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Fbop Ner Quarterly Reports 1996jan-dec

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UNITED STATES GOVERNMENT

DATE,

April 19, 1996

R!~~, David R.
TO:

r/"Iqemorandum

.i

Regiojc¥it-;;},unsI'!1':)~ast~~:;;n

Essig,
Federal Bureau of

SUBJECT:

I

pr~6~~-p~~adelPhia,

Pa. 19106

Quarterly Report - January I, 1996 through March 31, 1996
Wallace H. Cheney, General Counsel and Assistant Director
Federal Bureau of Prisons, Washington, D.C.
20534
Attached are the statistics requested for the quarterly report
for the second quarter of FY 1996.
The following is a synopsis of the significa t E~Il-tfON BRAl\'~·"
litigation during the quarter:
111\21\(
•
• ~l·>
SIGNIFICANT DECISIONS, HEARINGS OR TRIALS
1.

IPR22

sa

Miller v. Reno, 4:CV:93-1475 (M.D.Pa.")

Three day trial in EEO case concluded on February 29, 1996
with a jury verdict adverse to the BOP. The staff member was
reassigned to his prior correctional officer position after
serving as a case manager trainee for 13 months.
The staff
member alleged that his reassignment was based on race
discrimination.
In addition the staff member asserted that
the reassignment was retaliatory since it occurred two months
after he made a complaint about racial remarks made by his
supervisor. The jury found for the staff member on both
counts. We are negotiating with Plaintiff to propose a final
judgment to the court. Attorney Mike Tafelski assisted the
AUSA at the trial.
2.

U.S. v. Reyes,

(S.D.N.Y.)

Pretrial detainee, Jose Reyes, 43690-004, was a paraplegic
awaiting trial confined to a 4 man cell at MCC NY.
The
detainee moved the criminal trial judge (Judge Scheindlin) for
a private cell. The detainee pointed to the privacy needed to
perform bathroom functions. At a hearing on February 28,
1996, the judge asked the Warden what could be done.
The
Warden agreed to try to prepare a two man cell for handicap
access and would try to keep him there on single cell status.
No order was entered. Attorney Dominique Raia assisted at the
hearing.
3.

u.s.

v. S ..... ,

(E.D.N.Y.)

Sentenced inmate G.S., 10099-050, was writted in to MCC NY to
face additional criminal. charges.
Intelligence was received

2825

OPTIONAL FORM NO. 10
(REV. I-aO)
.
GS~FPMR(.,eFR) 101-11.'
SOlO-II.

-2-

that the five organized crime families in New York have a
contract on him. The Warden denied G.S. co-defendant meetings
because his co-defendants were allegedly member of the five
families.
The first hearing of October 26, 1995 resulted in a
court order mandating the meetings due to the finding that the
meetings were necessary to prepare a defense for G.S. A
second hearing was held on February 27, 1996 to address some
of the attorney's complaints about timing of meetings and
security.
Judge Raggi focused on the security aspects. The
MCC were using belly chains and leg irons on all defendants
(including those on bail). After some discussion, the Warden
agreed to remove the hand restraints but to leave the leg
irons. The judge agreed. Paralegal James Vogel assisted at
the hearing.
4.

U.S. v: Griffin,

(S.D.N.Y.)

Pretrial detainee Luis Griffin, 36288-.054, complained to his
criminal trial judge "(Judge Schwartz) that he was being kept
in Special Housing, first at Fcr Otisville and, now at MCC NY.
At a hearing on February 28, 1996, Dominique Raia explained to
the court the various reasons for the inmate's placement in AD
and DS from September 27, 1995 to the present (incident
reports, separation and security). The judge was satis£ied
and deferred to the discretion of the MCC NY.
5.
.

J
"

Maxwell v. Holland, Civil No. 95-1910 (M.D.Fa.)

On February 15, 1996, Judge McClure granted the petition for
writ of habeas corpus in the above case. A hearing on this
petition was conducted on February I, 1996. The court held
that the record supported the contention of inmate Kenneth
Maxwell, 31259-054, that he did not receive credit towards a
state sentence for a period of time in state custody. The
court ordered the Bureau to credit Maxwell with time in
custody from January 3, 1991 to June 22, 1991. This resulted
in Maxwell's immediate release from federal custody to a state
detainer.
Because of the fact specific holding, we recommend
against appeal. Attorney Lori Cunningham assisted the AUSA at
the hearing.
6.

Housely v. Morton, Civil No. 96-305 (E.D.N.Y;)

Staff member at MCC NY filed complaint challenging attempt to
evict him from staff housing administered by MDC Brooklyn.
The staff member asserted that we were ready to throw him to
the street. At the January 29, 1996 hearing, we advised the
court that we would only evict through eviction proceedings in
state court.
Judge Amon requested the parties to try to
resolve. Attempts to resolve have been unsuccessful.
A
motion to dismiss is pending before the court. Attorney
Azzmeiah Vazquez assisted the AUSA at the hearing.

2826

-3-

7.

United States v. Carey Jackson,

95-CR-34 (EDNY)

In a letter to his sentencing judge (Chief Judge Sifton) ,
inmate Carey Jackson, 20520-044, complained about his
designation to FCI Texarkana. He asserted that the decision
was based on an erroneous address from his prior commitment.
Inmate also asked to be housed at FCI Loretto with his
brother, Rodney Jackson, 25798-053. The judge held a hearing
on March 18, 1996. NER designator confirmed that the correct
address would have resulted in a designation to a low
institution in the NER. The two brothers were involved in at
least 3 prior criminal offenses together.
Through the AUSA,
we agreed to put the inmate in for a transfer to the NER, but
not to FCI Loretto. The judge appeared satisfied.
Inmate has
been transferred to LSCI Allenwood:
8.

.,/

United States v. McCarthy, 94 CR 466-01 (E.D.Pa.)

Inmate Leo McCarthy, 48275-066, filed a letter motion with his
sentencing judge (Judge Weiner) requesting authorization from
the court to be placed in the ICC. The inmate is serving a 44
month sentence for malicious damage of a building by use of an
explosive device (18 USC 844(i)). The AUSA advised the court
that the offense would preclude him from the ICC and that the
sentence length would at best put him on the waiting list.
Judge Weiner held a hearing on March 26, 1996. Hank.Sadowski
represented the BOP. The Judge was advised that he could
recommend ICC placement but that the inmate does not fit the
criteria for placement. Per request of the Judge, Hank set
forth the position of the Bureau in a letter sending a copy to
the defense attorney to respond.
9. United States v. Carrasquillo, Crim. 92-339-04, Civil 96184 (E.D.Pa.)
Inmate Efrain Carrasquillo, 45680-066, filed a motion to
vacate sentence under 28 U.S.C. § 2255 alleging ineffective
assistance of counsel. The inmate also alleges that he should
receive a downward departure for the sentencing guidelines
because he suffers from a variety of medical problems,
diabetes,· arthritis, and heart problems. He alleges that he
needs more medical care than he is receiving at LSCI
Allenwood. LSCI is providing the care the inmate presently
needs and there is no plan to refer him for medical
designation.
Judge Yohn held a hearing on the motion or.
April 9, 1996. Hank Sadowski assisted the AUSA at the
hearing. The Judge ruled that the inmate's present medical
care by the Bureau is not relevant to his decision o~ the
motion to vacate. The Judge stated that if there were a
problem with his medical care by the Bureau, he would check
into it for the inmate. After testimony, the Judge saw ~o
reason to question the care provided by the Bureau.

2~7

-4-

10.

M.F. v. Reish, 95 Civ. 4904 (S.D.N.Y.)

Witsec inmate at MCC NY filed a Bivens action challenging
conditions in the Witsec Unit at MCC NY.
On September 11,
1995, Judge Sheindlin held a hearing to address injunctive
requests relating to medical care and breach of security.
The Judge denied injunctive relief on these allegations. At
the hearing, the inmate raised a new issue that general
population inmates were contaminating the food being served to
Witsec inmates.
The judge permitted other Witsec inmates to
actively participate in the case. A motion to dismiss the
injunctive request and a motion for summary judgment on ,the
Bivens count have been filed.
On March 29, 1996, the judge
held a second hearing on the injunctive aspects of the case.
The inmates presented a list of proposals relating to the
Witsec unit.
The judge felt that since the Witsec inmates
were important to the government, the MCC should see whether
it could agree to any of the requested items.
On April 16,
1996, another hearing was held. The judge heard evidence on
the preliminary injunctive part of the case.
The judge
reserved ruling., Dominique Raia assisted the AUSA.
.
11.

\,

United States v. Goldberg,

CR-94-0039

(M.D.pa.)

The retrial, ordered by the Third Circuit in United States v.
Goldberg, 67 F.3d 1092 (3d Cir. 1995), resulted in a jury
verdict on March 14, 1996, again convicting Ronald J~
Goldberg, 35657-06,6, of forgery of an United States District
Judge order and making a materially false statement to a
federal agency.
Goldberg tried to present a forged court
order to staff at USP Lewisburg to effectuate unrestricted
access to the law library. Attorney Mike Tafelski testified
at the trial'. At main line, the inmate made an implied
admission to Mike that he was responsible for the phony order.
12.

United States v. Mark Hobbs, Crim. 95-2070R-01

(D.N.J.)

Inmate Mark Hobbs, 03645-015, has been charged with possession
of drugs at FeI Fairton. Drugs were found in his shoes after
a shakedown of his cell in SHU. Hobbs gave a statement to FAI
staff admitting the drugs were his.
The 'attorney for Hobbs
subpoenaed documents for the trial to commence on March 25,
1996. Part of the request was fine; part was objectionable
(request for visiting records of all other inmates in SHU at
the time). A hearing was held on March 22, 1996 to address a
mbtion to suppress Hobbs's statement to staff and on our
motion to quash part of the subpoena.
Attorney Bobbie Truman
and Fairton staff attended the hearing.
Magistrate Judge
Rosen denied the motion to suppress ,the statement given to
staff. The trial and the hearing on the motion to quash the
subpoena were continued to a later date.

2828

-5-

SETTLEMENTS AND AWARDS
1.

Sachs v. United States, Civil No. 93-0871 (D.Conn.)

Former Inmate Marvin Sachs, 10290-014, filed this FTCA action
alleging institution was liable for his slip and fallon ice
at FCI Danbury in January 1993, when he was 69 years old. Due
to factual dispute, case would go to trial. U.s. Magistrate
Judge Margolis scheduled a settlement conference before a
special master for March 25, 1996. Paralegal Patty Gotts
assisted the AUSA. The special master recommended that the
parties settle for $15,000. The parties have agreed to settle
per the special master's recommendation. The inmate had a
medical expert to attribute back and. neck injuries to the fall
and institution documentation addressing removal of snow and
ice on the date in question was missing.
2.

Sansbury v. United States, Civil No. 95-72 (D.N.J.)

Inmate Douglas Sansbury, 86125-'071, filec;l a FTCA action
alleging FCI Fairton staff lost his property in value of
$1095.85 during a transfer in November 1993.
Issues of fact
would have caused this case to go to trial at considerable
expense.
Case settled for $380.

Enclosures

2829

NORTHEAST REGIONAL OFFICE
LITIGATION QUARTERLY REPORT
FROM 01/01/1996 TO=03/31/1996

LOC

NUM

HC

FTC

B:tV

OTH

ANS

PEN

CLD

HIT

8

35

9

50

567

51

12

SET

AWD

2

°

MXR

NER

74

22

SER

.

NCR
SCR
WXR
CO
TOT
NARRATIVE ANALYSIS
DEFINITIONS:
.LOC - LOCATION
NOM - NUMBER OF TOTAL LAWSUITS FILED IN QUARTER
HC - NUMBER OF HABEAS CORPUS ACTIONS FILED
FTC - NUMBER OF FTCA ACTIONS FILED
BIV - NUMBER OF BIVENS ACTIONS FILED
OTH - OTHER ACTIONS FILED
ANS - NUMBER OF LITIGATION REPORTS COMPLETED
PEN - PENDING
CLD - NUMBER OF ACTIONS CLOSED
HIT - NUMBER OF HEARINGS OR TRIALS (INCLUDE INFO IN NARRATIVE)
SET - NUMBER OF SETTLEMENTS (INCLUDE INFO IN NARRATIVE)
AWD 1 - NUMBER OF AWARDS (INCLUDE INFO IN NARRATIVE)
GOVERNMENT ACTION AND DATE OF ACTION - (INCLUDE IN NARRATIVE)

2830

a

Tort Claims Second Quarter - FY96 (January 01, 1996 - March 31, 1996)
Nurn

PP

PI

PPPI

WD

Med

Set

Amnt

Pen

Den

00

A/O

A/P

MXR

2

2

0

0

0

0

0

0

0

0

0

0

13

NER

251

215

21

1

1

12

26

3409

365

120

0

4

135

SER

0

0

0

0

0

0

0

0

0

0

0

0

0

NCR

1

1

0

0

0

0

0

0

1

0

0

0

0

SCR

0

0

0

0

0

0

0

0

0

0

0

0

0

WXR

0

0

0

0

0

0

0

0

0

0

0

0

0

"

C.O.

