues'"
Staff Leave and Travel

3785

(

page 7

MXR Monthly Report
New litigation Cases by Institution and Type
Received During the Month of April 1999

BIV
FTCA
HC
OTH
TOT

ALD

ASH

BEC

BUT·

0
0
0
0
0

0
0

0
0
1
0

0
0

1

0
1

1

2
2
4

CUM
1

0
0
0

ELK

LEX

MAN

MEM

MIL

MAG

PET

SEY

MXR

0
0
0

0
0

0
0

0

0
0

2

0

0
0

0
0
1

0

5

2

1

1

0
0
0
0
0

0
0

4
1

0
0
0
0
0

SEY

MXR

0
0
0
0
0

0
0

1
1

1

1

1

1
2

1

0
1

THA
1

0
1
1
3

TOT
2
1
14

6
23

·Represents both the FCI and LSCI
New litigation Cases by Institution and Type
Received Calendar Year to Date

BIV
FTCA
HC
OTH
TOT

ALD

ASH

0
0
0
0
0

0
0

BUT·

1

BEC
1
1
1

0

0

6
6

1

3

13

0
1

CUM
1
1

ELK
0

LEX
1

0

4

2
1
3

0
5

0
6

1
7

MAN

MEM

0
0

0

MIL
2
1

MRG

0
0

PET
1
2

3

5

0
3

3
11

4

1
1

0

0

·6
0

4

2

9

-Represents both the FCI and LSCI

(
"

3786

2
0
2

THA
3

0
3
1
7

TOT
9
7
43
12
71

UNITED STATES GOVERNMENT

C.
DATE:

Bill Burlington, Regional Counsel
Mid-Atlantic Region

SUBJECT;

May

TO:

ATTN:

1999

Monthly Report

Christopher Erlewine, General Counsel
Amy Whalen-Risley, Executive Assistant

ADMINISTRATIVE REMEDIES

JAN

FEB

MAR APR

MAY JUN

Received
Answered

196
166

152
189

244
176

171
186

TORT CLAIMS

JAN

FEB

MAR APR

MAY JUN

Pending
Received
Answered
Pending
'I I"\"er Six Month

215
63
51
231
1

231
64
71
220
1

220
66
49
228
0

221
63
44
245
0

.'RIVACY

JAN

FEB

MAR APR

#
#
#
.' #

\ ...

1999Mid-AtJantic Regional Office, Annapolis Junction. MD 20701

ATTN OF:

REPLY TO

f"

June 4,

memorandum

182
172

228
52
55
221
0

38
30
32
26
# Pending
50
56
# Received
48
52
58
53
# Answered
54
40
# Pending
30
33
26
38
# Over 20 Working Days
0
0
4**
1* File archived; -·*three files being retrieved from archives

MAY JUN

JAN

FEB

MAR APR

MAY JUN

Cases Pending
New Cases Received
Habeas Corpus
Bivens
FTCA
Other
Cases Closed
Cases Pending
Lit Reports Completed
Cases!Hearings or Trials
Settlements!Awards
$ Settlements!Awards
($ in Thousands)

306
19
11
2
2
4
16
309
15
0
1
$20.0

309
14

309
15
10
2
2
1
47
277
12
1
0
0

259
11
5
0
2
4
17
253

8
3
2
1
14
309
16
1
0
0

AUG

SEP

OCT

NOV DEC

JUL

AUG

SEP

OCT

NOV DEC

JUL

AUG

SEP

OCT

NOV DEC

JUL

AUG

SEP

OCT

NOV DEC

33
53
50
36
1

LITIGATION

277
23
14
2
1
6
41
259
15
2
0
0

JUL

3803

8
0
0
0

(

Page 3
MXR Monthly Report
to get a second enlargement of time to respond to this case
the U . S. Attorney's Office , Southern District of Indiana, had
to file a declaration from Helene Goldberg explaining the
situation. The court has granted an extention until July 7,
1999. We have received word that the FBI investigation has
been completed and we are waiting for the Civil Rights
Division to forward their report to Ms. Goldberg's Office .
CRIMINAL MATTERS:
FCI BECKLEY - Inmate
received an 18-month
consecutive sentence on May 3 , 1999, for Possessing Contraband
(Heroin) .

(

FCI BECKELY - Inmate
was indicted for
assaulting another inmate. Trial was initially scheduled for
May 5, 1999, but was rescheduled when the court granted the
inmate's request for substitution of counsel the week before
trial. A superceding indictment was issued in May charging
the inmate with possessing contraband (a weapon). The trial
is scheduled to commence June 8, 1'999, although the inmate has
indicated he intends to enter a guilty plea prior to trial .
SITUATIONS OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS
WASTE SITES, ETC.:

FCI BUTNER - Two administr,a tive remedies have been filed
challenging the new ITS II telephone system.
The inmates are
upset about the mechanism ' in the system that requires the
recipient to press a number to decline or accept a call and
the intermittent branding of the call as from an inmate'in a

3804

Page 4
MXR Monthly

R~port

federal prison . The inmates claim that these features violate
the consent decree because the system inappropriately uses
inmate trust funds to provide security features.
The consent
decree authorizes the inmate to file an action to enforce the
settlement agreement in the Eastern District of Kentucky if
the inmate is dissatisfied with the BP-9 response, therefore
we are conferring with Doug Curless, Litigtion Branch,
regarding the appropriate response .
Personal Issues
Kelly McDonald: We welcome Kelly McDonald, Attorney Advisior,
FCI Cumberland, to the Mid-Atlantic Region.
Kelly comes to us
from private practice in St. Louis, Missouri.
Before that,
Kelly was a law clerk at both the U.S. District and Circuit
Court levels. Please help Kelly feel at home with the BOP .
Dawn Tanner, Legal Assistant, FCI Petersburg ; received the
Mid-Atlantic Regional Director's Award for Asian/Pacific
Islander/Native American Indian Program Manager of the Year
for 199B .

