Fbop Mxr Monthly Reports 2000

• Topics: Court Access, BOP Litigation Reports

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(0DATE:

UNITED STATES GOVERNMENT
memorandum
Mid-Atlantic Regional Office, Annapolis Junction, MD 20701

February 8, 2000

REPLY TO
ITNOF:

Bill Burlington, Regional Counsel
Mid-Atlantic Region

SUBJECT:

January 2000 Monthly Report

Christopher Erlewine, General Counsel

TO:

Linda Dubose, Executive Assistant

A1TN:

DMlNISTRATIVEREMEDIES

APR MAY

JAN FEB MAR

ocr NOV DEC

ceived
swered

JUN JUL AUG SEP

161
149

RTCLAIMS

JAN FEB MAR

APR MAY

JUN JUL AUG SEP OCT

APR MAY

JUN JUL AUG SEP OCT

APR MAY

JUN JUL AUG SEP

NOV DEC

(llding
ceived
swered
l~·

Month

~RIVACY

194
54
45
198

JAN FEB MAR
NOV DEC

Hog

ived
{ered

60
35

20 Working Days
les archived
~TION

S5
7*

JAN FEB MAR
NOV DEC

nding
es Received
orpus

2S0
14
10
3
1

3624

ocr

Cases Closed·
Cases Pending
eports Completed

'--.. ,. ;/Hearings or Trials

~",,&JementslAwards
$ Settlements!Awards
($ in Thousands) .

15
249
17

1
$500.0

3625

Page 3
:MXR Monthly Report

SIGNIFICANT DECISIONS OR ADVERSE DECISIONS:
FCI BECKLEY - Maydak v. Olson - This case is an old Ensign
Amendment case, coupled with a challenge to staff members
rejecting commercially available nude photographs.
A
favorable R&R was entered in January recommending that the
District Court grant our Motion to Dismiss. Specifically, the
Magistrate Judge recommended the Court find the inmate's
request for an injunction to stop Beckley from rejecting
commercially nude photographs was moot, since the inmate is no
longer at FCI Beckley. The Magistrate Judge also recommended
the Court dismiss the inmate's Ensign Amendment challenge for
failure to state a claim, in light of Amatel v. Reno. To
date, objections have not been filed by inmate Maydak.
FeI BECKLEY - Lee v. Olson - This case is an old Ensign
Amendment case. A favorable R&R was entered in January
recommending the case be removed from the Court's docket in
light of Amatel v. Reno. To date, objections have not been
filed by inmate Lee.
FeI BECKLEY - Edwards v. Olson, et ale - In 1997, inmate
Edwards filed a Bivens claim against numerous staff members
alleging he was scored a medium inmate to keep him at FCI
Beckley to maintain the numb~r of white inmates at the
facility. On January 11, 2000, the Magistrate Judge entered an
R&R recommending the District Court find that the Defendants
are not entitled to qualified immunity, and that an
evidentiary hearing be held to determine whether any Defendant
used race as a factor in determining the inmate's custody
classification.
Objections to the R&R are being drafted.
FeI MEMPHIS - Danner v. Reno, et ale - In Plaintiff's Response
to Defendant's Motion to Dismiss/Motion for Summary Judgment,
Plaintiff conceded that her Bivens claims should be dismissed
for lack of jurisdiction. Plaintiff also conceded that her
stated FTCA claims were barred by the exception provisions of
the FTCA. The only claim remaining was Plaintiff's Title VII
claims of sexual harassment and retaliation. As a result,
this case has been transferred to the Labor Law Branch,
Central Office.
SETTLEMBNTS:
FCI Manchester - Stump v. United States - (Administrative
Claim)- We have a tentative agreement to settle this
administrative, wrongful death claim for a cash payment of
$500,000. We have now received DOJ approval and have
communicated that to Plaintiff's attorney.

3626

Page 4

MXR Monthly Report
UPDATE ON CASES, TRIALS OR BEARI:NGS, ETC. NOTED IN PlUOR
REPORTS:

FeI ~LAN - Anderson v. Hemingway - This is a Habeas
Corpus/TRO case concerning an inmate's return to FDC Milan
from a CCC based upon a positive U/A test. The inmate
challenged the CDC hearing. A Reply Brief was prepared and
submitted to the AUSA and the inmate's BP-I0 was granted for a
new hearing. After much discussion in the Regional Office,
the inmate was sent back to the CDC pending a rehearing.
CIlDIINAL:

asp TERRE BAUTE - Special Confinement Unit - The Federal Death
Penalty Resource Counsel Project has not yet asked to set up a
meeting with Warden Lappin, regarding concerns they raised
with the Director. On a related note, we have received a
request from inmate Garza's attorney, asking for permission to
video tape Garza making a request for Clemency to President
Clinton. While we have seen a draft of the Clemency
regulations, no execution date has been set for inmate Garza.
BOP's execution protocol has been finalized and is ready for
DOJ review.
FeI BECKLEY - Inmate Michael Kokoski, Reg. No. 02115-061,
walked away from FPC Beckley in 1996. He was subsequently
arrested in Montana and has now been transported back to
Beckley for escape prosecution. Trial was scheduled for
February 2, 2000. On February 1, 2000, inmate Kokoski pled
guilty to the charge. Sentencing is set for April 2000.
SZTOATIONS OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS
WASH SIDS, ETC.:

Fel ASHLAND - Bryan Sublett v. Ashland Employees Club - We
were notified this week that the Department denied
representation to the Employees Club in this case as the Club
was not an agency of the federal government. The employee,
Bryan Sublett, filed a case under state tort law, alleging the
Employees Club was negligent in serving him alcohol and then
permitting him to drive. He claims this was the proximate
cause of a car accident which resulted in the loss of a
portion of his leg. This occurred in May of 1997 during
Correctional Officer Week activities. The Employees Club
President requested representation on behalf of the Club.
FeI ~LAN BP-9's. The
as argument
utilized to

Milan has had a great increase in the filing of
inmates continue to cite the Samples & Todd cases
that §922(g) & §924(c) convictions cannot be
deny §3621(e) eligibility. Legal staff at Milan

3627

(

Page 5
MXR Monthly Report

anticipate an ever increasing number of habeas corpus
challenges.
FCI BUTNER - D.C . Contract Monitoring Visit-Greensville, VA In late January I had an opportunity to visit the Virginia
Department of Corrections facility at Greensville, VA, where
we have a contract to house 1000 D.C. Department of
Corrections inmates.
The facility appears very well run.
The most common complaint we heard from inmates involved
overdue parole and parole revocation hearings.
I think we
will have to watch this contract very carefully for the first
year, as the D.C. Department of Corrections appears to have
given these inmates many legitimate complaints .
This
facility will receive on site monitoring visits every 90 days.
FCI PETERSBURG - Inmate Telephone Issue - On February IS',
Petersburg was to institute a policy that all but one inmate
phone in the housing units wou~ff during work
hours (7:30 - 4:30).
Inmate _ _ _ _ contacted the
ACLU, who in turn contacted Douglas McSwain, counsel for
laintiffs in the ITS settlement.

c
na. ... u .cn

Brooks iss
amended guidelines indicating that
housing
unit phones would remain available to inmates each work day
from 10:30 to 12:30.
Personnel Issues

Staff Leave and Travel

3628

, 7
l",XR Monthly Report

.'/---~le
"

,.~,

(""
New Litigation Cases by Institution and Type
Received During the Month of January 2000

ALD

ASH

BEC

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CUM

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LEX

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(

UNITED STATES GOVERNMENT

memorandum
DATE:

March 9, 2000

Mid-Atlantic Regional Office, Annapolis Junction, MD 20701

AnN OF:

Bill Burlington, Regional Counsel
Mid-Atlantic Region

SUBJECf:

February 2000 Monthly Report

RfPLYTO

~
ATIW:

Christopher Erlewine, General Counsel
Linda Dubose, Executive Assistant

~DMINISTRATIVE

REMEDIES

JAN

FEB

~nswered

161
149

131
155

TORT CLAIMS

JAN

FEB

ff Pending

194
54
45
198
0

198
51
68
179
0

JAN

FEB

30
60
35
55
7·

55
101
93
63
3·

~eceived

·~eceived

Answered
(_. Dending
.... _
. Six Month
FOI/PRIVACY
, Pending
fI Received
, Answered
fI Pending
fI Over 20 Working Days
·Two files archived
LITIGATION

JAN

FEB

:ases Pending
New Cases Received
Habeas Corpus
Bivens
FTeA
Other
Cases Closed
Cases Pending
Lit Reports Completed
Cases/Hearings or Trials
Settlements/Awards
$ Settlements/Awards
Thousands)

250 249
14
19
10
9
3
2
1
7
0
10
15
249 258
12
17
0
0
1
0
$500.0
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

3665

Page 2

MXR Monthly Report
(_..

Sl:GNIFlCANT DECISl:ONS OR ADVERSE DECISIONS:

FCZ MEMPHIS - Sheets v. DOJ, et ale - On November 25, 1998,
we were advised that the jury returned a verdict in favor of
the plaintiff in this Title VII cause of action.
Specifically, the jury found that the plaintiff had been
subjected to disparate treatment ($25,000 compensatory
damages); a hostile work environment ($75,000 compensatory
damages); and retaliation ($100,000 compensatory damages).
The jury also found that the plaintiff was constructively
discharged and entitled to back pay in the amount of
$116,131.
Subsequently, we filed a Motion for Judgment Notwithstanding
the Verdict, arguing that the evidence adduced at trial did
not support the jury's verdict of any of the claims.
On
February 16, 2000, the court granted our motion with regard
to plaintiff's disparate treatment claim and her retaliation
claim reducing the jury award by $125,000.
However, the
court denied our motion as to her hostile work environment
claim, awarded her $116,131 in back pay based on her
constructive discharge claim, ordered her reinstated and
awarded her attorney's fees.
We are recommending appeal.

(....

FCl: ELKTON - Boucher v. LaManna - The Northern District of
Ohio ruled in the Bureau's favor that it was within the
Director's' discretion to deny early release eligibility to an
inmate based on a 2 point enhancement.

FCl: BECKLEY - Edwards v. Olson, et ale - In 1997, inmate
Edwards filed a Bivens claim against numerous staff members,
alleging he was scored a medium inmate to keep him at FC!
Beckley to maintain the number of white inmates at the
facility.
On January 11, 2000, the Magistrate Judge entered
an R&R recommending the District Court find that the
Defendants are not entitled to qualified immunity, and that
an evidentiary hearing be held to determine whether any
Defendant used race as a factor in determining the inmate's
custody classification.
Objections to the R&R were filed in
February, arguing that case law allows staff to take racial
balance into account when making transfer decisions.
SETTLEMENTS:
FeI MANCHESTER - Stump v. United States - This case appears
to be settled for $500,000.
All that remains is for
settlement to be presented to the Probate Court in Ohio.
Plaintiff's attorney states the Court has already given oral
approval, 50 we do not anticipate any problem getting final
approval.

3666

Page 3
MXR Monthly Report
(' .
,

rCl: MANCHESTER - Majeeda Abdul-Hakeem, et ale v. United
States, et ale - Inmate Imam Abu Muhammad's, a.k.a. Brian
Hines, alleged common law wife Majeeda Abdul-Hakeem, brought
suit against staff at FCI Manchester and FCI Oxford to regain
her status as a visitor on inmate Abu Muhammad's approved
visitor list.
She was removed from inmate Muhammad's
visitation list after several attempts to circumvent
institution rules at FCI Oxford.
In order to settle this
claim Ms. Abdul-Hakeem was offered reinstatement to inmate
Muhammad's visitation list. Ms. Abdul-Hakeem declined this
offer of settlement and further litigation will ertsue.
UPDATE ON CASES,
REPOR':S:

TR~ALS

OR BEARINGS, ETC. NOTED

PR~OR

FCl: BECKLEY - Eichler v. U.S. - This is an FTCA case arising
from an accident with the institution's bus in 1995.
Settlement authority in the amount of $20,000 was granted,
but our offer was rejected. A settlement conference is
scheduled for May 2000. Trial 'is set for July 2000 in
Louisville, Kentucky.
CR~M~NAL:

c. . ..

FCZ ASHLAND - United States v. Dr. Mark Praeger - FCI Ashland
staff physician, Dr. Mark W. Praeger, will be prosecuted for
illegally dispensing controlled substances.
Dr. Praeger is
raising the defense of duress, stating that individuals
threatened him and his family if he did not write the
prescriptions. Many BOP staff have been subpoenaed to
testify during the week of March 6 th •
F.NC LEXl:NGTON - On February 4, inmate Andrew ~elton, 17173056, was indicted by a grand jury for Assault on another
inmate.
FPC BUTNER - Inmate Michael Little pled guilty to escape and
was sentenced to 12 months consecutive.
FCI BECKLEY - Michael Kokoski, Reg. No. 02115-061, walked
away from FPC Beckley in 1996. He was subsequently arrested
in Montana and transported back to Beckley for prosecution
for escape.
On February 1, 2000, inmate Kokoski pled guilty
to the charge.
Sentencing is set for April 24, 2000.
BECKLEY - Marlo Evans, Reg. No. 25852-083, was sentenced
February 28, 2000, and received an 8-month consecutive
sentence for Possessing Contraband (Marijuana).

FC~

3667

Page 4
MXR Monthly Report

FeI BECKLEY - William Brown, R~g. No. 53012-060, was
sentenced February 28, 2000, and received an 8-month
consecutive sentence for Possessing Contraband (Marijuana).

FeI BECKLEY

- Damian Johnson, Reg. No. 35070-083, was
sentenced February 22, 2000, and received a 6-month
consecutive sentence for Possessing Contraband (Marijuana).

FCI BECKLEY - Barry Parker, Reg. No. 46031-066, was indicted
December 8, 1999, for Possessing Contraband (weapon).
pled guilty to the charge on February 22, 2000.

SITUATIONS OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS
WASTE SITES, ETC.:
ENC LEXINGTON - On February 18, 2000, Judge Coffman,
Ky., entered an order for FMC Lexington
' s t a t u s report on inmate
every fifteen days, and
r a contrac
~vers~ty 0
Kentucky doctor to provide a medical report
every month. liliiii apparently filed a motion for a
sentence rnodi~ to Judge Coffman, his sentencing judge,
alleging his medical condition could not be treated while in
BOP custody.

'
1I!IIt
(

~. ~-

D.C. Issues Training - The D.C. Issues Training went
extremely well this month.
We were very impressed with both
the oral presentations and the written materials that legal
staff prepared. We are particularly grateful to Don Anderson
and Paul Layer for their informative presentation on D.C.
Sentencing.
I'think all staff preferred the smaller group
format, as it gave them an opportunity to interact with the
speakers.
Final thanks to Dave Essig and Lynn Bouchillon for
all their efforts in coordinating the hotel, travel and
meeting room details.
'
FCC Butner - Legal Consolidation - Beginning as early as
April 1, 2000, the legal staff at the Butner Complex may
relocate to the soon-to-open FMC. With the move, legal staff
will institute a shared services arrangement between the
Butner institutions. Space for legal staff is being provided
in the FMC Administration Building. We will provide you with
new phone numbers when the move takes place.

3668

age 6

r"~,

•

IXR Monthly Report

•

New Litigation Cases by Institution and Type
Received Durina the Month of Februarv. 2000
ALD

ASH

BEC

BUT
*

CU
M

ELK

LEX

MEM

MIL

MRG

PET

SEY

MXR

THA

TOT

BIV

FTC
A

OTH

TOT

·2

*Represents both the FCI and LSCI
CM

c:P\

New Litigation Cases by Institution and Type
Received Calendar Year to Date

~
---

ALD

ASH

BEC

BUT
*

ELK

LEX

MEM

MIL

MRG

PET

SEY

MXR

THA

TOT

BIV

FTC
A

OTH

TOT

*Represents both the FCI and LSCI

1)ATE:

UNITED STATES GOVERNMENT
memorandwn
Mid-Atlantic Regional Office, Annapolis Junction, MD 20701

April 7, 2000

REPLY TO
AlTNOF:

Bill Burlington, Regional Counsel
Mid-Atlantic Region

SUBJECT:

March 2000 Monthly Report

TO:
A'!TN:

Christopher Erlewine, General Counsel
Linda Dubose, Executive Assistant

ADMINISTRATIVE REMEDIES

(
~

JAN FEB MAR APR'MAY JUN JUL AUG SEP

ocr

NOV DEC

Received
Answered

161
149

TORT CLAIMS

JAN FEB MARAPR MAY JUN JUL AUG SEP OCT NOV DEC

H Pending
.; Received
# Answered
# Pending
..... # Over Six Month

..........

1·

JPRIVACY

194
54
45
198
0

131
ISS

198
51
68
179
0

153
161

179
61
50
182
1

JAN FEB MARAPR MAY JUN JUL AUG SEP OCT NOV DEC

55
30
63
# Pending
60 101 64
# Received
35
93
81
# Answered
46
55
63
# Pending
7*
7.
3*
# Over 20 Working Days
*Two files archived;.2 archived-2 mailed 4/4/00

LITIGATION

JAN FEB MAR APR MAY JUN JUL AUG SEP OCT NOV DEC

Cases Pending
New Cases Received
Habeas Corpus
Bivens
FTCA
Other
Cases Closed
Cases Pending
Lit Reports Completed
r ~lHearings or Trials
ments!Awards
$ SettlementslAwards
($ in Thousands)

250 249 258
14
12
19
10
9
9
3
2
1
1
1
2
7
0
0
15
10
11
249 258 259
17 12
16
0
0
0
1
0
0
$500.0 0
0

'""

3683

~IGNIFICANT

DECISIONS OR ADVERSE DECISIONS:

Fcr BUTNER - Weston v. U.S. (D.C. Criminal Proceeding)- The Court of Appeals for the
District of Columbia, has reversed and amended a district court opinion (reported at
69 F.Supp. 2d 99 (D.D.C. 1999», which permitted Butner mental health staff to
involuntarily medicate Rusty Weston. Mr. Weston has been charged with murdering two
u.S. Capitol security officers in July of 1998. The Circuit ruled that the District
Court impermissibly allowed BOP to medicate Weston based on his dangerousness to
staff, without also addressing whether Weston could be medicated to make him
competent to stand trial. This latter issue raised many of Weston's arguments that
medication would violate his 6th Amendment right to counsel, and 5th Amendment Due
Process right to present his anticipated insanity defense. We will work with AUSA
Ron Walutes on the remand hearing.
F.HC LEXINGTON - The Sixth Circuit Court of Appeals has granted the motions to stay
new policy 3621(e) cases on appeal until a ruling is made in the Thoms· v. Ernest
Powell, et ale consolidated cases. These are the first group of new policy cases on
appeal which are currently ripe for ruling. Oral arguments were waived in Powell.

