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Fbop Ncr Quarterly Report Narr 1997jan-mar

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LITIGATION NARRATIVES
JANUARY 1, 1997 • MARCH 51, 1997
SIGNIFICANT CASES

L. J. and Maylene carter,

LR-C-95-407 (ED/AR)

In this FTCA action, the plaintiffs sought reimbursement for
subsistence fees charged while they were housed in a halfway
house. Their theory was based on the fact that the Judgment and
Commitment Order, which did impose fines and restitution,
contained the form language that "The fine includes any costs of
incarceration and/or supervision." On January 21, 1997, the
court ruled that we acted within our authority in collecting the
subsistence fees, and that our actions were not in violation of
the J & C. The court also noted that plaintiffs did have a
choice in the matter - if they did not want to pay subsistence,
they could have been housed in a correctional institution, where
no subsistence or costs of incarceration would have been
assessed.

Daniel schmaus v. N, L, Conner, 6:96CV1023 (EDITX)
In this Habeas action, the inmate alleges his third revoked term
of Special Parole had expired and the U.S. Parole Commission had
determined his "sentence had expired". He alleges the Bureau of
Prisons refuses to release him.

Eddie wayne Roberson

v, Warden, 5:96CV216 (EDITX)

In this Habeas action, the inmate alleges the Warden refuses to
give jail time credit for time he spent in state custody under
.federal detainer.

Rolf W, Starke v, John M, Tombone. et aI., 396-CV3454-G (NDITX)
This is a Section 1983 case. Plaintiff alleges that the
defendants have conspired under the color of state law to violate
his First, Fifth. Sixth, Eighth, and Fourteenth amendment rights.
Specifically, plaintiff states that his health has suffered as a
result of inhaling secondary smoke from Cigarettes, cigars, and
pipe tobacco products. He only asks for judgment against the
defendants. He does not request any monetary damages.

Kenneth Lee Stewart V, Jobn lombone. Warden, 397-CV0129-R and
Talford H, Royal v, Jobn Tombone. Warden, 397-CV0182-H (NDITX)
Basically. this is a 3621 (e) appeal. There's a little bit of a
different twist in these cases versus the normal 3621 (e) cases.
Petitioners are not challenging the fact that the Bureau of
Prisons has classified their crime as a "crime of violence".
Rather, they contend that the Bureau of Prisons entered into a
"contractual" agreement with them which stated that if they

completed the 500 hour DAPS Program, they would receive a year
off their sentence. They state that they were granted the one
year off, but when the new program statement concerning crimes of
violence was issued, staff at FCI Seagoville found them
ineligible for early release. They contend that the Bureau's
denial of the year off creates a state created liberty interest.

Wilson Harrell V. Kathleen Hawks, 97-0048-A (WOlaK)
The Bivens case recently filed by inmate Harrell is based on the
Ensign Amendment. Harrell is alleging his counselors, the unit
manager, the ISM, Warden, Mr. Cooksey, and the Director of the
BOP, conspired to deprive him of his 1st, 4th, 5th, 9th, and 14th
amendment rights. Harrell is seeking $1,000,500.00 in damages,
an injunction, and attorney fees. A Martinez report is due in
March. Harrell has not exhausted his administrative remedies.

Donald Holmes v. S. W. Phelps, et al., 5:96CV225 (EDITX)
The plaintiff alleges harassment. discrimination, and verbal and
physical abuse by Fel Texarkana staff.

wells v_ carbow,

EP-97-CA-029-DB (WOITX)

An inmate at FCI La Tuna was removed from the ICC program at
Lewisburg for having a two point enhancement for firearms.
However, after his removal, the inmate had his sentence clarified
to state he did not use firearms. Moreover, a Post-Sentence
Investigation was prepared that did not give him a two point
enhancement for firearms. However. the inmate was never returned
to the ICC. The inmate agreed to dismiss the action in return
for accelerated CCC placement within policy and home confinement
when eligible.

CASES WITH HEARINC OR TRIAL

Hoot v. GibSon, A-96-CA-390 (WDITX)
On January 28, 1997, Judge Sparks held a hearing to consider the
petitioner's request for DAP credit for seyen weeks spent in
non-DAP bed as the result of mutual error of staff and
petitioner. The Central Office's position that the petitioner
had not met the statutory requirement of 180 days in a DAP bed
was articulated by Dr. J. Jones, DAP Administrator, SCRO. The
Court ruled that the equities of the case were in the
petitioner's favor, and entered judgment orally in favor of the
Petitioner.