(

Vickie Petricka, Paralegal Specialist, MARO - Please
congratulate Vickie on her successful completion of the
paralegal training program . On June 1st, the official
graduation ceremony took place. Vickie will remaining in MARO
pending her next assignment.
Staff Leave and Travel

3805

c···

Page 5

MXR Monthly Report
New Litigation Cases by Institution and Type
Received During the Month of May 1 999

BIV
FTCA
HC
OTH
TOT

ALD

ASH

BEC

BUT-

CUM

ELK

lEX

MAN

MEM

Mil

MRG

PET

SEY

MXR

THA

TOT

0
0
0
0
0

0
0
0
0
0

0
0
1
0

0
0
0
4
4

0
1
1
0
2

0
1
0
0
1

0
0
0
0
0

0
0
1
0
1

0
0
0
0
0

0
0
1
0
1

0
0
0
0
0

0
0
0
0
0

0
0
0
0
0

0
0
0
0
0

1
0
1
0
2

1
2
4
12

1

5

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

BIV
FTCA
HC
OTH
TOT

AlD

ASH

BEC

BUT-

CUM

ELK

LEX

MAN

MEM

MIL

MRG

PET

SEY

MXR

THA

TOT

0
0
0
0
0

0
0
1
0
1

1
1
2
0
4

0
1
6
10
17

1
2
5
0
8

0
1
2
1
4

1
0
5
1
7

0
0

0

2
1
7

1
2

0

0
10

0
0
0
0
0

0
0
2
0

4
0
4
1
9

10

1
1

0
0
3
0
3

5
0
5

2

5
3
11

2

9

48
16
83

*Represents both the FCI and LSCI

c. .

I

______J

3806

UNITED STATES GOVERNMENT

(

memorandum
DATE:

REPLY TO
ATTN OF:

SUBJECT:

TO:

ATTN:

July 9 I 1999Mid-Atlantic Regional Office, Annapolis Junction, MD 20701

Bill Burlington, Regional Counsel
Mid-Atlantic Region
June 1999 Mon thl y Report
Christopher Erlewine I General Counsel
Mina Raskin, Acting Executive Assistant

ADMINISTRATIVE REMEDIES

JAN

FEB

MAR APR

MAY JUN

Received
Answered

196
166

152
189

244
176

171
186

TORT CLAIMS

JAN

FEB

MAR APR

# Pending

215
63
51
231
1

231
64
71
220
1

220 228 221
66
52
63
49
55
44
228
221 245
000

JAN

FEB

MAR APR

# Received
# Answered
# Pending
Over Six Month

C'···
'.~... ,

RIVACY

182
172

JAN

FEB

MAR APR

Cases Pending
New Cases Received
Habeas Corpus
Bivens
FTCA
Other
Cases Closed
Cases Pending
Lit Reports Completed
Cases/Hearings or Trials
Settlements/Awards
$ Settlements/Awards
($ in Thousands)

306
19
11

309
14
8

309

2
2

3
2

4
16
309

1
14
309
15
16
o
1
1
0
$20.0 0

15
10
2
2

1
47
277
12
1

o

o

2
1

o

o
o

OCT

NOV DEC

DEC

JU'

245
60
62::-

37
1*

MAY JUN
259
11

15
2

SEP

MA~'

277
23
14

6
41
259

AUG

209
202

MAY JUN

# Pending
32
26
38
30
# Received
48
52
50
56
b ...
# Answered
54
40
58
53
50
# Pending
26
38
30
33
36
# Over 20 Working Days
0
0
1*
4* *
1
·File archived; * *three files being retrieved from archives
LITIGATION

JUL

5

253
20
11
4
1

2
4
4
17 12
253 259
8
15

o
o
o

3859

o
1
$22.5

JUL

AUG

I

DEC

Page 2
MXR Monthly Report

(

SIGNIFICANT DECISIONS OR ADVERSE DECISIONS:
FMC LEXINGTON - Jordan v. Thoms, Powell v. Thoms, and Bailey
v. Thoms - In these early release cases, Judges Wilhoit and
Forrester strike down our new rule.
In support of the
decision to invalidate the new rule, the Court relies on
Guideo v. Booker, 37 F. Supp . 1289 (D. Kansas 1999), which
mistakenly read the new rule.
In the Jordan case Judge
Wilhoit also determined that the inmate had successfully
completed the RDAP, despite a declaration from the DAP
Co-ordinator explaining that Jordan had been expelled from the
Transitional Services portion of the program for incurring
incident reports.
The u.S. Attorney's Office is joining us in
recommending an expedited appeal.
FCI PETERSBURG - Zakiya aka Douglas Ross v. Reno - On May 4,
U . S. District Judge Leonie Brinkema entered an order
effectively invalidating a portion of the Inmate Financial
Responsibility Program Statement, and 18 U.S.C . §3624(e) which
require BOP to hold beyond a scheduled release date, inmates
who refuse to sign an agreement to adhere to an installment
schedule while on supervised release. The U.S. Attorney's
Office, and Tom Booth, DOJ, do not favor appeal ,
an appeal should be taken.

(

SETTLEMENTS:
FCI PETERSBURG - Walker v. USA - This previously __~ ____ _
medical tort case was settled - for $22,500. The case involved:
a torn achilles tendon the former inmate received at a county
jail on June 20, 1997, while in the custody of the USMS.
After arriving at Petersburg on July 9, 1997, he was properly
diagnosed as having a possible torn achilles tendon. However,
he did not see an orthopedic specialist until September 3,
1997, with surgical repairs being made on September 29, 1997.
Plaintiff's expert asserted the care was substandard as did
the U. S.'s expert . The Central Office authorized settlement
between $15,000-$25,000.

case
Herrera being stauu~u
in the eye by another Memphis inmate, after Herrera had
indicated he needed protection . As a result of the stabbing,
the inmate lost sight in one eye.
In denying our Motion for
Summary Judgment, the Court pointed out that BOP had notice of
Herrera's protection needs, yet failed to conduct a proper
investigation. Trial is set for July 17, 1999.
NEW RFRA CASES AND UPDATESO~ PREVIOUSLY REPORTED CASES,
TRIALS OR HEARINGS:

3860

Page 3
MXR Monthly Report

(

FCI MEMPHIS - Common Fare pilot - We now have two
administrative appeals challenging removal from Common Fare.
In each case, it appears staff did not apply the proper test
in deciding to remove the inmate.
I am concerned that we do
not spell out criteria for Chaplaincy staff to apply in the
Operations Memo, which results in them focusing on the wrong
issues .
CRIMINAL MATTERS:
FCI BECKLEY- Tremayne Hubbard, Reg. No. 20872-038 - This
inmate was indicted for assaulting another inmate . The inmate
entered a guilty plea to the charge on June 21, 1999 .
Sentencing is scheduled for September 13, 1999.
FCI BECKLEY - Trevor Huie, Reg .. No. 15143-075 - This inmate
was indicted January 13, 1999, for seriously assaulting
staff member. Trial was set for April 6, 1999 . On April 7,
1999, inmate Huie plead guilty to the charge. Sentencing was
scheduled for July 6, 1999. The sentencing has been
postponed.

