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Fbop Western Regional 3rd Quarter Litigation Report Apr 1 1993 Through June 30 1993

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FEDERAL BUREAU OF PRISONS
WESTERN REGIONAL OFFICE

•

OFFICE OF THE REGIONAL COUNSEL
3RD QUARTER REPORT
April 1, 1993 - J nne 30, 1993
TO:

Wallace H. Cheney
General Counsel

FROM:

Douglas Curless
Regional Counsel

DATE:

•

July 29, 1993

•

•

LITIGATION MATTERS:
Supreme Court activity:

None.

9th Circuit activity:
Hale v. ARCOR CA9 No. 88-15785, 89-15162 en banc opinion May 4,
1993.
The en banc 9th Circuit reversed a panel decision favorable to
inmates. The panel in a 2-1 opinion indicated that for some work
assignments inmates must be considered "employees" under the Fair
Labor Standards Act (FLSA) and, accordingly, be paid minimum wage.
The majority expressly stated it could not make a blanket decision
that inmates were never employees. However, in this case involving
Arizona DOC inmates, the Court found the "emploYment" relationship
with inmates did not stem from any remunerative relationship or
bargained-for exchange of labor for consideration, but from
incarceration itself [quoting Vanskike v. Peters 974 F.2d 806 (7th
cir. 1992); cert. denied, 113 S.Ct. 1303 (1993)]. The 9th Circuit
held the labor provided to ARCOR by Arizona DOC inmates working for
programs structured pursuant to the state's requirement that
prisoners work at hard labor is labor belonging to the institution
and does not entitle inmates to minimum wage.
Lahey v. Floyd CA9 No. 92-55511 April 27, 1993.
A 9th Circuit panel has given us some further direction regarding
Mills v. Taylor and jail time credit (JTC) under the sentencing
guidelines and 18 USC § 3585 (b). The panel indicated third party
custody as a condition of pretrial bond release is not sufficient
restraint of liberty to qualify for JTC pursuant to 18 USC § 3585
(b). Inmate was released to the custody of his brother and had to
be at his brothers residence from 10:00 p.m. until 6:00 a.m. and
c~~!d n~t be away frc~ the ~~~idc~cc f~r :o=~ th~n 24 h~~~~.
Lutar
his bond conditions were changed so he could stay at his own house.
The panel indicated release on bond under these conditions did not
approach jail type conditions.
u.S. District Court activity:
u.S. v. carmichael CR 92-335 HRF D. Oregon.
Inmate walked away from FPC Sheridan.
Was recaptured within 2
weeks.
Trial held April 26, 1993.
Inmate found guilty on April
27, 1993. Mary Sullivan monitoring.
Wilmer v. Meyers C 92-1145 FMS N.D. Cal (San Francisco).
Bivens case against staff at Fcr Dublin. Inmate Wilmer refused to
be strip searched before placement in SHU pending investigation.
Wilmer overpowered the two female Correctional Officers who were
attempting the strip search. The Lt. and another male correctional
officer had to restrain Wilmer while female CO's wrapped her in a

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sheet and conducted a strip search. Inmate demanding $750,000 in
damages. Trial set for September 20, 1993. AUSA Paul Solon and
Jenifer Grundy handling.
u.S. v. Diane Nevell CR 92 653 JMR
D. AZ (PHX)
Wife of inmate charged with introduction of contraband (drugs in
the visiting room hidden in infant's clothing). Convicted by jury
on 5/6/93. Jane Haschmeyer monitoring.
Alexander v. Perrill CIV 87-582-TUC-RMB D. AZ (TUC)
Alexander is a former inmate who prevailed in a habeas action
convincing the District Court he had not received enough foreign
j ail time credit. The Court granted his habeas request and ordered
immediate release. Appeal was not sought because of the time lag
in getting appeal authority from the Department and delay in
getting cases argued and decided in the 9th Circuit. Inmate filed
a Bivens suit against BOP staff.
Inmate contends his sentence
recalculation resulted in his late release from custody.
Credit
had been erroneously awarded by an ISM at another institution. To
further complicate matters the ISM at this institution is now
deceased.

•

BOP and the u.S. Attorney's Office for District of Arizona filed a
motion for summary jUdgement and qualified immunity for all
defendants. All defendants were dismissed with the exception of
Warden Bill Perrill and ISM Luis Rivera. In a 2-1 decision the 9th
Circuit denied our appeal for qualified immunity for the Warden and
ISM for their alleged lack of response to the inmates claims for
foreign jail credit. only Central Office can grant foreign JTC in
conjunction with DOJ Office of International Affairs. Neither the
Warden or ISM has authority to award foreign jail credit.
The ca~e ~a~ rc~a~dcd t~ U~DC in Tucson. Plaintiff s6~ks ~G25,OOO
in damages. Discovery has been concluded. AUSA offered to settle
with plaintiff for $30,000 (we were not consulted). DOJ would not
authorize a monetary settlement. in a Bivens case.
Pretrial
conference set for August 4, 1993. We anticipate trial this fall.
AUSA Gene Bracamonte, paralegal Tom Byron, and Valerie Stewart
handling.
united states v. Dale DeNoyer CR-93-306 JSL C.D. Cal.
USP Lompoc inmate prosecuted for manufacturing a weapon in UNICOR.
AUSA Julie Ryan prosecuted in the Central District of California.
One day trial resulted in guilty verdict.
Sentencing set in
October 1993. Matt Carney monitoring.
u.s. v. Johnathan George
S.D. Cal (San Diego)
MCC SD pretrial detainee awaiting trial on federal felon in
possession of a firearm charges was writted from custody by San
Diego D.A. for trial on minor state charges.
After appearing in
state Superior Court on June 2, 1992 inmate assaulted a Deputy

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Sheriff, took her revolver, and escaped.
shot and killed the driver, and escaped.
October 5, 1992.