FeI McrLAN - Brown v. Scibana - This habeas case opinion was published and cited as
Brown v. Scibana, 2000 WL 249616 (E.D. Mich.). This case upheld the 1997 version of
28 CFR 550.5~, and the exclusion of inmates from RDAP who were convicted of a 922(g)
offense.

.......

FeI E~ON - Boucher v. LaManna - Judge Gwin of the U.s. District Court, N.D. Ohio,
upheld the Director's discretion to deny early release eligibility to an inmate with
a 2-point firearms enhancement. Finding that the new Program Statement 5162.04
evidenced an attempt by the Bureau "to avoid the pitfalls of its earlier policy by
shifting its attention from the statutory meaning of 'nonviolent offense' to
interpreting the extent of its discretionary authority under the statute," the Court
noted our new "focus on which eligible prisoners would nonetheless be denied early
release via the Bureau~s discretionary authority." The Court found persuasive the
three Circuit decisions upholding the change, quoting extensively from the new 9th
Circuit Bowen v. Hood case. It appears this case will be published, and we are
making sure it gets before the 6th Circuit panel in the currently pending
consolidated RDAP appeal.
LSCI BUTNER - Taliesin v. Hawk - Inmate Taliesin (Mark Patrick) brought this lawsuit
when the Bureau refused to use only his newly changed name (by state court order) in
all of its official documents. The Judge granted partial swnmary j.udgment for the
defendant stating that the Bureau's name policy is not unconstitutional. However,
the Court further ordered that the Bureau of Prisons provide the inmate with mail and
notary services in his new name and also ordered the Bureau to prospectively include
the plaintiff's new name in all official documents it creates. We have filed a
motion for reconsideration citing a provision of the PLRA restricting the court's
power to grant certain prospective relief.
SETTLEMENTS:
FeI MANCHESTER - Majeeda Abdul Hakeem, et ale v. United States. et ale - This case,
involving the visitation between inmate Imam Abu Muhammad, Reg. No. 07783-026, his
daughter, and the mother of his daughter, was settled on March 31, 2000, after the
plaintiff and staff at FeI Manchester agreed that visitation between the parties
would resume as of April 1, 2000. Visitation between the parties involved did in fact
take place at FCI Manchester on April 1, 2000. Unfortunately, Inmate Muhammad, who
was not a party to the original suit, has brought a Bivens action based upon his loss
of visitation privileges. Apparently, Ms. Hakeem settled this case with the full
knowledge that inmate Muhammad had already filed a suit based upon the same loss of
visitation privileges as were alleged in her suit.

3684

UPDATE ON CASES, TRIALS OR HEARINGS, ETC. NOTED IN PRIOR REPORTS:
GREENSVILLE PRIVATE FACILITY - Jackson v. District of Columbia - In March, Judge
Kennedy, (D.C. District Court) entered an order upholding Virginia DOC's proposed
rule which would require all inmates to be clean shaven, and to keep their hair short
(one inch or less). The Court ruled that even under the demanding RFRA standard,
Virginia's rule is justified based on compelling security reasons. We understand an
appeal will be taken, but in the meantime, the rule may now be applied at
Greensville, as Judge Kennedy refused to issue a stay.
FCI BECKLEY - Maydak v. Olson - This case is an old Ensign Amendment case, coupled
with a challenge to staff at FCI Beckley rejecting commercially available nude
photographs.
An Order was entered in March dismissing the Ensign Amendment
challenge.
However, the judge referred the request for injunctive relief against
the Bureau and the Director relating to the commercially available nude photographs
back to the magistrate.
FeI BECKLEY - Depew v. Hawk - This inmate filed a civil action when his attorney's
ability to have mail sent to the institution treated as legal mail was restricted.
The restriction was based on our discovery that his attorney had sent inappropriate
pornographic bondage magazines to the inmate under the guise of legal mail. The
Court granted our motion to dismiss/motion for summary judgment in March. The Court
rejected the argument that the attorney was conducting a test to see if prison
officials were inappropriately opening legal mail. The court found the attorney
failed to follow the requirements for having the envelope treated as special mail.
The judge indicated that had the attorney wished to conduct such a test, "he could
have mailed a copy of Ladies' Home Journal."
FCI BECKLEY - Eichler v. u.s. - This is an FTCA case arising from an accident with
the institution's bus in 1995. Settlement authority for $20,000 was originally
granted. We recently requested settlement authority in the amount of $48,000.
Kentucky is a comparative negligence state. While we have solid staff witnesses, the
plaintiffs will testify that the bus changed lanes and it was our fault. While the
plaintiffs' expert could not definitely determine we were at fault, our expert could
not definitely determine we were not. Additionally, the police report is no longer
persuasive, as we learned during discovery that the report was completed solely on
interviews with our staff. Statements by the plaintiffs were not taken as they were
receiving medical treatment at the scene and were removed to the local hospital. We
believe we do have some limited exposure. A settlement conference is scheduled for
May 15, 2000. Trial is currently scheduled for July 25, 2000.
CRIMINAL:

FCI ASHLAND - u.s. v. Dr. Mark Praeger - FCI Ashland staff physician, Dr. Mark
Praeger, was convicted of illegally dispensing controlled substances. Dr. Praeger
raised the defense of duress, stating that individuals threatened him and his family
if he did not write the prescriptions. The jury rejected his defense, and entered
its verdict in less than two hours. A sentencing date has not be set.
F.MC LEXINGTON- Dominic Palazzola, 153757-097, a USP Terre Haute inmate, confessed to
murdering, FMC Lexington inmate Tracy Hearlson, 24663-086, in the transitional care
psychiatric unit at FMC Lexington in 1998. Palazzola apparently bludgeoned Hearlson
to death with a fire extinguisher. Palazzola's accomplice was Patrick Noble, 23560086, currently incarcerated at FC! Sheridan. Noble has also confessed to being
involved in the murder. Palazzola apparently mistakenly .thought Noble was a member
of the Aryan Brotherhood and wanted to "make his bones" and gain membership by
killing Hearlson.

FCI MEMPHIS - Kenneth Gregory, Reg. No. 03195-063, passed three balloons of what is
believed to have been heroin, introduced through his contact with a female visitor.
(The incident was video taped by visiting room staff.) One of the balloons burst
which resulted in his transfer to a community hospital on February 29, 2000. He was
subsequently returned to the institution on March 2, 2000. Lab reports from the FBI
are pending.

3685

(

FCI MILAN - FCI / FDC Milan are currently working on three criminal cases.
The cases
are U .S. v. Williamson (possession of narcotics and weapon) and U. S. vi Camejo (a
serious assault - slit another i nmate's stomach). Staff are working with the U.S.
Attorney's Office to seek an indictment case: US v . Wells. et al .
(Introduction / possession of narcotics by five inmates and visitors . The drug was
heroin) .
FCI MEMPHIS - U.S. v . Green, et al - Inmates Phillip Green, Santos Negron and Larry
Walters were convicted in the U.S. District Court, Western District of Tennessee of
various offenses arising out of the FCI Memphis disturbance of October 1995, and
appealed.
The Court. of Appeals held that (1) inmate's recruitment of others to join
in the prison riot was sufficient to justify an upward departure; and (2) inmates'
mere participation in the prison riot was sufficient to support their convictions for
assisting in the riot. The Court held that the "fair and ordinary meaning of 18
U.S.C.
§ 1792 includes the participation in a prison riot and is prohibited and punishable
as a crirne,u
SITUATIONS OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS WASTE SITES, ETC.:
Death Penalty Resource Counsel - Meeting - On March 30th,

I attended a meeting hosted

by Margaret Hambrick and Warden Harley Lappin, with David Brock, an attorney with the
Federal Death Penalty Resource Project.
Mr. Brock brought with him, James Aiken,
former Director of the South Carolina Department of Corrections.

Mr . Brock's main

concern was that lack of access to social calls may result in isolation from family,
and concomitant depression that could render an inmate incompetent to assist defense
counsel.
Warden Lappin agreed to review the amount of social calls in the SCU, and
agreed to have Mr. Aiken tour the unit at Terre Haute.

The tone of the meeting was

cordial and cooperative.

(

FCC BUTNER - The move of Butner legal staff to the Federal Medical Center has been
delayed until at least April 10th. We will . provide you with new phone numbers when
the move takes place .

EMC LEXINGTON - In Marian Montez, Administratrix of the Estate of Tracy Hear-lson v.
USA, an FTCA case arising out of the homicide of inmate Tracy Hearlson at FMC
Lexington, Judge Wilhoit permitted discovery by the Plaintiff until August 2000.
This is consistent with the law of this district.
The Plaintiff moved for discovery
after the Defendant filed a motion for summary judgement using the discretionary
function exception argument.
FCI CUMBERLAND - Significant Tort Claim - Former inmate
claiming ~20,000,000 in personal injury as a direct resu
staff. He alleges we failed to provide proper treatment
which he alleges resulted in permanent damage to his heart.
represented by counsel.
.

is
medical
attack,
is

FCI MEMPHIS - In early March, Staff were contacted by Staff Judge Advocate, Naval
Support Activity-Mid South (Millington Navy Base), who stated she believed our
interservice support agreement violated the Posse Commitatus Act. Specifically, she
took issue with language in the agreement that contemplated Navy Personnel's
"supervision" of inmate workers as violative of the Act.
After several discussions,
the Navy has backed off from their position but has requested that we reword the
agreement to remove "supervision" in favor of other terminology such as "monitor" or
"oversight ."

Peraonnel Issues

3686

New Litigation Cases by Institution and Type
Received During the Month of March 2000

ALD

ASH

BEC

BUT

CUM

ELK

LEX

MA
N

MEM

MIL

MRG

PET

SEY

MXR

THA

TOT

BIV

FTCA

·0

OTH

0
0
0
TOT
• Represents both the FCI and LSCI

•

New Litigation Cases by Institution and Type
Received Calendar Year to Date
ALD

ASH

BEC

BUT

CUM

ELK

LEX

MA
N

MEM

MIL

MRG

PET

SEY

MXR

THA

TOT

FTCA

OTH

TOT
0
2
1
11
Represents both the FCI and LSCI

BIV

•

UNITED STATES GOVERNMENT

memorandum

(
DATE:

REPLYT
AlTNOF:

SUBJECT

TO:

ATTN:

(

---

May;

Mid-Atlantic Regional Office, Annapolis Junction, MD 20701

'~3Pf~

ill ~lington, Regional Counsel
Mid-Atlantic Region

~",\
~h 2000 Monthly Report

Christopher Erlewine, General Counsel
Linda Dubose, Executive Assistant

ADMINISTRATIVE REMEDIES

JAN FEB MAR APR MAY JUN JUL AUG SEP OCT NOV DEC

Received
Answered

161
149

131
155

TORT CLAIMS

JAN

FEB MAR APR MAY JUN JUL AUG SEP OCT NOV DEC

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

194

198
51
68
179
0

FOI/PRIVACY

JAN FEB MAR APR MAY JUN JUL AUG SEP OCT NOV DEC

54
45
198
0

153
161

179
61
50
182
1

179
130

182
70
71
197
2

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

30
55
46
63
101
71
60
64
74
35
93
81
55
63
46
48
7*
3*
7.
3*Two files archived; .2 archived-2 mailed 4/4/00; -all three archived

LITIGATION

JAN FEB MAR APR MAY JUN JUL AUG SEP OCT NOV DEC

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)

250
249
14
19
9
10
3
2
1
1
0
7
10
15
249
258
17
12
0
0
1
0
$500.0 0

258
12
9
1
2
0
11
259
16

0
0
0

259
24
15
6
1
2
36
247
12
1

0
0

(

4637

Page 2
MXR Monthly Report

(

SIGNIFICANT DECISIONS OR ADVERSE DECISIONS:

nsp

TERRE HAUTE - Kaba Karamo y Breakbjll. et al
- We
recently learned that the Civil Rights Division will not
pursue criminal charges against any of the named defendants
in this Biyens, use of force case. We also learned that the
second Biyens suit filed by Kaba Karamo, (Karamo y. Captain
Hines et al.,#TH 99-1S-C-T/F), which involves very similar
allegations of abuse while being placed in 4-point
restraints, has been dismissed, with the court finding that
Mr. Karamo's violent actions precipitated an appropriate
response from our staff.

To date, the Departmen
has not agreed to pay the private attorney fees for the
Lieutenants who were involved in placing and maintaining Kaba
Karamo in restraints.

(

FCl BECKLEY - Maydak y Hawk. et al
- On April 21st, we
received an Order from Magistrate Feinberg, asking us to
clarify whether it was the BOP's position that inmates may
not have commercially available, individual nude photographs,
and if so, had that position changed since the initiation of
this suit. After discussing the case with Paul Layer and
Marsha Edney, we determined that a July 19, 1999, wording
change to our Program Statement on Inmate Personal Property,
had indeed changed our policy to mandate that inmates may not
retain or receive such individual photographs. We plan to
inform the court of this change, and to file a renewed Motion
for Summary Judgment.
FeI MEMPHIS- Vargas y Reno - On March 30, 2000, the Court
granted summary judgment in the Gove~nment's favor regarding
Vargas's Title VII claim, his claims under Bjyens, and his
FTCA claims for battery, false arrest and false imprisonment.
The Court denied summary judgment regarding Vargas's claims
of intentional infliction of emotional distress and invasion
of privacy, and his Privacy Act claim.
Judge Gibbons ruled
the Government failed to establish that Vargas's medical
credential file was copied and disclosed based on a "need to
know" or "routine use" to an OIG investigator conducting an
official investigation of another medical staff member.
The
Judge further ruled that Vargas's EEO complaint contained
adequate information to give the BOP sufficient notice to
enable it to investigate potential tort claims of intentional
infliction of emotional distress and invasion of privacy,
4638

Page 3
MXR Monthly Report

(

based upon the Sixth Circuit's adoption of a more liberal
notice requirement. Vargas did NOT file an administrative
claim under the FTCA in this case.
SETTLEMENTS:
FCI BECKLEY - Eichler V lmited States - We are still
awaiting a decision on our request for increased settlement
authority (up to $48,000) in this personal injury case,
involving the Beckley bus.
UPDATE ON CASES, TRIALS OR HEARINGS, ETC. NOTED IN PRIOR
REPORTS:
FCI BIITNER - Woodrllff V Unj ted States - This suicide FTCA
case is scheduled for trial next week in Columbia, South
Carolina. We learned this week that the Judge has issued an
order recusing herself.
Plaintiffs filed a motion claiming
the recusal was required, as the Judge was a former Assistant
U.S. Attorney, who knew the AUSA defending this case. They
alleged the AUSA and the Judge ran a
ther
while she was still an AUSA.
before a newly-appointed

FMC LEXINGTON - On April 21, 2000, Joe Tang, Attorney, and
Richard Ramirez, M.D., Clinical Specialty Consultant to the
Medical Director (formerly FMC Lexington Clinical Director),
attended a medical status hearing before Judge Coffman.
This

4639

Page 4
MXR Monthly Report

(

est by FMC Lexington inmate
to have his sentence reduced
ition involving his kidney. He
.alleged inadequate medical treatment in the past, and
recently sent an ex parte letter to the Judge making furthe~
allegations. After Dr. Ramirez testified, Judge Coffman was \A~~
satisfi~the complaints were largely meritless and
,) \
denied
request. However, Judge Coffman did indicate
she was not satisfied with BOP's alleged failure to follow a
couple of the Nephrologist's recommendations, and she stated
there was a "communication problem" between the specialist
and the FMC. Judge Coffman wanted all of the Nephrologist's
recommendations followeq, and stated she would release
if the medical issues "did not work out."

IIIIIIIr

CRIMINAL:

(

FCI BECKLEY - Michael Kokoski, Reg. No. 02115-061, walked
away from FPC Beckley in 1996. He was'subsequently arrested
in Montana and transported back to Beckley for prosecution
for escape. On February 1, 2000, inmate Kokoski pled guilty
to the charge. Sentencing was scheduled for April 24, 2000,
but has been postponed.
FCI BECKLEY April. 4, 2000,

was indicted
memDlers.

FCI !FPC MILAN - Kevin. Walasinski, attorney, continues to work
with the u.s. Attorney's Office and the FBI in securing
indictments in Unjted States Y Wells et ale This initially
appears to be a conspiracy ring between FDC Milan inmates,
visitors, and street associates to introduce, possess, and
distribute narcotics at FDC Milan. The drug that was
discovered when the inmates were caught was heroin.

SITUATIONS OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS
WASTE SITES, ETC.:
DC Contract at Greensyille. Virginia DOC - As we start to see
more litigation from District of Columbia inmates at
Greensville, we have decided to implement a special grievance
system that will allow them to file requests for
administrative remedies on "Bureau issues."
We have
discussed this with Harrell Watts, and with WRO staff who
have shared their policy regarding such grievances at Taft.
We hope to implement the system sometime in May 2000.