a

(....
,

FCI ELKTON "- In U.S. v. Ivan Joesph, inmate Joesph is accused
of assaulting a correctional officer. The jury found inmate
Joesph guilty. Sentencing is scheduled for September 7, 1999 .
SITUATIONS OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS
WASTE SITES, ETC.:
FMC LEXINGTON - The tort claim filed by
\c)1~
Administratrix of the Estate of Tracy Hearlson, 24663-086, was
denied under 28 U.S.C. Section 2680(a), the discretionary
function exception to the FTCA. Hearlson was the victim of a
homicide in the transitional care mental health unit at FMC
Lexington in September, 1998. The tort claim alleges staff
negligently failed to protect Hearlson by releasing him from
protective custody after he was ipvolved in a fight.
However,
the decision whether to place Hearlson in PC or transfer him
or other inmates .is a purely discretionary function within the
meaning of 2680(a). Approval to use this argument was
obtained fro~ Mary Leach of the Torts Branch at DOJ.
FMC LEXINGTON - We have received numerous requests from Judge
Joe Hood, E.D. Ky., and the U. S. Attorney's Office Civil and
v\~~
tion of a compassionate release
for
an inmate sentenced by Judge
rom terminal lung cancer and his
compass
has now been approved by Central Office .
USP TERRE
Department of Justice has not authorized
representation for some of the defendants in Kaba Karamo v .
Lt. Brechbill, et al . DOJ has approved gov ernment

3861

Page 4
MXR Monthly Report

(

representation for Defendanttllllllt AW Custody,
to pay for private counsel for Defendants
both Correctional Officers.
include use

allegations
force and retaliation

claims.
FeI BUTNER - The institution received an inquiry from the
Director regarding pending litigation - Woodruff v. us.
Woodruff was sent to FCr Butner for a study by Magistrate
Judge Catoe, (D.S.C.), and committed suicide while in our
custody.
Judge Catoe attended a meeting where the Director
was present and expressed his discontent that two inmates he
has sent to the Bureau for a study, have committed suicide.
(The second inmate was still in the U.S. Marshals' custody at
the time of his suicide . ) Woodruff's family filed a wrongful
death claim which is currently pending in South Carolina. We
were able to provide much of the information from the
litigation prepared on the case, to respond to Judge Catoe's
concerns.

("

Personal Issues
Staff Leave and Travel

L[tigation Cases by Institution and Type
Ree..!lived During the Month of June 1999

BIV
FTCA

He
OTH

, 'T

ALD
0
0
1
0
1

ASH
0
0
0
0
0

BEC
0
0
0
'0
0

BUP
1
0
2
1
4

CUM
0
0
2
0
2

ELK
0
0
0
'0
0

3862

LEX · MAN
0
0
0
0
0
3
0
2
5
0

MEM
0
0
1
1

2

MIL
0
0
1
0
1

MRG
0
0
0
0
0

PET
1

0
1
0
2

SE
0
0
0
0
0

Page 5

MXR Monthly Report

,r~

(
\,

-Represents both the FCI and LSCI
New Litigation Cases by Institution and Type
Received Calendar Year to Date

ALD
BIV
FTCA
HC

OTH
TOT

0
0
1
0
1

ASH BEC BUT-

CUM

ELK

LEX

MAN

MEM

1
1
2
0
4

1
2

0
1
2
1
4

1

0

0
8

0
5
0
5

0
1
2
1

0
0
1
0
1

1
1

8

7

11
21

0
10

3
12

- Represents both the Fel and LSCI

3863

4

MIL MRG PET SEY MXR THA
2
1

0

8

3
0
3

0
11

0

2
2

0
0

6

0

3
13

0

0

0
0
2
0
2

6
1
4
1
12

TOT
14
10

59
20
103

UNITED STATES GOVERNMENT

(~--

memorandum
DATE:

AlTNOF:

Bill Burlington, Regional Counsel
Mid-Atlantic Region

SUBIECT:

July 1999 Monthly Report

REPLY TO

TO:

AnN:

Christopher Erlewine, General Counsel
Nina Raskin, Acting Executive Assistant

ADMINISTRATIVE REMEDIES

JAN

FEB

MAR APR

MAY JUN

JUL

Received
Answered

196
166

152
189

244
176

171
186

209
202

187
235

TORT CLAIMS

JAN

FEB

MAR APR

MAY JUN

JUL

Pending
Received
Answered
Pending

215
63
51
231
1

231
64
71
220
1

220
66
49
228
0

221
63
44
245
0

245
60
67
233
0

233
63
66
218
0

JAN

FEB

MAR APR

MAY JUN

JUL

#
#
#
#

(

August 9, 1999Mid-Atlantic Regional Office. Annapolis Junction, MD 20701

• (\ver Six Month

"i

tllVACY

182
172

228
52
55
221
0

38
30
# Pending
32
26
48
52
50
56
# Received
64
40
68
# Answered
63
38
# Pending
26
30
33
# Over 20 Working Days
0
4*·
1*
0
*File archived; **three files being retrieved from archives

33
53
50
36
1

36
60
59
37
1*

SEP

OCT

NOV DEC

AUG

SEP

OCT

NOV DEC

AUG SEP

OCT

NOV DEC

SEP

OCT

NOV DEC

37
66
46
47
6**

LmGATION

JAN

FEB

MAR APR

MAY JUN

Cases Pending
New Cases Received
Habeas Corpus
Bivens
FTCA
Other
Cases Closed
Cases Pending
Lit Reports Completed
Cases/Hearings or Trials
Settlements/Awards
$ Settlements/Awards
($ in Thousands)

306
19
11
2
2
4
16
309
15
0
1
$20.0

309
14
8
3
2
1
14
309
16
1
0
0

309 277
15
23
10
14
2
2
2
1
1
6
47
41
277 269
12
15
1
2
0
0
0
0

259 253 269
17
11
20
11
4
5
4
4
0
2
1
0
4
4
9
17 12
26
253 259 250
15
8
12
0
0
0
0
1
1
0 $22.5 $25.0

3935

AUG

JUL

AUG

Page 2
MXR Monthly Report
S%~P%CANT

DECISIONS OR ADVERSE DECISZONS:

FMC LEXINGTON - Jordan v. Thoms. Powell v. Thoms,Bailey v.
Thoms,George v. Thoms - In these early release cases, Judges
Wilhoit and Forrester struck down our new rule. In support of
the decision to invalidate the new rule, the Court relied on
Guido v. Booker, 37 F.Supp. 1289 (D. Kansas 1999), which
mistakenly read the new rule. In the Jordan case Judge Wilhoit
initially determined that the inmate had successfully
completed the RDAP, despite a declaration from the DAP
Co-ordinator explaining that Jordan had been expelled from the
Transitional Services portion of the program for incurring
incident reports. After filing a motion for reconsideration,
Judge Wilhoit retreated, and inmate Jordan has now been
brought back to Lexington from a halfway house. We are waiting
for notification from DOJ that an appeal has been authorized
in these cases.