George stopped a car,
He was recaptured on

George has 3 federal charges pending.
Felon in possession of a
firearm (original federal charge), escape from federal custody
(June 2, 1992), and felon in possession of a firearm (recapture
October 5, 1992).
George was tried and convicted of all three
charges in June. sentencing is set for September. George faces 3
state charges from the events of June 2, 1992. AssaUlting a law
enforcement officer, escape, and capital murder. State trial for
assault/escape/murder is continued to February 1994.
Family of murder victim has filed a $2,000,000 FTCA claim against
BOP, USMS, and San Diego Sheriffs Office for negligence resulting
in
escape
and
murder.
Andrea
Dahlsten
handling
tort
claim/monitoring criminal cases.

u.s.

v. Raymond paige/George Davis CR 92-760 S.D.CA (San Diego)
Inmates at MCC San Diego were charged with introducing drugs into
MCC San Diego.
All inmate defendants pled guilty on 5/7/93.
Andrea Dahlsten monitoring.

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u.S. v. Deloney CR 92-164 RGS D. AZ (PHX).
Staff member pled guilty to accepting a bribe to
contraband into FCI PHX. Jane Haschmeyer monitoring •

introduce

vigil, et.al. v. MCC San Diego et.al.
BOP was served with a Bivens complaint and summons on July 1, 1993.
Two deputy u.S. Marshals are seeking $100,000 each ($50,000
compensatory/$50,000 punitives) for being unlawfUlly detained by
staff at MCC San Diego.
The deputies returned a mentally ill,
:::~icid~l in:Uwta to :·~cc after a suicide att':Ulpt at i·iCC Sal1 D.i~yo. He
had been confined in an area hospital. Upon his return the inmate
was obviously psychotic and had indicated he had attempted suicide
on the way to MCC. The institution was under orders not to accept
inmates in this condition. The Marshals attempted to drop him off
and staff refused to accept the inmate. A court order was obtained
after approximately 1 hour and the Marshals left the institution.
Andrea Dahlsten handling •
. EEO/FOIA Cases:
Leonardo Stewart v. Ouinlan, CIV 91-707 RMB (D. AZ-TUC)
Racial discrimination suit settled after going through EEO
administrative process. EEO recommended $150,000 and reinstatement
to position. AUSA settled for $79,615.77 and no reinstatement (for
all claims).
StipUlated Agreement entered 4/12/93 with paYment
within 30 days for Final Order of Dismissal. Funds came from DOJ
jUdgment fund •

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People of California v. Emdy
Los Angeles D.A. and defense counsel both have requested inmates
Central file via FOI request.
Emdy murdered his brother for
informing on a third brother (while incarcerated with the state).
Emdy the defendant and Emdy the victim did time together at USP
Lompoc. Central files must be produced by trial date of June 6,
1993.
Sellers update: We have received numerous inmate requests to
correct .. inaccurate" information contained in PSI's in I ight of the
OP's Memo issued by Central Office.
Alan Ellis, Esq. a self
proclaimed post conviction relief expert has widely dispersed a
newsletter indicating BOP must clear up inaccurate information
contained in PSI's. We are responding to inmates that PSI reports
are records generate~and maintained by the Courts and mandated by
FRCrimP #32. The sentencing Court is the "record custodian.
BOP
receives a copy of the record. If the inmate wants to change the
record, he/she needs to seek that change with the Court or USPO.
We currently face one lawsuit filed by an FCI SHE inmate against
Kathy Hawk, Pat Kane, Wally Cheney, and Doug Curless over
information contained in a Post Sentence Report (filed in the
District of Columbia)~

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UN7COR and Environmental 7ssues:
On August 17, 1993 ~ California EPA has called a meeting of
Potentially Responsi~~e Parties (PRP's) to discuss environmental
cleanup of the busineSs site of Omega Chemical Company in Southern
California.
FPC Boron has been listed as a PRP because Omega
received spent solvents from Unicor operations at FPC Boron.
occupational Safety and Health Administration (OSHA) has increased
its inspection activity tl'li~ pa;:;t yUelL Lt:!L.
Tht:!y have conducted
inspections at" 7 institutions in WXR. The primary focus of these
inspections is UNICOR.
OSHA has indicated fines will be levied
against institutions that don't correct OSHA deficiencies.
MATTERS OF 7NTEREST:

c

A recent trend in the:: District Courts in the Western Region finds
Judges running 924(c) gun counts concurrent with other sentenced
counts, contrary to statute. We have been contacting USPO's and
AUSA's to notify them of our problem in computing the sentences.
They indicate they are not willing to appeal.
TRA7N7NG AND EDUCAT70N

April 13-15 Valerie stewart attended the AGAI Environmental Law
Seminar in San Francisco.
April 19-May 7 Janelle Brock attended FLETC for BOP basic training •

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April 22 Tim Roberts was guest speaker at pepperdine School of Law
on the topic of sentencing issues .
May 24-28 Janelle Brock TOY to FCI TI: June 1-4 TOY to MDC LA.
May 25, 1993 Legal, DHA/DHO, CCM's and Correctional services toured
Pharm Chem Labs in Menlo Park, CA.
June 8-10, 1993 AGAI/BOP training at MSTC Aurora, Co. Presenters:
Doug Curless, Valerie Stewart. Attendees: Tim Roberts and Mary
Sullivan.
June 22-24 Valerie Stewart and intern Reg Webster attended EPA's
federal facilities compliance conference in San Francisco.
staff News:
Janelle Brock has been selected as an Attorney/Advisor for the LCI
branch in Central Office. Her reporting date is October 12, 1993.
An Tran has been selected as the DOJ honors program attorney for
Western Region. Her reporting date is August 22, 1993.
Institutions
USP Lompoc: Attorney/Advisor Matt Carney arrived at USP Lompoc on
April 24, 1993 •

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MDC Los Angeles:
Ed Ross rejoins legal.
Ed has held posts as
acting Deputy HSA and Acting Unit Manager for the past 9 months •

6

WESTERN REGIONAL OFFICE

QUARTERLY REPORT
TORT CLAIMS

April 1, 1993 through June 30. 1993
3RD QUARTER - FY93

RCVD

INST

iNjURY

APPA'

.'
"

"

,

;:::;:;,:,;::"::

"':'AMOUNf

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

,;.,.,,-,' .

DEN:'

o[ " '.r"
·::?:·:PENDING.'.:,': I <.,··....
...
.-+.,',

.--.-.-

,',-.