B

0

0

0

0

0

0

0

0

0

0

0

0

0

254

218

21

1

1

12

26

3409

366

120

0

4

74

~

Press any key to continue

2831

NORTHEAST REGIONAL OFFICE
ADMINISTRATIVE REMEDIES QUARTERLY REPORT

l

I

FROM

LOC

01-01-96

NUM

DHO

SPH

MED

404

171

12

23

MH

03-31-96

TO

LEG

FD

GRT

DEN

PEN

8

4

14

330

59

00

MXR
NER

0

SER
NCR
SCR

WXR
TOT
NARRATIVE ANALYSIS

DEFINITIONS
LOC
NOM
DHO
SPH
MED
Me
LEG

-

GRT
DEN
PEN
00

-

FD -

,

LOCATION
NUMBER OF TOTAL AD REMEDIES FILED
NUMBER OF DHO REMEDIES FILED
NUMBER OF SPECIAL HOUSING UNIT REMEDIES FILED
NUMBER OF MEDICAL REMEDIES FILEP
NUMBER OF MENTAL HEALTH REMEDIES FILEP
NUMBER OF LEGAL REMEDIES FILED
NUMBER OF FOOD REMEDIES FILED
TOTAL OF NUMBER OF REMEDIES GRANTED
TOTAL NUMBER OF REMEPIES DENIEP
TOTAL NUMBER OF REMEDIES PENDING
TOTAL NUMBER OF REMEDIES OVERDUE

\

)
2832

0

co .

July 26, 1996
David R. Essig, Regional Counsel, Northeast Region
Federal Bureau of Prisons, Philadelphia, Pat 19106
Quarterly Report - April 1, 1996 through June 30, 1996

Wallace H. Cheney, General Counsel and Assistant Director
Federal Bureau of Prisons, Washington, D.C.
20534
Attached are the statistics requested for the quarterly report
for the third quarter of FY 1996.
.
The following is a synopsis of the significant cases in
litigation during the quarter:
SIGNiFICANT DECISIONS. HEARINGS OR TRIALS

1.

'"

..

Bradley v. Meko, No. 96-3091 (3d Cir. May 31, 1996)

The Third Circuit summarily affirmed the denial of a habeas
petition filed by inmate Robert E. Bradley, 02806-036,
challenging the denial of his eligibility for a reduction
und~r 18 U.S.C. § 3621(e).
The inmate had been convicted of
the use of a firearm as part of a drug offense (18 U.S.C. §
924 (c) ) .
2.

Urrego y. United States, 94 Civ. 0186 (S.D.N.Y.)

Inmate Charles Urrego, 81032-054, brought this FTCA action for
a fall getting into his upper bunk when he was a pretrial
detainee at MCC NY in October 1992. The inmate alleged MCC
provided no way for him to get in the upper bunk, thereby,
forcing him.to use a step stool (actually a swivel chair),
which rolled backwards causing his fall.
The inmate alleged
torn ligaments and a possible fracture to his ankle. Our
medical records.show a second degree sprairi. Trial held
before Judge Sweet on May 8, 1996.
At close of evidence,
Judge Sweet ruled from the bench in favor of the United
States. Judge found that MCC was under no duty to provide a
ladder or alternate means for inmate to get into upper bunk.
Dominique Raia assisted the AUSA.
3.

M.F. y. Reish,

95 Civ. 4904 (S.D.N.Y.)

Witsec inmate at MCC NY filed a Bivens action challenging
conditions in the Witsec Unit at MCC NY. On September 11,

2833

-2-

1995, Judge Sheindlin held a hearing to address injunctive
requests relating to medical care and' breach of security.
The Judge denied injunctive relief on these allegations. At
the hearing, the inmate raised a new issue that general
population inmates were contaminating the food being served to
Witsec inmates. The judge permitted other Witsec inmates to
actively participate in the case. Motions to dismiss the
injunctive request and for summary judgment on the Bivens case
were filed.
The judge held another hearing on April 16, 1996.
Dominique Raia assist'ed the AUSA. On April 30, 1996, the
Judge dismissed the injunctive claims for failure to exhaust
and dismissed the money claims against the defendants in their
official capacity. On June 18, 1996, the Judge granted our
motion to dismiss the Bivens claim, but the court permitted
the plaintiffs to refile their Eighth Amendment allegations
within 90 days.
4.-

Felipe v. Reish, 96 CIV. 3325 (S.D.N.Y.)

Inmate Luis Felipe, 14067-054 filed a petition for writ of
habeas corpus challenging the conditions of his confinement in
Unit 9 South (administrative detention) at MCC NY. The inmate
is reputed to be the head of the Latin Kings.
Inmate was
placed in 9 South detention because he is an escape risk, and
his presence in general population would be disruptiye due.to
his leadership position in the Latin Kings. MCC also had
information that his life is in danger. Two co-defendants
filed similiar petitions which were consolidated by the court.
Our written response to the petition was fOiled on May 21,
1996. Judge McKenna held a hearing on May 24, 1996.
Dominique Raia assisted the AUSA at the hearing.
In an
opinion dated July 17, 1996, the court dismissed the
petitions.
5.

United States v. Shah, 93 Cr. 180 (S.D.N.Y.)

Pretrial detainee Wali Khah Shah, 42799-054, is the inmate
charged with attempted escape from the roof of MCC NY.
The
inmate is also charged with conspiracy to bomb aircraft and
conspiracy to murder. The inmate challenged the Miranda'
warnings given to him on his arrest in a foreign country. The
inmate alleged he did not understand English. The AUSA
requested a Physician's Assistant from MCC NY to testify
concerning his conversations with the inmate.
Paralegal
Specialist James Vogel accompanied the PA at the hearing. At
the May 28, 1996 hearing on the inmate's motion to suppress,
the PA testified that he was able to communicate with the
inmate. in English. Judge Duffy denied the motion to suppress
and the trial commenced.
o

2834

-3-

6. United States y. Carrasquillo, Crim. 92-339-04, Civil 96184 (E.D.Pa.)
Inmate Efrain Carrasquillo, 45680-066, filed a motion to
vacate sentence under 28 U.S.C. § 2255 alleging ineffective
assistance of counsel. The inmate also alleged that he should
receive a downward departure for the sentencing guidelines
because he suffers from a variety of medical problems,
diabetes, arthritis, and heart problems. He alleged that he
needs more' medical care than he is receiving at LSCI
Allenwood.
(LSCI is providing the care the inmate presently
needs and there is no plan to refer him for medical
designation.)
On April 9, 1996, Judge Yohn held a hearing on
the motion. Hank Sadowski attended the hearing. The Judge
ruled that the inmate's present medical care by the Bureau is
not relevant to his decision on the motion to vacate. The
Judge stated. that if there were a problem with his medical
care by the Bureau, he would check into it for the inmate.
After testimony, the Judge saw no reason to question the care
provided by the Bureau.
7.

United States v. Baird, Crim. No. 94-215 (E.D.Pa.) .

Pretrial detainee Frank Baird, 47777-066, filed a motion to be
released from pretrial detention on the basis of a series of
medical problems.
In January 1995, Baird had been assaulted
by another inmate while in a holding cell in route to trial.
He suffered fractures to facial bones on his left side. He
had corrective surgery when he was housed in local jail by the
U.S. Marshals. Baird alleged that he needed reparation
surgery (by an outside specialist) because of continuing
problems with his jaw. Baird also alleged he suffered from
colitis and food allergies. He alleged he cannot obtain
proper food in a prison. Most of his allegations related to
Lehigh County Jail. On Apr~l 25, 1996, Judge Joiner held a
hearing on the motion. The U.S. Marshal had moved Baird to
Fe! Fairton on April 19, 1996 for this hearing and for the
May 20, 1996 trial. Since Baird was now to be hqused at FeI
Fairton, Hank Sadowski testified for the Bureau of Prisons
that:
(1) Baird had not brought his medical complaints to the
medical staff at FeI Fairton, and (2) if his complaints are
confirmed, the Bureau can treat Baird. The Judge found that
Baird was not entitled to release (he had been in pretrial
status for almost two years). The court directed FCI Fairton
to examine Baird and formulate an appropriate diet and to
determine whether Baird needs additional surgery to correct
his jaw problem.

2835

-4-

8.

Bernardo v. U.S. Bureau of Prisons, Civ. No. 95-1860

(E.D.Pa.)

(
\

Inmate Michael Bernardo, 15044-054, brought this FTCA action
alleging FCI Schuylkill was negligent when his property worth
$405 had been stolen in August I, 1994. He alleged that there
was a series of thefts and that FCI staff did not take proper
action to prevent the thefts.
In addition he alleges that he
advised staff when he discovered the thefts and staff did not
undertake a sufficient investigation to try to recover his
property.
The inmate had requested a broad range of
information concerning thefts in all federal institutions and
the choice of the type of combination lock sold in commissary.
We objected to the scope of the request. On May 22, 1996,
Judge Shapiro held a hearing to address the discovery dispute.
The inmate participated via telephone. Hank Sadowski assisted
the AUSA at the hearing. The court ordered a more limited
discovery encompassing the inmate's unit at FCI Schuylkill for
the calendar year 1994. The court suggested that the parties
try to resolve the case by way of settlement. After
discussion with the inmate, case settled for $200.
9.

Housely v. Morton, Civil No. 96-305 (B.D.N.Y.)

Staff member at MCC NY filed complaint challenging attempt to
evict him from staff housing administered by MDC Brooklyn.
The staff member asserted that we were ready to throw him to
the street. At the January 29, 1996 hearing, we advised the
court that we would only evict through eviction proceedings in
the appropriate court. Attorney Azzmeiah Vazquez assisted the
AUSA at the hearing.
Judge Amon requested the parties to try
to resolve.
Attempts to resolve have been unsuccessful.
A
motion to dismiss is pending before the court. A second
hearing was held on the motion to dismiss on July 19, 1996.
Attorney Alma Lopez attended the hearing.
Judge Amon granted
the mo~ion to dismiss from the bench without prejudice to
refile. The court encouraged the parties to resolve the
dispute.
10.

United States v. Mark Hobbs, Crim. 95-2070R-Ol

(D.N.J.)

Inmate Mark Hobbs, 03645-015, is being prosecuted for
possession of drugs at FCI Fairton. Drugs were found in his
shoes after a shakedown of his cell in SHU.
Hobbs gave a
statement to FAI staff admitting the drugs were his.
The
attorney for Hobbs has subpoenaed documents for the ~rial.
We
objected to some of the request. On "May 30, 1996, Maglstrate
Judge Rosen held a hearing addressing our motion to quash the
subpoena.
FAI attorney Bobbie Truman assisted the A~SA.
The
court granted most of our motion to quash the subpoena.
The
court permitted limited discovery of the page from the SHU log

2836

-5-

book for the day the drugs were found.
The defense attorney
argued it was needed for identification of possible witnesses.
This is the second hearing related to this prosecution. The
earlier hearing resulted in the denial of the defense
attorney's motion to suppress statements made by the inmate to
FAI staff and denial of a motion to disclose confidential
informant.
11.

Kagan y. United States. et al., No. 95-5722 (3d Cir.)

Family of deceased inmate, Philip Kagan, 14361-050, filed a
Bivens action against Bureau staff at FCI Schuylkill. The
inmate had suffered cardiac arrest and died on September 3,
1993. Although the attorney named the United States as
defendant, the attorney did not assert jurisdiction under the
Federal Tort Claims Act. The district court dismissed the
complaint on August 18, 1995 for failure to state a Bivens
cause of action. Attorney filed appeal. Third Circuit held
oral argument on' June 11, 1996. The court of appeals·focused
on the decision of the court not to order an amendment of the
complaint to include the FTCA count. No decision has been
rendered at this time.
'
12.

(

United States v. Margaret Feoli,

CR:95-410-1 (E.D.Pa.)