(~

FMC LEXXNGTON - John Davis v. Beeler - In this old rule, early
release case, Judge Forrester invalidated the Bureau's
requirement that an inmate who violates Supervised Release,
must again complete RDAP before he is eligible for early
release. In effect, Judge Forrester held the term of
Supervised Release is part of the initial term of confinement.
We are filing a Motion for Reconsideration, c~ting two recent
6~ Circuit opinions which state Supervised Release is a
sentence separate and apart from the initial confinement
sanction.
FCX MORGANTOWN - Kirby v. Bledsoe - In an unreported decision,
without much analysis, Judge Irene Keeley, has upheld the
Bureau's new rule on early release. Inmate Kirby has filed an
appeal, and it appears the 4th Circuit will soon be asking the
government to file an informal brief. If the case is handled
with informal briefS, it is likely an unpublished opinion will
result.

FCZ MILAN - Taylor v. Pontesso - This is a habeas corpus case
concerning the 1995 RDAP regulations. The case was remanded
from the 6th Cir. with instructions to comply with its Order
in Orr. After review and consultation with the Regional
Counsel and u.S. Attorney's Office, it was decided that Taylor
was eligible for the reduction. Taylor is currently on
supervised release and contact with the u.s. Probation
Department is supportive of the reduction of 1-year on his
supervised release due to MCClain v. Bureau of Prisons, 9 F.3d
503 (6th Cir. 1999), which requires supervised release
reduction when an inmate's sentence computation was in error.
Work continues to file the appropriate motions to satisfy the
various agencies.
SETTLEMENTS:

3936

Page 3
MXR Monthly Report
PCI MEMPHIS - Herrera v. USA - In this failure to protect
. case, we sought settlement authority in the amount of $50,000.
This case involved inmate Herrera being stabbed in the eye by
another Memphis inmate, after Herrera had indicated he needed
protection. As a result of the stabbing, the inmate lost sight
in one eye. We eventually settled the case for $25,000,

bS

b5

NEW RFRA 'CASES AND UPDATES ON PREVIOUSLY REPORTED CASES,
TRIALS OR HBARlN~S:
PCl PETERSBURG- McNeill v. Dewalt, This habeas action which
was reported as dismissed ~ast month is re-opened as an
appeal. The district court dismissed this acti~n on June 18,
1999, in which McNeill sought credit toward his federal
sentence for time spent serving a state sentence in primary
state jurisdicition. Notice of appeal was filed by inmate on
. July 1, 1999. Becuase he is pro se we expect that the CA4
will require informal briefing in the case. «The BOP wrote to
the sentencing federal court to review the inmate's case under
Barden since he sought concurrent serivce. The district court
was adivsed we would do so. The federal sentencing judge
responded that he did not intend MCNeill sentence to run with
state time and his federal sentence should not start until he
came into BOP custody [as currently computed] .» We will
submit the judge's letter to the CA4.

(

'"

..

pel PETERSBURG- Walker v. U.S.A.; This medical

malpra~tice

case was previously reported as closed in the June report as
settled for $22,500.00. A copy of the Agreed Order of
Dismissal, filed June 30, 1999 was received from the AUSA on
July 27, 1999.
CRIMINAL MATTERS:
·:pel MEMPHl:S - We are happy to report that Matthew Mellady, has

been given authorization to act as a Special u.s. Attorney to
prosecute FPC Millington escape cases (where the U.s.
Attorney's Office would otherwise decline prosecution). We
have entered this "pilot program" on a trial basis for one
year, hoping that we can impress upon inmates that even a
s~ort absence from the Camp may subject them to criminal
prosecution.
PCi BECKLEY - Thomas Durham, Reg. No. 22185-016, was indicted
July 7, 1999, for Possessing Contraband (a weapon) .

FMX LEXl:NGTON - After extensive discussion between FMC
Lexington and the prosecuting AUSA, a decision was reached not
to co~tinue ~ursuing criminal assault charges against
D7C
. ..
, a chronic Mariel Cuban
mental health inmate who strucK a staff member in the'Central

3937

b~~

(

Page 4
MXR Monthly Report
Park area of the institution in September, 1998. Pursuant to
18 U.S.C. Section 4241(b), an independent competency to stand
trial study was completed by an outside psychiatrist who found
Guilarte-Felipe not mentally competent to stand trial. OUr
mental health staff agree with the results of the study, and
the assault victim (who was not injured) did not object to the
AUSA declining prosecution. Judge Wilhoit dismissed the
"
indictment on July 20, 1999. Staff feel a sufficient "messagehas been sent to the inmate population regarding the
consequences for assaulting staff.

bl C,

SJ:TUATIONS OF INTEREST, CONTACT WI'l'H PEDERAL BENCH, HAZARDOUS
WASTE SITBS, ETC.:
LEXINGTON - Lexington u.s. Attorney's Office - During a
recent Institution Character Profile, Margaret Hambrick met
with u.s. Attorney Joseph Famularo, E.D. Kentucky, at which
time he requested that BOP give the U.S. Attorneys Office a
position. This request was based on an increase in litigation
that will result from several institutions being built within
the E.D. KY. Ms. Hambrick indicated we would provide
information, which they could use to make their request for
additional positions, but that we did not have positions to
give them.
PM~

PCX BOTNER - ELBA Filing Fees - We have had two recent
contacts from Pat Conner, Clerk of the 4th Circuit, asking
what efforts institution staff have taken to collect PLRA
filing fees.
Ms." Conner has cited Hall y. Stone, intimating
that the 4~ Circuit will enforce, via its contempt power, the
PLRA requireme.nt that the custodian take' money from the inmate
account, regardless of whether the inmate will sign a
commissary form authorizing the withdrawal. ~l MXR staff have
"been advised that once we receive notification from the court
or clerk's office that fees are due, we are to withdraw the
funds.
..~

3938

Page 5
MXR Monthly Report

(

PC% MILAN - On July 13, 1999, FCl Milan in conjunction with

the Hon. Bernard Friedman, u.s. District Judge, E.D. Michigan,
conducted the Judge's annual tour of FCI/FDC Milan. This all
day event encompassed a prison transport bus picking up the
visitors at the Courthouse in Detroit, background of FCl Milan
and the BOP, a tour of both facilities, lunch and a meeting
with the Warde~ and Executive Staff. The tour consisted of one'
- .; new federal judge, and 30 staff, including law clerks and
administrative personnel for the federal judges, and one Sixth
Circuit Court of Appeals Judge. It was well received.
Personal Issues
1

(

-.