,

:'

5

2

3

2

143.00

2

11

5

LOF

6

2

4

3·

166.80

3

20

7

36

29

7

24

1,874.64

20

97

42

10

8

2

5

2,900.87

1

31

10

NEL

2

1

1

none

none

none

8

5

PHX

2

1

1

4

295.26

2

36

14

11

10

1

5

841.96

4

27

16

SAF

5

5

none

2

65.95

1

14

5

SDC

17

14

3

1

84.53

5

34

11

SHE

19

16

3

4

2,674.25

5

33

13

TRM

14

9

5

8

969.65

23

34

14

. TON

8

7

1

6

604.21

3

20

10

WXR

3

2

1

none

none

1

5

2

TOTAL

138

106

32

64

10.621.12

70

370

154

LdS

PLE

.

PROP

BRN
:·LoM>·

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•

UNITED STATES GOVERNMENT

"'''', July 7, 1993
REP\.YTO
ATTN OF:

SUBJECT:

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memorandum
North Central Regional Office Kansas City, MO 64153

/1 /
V

John R. SHaw, egion 1 Counsel
I
MONTBIJv REPORT/QUARTERLY REPORT
/
/

TO:

Wall~cl H. Cheney, Assistant Director
General Counsel and Review

PENDING TRIALS/HEARINGS

•

Duarte v. U.S.A., Civil Number 92-S09-WDS, FILS, USP Marion. In this action the inmate
alleged the loss of personal property in his placement in administrative detention at USP
Leavenworth and his subsequent transfer to USP Marion. Claimant asserted a loss in the
amount of $884.30. Our review of the administrative claim and subsequent suit disclosed
a possible loss of a few minor items of personal property. Accordingly, the inmate was
offered $54.00 in settlement of his claim, but refused the offer.
A bench trial is scheduled for Friday, July 9, 1993, at the USP Marion Courtroom.
There were no other reports of pending trials or hearings received from the institutions
within this region.

DECISIONS/SETTLEMENTS/CASES OF INTEREST

Gladson v. U.S. Penitentiary, 92-3505, D. Kansas, USP Leavenworth. Plaintiff alleges that
defendants have improperly withheld records which he requested pursuant to the Freedom
of Information and Privacy Acts. Specifically, he claims that certain medical records were
never released to him. Institution staff were never informed of the inmate's request for
medical records and, upon notice of the inmate's request, provided him access to the
releasable portion of his medical file.
On June 2, 1993, the Court dismissed this action on the basis the inmate failed to pursue his
administrative remedies and mootness when he was provided access to releasable medical
files.

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Sellars v. Carlson, 80-4038, Southern District of Illinois, USP Marion. This action relates to
the inmate's complaint of ineffective medical treatment for his diabetic condition. The case
was appealed following a dismissal and subsequently reopened. The court has appointed
counsel for the inmate and is considering whether to allow discovery. At this point we have
heard nothing regarding discovery in this case. We note that, while inmate Sellars was pro
se, he was allowed extensive discovery.
Bellecourt v. USA, 92-1818MN and 92-2002MN, 8th Cir. Court of Appeals, FMC Rochester.
Plaintiff appealed the District Court's dismissal of his medical malpractice action. The basis
of Plaintiffs appeal is whether a grossly negligent misdiagnosis is a form of deliberate
indifference prohibited by the Eighth Amendment of the United States Constitution, even
where a physician states a personal belief that he has followed a reasonable course of
treatment. Dr. Wynn, a defendant, was a government contractor. He cross-appealed the
trial court's conclusion that he was an independent contractor rather than an employee.
The Court of Appeals affirmed the trial court finding (1) the plaintiff has not proven
presentment of an administrative claim, (2) the contract physician was not deliberately
indifferent, and (3) the trial court properly dismissed the pendant state action for medical
malpractice because the plaintiff failed to file a timely notice of expert review. Dr. Wynn's
cross-appeal was dismissed as moot

•

FTCA ADMINISTRATIVE CLAIMS

The FTCA administrative claim concerning the alleged wrongful death of Eddie Bishop
Jones is pending response. We continue to research this matter and collect further
information regarding the law and factual issues in this claim. Our focus at this point is in
determining whether the claimant, Mrs. Jones, is actually the mother of the deceased inmate
and whether she was timely (for purposes of the FTCA claim) appointed the legal
representative of the estate.

STAFF TRAVEL AND LEAVE

•

Daryl

JULY 1,2, & 6

Annual Leave

Paul

JULY 1,2, & 6

Annual Leave

Sonya

JULY 1 & 2

Annual Leave

Gary

JULY 15, 16, 19, 20, & 21

Annual Leave

AMY

July

Annual Leave

2

LITIGATIOH

•

LOC

NOM

HC

FTC

BIV

OTH

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1"-'

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PEN

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HIT

SET

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TOT
NARRATIVB AlIALYSIS
OE1INITIQJfl
LOCATION
NUN - HUKBBR OP TOTAL LAWSUITS PILED IN QUARTER
BC - ·KUKB.. O. BABBAB CORPOS ACTIONS PILBD
PTC - NUXBIR OP PTCA ACTXONS PILED
BIV - HttMBI. OP DIVENS ACTIONS PILED
OTB - OTBBa ACTIONS PILBD
AH8 - HUXBB. O~ LITIGATIOH REPORTS COMPLETBD
LOC -

•

PEN -

PBJlDDlG

CLD - HUKBI. OP ACTIONS CLOSBD
BIT - NUKBIR OP HBARINGS OR TRIALS (INCLUDB INFO IN NARRATIVE)
SBT - NOHBBR 07 ~~TT~~!!'!'! (!!!c!:~! I~ I:: :~'l':VI:)
AD - NOXBI. OJ' AnJU)S (IHCLtJDI IlQ'O IN NARRATIVE)
GOVEJtHH1!1I'1' ACTION AND DATB OP ACTION -

•

(INCLUDE

IN NARRATIVE)

...