On June 13, 1996, 'Judge Waldman held a sentencing hearing for
,defendant Margaret Feoli, a 60 year old woman who embezzled
over $600,000 from a bank. Feoli took the money over a period
of time and lost it all gambling at Atlantic City. Feoli
suffers from a multitude of medical problems, including,
diabetes, hardening of the arteries, hypertension, and
undetermined seizure disorder.
In addition she had suffered a
stroke in 1994. The sentencing guidelines called for a term
of between 18-24 months. Defendant asked for a departure
downward arguing that her medical problems constituted an
"extraordinary physical impairment" under Sentencing Guideline
§ 5H1.4.
The Defendant's doctor testified that imprisonment
could cause her death. The doctor also questioned the ability
of. the Bureau of Prisons to provide medical care for the
defendant. Hank Sadowski testified that the Medical
Designator reviewed the medical summaries and she would be
designated to FMC Carswell if sentenced to BOP. He also
testified that the BOP would be able to provide for her care,
either by BOP doctors or via outside consultants. The Judge
found the medical testimony supported the conclusion that the
defendant had an extraordinary physical impairment.
The Judge
said he felt the Bureau co~ld treat her, but he felt
incarceration would bring additional serious medical problems.
The defendant was sentenced to 60 days with a 3 year
supervised release term.

2837

-6-

13.

United States

v. Elias CruZ,' 96-Cr-392 (E.D.N.Y.)

On May 17, 1996, Judge Weinstein issued an order to MDC
Brooklyn that pretrial detainee Elias Cruz, 51289-053, be
provided a wheelchair and any other necessary treatment for
his back injury. The Acting Clinical Director concluded that
a wheelchair would be counterproductive to resolving the
inmate's back problems. MOC sent a letter to the AUSA
requesting that the Court be moved to vacate its order. On
June 4, 1996, the judge issued a second order requiring that
the detainee "be provided immediately with a wheelchair. II
MDC, through the AUSA', requested an emergency hearing before
the court. On June 7, 1996, the court stayed the order
pending a full hearing. On June 11, 1996, the court heard
testimony from MOC Brooklyn Acting Clinical Director. The
court vacated the order requiring a wheelchair for the
detainee. MDC Attorney Azzmeiah VazqUez represented the MDC
at the hearing.
14.

United States

v. Darien Pughe, 94-CR-502 (E.D.N.Y.)

On June 12, 1996, ,Judge Weinstein entered an order directing
t'he Bureau 'of Prisons and the United States Marshal to make
the necessary arrangements for inmate Darien Pughe, 44206-053,
to attend a viewing for his dead grandmother later that day.
The inmate was serving a 162 month sentence for carjacking.
MDC Attorney Azzmeiah Vazquez contacted the AUSA to oppose the
order since the inmate did not fall within the Bureau's policy
on escorted trips. An emergency hearing was held at 1:00 pm
on June 12, 1996.
The court vacated its order.
15.

Colon v. Menifee, 4:CV-96-0807 (M.D.Pa. June 28, 1996)

In this habeas case filed by Jimmy Colon, 19968-038, Judge
Muir holds that the Bureau is not entitled to conclude that
the possession of a firearm by a felon is a crime of violence
for purposes of 18 U.S.C. § 3621(e) eligibility. The judge
relies on the recent decisions from the District Court in
Oregon. We moved for reconsideration on July 17, 1996 with an
eye towards appeal.
SETTLEMENTS

AND

1.

v. United States, Civil No. 95-1710 (D.Conn.)

Auguste

AWARDS

In this FTCA case, Inmate Louissage Auguste, 10587-050,
alleged that he was injured on negligently maintained exercise
equipment at FC! Danbury in January 1993. Our investigation
revealed that a pin which held the weight plates had· been

2838

welded at some time prior to the accident. The failure of the
weld appeared to have caused the plates to fallon the
inmate's hand, crushing one finger.
Case settled for $5000.
2. Bernardo v. U.S. Bureau of Prisons, Civ. No. 95-1860
(E.D.Pa.)
Property loss FTCA case from FeI Schuylkill settled for $200
after encouragement from the court to settle. See complete
discussion in hearings section above.
3. Lee v. United States, Civil No. 94-0391 (M.D.Pa.)
This FTCA case for medical malpractice was filed by former
inmate Robert E. Lee, Register No. 04098-088, alleging
improper treatment for an eye injury while at the ICC
Lewisburg. There was exposure to the United States on the
basis of a del'ay in care. Lee suffered visual impairment in
one eye and requires a corneal transplant.
Case settled for
$40,000.
Enclosures

2839

(

LOC

NOM

PP

PI

PPP
I

WD

MED

SE
T

AMT

PEN

DEN

00

AIO

Alp

MXR

1

0

1

0

0

0

0

0

0

0

0

0

26

NER

237

199

32

5

0

1

20

5255

281

151

0

0

121

SER

1

1

0

0

0

0

0

0

0

0

0

0

19

NCR

·0

0

0

0

0

0

0

0

0

0

0

0

0

SCR

0

0

0

0

0

0

0

0

0

0

0

0

0

WXR

0

0

0

0

0

0

0

0

0

0

0

0

0

C.O

0

0

0

0

0

0

0

0

0

0

0

0

0

SUM

239

200

33

5

20

5255

281

151

0

1

TORT CLAIMS THIRD QUARTER - FY96

2840

0

APRIL 01, 1996 - JUNE 30, 1996)

***
*

55

NORIBBAST BBGIONAL orrICB
APMIm:STBATIVB RBMIDIBS OUARTERLY REPORT

FROM

LOC

TO

03-01-96

NUM

DHO

SPH

MED

429

172

32

26

06-30-96

MH

LEG

FD

GRT

DEN

PEN

00

1

13

6

14

404

6

0

MXR

NER
SER
NCR
SCR

WXR
TOT
NARRATIVE ANALYSIS

DEFINITIONS
LOC

NUM DHO SPH MED -

(

Me

-

LEG
FD
GRT
DEN
PEN
00

-

LOCATION
NUMBER OF TOTAL AD REMEDIES FILED
NUMBER OF DHO REMEDIES FILED
NUMBER OF SPECIAL HOUSING UNIT REMEDIES FILED
NUMBER OF MEDICAL REMEDIES FILED
NUMBER OF MENTAL HEALTH REMEDIES FILED
NUMBER OF LEGAL REMEDIES FILED
NUMBER OF FOOD REMEDIES FILED
TOTAL OF NUMBER OF REMEDIES GRANTED
TOTAL NUMBER OF REMEDIES DENIED
TOTAL NUMBER OF REMEDIES PENDING
TOTAL NUMBER OF REMEDIES OVERDUE

2841

NOBTRBAST REGIONAL OFFICE
LITIGATION OUARTERLX BBPORT
PROM 04/01/1"6 TO 06/30/1"6

LOC

NOM

BC

PTC

BIV

OTB

AHS

PEN

CLD

BIT

SBT

AWD

14

30

7

58

569

66

13

3

0

MXR

RBR

68

17

SBR
NCR
SCR
WXR

CO
TOT

NARRATIVB ANALYSIS
DEFINITIQNS;
LOC - LOCATION
NOM - HOMBBR OP TOTAL LAWSUITS PILBD IN QUARTER
BC - NUMBBR OP HABBAS CORPUS ACTIONS FILBD
PTC - NUMBBR OP PTCA ACTIONS FILBD
BIV - NUMBBR OP BIVENS ACTIONS PILED
OTB - OTBBR ACTIONS PILBD
ANS' - NtJMBER OP LITIGATION REPORTS COMPLBTBD
PEN -' PENDING
CLD - NUMBER OP ACTIONS CLOSBD
BIT - NtJMBBR OP BBARINGS OR TRIALS (INCLUDB INFO IN NARRATIVB)
SBT . - NUMBBR OF SBTTLBMBNTS (INCLUDE INFO IN NARRATIVB)
AWD - NUMBER OF AWARDS (INCLUDB INJ'O IN NARRATIVB)
GOVBRNMENT ACTION AND DATB OJ' ACTION - (INCLUDB IN NARRATIVB)

2842

...

'

UNITED STATES GOVERNMENT

memorandum
Date: October 21,

1996

Reply to David R. Essig, Regional Counsel, Northeast Region
Attn of: Federal Bureau of Prisons, Philadelphia, Pa. 19106
Subject: Quarterly Report - July 1,
To:

1996 through September 30, 1996

Wallace H. Cheney, General Counsel and
Assistant Director, Federal Bureau of Prisons
Washington, D.C.
20534

Attached are the statistics requested for the quarterly report
for the fourth quarter of FY 1996.
The following is a synopsis of the significant cases in
litigation during the quarter:
SiGNiFiCANT DECiSiONS, HEARiNGS OR TRiALS

1.

Colon y. Menifee, 4:CV-96-0807 (M.D.Pa. June 28, 1996)

. In this habeas case filed by Jimmy Colon, 19968-038, Judge Muir
held that the Bureau is not entitled to conclude that the
possession of a firearm by a felon is a crime of violence for
purposes of 18 U.S.C. § 3621(e) eligibility. The judge relied on
the recent decisions from the District Court in Oregon. Our
motion for reconsideration was denied. A protective notice of
appeal has been filed with the Third Circuit.
2.

In re Paolo LaDuca,

(E.D.N.Y.)

Inmate Paolo LoDuca, 49238-079, is a detainee awaiting at MDe
Brooklyn awaiting extradition to Italy. On July 2, ·1996, Judge
Trager held a hearing of inmate's request to have MDC Brooklyn
provide him a permanent dental bridge. MDC Attorney Azzmeiah
Vazquez represented the MDC. After hearing testimony on the
inmate's dental condition from both sides, the court asked to the
parties to work it out. The MDC submitted a plan to the court
improve the inmate's dental condition through November 1996
before reevaluating him for a bridge.

2843

-2-

3. Moscato v. Federal Bureau of Prisons, Appeal No. 95-7065 (3d
Cir. )
Oral argument in this appeal was heard on Friday, July 26, 1996.
The inmate, Phillip Moscato, 08126-0S0, brought a habeas corpus
action challenging a DHO decision from 1993. The primary issues
below were the sufficiency of the evidence to support the DHO
finding and the denial of a requested witness due to
unavailability (the witness was at FPC Allenwood and the inmate
had his DHO hearing at LSCI Allenwood).
In addition the
administrative appeals by the inmate were rejected as untimely.
The Court of Appeals implied that it wanted to use this case as a
vehicle to find that the procedural default doctrine applicable
in habeas corpus actions. The inmate was released on parole in
January 1996. We also raised mootness as an alternate ground to
dismiss the appeal. An attorney was appointed to represent the
inmate. Hank Sadowski presented oral argument.
Per the Court's
request at oral argument, additional letter briefs were filed
addressing the mootness question.
4.

Housely y. Morton, Civil No. 96-305 (E.D.N.Y.)