4640

Page 5
MXR Monthly Report

FCC Butner Legal Consolidation - The move of Butner legal
staff to the Federal Medical Center occurred in April.
The
new telephone numbers are:

The address is FMC Butner
P.O. Box 1~00
Old N.C. Highway 75
Butner, NC 27509-1500
Personnel Issues

(
Staff Leave and Travel

May 16 th - Washington D.C.- Re-enginee ring Meeting
May 22-26 - Washington D.C. - EEO Workgroup Meeting
- Training in Aurora - May 30-June 2
Fcr Memphis - AIL - Monday, May 15
Fcr Milan - AIL - May 22 - 29
Fcr Cumberland - AIL - May 9-16
USP Terre Haute - AI L - May 30-June 1
USP Terre Haute - AI L - May 30-June 2

4641

.'---

... ..:tge 7
MXR Monthly Report

New Litigation C~ses by Institution and Type
Received During the Month of April 2000
ALD·

ASH

BEC

BUT
*

CUM

ELK

LEX

MAN

MEM

MIL

MRG

PET

SEY

MXR

THA

TOT

BIV

FTCA

OTH

TOT
0
1
2
6
*Represents both the FCI and LSCI

New Litigation Cases by Institution and Type
Received Calendar Year to Date
ALD

ASH

BEC

BUT
*

CUM

ELK

LEX

MAN

MEM

MIL

MRG

PET

SEY

MXR

THA

TOT

BIV

FTCA

OTH

TOT
0
3
3
17
*Represents both the FCI and LSCI

UNITED STATES GOVERNMENT

memorandum
June 1, 2000

Date:

Reply to
Attn of:

Sherree L. Sturgis, Regional Counsel, Southeast Region
Federal Bureau of Prisons, Atlanta, GA 30331

Subject:

Monthly Report - May 2000

To:

Christopher Erlewine, Assistant Director/General Counsel
Federal Bureau of Prisons
Washington, D.C. 20534

I. ADMINISTRATIVE LEGAL ACTIVITIES - SUMMARY REPORT
A. Administrative Tort Claims - 2000
JAN

FEB

MAR

APR

MAY

JUN

Pending on 1st

161

141

125

151

147

155

) Rec'd in month

Recons. rec'd

Ans'd in month

Pending at end

148

121

143

141

155

Over 180 days

JUL

AUG

SEP

OCT

NOV

B. Tort Claim Investigation Status: As of May 31, 2000
ATL

COL

ED
G

E E
G S

G
U

L T

MI
A

MIM

MNA

MON

PEN

TAL

TOG

VAl

PENDING

3 4

>60

DAYS

4648

DEC

SER Monthly Report - May, 2000

Page 2

c. FOVPrivacy Act Requests - 2000
JAN

FEB

MAR

APR

MAY

JUN

Pending on 1 at

Rec'd in month

Ans'd in month

Pending at end

Over 30 days

AUG

JUL

SEP

OCT

NOV

DEC

D. FOIA Requests for records: As of May 31, 2000
ATL

PENDING

COL

EGL

EST

GUA

JES

MIA

MIM

MNA

MON

PEN

TAL

TOG

YAZ

EDG

>30 DAYS

E. ADMINISTRATIVE REMEDIES
JAN

FEB

MAR

APR

MAY

210

196

211

196

250

JUN

JUL

4649

AUG

SEP

OCT

NOV

DEC

SER Monthly Report - May, 2000
Page 3
II. LITIGATION ACTIVITY - 2000 SOUTHEAST REGION
A. SUMMARY REPORT

JAN

Cases Open

FEB

MAR

APR

MAY

227

234

238

236

249

Habeas Corpus

FTCA

Bivens

Other

Bivens/FTCA

Lit Reports

New Cases

Cases Closed

JUN

JUL

AUG

SEP

OCT

NOV

DEC

254

B. SETTLEMENTS AND AWARDS:
Settlement Authority Approved

C. SIGNIFICANT CASES, TRIALS or HEARINGS:
Government of the Virgin Islands and USA v. Caswell Fredericks. Criminal No. 92-52 and 98-132
(District of Puerto Rico). This high security level Virgin Islands inmate has been designated to
MDC, Guaynabo. Staffreport that in May, defense counsel filed a motion for an order to show cause
as to why MOC Guaynabo has not complied with the court's court for programming for this inmate.
The inmate is from the Virgin Islands who cooperated with the Federal Government and as a result
federal officials will house him because his life would be injeopardy ifretumed to the Virgin Islands
prison system. Currently, this inmate is being housed at MOC, Guaynabo until the situation with
other Virgin Islands inmates is resolved. (This situation involves the Virgin Island~ government
owing the Bureau of Prisons approximately 12 million dollars. Therefore, the Bureau of Prisons is
returning all Virgin Islands inmates.) After discussion with MDC, Guaynabo legal staff, a decision
was made to request that Virgin Islands inmates housed in USP, Atlanta be removed first so that
MDC, Guaynabo could designate inmate Fredericks to that facility considering his security level.
As a follow, MOC, Guaynabo legal staff spoke to the Warden in the Virgin Islands who indicated
that presently the Virgin Islands prison system is only accepting low security inmates. Information
received indicates that this creates a problem because there are no low security inmates from the
Virgin Islands. In light of this, legal staff at MOC Guaynabo prepared a letter for the Court which
included the programming for inmate Fredericks during the time he is confined at MOC, Guaynabo.
New Cases:

4650

SER Monthly Report - May, 2000
Page 4
Jorge Rivera Gonzalez. et al v. United States, Civil No. 00-1196 (DRD), MOC, Guaynabo: Plaintiff
and his wife bring an FTCA action for time he allegedly spent (approximately two month) in federal
custody in excess of the sentence imposed by the court. Plaintiffis alleging loss of wages, mental
anguish and pain and suffering and seeks $350,000.00 in damages ($175,000 for the past, present
and future pain and suffering of the plaintiff and $175,000 for his wife's).

4651

SER Monthly Report - May, 2000
Page 5

D. RELIGIOUS CASES:

None

E. ENSIGN AMENDMENT CASES: None
F. PLRA 1915 DISMISSALS:

None

G. CRIMINAL CASES:

u.s. v.EmmettKnightlRichard Weber, 3:99crI15ILAC,NIFL-Richard Weber, formerly an inmate
at FPC Pensacola was tried along with an employee of the National Park Service for allegedly selling
telephone time and other unauthorized activities to other inmates assigned to the work detail at Gulf
Islands National Seashore. Staff from FPC, Pensacola were called to testify as to rules and
. regulations of the facility. The park employee was acquitted of the charges. The inmate entered a
plea to a lesser charge of Bribery of a Public Official and was sentenced to a 12-month consecutive
term on May 23,2000.
During this reporting period, FCC, Coleman reported on six (6) case which were referred to the FBI
and U.S. Attorney's Office for prosecution regarding an inmate's alleged attempt to introduce a
controlled substance into the complex. Two of the six cases have been accepted for prosecution by
the FBI. One case involved the attempted introduction of27 packets ofmarijuana weighing 7.258g.

m. TRAVEL SCHEDULE FOR JUNE 2000
Travel- Conference/Legal (Attomey/Paralegal Training) - Fort Worth, TX - 06/05/200006/09/2000
Travel- RC/AGC Meeting - Washington, DC - 06119/2000-06/23/2000

Travel - Paralegal Work GrouplMSTC - Aurora, CO - 05/30/2000-06/02/2000

Travel -FLETC - Glynco, GA - 06/05/2000-06/23/2000

Travel -ConferencelLegal (AttomeylParalegal Training) - Fort Worth, TX - 06/05/200006/09/2000

4652

\c)\.D

UNITED STATES GOVERNMENT

(

memorandum
REPI.YTO

ATnI OF:

~I TRJE,.,.:

TO:

A1TN:

ADMINISTRATIVE REMEDIES

JAN

FEB

MAR APR

MAY JUN

Received
Answered

161
149

131
155

153
161

149
121

TORT CLAIMS

JAN

FEB

MAR APR

194
54
45
198
0

198
51
68
179
0

179
61
50
182
1

JAN

FEB

MAR APR

#
#
#
#
P

Pending
Received
Answered
Pending
- 'er Six Month

"vI/PRIVACY

179
130

182
70
71
197
2

MAY JUN

JUL

AUG SEP

OCT NOV DEC

JUL

AUG SEP

OCT NOV DEC

JUL

AUG SEP

OCT NOV DEC

197
74
34
229
2
MAY JUN

30
48
# Pending
55
46
63
101
71
57
60
# Received
64
35
67
# Answered
93
74
81
55
# Pending
63
46
48
38
# Over 20 Working Days
7.
7*
3*
3.
7+
*Two files archived; .2 archived-2 mailed 4/4/00;.all three archived;+4 archived

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
$ . "~Iements/ A wards
Thousands)

250 249 258
14
19
12
10
9
9
2
1
3
1
1
2
7
0
0
15
10
11
249 258 259
17
12
16
0
0
0
1
0
0
$500.0
0
0

259
24
15
6
1
2
36
247
12
1
0
0

MAY JUN
247
10
7
1
0
2
14
243
16
0
0
0

3396

JUL

AUG SEP

OCT NOV DEC

Page 3
MXR Monthly Report

(

SIGNIFICANT DECISIONS OR ADVERSE DECISIONS:
FCI MANCHESTER - Nunez v. Chandler - a sentenced Mariel Cuban

inmate housed at FCI Manchester brought this action
challenging the Bureau's "nearer release" transfer policy,
which states that inmates with INS detainers will not
ordinarily be considered for them.
(Program Statement
5100.06, September 3, 1999). Judge Coffman in the E.D.
Kentucky ruled that this policy did not violate the Equal
Protection Clause, because the Bureau's policy was entitled to
deference and there was a rational basis for differences in
treatment between inmates with INS detainers and those without
them.
FCI CUMBERLAND - Hodges v. USA - Hodges, with the assistance

(

.........

of counsel, filed an FTCA suit seeking $2 million. As a
result of a 1997 assault, Hodges lost his eye. Hodges claimed
we failed to protect him from an injury that occurred in "
plain view of correctional officers;" that we failed to have
sufficient officers stationed in the unit; and that we failed
to provide timely and adequate medical care. The District
court granted our Motion to Dismiss on the failure to protect
claim based on the discretionary function exception. The
court granted summary judgment on the claim regarding medical
care, finding the elapsed time between injury and transport to
the local hospital reasonable (two hours) since the inmate
failed to immediately report the injury and there were many
security measures that had to be undertaken prior to his
transport.
SETTLEMENTS: None
UPDATE ON CASES, TRIALS OR HEARINGS, ETC. NOTED IN PRIOR
REPORTS:

FCI BECKLEY - Eichler v. U.S. - This is an FTCA case arising
from an accident with the institution's bus in 1995.
Settlement authority for $20,000 was originally granted.
Settlement authority was recently increased to $48,000. A
settlement conference is scheduled for the beginning of June.
Trial is currently scheduled for July 25, 2000.
FCI BECKLEY - Maydak v. Olson - This case has a long history

regarding the challenge by inmate Maydak to the institution's
rejection of commercially nude photographs. Recently the
judge referred the request for injunctive relief against the
Bureau back to the magistrate. The judge did find that the
issue of injunctive relief against former Warden Olson was
moot based on the inmate's transfer. A motion to dismiss was
field in May arguing the issue was moot as the revised program
statement prohibits these types of photographs. The

3397

(

Page 4
MXR Monthly Report

magistrate judge notified the AUSA that an evidentiary hearing
will be held July 7, 2000.
The Judge did not provide
specifics as to what the hearing will be about, but indicated
an order would be entered before the hearing clarifying what ,
issues will be addressed.
FCI MILAN - Sexton v. USA - We have conducted several
examinations with the new engineering firm on this FTCA case,
which involves a vis'i tor's slip and fall in the parking lot.
Preliminary verbal responses do not look favorable.
Oral
argument is scheduled for June 19, 2000 on the parties motions
for dismissal/summary judgment.
FeI ASHLAND - Bush v. Lowery - A pre-trial conference is
in this Bivens case for June 12, with trial set for

(

CRIMINAL :

USP TERRE HAUTE - An August 5th execution date has been set
for SCU inmate Juan Garza.
Rick Schott has been working with
central Office legal staff to finalize the Execution Protocol.
FCI MILAN - US v. Camejo - This case was scheduled for trial
the week of May 31, but has been rescheduled for the week of
July 18.
The case involves the assault of an inmate by Camejo
causing the victim's abdominal region to be cut open.
FCI BECKLEY - Inmate Kokoski walked away from FPC Beckley in
1996. He was subsequently arrested in Montana and transported
back to Beckley for prosecution for escape .
Inmate Kokoski
pled guilty in February to the charge.
On May 9, 2000, inmate
Kokoski received a 37-month consecutive sentence.
FCI MILAN - FCI / FDC staff continue working with the U.S.
Attorney's Office and the FBI in securing indictments in U.S.
v . Wells, et al.
This initially appeared to be a conspiracy
ring between FDC Milan inmates, visitors and street associates
to introduce, possess and distribute narcotics at FDC Milan .
The drug that was discovered was heroin.

3398

Page 5
MXR Monthly Report

(

SITUATIONS OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS
WASTE SITES, ETC.:

FCI CUMBERLAN~ant Tort Claim - T-MXR-99-511 \)1C/
Former inmate ~ filed an administrative claim
alleging we failed to provide proper medical treatment for a
heart attack.
He claimed that our failure to transport him to
the hospital during his cardiac episode resulted in 20 ~ damage
to his heart. We have received the written report from AFIP,
which concluded~ was suffering from a myocard1al
infarction at t~eported to Health Services.
Because he was not taken to the outside hospital he did not
r ecei ve the
medications to prevent permanent muscle
damage.
has at least 20 ~ muscle damage to his
heart.
FCI ASHLAND - Sublett v. FCI Ashland Employees Club - the
plaintiff recently filed a motion to amend his complaint
adding FCI Ashland as a defendant.
The plaintiff's attorney
is scheduled to depose the former employee club president on
June 12, 2000.
The Chief of Civil for the Eastern District of
Kent ucky has been made aware of the motion.
Since the U.S.
Attorney's Office has not been served, no action will be taken
at t his time.

(

Personnel Issues

Staff Leave and Travel
- June 6- 8 Regional Planning Meeting, MXR
June 19-23 Regional Counsel/Associate
General Counsel's Meeting, D.C.
June 30 Tour Virginia Death Row at Sussex I

(

Legal Co nference,

3399

Fort Worth, June 5-9, 2000

\_1

l)~

,--_._----------_._--, .._._---- --_._-_._----------_._._-_..._--- ---- _. --------_. -------_.- -.
Page 7

MXR Monthly Report

'~"

(..-

", , 0"."

.k...."... .................. '. ·.··A ...} .... ·)......· .; .....

c
3400

-------------------------------_._---------I

I
I

(

Page 8

MXR Monthly Report
New Litigation Cases by Institution and Type
Received During the Month of May 2000
ASH BEC BUTALD
0
0
0
0
BIV
0
0
0
0
FTCA
1
0
0
2
HC
0
0
0
2
OTH
0
1
2
2
TOT
-Represents both the FCI and LSCI

CUM
0
0

0
0
0

ELK
1

0
0
0
1

LEX
0
0
1
0
1

MAN
0
0
1
0
1

MEM
0

MIL
0

0
0

0
0
0

0
0

MRG
0
0

2
0

PET
0

0
0
0
0

SEV

0
0
0
0

MXR
0

0
0
0
0

THA

0
0

TOT
1

0
0

0
7
2

New Litigation Cases by Institution and Type
Received Calendar Year to Date

SIV
FTCA
HC
OTH
TOT

ALD

ASH

BEC

BUT

CUM

0
0

4
1

1
3
10
19

ELK

LEX

1
2
1
1
0
16
3
3
0
0
0
4
4
19
-Represents both

MAN

MEM

MIL

0
0

0
0
2
0
2

0
0
3
2
the FCI and LSCI

MRG

PET

SEV

MXR

THA

TOT

0
0
0
0
0

0
0

3
1

2
0
6

49
11
78

5
0
6

0
3

0
1

...,.....~~::
•••~
•• ·.'!-!';.!·.·.;.·~:·
.•·.:!"!.,
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. "".y".:

3401

UNITED STATES GOVERNJvtENT

(

memorandum
.,An::
RF.PLY TO
ATTN OF:

Bill Burlington, Regional Counsel
Mid-Atlantic Region
June 2000 Monthly Report

~\IRJEC'"J':

Christopher Erlewine, General Counsel

TO:

A'rrN:

July 6, 2000Mid-Atlantic Regional Office, Annapolis JUllction. MD 20701

Linda Dubose, Executive Assistant

ADMINISTRATIVE REMEDIES

JAN

FEB

MAR APR

MAY JUN

Received
Answered

161
149

131
155

153
161

149
121

TORT CLAIMS

JAN

FEB

MAR APR

MAY JUN

# Pending
# Received
# Answered
# ,p- "lding

194
54
45
198
0

198
51
68
179
0

179
61
50
182
1

197
74
34
229
2

JAN

FEB

MAR APR

.. ,,-- ..... ;r

Six Month

F\l1I t'RIVACY

179
130

182
70
71
197
2

JUL

AUG SEP

OCT NOV DEC

JUL

AUG SEP

OCT NOV DEC

JUL

AUG SEP

OCT NOV DEC

144
246

229
57
51
217
4

MAY JUN

# Pending

30
55
63
46
48
38
60
101
64
71
57
76
# Answered
35
93
81
74
67
66
55
# Pending
63
46
48
38
50
# Over 20 Working Days
7*
3.
3*
7.
7+
4'""'
*Two files archived; .2 archived-2 mailed 4/4/00;.all three archived;+4 archived;"~ 3 archived;
# Received

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
S~t"lements/ Awards
$:'
:Iements/A wards
\
Thousands)

250 249 258
14
19
12
10
9
9
3
2
1
1
1
2
0
7
0
15
11
10
249 258 259
17
12
16
0
0
0
1
0
0
$500.0
0
0

MAY JUN

259
24
15
6
1
2
36
247
12
1
0
0

247
10
7
1
0
2
14
243
16
0
0
0

3432

243
14
9
2
1
0
7
250
9
1
0
0

JUL

AUG SEP

OCT NOV DEC

page 3

MXR Monthly Report
SIGNIFICANT DECISIONS OR ADVERSE DECISIONS:
FCI MANCHESTER - Palasty v. Snyder - Inmate Palasty is
attempting to challenge the Ensign Amendment. Initially
brought as a class action, Judge Coffman has dismissed all
plaintiffs except Palasty. We have forwarded the complaint to
Marsha Edney in DOJ.
FeI MEMPHIS- Young v. Edmonds, et al.- In this Bivens
complaint, inmate Young alleges excessive use of force
against three correctional officers stemming from an incident.
which occurred in the Special Housing Unit on November 11,
1999. Specifically, Young contends one of the officers
attempted to dislocate his arm by slamming the food slot
against it and the officers subsequently assaulted him when
he was released from his cell uncuffed. One of the defendants
in this case was subsequently disciplined for Providing a
False statement and Endangering the Safety of Staff. The SIS
investigation, found no evidence of excessive use of force
during the incident.
SETTLEMENTS:
FCI BECKLEY - Eichler v. u.S. - This is an FTCA case arising

(

' '"... -~ - .