,
TORT CLAIKB

•

Lee

NOM

PROP

PI

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I A.j.,

'It)'

APPR

AMT

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PEND

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7(7'

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, •

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i

, TOT

NARRATIVE

ANALYSIS

DBfINITIONS
Lee - LOCATIO.
NUX - HUKBBa ~ZLED nr QUARTZR

PROP - PROpaan CUD(
PI - PBUODL IHJURY CUlM

•

~
AKT - TOTAL AIIOmr1' UPROVID

APPR - APPROVBD

OBH - OS.IID
PBHD - PBHDIBCI
OD - NmlBBR OVBRnOB .,
AIO - AVIlUGB HtrKBBR OP DAYS OVERntJB
AlP - AVEUO. LEHOn:: 01' TIKI TO PROCBSS
: ....1

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pal

UNITED STATES GOVERNMENT

memorandum
ounsel, NER, BOP
eUaJlCT,

TO.

Quarterly Report -

, 1993 through June 30, 1993

Wallace H. Cheney, General Counsel & Asst. Director, BOP

Attached are the statistics requested for the quarterly report
tor the third quarter of FY 1993. I am also enclosing a diskette
with a copy of this report.
Following is a synopsis of the significant cases in litigation
during the quarter:
SIGNIFICAHT RECISIONS, HIABINGS OR TRIALS
1.

•

Bourgeois y. united states, 3:CV-91-197 (M.D.Pa.)

Inmate Louis Bourgeois, 39165-066, at USP Lewisburg brought this
Federal Tort Claim Act complaint requesting damages for a slip
and fall down steps in September 1990. Inmate alleged that he
slipped on apple scraps and banana peels left on an outside
stairway at USP Lewisburg. Trial was held from April 14-20, 1993
before U.S. Magistrate JUdge Blewitt. USP Lewisburg Attorney
Hope Moro assisted AUSA at trial. The court has not issued a
u~~l~lon iollowinq the trial.
2. Worthington y. Bureau of Prisons, Civil No. 89-7048 (S.D.N.Y.)

•

This case was discussed in our last two quarterly reports. FTCA
case for medical malpractice brought by former inmate Robert
Worthington, Register No. 12930-054, alleging improper treatment
at FeI Otisville. worthington was received at FeI otisville on
January 8, 1987 with advanced glaucoma in his left eye. He
eventually lost the vision in his eye sometime between July 1987
(according to Worthington) and December 1987 (according to BOP
medical records). Our medical expert does not think that the
blindness in the eye was caused by his medical treatment in the
BOP. However, our expert feels that Worthington had less than
optimal follow up by an ophthalmologist during his incarceration.
our main defenses at trial are expected to be lack of causation:
that the blindness was to occur in any event and was not the
result of BOP negligence, and contributory negliqence: inmate did
not follow prescribed treatment prior to incarceration and during
incarceration. Four settlement conferences were held and Hank
Sadowski was present in the last three (January 21, May 26, &
June 2, 1993). No settlement was reached and the case is
OPTIONAL.

(REv. 1..0)

1"0"" NO. ID

a .... I'PM.. (II C..,.) 101.1t ••

101"'"

P02

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-2-

3. United States y, Salameh, 53 93 CR 0180 (S.D.N.Y. June 10,
1993).
I:

Three of the pretrial detainees indicted for the bombing of the
World Trade Center in New York tiled motions before the criminal
trial jUdge (Judge Duffy) challenq1ng aspects of pretrial custody
at MCC New York. The detainees challenqQd their continued
placement in administrative detention, and the following
conditions of confinement: exercise, clothing, bedding, social
phone calls, access to'counsel, and inability to worship with
fellow Moslems. In a 19 page ruling, JUdge Duffy denied the
motion, finding reasonable the Warden's security concern of
potential retaliation from other inmates. The court also
rejected allegations cQncerninq the conditions of confinement.
SETTLEMENTS OR AWARDS

•

1.

.c

Cardiff Circle Ass'n v. United states, 92 CV 4323 CD.N.J.)

This Federal Tort Claims Act complaint was filed as a result of
the accidental fire damage to property by FCI Fairton SORT team.
On April 15, 1992, the FeI Fairton SORT team were conducting
tactical exercises on P~aintiff'a property without his
permission. Plaintiff had given permission to local police to
us~ his pxupcrty £UL ~r~lning exercises.
The local police told
the FCI Fairton SORT team they could use the property. The SORT
team tossed two smoke grenades into a building. These grenades
caused the entire building to catch fire. The fire was
extinguished, but the ~ilding was destroyed. A warning on the
smoke grenades stated that the device was for outdoor use only
and that it can cause fires. Plaintiff did not accept a
$10,000.00 settlement offer of his administrative tort claim.
We had admitted liabili~y in the litigation. The only remaining
issue was the amount of damaqes. Plaintiff had sought
$63,500.00. Case settled for $25,000.00.
2.

•

--.

Sheptin y. United States, et al., 93-CV-34 (W.D.Pa)

Inmate Louis Sheptin, Register No. 90355-024, presently housed at
USP Leavenworth, filed a combined Bivens and FTCA action alleging
medical malpractice and deliberative indifference to medical
needs at FCI McKean from February 19, 1992 throuqh February 23,
1992 •

U 0

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•

;.,:i

1

P03

A 1..1

-3-

Sheptin Case (Cont.)
On February 19, 1992, Shept1n was returned to FCI McKean after
being removed on a writ ad test. HSA Heath performed the medical
screening on Sheptin, but failed to fill out the required
screening form. Heath said he gave his notes to Physician's
Assistant Calvo. Sheptin alleged he told Heath, Calvo, and other
medical staff on rounds in the Special Housing Unit repeatedly
that he was on medication (Dilantin) for a seizure disorder and
that he needed his medication. (Medical records support his need
for this medication.) Calvo confirmed that Sheptin requested his
medication but Calvo said he could not find the medical file.
The medical tile tor Sheptin was in the "writ hold" section of
the medical records area. On February 23, 1992, Sheptin had a
grand mal seizure and was taken to an outside hospital. Sheptin
alleged that as a result of this seizure, he fell and injured his
head and shoulder. Later examinations (including x-rays) showed
no evidence of permanent injury. Internal investigation
concluded that medical staff were negligent in not obtaining the
medical file and in not providing Sheptin his medication.
Sheptin agreed to accept $3500.00 in full settlement of this
litigation (FTCA and Biyens). A special assessment ot $500 will
be offset from this amount.
3.