A second hearing was held in this case on July 19, 1996.
Staff member at MCC NY filed a complaint challenging the attempt
to evi~t him from staff housing administered by MDC Brooklyn.
The staff member asserted that we were ready to throw him to the
street. At the January 29, 1996 hearing, we advised the court
that we would only evict through eviction proceedings in the
appropriate court. Attorney Azzmeiah Vazquez assisted the AUSA
at the hearing. Judge Amon requested the parties to try to
resolve. Attempts to resolve were unsuccessful. A motion to
dismiss was filed.
Attorney Alma Lopez attended the second
hearing. Judge Amon granted the motion to dismiss "from the bench
without prejudice to refile. The court encouraged the parties to
resolve the dispute.
S. Jacob Ben-Ari v. Cobb. INS. Peter Weld. CCM. BOP, Civil
Action No. 96-11461 (D.Mass.)
Inmate Jacob Ben-Ari, 20638-038, was designated to the Coolidge
House, Boston, MA for service of a 5 month sentence.
The sentencing judge requested placement in a CCC to enable the
inmate to keep his business open and pay back restitution to the
government. After placement in the CCC, INS lodged a detainer on
the basis of the Anti- Terrorist Act. The inmate was transferred
to FCI Oakdale on July 17, 1996. Later that same day his
attorney filed the above action requesting the court to order the
inmate's return to the CCC. Judge Harrington held a hearing on
July 24,· 1996. The judge advised the AUSA that it made little

2844

-3-

sense to deport this in~ate or to remove him from the CCC. The
judge tacitly recognized his jurisdictional problems and
requested the INS attorney and the AUSA to try to work this out.
On September 17, 1996, the inmate completed his federal sentence
and is now at FCI Oakdale solely as an INS detainee.
6. Ames Y, Deutch, Civil No. 96-1265 (M.D.Pa.)
Inmate (and convicted spy) Aldrich Ames, 40087-083, filed what
purports to be a class action for injunctive relief and a Bivens
action against members of the CIA, U.S. Attorney's office, ,the
Bureau of Prisons Central Office, and USP Allenwood. Ames is
challenging restrictions placed upon him for national security
reasons. He is also challenging the implementation of 28 C.F.R.
§ 501.2, the new regulation on national security cases.
Assigned
to Hope Mora. As a national security case, the ,United States
Attorney's Office referred the case to Main Justice for handling.
The Federal Programs Branch in Main Justice will be working with
us on the case.
7. United States v, Melendez, 94 CR. 395 (S.D.N.Y.)
Inmate Jose Melendez, 14069-074, filed a motion before his
criminal trial judge challenging his placement in administrative
detention at MCC NY. Judge McKenna held a hearing on the motion
on August 15, 1996. 'Dominique Raia represented the MCC. After
argument, the court ruled from the bench that a motion in the
criminal trial is not the appropriate manner in which to
challenge placement in administrative detention.
8. Holtzman Y, Franco, Civil Action No. 96-743(W.D.Pa.)
Inmate Kenneth Holtzman, 05239-068, through his attorney, filed a
petition for writ of habeas corpus challenging a discipline
finding that the inmate had used drugs at a CCC. The attorney is
challenging the failure to preserve the urine sample for
independent testing. United States Magistrate Sensenich held a
hearing on the petition for September 24, 1996. The court only
heard legal arguments and no testimony. The Magistrate Judge
issued a recommendation from the bench that the petition be
denied.
FCI Loretto Paralegal Dan Ritchie assisted the AUSA at
the hearing.
9.

Hunter y. Malinoy, Civil Action No. 96-1195 (E.D.Pa.)

Inmate Milton Hunter, 18759-016, brought a Bivens action against
medical staff at FCI Schuylkill alleging that he had prostate
cancer and staff has not properly treated him.
Inmate had since
been transferred to FCI Cumberland. On September 5, 1996, Judge
Shapiro construed the complaint as also requesting injunctive

2845

-4-

relief in the nature of proper medical care. The court ordered a
hearing for October 2, 1996. The court also ordered that the
inmate be examined by a specialist (at court expense).
The court
also appointed an attorney to represent the inmate.
While at FCI Cumberland, the inmate has been seen by outside
specialists and had a cat scan and a biopsy. Although the inmate
has growths in his prostate, the tests show they are benign.
The
court appointed specialist concurred with this diagnosis.
The
specialist recommend surgical reduction of the prostate.
Dr. Howard from FCI Cumberland attended the October 2, 1996
hearing. Dr. Howard advised the court that she had selected a
more conservative course of treatment using medication first to
try to reduce the prostate. She placed on record that the
procedure recommended by the specialist carries certain risks,
including impotence and incontinence.' We agreed to have the
inmate seen by an urologist in the FCI Cumberland area for the
surgery. The court was satisfied with this proposal and denied
the injunctive request as moot. Hank Sadowski assisted the AUSA
a~ the hearing.
10.

United States v, Pelullo, CR 91-00060 (E.D.Pa.)

On September 26, 1996, Judge Robert F. Kelly held a hearing
pertaining to assets seized in the above case. An issue arose
concerning monitored telephone conversations between inmate
Leonard Pelullo, 44140-066, and a real estate agent. The SIS
technician from FCI Fairton had to testify concerning the phone
monitoring notices, the manner in which inmates are informed of
phone monitoring and proper procedures for legal phone calls.
The court admitted the phone recording in. evidence.
FCI Fairton
Attorney Bobbie Truman attended the hearing.
11. United States V, Benz, CR 96-00239-01 (E.D.Pa.)
Released defendant, Edward Benz III, 49943-066, had a sentencing
hearing before Judge Shapiro on September 19, 1996. The defendant
is arguing that he is a homosexual and will be' subjected to
sexual assaults in prison. The AUSA has asked for our assistance
since the defendant is facing sentencing guidelines of between 47
to 57 months. Tony Prantow, Regional Designator, was available
to testify; Hank Sadowski accompanied him. The court ruled from
the bench that possible victimization in prison is not a ground
to depart from the guidelines. At sidebar, the court asked for
the Bureau's input concerning recommendatiqns for designation,
psychological care and surrender date. The court followed each
of our recommendations.

2846

-5-

12.

(

Li V. Canarezzi, 95 Civ 0706 (S.D.N.Y.)

Former pretrial detainee Jian An Li, 44661-053, brought this
Bivens complaint alleging excessive use of force by staff at MCC
NY~
On September 26, 1996, Judge Sand held a hearing on
Plaintiff's motion to file an amended complaint, to extend the
discovery deadline, and to order defendants to disclose
information provided by defendants to Office of Internal Affairs.
Judge Sand granted the motion to amend and the motion to extend
'discovery. Judge Sand denied motion to disclose contacts with
OIA.
13.

Danse

v.

United States. et al., 96 Civ. 1040 (S.D.N.Y.)

Attorney filed a combination Bivens/FTCA complaint alleging MCC
NY staff used excessive force against former inmate Albert Danso,
27924-054 in February 1994. Danso died of cancer on October
1994. The attorney filed the complaint 16 months after the
inmate died and did not know of the death! On September 27,
1996, Judge Sprizzo held a status hearing after learning of the
inmate's death. The attorney asked the court for time to contact
the "family of the inmate before he withdraws the complaint. The
court gave the attorney until December 6, 1996 to report back to
the court.

(

14. United States

v.

Huyet, 95 CR. 941 (S.D.N.Y.)

Defense counsel in the above criminal case moved the court to
direct MCC NY to house nine co-defendants in the same housing
unit. Judge Leisure held a hearing on September 19, 1996. The
. court denied the motion and left logistics of co-defendant
meetings to the expertise of the Warden. Attorney Dominique Raia
represented the MCC.
SETTLEMENTS AND AWARDS

1.

PQpal. et al, y. United States, Civil No. 94-6178 (S.D.N.Y.)

This FTCA case was filed by 57 inmates who alleged they suffered
food poisoning at FCI Otisville in October 1991. The United
States faced liability in this case since it was documented that
there was a food poisoning outbreak at FCI Otisville and since
numerous inmates were treated. We joined the egg supplier as a
defendant in this action. Attempts to settle were unsuccessful
and the case proceeded to trial on July 8, 1996.
Prior to trial,
22 plaintiffs were dismissed. On July 18, 1996, Judge Cote found
the United States liable and ordered a total of $102,900 damages
in varying amounts per the remaining 35 plaintiffs:
two were
awarded $11,800; one - $9800; one - $8500; one- $7500; one $4000; two - $3500; four - '$2500; four - $1500; eight -" $2000;

2847

-6-

(

five - $1200; five - $900; one - $0. The United States is liable
for 50% of the award; the egg supplier is liable for the other
50%.
The award is only slighter higher than we expected and
we recommend against appeal.
2. Cabassa v. United States, 95 Civ 8233

(S.D.N.Y.)

In this FTCA case, the guardian for an eight year old child
alleges that negligence at MCC NY caused the child to suffer
permanent injuries to her arms. The child was entering MCC as a
visitor in 1993 when her arms were caught in the conveyor belt
apparatus of the x ray machine. We stipulated to liability since
our record showed that staff altered the belt to attach a wooden
board at the end of the belt. The child caught her arms under
this board. She suffered first and second degree burns and the
is a scar on her left arm about 14 centimeters long. Attempts to
settle were fruitless and the case went to trial on the damages
issue on September 12, 1996. After the one day trial, Judge Chin
entered a decision on September 16, 1996 awarding damages in the
amount of $35,000. This award was only slightly above the amount
we had offered to settle. We recommend against appeal.
3.
MedranO v. United States, 94 Civ 8639 (S.D.N.Y.);
MedranO v, Weber. et al., 94 Civ 8285 (S.D.N'. Y.)

The two above civil actions arise from the same basic incident
involving Inmate Pedro Medrano, 38533-053. The attorney for
, Medrano filed a FTCA action alleging that staff assaulted
Medrano, causing an injury to his eye, which was not properly
treated by the Bureau of Prisons. Medrano filed, pro se, the
second action, a Bivens complaint against the officers who he
alleges assaulted him. As a result of a settlement conference on
,July 23, 1996, the FTCA case settled fo~ $200,000. The case was
settled because a delay in repair of ,a detached retina resulted
in permanent loss of sight in 9ne eye. This settlement also
causes the Bivens action to be dismissed.
4.

Capuano y, United States, Civil No. 95-10499 (D.Mass.)

Former Inmate Gaetan Capuano, 18310-038, filed this FTCA action
alleging that he slipped and fell on an icy sidewalk at FPC
Allenwood in March 1993. Inmate suffered a broken ankle from the
fall. Case was scheduled to go to trial in Boston, Massachusetts
on July 29, 1996. Case settled for $8000 for avoid costs of
trial (5 staff witnesses from Allenwood) .
5. McGuire v. POJ, 95 Civ 10706 (S.D.N.Y.)

(

Former inmate Thomas McGuire, 27952-054, alleged that personal
clothing worth $640 was lost after his placement at MCC New York

2848

-7-

in November 1992. Our records establish he entered MCC with the
property in question, but we had no record of the disposition of
the property. Case settled for $300.
6. Raphael BroWDY. United States, Civil No. 3:95CV1234

(D.Conn.)

Former inmate Raphael Brown, 17547-083, alleges that he slipped
and fell on ice at FCI Danbury in March 1992, and as a result, he
suffered a tear to his rotator cuff in his left shoulder. The
AUSA recommended settlement due to exposure on the liability
issue and the severity of the Plaintifffs injuries. Our ability
to defend the liability issue was hampered by the lack of records
concerning snow and ice removal on the day of the fall.
Our
medical expert confirmed the severity of Plaintifffs injury,
assessed approximately a 30% permanent partial impairment to his
left shoulder and felt Brown will continue to suffer persistent
pain from the injury. We focused on damages primarily for pain
and suffering. Plaintiff incurred the injury at age 46 and is
facing many years of pain. After a settlement conference~ the
case settled for $70,000.
7. Nwanze V. United States, CV-95-304 (W.D.Pa.)

(

",

Inmate Austin Nwanze, 32832-083, filed this FTCA case requesting
damages of $165 for property he alleged was lost on 'his transfer
from FC! Ray Brook to FCI McKean. The administrative claim was
denied due to insufficient evidence that staff had the property
in question. Reinvestigation uncovered additional evidence
supporting his claim. Case settled for $75.
Enclosures

2~9

NORTHEAST REGlONAL OFFiCE
LITiGATiON OUARTERLY REPORT
FROM 07/01/1996 TO 09/30/1996

('

LOC

NOM

HC

FTC

BIV

OTH

5

23

6

ANS

PEN

CLD

HIT

45

580

56

12

SET

AWD

5

2

MXR
NER

67

33

SER
NCR
SCR
WXR

CO
TOT

NARRATIVE ANALYSIS
DEFIN:ITlONS:
LOC - LOCATION
NOM - NUMBER OF TOTAL LAWSUITS FILED XN QUARTER
HC - NUMBER OF HABEAS CORPUS ACTIONS FlLED
FTC - NUMBER OF FTCA ACTIONS FILED
BIV - NUMBER· OF BIVENS ACTIONS FILED
OTB - OTHER ACTIONS FILED
ANS - NUMBER OF LITIGATION REPORTS COMPLETED
PEN - PENDXNG
CLD - NUMBER OF ACTIONS CLOSED
HIT - NUMBER OF HEARXNGS OR TRIALS (INCLUDE INFO IN NARRATIVE)
SET - NUMBER OF SETTLEMENTS (INCLUDE XNFO IN NARRATIVE)
AWD - NUMBER OF AWARDS (INCLUDE INFO IN NARRATIVE)
GOVERNMENT ACTION AND DATE OF ACTION - (INCLUDE IN NARRATIVE)

2850

. NORTHEAST REGIONAL OFFICE
APMXNISTRATIYE REMEDIES QUARTERLY REPORT
FROM

09-30-96

TO

07-01-96

(
LaC

HUM

DHO

SPH

NED

477

210

12

32

LEG

MIl

FD

GRT

DEN

PEN

21

418

34

aD

MXR
NER

1

14

4

SER
NCR
SCR
WXR
TOT
NARRATIVE ANALYSIS
DEFINITIONS

c. .