from a accident with the institution's bus in 1995.
Settlement could not be reached during a recent settlement
conference. Trial is scheduled to begin in Louisville,
Kentucky, on July 25, 2000.
USP TERRE HAUTE - Lane v. Thomas - A tentative-- settlement'- f~r

$73 has been reached in this Bivens case with respect to a
use of force situation. The defendant wished to settle the
case for administrative convenience since he is eligible and
ready to retire, but did not want to retire with a case
pending. Therefore, he felt that it was in his best interest
to settle for a nominal amount with, of course, no admission
of wrongdoing. Legal staff spoke with the defendant at
length about the ramifications of such a decision and he
decided to end the case in this matter. AUSA Gerry Coraz was
also intricately involved in this matter.
UPDATE ON CASES, TRIALS OR HEARINGS, ETC. NOTED IN PRIOR
REPORTS:
FCC Butner - We received what is partially an "adverse

decision" in the Taliesin v. Hawk case.
This case involved
the inmate's allegation that the Bureau's "name change policy"
is unconstitutional because it requires him to use his
committed name as an AKA or alias on all official documents
to be filed in his records. The court upheld the policy and
granted the government's motion for summary judgment on that

3433

(

Page 4
MXR Monthly Report

issue. However, the court granted summary judgment in favor
of the Plaintiff on his claims that the Bureau should provide
him with mail and notary services in his new name. Although
this is technically an order against the Bureau, it has no
practical effect as we always have and continue to provide
Plaintiff with these services.
FeI MILAN - Sexton v. U.S. - Oral arguments were heard on
cross motions for summary judgment in this parking lot slip
and fall FTCA case. The oral argument went well for the
United States.
FeI MEMPHIS - Video-conference depositions were held in the
Vargas case at the U.s. Attorney's Office. Dr. Naimey was
deposed on June 16:1, and former SIS Lt. Jim Hough, was deposed
on June 30 th •

(

FCI BECKLEY - Maydak v. Olson - The magistrate judge ordered
a hearing to determine whether the issue presented in this
case (BOP decision to prohibit inmates from receiving
commercially nude photographs) is moot and whether the Bureau
has a de facto policy prohibiting inmates from possession
these photos. The hearing is scheduled for July 11, 2000. A
motion to reconsider has been filed, as well as objections to
the order. The magistrate recently vacated the writ to have
the inmate appear at the hearing, ordering that the inmate
appear telephonically. The order noted that the court would
attempt to decide the issue on the documents before it,
giving us hope that a hearing will not be held.
FeI ELKTON - Wilson v. BOP, et ale - Inmate Wilson alleges in
this Bivens suit that Officer Ramey and others used excessive
force and threatened him in retaliation for filing a BP-9.
The Office of Internal Affairs investigated this matter and
recommended sustaining misconduct charges against Officer
Ramey. Based on the alA investigation, and the fact that
several staff at Elkton will support inmate Wilson's
allegations regarding Lt. Ramey, I am recommending that the
u.S. Attorney's Office not represent Lt. Ramey.
CRIMINAL:

(

Special Confinement Unit - seu inmate Hammer has filed a
motion with his sentencing court, asking to drop all appeals.
In the papers, inmate Hammer states he is guilty of killing
another inmate, is competent to waive his appeals, and no
longer wishes to appeal his death sentence. The court is

3434

Page 5
MXR Monthly Report
planning to hold a hearing in the near future, via
Picturetel, regarding this motion.
FCI BECKLEY - Inmate Abu Shakur was indicted April 4, 2000,
for assaulting a staff member. He is scheduled to be
sentenced in September.
FCI BECKLEY - Inmate Barry Parker was indicted December 8,
1999, for Possessing Contraband (Weapon). He was sentenced
to 24 months in May.
SITUATIONS OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS
WASTE SITES, ETC.:

FCI PETERSBURG - Ibn Tajiddin Sabir - Mr. Sabir is a pretrial
study case at Petersburg. On Sunday, June 25, inmate Sabir
was involved in an altercation with a Correctional Officer,
which left Sabir with a broken jaw. This incident was
referred to the Office of the Inspector General for
investigation. The court was notified of the incident, and
iruna te Sabir underwent oral surgery on June 2 7 r I,.
Inma te
Sabir was then transferred to FMC Rochester.
FCI CUMBERLAND - Tort Claim - Inmate Reeder died in May of
1999 at FeI Cumberland. His family alleges that ten days
after he suffered a heart attack, Reeder approached Health
Services with chest pains. They claim we offered him aspirin
rather than sending him to the hospital. They also claim
that staff made him walk to Health Services on the day of his
death, thus causing his death. We have preliminarily rejected
the claim based on certain technicalities, but we expect the
family to resubmit.
FCI MILAN - Warden Hemingway and Kevin Walasinski met with
the Federal Judges in the Eastern District of Michigan to
discuss FeI Milan and issues related to the FDC. There was
some mis-information provided to the Court surrounding the
MOU between the BOP and USMS concerning the acceptance of
pre-trial inmates in detoxification and with acute medical
conditions. The Judges were provided a copy of the
memorandum, our medical procedures were discussed, and the
Court was advised that FDC Milan houses many pre-trial
inmates with medical conditions and that acute cases (those
requiring hospitalization) would be sent to an outside
hospital by the BOP, and transported and supervised by USMS
staff. The meeting was very successful.
FeI CUMBERLAND - Kelly McDonald, Attorney, will host a tour
of 25 Department of Justice legal interns on July 20, 2000.
Personnel Issues

3435

Page 6
MXR Monthly Report

c.
3436

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

Page 8

MXR Monthly Report

3437

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

r
(!

Page 9

MXR Monthly Report

New Litigation Cases by Institution and Type
Received During the Month of June 2000
ASH BEC BUTALD
0
0
0
0
BIV
1
0
0
FTCA
0
0
1
1
0
HC
1
0
0
OTH
0
1
1
TOT
0
2
-Represents both the FCI and LSCI

CUM
0
0
1
0
1

ELK
1
0

0
0
1

LEX
0
0
2

0
2

MAN
0
0
1
0
1

MEM
1
0
0
0
1

MIL
0
0

2
0
2

MRG
0
0
1
0
1

PET
0
0
0
0
0

SEY
0
0
0
0
0

MXR
0
0
0
1
1

THA
0
0
0
0
0

TOT

PET
0
1
5
0
6

SEY
0
0
0
0
0

MXR
0
0

THA
3
1
2
0
6

TOT
15
6
58
13

2
1

9
2
14

New Litigation Cases by Institution and Type
Received Calendar Year to Date

BIV
FTCA
HC
OTH
TOT

ALD
0
0
1
0
1

ASH
1
0
3
0
4

BEC
0
0
5
1
6

BUT5
2
3
11
21

CUM
ELK LEX MAN MEM MIL
0
2
2
1
1
0
1
0
1
0
0
0
4
18
3
3
2
4
0
0
0
0
0
0
5
21
5
4
3
4
·Represents both the FCI and LSCI

MRG
0
0

4
0
4

I
I

,.1..

,"'..

3438

;,-".,.;••• ~;.;",,,-:-,

:-('.<-.'"••••• ,>'«.,...........;........;.. '...

..;••...- .._...._....:...: ....•..o:.:.: ••.

~.;

............

',.-y.'.'-

".'J'

u.s. Department of Justice
Federal Bureau of Prisons
Mid-Allanlic Regional Office
]()()]O Junclion Drive, Suile ]OO-N
Annapolis Junclion, MD 2070]
0IfIc:ial BusIness
PaWty for Private Usc: S300

MEMORANDAM FOR CHRlS ERLEWINE, GENERAL COUNSEL

(

DATE:

August 5, 2000

FROM:

Bill Burlington, Regional Counsel
Mid-Atlantic Region

SUBJ:

July 2000 Monthly Report

ATTN:

Linda Dubose, Executive Assistant

ADMINISTRATIVE REMEDIES

JAN

FEB

MAR

APR

MAY

JON

JUL

Received
Answered

161
149

131
155

153
161

179
130

149
121

144
246

175
138

TORT CLAIMS

JAN

FEB

MAR

APR

MAY

JON

JUL

194
54
45
198
0

198
51
68
179
0

179
61
50
182
1

182
70
71
197
2

197
74
34
229
2

229
57
5,1
217
4

217
67
68
214
1

JAN

FEB

MAR

APR

MAY

JON

JUL

#
#
#
#
#

Pending
Received
Answered
Pending
Over Six Month

POI/PRIVACY

AUG

SEP

OCT

NOV

DEC

AUG

SBP

OCT

NOV

DEC

AUG

SBP

OCT

NOV

DEC

48
46
38
30
55
63
50
Pending
71
57
76
57
60 101
64
Received
93
81
74
67
66
66
35
Answered
55
63
46
48
38
50
41
Pending
7_
7+
40
7.
7*
3*
Over·20 working Days
3*Two files archived; .2 archived-2 mailed 4/4/00;-all three archived;+4 archivedi 0 3 archived;
_5 archived;

#
#
#
#
#

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
($ in Thousands)

250
249
14
19
10
9
2
3
1
1
7
0
15
10
249
258
17
12
0
0
1
0
$500.0 0

258
12
9
1
2
0
11
259
16
0
0
0

259 247
24
10
7
15
6
1
1
0
2
2
36
14
247 243
12
16
1
0
0
0
0
0

4630

MAY

JON

JUL

AUG

243
250
14
12
6
9
2
3
1
1
2
0
7
16
250 246
7
9
1
2
1
0
0 $0.075

SEP

OCT

NOV

DBC

(

Page 2
MXR Monthly Report
SIGNIFICANT DECISIONS OR ADVERSE DECISIONS:
FCI Beckley - Maydak v. Hawk - Magistrate Mary Feinberg has
recommended enjoining BOP's Program Statement, Inmate
Personal Property, as it applies to inmates who want to
receive sexually explicit commercial photographs. The
Magistrate found the policy to be vague, thus inviting staff
to apply their own personal prejudices about inmates
receiving such photos.
Since this was also an Ensign
Amendment case, we are working with DOJ attorney Marsha
Edney, to file objections.

(

FCC BUTNER - Francis v. Hawk Sawyer. et ale - In a highly
con,tested case, we received a favorable ruling upholding the
Bureau's,decision to classify routine hernias as not
presently medically necessary.
In this case, plaintiff was
diagnosed with a hernia, and he claimed he had constant pain.
The court upheld the decision of medical staff that the
hernia had not progre ed to the
medically necessary.
FCI ELKTON - Pepper v. LaManna - Judge Econo~us ruled in our
favor in this habeas cases where inmate Pepper sought release
from custody.
Pepper alleges that the BOP failed to properly
take him into custody for service of his federal sentence.
Pepper received a state and federal sentence for fraud.
The
state sentencing judge ordered his state sentence to run
concurrently with his federal sentence and that he serve his
time in a federal facility. BOP officials refused to take
Pepper into custody until he had served his state sentence
because the state had primary jurisdiction.
The Judge agreed
with the BOP that the BOP was not obligated to take Pepper
into custody until he had served his state sentence.
FCI ASHLAND - Bryan Sublett v. FCI Ashland Employees Club. et
ale - The institution received a Notice of Nonsuit
terminating all litigation in this case against all parties
with prejudice.
FCl MILAN - Sexton v. United States - On July 24, 2000, the
Court issued its Order and Opinion on both parties' motions
for dismissal/summary judgment.
There were three main issues
. addressed in the Order.
First, the Court determined under
Michigan law that the plaintiff was a licensee and not an

4631

(

Page 3
MXR Monthly Report
invitee.
Secondly, the Court ruled the lack of consortium
claim was properl y filed.
Finally , the Court permitted the
United States t o rais e issues related to the negligent
medical care provided to the plaintiff during her surgery to
repair her wrist.
SETTLEMENTS:
USP TERRE HAUTE - Lane v. Thomas - The Defendant in this
Bivens action d e cided to settle the case in the amount of $75
since he is planning on retiring in the near future . This
case was outlined in the previous month's report.

(

FCI MEMPHIS - Ulises Va rgas v. Reno . et al. - A settleme nt
conference was held in this case on July lSth.
Christine
Martinez, AW( O) , represented the BOP, and met with Magistrate
Breen accompanied by AUSA Harriett Halmon.
Following
protracted mediation, Mr. Vargas' attorney offered to settle
the case for $60,000 (down from $100,000)" although the
individual items totaled less than $30,000.
AUSA Halmon
declined to counter offer from the Government's initial
$1,000 settlement offer and advised Judge Breen accordingly.
On July2S th AUSA Halmon filed a renewed Request for Summa
Judgment.

UPDATE ON CASES, TRIALS OR HEARINGS, ETC. NOTED IN PRIOR
REPORTS:
FCI BECKLEY - Ei c hler v. United States - The Beckley FTCA bus
accident case was tried to a judge during the week of July
24th. The trial lasted three days. At the conclusion o f the
evidence, the judge indicated he would be
opinion within the next couple of weeks.

(

4632

b'j

b2-

(

Page 4

MXR Monthly Report
FCi MEMPHIS - Cockerell v. United
Depositions are
scheduled for August 14th for
Construction
Foreman, and former Captain,
This is the FTCA tJlp
case filed by a Memphis police officer for injuries he
received while using the FCI Memphis obstacle course. •
deposition will be via video teleconferencing rom
t
U . . Attorney's Office in Baltimore. Harriett Halmon,
AUSA, will also depose the defendants, Memphis PD SWAT member
Cockerell and his wife.
CRiMl:NAL:

(

FCl: Ml:LAN - Inmate Jeffrey Wells plead guilty to Count 3 of
the indictment charging him with violation of 18 USC
1791(a) (2)- Possession of a Prohibited Object by Federal
Inmates. This charge relates to the December 21, 1999,
incident in which the immediate use of force was required on
inmate Wells after he attempted to flush an item down the
toilet. The item was confiscated after Wells was restrained
and tested positive for heroin. Ten individuals were indicted
(including visitors), however, three have been dismissed.
The trial for the remaining six individuals is scheduled for
August 29, 2000.
FCl: BECKLEY - Inmate
was indicted on two counts
of Assault. These charges arise out of the disturbance at FCI
Beckley on December 10, 1999.
FCl: BECKLEY - Inmate
was indicted on one count of
Assault. This charge arises out of the disturbance at FCI
Beckley on December 10, 1999.
Special Confinement Unit - SCU inmate Hammer has filed a
motion with the Third Circuit, asking to drop all appeals.
In July, the Third Circuit Court of Appeals, via picturetel,
heard inmate Hammer's oral argument in support of his motion.
Inmate Hammer indicated he was guilty of murdering another
inmate, and wanted to die. He said it was cruel and unusual
punishment not to know when he was going to die, and thus, he
wants to be executed as soon as possible.
The Court seemed
moved by his testimony, and indicated they would rule on the
motion in early August.

FMC LEXINGTON - Inmate Andrew Felton pled guilty to assault

4633

tJ'1~

(

Page 5
MXR Monthly Report

on another inmate, and was sentenced t o a thirty-three month
federal term on July 10.
FCI MILAN - US v. Camejo - This inmate- on-inmate assault case
set for trial in July has been rescheduled for the week of
August 15 th • Camejo just fired his court appointed lawyer
which will delay the case until September 2000.
Kevin
Walasinski, Attorney, FCI Milan, is working with the AUSA,
SIA, HRM and Regional Counsel on the review of Gigilo
materials.
SITUATIONS OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS
WASTE SITES, ETC.:

(

FCI PETERSBURG - U.S. v . Krilich - Inmate Krilich was
originally sentenced to 64 months for RICO violations; the
government appealed. The re-sentencing hearing is set for
September 8, 2000, in Chicago. Krilich's attorneys are
alleging that the BOP cannot provide proper medical care,
especially for his cardiac condition.
Krilich's attorneys
want him on home confinement. A report from BOP is due to
the court by August 10 th • The BOP has made four attempts to
have Krilich receive a cardiac stress test. Twice the inmate
has refused; once he actually went to the appointment and
then refused the test; and on August 7th he was asked again
and again refused.
FCI CUMBERLAND - Significant Tort Claim - Inmate Reeder died
in May 1999. His family alleges that ten days after he
suffered a heart attack Reeder approached Health Services
with chest pain. They claim the BOP offered him aspirin
rather than sending him to the hospital.
They also claim
that staff made him walk to Health Services on the day of his

FCI CUMBERLAND - Significant Tort Claim - Salvatierra - A
letter was received from Dr. Kendig opining that staff were
negligent.
Kelly McDonald, attorne y FCI Cumberland, has
contacted the attorney for the claimant to seek additional
medical records.
We expect respons i ve d o cuments within the
next week or so.

4634

(

Page 6
MXR Monthly Report

FeI MILAN - US v. Garcia - The BOP was served with a subpoena
in th i s criminal case for five inmate telephone cal ls,
records, etc.
A court order was issued in early July denying
the government's motion to quash, but limited the subpoena
time frames . We have complied with 95% of the mater i a l s
requested and are working with the AUSA and defense cou nsel
on the ot her matter .
Pers onnel Issues

(

Staff Leav e and Travel

(

August 14-15: San Diego-BOP Physician Training
August 21 - 23: Region, and US Attorney Meeting at
USP Lee

4635

.----,

Page 8
MXR Monthly Report
New Litigation Cases by Institution and Type
Received During the Month of July 2000
~--

ALD

ASH

BEC

BUT*

CUM

ELK

LEX

MAN

MEM

MIL

MRG

PET

SEY

MXR

THA

TOT

BIV

FTCA

OTH

TOT
0
0
0
~*Represents both the FCI and LSCI
~

New Litigation Cases by Institution and Type
Received Calendar Year to Date
--

ALD

ASH

~--

BEC

BUT

CUM

ELK

LEX

MAN

MEM

MIL

MRG

PET

SEY

MXR

THA

TOT

*
BIV

FTCA

104

0
0
1
1 0TH
TOT
1
4
6
*Represents both the FCI and LSCI

UNITED STATES GOVERNMENT

memorandum
DATE:

ATTN OF:

Bill Burlington, Regional Counsel
Mid-Atlantic Region

SIIRJf:CT:

August 2000 Monthly Report

REPLvm

TO:

hITS:

(

September 8, 2 00 oMid-Atlantic Regional Office. Annapolis Junction. MD 20701

Christopher Erlewine, General Counsel
Linda Dubose, Executive Assistant

ADMINISTRATIVE REMEDIES

JAN

FEB

MU.