Cerald ESRosito v. ceorge E. Killinger, et al., 4:96-CV-927-Y
NDfTX
A hearing was held on January 31, 1997. on a pending TRO on
ESPOSITO. Gerald. who claims we have denied him adequate
medical care. At the hearing, the Court denied the TRO due to
the requested medical procedure being scheduled. The Judge
suggested that Inmate Esposito drop the case to avoid it being
dismissed as frivolous.

Noel Edward plunkett v. Joe cunia, at al•. C-96-548 (SDfTX)
Bivens case. Reported in February. EVidentiary hearing held on
March 7.1990. No ruling as of this time.

Dennis O'Neal MCAnnich v. Frank Woods, et al.
Bivens case. Spears hearing held on March 25.1997.

United states v. Rasha Mansour. 4:97-CV-079-Y (NDfTX)
A commitment hearing for hospitalization was held at FMC Carswell
on March 12. 1997, pursuant to 18 USC 4245.
Ms. Mansour was committed to our inpatient unit.

sDaniol V. USA
A trial was held in Sherman, Texas on March 12-13. 1997. The
judge ordered both parties to submit their closing briefs within
10 days. Ruth Yeager. Deputy Civil Chiefs, feels very optimistic
of our chances of prevailing.

CASE WITH SETTLEMENT OR AWARD
Maria Ramos v. U.S.A., Civil Action No. EP-94-CA-342-MC (NDfTX)
Adverse judgment rendered by magistrate. Action brought by the
mother and daughter of a former inmate at FPC La Tuna. The
daughter has cerebral palsy and cannot walk, talk, or breathe
without assistance. In October 1993, when the family went to
visit inmate Juan Ramos. there was no handicapped ramp to access
the visiting area. The Warden allowed Mrs. Ramos, because she
was a frequent visitor. to use the loading ramp around the side
of the building. Because a government vehicle was blocking the
ramp. Mrs. Ramos wheeled her daughter along the roadway. The
roadway contained concrete splatter and was bumpy. Ramos' chair
hit one of the concrete bumps, and Ramos became dislodged from
her wheelchair. She sustained almost no physical injuries. The
Court awarded $30.00 in actual damages, and $5,970.00 in pain and
suffering (Total judgment $6,000.00). BOP and U.S. Attorney's
Office have agreed to not appeal this case.

SIGNIFICANT TORT CLAIMS
Inmate Marsha BUCHANON. Register Number 19548-001 - Former inmate
at FMC Carswell has submitted an administrative claim (T-SCR-9720). alleging that while she was being x-rayed on January 17.
1995. the x-ray machine malfunctioned and she sustained burns to
both of her eyes. She claims that the examination revealed she
had sustained flash burns and had photophobia/photo sensitivity.
She is seeking three hundred thousand dollars ($300.000.00) in
damages.
A review of the medical documents she attached to her claim
indicates that on January 17. 1995. a physician at FMC Carswell
noted in her medical chart that she had photophobia secondary to
flash in her eyes.
AGERTON. Dr. William D. (Civilian) - (T-SCR-96-472) Dr. Agerton
alleges that he was employed by EMCare to provide medical
services to health care providers. such as the Federal Medical
Center in Fort Worth. Texas. and on May 16. 1996. Dr. John Barry
(Clinical Director) refused to allow him to provide medical care
at FMC Fort Worth. Dr. Agerton alleges that he has sustained
loss of pay and restriction of hospital privileges.
The South Central Regional Health Services Administrator has
indicated that the contract was with EMCare and not with any
individual. It is not clear at this time why Dr. Agerton was
denied access to FMC Fort Worth; however. the claim is currently
being investigated by staff at Fort Worth.
Dr. Agerton is seeking $100.000.00 in damages.
BOSTIC. Billye E .• Register Number 62285-080 has filed an
administrative claim (T-SCR-97 -53) because the Bureau of
Prisons imposed a cost of incarceration fee. He alleges that
after he refused to pay $21.352.00 per year, he was placed on
refusal status until he paroled on June 3, 1996. He contends
that he lost early parole consideration, halfway house placement,
pay for six months. social security pay for three months, three
months of earnings. work privileges, dormitory privileges, and
purchase privileges.
Mr. Bostic has attached a Memorandum and Opinion (Billye E.
Bostic v. Joe Aguirre. Warden, EP-96-CA-139-DB) by United States
District Judge David Briones. in which Mr. Bostic's Habeas was
granted. Judge Briones stated that the "Bureau of Prisons shall
not collect cost of incarceration fees" because Mr. Bostic's
sentence did not meet all three prongs of
28 C.F.R. § 505.1. In addition, there is documentation attached
to Mr. Bostic's claim that indicates that the Bureau of Prisons
continued to hold him accountable for the cost after Judge
Briones issued the order on April 30. 1996.