LOC - LOCATION
NUMBER OF TOTAL AD REMEDIES FILED
DHO - NUMBER OF DHO REMEDIES FILED
SPH -'NUMBER OF SPECIAL HOUSING UNIT REMEDIES FILED
MED - NUMBER OF MEDICAL REMEDIES FILED
MH
NUMBER OF MENTAL HEALTH REMEDIES FILED
LEG - NUMBER OF LEGAL REMEDIES FILED
FD - NUMBER OF FOOD REMEDIES FILED
GRT - TOTAL OF NUMBER OF REMEDIES GRANTEp
.DEN - TOTAL NUMBER OF REMEDIES DENIEP
PEN - TOTAL NUMBER OF REMEDiES PENDING
OD - TOTAL NUMBER OF REMEDIES OVERDUE

NOM -

;

\

"

2851

0

(

TORT CLAIMS FOURTH QUARTER - FY96
(JULY 01, 1996 - SBPTBMBBR 20, 1996)

PPP
I

we

MBD

SBT

0

0

0

0

0

155

19

0

0

22

0

0

0

0

0

NCR

1

0

0

0

SCR

0

0

0

WXR

0

0

C.O.

0
197

PEN

DEN

OD

0

0

0

0

0

0

26

4123

296

169

0

0

123

0

0

0

0

0

0

0

0

0

1

1

20

0

0

0

0

71

0

0

0

0

0

·0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

42

0

0

0

0

0

0

0

0

0

0

0

0

155

19

0

0

23

27

4143

296

169

0

***

PI

PP

LOC

NOM

MXR

0

0

NBR

196

SBR

SUM

(
2852

AMT

A/O

A/P

79

UNITED STATES GOVERNMENT

memorandum
Date: January 14, 1997

David R. Essig, Regional Counsel, Northeast Region
Attn of: Federal Bureau of Prisons, Philadelphia, Pa. 19106

Reply to

Subj ect: Quarterly Report - October 1, 1996 through December 31, 1996
To:

Wallace H. Cheney, General Counsel and

Assistant Director, Federal Bureau of Prisons
Washington, D.C.
20534

Attached are the statistics requested for the quarterly report for the first quarter of
FY 1997.
The following is a synopsis of the Significant cases in litigation during the quarter:

SIGNIFICANT DECISIONS, HEARINGS OR TRIALS

1. Benjamin Mackey v. Bureau of Prisons, Civil No. 96-5286 (E.D.Pa )
Inmate Benjamin Mackey, 09717-054, at FCI Schuylkill, filed a rambling habeas
corpus action challenging a DHO finding that he possessed marijuana and the
calculation of prior custody credit. Judge Shapiro held a hearing on the petition
for Thursday, October 17, 1996. The court stated frorn the bench that she was
only focusing on two issues: whether the Bureau properly calculated the Inn1ate's
parole violation term and whether the DHO forfeited more statutory good tune
than was available at the time of the infraction. The court requested an
additional declaration detailing these issues. Hank Sadowski assisted the AUSA
at the hearing. The court has not yet ruled.

2. Lloyd v, Levine, et al., Civil Action No.

96-18:~"

(D.N.J.)
Judge Simandle held a hearing on October 21, 1996 ill

t

h.·

above case. Counsel for Inmate Michael Lloyd, 44935-066,
filed what
purports to be a § 1983 action requesting essentially
injunctive relief to order the inmate to be placed in a CCC
for 180 days. He alleges that his CCC placement was
improperly influenced by recommendations from sentencing
judge and AUSA.
In addition to the Warden and other Fort
Dix staff, the sentencing judge and the AUSA are named as
defendants. We moved to dismiss the complaint. Attorney Al
Munguia represented the Bureau. Plaintiff's attorney

raised new factual allegations cpncerning alleged improper
contact by the FBI. The court requested a declaration
addressing these allegations. On November 4, 1996, the
court granted our motions and dismissed the action.

3.

United States v. Legrano, 93 CR 1231 (E.D.N.Y.)

On October 23, 1996, Judge Ross called MCC NY Attorney
Dominique Raia to request Dr. Voulo (staff physician)
testify in a sentencing hearing ASAP (in 40 minutes)' for
Joseph Legrano, 13548-053. Dr. Voulo was Legrano's
"treating physician n while at MCC NY. Legrano had a variety
of medical problems and was regularly seen in various
clinics. The issue was whether the BOP could care for
Legrano properly if housed at a BOP facility.
Dr. Voulo testified as to several specific medical
conditions and essentially covered his medical treatment
since his incarceration with the BOP and opined that the BOP
could adequately care for him. Dominique attended t.he
hearing. Legrano was sentenced to 25 years.
4.

United States v. Santiago, et al., 96 Cr 402

(S.D.N.Y.)

On October 23, 1996, Judge Leisure held a hearing cOllcerning
the scheduling of a co-defendant meeting for the purpose of
a plea offer to all defendants. The court .instruct eLi the
MCC NY to make arrangement for a codefendant metinq fOI'
October 28, 1996 at 2:00 pm. Attorney Alma Lopez ntlpllded
the hearing.
.
5. Moscato v. Federal Bureau of Prisons, 98 F.3d 757(3d Cir.1996)

~

m-.tl:li& case, the Third Circuit established the procedural default rule for habeas
corpus cases. The inmate, Phillip Moscato, 08126-050, brought a habeas
corpus action challenging a DHO decision from 1993. The primary issues below
were the sufficiency of the evidence to support the DHO finding and the denial of
a requested witness due to unavailability (the witness was at FPC Allenwood and
the inmate had his DHO hearing at LSCI
Allenwood). Th~dministrativ~R~e~ls QY the inmate were rejected as untimely.
Following th~cfAli Circuit, the Setsl of iKpp~ls held that the doctrine of
procedural default applies in habeas corpus actions challenging inmate
discipline. When an inmate has not fully exhausted administrative remedies and
no longer has such a remedy, a court could not consider the habeas petition
unless the inmate established cause for tht;! failure to exhaus.t and prejudice
(this ease, the inmate eould not establisFi cause, and the
resulting therefrom.
court did not need
address whether there
prejudice. Hank
dowski h
presen~.ral a ument before the Cou f App Is in July 199

t

.

/

trou~~note

"'"~

witne~s.

, in dicta, a
on unavailability
Tie court
focus
on the distanCEfbetween FPC Allenwood an he LSCI AlleTJW'ood and
que loned whetherA11e requ~~d inmate witness were unavailaHle>The
be r justificatio,:r1s institution seCurity since bri ing inmate wi~sses from"one
i titution i~t~~o~he( always causes's~cu!it isks. We have1>assed this
'.
COl i illleryaUonl61he-oHOs at the-eomp
'.-'
6. United States v. Diekan, Cr 95-10382 (D. Mass.)
Inmate John Diekan, 20946-038, was serving a 5 month sentence at a cec in
Boston. The CCM ordered him to submit to a routine blood test as part of his
physical required to remain at the ecc. Diekan refused and asserted religious
grounds. He told the CCM that sometimes he was a Christian Scientist and
sometimes he was a Catholic. The eeM found that Diekan had requested
weekend passes to attend evening religious service at a Catholic Church. The
CCM denied his request not to submit to the blood test. Diekan (a former
attorney) filed an emergency motion to enjoin the Bureau from "retaliating"
against him for failure to submit to the blood test. Judge Keeton (the sentencing
judge) scheduled a hearing for Monday, October 28, 1996. The court asked
CCM Pete Weld to attend the hearing. The CCM told the court that alllnrnates
were so screened to ensure there were no communicable diseases. and. If he
continues to refuse. Diekan would be placed in a federal institution so he can be
isolated. The court dismissed the motion for lack of jurisdiction. The next day
the inmate agreed to the blood test.
7. United States v. Gonzales, No. 95-1605 (S.Ct.)

Oral argument 1ft Esie erimil1al appeal was heard before the
Supreme Court on December 11, 1996. The issue was whether a
federal sentence imposed under 18 U.S.C. § 924(c), which
prohibits concurrent service "with any other term of
imprisonment," may be ordered to run concurrently with a
state sentence, i. e., does "any other term of imprisonment"
encompass state sentences as well as federal.
The position
of the United States was that it encompasses state sentences
as well. ~iguel Est
(who argued
v.
a :1,
present¥ argument on b alf of... the- Unit, tl . States ' / Th~~
argu~et w~nt well an the Cgurt had a ~r~.~ras~ t:-_hat
stat e .,.w;s directe to fede-ral sente ce~-/and was 'not<an
att p( to control ta ~entencing tl' creti~// ~k
Sadowski assisted Mr. Estrada at the argumelk(.

#e

8.

~
I

Terrance Jones v. Meko, Civil No. 96-4 (W.D.Pa.)

On November 27, 1996, the United States District Court for
the Western District of Pennsylvania granted the petition
for writ of habeas corpus in the above case. The court
summarily adopted the Report and Recommendation of the
Magistrate Judge which found that the Bureau incorrectly
concluded Petitioner was ineligible for 18 U.S.C. § 3G21(e)
early reduction because Petitioner Terrance L. Jones,
Register No. 03840-055, had committed a crime of violence.
We had construed the order granting the petition as one
finding Jones eligible for early reduction. Notwithstanding
Jones's otherwise release date of December 12, 1997, the
institution was exploring CCC placement for community
transition. This had the impact on reducing the maximum
possible reduction for Jones to about 6 months. On the
basis of a letter written by Jones to the court,
Judge
McLaughlin held a telephone hearing on December 11, 1996.
Dave Essig represented the Bureau. The Judge concluded that
his intention was that Jones receive the maximum benefit and
ordered Jones released on December 12, 1996.
9. Hunter v, Malinov, Civil Action No. 96-1195

~
\

\

(E.D.~a.)

Inmate Milton Hunter, 18759-016, brought a Bivens action
against medical staff at FCl Schuylkill alleging that he had
prostate cancer and staff has not properly' treated him.
Inmate had since been transferred to FC! Cumberland. On
December 12, 1996, Judge Shapiro held a status conference to

go over discovery issues. The primary problem was a demand
by appointed counsel to
photograph portions of the medical department at FC!
Schuylkill. Hank Sadowski assisted the AUSA.
Counsel for
Hunter agreed to withdraw his request for photos until he
toured the FCI.

10. Harris v. Bureau of Prisons, et al., Civil No. 96-6549
(E. D.

Pa. )

Counsel for former inmate William Harris, 44917-066 filed a
combination FTCA and Bivens complaint against the Bureau of
Prisons and staff at FC! Schuylkill, alleging negligent
medical treatment for a detached retina in early 1995. As a
result, he allegedly lost sight in one eye . . None of the
Bureau defendants have been served. The u.S. Attorney was
served on December 3, 1996. Judge Marvin Katz held a
pretrial conference on
'December 18, 1996. Joyce Horikawa assisted the AUSA at the
conference.
Plaintiff's attorney reported that Plaintiff recently died
of a heart attack, and she was not sure if she would pursue
the case. She also indicated that she did not know the
jurisdictional basis for her allegations of statutory
violations. The court gave her 30 days in which to file an
amended complaint, naming the United States as the sole
defendant under the FTCA. Plaintiff agreed that she would
request no more than $100,000.00. The judge indicated that
once Plaintiff filed an amended complaint, he would place
this case on the arbitration docket.
11.

{
,,\
'"
\,"
\ ~
\
.

United States v. Marsico, Criminal No. 96-261 (E.D.Pa.)

Defendant, Michael Marsico, Reg. No. 49961-066, had a
sentencing hearing on December 19, 1996 before Judge
Robreno. The Defendant had pleaded guilty to 2 counts of
bank robbery. Defense counsel requested a downward
departure from t~e applicable sentencing guidelines because
of defendant's h~story of drug abuse and psychological
problems, including two post-arrest suicide attemptG.
Counsel was implying that the Bureau of Prisons could not
adequately treat the defendant. Joyce Horikawa attended the
hearing with Dr. Gerard Bryant, the Regional Psycho1ogy

Administrator.
The AUSA advised the court that Bureau of Prisons staff were
available to address the treatment available to inmates. On
questioning from the court, defense counsel conceded that
the Bureau of Prisons could handle defendant's psychological
problems. The court denied defendant's motion for a
(~downward departure, and sentenced Marsico to a sentence of
i
156 months. Judge Robreno stated, given defendant's
inability to correct his drug addiction on his own, the
Bureau may be the only place where Marsico could adequately
address his drug problem.