Smith y. Lam, 92 eiv. 1876 (S.O.N.Y.)

John Smith, a Witsec inmate a~ Fel o~isville, riled this B1yens
action alleging staff member Lam was deliberately indifferent to
his safety at work. On January 11, 1991, Inmate Smith sewed
through his finger while working at a sewing machine in the
UNICOR Glove tactory in the Witsec Unit. Smith alleged that the
sewing machine did not have a safety guard around the needle. At
the time or the injury, Lam was the UNICOR foreman responsible
for the sewing machines. Smith alleged that Lam knew that the
sewing machine Smith was using should have had a safety guard but
did not. Smith alleged that, prior to the injury, he asked Lam
for a safety guard for. his sewing machine and Lam told him guards
were not needed. The major constitutional claim was that Lam was
deliberately indifferent to Smith's safety needs.
Lam executed a June 9, 1992 declaration, in Which he claimed that
when the new sewing machines arrived at FCI Otisville, he
personally placed the safety guards on the machines. Lam implied
that the inmates removed the safety guards to speed performance

•

P04

•

-4~am

Case (Cont,)

on the machines. Lam said he was not aware that the safety
guards were not on the machine Smith was working on. Lam denied
that smith asked him for a safety guard prior to the accident.
Lam also responded to a host of other allegations made by smith
in the complaint. When the AUSA requested a meeting- with Lam to
go over the case, Lam admitted to the paralegal at FeI otisville
that he lied in his declaration,
The key material misstatements were the following:
(1) Lam
admitted that he knew that the safety guards were not installed
upon the machine Smith was working on, and (2) he also admitted
that he did not install safety guards on the machines when
received at FeI otisville. He further admitted a variety of
minor details were false.

•

The United States continued to represent Lam because important
interests had to be protected in this litigation. Information
concerning the witsec inmate had to be kept secure and there was
potential for bad precedent on work related issues. Lam was
advised that representation would continue but that settlement
would be explored. After the AUSA deposed the inmate, the inmate
agreed to settle the case for $100.00. Lam was advised that if
he agreed to the settlement that the money would be his personal
obligation. Lam was also advised that he could request
indemnification, but there was no assurance that it would be
approved. Lam agreed to the settlement and the case was
dismissed on June 29, 1993.
4.

Salami v, Brennan, Civil No. 93-0459 (M.D,PA.)

Federal Tort Claims Act case filed by inmate Oscar A. Salami,
Reqister No. 36430-053, for lost property. Salami alleqed that
his pair of sneakers were stolen in March 1992 at USP LewisburgHe later found the sneakers in possession of another inmate and
got into an argument. Staff intervened and the sneakers were
confiscated as possible contraband. The other inmate could not
verify ownership and staff were prepared to give Salami the
sneakers. The sneakers could not be located. Case settled for
one pair of sneakers .

•

POS

•

-5-

PENDING PROBLEMATIC LITIGATION

1.

•

U.S. y. Hillstrom, No. 92-7237 (3d Cir. March 12, 1993).

The Third Circuit remanded this sentencing guideline ease for
additional information concerning the nature of Federal Prisons
Camp - Allenwood. At issue is which sentencing guideline should
apply to an escape from FPC Allenwood: the guideline applicable
to walkaways from a community corrections center or the guideline
applicable to escape from a secure facility. The Third Circuit
instructed the district court to consider whether FPC Allenwood
is sUfficiently similar to a CCC in its purpose and in its
security and safety considerations. The resentencinq hearinq in
this case has been postponed. A separate Allenwood escape case
resulted in a sentencing hearing on April 29, 1993 before JUdge
Muir in Middle District of Pennsylvania. Executive Assistant
Peter Weld testified concerning the distinctions between FPC
Allenwood and CCCe. Judge Muir issued an opinion in United
states V. Petro, 4:CR-92-2~2 (M.D. Pa. May 10, 1993), which found
that FPC Allenwood was not a facility similar to a CCC. The
Defense Attorney is taking an aggressive approach in the
Hillstrom resentencing. I expect CCM Ed Hughes (to testify about
CCCs) and Peter Weld (to testify about FPC Allenwood) will be
called as witnesses in the rescheduled Hillstrom resentencing
before Judqe McClure.
EnC!OSUres:

•

Statistical Reports

u o.

U

G.

::::l..:ll

U l:::i

;

.:) 1

POS

A 1,,1

HQRTQAST BEGIQIW, OFFICE
LITIGATIOH QQAR'1'DLX BEfORT

FROM

LOC

04'01/93

TO

06/30/93

N'OJf

He

FTC

BIV

OTH

ANS

PO

CLD

8/'1'

8ft

AWD

59

15

7

30

7

57

267

46

3

4

0

KXR
HER
SD

HCR

sea
WXR

co

•

TOT

NARRATIVE ANALYSIS
DlFIlfI'l'IOKS;
Lee - LOCATION

NtDI - NUMBER OF TOTAL LAWSUITS PILED 1M QUARTER
He - JlUMBBR OP HABEAS CORPUS AcrIOKS PILED
FTC - N'DJCBBR OP PTCA ACTIONS FILED .
SIY - IJUJlBER OF BIVEK8 ACTIORS PILED
OTH - OTHER ACTIONS FILJm
ANS - NUMBBR OP LITIGATION REPORTS COMPLETED
PBII - PBNDXlfG
CLD - IIUJIBKR OF AC'l'IO.S CLOSBD
HIT - IfUlCBKR OF HEARINGS OR TRIALS (IlfCLUDB INFO 1M NARRATIVE)
SB'1' - IfUJlBBR OF SJWrLEI(BNTS (IRCLDDB INFO IN NARRATIVE)
AIm - IMCBBR OF AlfARDS (INCLUDB IKPO IX NARRATIVE)
GOVERNMBNT ACTION AHD DATB OF ACTION· - (INCLUDE IN RARRATIW)

•

.

06.

02.

