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Fbop Wxr Monthly Reports 1998feb-dec

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u.s. Department of Justice
Federal Bureau of Prisons

Dublin. California 94568

March 11, 1998
MEMORANDUM TO WALLACE H. CHENEY
ASSISTANT DIRECTOR/GENERAL COUNSEL
FROM:

SUBJECT:
~~

Harlan W. Penn, Regional Counsel
Monthly Report for February 1998

CASES OF INTEREST

~~

SUPREME COURT:

James Jacks v. Crabtree, et al., (SHE) petition for writ of
certiorari was filed January 7, 1998 by the Federal Public
Defender/Oregon in this 3621(e) action, challenging BOP's use of
prior criminal convictions in eligibility determinations for
early release.
Awaiting notice of status.
NINTH CIRCUIT MATTERS:

Grafman v. Hood (TCN) Government filed Notice of Appeal of
District Court's decision ordering USPC to reinstate forfeiture
of street time on Special Parole Term violator.
Sevier v. Crabtree (SHE) 3621(e) case.
Update: DOJ declined
appeal.
Notice of Appeal filed challenging District Court's Order that
eligibility is determined by Stipulated Order, regardless of
inmate's ability to complete all three phases of DAP.
Wilson v. Crabtree
(SHE) 3621(e) case.
Update: DOJ declined
appeal.
Notice of Appeal filed challenging District Court's
Order finding that halfway house component was not adequately
noticed as an early release eligibility requirement until eN-Ol

.was issued May 17, 1996.
DISTRICT COURT MATTERS:
Figueroa v. Macy/U.S. (DUB), consolid~ted Bivens/FTCA actions.
involving death of former DUB female ~nmate from stroke follow~ng
transfer to FMC Carswell in 1995. U.S. Attorney's Office urging
reconsideration of our position that no settlement offer should
be made.
Trial date May 4, 1998.
Johnson v. Crabtree (SHE)', 3621(e) case. District Court granted
habeas for inmate finding that 18 U.S.C. 842(h) is not a crime of
violence and issue of eligibility is ripe upon notification of
provisional eligibility determination. Motion for
reconsideration filed on issue of ripeness. Motion was denied
January 5, 1998. Awaiting Solicitor General decision regarding
appeal.
Lucas, Mercadel, and Douthit v. White (DUB), Bivens/FTCA cases in
which three former female inmates allege they were sexually
assa~lted and harassed by male inmates and staff while housed in
SHU at FDC Dublin.
Settlement agreement executed February 24,
1998.
Newson v. U.S.A. (NEL), $6,000,000 FTCA case in which wife and
husband sue U.S. for injuries she suffered in September 1994 auto
accident involving inmate driver. Accident occurred when blowing
sand on freeway resulted in six car rear-end pile up, in which
Newson was driving the first vehicle. All parties are now in
federal district court due to third-party complaint filed by
.U.S.A., in order to seek contribution from other defendants.
BOP
liability is clear under Nevada tort law, damages is the main
issue. Matter now in discovery, depositions to be scheduled in
May.
TRIALS/HEARINGS:
Low v. Clarke-Cain (BRN), Religious Freedom Restoration Act case
in which inmate sought injunctive relief for practice of Satmar
sect of Hasidic Judaism.
Settlement discussions ongoing. Trial
resumption postponed.
u.S. v. Mark Thierman (TCN) Three TCN staff appeared as witnesses
for u.S. at criminal forfeiture case.
Staff prepared, assisted
by Paralegal Tom Byron.
State of Oregon v. Billy Lee Oatney (TCN) Material witness
hearing for five TCN staff who have been named as material
witnesses in penalty phase of a capital murder case in Oregon.

Hearing on February 23, 1998 resulted in one staff being excused.
Testimony will take place March 13 or March 17, 1998. Paralegal
Tom Byron assisted AUSA Gerry Frank at hearing.
RELIGION:
Low v. Clarke-Cain (BRN) , see above.
MEDICAL MALPRACTICE TORT CLAIMS/LITI'GATION REFERENCING GAO
REPORT ON. AGENCY MEDICAL CARE: None
CASES INVOLVING THE ENSIGN AMENDMENT: None
CASES DISMISSED PURSUANT TO PRISON LITIGATION REFORM ACT: None
ENVIRONMENTAL MATTERS:
PHX - Possible soil contamination at Firing Range.
Firing Range
'is used by numerous agencies. Vehicles are used as targets in
some practices.
Vehicle recently used as target was not drained
of fluids before target practice, although soil tests conducted
were negative for anti-freeze, results from other tests are still
pending.
Review of use of vehicles as targets is underway.
SETTLEMENTS:
,Lucas v. White, see above. $500,000 FTCA settlement to be shared
among three plaintiffs in private settlement agreement with
training and other actions to be taken by the Bureau of Prisons.
CRIMINAL CASE TRACKING

1.

TOTAL CRIMINAL CASES REFERRED THIS MONTH: 15
NOTE: Grand Jury proceedings continuing in the
murder of SOS Scott Williams and assaults of tour
other staff at LOM.

2.