,
---- -Staff Leave and Travel

August 10-12
August 18-20

Regional Office
Annual Leave··

b'(p iIIill b~.. on· annual leave August 30 - September 3,
1999.

Dw

I

b0;>

-:

blo

will be on

Ann~al

Leave from 8/2-8/6/99.

Administrative Leave (CLE) -- August 13
Annual Leaye -- August 13 through August 20.

,
I

\,

3939

b<.o

---------------_... '-

(

...

- ....

page 6
MXR Monthly Report
New litigation Cases by Institution and Type
Received During the Month of July 1999

BIV
FTCA
HC
OTH
TOT

ALD
0
0
0

0
0

ASH
0
0
0
0
0

BEC
0
0
0

0
0

BUT0
0
1
9
10

CUM
1
0
0
0
1

ELK
0
0
0
0
0

LEX
0

0
0
0
0

MAN
0
0
0
0
0

MEM
1

0
1
0
2

MIL
0
0
0

0
0

MRG
1

0
0
0
1

PET
0
0
0
0
0

SEY
0
·0
0
0
0

MXR
0
0
0
0
0

THA
1
0
2
0
3

TOT
4
0
4
9
17

PET
2
2
6

SEY

MXR
0
0

THA
7
1
6
1
15

TOT
1B
10
63
29
120

-Represents both the Fel and LSCI
New Litigation Cases by Institution and Type
Received Calendar Year to Date

BIV
FTCA
HC
OTH
TOT

ALD
0
0
1
0
1

ASH
0
0
1
0
1

BEC
1
1
2
0
4

BUT1
1
9
20
31

CUM
2·
2

ELK
0
1

7

2

0
11

1

LEX
1
0
8
3

4

12

MAN
0
0
5
0
5

-Represents both the FCI and LSCI

( ...

/

3940

MEM
1
1
3
1
6

MIL
2
1
8
0
11

MRG
1
0
3
0
4

3
13

0
0
0
0
0

2
0

2

UNITED STATES GOVERNMENT

memorandum (
DATE:

September 3,

1999Mid-Atlantic Regional Office. Annapolis Junction, MD 20701

AlTNOF:

Bill Burlington, Regional Counsel
Mid-Atlantic Region

SUBJECT:

August

REPLY TO

TO:

ATTN:

1999

Monthly Report

Christopher Erlewine, General Counsel
Mina Raskin, Acting Executive Assistant

ADMINISTRATIVE REMEDIES

JAN FEB

MAR APR MAY JUN JUL

Received
Answered

196
166

244
176

TORT CLAIMS

JAN FEB

MAR APR MAY JUN JUL

AUG SEP

# Pending
# Rec~ived
# Answered
# Pending
'lver Six Month
.n the process of settling.

215
63
51
231
1

220
66
49
228
0

218
44
65
189
1*

FOI/PRIVACY

JAN FEB

152
189

231
64
71
220
1

182
172

228
52
55
221
0

171
186

221
63
44
245
0

209
202

245
60
67
233
0

187
235

233
63
66
218
0

MAR APR MAY JUN JUL

AUG SEP

OCT NOV DEC

207
153

OCT NOV DEC

(

AUG SEP

OCT NOV DEC

# Pending
26
32
38
30
33
36
37
# Received
48
52
50
56
53
60
56
# Answered
54
40
58
53
50
59
46
# Pending
26
38
30
33
36
37
47
# Over 20 Working Days
0
0
1*
1
4**
1* 6**
*File archived; * *three files being retrieved from archives;-awaiting all five files

47
44
57
34
5from archives

LITIGATION

JAN FEB

MAR APR MAY JUN JUL

AUG SEP

Cases Pending
New Cases Received
Habeas Corpus
Bivens

306
19
11
2
2
4
16
309
15
0
1
$20.0

309
15
10
2

FTCA

Other
Cases Closed
Cases Pending
Lit Reports Completed
Cases/Hearings or Trials
Settlements/Awards
... Settlements/Awards
I in Thousands)

309
14
8
3
2
1
14
309
16
1
0
0

277
23
14
2
2
1
1
6
47
41
277 259
12
15
1
2
0
0
0
0

259
11
5
0

2
4
17
253
8
0
0
0

253 259 250
20
17
21
11
4
11
4
4
4
1
0
3
4
9
3
12
26
20
259 250
251
15
12
19
0
0
0
1
1
0
$22.5 $25.0

OCT NOV DEC

0

(,'

4348

Page 2
MXR Monthly Report
SIGNIFICANT DECISIONS OR ADVERSE DECISIONS:
FCI CUMBERLAND - Coker v. Henry - In this Bivens case, the
District Court allowed an inmate to voluntarily dismiss his
case, and in so doing, avoid the obligation to pay the full
$150 PLRA filing fee.
We have .filed a Motion for
Reconsideration, pointing out that under the PLRA, the
obligation to pay the full filing fee is incurred upon filing
the complaint. Dismissal of the complaint by the court or the
inmate, does not affect the inmate's obligation to pay the
full fee.
FCl MEMPHIS - Davidson v. Luttrell - This RDAP two-point
enhancement case was dismissed in the District Court. The
petitioner appealed. The Court of Appeals vacated the
District Court's judgment in light of Orr and remanded the
case back to the District Court.

c.