ROBERTSON. Vernon Ray. Register Number 17017-057 has filed an
administrative tort claim alleging that on December 16. 1996. he
was violently assaulted by a State of Oklahoma inmate while they
were housed at FTC Oklahoma City. Mr. Robertson contends that he
was beaten and stabbed with a broom handle. He also states that
the inmate had a history of violence and that BOP staff failed to
provide adequate protection. He seeks $300.000.00 in damages.
(T-BOP-97-015)

MEDICAL
GADSON, Floyd, Register Number 09390-058 - Mr. Gadson contends on
June 13. 1996. he requested medication for his diabetes. He
states that he was refused treatment and was issued an inCident
report. He contends that as a result of the denied medical
care. he developed a diabetic ulcer on his foot, which burst open
and has caused him a Significant amount of pain.
Mr. Gadson requests $4,500,000.00 for emotional distress and
permanent physical injury. (T-SCR-97-44)
CARTER, Norma J., Register Number 21603-034 - Harry T. Winmann,
3850 N. Causeway Boulevard, Number 590, Metairie, Louisiana, has
filed a claim (T-SCR-97-28) on behalf of Norma J. Carter. Ms.
Carter alleges that medical staff at FPC Bryan denied timely
surgical 'care for a pilonidal abscess and that she ultimately had
to undergo a colostomy. Ms. Carter is a diabetic and contends
that she is susceptible to wound infection. She is seeking
$500,000.00 in damages.
COLLINS, Clyde, Register Number 16940-009 - (T-SCR-97-64) The
family of deceased inmate has filed a claim for the death of Mr.
Collins. AI Weisenberger, an attorney in EI Paso, has submitted
the claim, but there is no authorization from
Mrs. Collins or any of Mr. Collins' six children authorizing
Mr. Weisenberger to represent them in a wrongful death claim
against the government.
Mr. Collins died from a heart attack while playing softball at
FPC EI Paso on July 17,1996. The Collins family contends that
the Bureau of Prisons did not provide adequate treatment for Mr.
Collins abnormal EKG in March 1995, nor was the annual physical
conduct in March 1996. The family also states that staff failed
to perform CPR within a reasonable time, prohibited another
inmate "who was trained in CPR" to perform CPR. and did not
timely summons an ambulance, The claimants seek $15,000,000.00 in
damages ($5,000,000 for personal injury and $10,000,000.00 for
wrongful death).

MEDICAL/ADA CLAIM
PETERSEN, Justin, Register Number 98535-012 - Mr. Petersen
contends that during transfer between MOC Los Angeles and FCI
Bastrop his prosthetic socks were lost, that because staff did
not replace the socks he has suffered a breakdown of the skin on
his amputated stump, that FCI Bastrop is not adequately equipped
to house disabled inmates, that while he was housed there he
slipped and hit his head on his locker, and that the shower bar
broke and he fell causing a bruise to his hand.
Mr. Petersen complains that he was transferred to USFMCP
Springfield for treatment, but because he only had 5 months
remaining to be served, staff would not consider making any
significant repairs to his prosthetic device. He seeks $900 for
temporary repair of his prostheSis, $18,000 for replacement of
his prothesis and $15,000 for personal injury. (T-NCR-97-150).
Investigation pending.
REYNOSO-OLASCAGO, Jose, Register Number 64714-079 Mr. Reynoso-Olascago alleges that while he was walking on the
track at FCI Big Spring, he was hit in the face by a bat that had
slipped out of a softball player's hands. He was transported to
. a local community hospital for treatment, he later underwent
surgery to repair his fractured jaw. He claims that BOP staff
negligently allowed him to walk around the track while a game was
in progress. He seeks $10,000,000.00 in damages. (T-SCR-96-430).
No liability concerns.
FANTROY, Richard, Register Number 27764-077, alleges during June
1996 at FMC Fort Worth, he was given incorrect medication for his
medical condition. The claim is in the amount of $500,000. (TSCR-97-47). Investigation pending.
TELFAIR, Milton, Register Number 59903-080, has filed a claim
concerning his medical treatment at FCI Oakdale. He is confined
to a wheelchair and suffers from recurrent anal
fissures. He underwent a hemorrhoidectomy and .anal fissurectomy,
but feels additional treatment should have been provided. He is
currently incarcerated at FMC Fort Worth.
(T-SCR-97-25). Investigation pending.