APR

MAY

JUN

JUL

AUG

Received
Answered

161 131
149· 155

153
161

179
130

149
121

144
246

175
138

174
155

TORT CLADIS

JAN

!'BB

MAR

APR

Im.Y

JON

JUL

AUG

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

194
54
45
198
0

198
51
68
179
0

179
61
50
182
1

182
70
71
197
2

197
74
34
229
2

229
57
51
217
4

217
67
68
214
1

214
74
44
236
2

tlUVACY

JAN

FEB

JGlR

APR

laY

JON'

JUL

AUG

...... - ~-

SEP

OCT

NOV

DEC

SBP

0C'.r

NOV

DBC

SEP

OCT

NOV

DBC

30
55
38
50 41
63
46
48
60 101
57
76
57 76
64
71
35
93
81
74
67
66
66 62
# Answered
55
63
46
50
41 56
48
38
# Pending
7_ 6<'
4('
# Over 20 Working Days
7*
3*
7.
7+
3.
*Two files archived; .2 archived-2 mailed 4/4/00i.all three archivedi+4 archivedi<'3
archi ved; -5 archi vedi ('3 archived

# Pending
# Received

LITIGATION

MAY

FEB

MAR

APR

Cases Pending
250 249
New Cases Received
14
19
Habeas Corpus
10
9
Bivens
3
2
FTCA
1
1
Other
7
0
Cases Closed
15
10
Cases Pending
249 258
Lit Reports Completed
17
12
Cases/Hearings or Trials
0
0
Settlements/Awards
1
0
$ Settlements/Awards
$500.0 0
($ in Thousands)

258
12
9
1
2
0
11
259
16
0
0
0

259 247
24
10
7
15
6
1
1
0
2
2
36 14
247 243
12 16
0
1
0
0
0
0

JAN

3500

JON

JtJL

AUG

SEP

243 250 246
14
12
24
9
6
18
2
2
3
1
2
1
0
2
2
7
16
38
250 246 232
9
7
14
1
2
1
0
1
1
0 $0.075 $1.5

OCT

NOV

DBC

Page 2
MXR Monthly Repon

(

SIGNIFICANT DECISIONS OR ADVERSE DECISIONS :
FCI BECKLEY - Maydak v . Hawk - Magistrate Mary Feinberg has
recommended enjoining BOP's Program Statements , Inmate
Personal Proparty and Correspondence, as they apply to inmates
who want to receive sexually explicit commercial photographs,
finding them to be unconstitutionally vague.
Marsha Edne y has
recently fi led objections .
FCI MANCHESTER - Steven Palasty, et al. v. Hawk - In another
Ensign Amendment challenge , a Motion to Dismiss has been filed
by DOJ attorney Ori Lev.
Inmate Palasty tried to file a class
action, but Judge Jennifer Coffman refused to certify·the
class, and has limited this case to inmate Palasty's claim
that the Ensign Amendment unconstitutionally infringes his
First Amendment right to receive publications like Playboy and
Penthouse .

(

USP TERRE HAUTE - Kaba Karamo v. Lt. Breakbill et al. - The
Department has agreed to pay the past and future fees of the
private counsel who has been authorized to represent Terre
Haute staff members Randy Jones, Hilbert Martin and Kirt
Breakbill.
These three Lieutenants have had a Motion for
Summary Judgment filed on their behalf by private counsel, and
we are now waiting for the Court to rule on the motion.

s t, ' inmate Wilson
threa'tening and used
Wilson filing a BP-9

ly abusive,
in part due to inmate
a correctional officer .

SETTLEMENTS:
FeI MILAN - Sexton v . United States - A settlement conference
has been set in Detroit, on October 5" ', in this slip and fall
case out of Milan.

(

FeI MORGANTOWN - Steven Hale v. United States - a pre-trial
conference was held in Clarksburg , WV, with a U.S. Magistrate
Judge as mediator in this FTCA case involving loss of a very
lengthy trial transcript, along wi th other personal items .
Former inmate Hale and his counsel were present.
The Bureau
made a final o ffer of $1,500 which was accepted by Mr . Hale .

•
3501

Page 3

MXR Monthly Report

(

Although we are still awaiting a signed release from Mr.
Hale's counsel, this settlement has hopefully ended a lengthy
and arduous case.
UPDATE ON CASES, TRZALS OR BEAlUNGS, ETC. NOTED IN PRIOR
REPORTS:

FeI BECKLEY - Eichler v. United States - The Beckley FTCA bus
accident case was tried to a judge during the week of July
24th. The trial lasted three days. At the conclusion of the
evidence, the judge indicated he would rendering his opinion
within the next couple of weeks.
We are still awaiting a
decision.
FCI BUTNER - Woodruff v. United States - This Butner suicide
case was tried the week of August 21st. While we felt the
AUSA did an outstanding job presenting our defense, this case
could go either way.
The Judge did not rule at the conclusion
of the evidence, but requested post-trial briefs.
From
questions the Judge asked, he was obviously concerned that an
inmate who we identified as mentally ill, was allowed to
commit suicide.
FCI MEMPHIS - Cockerell v. United States - Depositions were
held on August 141.1, for Keith Herndon, Construction Foreman,
and former Captain Bill Taylor in this case arising from
injuries to a Memphis Police Officer while using the FCI's
obstacle course. The AUSA also deposed the defendants.
CRDaNAL:
FCI BECKLEY - Abu Shakur, Reg. No. 16391-016, was indicated
April 4, 2000, for assaulting a staff member. He is scheduled
to be sentenced September 11, 2000.
FCI PETERSBURG - United States v. Krilich - Inmate Robert
Krilich, Reg. No. 06108-424, ($200M dollar man), was
originally sentenced to 64 months for RICO violation. The US
appealed the sentence, won, and Krilich was orally
re-sentenced from the bench to an 87 month sentence on
February 11, 2000. However, the Judge never issued a new J&C.
Krilich's attorneys have filed numerous motions requesting
home confinement in lieu of incarceration asserting that his
medical condition is such (heart) that the BOP cannot provide
for his care. The BOP has scheduled Krilich for a stress test
on four occasions and each time he has found a reason to
refuse. A hearing was set for September 8, 2000.
However, on
August 23, 2000, the U.S. filed a motion asserting that
pursuant to 18 U.S.C. § 3582, the court was without
jurisdiction to continue to review Krilich's sentence and the

3502

Page 4
f\1XR Monthly Report

oral sentence of February 11th should be final. Alternatively,
it was asserted that if the motion was denied, that the court
should order a 60 day medical and psychological evaluation of
Krilich at a BOP medical facility. The court, on August 30,
2000, ordered that Krilich be transported by air to FMC
Lexington for a battery of tests (cardiac and'psychological)
to determine his medical condition. According to the AUSA
Krilich will be ordered to cooperate with the testing.
Krilich was medically airlifted to LEX on September 6, 2000.
The court hearing has been continued until October 31, 2000,
pending receipt of the study.
FCI CUMBERLAND - On August 26, 2000, Inmate Richard Rosebar
(#43369-083) of FPC Cumberland escaped. On Monday, August 28,
2000, Rosebar returned from his "self proclaimed" furlough,
claiming that we cannot charge him with escape, as he self
surrendered within a reasonable time. Kelly McDonald spoke
with the u.S. Attorney's Office for the District of Maryland,
and they have agreed to prosecute Mr. Rosebar for escape.

(

USP TERRE HAUTE SPEC~ CONFINEMENT UNIT - The Third Circuit
Court of Appeals ruled on August 31~', that appeals in death
penalty cases are not mandatory, and that SCU inmate Hammer is
mentally competent and thus, entitled to withdraw the appeal
of his death sentence. This clears the way for inmate Hammer
to be executed, as he has indicated that he will not seek
clemency.
FMC LEXINGTON - Brian O'Leary, Reg. No. 03626-036, is under
investigation and pending prosecution for possessing a
homemade shank and amphetamines in his mattress.
SITUATIONS OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS
WASTE SITES, ETC.:
FCl MEMPBIS- Mike Pybas, Deputy Regional Counsel, will visit
FCI, Memphis September 12-14, regarding the transition of
duties as the Legal Office is closed. He will also meet with
staff at the U.S. Attorney's Office to discuss the continuity
of legal assistance to that office.
COUNTY - On August 23 r ", I spoke at a meeting arranged
by u.s. Attorney Robert Crouch, regarding the impact that USP
Lee will have in the Western District of Virginia.
Approximately 25 members of the "federal family" were in
attendance, including a Magistrate Judge who will hear cases
USP LEE

3503

Page 5

MXR Monthly Report

(

coming from the institution.
Due t~the very remote location
of the institution, the Magistrate indicated she was willing
to travel to the institution to hold hearings.
The U.S.
Marshall is very interested in video-conference court
proceedings, a,,; a: 1 alternative to transporting high security
inmates out of USP Lee for court hearings.
It was clear
from the meeting that problems with DC inmates housed at Red
Onion (VA DOC contract with DC ) have caused concern in the
federal family about the impact our institution will have,
particularly in view of the fact we will have DC inmates at
USP Lee.
T-MXR-OO-096,
has been forwarded to the Central Office
for approval of a review by the Armed Forces Pathology
Division.
This claim alleges medical malpractice in that the
inmate was not provided proper medical care to treat his
detoxification from alcoholism and Xanax dependency.
The
inmate was subsequently rushed to an outside hospital.
He
was intubated while in route, suffered a cardiac arrest in
the hospital emergency room, and required local
hospitalization, and continued care at FMC Rochester.
The
claim has seve 1
lems related to me ' al care and

(

Personnel Issues

(
FeI MEMPHIS •

3504

Page 7
MXR Monthly Report

I!
I

II
I

I
I
.1

"·
C
..

-./'

.........

3505

__._----_ ..

..... __.......................................

(

Page 8
MXR Monthly Repon
New Litigation Cases by Institution and Type
Received During the Month of August 2000
ALD

ASH

BEC

BUT-

CU
M

ELK

LEX

MAN

MEM

MIL

MRG

PET

SEY

MXR

THA

TOT

0
0

1
1

0
0

0
1

0
0

1
0

2
2

1
0
1

0
0
0

6
0
6

1
0
1

0
3

1
0

0
0
0

1
0
2

18
2
24

BIV
0
FTC
0
A
HC
0
OTH
0
TOT
0
- Represents both

0
0

0
2

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

CU
M

ELK

LEX

MA
N

MEM

MIL

MRG

PET

SEY

MXR

THA

TOT

0
0

1
0

0
0

1
0

0
1

1
0

0
0

5
1

1
0

4
0
5

5
1
6

6
14

5
0
7

3
0
7

26
0

5
0
6

3
0
4

5
0
6

4
0
5

0
0
0

2
3

3
0

82
17

128

29
- Represents both the FCI and LSCI

0
12

I
I
I

.. 1

3506

UNITED STATES GOVERNMENT

memorandum
DATE:

September 8, 2000Mid-Atlantic Regional Office. Annapolis Junction. MD 20701

A1TN()i::

Bill Burlington, Regional Counsel
Mid-Atlantic Region

SIIBJf.C'T:

August 2000 Monthly Report

Rr:rl,vm

,', ' : ; .;,, "..! ., '-''-'j"'
..
. E:... "" ....... .

Christopher Erlewine, General Counsel

/'''
0

A1TN:

(

Linda Dubose, Executive Assistant
JAN

FEB

MaR

APR

MaY

JON

JUL

AUG

Received
Answered

161
149

131
155

153
161

179
130

149
121

144
246

175
138

174
155

TORT CLADIS

JAN

MAR

APR

laY

JON

JUL

AUG

# Pending

194
54
45
198

198
51
68
179
0

179 182 197
61
70
74
50
71
34
182 197 229
122

229
57
51
217
4

217
67
68
214
1

214
74
44
236
2

JAN

FEB

MaR

APR

laY

JON

JUL

AUG

63
64
81
46

46
71
74
48

48
57
67
38

38
76
66
50

50
57
66
41

# Answered
# Pending
Over Six Month

(

# pending
30
55
# Received
60 101
# Answered
35
93
# Pending
55
63
7*
3*
# Over 20 Working Days
*Two files archived; .2 archived-2
archived;.5 archived;('3 archived
L7TIGAT I:ON

(.~,:..

'<!'"

4<~

SSP

OCT

NOV

DBC

SRP

OCT

NOV

DRC

SRP

OCT

NOV

DBC

41
76
62
56

7. 60

mailed 4/4/00i.all three archived;+4 archived; 03
JUL

!'BB

MAR

APR

MAY

JON

Cases Pending
250 249
New Cases Received
14
19
Habeas Corpus
10
9
Bivens
3
2
FTCA
1
1
Other
o 7
Cases Closed
15
10
Cases Pending
249 258
Lit Reports Completed
17
12
Cases/Hearings or Trials
o
0
Settlements/Awards
1
0
$ Settlements/Awards
$500.0 0
($ in Thousands)

258
12

259
24
15
6
1

247
10
7
1
0

243 250 246
14
12
24
9
6
18
232
112
022
7
16
38
250 246 232
9
7
14
121
011
o $0.075 $1.5

JAN

I ..
~

, .,

k") ; '"

ADMINXSTRATIVB RBMBDXRS

# Received

1
2

o
11
259
16

o
o
o

36 14
247.243
12 16
1

0
0

3485

AUG

SSP

OCT

NOV

DRC

Page 2
MXR Monthly Report

(

SIGNIFICANT DECISIONS OR ADVERSE DECISIONS:
FCI BECKLEY - Maydak v . Hawk - Magistrate Mary Feinberg has
recommended enjoining BOP's Program Statements, Inmate
Personal Property and Correspondence, as they apply to inmates
who want to receive sexually explicit commercial photographs,
finding them to be unconstitutionall y vague.
Marsha Edney has
recently filed objections.
FCI MANCHESTER - Steven Palasty, et al. v . Hawk - In another
Ensign Amendment challenge, a Motion to Dismiss has been filed
by DOJ attorney Ori Lev.
Inmate Palasty tried to file a class
action, but. Judge Jennifer Coffman refused to certify the
class, and has limited this case to inmate Palasty's claim
that the Ensign Amendment unconstitutionally infringes his
First Amendment right to receive publications like Playboy and
Penthouse.

(

USP TERRE HAUTE - Kaba Karamo v. Lt. Breakbill et a l . - The
Department has agreed to pay the past and future fees of the
private counsel who
staff member
tjo
These three
shave
uaqm.e nt filed on their behalf by private counsel, . and
we are now waiting for the Court to rule on the motion.
FCI ELKTON - Mark Wilson v. Bureau of Prisons - I am not
recommending that the Department provide u.s. Attorney
representation for Bivens defendant
In this
suit, inmate . . . . . . . claims
y abusive,
threatening and used excess
orce in part due to inmate
. . . . . . . filing a BP-9 against a correctional officer.
An OIA
investigation contains declarations from correctional officers
at Elkton, which tend to .corroborate inmate
allegations that unnecessary force was used.
SETTLEMENTS :
FCI MILAN - Sexton v. United States - A settlement
been set in Detroit
out of Milan.

FCI MORGANTOWN - Steven Hale v. United States - a pre-trial
conference was held in Clarksburg, WV, with a u.S. Magistrate
Judge as mediator in this FTCA case involving loss of a very
lengthy trial transcript, along with other personal items.
Former inmate Hale and his counsel were present. The Bureau
made a final offer of $1,500 which was accepted by Mr. Hale.

3486

Page 3

MXR Monthly Report

(

Although we are still awaiting a signed release from Mr.
Hale's counsel, this settlement has hopefully ended a lengthy
and arduous case.
UPDATE ON CASES, TRIALS OR BEARINGS, ETC. NOTED IN PRIOR

REPORTS:
FCI BECKLEY - Eichler v. United States - The Beckley FTCA bus
accident case was tried to a judge during the week of July
24th. The trial lasted three days. At the conclusion of the
evidence, the judge indicated he would rendering his opinion
within the next couple of weeks.
We are still awaiting a
decision.
FCI BUT.NER - Woodruff v. United States - This Butner suicide
case was tried the week of August 21~·. While we felt the
AUSA did an outstanding job presenting our defense, this case
could go either way. The Judge did not rule at the conclusion
of
e evidence, but requested
st-trial briefs.

(

FCI MEMPHIS - Cockerell v. United States - Depositions were
held on August 141h for Keith Herndon, Construction Foreman,
and former Captain Bill Taylor in this case arising from
injuries to a Memphis Police Officer while using the FCl's
obstacle course. The AUSA also depo~ed the defendants.

FeI BECKLEY - Abu Shakur, Reg. No. 16391-016, was indicated
April 4, 2000, for assaulting a staff member. He is scheduled
to be sentenced September 11, 2000.

FCI PETERSBURG - United States v. Krilich - Inmate Robert
Krilich, Reg. No. 06108-424, ($200M dollar man), was
originally sentenced to 64 months for RICO violation. The US
appealed the sentence, won, and Krilich was orally
re-sentenced from the bench to an 87 month sentence on
February 11, 2000. However, the Judge never issued a new J&C.
Krilich's attorneys have filed numerous motions requesting
home confinement in lieu of incarceration asserting that his
medical condition is such (heart) that the BOP cannot provide
for his care. The BOP has scheduled Krilich for a stress test
on four occasions and each time he has found a reason to
refuse. A hearing was set for September 8, 2000. However, on
August 23, 2000, the u.s. filed a motion asserting that
pursuant to 18 U.S.C. § 3582, the court was without
jurisdiction to continue to review Krilich's sentence and the

3487

(

Page 4
MXR Monthly Report
oral sentence of February 11!:t. should be final. Alternatively,
it was asserted that if the motion was denied, that the court
should order a 60 day medical and psychological evaluation of
Krilich at a BOP medical facility. The court, on August 30,
2000, ordered that Krilich be transported by air to FMC
Lexington for a battery of tests (cardiac and psychological)
to determine his medical condition. According to the AUSA
Krilich will be ordered to cooperate with the testing.
Krilich was medically airlifted to LEX on September 6, 2000.
The court hearing has been continued until October 31, 2000,
pending receipt of the study.
FC! CUMBERLAND - On August 26, 2000, Inmate Richard Rosebar
(#43369-083) of FPC Cumberland escaped. On Monday, August 28,
2000, Rosebar returned from his "self proclaimed" furlough,
claiming that we cannot charge him with escape, as he self
surrendered within a reasonable time. Kelly McDonald spoke
with the u.s. Attorney's Office for the District of Maryland,
and they have agreed to prosecute Mr. Rosebar for escape.