FCI MILAN - Tavlor v. Pontesso - This is a habeas corpus
petition challenging the 1995 RDAP regulations. The case was
remanded from the 6th Circuit with instructions to comply with
its order in Orr. After review with the u.s. Attorney's
Office it was decided that Taylor was eligible for the
reduction. Taylor is currently on supervised release.
The
u.s. Probation Department is supportive of the one year
reduction on his supervised release due to the decision in
McClain v. Bureau of Prisons, 9 F.3d. 503 (6th Cir. 1993),
which requires SR reduction when an inmate's sentence
computation was in error.
FCI MILAN - Todd v. Scibana - This was a habeas action
challenging the 1997 RDAP regulations, specifically the
two-point enhancement for a firearm.
On July 28, 1999, the
Court issued an Order granting the petition and citing the
Guido v. Booker, 37 F.Supp 1302 (D. Kansas 1999) decision.
The Court felt that the BOP was attempting to circumvent the
line of federal cases holding the BOP cannot use a sentencing
enhancement to define an inmate as violent. The Court
completely disregarded the fact that we determined the
Petitioner's offense was non-violent. A Motion for
Reconsideration was filed on August 26, 1999, based in part on
Bellis.
FCI ELKTON - Nugent v. LaManna, et ale - In this Bivens case
the District Court found that our efforts to enforce the no
smoking policy defeated plaintiff's claims we were
deliberately indifferent to his medical needs.
SETTLEMENTS:

(

FMC Lexington - Maltz v. u.s. - We have requested settlement
authority in the amount of $70,000, in this failure to

4349

Page 3
MXR Monthly Report
diagnose cancer case out of Lexington. Our expert states we
were negligent in failing to diagnose the cancer earlier, but
he is not clear that the delay caused any harm. Plaintiff
countered with an oncologist who-states our delay did
adversely affect Mr. Maltz' chances of recovery. The Judge is
allegedly pro-plaintiff, and suffering from cancer himself.
We have requested settlement authority in the amount of
$70,000. Dr. Duggirala concurs that we should settle this
case. A second settlement conference is scheduled for
September 14.

( ....
_

FCI Manchester - Administrative Claim regarding death of
inmate Stump - We learned from Renee Fornshill that
preliminary talks with Larry Klinger, Torts Branch, are
positive, and they believe this case is appropriate for
settlement in the $500,000 range. We will meet with
plaintiff's counsel, to try and sell a structured settlement.
NEW RFRA CASES AND UPDATES ON PREVIOUSLY REPORTED CASES,
TRIALS OR HEARINGS: None
CRIMINAL MATTERS:
FCI BECKLEY - On August 19, 1999, inmate Trevor Huie, Reg.
No. 15143-075, was sentenced for violating 18 U.S.C. §§ 111 (a)
and (b). After three hours of testimony by various staff and
legal arguments, the Judge determined the assault was in fact
an aggravated assault. The Judge found Inmate Huie's base
offense level to be 15 and added points for the following: two
points for more than minimal planning involved, i.e., inmate
had a mouth guard in place, had put on steel-toed boots and
padded gloves, and waited until the officer was alone in the
unit; three points were added because the victim was an
official; four points were added due to serious injuries; and
three points were subtracted for acceptance of responsibility.
The total offense level was 21 with a guideline range of 46-57
months. The Judge sentenced Huie to 57 months (consecutive)
and explained he wanted to send a strong message to the
inmates at the facility that assaults on officers would not be
tolerated. The Judge ordered restitution in the amount of
$14,344.33 to Dept. of Labor (Worker's Compensation), payable
at $50.00 a month. A letter of appreciation from Chris
Erlewine to John File, the Assistant U.S. Attorney, has been
prepared.

Ct'L·.·.··
~

SITUATIONS OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS
WASTE SITES, ETC.:
USP TERRE HAUTE - On September 14, 1999, Warden Lappin will
meet with representatives from the Death Penalty Resource
Project, Norfolk, Virginia. We anticipate they will complain
about the length and frequency of socia~ visits in the Special

4350

(,

(

Page 4
MXR Monthly Report
Confinement Unit. We intend to invite Peggy Griffey, from the
Capitol Crimes Unit, DOJ. We are hopeful that Doug Curless
will also be able to attend.
FCI PETERSBURG - On August 24, 1999, nine new Federal judges,
along with six other staff from the Federal Judiciary Center,
visited the institution for a tour and discussion with
executive staff and inmates on the imprisonment portion of a
Federal sentence as a part of the new judges' training.
The
judges all expressed how pleased they were with the appearance
of the institution and the interaction between staff and
inmates.
As usual, many of them questioned the impact of the
long sentences for drugs and the disparity between crack and
powder cocaine. Several of the new judges were also very
interested in the racial breakdown of the inmate population,
and questioned why the BOP in its statistics includes
Hispanics in the white racial category.
Personnel Issues

(

Staff Leave and Travel
August 30-Sept. 1 - Pensacola
(re-engineering)
September 13-15 USP Terre Haute
September 20-24 - rcp USP Terre Haute
September 7-10 - annual leave
September 3, 7 & 30 - annual leave
September 16-17 - administrative leave
(CLE)

4351

Page 6
MXR Monthly Report

. 4352

Page 7
MXR Monthly Report
New litigation Cases by Institution and Type
Received During the Month of August 1999

BIV
FTC
A
HC
OTH
TOT

.

ELK

LEX

1

CU
M
1
1

2
0

0
0

2
3

1

0
0

4

1

0

0

0

6

3

2

4

2

ALD

ASH

BEC

BUT

0
0

0

0
0

0

1

0
0
0

0
0
1

2
0
2

MA
N
1

0

MEM

MIL

MRG

PET

SEY

MXR

THA

TOT

0
0

0
0

0
0

0
0

0
0

0
0

0
0

4
3

0
0
0

1

0

0
0
0

0
0
0

0
0
0

0
0
0

0
0
0

11
3
21

1

- Represents both the FCI and LSCI
New litigation Cases by Institution and Type
Received Calendar Year to Date

BIV
FTC
A
HC
OTH
TOT

.

ALD

ASH

BEC

BUT

0
0

0

1
1

1
2

1

4

0

0
6

11
23
37

1
0
1

1

2

CU
M
3
3

ELK

LEX

2
1

1

MA
N
1

0

0

8
0

2
1
6

12
3
16

6
0

14

7

MEM

MIL

MRG

PET

SEY

MXR

THA

TOT

1
1

2
1

1

2

0

2

0
0

0
0

7
1

22
13

3
1
6

9

3

0
4

6
3
13

0
0
0

2

0

0

6
1
15

74
32
141

-Represents both the FCI and LSCI

(,

4353

12

2

UNITED STATES GOVERNMENT

memorandum C
October 6,

DATE:

1999Mid-Atlantic Regional Office. Annapolis Junction, MD 20101

AlTNOF:

Bill Burlington, Regional Counsel
Mid-Atlantic Region

Sl'BJECT:

September

REPLY TO

TO:

ATTN:

1999

Monthly Report

Christopher Erlewine, General Counsel
Mina Raskin, Acting Executive Assistant
MAR APR MAY JUN JUL

AUG SEP

244
176

207
153

ADMINISTRATIVE REMEDIES

JAN FEB

Received
Answered

196
166

TORT CLAIMS

JAN FEB

MAR APR MAY JUN JUL

AUG SEP

215
63
51
2.31
1

220
66
49
228
0

218 189
54
44
65
69
189 173
0
1*

#
#
#
#
#

Pending
Received
Answered
Pending
Over Six Month
the process of settling.