93

a

6

: 3

1

POS

ANI:

•
NORTHEAST REGIONAL OFfICE
ApMINISTRATIVE REMEDIES QUARTERLY BEPORt
FROM 04-01-1993

•

TO 06-30-1993

LOC
HXR

NUM

DHO

SPH

HED

HK

LEG

FD

GRT

DEN

PEN

00

NER

292

10'

10

19

0

15

6

21

217

57

0

SER
NCR
SCR
WXR
'rOT
NARRATIVE ANALYSIS
DEfINITIONS
LOC
HUM
DHO
srN
Htp
HH
LEG
FQ

•
-

GET -

pEN PEN 00 •

•

LOCATION
NUHBER or TOTAL AD REMEDIES FILED
HUMBER or DHO REMEDIES FILED
HUMBER or SPECIAL HOUSING UNIT RIHmpIZS
NUMBER or MEDICAL REMEDIES rXLID
NUMBER OF MENTAL HEALTH REMEDIES FILED
HUMBER OF LEGAL REMEDIES FILED
NUMBER or FOOP REMEDIES FILED
TOTAL or NUMBER OF REMEDIES GRANTED
TOTAL NUMBER or REMEDIES DENIED
TOTAL NUMBER OF REMEDIES PENDING
TOTAL HUMBER or REMEeIES OYERPUE

rILEp

.
\

..

..

06.

02.

06 : :3 1

93

POS

At..t

Tort Claims Third Quarter - FY93 (April 01, 1993 - June 30, 1993)
Loc

NER

Hum
154

pp

123

PPPI

PI
24

4

we

Med
0

3

Set
27

AnInt
5469

PI
PPPI WD
Hed Set Amnt Pen Den 00
A/O A/P • Med ...

•

222

40

00
O.

A/O

A/P

0

94

Number of claims filed •••••..•.
Personal Property claims •••••••
Personal ~njury claims .•..•.•.•
Both PP & PI claims ••••.•••••••
Wrongful Death claims ••••••••••
Medical claims .•••••••••••.••.•

=< D-Accept <= 06/30/93
~< D_Accept <~ 06/30/93
=< D_Accept <= 06/30/93
=< D_Accept <~ 06/30/93
=< D_Accept <= 06/30/93
=< O_Accept <= 06/30/93
=< D_Closed <= 06/30/93
=< D_Closed <= 06/30/93
Pendinq/open claims ••••.•••••••
Entire Database
Number of· claims Denied ••.•..•• 04/01/93 =< D_Closed <= 06/30/93

04/01/93
04/01/93
04/01/93
04/01/93
04/01/93
04/01/93
Settled/approved claims •••••••• 04/01/93
Amount paid •••••••••••••••••••• 04/01/93

....

...

Entire Database
Number of claims OVerDue ••.••.•
Avq number of days Overdue ••••• 04/01/93 =< D_Closed <- 06/30/93
Avq number of days to Process •• 04/01/93 -< O_Closed <= 06/30/93
PIM+

WDM~
...

PPPIM+ PPWDM

• Press any key to continue

•

Den

Time Period

Variable Definition

Hum
PP

Pen

• wo

= W'D+

PPWD

LITIGATION - 1993 SECOND QUARTER REPORT

I

HC

FTC

BIV

OTH

ANS

PEN

CLD

SET

40

21

6

11

2

35

132

117

HIT
4

NER

67

23

5

26

8

59

254

28

3

3

SER

45

20

2

15

8

45

NIA

41

0

0

0

NCR

68

33

9

25

1

NIA

572

46

0

0

0

SCR

45

19

5

20

1

32

254

21

9

0

$34,901

WXR

55

23

7

19

5

52

579

30

9

4

$22,100

CO

10

3

0

5

2

7

108

22

0

0

TOT

330

142

34

121

27

230

1899

305

25

10

NUM

AWD

3

0
$48

0
$57,049

DEFINITIONS
NIA
LOC
NUM
HC
FTC
BIV

--

_CLD HIT SET AWD -

Not Available - no method for tracking this information
Location
Total Number of Lawsuits Filed in Quarter
Number of Habeas Corpus Actions Filed in Quarter
Number of FTCA Actions Filed in Quarter
Number of Bivens Actions Filed in Quarter
Other Actions Filed in Quarter
Number of Litigations Reports Completed
Number of Actions Pending
Number of Actions Closed
Number of Hearings or Trials (Narrative Analysis Follows)
Number of Settlements (Narrative Analysis Follows)
Amount of Awards

LITIGATION ANALYSIS
The number of lawsuits filed in the second quarter was slightly less than in the
first quarter, with 354 filed in the first quarter and 330 filed in the second
qua~ter.
The amount of monetary damages awarded this quarter was significantly
less than in the first quarter, with $253,650 in the first quarter and $57,049 in
this quarter •

•

1993 QUARTERLY LITIGATION REPORT

SECOND QUARTER
I. HEARINGS OR TRIALS
MID-ATLANTIC REGION
Peterson v. Bogan, Eastern District of Michigan
The plaintiff, and inmate at Milan, filed a Bivens case because
the Warden denied the inmate's request to marry a former contract
teacher. On February 8, 1993 a summary judgment hearing was held
and the court ruled that the Warden acted within his discretion
in denying the marriage. No precedent existed for the
plaintiff's claim. The court found that the Warden was entitled
to qualified immunity and dismissed the case.
Bryant v. Muth, U.S. Court of Appeals for the Fourth Circuit

•

The Bureau appealed a court's ruling that a violation of the
inmate's constitutional right of access to the courts may have
occurred when staff refused to return legal research which Bryant
had recorded on contraband computer diskettes in violation of BOP
regulations. The District Court denied qualified immunity for
the Bureau employees. On March 3D, 1993 the Fourth Circuit heard
oral arguments on whether BOP employees are entitled to qualified
immunity. The government argued that because the employees
followed valid Bureau regulations they were entitled to qualified
immunity. A decision is expected this summer.
Shuell v. Dept. of Justice, Eastern District of Michigan
An inmate with a consecutive state life sentence, attempted to
block his release from FCI Milan. The inmate sought to extend
his federal incarceration by several years by waiving statutory
good time credits. In addition, the inmate's attorney was
granted an ex parte temporary restraining order. In a hearing
held on February 8, 1993, the government successfully argued that
the inmate had no liberty interest or other right to be housed or
confined by the federal government, and when his federal sentence
was determined to be satisfied, he had no right to remain
incarcerated. He was placed in the custody of the State of
Michi9an. The inmate's attorney has appealed to the sixth
Circul.t.
united states v. Mercado, Eastern District of Kentucky
Dr. Mercado was accused of accepting a bribe from an FCI Ashland
inmate in exchange for expediting the inmate's medical care. The