'i

12. United States v. Zampardi, 96 Cr 749 (E.D.N.Y.)
Inmate Michael Zampardi, 00128-748, a pretrial detainee at
MOC Brooklyn, filed a motion with the criminal trial judge,
Judge Gleeson, to be removed from administrative detention.
Zampardi was placed in protective custody after the AqSA
advised that the FBI received reliable information that a
contract was taken out for his life. The detainee offered
to "waive" his safety and alleged that the isolation is
adversely effecting his health. Judge Gleeson scheduled a
hearing for November 1, 1996. The wrong inmate was brought
to the hearing and the hearing was held on November 4, 1996.
Attorney Azzmeiah Vazquez assisted the AUSA at the hearing.
On November 6, 1996, the court dismissed the motion for
failure to exhaust available remedies within the BOP.

13. United States v. Celester, Crim. No. --- (D.N.J.)
On December 2, 1996, released defendant William Celester had a sentencing
hearing before Judge Garrett Brown in Trenton, NJ. Celester was the former
Police Director for Newark, NJ. Celester argued, in part, for a downward
departure from the
sentencing guideline range of 21 to 27 months, because he had a senes of
medical problems which could not be handled "given the modest state of penal
medicine in many facilities." Celester has
hypertension, congestive heart failure and malabsorption syndrome secondary to
an intestinal bypass. The AUSA submitted a letter from Regional HSA asserting
that the medical problems could be handled at any federal institution (also
confirmed with Medical Designations). Assistant Regional Counsel Joyce
Horikawa attended the hearing. The court himself questioned the defendant's
doctor and determined the doctor was unaware of the medical capabillt.es of the
Federal Bureau of Prisons. Not only did the court reject the defendant's request

to go below the sentencing guidelines, the court imposed a sentence of 30
months, above the guidelines because Celester violated the public trust.

14. Fisher v. Goord, et aI., 96-CV-0486 (W.D.N.Y.)
New York State inmate Amy Fisher ("Long Island Lolita" of Joey Buttafuoco
fame) is alleging that a number of New York state institution staff have had sex
with her, some with her consent, some without. She has filed a civil rights action
against numerous state officials. As part of her relief, she has moved the court
to order her transferred to the Federal BOP. The United States is not a party to
the action. We have filed an Amicus brief asserting that the court has no
jurisdiction and that there is no authority to order the United States to take a state
prisoner. Judge Arcara held a hearing on December 3, 1996. The Judge
focused on our argument that revised 18 U.S.C. § 3626 sets the standard for his
decision on injunctive relief."
. .
.
. /"
.
elr brief . The court requested Plaintiff to subm1f8\,
s onse to this argument within/14 days. The Plaintiff submitted a response
serting that Section 3626 is unconstitutional and requested the court to certify
1he issue to the Attorney General under 28 .U.S.C. § 2403(a). We are contacting ';
Fiederal ProQrams-tO-see If they want to file a lesponse on the oonstitutionality-Of-~
I

§\.3e2&.

15. United States v. Hammer, 4:CR-96-239 (M.D.Pa.)

t

Inmate David Hammer, 24507-077, has been charged with the April 1996 murder
of an inmate at USP Allenwood. The United States Attorney has requested
authorization from DOJ .to seek the death penalty. On November 21 & 25. 1996.
Judge Muir held hearings on a motion filed by defense counsel challenging the
attorney visiting procedure at USP Allenwood. Defense counsel ohjeeted to the
number of searches (pat and visual) of Hammer to and from each Visit Defense
counsel also objected to non-contact visits. Attorney Hope Moro assisted the
AUSA at the hearings. In an 31 page opinion dated December 5. 1996. the court
denied the defendant's motion.
16. State of New York v, Marc Johnson, Crim. No. 13048/95
(Supreme Ct. N. Y . )
Federal parole violator Marc Johnson, 24552-053, in houfJed
at MDC
Brooklyn pending the parole revocation hearing by lhf" U.S.
Parole .Commission. Johnson is also facing New YOlk urate
charges for attempted murder. The Parole Commission denied

tv

I

the District
Attorney's request for production because the Commission was
to conduct their revocation hearing first.
New York State
Justice Lott held a hearing on November 21, 1996 to
determine if the State had violated speedy trial rights.
The ISM from the MDC testified at the hearing concerning the
efforts made by the prosecutors to secure the defendant and
concerning the position of the Parole Commission. Azzmeiah
Vazquez assisted the state prosecutor at the hearing.
The
state court reserved ruling.
17. United States v. Solomon, -- CR -- (S.D.N.Y.)
On November 4, 1996, Judge Preska held a hearing on
allegations by Pretrial detainee Amir Solomon, 36098-054,
that he had wanted to attend the trial but was physically
unable to do so.
In a prior proceeding, the detaine~ had
tried to throw a chair at the Judge. To no one's surprise,
the Judge then found that the accused waived his right to
attend the trial, with re-entry only with the court's
permission.
Solomon was trying to argue that all the
proceedings held in his absence were improper because he was
medically unable to apply for reentry. At the hearing, MCC
NY staff testified concerning Solomon's ability to attend
the court proceedings. Dominique Raia attended the hearing.
The court found that Solomon attempt to allege a medical
excuse was not credible and determine that he voluntarily
did not attend the proceedings.
18.

United States v. Muyet, 95 CR. 941 (S.D.N.Y.)

On November 13, 1996, Judge Leisure held a contempt hearing
on why one of his prior orders was not complied with by MCC
NY.
The court had ordered that legal materials be dropped
off and delivered to the defendants on a Saturday.
Instead
the inmates did not receive the materials until the
following Monday. Despite written instructions to st~ff,
the materials were inadvertently placed in the mail l"OOm
instead of being immediately delivered.
The Warden
personally appeared at the hearing and apologized to the
court for the error.
(Dominique Raia was at the M~urin
hearing below). The court accepted the apology.
On November 20, 1996, the law clerk for the judge dHked the
Warden to agree for a one time visit between detainpf' .1ohn
Muyet, 38027-054, and a non-family visitor.
ArrauqempulB

were attempted for the visit, but the inmate could not
contact his visitor and demanded instead that she be added
to his permanent visiting list. The inmate threatened that
if his request as denied, the
Judge would make the Warden appear in court again. The
Warden
sent a letter to the court advising him of this situation
and has not had to reappear in court.
19.

United States v. Mathurin,

CR

(S.D.N.Y.)

On November 13, 1996, a former Physician's Assistant at MCC
NY testified in the criminal trial of Pierre Mathurin,
42870-054. As part of his defense to drug charges, the
inmate alleged that he had a leg injury which required him
to have a narcotic in his possession. The former PA
testified that the inmate did not have a leg injury which
I.
d h'~m to t a k e a narco t '~c.
requ~re
Dominique Raia attended
I
the hearing.
!

I
20, United States v. Leggett 4:CR-94-0097 (M.D.Pa.)
Defendant Michael K. Leggett, Reg. No. 83644-011 was charged and found
gUilty (on November 13, 1995) of assaulting a Unit Manager at USP Allenwood in
April 1994. On March 25, 1996, during the sentencing hearing, inmate Leggett
assaulted his counsel. On October 17, 1996, after the inmate/defendant was
evaluated by at least two mental health experts and new counsel appointed, a
hearing was held specifically to decide if Leggett was competent to be
sentenced. After the mental health expert testified, USP Lewisburg Attorney
Mike Tafelski testified (Leggett was held as a holdover at Lewisburg) that
according to a previous P.S.1. from a 1992 sentencing, he acted as his own
"attorney" and that during a conversation Mike had with hirn he appeared to
understand the significance of the issues discussed. Judge Muir found the
inmate to be competent and sentenced him, on NovemLer 4,
1996, to 36 months (and one year supervised releasp) to run
consecutive to his present sentence.

SETTLEMENTS AND AWARDS
1.

Miller v. Reno, 4:CV:93-1475 (M.D.Pa.)

Three day trial in EEO case concluded on February 29, 1996 with a jury verdict
adverse to the BOP. The staff member was reassigned to his prior correctional

officer position after serving as a case manager trainee for 13 months. The staff
member alleged that this reassignment was based on race discrimination. In
addition the staff member asserted that the reassignment was retaliatory since it
occurred two months after he made a
complaint about racial remarks made by his supervisor. The jury found for the
staff member on both counts. The case finally settled. We agreed to afford
Plaintiff a Case Manager position at USP Lewisburg, attorney fees of $37,500,
and damages of $15,000.
.
2. McCarthy v. United States, 4:CV-95-0723 (M.D. Pa. )
Inmate Arthur McCarthy, 49352-080, filed an FTCA complaint
alleging medical malpractice caused him to lose sight in his
right eye.
O~F mQQigaJ exp~rt geBel~aea that a two week
d~ay 1:R: 1?;r;:evielift~ the inmate care fOI a detached Ietinaswas
Q~£siele tae app%op%iaLe ee8ftaaFS O£ Q~~
Wit~ the
neCGSSaF~" eOfte\:lrrel"lces ,~is case was settled for $110, 000 .
·3. Wagner v. United States, Civil No. 4:CV-96-0289 (M.D.Pa.
October 18,1996)
Judge McClure entered summary judgment against the United
States and in favor of Inmate Michael Wagner, 03718-010, in
the amount of $172.90 plus costs. The inmate had been taken
to Special Housing at USP Allenwood and his property was
left unsecured for over three and a half .hours. We had
argued tha.t the cOIHplaint saould be di sm; saed because an
±nst:itl:ltien eme:r:gency kept staff fLotti secuLing the property.
The court found that the discretionary function exemption
would not apply in this case because the institution was
back to normal operations prior to the placement of the
inmate in SHU. +Ie are rEcolillliending against appeal.
4.

Gonzalez v. United States, 95-CV-7448 (E.D.Pa.)

-

InmatE Mario Gonzalez, 12380-075, f~Ied a P'edel:LQ.l Tort
Claims complaint alleging that his property worth $1682.50
was lost at FieI schuylk~II after an il1stitut i an transfer.
The
:LELtl:t:n :t:eceipt was signEd by staff but ..t.he box was never
.........
located.
Inmate rejected our attempt to settle the
f'\...I
£-T c:,q. f' '" rw" . I
admiftist:::r:etivE claim atlC! blought this aetion. ,,'Case settled
for $750.00.

5. Jones v. United States, 94-CV-5086 (E.D.Pa.)

This FTCA case was brought by former inmate Rother Jones, Reg. No.
36662-066, who suffered a massive brainstem hemorrhage on
October 18, 1991, after being transferred from FCI Loretto to FCI
McKean, via USP Lewisburg. Jones had been under prescribed medication to
control hypertension. Approximately 2-3 hours after arriving at FCI McKean, he
r
suffered a brainstem hemorrhage, which left him paralyzed from the neck down ,0",(.\
I
~' .>. ~
and affected his speech. 1=Re 88~J3laiflt Blleged th8t the failui e to pi ovide Jones c J~
his medication on October 18, 1991 was the cause of his brainstem hemorrhage.
Tl:le ease vias sel=teduled fal trial On Novemrser ll, 1996. Case was settled for
$65,000 because of lack of records concerning medication and because of
serious nature of injury.

Attachments

NORTHEAST REGIONAL OFFICE
LITIGATION QUARTERLY REPORT
FROM 10/01/1996 TO 12/31/1996

LOC NUM
MXR
NER 44
SER
NCR
SCR
WXR
CO
TOT

HC

FTC

BIV

OTH

16

5

17

6

ANS

PEN

CLD

HIT

SET

AWD

33

570

54

19

4

1

..