FOI/PRIVACY

152
189

231
64
71
220
1

182
172

228
52
55
221
0

171
186

221
63
44
245
0

209
202

245
60
67
233
0

187
235

233
63
66
218
0

OCT NOV DEC

178
213

OCT NOV DEC

('
JAN

FEB

MAR APR MAY JUN JUL

32
38
# Pending
26
30
33
36
37
48
# Received
52
50
56
53
60
56
54
40
58
53
50
59
# Answered
46
26
# Pending
38
30
36
37
33
47
0
# Over 20 Working Days
1
0
1*
1*
4**
6**
*File archived; * *three files archived;_all five files archived;-six files archived.

LITIGATION

JAN FEB

MAR APR MAY JUN JUL

Cases Pending
New Cases Received
Habeas Corpus
Bivens
FTCA
Other
Cases Closed
Cases Pending
Lit Reports Completed
Cases/Hearings or Trials
Settlements/Awards
$ Settlements/Awards
t $ in Thousands)

306
19
11
2
2
4
16
309
15
0
1
$20.0

309
15
10
2
2
1
47
277
12
1
0
0

309
14
8
3
2
1
14
309
16
1
0
0

277
23
14
2
1
6
41
259
15
2
0
0

AUG

SEP

47
44
57
34
5-

34
47
46
35
7-

AUG SEP

259 253 259 250 251
11
17
20
21
11
5
11
4
11
7
0
4
4
4
1
2
1
2
0
3
4
4
9
1
3
17 12
26
11
20
253 259 250
251
251
15
8
12
19
15
0
0
0
0
0
1
0
1
0
0
0 $22.5 $25.0
0

OCT NOV DEC

OCT NOV DEC

0

(
"

4374

Page 2
MXR Monthly Report

(

SZGNZFICANT DECZSIONS OR ADVERSE DECISIONS:
FCI ~LAN - Todd v. Scibana - This habeas action reported last
month challenges the 1997 version of 28 CFR §550.50, et seq.,
specifically, the two-point enhancement for a firearm. On
July 28, 1999, the Court issued an Order granting the
petition. The Court Ordered a Status Report due August 27,
1999. The inmate is now at FPC Duluth. Per the Order, the
Court was advised that the inmate was now RDAP eligible, but
due to a release date in November 2005, he would not be placed
in a program until closer to his release date. A Notice of
Appeal has been filed in this case.
~LAN - Welch v. Reno (Title VII/Rehab Case) - Former
employee seeks $300,000 in damages plus attorney fees based on
the contention that she was constructively discharged due to a
back injury which, in her doctor's opinion, prohibited
firearm's certification. Plaintiff alleges that as an
accounting technician, the firearms requirement is not an
essential function of her position, and that other staff have
been granted extended waivers for firearms based upon medical
conditions. Plaintiff seeks both back pay and front pay, as
well as an award/order that she will not be required to return
to work at FCI Milan or the BOP due to an alleged hostile work
environment. A settlement conference was held on
September 20, 1999, with BOP labor law staff, the Warden, the
AUSA, and Kevin Walasinski. The AUSA was not supportive of
the settlement offer. BOP will need to monitor this case
carefully .. The AUSA and BOP Labor Law attorney will be at FeI
Milan the week of October 11, 1999, to interview witnesses.

FCI

(

USP TERRE HAUTE - Special Confinement Unit - Inmate Hammer's
standby counsel filed a motion with the Third Circuit alleging
that he ~as not being provided adequate telephone access with
his attorneys, and requesting that he be permitted legal calls
to paralegals/legal assistants within the attorney's offices.
After being informed of the extensive telephone access
provided by staff at Terre Haute, the Third Circuit denied
Hammer's motion, finding that he had been given adequate
access to counsel.
.
SETTLEMENTS:
FCl MANCHESTER - T-MXR-99-70 - On September 24, 1999, Marian
Callahan and I traveled to Columbus, Ohio, to attempt
settlement of this wrongful death, administrative tort claim.
While DOJ had approved settlement at $500,000, we presented a
structured settlement plan with a benefit package totaling
$325,000. We are waiting for plaintiff's reply.
NEW RFRA CASES AND UPDATES ON PREVIOUSLY REPORTED CASES,

4375

Page 3
MXR Monthly Report
TRIALS OR HEARINGS:
FeI CUMBERLAND - Saunders v. USA - Saunders, a paraplegic
inmate, has filed an FTCA complaint alleging the BOP
negligently maintained the television switches in his unit; he
seeks $2,500 for injuries to his hand. The Judge did not order
payment of an initial filing fee because she believed FCI
Cumberland had not forwarded a copy of the plaintiff's account
in a timely manner. Since the institution had responded
within one day of re~eipt of the order, Kelly McDonald,
Attorney, got the pro se law clerk to agree the order was
premature and BOP could ask for reconsideration.
Reconsideration was not sought as the inmate had no money in
his account and the BOP interpreted the order to require
installments. When BOP withdrew funds for the first
installment, the inmate moved the Court for a Contempt Order
arguing that the BOP had violated the Court's order. A
response was filed arguing that BOP did provide the account
information in a timely manner and based on the PLRA and the .~
original order, BOP was required to forward installment
payments from the plaintiff's account.
FeI CUMBERLAND - Hodges v. USA - Inmate Hodges, with the
assistance of retained counsel, has filed a suit under the
FTCA, seeking $2 million in damages. Hodges was assaulted in
1997, which resulted in the loss of one eye. Hodges alleges
we failed to protect him from an injury that occurred in plain
view of correctional officers, that there were an insufficient
number of officers; and he received inadequate and untimely
medical care.
\o~
FCI BECKLEY - Fleming v. US BOP - Summary Judgment was granted
in t'he Bureau's favor in this Privacy Act case. The inmate
challenged the drug quantities in the PSI and therefore,
challenged the staff's reliance on the PSI. Although Summary
Judgment was entered in our favor, the court did find that the
PLRA exhaustion requirement did not apply to this lawsuit
because it was a Privacy Act claim that challenged the PSI,
and since staff did not have "the authority to amend the PSI
exhaustion could provide no relief, and it was not a challenge
to prison conditions.
Fel PETERSBURG - Braxton v. Dove - The Sixth Circuit, in a
June 27, 1999 order~ overturned the dismissal of this habeas
petition filed by Braxton in 1997 while he was confined at
Ashland. The Sixth Circuit, based on the Orr decision,
remanded the case to the district court to-review Braxton's
denial of early release eligibility because of a two point
enhancement for possession of a firearm, after having been