(

USP TERRE HAUTE SPECLAL CONFINEMENT UNIT - The Third Circuit
Court of Appeals ruled on August 31~~, that appeals in death
penalty cases are not mandatory, and that SCU inmate Hammer is
mentally competent and thus, entitled to withdraw the appeal
of his death sentence. This clears the way for inmate Hammer
to be executed, as he has indicated that he will not seek
clemency.
FMC LEXINGTON - Brian O'Leary, Reg. No. 03626-036, is under
investigation and pending prosecution for possessing a
homemade shank and amphetamines in his mattress.
SITUATIONS OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOOS
WASTE S I'l'ES , ETC.:
FC! MEMPBIS- Mike Pybas, Deputy Regional Counsel, will visit
FCI, Memphis September 12-14, regarding the transition of
duties as the Legal Office is closed. He will also meet with
staff at the u.s. Attorney's Office to discuss the continuity
of legal assistance to that office.
USP LEE COUNTY - On August 23 r . I spoke at a meeting arranged
by u.s. Attorney Robert Crouch, regarding the impact that USP
Lee will have in the Western District of Virginia.
Approximately 25 members of the "federal family" were in
attendance, including a Magistrate Judge who will hear cases
j

3488

Page 5
MXR Monthly Report

(

coming from the institution.
Due to the very remot e location
of the institution, the Magistrate indicat ed she was willing
to travel to the institution to hold hearings.
The U.S.
Marshall is very interested in videc - confe rence court
proceedings, as an alcernative to transporting high secur~ :
inmates out of USP Lee for court hearings.
It was clear
from the meeting that problems with DC inmates housed at R ~~
Onion (VA DOC c o ntract with DC ) have cau sed concern in the
federal family about the impact our institution will have,
particularly i n view of the fact we will have DC inmates at
USP Lee.
T-MXR-OO-096,
has been forwarded to the Centra l Office
or approva
a review by the Armed forces Pathology
Division. This c laim alleges medical malpractice in that the
inmate was not provided proper medical care to treat his
detoxification from alcoholism and Xanax dependency.
The
inmate was subsequently rushed to an outsi de hospital.
He
was intubated while in route, suffered a cardiac arrest in
the hospital emergency room, and required local
hospitalization, and continued care at fMC Rochester.

(

Personnel Issues

(
FeI MEMPHIS -

•
3489

Page 7
MXR Monthly Report

c.
3490

PageS

MXR Monthly Repon
New Utigation Cases by Institution and Type
Received During the Month of August 2000
ALD

CU
M
0

ELK

LEX

MAN

MEM

MIL

MRG

PET

SEY

MXR

THA

TOT

0
0

2
2

0
0

1
5
the FCI and LSCI

0
3

1
0
1

0
0
0

0
0

BEC

BUT-

0
0

0
0
0

ASH

BIV
0
FTC
0
A
HC
0
OTH
0
TOT
0
- Represents both

18
2
24

New Utigation Cases by Institution and Type
Received Calendar Year to Date
ALD
BIV
FTC
A
HC
OTH
TOT

0
1
0
1

1
0

0
0

6
2

4
0

6
14
28

5
0
7

BEC

BUT

CU
M
0
2

ASH

1
6

ELK

LEX

MEM

MIL

MRG

PET

SEY

MXR

THA

TOT

0
0

0
0
0

1
2
3

3
0

82
17
128

N
3
1

2
1

26
0
29
- Represents both

3
0
7

1
0

5
0

3
0

5
0

4
0

4
6
6
the FCI and LSCI

(

3491

UNITED STATES GOVERNMENT

memorandum
DATE:

October 12, 2000Mid-Atlantic Regional Office. Annapolis Junction. MD 20701

AlTNOF:

Bill Burlington, Regional C
.. ,
Mid-Atlantic Region
:1\~' l-rt"'-'-i)

Sl'BJErT:

September 2000 Monthly Repe ------

REPLY TO

10:
ATTN:

,(.~''''

f:-

.,.-

Christopher Erlewine, Gene%
Linda Dubose, Executive Assistant

ADMlHl:S!'RAT%VZ RBNBDl:ZS

JAN

I'BB

!GR

APR

!aY

JON

.:nJL

AUG

SBP

Received
Answered

161
149

131
155

153
161

179
130

149
121

144
246

175
138

174
155

161
182

JAN

FEB

!GR

APR

1G.Y

Jtm

JOL

AUG

SBP

194
54
45
198

198
51
68
179

179 182 197 229 217
61
70
74
57
67
50
71
34
51
68
182 197 229 217 214
12241

214
74
44
236
2

236
68
42
236
1

JAN

FBa

!GR

APR

JON

.:nJL

AUG

SSP

# Pending
30
# Received
60
# Answered
35
# Pending
55
# Over 20 Working Days
7
*5 archived; 8 mailed 10-2

55
101
93
63
3

63
64
81
46

46
71
74
48

48
57
67
38

-3

38
76
66
50
4

50
57
66
41
7

JUt

l'Ba

!GR

APR

!aY

JON

JUL

AUG

SBP

250 249
Cases Pending
14
19
New Cases Received
Habeas Corpus
10
9
3
2
Bivens
1
1
rTCA
o
7
Other
Cases Closed
15
10
:::ases Pending
249 258
Lit Reports Completed
17
12
:ases/Hearings or Trials
o
0
Settlements/Awards
1
0
5500.0 0
$ Settlements/Awards
($ in Thousands)

258
12

259 247
24
10
15
7
6
1
1
0
2
2
36 14
247 243
12 16
1
0
o 0
o
0

243
14

250
12

232
19

#
#
#
#
,.i

(

Pending
Received
Answered
Pending
Over Six Month

\-.. vi./PR:r.VACY

LI~l:GATl:ON

1
2

o
11

259
16

o
o

3522

41
76
62
56
6

2
1

3
1
2

2
2
2

7
16
250 246

38
232
14

HOV

DBC

OCT

NOV

DBC

OCT

NOV

DEC

OCT

ROV

DRC

56
53
41
68
21*

246
24
18

OCT

9
2

5
12
236
10
1

o
1
1 2
o $.075 $1.5 $987

Page 2
MXR Monthly Report

(

SIGNIFICANT DECISIONS OR ADVERSE DECISIONS:
FCI BUTNER - Woodruff v. United Staces - After a four day
trial, the Judge entered a verdict of $907,000 (plus interest
and costs ) for the family of deceased Butner inmate Bryant
Woodruff.
The court found the government responsible for
inmate Woodruff's 1997 suicide, saying Butner staff failed to
properly treat inmate Woodruff's depression, and did not
properly monitor Woodruff, despite our knowledge that he had
recently attempted suicide. The verdict was based on-the
credibility of witnesses.
I do not believe there are grounds
for an appeal, even though the AUSA has indicated he would
like to appeal.
FCI ELKTON - Mark Wilson v. Bureau of Prisons
Justice is still considering
pre~elltation to Elkton

(
FeI MORGANTOWN - Silvia Medley v . Bledsoe, et al. - In this
~O suit, I had recommended DOJ representation for....,
~_
.
the Union President at FCI Morgantown.
DOJ has just
us that representation will not be provided t o "
as the only allegations against him Concern actions
he woul
ve taken in his capacity as Union President.
Accordingly, the Department says represen
his Union.
I have notified the Warden and
DOJ's decision.
FMC LEXINGTON - Thomas Greer v . Thoms - Judge Wilhoit upheld
our policy precluding inmates with prior crimes of violence
from early release under 36 2 1 (e). Greer has a prior
conviction for Aggravated Battery.
In his two sentence Order,
Judge Wilhoit cited the cases relied upon in Respondent's
brief as the basis for the dismissal of the habeas petition.

. \.

FCI BECKLEY - Mayda¥'v . Olson - The District Court entered an
order September 28, 2000, finding the Bureau's past and
present policies on commercially available nude or sexually
explicit photographs are reasonably related to a legitimate
penological interest. Accordingly, the Judge upheld P . S .
5580.05 and P.S . 5580.06 under Turner.
In the analysis under
the first Turner factor the Judge noted , "BOP staff is far

•

3523

Page 3
MXR Monthly Report

(

more familiar than this court could ever be with the various
ploys used by prisoners to skirt prison regulations, and the
BOP must be free to implement thei r regulations witho ut
untoward interference from the cour: system ."
FCI CUMBERLAND - Jeffress ·v . Gunja - The Court dismis sed this
case without prejudice and ruled that the inmate should have
filed a 2255 in the district of conviction , and that he could
not avoid AEDPA by filing a 2241 . The institution attorney is
drafting a letter to the AUSA asking him to request that this
opinion be published, but she has spoken to the AUSA
informally and he is not confident the Judge will want to
publish it.
SETTLEMENTS:
FCIMILAN - Inmate
TRT-MXR-00-096 - This is
an administrative tort claim for medical malpractice.
The
claim rai ses issues of medical records missing from the
inmate's file which are relevant t o his care at FDC Milan.
The inmate arrived at FDC Milan withdrawi

(

FCI MILAN - Sexton v . United States - A settlement conference
was held in Detroit, on October 5:', in this slip and fall
case out of Milan. After three hours with the Judge, we were
able to settle this case for $80 , 000.
FCI BUTNER - Zachowski v. United States - We have just sent a
·s Butner FTCA suicide

UPDATE ON CASES, TRIALS OR HEARINGS, ETC. NOTED IN PRIOR
REPORTS:

FCI BECKLEY - Eichler v . United Sta:os - The Beckley FTCA bus
accident case was tried to a judge during the week of July

3524

(

Page 4
MXR Monthly Report
24th. The trial lasted three days. At the conclusion of the
evidence, the judge indicated he would be rendering his
opinion within the next couple of weeks.
We are still
awaiting a decision.
FCZ ALDERSON - Cunningham v. Scibana - This inmate has a
habeas action pending wherein she disputes the determination
that her tampering with a consumer product conviction
precludes her eligibility for early release. On July 3, 2000,
the magistrate judge entered findings that recommended she be
declared eligible for early release. We filed objections on
July 20, 2000. We recently received a final order reversing
the Magistrate and finding inmate Cunningham not eligible for
early release.

F.NC LEX7NGTON - On September 7, Patrick Noble, 23560-086, and
Dominic Palazzola, 53757-097, were indicted by a grand jury
for First Degree Murder in the death of Tracy Hearlson,
24663-086 at FMC Lexington in September 1998.

(

Special Confinement Unit - SCU inmate David Hammer was given a
November 15 execution date by District Court Judge. Malcolm
Muir. A full scale execution practice session is scheduled at
Terre Haute on October 31 to November 2 nd •
Inmate Hammer and
Inmate McVeigh are currently threatening litigation over the
local Coroner's position that Indiana law requires an autopsy
be performed on any inmate who dies in custody, even if the
cause of death is via execution.
FCZ BECKLEY - Inmate Abu Shakur was indicted April 4, 2000,
for assaulting a staff member. He was sentenced to 10 years
(consecutive) on September 13, 2000.
Fel BECKLEY - Inmate Garvey was indicted in September for
Possession of Contraband (a weapon) .
FCI BECKLEY - Inmate Richard Rosebar, Reg. No. 43369-083, was
indicted for escape after the inmate went on a "self
proclaimed" furlough claiming that the BOP could not charge
him with escape as he self surrendered within a reasonable
period of time.
SITUATIONS OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOOS

3525

Page 5
MXR Monthly Report

(

WASTE SITES, ETC.:
FCI Petersburg - On September 20 " ·, FCI Pe"Cersburg received a
Notice of Violation from the Vir?inia Depar"Cmen"C of
Environmental Quality, regarding our fail llre to take all
necessary steps to close a s6lid waste managem~nt facility
(landfill) which is located on our properLy .. The landfill
has been inactive for some time.
Unfortunately, staff failed
to comply with oral instructions on how to close the landfill
.

(

-. --

FCI BECKLEY- During our staff recall in September, we
presented a thank you letter to John File for his dedication
to prosecuting an inmate that had assaulted a staff member.
This gave John a glimpse of the impact his prosecutions have
at the facility and provided staff the opportunity to thank
John personally.
Staff gave John a standing ovation for his
work in prosecuting inmate Shakur, and for the other
successful prosecutions John has had at this institution.
Numerous staff came up to John after the recall to shake his
hand and tell John the difference he makes in the
institution.
He was very moved by the experience .
FCC BUTNER - Mike Bredenberg and Milt Williams attended a
training session with the U. S. Attorneys Off ice for the
Eastern District of Virginia on September 27, 2000.
Personnel Issues

Staff Leave and Travel

3526

("-.

Page 6

MXR Monthly Report

-....... .

_-_.-._ _... .

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

....

c
3527

Page 7

MXR Monthly Report
New Litigation Cases by Institution and Type
Received During the Month of September 2000
ALD

ASH

BEC

BUT-

ELK

LEX

MAN

MEM

MIL

MRG

PET

SEY

MXR

THA

TOT

0
0

0
1

0
0

1
1

2
3

0
0
1

0
1
1

1
0
3

9
5
19

M
BIV
0
0
FTC
A
0
HC
OTH
0
0
TOT
-Represents both

0
0

0
1

0
0

3
0
3

0
0

0
3
3

4
1

1
the FCI and LSCI

0
1

0
0

0
0
0

MRG

PET

SEY

MXR

THA

TOT

New Litigation Cases by Institution and Type
Received Calendar Year to Date
ALD
BIV
FTC
A
HC
OTH
TOT

ASH

1
0
1

7
8

BEC

BUT

CU
M

ELK

3
1

2
1

1
0

30
1
34

MEM

MIL

0
1

6
2

0
2

5
1
7

6
17
31

LEX

0
1

0
0

6
2

22
12

0
0

1
3
4

4
0
12

91
22
147

-Represents both the FCI and LSCI

( ...

(

3528

UNITED STATES GOVERNMENT

r-..

memorandum
:',\7.::
PErl::" '!'r.
ATTN

or:

~"p.1ErT:
:1.:

ATTtJ:

November 9,

2000"'l<ll1tIAnll':

R...uo,,,,J orl1.·... Ann"""I, •. "111"""'., !'!:. " •. ~

Bill Burlington, Regional Counsel
Mid-Atlantic Region
October 2000 Monthly Report
Christopher Erlewine, General Counsel
Linda Dubose, Executive Assistant

ADMINISTRATIVE REMEDIES

JAN

FEB

MAR

APR

!aY

JON

JUL

AUG

SEP

OCT

Received
Answered

161
149

131
155

153
161

179
130

149
121

144
246

175
138

174
155

161
182

136
106

TORT CLAIMS

JAN

FEB

MAR

APR

!aY

JON

JUL

AUG

SEP

OCT

194 198 179
# Received
54
51
61
# Answe"red
45
68
50
# pending
198 179 182
# Over Six Month
0
0
1
*open ELK files transferred to NERO.

182 197 229
70
74
57
71
34
51
197 229 217
224

217
67
68
214
1

214
74
44
23'6
2

236
68
42
236
1

236
37
40
200*
4

_ .i./PRIVACY

APR

!aY

JON

JUL

AUG

SEP

OCT

30
55
63
46
# Received
60 101
64
71
# Answered
35
93
81
74
# Pending
55
63
46
48
# Over 20 Working Days
7
3
7
3
~Two we are awaiting files from archives.

48
57
67
38

38
76
66
50
4

50
57
66
41

41
76
62
56

68
68
98
38

56
53
41
68
21

# Pending

JAN

FEB

MAR

# Pending

JAN

FEB . MAR

APR

!aY

JON

JUL

AUG

SEP

OCT

Cases Pending
New Cases Received
Habeas Corpus
Bivens

250
14
10
3

249
19
9
2

258
12
9
1

259
24
15
6

247
10

243
14

250
12

232
19
9
2

236

246
24
18
2

FTCA
1
Other
0
Cases Closed
15
o:s Pending
249
._~ Reports Completed
17
Cases/Hearings or Trials
0

1
7
10
258
12
0

2
0
11
259
16

1
1
2
3
0
2
2
5
7
16
38
12
250 246 232 236
7
9
14
10
1
2
1
2

0
1
15
230
10
2

9
7

I
i

3963

DBC

NOV

DEC

NOV

DEC

NOV

DEC

3(1

LITIGATION

1
0
2
2
36 14
247 243
12 16
1
0

NOV

Settlements/Awards
$

~ettlements/Awards

($ in Thousands)

$500.0 0

o
o

1
122
$.075 $1.5 $987 $5.4

~)
....

\
i

3964

Page 3
MXR Monthly Report
SIGNIFICANT DECISIONS OR ADVERSE DECISIONS :
FCI BUTNER - Woodruff v. U. S . - After a four
verdict of 5907 ,00 0 Iplus interest
Butner inmate Bryant Woodruff .

the

USP TERRE HAUTE - United States v. David Paul Hammer - Judge Malcolm
Muir , M. D. Pennsyl van ia, has ruled that the Bureau may not conduct an
autopsy o n the body of inmate Hammer, after his lawfu l execution.
The
Bureau had argued an autopsy was needed to defend claims of abuse and
medical malpractice during the execution.
The Vigo County Coroner
also was in favor of doing an autopsy , as was t he U.S . Marshal's
Service.
A request for reconsideration is being prepared.
FPC ALDERSON - Daniels v . Reno - This was a Title VII case filed by a
retired employee from FPC Alderson, and handled by Centra l Office .
The case was dismissed in October based on a finding that there was no
genuine issue as to any material fact.
FCI MEMPHIS - Holl ida y, aka Charles Grannis v. Hambrick , et al. - In
an order dated October 30 , 2000, Judge Donald, W.O. Tennessee ,
dismissed the complaint under 28 U. S.C . § 1915 1g) Stating "Grannis may
no l onger file any action in this district in which he proceeds in
forma pauperis unless he actually demonstrates that he is 'under
imminent danger of serious physical injury .' . .. Plaintiff is,
however, liable to the Court for the fu ll 5150.00 filing fee. " Later
in the order the Judge stated , "The Clerk of the Court is ordered not
to file, open on this Court's d oc ket, assign a new docket number, or
assign to a judge, any further case whatsoever submi tted by this
plaintiff unless specifically directed to do so by a district j udge or
magistrate judge of this district ."
FCI MORGANTOWN - Johnson v . Reno, et al . - Johnson filed this habeas
petition challenging the Bureau's failure to credit him with good
conduct time.
Even though the petition wa s denied for failure to
exhaust, the Judge went on to say that the petition also fails
substantively . The judge reiterated that the fact petitioner's

3965

Page 4

MXR Monthly Report
sentence was served during a leap year does not automatically
transform the sentence into one for a year and day and thus make him
eligible for good conduct time.
SETTLEMENTS:
FCI BECKLEY - Buck v. USA - This is a tor t action for l oss of personal
property . The inmate al leg ed $400.00 worth of personal property was
lost or misplaced by staff at FCI Beckley when he was moved to the
Special Housing Unit, and then transferred to FMC Lexington after a
disturbance at Beckley .
The action is filed in Pennsylvania, as the
inmate is cu rrentl y incarcerated at USP Allenwood. ' The inmate settled
the action for $100.00.
FCI Butner - Zachowski (FTCA Claim)- We have just sent a lengthy
settlemen t recommendation in this Butner FTCA suicide case.
Miche l le
Fuseyamore and I met with counsel for the Zachowski family,
lowered their demand fro m $3 million to $500 000.