NARRATIVE ANALYSIS

DEFINITIONS:
LOC - LOCATION
NUM - NUMBER OF TOTAL LAWSUITS FILED IN QUARTER
HC - NUMBER OF HABEAS CORPUS ACTIONS FILED
FTC - NUMBER OF FTCA ACTIONS FILED
BIV - NUMBER OF BIVENS ACTIONS FILED
OTH - OTHER ACTIONS FILED
ANS - NUMBER OF LITIGATION REPORTS COMPLETED
PEN - PENDING
CLD - NUMBER OF ACTIONS CLOSED
HIT - NUMBER OF HEARINGS OR TRIALS (INCLUDE INFO IN NARRATIVE)
SET ~ NUMBER OF SEITLEMENTS (INCLUDE INFO IN NARRATIVE)
AWD - NUMBER OF AWARDS (INCLUDE INFO IN NARRATIVE)
GOVERNMENT ACTION AND DATE OF ACTION - (INCLUDE IN NARRATIVE)

UNITED STATES GOVERNMENT

memorandum
Date: January 14,

1997

Reply to
David R. Essig, Regional Counsel, Northeast Region
Attn of: Federal Bureau of Prisons, Philadelphia, Pa. 19106
Subject: Quarterly Report - October 1,
To:

1996 through December 31, 1996

Wallace H. Cheney, General Counsel and
Assistant Director, Federal Bureau of Prisons
Washington, D.C.
20534

Attached are the statistics requested for the quarterly report
for the first quarter of FY 1997.
The following is a synopsis of the significant cases in
litigation during the quarter:

SIGNIFICANT DECISIONS. HEARINGS OR TRIALS
1. Benjamin Mackey v. Bureau of Prisons, Civil No. 96-5286
(E.D.Pa.)
Inmate, Benjamin Mackey, 09717-054, at FCI Schuylkill, filed a
rambling habeas corpus action challenging a DHO finding that he
possessed marijuana and the calculation of prior custody credit.
Judge Shapiro held a hearing on the petition for Thursday,
October 17, 1996.
The court stated from the bench that she was
only focusing on two issues: whether the Bureau properly
calculated the inmate's parole'violation term and whether the DHO
forfeited more statutory good time than was available at the time
of the infraction.
The court requested an additional declaration
detailing these issues.
Hank Sadowski assisted the 'AUSA at the
hearing.
The court has not yet ruled.
2.

Lloyd v. Levine. et al., Civil Action No. 96-1827 (D.N.J.)

Judge Simandle held a hearing on October 21, 1996 in the above
case.
Counsel for Inmate Michael Lloyd, 44935-066, filed what
purports to be a § 1983 action requesting essentially injunctive
relief to order the inmate to be placed in a CCC for 180 days. He
alleges that his CCC placement was improperly influenced by
recommendations from sentencing judge and AUSA.
In addition to
the Warden and other Fort Dix staff, the sentencing judge and the

2

AUSA are named as defendants. We moved to dismiss the complaint.
Attorney Al Munguia represented the Bureau. Plaintiff's attorney
raised new factual allegations concerning alleged improper
contact· by the FBI. The court requested a declaration addressing
these allegations. On November 4, 1996, the court granted our
motions and dismissed the action.
3.

United States y. Legrano, 93 CR 1231 (E.D.N.Y.)

On October 23, 1996, Judge Ross called MCC NY Attorney Dominique
Raia to request Dr. Voulo (staff physician) testify in a
sentencing hearing ASAP (in 40 minutes) for Joseph Legrano,
13548-053. Dr. Voulo was Legrano's "treating physician" while at
MCC NY.
Legrano had a variety of medical problems and was
regularly seen in various clinics. The issue was whether the BOP
could care for Legrano properly if housed at a BOP facility.
Dr. Voulo testified as to several specific medical conditions and
essentially covered his medical treatment since his incarceration
with the BOP and opined that the BOP could adequately care for
him. Dominique attended the hearing. Legrano was sentenced to
25 years.
4.

United States v. Santiago, at al., 96 Cr 402 (S.D.N.Y.)

On October 23, 1996, Judge Leisure held a hearing concerning the
scheduling of a co-defendant meeting for the purpose of a plea
offer to all defendants. The court instructed the MCC NY to make
arrangement for a codefendant meting for October 28, 1996 at 2:00
pm. Attorney Alma Lopez attended the hearing.
5. Moscato v, Federal Bureau of Prisons, 98 F.3d 757(3d Cir.1996)
In this case, the Third Circuit established the procedural
default rule for habeas corpus cases. The inmate, Phillip
Moscato, 08126-050, brought a habeas corpus action challenging a
DHO decision from 1993.' The primary issues below were the
sufficiency of the evidence to support the DHO finding and the
denial of a requested witness due to unavailability (the witness
was at FPC Allenwood and the inmate had his DHO hearing at LSCI
Allenwood). ,The administrative appeals by the inmate were
rejected as untimely. Following ,the 7th Circuit, the Court of
Appeals held that the doctrine of procedural default applies in
habeas corpus actions challenging inmate discipline. When an
inmate has not fully exhausted administrative remedies and no
longer has such a remedy, a court could not consider the habeas
petition unless the inmate established cause 'for the failure to
exhaust and prejudice resulting therefrom.
In this case, the
inmate could not establish cause, and the court did not need to,
address whether there was prejudice. Hank Sadowski had presented
oral argument before the Court of Appeals in July 1996.

3

There is, in dicta, a troubling footnote on unavailability of
witnesses.
The court focused on the distance between FPC
Allenwood and the LSCI Allenwood and questioned whether the
requested inmate witnesses were unavailable. The better
justification is institution security since bringing inmate
witnesses from one institution into another always causes
security risks. We have passed this recommendation to the DHOs
at the Complex.
6. United States v. Diekan, Cr 95-10382 (D. Mass.)
Inmate John Diekan, 20946-038, was serving a 5 month sentence at
a CCC in Boston. The CCM ordered him to submit to a routine
blood test as part of his physical required to remain at the CCC.
Diekan refused and asserted religious grounds. He told the CCM
that sometimes he was a Christian Scientist and sometimes he was
a Catholic. The CCM found that Diekan had requested weekend
passes to attend evening religious service at a Catholic Church.
The CCM denied his request not to submit to the blood test.
Diekan (a former attorney) filed an emergency motion to enjoin
the Bureau from "retaliating" against him for failure to submit
to the blood test. Judge Keeton (the sentencing judge) scheduled
a hearing for Monday, October 28, 1996. The court asked CCM Pete
Weld to attend the hearing. The CCM told the court that all
inmates were so screened to ensure there were no communicable
diseases, and, if he continues to refuse, Diekan would be placed
in a federal institution so he can be isolated. The court
dismissed the motion for lack of jurisdiction. The next day the
inmate agreed to the blood test.
7. United States v. Gonzales, No. 95-1605 (S.Ct.)
Oral argument in this criminal appeal was heard before the
Supreme Court on December 11, 1996. The issue was whether a
federal sentence imposed under 18 U.S.C. § 924(c), which
prohibits concurrent service "with any other term of
imprisonment," may be ordered to run concurrently with a state
sentence, i.e., does "any other term of imprisonment" encompass
state sentences as well as federal.
The position of the United
States was that it encompasses state sentences as well.
Miguel
Estrada (who argued Reno v. Koray) presented argument on behalf
of the United States. The oral argument went well and the Court
had a firm grasp that the statute was directed to federal
sentences and was not an attempt to control state sentencing
discretion. Hank Sadowski assisted Mr. Estrada at the argument.
8.

Terrance Jones v. Meko, civil No. 96-4 (W.D.Pa.)

On November 27, 1996, the United States District Court for the
Western District of Pennsylvania granted the petition for writ of
habeas corpus in the above case. The court summarily adopted the

4

Report and Recommendation of the Magistrate Judge which found
that the Bureau incorrectly concluded Petitioner was ineligible
for 18 U.S.C. § 3621(e) early reduction because Petitioner
Terrance L. Jones, Register No. 03840-055, had committed a crime
of violence. We had construed the order granting the petition as
one finding Jones eligible for early reduction. Notwithstanding
Jones's otherwise release date of December 12, 1997, the
institution was exploring CCC placement for community transition.
This had the impact on reducing the maximum possible reduction
for Jones to about 6 months. On the basis of a letter written by
Jones to the court,
Judge McLaughlin held a telephone hearing on
December 11, 1996. Dave Essig represented the Bureau. The Judge
concluded that his intention was that Jones receive the maximum
benefit and ordered Jones released on December 12, 1996.
9. Hunter v. Malinov, Civil Action No. 96-1195 (E.D.Pa.)
Inmate Milton Hunter, 18759-016, brought a Bivens action against
medical staff at FCI Schuylkill alleging that he had prostate
cancer and staff has not properly treated him.
Inmate had since
been transferred to FCI Cumberland. On December 12, 1996, Judge
Shapiro held a status conference to go over discovery issues.
The primary problem was a demand by appointed counsel to
photograph portions of the medical department at FCI Schuylkill.
Hank Sadowski assisted the AUSA. Counsel for Hunter agreed to
withdraw his request for photos until he toured the FCI.
10. Harris

v.

Bureau of Prisons, et al., Civil No. 96-6549

(E.D.Pa~)

Counsel for former inmate William Harris, 44917-066 filed a
combination FTCA and Bivens complaint against the Bureau of
Prisons and staff at FCI Schuylkill, alleging negligent medical
treatment for a detached retina in early 1995. As a result, he
allegedly lost sight in one eye. None of the Bureau defendants
have been served. The U.S. Attorney was served on December 3,
1996. Judge Marvin Katz held a pretrial conference on
December 18, 1996. Joyce Horikawa assisted the AUSA at the
conference.
Plaintiff's attorney reported that Plaintiff recently died of a
heart attack, and she was not sure if she would pursue the case.
She also indicated that she did not know the jurisdictional basis
for her allegations of statutory violations. The court gave her
30 days in which to file an amended complaint, naming the United
States as the sole defendant under the FTCA.
Plaintiff agreed
that she would request no more than $100,000.00. The judge
indicated that once Plaintiff filed an amended complaint, he
would place this case on the arbitration docket.

5

11.

United States v. Marsico, Criminal No. 96-261 (E.D.Pa.)

. Defendant, Michael Marsico, Reg. No. 49961-066, had a sentencing
hearing on December 19, 1996 before Judge Robreno.
The Defendant
had pleaded guilty to 2 counts of bank robbery.
Defense counsel
requested a downward departure from the applicable sentencing
guidelines because of defendant's history of drug abuse and
psychological problems, including two post-arrest suicide
attempts.
Counsel was implying that the Bureau of Prisons could
not adequately treat the defendant. Joyce Horikawa attended the
hearing with Dr. Gerard Bryant, the Regional Psychology
Administrator.
The AUSA advised the court that Bureau of Prisons staff were
available to address the treatment available to inmates. On
questioning from the court, defense counsel conceded that the
Bureau of Prisons could handle defendant's psychological
problems. The court denied defendant's motion for a downward
departure, and sentenced Marsico to a sentence of 156 months.
Judge Robreno stated, given defendant's inability to correct his
drug addiction on his own, the Bureau may be the only place where
Marsico could adequately address his drug problem.
12. United States v. Zampardi, 96 Cr 749 (E.D.N.Y.)

Inmate Michael Zampardi, 00128-748, a pretrial detainee at MDC
Brooklyn, filed a motion with the criminal trial judge, Judge
Gleeson, to be removed from administrative detention.
Zampardi
was placed in protective custody after the AUSA advised that the
FBI received reliable information that a contract was taken out
for his life. The detainee offered to "waive" his safety and
alleged that the isolation is adversely effecting his health .
.Judge Gleeson scheduled a hearing for November 1, 1996. The
wrong inmate was brought to the hearing and the hearing was held
on November 4, 1996. Attorney Azzmeiah Vazquez assisted the AUSA
at the hearing. On November 6, 1996, the court dismissed the
motion for failure to exhaust available remedies within the BOP.
13. United States v, Celester, Crim. No.

---

(D.N.J.)

On December 2, 1996, released defendant William Celester had a
sentencing hearing before Judge Garrett Brown in Trenton, NJ.
Celester was the former Police Director for Newark, NJ.
Celester argued, in part, for a downward departure from the
sentencing guideline range of 21 to 27 months, because he had a
series of medical problems which could not be handled "given the
modest state of penal medicine in many facilities."
Celester has
hypertension, congestive heart failure and malabsorption syndrome
secondary to an intestinal bypass. The AUSA submitted a letter
from Regional HSA asserting that the medical problems could be
handled at any federal institution (also confirmed with Medical
Designations). Assistant Regional Counsel Joyce Horikawa

6

attended the hearing. The court himself questioned the
defendant's doctor and determined the doctor was unaware of the
medical capabilities of the Federal Bureau of Prisons. Not only
did the court reject the defendant's request to go below the
sentencing guidelines, the court imposed a sentence of 30 months,
above the guidelines because Celester violated the public trust.
14.

Fisher v. Goord, et al., 96-CV-0486 (W.D.N.Y.)