4376

(
'~.,

Page 4
MXR Monthly Report
acquitted on a §922(g) conviction. Braxton·s classification
was changed from "ineligible" to "eligible" on July 19, 1999.
He was tran~ferred to the halfway house component of the early
release program on August 20, 1999. The district court issued
an order September 13, 1999, granting the petition, only to
the extent the BOP was directed to consider him for early
release without consideration of the §922(g) conviction and to
respond to the court within 30 days regarding compliance with
the order. The AUSA is filing a response notifying the court
the issue is now moot.
F.NC LEXINGTON - In Gravens v. Thoms, Judge Wilhoit dismissed
Petitioner·s habeas action, which challenged the BOp·s new
regulation interpreting weapons possession crimes as
precluding eligibility for early release benefits. Curiously,
Judge Wilhoit opined Petitioner·s case was not yet ripe for
adjudication because he was still in the drug program and had
not yet graduated and he was therefore not yet given "
consideration for early release." Judge Wilhoit·s opinion is a
victory for the Respondent in a District where Judges Wilhoit
and Forester previously ruled in favor of the inmate
petitioners in new rule 3621(e) cases, issuing opinions which
showed a lack of understanding of the issues in the cases.

FCl MEMPHIS - Davidson v. Luttrell - This RDAP/2-point
enhancement case was dismissed in the District Court. The
Petitioner appealed. The Court of Appeals vacated the
district court·s judgment in light of Orr and remanded the
case back to the district court. Originally dismissed sua
sponte by the district court, the court has issued an Order to
respond. Upon reconsideration, the inmate has already been
determined to be provisionally eligible for early release
since the 2-point enhancement was the only disqualifying
factor. We have drafted an affidavit and intend to file a
motion to dismiss based on mootness.

(

FC! PETERSBURG - Phillips v. Hawk Sawyer, et ale - The Court
issued an order dismissing this case with prejudice on
September 30, 1999, due to the statute of limitations. The
case has a long history since it was filed in D.C. in 1997.
The original case alleged fraud in UNICOR operations at FPC
Petersburg. Inmate Phillips then asserted staff had failed to
protect him when he was not transferred from Petersburg; that
his constitutional rights were violated by his placement in
SHU for protection; and that staff retaliated by not approving
a furlough or transfer for him to a work cadre in Baltimore
(close to his wife). The court had set the matter for fast

4377

Page 5
MXR Monthly Report
track and a trial date had been set for October 7, 1999. The
court issued a order on September 30, 1999, dismissing the
case with prejudice.
(Note: the allegation of fraud in the
furniture factory made by plaintiff in this case mirrored the
fraudulent scheme for which plaintiff had been convicted.)

(---

FeI BECKLEY - Tremayne Hubbard, Reg. No. 20872-038, was
initially indicted for assaulting another inmate. A
superseding indictment was issued in May, charging the inmate
with possessing contraband (a weapon). The inmate entered a
guilty plea to the charge on June 21, 199~. The sentencing
scheduled for September was postponed until October 28, 1999.
FeI BECKLEY - Thomas Durham, Reg. No. 22185-016, was indicted
July 7, 1999, for Possessing Contraband (a weapon). He pled
guilty to the charge on September 20, 1999.
FCI BECKLEY - William Brown, Reg. No. 53012-060, was indicted
September 28, 1999, for Possessing Contraband (Marijuana).
FeI BECKLEY - Leo Markoneti, Reg. No. 37568-053, was indicted
September 28, 1999, for Possessing Contraband (Marijuana).
FCI BECKLEY - Marlo Evans, Reg. No. 25852-083, was indicted
September 28, 1999, for Possessing Contraband (Marijuana).

C'

''--.

FCI BECKLEY - Damian Johnson, Reg. No. 35070-083, was indicted
September 28, 1999, for Possessing Contraband (Marijuana).
FMC LBXr.NG~ON - On September 28, 1999, Danny Stone, the
brother and accomplice of Sheila Troxell, Reg. No. 05872-032,
was convicted by a jury before Judge Karl Forester, E.D. Ky.,
on charges of conspiring to effectuate the Escape (walkaway),
of Troxell from FPC Lexington, Atwood. The sentencing is in
December. Troxell previously entered a guilty plea and will
be sentenced around the same time by Judge Forester.
FCI CONBERLAND - USA v. Danny Rae Shafer - This previously
reported case for escape from the camp on September 12, 1998,
has been reset for trial on November 4, 1999, after having
been delayed for completion of a mental competency study.
SITUATIONS OP INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS
WASTE SITES, ETC.:

ENe LEXINGTON - The mother of homicide victim Tracy Hearlson,

(

Reg. No. 24663-086, has filed an FTCA suit alleging wrongful
death and personal injury arising out of Hearlson's

~,

4378

(

Page 8
MXR Monthly Report

4379

Page 9
MXR Monthly Report
New Litigation Cases by Institution and Type
Received During the Month of September 1 999

BIV
FTC

.

ALD

ASH

BEC

BUT

CU
M

ELK

LEX

0
0

0
0

0
0

0

0
0

0
0

0
0
0

1

0

0

1

0

0
0

1
2

0

1

MA
N

MEM

MIL

MRG

PET

SEY

MXR

THA

TOT

0

1

0

1

0

0

0

0

0

0

0

0

0

0
0

0

0

0

1
2

0

3

0
0

0

1
0
2

0
0

1
0

0

0

0
0

0
0

0
0
0

0
0

0
0

0

1

0

0

1
11

A
HC
OTH
TOT

1

1

4

7

-Represents both the Fel and LSCI
New Litigation Cases by Institution and Type
Received Calendar Year to Date

BIV
FTC

BUT

ALD

ASH

BEC

0
0

0
1

1

1

1

3

1

2
0
3

4
0
6

11
24
39

•

CU
M
3
3

ELK

LEX

2
1

1
1

9
0

2
1
6

15
3
20

MA
N
2

MEM

MIL

MRG

PET

SEY

MXR

THA

TOT

1

2

1

2
2

0
0

7

1

1
0

0

0

0

1

23
15

7
0
9

3
1

10
0
13

3
0
4

6
3
13

0
0
0

2
0
2

6
1
15

81
33
152

A
HC
OTH
TOT

0
1

15

6

• Represent$ both the FCI and LSCI

i

I .....
,(
I

r

I

4380

' ...

 

 

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