•

SIIAIl£DOC\LJ:T8IUfCB\LJ:TRPT.2Q

Page 1

•

defendant argued that he thought the money was given as a loan
and on March 1, 1993, a federal jury returned a verdict of not
guilty.
NORTH CENTRAL REGION

There were no reports of pending trials or hearings received from
the institutions within this region.
NORTHEAST REGION

united states v. smith, Eastern District of New York
In July, 1992 the court sentenced smith to a three year sentence
consecutive with his state term. The court recommended that the
defendant be allowed to serve his federal sentence first before
being turned over to state custody to complete his pending state
sentence. At a hearing, the Bureau argued that it could not
comply with the order because the state sentence would continue
to run. The court granted the Bureau's motion and ordered smith
returned to state custody. The court held that any consecutive
federal sentences do not commence until the prisoner completes
service of his state sentence and is delivered to federal
custody.

•

SOUTH CENTRAL REGION

Young v. Meese, Northern District of Florida
A former employee challenged his firing
toward another staff member and alleges
based on racial motivations. The trial
and has been completed. A decision has

for inappropriate conduct
that his dismissal was
began on April 6, 1993
not yet been rendered.

SOUTHEAST REGION

Foley v. Caulfield, et al., Northern District of Florida
In 1990, an inmate whose sentence was nonparolable was improperly
released on parole and was returned to custody in 1991. The
plaintiff claimed that he should be released from prison because
returning him to custody after the erroneous release violated his
due process rights. On April 7, 1992, in a motions hearing, the
court held that the inmate was not required to exhaust his
administrative remedies to obtain relief and ordered the BOP to
release him.

•

Page 2

•

Glass v. united states, Northern District of Florida
An inmate at FPC Pensacola requested that the time he spent in
st. Petersburg Community Treatment Center in 1991 be credited to
his sentence as time served. On January 14, 1993, the court
dismissed the case on the merits, holding that pre-sentence and
post-sentence inmates are not similarly situated and, therefore,
treating them differently does not constitute an equal protection
violation.
WESTERN REGION
Martin and San Francisco Chronicle y. Rison et al., u.S. Supreme
Court
On March 22, 1993 the Supreme Court denied petition for
certiorari filed by Dannie Martin and the San Francisco
Chronicle.
united States y. santiago

Central District of California.

An inmate from USP Lompoc was charged with the murder of another
inmate. santiago was tried and convicted of murder on January
12, 1993.
united States v. Deloney, District of Arizona

•

A staff member was charged with introducing six ounces of
marijuana and one ounce of cocaine into FCI Phoenix. A three day
trial concluded on March 11, 1993. The staff member pled guilty
to a five year bribery felony. The staff member also agreed to
debrief and take a polygraph about other staff members who might
be introducing contraband to the institution. Sentencing is
tentatively set for May, 1993.
united states v. Benson, Central District of California
The government attempted to prosecute an FCI Terminal Island
staff member for introducing contraband to the institution. At a
hearing, the district court suppressed the confession of the
staff member on the grounds that his request for a union
representative was tantamount to invoking Miranda protection.
The U.S. Attorney dismissed the indictment.

•

SSAREDOC\Ll:TBIlJfCB\LITaPT. 2Q

Page 3

•

rI.

SETTLEMENTS AND AWARDS

MID-ATLANTIC REGION
Young v. united States, Eastern District of Kentucky
Decedent, a former FMC Lexington inmate sued under the Federal
Tort Claims Act (FTCA) and under Bivens for damages, and alleged
that because the BOP failed to perform mandatory physical
examinations, her endometrial or uterine cancer was not diagnosed
until the disease was terminal. The Bivens defendants were
dismissed. Plaintiff died several months after a compassionate
release from the BOP. The case was settled with the estate for
$70,000 which included reimbursement of Medicare costs ($10,000)
and attorney's fees.
Meade y. united States, Eastern District of Kentucky
In this FTCA case, inmate Meade alleged that a PA gave her
improper contact lens solution, and when problems developed, she
was refused medical treatment. Ms. Meade now requires a cornea
transplant. During discovery it was realized that the case could
not be defended. After consultation with the Warden, the Office
of General Counsel and the Medical Director, the case was settled
for $35,000.

•

NORTHEAST REGION
Santos y. united States. et al., Southern District of New York
This case is a combination FTCA and Bivens case brought by former
inmate Ana Santos. The Bivens case names as defendants: Doug
Lansing, Former Warden, MCC New York; a former correctional
officer (who was denied representation by u.s. Attorney); and a
former ~hysician's assistant. Santos alleged that the
correct10nal officer raped her in July, 1987 and that she
requested an abortion from the PA in September, 1987. The PA
ordered a pregnancy test and allegedly told Santos not to say
anything because she could get in trouble. Santos was
.
transferred to FCI Alderson on September 30, 1987, released from
custody on March 31, 1988, and had a son on May 3, 1988. The
officer admitted having sex with the inmate, but denied it was a
rape.
On June 16, 1992, the court denied our motion to dismiss Doug
Lansing from the Bivens action. The court held that the
complaint alleged a cause of action against Lansing for failing
to train staff at MCC New York, failing to adequately supervise
staff, and promoting an atmosphere where the violation of
inmates' abortion rights could occur. The Court also held that

•

SHARBDOC\I.:tTDRJICB\I.XTRPT.2Q

Page 4

•

the constitutional right to an inmates' abortion was clearly
established in september, 1987. The court denied the motion to
reconsider. The case was settled for $100,000.
Payton v. United States, Middle District of Pennsylvania
FTCA case filed by inmate for loss of property on a transfer.
There was evidence that he had the jewelry in his possession.
The case was settled for $125 to spare litigation costs.
Oliveira y. United states, Middle District of Pennsylvania
FTCA complaint filed by inmate for the loss of 167 postage stamps
allegedly lost on a transfer. Judgment was entered against the
Bureau for $48.43, which is the value of the stamps.
Young v. Quinlan, Middle District of Pennsylvania
This Bivens case was remanded to the district court by the Third
Circuit. The two claims remanded were (1) the failure to protect
Young from sexual assaults in the Special Housing Unit at USP
Lewisburg, and (2) deliberate indifference to Young's needs while
in a dry cell at USP Lewisburg. These incidents allegedly
occurred in June, 1988. The case was settled on the basis of the
FTCA count for $8,000. This amount was based on anticipated
costs and inconvenience to the BOP for continued discovery and
trial.