FCI MEMPHIS - Vargas v . Reno, et al . - The remaining issue regarding
Intention Infliction of Emotion Distress was set to go to trial .
However , after consultation with the involved Wardens, Regional
Directors and Regional Counsels, we were able to settle the case for
$5 , 000 and the restoration of some sick and annual leave related to
bringing the action.
UPDATE ON CASES, TRIALS OR HEARINGS , ETC. NOTED IN PRIOR REPORTS:
FCI BECKLEY - The Beckley FTCA bus accident case was tried to a judge
during the week of July 24 "' .
The trial lasted three days . At the
conclusion of the evidence, the judge indicated he would be rendering
his opinion within the next couple of weeks . We are still awaiting a
decision.
FMC LEXINGTON - United States v. Robert Krilich - At a hearing held in
Chicago on October 31, 2000, Inmate Krilich's sentence was increased
to seven years.
Judge Coar denied defendant's motion .
However , Judge
Coar was critical of the medical care the defendant received before
arriving at FMC Lexington.
Judge Coar left the possibility of
re - opening the case if he found evidence of substandard medical care
in the future.
Dr. Ramierz has recommended Krilich go to a medi cal
center with psychiatric outpatient services.
FMC LEXINGTON - United States v . John A. Burgess - At the time of
sentencing, inmate Burgess' sentencing court in the District of South
Carolina ordered a medical report be prepared to address how FMC
Lexington would care for inmate Burgess ' diabetes condition.
The
court also ordered Burgess' pers o nal physician to come to Lexington to "
ct" the institution for its adequacy to care for Burgess.

FMC LEXINGTON - United States v. Jerrv Lee McIntosh - The court

3966

Page 5
MXR Monthly Report
ordered a specific set of tests be done on study case McIntosh within
two weeks, and threatened to call a BOP representative to the hearing
and show cause why a contempt of court order should not be issued.
The court had previously issued a study order and attached an outside
doctor's recommended list of tests. The FMC Lexington Clinical
Director, within his discretion, ordered different tests, which
apparently agitated the court. FMC Lexington staff have now complied
with the recommendation of the court and are forwarding a report to
the court.
FCI ~CHESTBR - Gianette v. Snyder - Plaintiff wrote a letter to the
Court which was construed as a Bivens action and a temporary
restraining order was issued on September 25, 2000. In the letter,
the inmate claimed that his life was in jeopardy due to his having to
implement and maintain a hunger strike since September 2, 2000, in
order to insure his safety and security within the institution as a
result of matters involving the death of a former employee. An
emergency hearing was held on October 4, 2000, at which time the Court
granted the respondent's motion to dissolve the temporary restraining
order.
CRDaNAL:

Special Confinement Unit: A full scale execution practice session
took place at Terre Haute on November 1st.
During this session, the
institution and Department of Justice Command Centers were linked. As
the practice session ended on Wednesday, we received word that the
sentencing court had stayed inmate.Hammer's execution date until
January 31, 2001, so that he could prepare a §2255 collateral attack
on his sentence. If he does not file by January 31 n" the Court will
impose a new execution date of February 21, 2001.

We are receiving increased criticism over the Warden's recent decision
to only allow telephonic news media interviews with inmates in the
Special Confinement Unit. Yesterday, we received a letter from Robert
Lystad, Esquire, in the Washington D.C. firm of Baker and Hostetler,
indicating that they believe our current practice is unconstitutional.
Apparently Mr. Lystad represents several news organizations including
National Public Radio, USA Today, and the Reporters Committee for
of the Press. We will
se to their letter.

SITUATIONS OF INTEREST, CONTACT WITS FEDERAL BBBCH, HAZARDOUS WASH
SIDS, ETC.:
PCI Petersburg - We previously reported a NOV from the Virginia
Department of Environment Quality on closure of a debris landfill. In
a letter dated October 25, 2000, the institution was informed that the
materials submitted by the institution on September 29, 2000,
addressed all of the remaining issues in regards to closure of the
landfill. The letter also advised that DEQ would be informed that the
institution is now in compliance with SMWR requirements. The
recommendation will also be made that the facility would be •
de-referred- from enforcement status. The letter indicates the
landfill site would be considered officially closed in accordance with
the SMWR effective September 29, 2000. Facilities indicates this date

3967

Page 1
MXR Monthly Report

~.'

.. "

~.'

. ',11

I
. ... ..... ...•.
'

I .• "

3968

... - .. , -

......

.__ ...._. _ ...__ .1

Page 8
MXR Monthly Report
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3969

..,

J.~~':" i

(

1;":

..
(l

.1.:.

1 ~'t·

UNITED STATES GOVERNMENT

memorandum

I'AT~:

ATTN IlF:

Bill Burlington, Regional Counsel
Mid-Atlantic Region

SIJBJECT:

October 2000 Monthly Report

IiEF-LY T('

T,'I:

I'TTI::

~.
.

hl ,.'

""a"'n,,1 '·ft. ..·'. "n"",--I,· .... , •. : \,-._, Wo' •

Christopher Erlewine, General Counsel
Linda Dubose, Executive Assistant

ADMINISTRATIVE REMBD:IES

JAN

FEB

MAR

APR

!mY

JON

JUL

AUG

SBP

OCT

Received
Answered

161
149

131
155

153
161

179
130

149
121

144
246

175
138

174
155

161
182

136
106

TORT CLAZMS

JAN

FEB

MAR

APR

!mY

JON

JUL

AUG

SBP

OCT

Pending
194 198 179
Received
54
51
61
Answered
50
45
68
Pending
198 179 182
1
0
Over Six Month
0
*open ELK files transferred to NERO.

182
70
71
197
2

197
74
34
229
2

229
57
51
217
4

217 . 214
67
74
68
44
214 236
1
2

236
68
42
236

236
37
40
200*
4

APR

MAY

JON

Jt1L

AUG

SBP

63
46
30
55
71
64
60 101
74
81
# Answered
35
93
46
48
# Pending
55
63
7
7
3
3
# Over 20 Working Days
OTwo we are awaiting files from archives.

48
57
67
38

38
76
66
50
4

50
57
66
41
7

#
#
#
#
#

November 9, 2000""1-..,, I..

t/PRIVACY

JAN

FEB

MAR

# Pending
# Received

41
76
62
56
6

56
53
41
68
21

OCT

JAN

FEB

MAR

APR

MAY

JON

JUL

AUG

SBP

OCT

Cases Pending
New Cases Received
Habeas Corpus
Bivens

250
14
10
3

249
19
9
2

258
12
9
1

259
24
15
6

247
10
7
1

243
14
9
2

250
12
6
3

246
24
18
2

232
19
9
2

236
9
7

FTCA
1
Other
0
Cases Closed
15
Cases Pending
249
~ Reports Completed
17
~ses/Hearings or Trials
0

1
7
10
258
12
0

0
11
259
16
0

1
0
2
2
36 14
247 243
12 16
1
0

3975

1
1
2
3
0
2
2
5
7
16
38
12
250 246 232 236
7
9
14
10
1
2
1
2

DEC

NOV

DEC

NOV

DBC

NOV

DEC

68
68
98
38
30

L:ITIGATION

NOV

1
15
230
10
2

Settlements/Awards
$ Settlements/Awards
($ in Thousands)

$500.0 0

o
o

122

$.075 $1.5 $987 $5.4

·'".'1

3976

Page 3
MXR Monthly Report
SIGNIFICANT DECISIONS OR ADVERSE DECISIONS:

f:'

FCI BUTNER - Woodruff v. U.S. - After a four day trial, the Judge
entered a verdict of $907,000 (plus interest and costs) for the family
of deceased Butner inmate Bryant Woodruff. After me
with the
stant U.S. Attorney who tired this case, we have