SIGNIFICANT ADMINISTRATIVE REMEDIES
Fort Worth received and responded to Administrative Remedy
#128997-F1, in which Wali Muhammed, Reg. No. 19148-009, alleged
Nation of Islam were denied access to an additional meeting time
and their yearly ceremonial meal. There was no validity
to the allegations.

Administrative Remedy 130071-F1, Inmate Freeman, requests to
display a "dream catcher". He alleges this is an American Indian
religious belief. Information received indicates the BOP does
not recognize this as a religious item although some institutions
allow it. Texarkana denied the inmate's request.
Our office has not received a regional appeal regarding this
issue, the inmate has until April 17, 1997 to file an appeal.
Inmate Wayne Matra, at FCI Texarkana, filed a Request for
Administrative Remedy, Case Number 124992-F1, the inmate alleges
discrimination in religious practices. He alleges the
institution is not utilizing the proper "prayer oil". The
institution's response was that the oil was not a religious item
in itself; however, it was used to facilitate a religious
practice. We agreed to return to using the requested oil.
Inmate Baxendale filed Administrative Remedy 125535-F1, alleging
that the BOP misinterpreted the Ensign Amendment. He
.
speCifically requested to continue receipt of "Playboy".

MEDICAL MALPRACTICE:
LITIGATION

Caesar MOrales-Morales v, Norris Knight. et aI., 597CV0023
(NDfTX)
In this action, the plaintiff names a contract physiCian,
contract clinic, contract hospital. retired BOP physician and
current physician. The plaintiff asserts he fell on his arm,
surgery was performed, and that despite the surgery he still has
problems. He asserts improper and inadequate treatment due to
deliberate indifference. There is no show cause order in this
matter; thus, research for a litigation report has not yet
occurred.

James watson Ramsey v, USA. et aI., 3:96-CV-3358-G (NDfTX)
This FMC Fort Worth case involves 12 named defendants. The
inmate claims he was subjected to cruel and unusual punishment
through denial and delay of medical care 'of his burns. Based on
a preliminary assessment, there does not appear to be any
liability on the part of staff. Mr. Ramsey's complaint appears
to be frivolous pursuant to the PLRA.

Carter v. FMC Medical Review Board. et al.. 4:96-CV-690-A (NDfTX)
The inmate had a .previous case filed which raised identical
The inmate had a previous case filed which raised identical
issues regarding the lack of medical care she received at FMC

Carswell. The case was dismissed as frivolous pursuant to the
Prison Litigation Reform Act of 1995 on December 1. 1996.

TORTS (FTCA)
Inmate Norma CARTER. asserts government negligence regarding
timely provision of surgical care for a pilonidal abscess at
outside hospital by staff at FPC Bryan. resulting in extensive
parasacral infection. Preliminary investigation reveals no
evidence of delay or inappropriate treatment by FPC Bryan staff.
CANIPE. Terry. Register Number 60647-080 (T-BOP-96-159)-lnmate
alleges that during the morning hours of July 30. 1994. while he
was incarcerated at FCI Bastrop. he was attacked by other inmates
during an institution lockdown. He claims that he sustained a
broken finger and "other injuries." Mr. Canipe contends that he
did not seek immediate medical attention because he had been
warned by other inmates not to give any information about how he
sustained the injuries.
At approximately 6:00 p.m .. Mr. Canipe reported to institution
staff that he had slipped on some stairs and had fallen down.
Medical staff examined Mr. Canipe and requested x-rays of his
hand and face. On August 2. 1994. the x-ray revealed that he had
suffered a broken finger. and approximately ten days later, he
was examined by a contract orthopedic physician who noted a
partial ligament rupture on the splinted finger. The inmate
was instructed to initiate range of motion exercises. On August
11, 1994. an x-ray revealed a dislocation involving the joint of
the right ring finger. Surgery was later -performed by a contract
surgeon, and Mr. Canipe was referred to Springfield. Mr. Canipe
is seeking one million dollars in damages.

ENSICN AMENDMENT:
LlTICATION
FCI EI Reno. Harrell v. Hawkins. Inmate asserts that
return of publication pursuant to EnSign Amendment violates
his constitutional rights.

TORTS
Adam Winchester has submitted a tort claim seeking $128.80
because he is not receiving his monthly subscription of
Penthouse magazine.

 

 

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