•

SOUTH CENTRAL REGION
Manual v. Thornburgh, Western District of Texas
After a trial in February, the district court found that Manual
had been sUbjected to sex discrimination by male lieutenants at
FCI Bastrop during 1984 and 1985. This action will not be
appealed. Ms. Manual was awarded $12,610.27, as back pay,
$22,290.50 in attorney's fees, plus expenses, costs of court, and
post-judgment interest in the amount of 3.45% per annum. In
addition, Ms. Manual was granted reinstatement effective December
17, 1992. Ms. Manual was reinstated at FCI Bastrop, but has
since resigned.
WESTERN REGION
stewart v. Bureau of Prisons, District of Arizona
Former correctional officer sued alleging racial discrimination
by staff at FCI Tucson in 1987. Administrative procedures have
been exhausted and the claim was upheld. The Bureau was ordered
to reinstate Stewart with back pay totalling $150,000 and promote

•

SBAR2DOC\LXTBRKCD\LZTRPT.2Q

Page 5

•

•

him to GS-8. BOP commenced litigation proceedings and the case
was settled in March for $79,000 without reinstatement •

•

•

SBARBDOC\LITBRNCB\LITRPT.2Q

Page 6

~

LITIGATION - 1993 FIRST QUARTER REPORT
LOC

NUK

FTC

BIV

OTH

ANS

KXR

40

20

4

10

6

40

NER

68

28

9

20

11

SER

58

21

3

27

NCR

55

24

3

SCR

57

26

WXR

65

CO
TOT

BC

PEN

CLD

HIT

SET

209

108

2

2

22,000

58

215

175

2

3

75,650

7

58

NIA

64

0

0

0

27

1

65

514

47

2

0

0

8

22

1

60

230

66

7

0

0

25

3

21

9

65

551

13

0

1

156,000

11

5

0

5

0

18

31

16

0

0

0

354

149

30

132

35

234

1750

489

13

6

253,650

AWD

DEFINITIONS:

•

NIA
LOC
NUN
HC
FTS
BIV
OTB
ANS
PEN
CLD
BIT
SET
AWD

-

Not Available - no method of trackinq this information
Location
Number of Total Lawsuits Filed in Quarter
Number of Babeas Corpus Actions Filed
Number of FTCA Actions Filed
Number of Bivens Actions Filed
other Actions Filed
Number of Litiqation Reports Completed
pendinq
Number of Actions Closed
Number of Bearinqs or Trials (Narrative analysis follows)
Number of Settlements (Narrative analysis follows)
Amount of Awards

LITIGATION ANALYSIS
The number of lawsuits filed in the first quarter remained relatively the
same as in the fourth quarter, with 352 filed in the fourth quarter and 354
filed this quarter.
The amount of monetary damaqes awarded was
$253,650.00 •

•

•

WESTERN REGION
Garcia v. U.S.A., District of Arizona
This case involves a wrongful death action for $2,000,500.
The
plaintiff is the deceased inmate's mother. The inmate died at FCI
Phoenix in March 1991. The Assistant U.S. Attorney has retained
several medical experts, who differ with the BOP after-action
report regarding the procedures followed by the on-duty Physician
Assistant. However, the medical experts for the plaintiff have not
yet focused on this aspect of the case. The matter may result in
a substantial settlement or damages award.
Alexander y. Perrill, District of Arizona

•

The plaintiff in this case is a former inmate who has sued
successfully in the Ninth Circuit, establishing personal liability
against Inmate Systems Manager L. Rivera and Warden Perrill for
their alleged lack of response to his claims. The plaintiff had
claimed that the BOP had wrongfully taken away jail credit
previously awarded by another institution, which resulted in his
re-incarceration.
The Central Office and OEO/OIA determine the
amount of foreign jail credit that is awarded an inmate, the
institution has no authority in the matter. The underlying case is
still in Iitigation in district court.
The plaintiff seeks
$625,000 in damages.
Coupar y. Bureau of Prisons, Department of Labor
This case is the third in a series of lawsuits filed by inmate
Douglas Coupar pursuant to the whistle blower provisions of the
Department of Labor, 29 C.F.R. Part 24.
Hubbs y. U.S.A., at. aI, Pratt y. U.S.A., et. aI, District of
Oregon
These FTCA cases arise from a van accident that killed inmate Pratt
and injured Hubbs, the driver of a third vehicle.
Because no
settlement was reached during the administrative proceedings, this
lawsuit was filed. The amount in controversy exceeds $5 million.

•

7

02:15

P1'-1

U.S. Department of Justice
Federal Bureau of Prisons

•

Western Regional Office
Dublin. CalJlornia 94568

FACSIMILE TRANSMISSION RECORD
BUREAU OF PRISONS
WESTERN REGIONAL OFFICE
7950 DUBLIN BLVD., 3RD FL.
DUBLIN, CA 94568
Commercial Fax No. (510)803-4802
Tele: (510) 803-4723

9_3~ __

DATE: _--:;..;2.....,I-1...;;..'J.-.'-;:
.....
I

7

<2

Number of Pages
/
(Excluding Cover Sheet)
I

kJal/aee- /I. ~'Y
&e:ne·ra-/ Cf/lA/n-S ~/
i

THB INFORMATION CONTAINED IN THIS· FACSIMILE MESSAGE IS
INTENDED ONLY POR THB PERSONAL AND CONFIDENTIAL" USE OP
THE ABOVE-DESIGNATED RECIPIE~[8]

•

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client and, as such, is privileged and confidential. if the
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