FCI ELKTON

~~~~~~~~~~~~~~~~~~~~a~l~. -

The Department
Elkton employee

b5
USP TERRE HAUTE - United States v. David Paul Hammer - Judge Malcolm
Muir, M.D. Pennsylvania, has ruled that the Bureau may not conduct an
autopsy on the body of inmate Hammer, after his lawful execution.
The
Bureau had argued an autopsy was needed to defend claims of abuse and
medical malpractice during the execution.
The Vigo County Coroner
also was in favor of doing an autopsy, as was the U.S. Marshal's
Service. A request for reconsideration is being prepared.
FPC ALDERSON - Daniels v. Reno - This was a Title VII case filed by a
retired employee from FPC Alderson, and handled by Central Office.
The case was dismissed in October based on a finding that there was no
genuine issue as to any material fact.
FCI MEMPHIS - Holliday, aka Charles Grannis v. Hambrick, et ale - In
an order dated October 30, 2000, Judge Donald, W.O. Tennessee,
dismissed the complaint under 28 U.S.C. § 1915(g) Stating "Grannis may
no longer file any action in this district in which he proceeds in
forma pauperis unless he actually demonstrates that he is 'under
imminent danger of seri.ous physical injury.' ... Plaintiff is,
however, liable to the Court for the full $150.00 filing fee." Later
in the order the Judge stated, "The Clerk of the Court is ordered not
to file, open on this Court's docket, assign a new docket number, or
assign to a judge, any further case whatsoever submitted by this
plaintiff unless specifically directed to do so by a district judge or
magistrate judge of this district."

f:"

FCI MORGANTOWN - Johnson v. Reno, et ale - Johnson filed this habeas
petition challenging the Bureau's failure to credit him with good
conduct time.
Even though the petition was denied for failure to
exhaust, the Judge went on to say that the petition also fails
substantively.
The judge reiterated that the fact petitioner's

3977

Page 4
MXR Monthly Report
sentence was served during a leap year does not automatically
transform the sentence into one for a year and day and thus make him
eligible for good conduct time.

SETTLEMElftS:

Fel BBCKLEY - Buck v. USA - This is a tort action for loss of personal
property. The inmate alleged $400.00 worth of personal property was
lost or misplaced by staff at FCI Beckley when he was moved to the .
. Special Housing Unit, and then transferred to FMC Lexington after a
disturbance at Beckley.
The action is filed in Pennsylvania, as the
inmate is currently incarcerated at USP Allenwood. The inmate settled
the action for $100.00.
FCI Butner - Zachowski (FTCA Claim)- We have just sent a lengthy

settlement recommendation in this Butner FTCA suicide case.
Fuseyamore and I met with counsel for the Zachowski family,
lowered the
Ii
settlement
a
have three very

Michelle

b!:>

nego ate a
$500,000. The attorneys for claimant
experts and appear ready to litigate this case.

FCI MEMPHIS - Vargas v. Reno, et ale - The remaining issue regarding

Intention Infliction of Emotion Distress was set to go to trial.
However, after consultation with the involved Wardens, Regional
Directors and Regional Counsels, we were able to settle 'the case for
$5,000 and the restoration of some sick and annual leave related to
bringing the action.
UPDATE ON CASES,

TR~S

OR HEARINGS, ETC. NOTED IN PRIOR

RE~ORTS:

FCI eZCKLZY - The Beckley FTCA bus accident case was tried to a judge
during the week of July 24'1,. The trial lasted three days. At the

conclusion of the evidence, the judge indicated he would be rendering
his opinion within the next couple of weeks. We are still awaiting a
decision.
F.MC LEXINGTON - United States v. Robert Krilich - At a hearing held in
Chicago on October 31, 2000, Inmate Krilich's sentence was increased
to seven years. Judge Coar denied defendant's motion. However, Judge
Coar was critical of the medical care the defendant received before
arriving at FMC Lexington. Judge Coar left the possibility of
re-opening the case if he found evidence of substandard medical care
in the future. Dr. Ramierz has recommended Krilich go to a medical
center with psychiatric outpatient services.
F.MC LEXINGTON - United States v. John A. Burgess - At the time of

sentencing, inmate Burgess' sentencing court in the District of South
Carolina ordered a medical report be prepared to address how FMC
Lexington would care for inmate Burgess' diabetes condition. The
court also ordered Burgess' personal physician to come to Lexington to "
inspect" the institution for its adequacy to care for Burgess.
Obviously, this part of the order will not be complied with, and we
are working with the AU SA to have the order amended.
FMC LEXINGTON - United States v. Jerry Lee McIntosh - The court

3978

.~,

Page 5

MXR Monthly Report
ordered a specific set of tests be done on study case McIntosh within
two weeks, and threatened to call a BOP representative to the hearing
and show cause why a contempt of court order should not be issued.
The cou r t had previously issued a study order and attached an outside
doctor's recommended list of tests . The FMC Lexington Clin i cal
Director, within his discretion, ordered different tests, which
apparently agitated the court .
FMC Lexington staff have now complied
with the recommendation of the court and are forwarding a report to
the court.
FCI MANCHESTER - Gianette v. Snyder - Plaintiff wrote a let t e r to the
Cou r t which was construed as a Bivens action and a temporary
restraining order was issued on September 25, 2000 .
I n the letter,
the inmate claimed that his life was in jeopardy due to his hav i ng to
implement and maintain a hunger strike since September 2 , 2000 , in
order to insure his safety a nd security within the i n st i tution as a
result of matters involving the death of a former employee.
An
emergency hear i ng was held on October 4, 2000, at which time t h e Court
granted the respondent's motion to dissolve the temporary restra i ning
order .
CRIMINAL:
Special Confinement Unit:
A full scale execution pract i ce session
took place at Terre Haute on November 1st.
D~ring this session, t he
institution and Department of Justice Command Centers were l in ked.
As
the practice session ended on Wednesday, we received word that the
se n te n cing court had stayed inmate Hammer 's execut i on date unti l
January 3 1 , 200 1, so t hat he could prepare a §2255 colla t e r a l a t tack
on his sentence.
I f he does not file by January 31", the Co u r t will
i mpose a new execution date of February 21, 2001.

Apparently Mr. Lystad represents several news organizations including
Na t ional Public Radio, USA Today, and the Reporters Comm ittee f or
of the Press.
We wi ll
se to the i r l e t ter .

SITUATIONS OF INTEREST , CONTACT WITH FEDERAL BENCH, HAZARDOUS WASTE
SITES, ETC . :
FCI Petersburg - We previously reported a NOV from the Virginia
Department of Environment Quality on closure of a debris landfill .
In
a letter dated October 25 , 2000, the institution was informed that the
materials submitted by the institution on September 29,

2000,

addressed all of the remaining issues in regards to closure of the
landfill.
The letter also advis ed that DEQ would be informed that the
institution is now in complianc e with SMWR requirements.
The
recommendation will also be made that the fac ility would be "
de-referred" from enforce ment status.
The le tter indicates the
landfill site would be considered officially clo sed in accordance with
the SMWR effective September 29 , 2000 .
Facilities indicates this date

3979

Page 6

MXR Monthly Report
may be wrong as to closure since the monitoring period does not end
for a couple of more years.
Fcr PETERSBURG - On November 2, 2000, new . federal jupges, along with a
member of the Sentencing Commission, toured fCI Petersburg and
interviewed inmates as part of their training as newly appointed
federal judges.
FPC MILLINGTON - We have recently learned that the Navy wants to
excess 104 acres at Millington . Our region would like to obtain all
104 acres to prohibit someone else purchasing the property and using
it for a use inconsistent with ours.

Personne1 Issues

---

----- -

~""'---..-

Staff Leave and Travel
FMC LEXINGTONMXRO -

.- annual leave Nov. 20-24 .
- annual leave November 20 -24.

3980

Page 7
MXR Monthly Report

.3981

Page 8
MXR Monthly Report
Lit iadt i, f' ,... ,:=-,:=
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3982

UNITED STATES GOVERNMENT

memorandum

(

l'An::

December 11, 2000 ..

ATT" OF:

Bill Burlington, Regional Counsel
Mid-Atlantic Region

sr.lfI.'E('T:

November 2000 Monthly Report

PErL.,. Tr.

-:"":

,·::-Tl::

1 :.· ... '.1· ..... " ......,: .. :., ..... :.... ,: .• ,,,.;:.

",'!!"t •••.•

Christopher Erlewine, General Counsel

C'Lid·~

Linda Dubose, Executive Assistant

(

"(I'LL

ADMINIS!RATIVB REMBDms

JAN

FEB

MAR

APR

MAY

JON

JtJL

Received
Answered

161
149

131
155

153
161

179
130

149
121

144
246

175
138

1.
155

182

lUu

TORT CLAIMS

JAN

I'BB

lGR

APR

MAY

.roN

JOL

AUG

SSp,

OCT

NOV

194 198 179 182 1~7 229 217 214 236
# Pending
74
57
70
67
74
54
51
61
68
# Received
50
71
34
51
# Answered
45
68
68
44
42
# Pending
198 179 182 197 229 217 214 236 236
1
2
2
# Over six Month
0
0
4
1
2
1
*These claims are in the Central Office pending settlement approval.

236
37
40
200
4

200
56
52
185
2*

SBP

OCT

NOV

56
53
41
68
21

68
68
98
38
3

38
55
47
45
30

PRZVACY

JAN

FaB

MAR

APR

55
63
46
30
# Pending
71
64
60 101
# Received
74
35
93
81
# Answered
55
63
46
48
# Pending
7
7
# Over 20 Working Days
3
3
(JAIl three are awaiting files from archives.

MAY

JON

JUL

48
57
67
38

38
76
66
50
4

50
57
66
41
7

AUG

41
76
62
56
6

DBC
3

LITIGATION

JAN

FaB

lGIl

APR

MAY

JON

JOL

AUG

SBP

OCT

NOV

Cases Pending
New Cases Received
Habeas Corpus
Bivens

250
14
10

249
19
9

259
24
15

247
10
7

243
14
9

250
12

232
19
9
2

230

246
24
18
2

236
9
7

258
12
9
1

FTCA
C'."

.s Closed
Cases 'Pending

112
070
15
10
11
249 258 259

2
36 14
247 243

4007

112
022
7
16
38
250 246 232

511
12
15
17
236 230 219

DBC

Page 2
MXR Monthly Report
Lit Reports Completed

(
"

SIGNIFI CANT DEC I SIONS OR ADVERSE DECISIONS :

FCI ASHLAND - Michael Bush v. Dr . Lowery - This Bi vens ,
medical malpractice case was tried to a jury on November 27 " .
Inmate Bush claimed Dr. Lowery was deliberately indifferent to
his serious medical condition (Spina bifida).
The jury
deliberated only 25 minutes before entering a verdict for
former FCI Ashland Medical Officer, Clifton Lowery .
USP TERRE HAUTE - United States v. David Paul Hammer - Judge
Malcolm Muir, M. D. Pennsylvania, has ruled that inmate Hammer
has a year from the denial of his appeal, to file his 2255
motion . Thus , inmate Hammer has until approximately December
2001, before he even files his 2255 motion . Judge Muir also
ruled that when all appeals are completed , he will not set a
new execution date , but will leave that to the Bureau of
Prisons .
FCI MANCHESTER - Palasty v. Hawk - On November 1, 2000, Judge
Jennifer Coffman dismissed this Ensign Amendment case, brought
originally by 47 inmates at FCI Manchester.
Judge Coffma n
followed the " well- reasoned" opinion in Ama tel , finding the
statute to be constitutional, and the Bureau ' s interpretation
of the statute permissib l e.
This is the second rece nt opinion
in th i s region upholding our Incoming Publications Program
Statement, and its interpretation of the Ensign Amendment .
The other decision , Paul Lee v . Olsen involved FCI Beckley.
SETTLEMENTS :
FCC BUTNER - Zachowski v. United States - We have reached a
tentative settlement in this Butner FTCA suicide case.
Michelle Fuseyamore and myself met with counsel for the
Zachowski family , and exchanged several count -offers
reaching a tentative settlement at $375,000 .

UPDATE ON CASES , TRIALS OR HEARINGS , ETC . NOTED I N PRIOR
REPORTS :
FCI BECKLEY - Eichler v . United States - This Beckley FTCA bus
accident case was tried to a judge during the week of July
24
The trial lasted three day s . At the conclusion of the
evidence, the judge indicated he would render his opinion
within the next c o uple of weeks.
We are still awaiting a
decision.

4008

Page 3
MXR Monthly Report
FeI MANCHESTER - Jason Claude Gianetta v. George Snyder Plaintiff wrote a letter to the Court which was construed as a
motion to voluntarily dismiss or withdraw his complaint, and a
motion for appointment of counsel.
He further asked the Court
to order payment of his filing fees by the BOP.
The Court
granted the motion to voluntarily withdraw the complaint and
rendered the motion for appointment of ~ounsel moot. The
motion for payment of filing fees was denied.
CRIMINAL:

FeI PETERSBURG - United States v. Barry Earl Williams - Inmate
Barry Williams, 22371-083, escaped from the FPC on April 12,
2000, and stole a government truck which he used in his
escape. He was subsequently tried and convicted for escape
and theft of government property. On November 16, 2000, he
was sentenced to 34 months on each charge to run concurrent
with each other and consecutive to his current sentence.
USP TERRE HAUTE - Special Confinement Unit - The Garza
execution which was scheduled for December 12 t' ., has now been
postponed for six months by President Clinton.

We have some indication that inmate Timothy McVeigh has asked
to withdraw his appeals, and will learn on December 12,
whether the sentencing court will either set an execution
date, or give the Bureau permission to set such a date.
According to inmate McVeigh, he has told the judge he wants
to have an execution date set as soon as possible.
We continue to receive media criticism over the Warden's
recent decision to only allow telephonic news media
interviews with inmates in the Special Confinement Unit.
After responding to several letters, and pointing out that
three Supreme Court decisions have held that the media has no
constitutional right to interview a particular inmate, the
tone of the criticism has changed.
Previously, the letters
claimed we were violating the constitutional rights' of the
media to gather news.
The most recent article makes no
mention of o~r policy violating the constitution.
SITUATIONS OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOOS
WASTE SITES, ETC.:
F.MC LEXINGTON - Jose Bonilla Romero v Thoms -

4009

Judge Wilhoit

Page 4
MXR Monthly Report
orde red FMC Lexington staff t o provide lega l assistance and a
translator to Petitioner, who had his habeas petition
dismissed sua sponte for not complying with the fee order .
A
unit staff member wrote a memo indicating Petitione r had
tried to comply with the order, so Wilhoit entered this order
for assistance to be provided to Petitioner . A motion to
reconsider will be filed.
Personne1

(

Issues

Staff Leave and Travel
LEX -

FCC

annual leave Dec. I S" - 26" ' .
Attending training in Jekyll Island from Dec.

1 1- 13.

Regional Office Dec . 4'" - 6 th
, Dec. 11 - 13, Jekyll Island.

MAN -

unknown length of time , back injury .

CUM -

1 leave Dec. 20 - 26th.

MXR -

Jekyll I sland, Dec. 11 - 14
nnual . leave Dec . 26-29
nual leave Dec. 26-29
annual leave Dec . 27 - 29
annual leave Dec . 26

4010

(

Page 5

MXR Monthly Report

,•

I"-~

••

",'

co.

c.··

c. . . .
-40.11

Page 6
MY-R Monthly P.eport
Npw Litigation Cases by Institution and Type
Received During the Month of November 2000

ALO ASH BEC BUT+ CUM
0
1
0
BIV
0
0
0
0
0
0
FTCA
0
0
1
1
0
0
HC
0
0
0
0
0
OTH
1
1
0
1
0
TOT
+Represents both the Fcr and LSCI

ELI-:

LE:·:

0
0
0
0

0
0
0

HAN
0
0
0
!
1

MEM

MIL

0
0

MRG

PET

SEY

MXR

THA

TOT

0
0

0
0
0
0
0

0
0
0
0

0
0
0

1
6

HXR

{"I

1
0

0
4

New Litiqation Case~ b J' InstitutiC'n and Type
Received Calendar i'p.ar tC' DeHP

ALD
BIV
FTCA
HC
OTH
TOT

0
0
2
0
2

ASH
1
0
8
0
9

BEC

BUT
+

CUM

0
1

6
2

7
1

18
33

ELF.
3
1
3
0
7

LE:·:

MAN

...

1
33
1
37

6
1
Ct

+Represents both

th~

HEM

MIL

MRG

PET

SEY

1
1
5

(".

.:.

0
1
12
0
13

0
0
0
0
0

reI

THA

TOT

1
3
4

12
102

0
11

162

and LSC:

(

4012

UNITED STATES GOVERNMENT

memorandum

(
DATE.

1- ~OOl

Mid-Atlantlc Rcgl0nal Ofhce, Annapolu Junctlon, MD 2i:"Ol

To~~lYJRirlt~:gt~~n, Regional Counsel

ATTN OF.

Mid-Atlantic Region

SUBJECT.

December 2000 Monthly Report

roo
ATm.

Christopher Erlewine, General Counsel
Linda Dubose, Executive Assistant

ADMINISTRATIVE REMEDIES

JAN

FEB

MAR

APR

MAY

JON

JUL

AUG

SEP

OCT

NOV

DEC

Received
Answered

161
149

131
155

153
161

179
130

149
121

144
246

175
138

174
155

161
182

136
106

158
153

138
164

TORT CLAIMS

JAN

FEB

MAR

APR

MAY

JON

JUL

AUG

SEP

OCT

NOV

DEC

194 198
179 182
197 229 217
214
236
54
51
61
70
74
57
67
74
68
45
68
50
71
34
51
68
44
42
# Pending
198 179 182 197 229 217
214
236
236
# Over six Month
0
0
1
2
2
4
1
2
1
~se claims are in the Central Office pending settlement approval.

236
37
40
200

200
56
52
185

185
33
37
180

FOI/PRIVACY

SEP

OCT

NOV

DEC

56
53
41
68
21

68
68
98
38

38
55
47
45

45
40
38
33
30

SEP

OCT

NOV

DEC

# Pending
# Received
# Answered

MAR

APR

MAY

JON

JUL

# Pending
30
55
63
# Received
60 101
64
# Answered
35
93
81
# Pending
55
63
46
# Over 20 Working Days
7
3
7
Otwo are awaiting files from archives.

46
71
74
48

48
57
67
38

38
76
66
50

50
57
66
41
7

LITIGATION

JAN

FEB

MAR

APR

MAY

JON

JUL

AUG
41
76
62
56
6

AUG

250 249
258 259 247 243
250
246
232
236 230
Cases Pending
14
19
12
24
12
24
9
6
10
14
19
New Cases Received
10
9
9
15
7
9
18
7
4
6
9
Habeas Corpus
1
6
3
2
1
2
2
2
1
1
3
Bivens
1
1
2
1
1
o
1
2
o
0
3
FTCA
o
7
o
2
2
2
0
2
1
1
5
Other
07
16
15
10
11
36
14
38
12
15
17
Cases Closed
249 258
259
247 243
250 246
232
236
230 2 19
Cases Pending
17
12
16
12
16
9
7
14
10
4
Lit Reports Completed
10
000101212
2
1
Cases/Hearings or Trials
10000011220
Settlements/Awards
$500.0 0
0
0
0
0 $.075 $1.5 $987 $5.4
0
$ Settlements/Awards
($ in Thousands) i OELK, THA, & MIL cases transferred to NER/NCR closed out in MXR.
0

4625

219
9
5
4

o
o
540
174
3

1
1
$7.35

Page 2
MXR Monthly Report

(
SIGNIFICANT DECISIONS OR ADVERSE DECISIONS:
FeI BECKLEY - Edwards v. Olson - In 1997, inmate Edwards filed a Privacy
Act lawsuite alleging challenge alleging information in his PSI was
erroneous.
He also included a Bivens claim against numerous staff
alleging he was scored a medium to keep him at Beckley to maintain the
number of white inmates at the facility.
On January 11, 2000, the
Magistrate entered an R&R recommending that the defendants are not
entitled to qualified immunity, that the motion for summary judgment be
denied, that counsel be appointed; and that an evidentiary hearing be held
to determine whether any defendants used race as a factor in determining
the inmate's custody classification. Objection to the R&R were filed.

The AUSA has notified us that the District Judge has entered an order
dismissing the case on qualified immunity grounds and holding under Turner
analysis, race ma y be considered for security reasons.
We are asking that
this case be published.
Fcr CUMBERLAND - Menichino v Gunja - Thi s habeas sentence computation
petition was dismissed, with Judge Motz using the Antiterrorism and
Effective Death Penalty Act of 1996, section 2244(a), to bar a successive
2241 petition, citing Valona v. U . S . , 138 F.3d 693 (7" Cir. 1998).

SETTLEMENTS:

(

FCl BUTNER - Zachowski v. United States - We have reached a tentative
settlement in this Butner FTCA suicide case.
Michelle Fuseyamore and r
met wi th counsel for ·the Zachowski family, and exchanged several counteroffers, before reaching a tentative settlement at $375,000.
Signed
settlement forms have been sent to the Central Office.
r indicated to
plaintiff's attorney that the y should allow t
approval from the Department of Justice.

FCI MANCHESTER - Shehee v. Robertson - Inmate Shehee signed a settlemen.t
agreement dismissing the entire Bivens action against Fcr Manchester
commissary supervisory for $7,3 50, which repres ents Shehe~'s back wages.
Shehee claimed he was wrongfully fired in 1995 from his commissary job to
cover up his knowledge of staff scams going on in the commis
This
amount will be
id out of DOJ's judgment fund.

UPDATE ON CASES, TRIALS OR HEARINGS, ETC. NOTED IN PRIOR REPORTS:
FMC LEXINGTON Ashot Khachatoorian v. USA - On December 4, 2000, a trial
was conducted in this FTCA case before Magistrate James Todd.
The
Plaintiff alleged he stepped in a hole in a grate in a corner of a unit
courtyard, injuring his leg which had a metal pin in it.
Plaintiff claims
he suffered on-goi ng serious pai n because of the alleged incident.
Our
witnesses tes tif ied all areas of the unit, including the grate, are
inspected on a regu lar basis by unit staff , the unit officer and Safety.
Also, the area in question was out of bounds for inmates, because they
threw trash in the grate a nd trampled on the grass and blew smoke into the

4626

,
J

Page 3
MXR Monthly Report

(
unit. No medical testimony was entered in this case. Magistrate Todd
deferred on ruling on this case, and asked both sides to first submit
briefs on the issue of the standard of care owed to inmates in a prison.
FCl BECKLEY - Eichler v. U.S. - This Beckley FTCA bus accident case was
tried to a judg eduring the week of July 24th. .On December 12, 2000, the
Judge entered Findings of Fact, apportioning fault to 65% on the part of
the plaintiff and 35% on the part of the United States. A pretrial
conference is scheduled for January 8, 2001, at whi.ch time a date will be
selected for a hearing on the issue of damages. The medical damages at
the time of trial totaled approximately $125,000. The original claim was
for nearly $1.4 million. The AUSA is requesting a December 2001 trial
date on the issue of damages.
FCl MANCHESTER - Tilson v. Gibson - This is a hernia case out of
Manchester, where the Court denied our motion for summary judgment. In
the order, Judge Coffman found material issues of fact in dispute, stating
that in denying this inmate's request for surgical repair of the hernia,
we ignored complaints that the hernia causes chronic pain, which in turn
limited his mobility. Inmate Tilson was then seen by a contract surgeon
who determined he does in fact have a hernia, and surgery has been
scheduled later this month to repair it, pendi
-certification
roval in Medical Services, Central Offic .

(

CRIMINAL:
~nit - Inmate Timothy McVeigh has withdrawn all
further appeals of his death sentence. Judge Matche has given him until
January II, 2001, to change his mind. If he does not do so, the Judge has
given the Bureau of Prisons authority to set an execution date. Inmate
McVeigh has indicated that he does plan to file a Clemency petition.

special Confinement

Warden Lappin reports that there have been several media requests to
interview McVeigh, including one from A & E, which inmate McViegh has
indicated he would like to do. We also just received an interview request
from 60 Minutes. However, the 60 Minutes request claims the group is not
the same ones who were involved in the earlier, 60 Minutes interview done
by Ed Bradley. During that earlier Ed Bradley interview, the film crew
violated the rules which Warden Lappin had set for the interview. After
the show aired, Warden Lappin wrote 60 Minutes informing them that they
had violated our rules, and that the violation would be taken into
consideration if they requested another interview.

(

FC! MANCHESTER - US v. Bruce G. Peck - The defendant is being prosecuted
on grounds that he falsely filed tax returns for 1995. According to
information received, the defendant was incarcerated at FeI Manchester
when he filed the fraudulent returns. The institution was contacted by an
IRS agent and AUSA.regarding information pertaining to the inmate's access
to tax forms while incarcerated. The case is to be heard on Monday,
January 8, 2001.
SITUATIONS OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS WASTE SITES,

ETC.:

4~7

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MXR Monthly Report
FMC LEXINGTON - Eastern District of Kentucky Chief Judge Henry Wilhoit has
announced his intention to step down on 12 / 31 /200 0, taking "sen ior
status," where he will have a very limited case load.
Judge Karl Forester
will succeed Judge Wilhoit as Chief Judge in that District.
Judge William
Bertlesman of Covi ngton will go on senior status as of 1 / 31/2001 .
In the
inerim, Judge Jennifer Coffman wil l handle Judge Wilhoit's case load in
Lexington, and Judge Wilhoit will continue to handle his case load out of
Ashland.

Winton Correctional Facility - We have recently received the Use of Force
policy from the Wackenhut private correctional facility that will be
located in Winton, N.C.
The fa cility is scheduled to receive inmates on
March 1, 2001.
The pol icy cites as authority for the use of force by
Wackenhut staff, two North Carolina statutes. The statutes permit private
citizens to assist law enforcement officers to effect an arrest or prevent
an escape, and to detain, and in some cases, use force against those who
commit certa in crimes in their presence.
We will be working with Central
Office to review this policy.

(

Compassionate Release-Donna Hall (Lexington) - Right before the holidays,
FPC Lexington inmate Donna Hall filed a motion with her sentencing court,
asking for a compassionate release based on her recent diagnosis of
terminal cancer.
After discussions with the Court and U.S. Attorney's
office, Marian Callahan and Darrell Lauer were able to have Ms. Hall
released from custody within two weeks of the time she filed the petition.
We sincerely appreciate the assistance that we received from Central
office, mo st notable Chris Erlewine and Lorna Glassman.
Electronic Inmate Law Library - There will be a meeting on January 17,
2001, for those institut ions who would like to be involved in a pilot
program where inmates would be given access to an electronic law library.
This meeting will focus on available technology, costs, and the criteria
which should govern the pilot.
At this point, no final decision has been
made to allow such pilots to go forward .
FMC LEXINGTON - Jose Bonilla Romero v . Thoms - After the BOP filed a
motion to reconsider which showed that the inm~te did have access to
translators and legal aid , Judge Wilhoit did strike his previous order
Personnel Issues

Staff Leave and Travel
Performance Eva luati o n Workgroup,

Jan. 23-26

ICP FCI Beckley, January 2 2 - 26 , 2001

4628

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MXR Monthly Report

New Litigation Cases by Institution and Type
Received During the Month of December 2000

ALD

ASH

BEC

BUT *

CUM

ELK

LEX

MAN

MEM

MIL

MRG

PET

SEY

MXR

THA

TOT

BIV

FTCA

OTH

0
0
1
0
TOT
*Represents both the FCI and LSCI

New Litigation Cases by Institution and Type
Received Calendar Year to Date
ALD

ASH

BEC

BUT *

CUM

ELK

LEX

MAN

MEM

MIL

MRG

PET

SEY

MXR

THA

TOT

BIV

FTCA

107

OTH

171

10 .
33
9
2
TOT
*Represents both the FeI and LSCI

Disciplinary Self-Help Litigation Manual - Side