New York State inmate Amy Fisher ("Long Island Lolita" of Joey
Buttafuoco fame) is alleging that a number of New York state
institution staff have had sex with her, some with her consent,
some without.
She has filed a civil rights action against
numerous state officials. As part of her relief, she has moved
the court to order her transferred to the Federal BOP. The
United States is not a party to the action. We have filed an
Amicus brief asserting that the court has no jurisdiction and
that there is no authority to order the United States to take a
state prisoner.
Judge Arcara held a hearing on December 3, 1996.
The Judge focused on our argument that revised 18 U.S.C. § 3626
. sets the standard for his decision on injunctive relief. Neither
Plaintiff nor the New York state defendants addressed this statue
in their briefs. The court requested Plaintiff to submit a
response to this argument within 14 days.
The Plaintiff .
submitted a response asserting that Section 3626 is
unconstitutional and requested the court to certify the issue to
the Attorney General under 28 U.S.C. § 2403(a). We are
contacting Federal Programs to see if they want to file a
response on the constitutionality of § 3626.
15.

United States v. Hammer, 4:CR-96-239 (M.D.Pa.)

Inmate David Hammer, 24507-077, has been charged with the April
1996 murder of an inmate at USP Allenwood. The United States
Attorney has requested authorization from DOJ to seek the death
penalty. On November 21 & 25, 1996, Judge Muir held hearings on
a motion filed by defense coun~el challenging the attorney
visiting procedure at USP Allenwood. Defense counsel objected to
the number of searches (pat and visual) of Hammer to and from
each visit. Defense counsel also objected to non-contact visits.
Attorney Hope Moro assisted the AUSA at the hearings.
In an 31
page opinion dated December 5, 1996, the court denied the
defendant's motion.
16. State of New York v, Marc Johnson, Crim. No. 13048/95
(Supreme Ct. N.Y.)
Federal parole violator Marc Johnson; 24552-053, is housed at MDe
Brooklyn pending the parole revocation hearing by the U.S. Parole
Commission. Johnson is also facing New York state charges for
attempted murder. The Parole Commission denied the District
Attorney's request for production because the Commission was to

7

conduct their revocation hearing first.
New York State Justice
Lott held a hearing on November 21, 1996 to dete'rmine if the
State had violated speedy trial rights. The ISM from the MDC
testified at the hearing concerning the efforts made by the
prosecutors to secure the defendant and concerning the position
of the Parole Commission. Azzmeiah Vazquez assisted the state
prosecutor at the hearing. The state court reserved ruling.
17.

United States v. Solomon, -- CR -- (S.D.N.Y.)

On November 4, 1996, Judge Preska held a hearing on allegations
by Pretrial detainee Amir Solomon, 36098-054, that he had wanted
to attend the trial but was physically unable to do so.
In a
prior proceeding, the detainee had tried to throw a chair at the
Judge.
To no one's surprise, the Judge then found that the
accused waived his right to attend the trial, with re-entry only
with the court's permission. Solomon was trying to argue that
all the proceedings held in his absence were improper because he
was medically unable to apply for reentry. At the hearing, MCC
NY staff testified, concerning Solomon's ability to attend the
court proceedings .. Dominique Raia attended the hearing.
The
court found that Solomon attempt to allege a medical excuse was
not credible and determine that he voluntarily did not attend
the proceedings.
18.

United States v. Muyet, 95 CR. 941 (S.D.N.Y.)

On November 13, 1996, Judge Leisure held a contempt hearing on
why one of his prior orders was not complied with by MCC NY. The
court had ordered that legal materials be dropped off and
delivered to the defendants on a Saturday.
Instead the inmates
did not receive the materials until the following Monday.
Despite written instructions to staff, the materials were
inadvertently placed in the mail room instead of being
immediately delivered. The Warden personally appeared at the
hearing and apologized' to the court for the error.
(Dominique
Raia was at the Mathurin hearing below). The court accepted the
apology.
On November ,20, 1996, the law clerk for the judge asked the
Warden to agree for a one time visit between detainee John Muyet,
38027-054", and a non-family visitor. Arrangements were attempted
for the visit, but the inmate could not contact his visitor and
demanded instead that she be added to his permanent visiting
list. The inmate threatened that if his request as denied, the
Judge would make the Warden appear in court again. The Warden
sent a letter to the court advising him of this situation and has
not had to reappear in court.

8

19.

United States v. Mathurin,

CR

(S.D.N.Y.)

On November 13, 1996, a former Physician's Assistant at MCC NY
testified in the criminal trial of Pierre Mathurin, 42870-054.
As part of his defense to drug charges, the inmate alleged that
he had a leg injury which required him to have a narcotic in his
possession. The former PA testified that the inmate did not have
a leg injury which required him to take a narcotic.
Dominique
Raia attended the hearing.
20. United States v. Leggett, 4:CR-94-0097 (M.D.Pa.)
Defendant Michael K. Leggett, Reg. No. 83644-011 was charged and
found guilty (on November 13, 1995) of assaulting a Unit Manager
at USP Allenwood in April 1994. On March 25, 1996, during the
sentencing hearing, inmate Leggett assaulted his counsel. On
October 17, 1996, after the inmate/defendant was evaluated by at
least two mental health experts and new counsel appointed, a
hearing was held specifically to decide if Leggett was competent
to be sentenced. After the mental health expert testified, USP
Lewisburg Attorney Mike Tafelski testified (Leggett was neld as a
holdover at Lewisburg) that according to a previous P.S.I. from a
1992 sentencing, he acted as his own "attorney" and that during a
conversation Mike had with him he appeared to understand the
significance of the issues discussed. Judge Muir found the
inmate to be competent and sentenced him, on November 4, 1996, to
36 months (and one year supervised release) to run consecutive to
his present sentence:

SETTLEMENTS

AND

AWARDS

1. Miller v, Reno, 4:CV:93-1475 (M.D.Pa.)
Three day trial in EEO case concluded on February 29, 1996 with a
jury verdict adverse to the BOP. The staff member was reassigned
to his prior correctional officer position after serving as a
case manager trainee for 13 months. The staff member alleged
that this reassignment was based on race discrimination.
In
addition the staff member asserted that the reassignment was
retaliatory since it occurred two months after he made a
complaint about racial remarks made by his supervisor. The jury
found for the staff member on both counts. The case finally
settled. We agreed to afford Plaintiff a Case Manager position
at USP Lewisburg, attorney fees of $37,500, and damages of
$15,000.
2. McCarthy v. United States, 4:CV-95-0723 (M.D.Pa.)
Inmate Arthur McCarthy, 49352-080, filed an FTCA complaint
alleging medical malpractice caused him to lose sight in his
right eye. Our medical expert concluded that a two week delay in

9

providing the inmate care for a detached retina was outside the
appropriate standard of care. With the necessary concurrences,
this case was settled for $110,000.
3. Wagner v. United States, Civil No. 4:CV-96-0289 (M.D.Pa.
October 18,1996)
Judge McClure entered summary judgment against the United States
and in favor of Inmate Michael Wagner, 03718-010, in the amount
of $172.90 plus costs. The inmate had been taken to Special
Housing at USP Allenwood and his property was left unsecured for
over three and a half hours. We had argued that the complaint
should be dismissed because an institution emergency kept staff
from securing the property. The court found that the
discretionary function exemption would not apply in this case
because the institution was back to normal operations prior to
the placement of the inmate in SHU. We are recommending against
appeal.
4.

Gonzalez v. United States, 95-CV-7448 (E.D.Pa.)

Inmate Mario Gonzalez, 12380-075, filed a Federal Tort Claims
complaint alleging that his property worth $1682.50 was lost at
FCI Schuylkill after an institution transfer. The return receipt
was signed by staff but the box was never located.
Inmate
rejected our attempt to settle the administrative claim and
brought this action.
Case settled for $750.00.
5.

Jones v. United States, 94-CV-5086 (E.D.Pa.)

This FTCA case was brought by former inmate Rother Jones, Reg.
No. 36662-066, who suffered a massive brainstem hemorrhage on
October 18, 1991, after being transferred from FC! Loretto to FC!
McKean, via USP Lewisburg. Jones had been under prescribed
medication to control hypertension. Approximately 2-3 hours
after arriving at FC! McKean, he suffered a brainstem hemorrhage,
which left him paralyzed from the neck down and affected his
speech. The complaint alleged that the failure to provide Jones
his medication on October 18, 1991 was the cause of his brainstem
hemorrhage. The case was scheduled for trial on November 12,
1996. Case was settled for $65,000 because of lack of records
concerning medication and because of serious nature of injury.
Attachments

10

NORTHEAST REGIONAL OFFICE
LITIGATION OUARTERLY REPORT
FROM 10/01/1996 TO 12/31/1996

LOC

NOM

HC

FTC

BIV

OTH

5

17

6

ANS

PEN

CLD

HIT

33

570

54

19

SET

AWD

4

1

MXR
NER

44

16

SER
NCR
SCR
WXR
CO
TOT

NARRATIVE ANALYSIS
DEFINITIONS;
LOC - LOCATION
NOM - NUMBER OF TOTAL LAWSUITS FILED IN QUARTER
HC - NUMBER OF HABEAS CORPUS ACTIONS FILED
FTC - NUMBER OF FTCA ACTIONS FILED
BIV - NUMBER OF BIVENS ACTIONS FILED
OTH - OTHER ACTIONS FILED
ANS - NUMBER OF LITIGATION REPORTS COMPLETED
PEN - PENDING
CLD - NUMBER OF ACTIONS CLOSED
HIT - NUMBER OF HEARINGS OR TRIALS (INCLUDE INFO IN NARRATIVE)
SET - NUMBER OF SETTLEMENTS (INCLUDE INFO IN NARRATIVE)
AWD - NUMBER OF AWARDS (INCLUDE INFO IN NARRATIVE)
GOVERNMENT ACTION AND DATE OF ACTION - (INCLUDE IN NARRATIVE)

.

11

TORT CLAIMS FIRST QUARTER - FY97 (OCTOBER 1, 1996 - DECEMBER 31, 1996)

Loc

Num

Mxr

I

NER

176

SER

PP

PI

PPPI

WD

Med

Set

Amt

Pen

Den

00

AID

AlP

0

1

0

0

0

0

0

0

0

0

0

6

123

14

3

0

30

25

3590

238

144

0

0

122

0

0

0

0

0

0

0

0

0

0

0

0

0

Ncr

1

1

0

0

0

0

0

0

0

0

0

0

I

Scr

1

0

0

0

0

1

0

0

0

0

0

0

5

Wxr

0

0

0

0

0

0

0

0

0

0

0

0

0

C.O.

0

0

0

0

0

0

0

0

0

0

0

0

0

Sum

179

124

15

3

0

31

25

3590

238

144

0

****

34

12

NORTHEAST REGIONAL OFFICE
FOI/PA REOUESTS OUARTERLY REPORTS
10/01/1996

TO

12/31/1996

NOM

PROC

PEND

OD

A/OD

A/P

124

159

9

-

-

FROM

Loe

CA

MXR
NER

34

SER
NCR

"

SCR
WXR
CO
TORT

NARRATIVE ANALYSIS
DEFINITIONS;
LOC
NOM
PROC
PEND
OD
A/OD
A/P
CA

-

LOCATION
NUMBER FILED IN QUARTER
PROCESSED
PENDING
OVERDUE
AVERAGE NUMBER OF DAYS OVERDUE
AVERAGE LENGTH OF TIME TO PROCESS
CIVIL ACTIONS FILED UNDER FOI/PA ACTS

2

13

NORTHEAST REGIONAL OFFICE
ADMINISTRATIVE REMEDIES OUARTERLY REPORT
FROM

LOC

10-01-96

NUM

DHO

SPH

MED

413

164

10

16

MH

TO

LEG

12-31-96

FD

GRT

DEN

PEN

3

12

329

64

OD

MXR
NER

0

29

SER
NCR
SCR
WXR
TOT
NARRATIVE ANALYSIS

DEFINITIONS
LOC - LOCATION

NOM - NUMBER OF TOTAL AD REMEDIES FILED
DHO - NUMBER OF DHO REMEDIES FILED
SPH - NUMBER OF SPECIAL HOUSING UNIT REMEDIES FILED
MED - NUMBER OF MEDICAL REMEDIES FILED
MH - NUMBER OF MENTAL HEALTH REMEDIES FILED
LEG - NUMBER OF LEGAL REMEDIES FILED
FD - NUMBER OF FOOD REMEDIES FILED
GRT - TOTAL OF NUMBER OF REMEDIES GRANTED
DEN - TOTAL NUMBER OF REMEDIES DENIED
PEN - TOTAL NUMBER OF REMEPIES PENpING
OD - TOTAL NUMBER OF REMEDIES OVERDUE

0

 

 

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