CRIMINAL CASES ACCEPTED FOR PROSECUTION AWAITING TRIAL/
DISPOSITION:
ASSAULT: None
ESCAPE: None
FRAUD/FORGERY:
U.,S. v. Richard Lewis (TCN) 18 USC 1001

prosecu~ion

Q

against inmate Lewis, register No. 28914-048, for
soliciting documents to falsify and falsifying
documents provide documentation of history of
substance abuse to support his application to DAP
program for purpose of becoming eligible for early
release incentive award.

HOMICIDE:
u.s. v. Matt Lindsey (PHX) , prosecution of inmate
Matt Lindsey, Register No. 02331-061 for November 1,
1997 murder of inmate Bernard Jackson, Register No.
41722-008. AUSA Pat Snyder is assigned to prosecute
the case.
u.s. v. Carlos Miranda and Chris Anderson (LOM) ,
.1993 murder of inmate James Jackson.
Retrial began
November 18, 1997, resulting in jury verdict of
guilt for manslaughter December 15, 1997.
Sentencing March 23, 1998.
u.S. v. Aaron Stone (LOM) ,
1995 hostage situation.
agreement reached.
Sentencing March 30, 1998.

Plea

INTRODUCTION/POSSESSION OF CONTRABAND:
u.S. v. Chavira (PHX), trial not yet scheduled.
u.S. v. Greenwood and Cain (PHX), trial not yet scheduled.
u.S. v. Venegas (PHX), trial not yet scheduled.

PROPERTY: None
SEX OFFENSES:
u.S. v. Phyllis Goree (PHX), Prosecution against former
staff for engaging in sex with inmate and introduction G! drugs
into a p~ison.

WEAPONS: None
3.

CRIMINAL MATTERS REFERRED (MATTERS DECLINED ARE NOTED) :
ASSAULT:
LOM - Two multiple inmate assaults referred.
PHX - One staff assault referred (declined)

One inmate assault referred (declined)
SHE - Two staff assaults referred
One inmate assault referred
ESCAPE: None
FRAUD/FORGERY:
TRM - alteration of incoming money orders referred
to u.S. Postal Service.
HOMICIDE: None
INTRODUCTION/POSSESSION OF CONTRABAND:
LOS - three attempted introduction of marijuana
visiting room cases referred.
SDC - heroin possession case accepted.
SDC - attempted introduction of marijuana visiting
room case pending indictment.
PROPERTY:. None
SEX OFFENSES:
LOS - inappropriate staff/inmate relationship under
OIG/FBI investigation.
WEAPONS: None
••

STATISTICS

~~

Tort Claims:
JANFEB
DEC
Received
34
40
Closed
38
64
Reconsidered
o
Pending
110
Over 6 Mo.
1
3

MAR

APR

MAY

JAN

FEB.

JUL

AUG

SEP

OCT

NOV

PHX

SAF

SDC

SHE

TRH

TCN

o

o

1

1

o

11

JUN

JUL

AUG

SEP

OCT

o
86

Investigations Pending Over 60 Days:
BRN
DUB
LOM
LOF
LOS
NEL
TOTAL
o 7
1
o
o
o
1
FOI/PA:
DEC

JUN

MAR

APR

MAY

NOV

Received
Closed
Pending
30 days
6 Months
Appeals

21
27
14
2

32
24
22
0
0

0
0

(Pending Appeal s - 21)

FOI/PA Pending More than 30 Days on Feb. 28, 1998:
LOM
LOF
LOS
NEL
PHX
SAF
SHE
BRN DUB
SDC
0

0

0

0

0

0

0

0

0

TRM

TCN

TOTAL

0

0

0
0

*Does not include inmates transferred out of Region or CCMs.
Administrative Remedies:
FEB
APR
JAN
MAR
91
112

MAY

JUN

JUL

AUG

SEP

OCT

NOV

DEC

FEB
Litigation: JAN
DEC
Open Cases: 294* 303
New Cases: 2~
2~
~9
HC
~
FTCA
4
Bivens
Other
1
0
Closed
134
Lit Reports 13
15

MAR

APR

MAY

JUN

JUL

AUG

SEP

OCT

17
~

2
12

*Total Number of Open Cases Reflects LMS and PACER Reviews with
Institution Legal Staff Conducted since Last Report

NOV

o

u.s. Department of Justice
Federal Bureau of Prisons

Dublin, Califomia 94568

April 10, 1998
MEMORANDUM TO WALLACE H. CHENEY
ASSISTANT DIRECTOR/GENERAL COUNSEL
FROM:

SUBJECT:

Harlan W. Penn, Regional Counsel
Monthly Report for March 1998

•• CASES OF INTEREST

~~

SUPREME COURT:
. James Jacks v. Crabtree, et al., (SHE) petition for writ of
certiorari was filed January 7, 1998 by the Federal Public
Defender/Oregon in this 3621(e} action, challenging BOP's use of
prior criminal convictions in eligibility determinations for
early release.
Awaiting notice of status.
NINTH CIRCUIT MATTERS:
Furguiel v. Benov (TRM), affirmed, that prior armed robbery
conviction renders inmate ineligible for 3621e reduction.
The
Court found no Cort v. Crabtree retroactivity issue, as inmate
was never eligible and subsequent regulations and p6licy did not
alter that status.
DISTRICT COURT MATTERS:
Figueroa v. Macy/U.S. (DUB), Consolidated Bivens/FTCA actlons
involving death of former DUB female inmate from stroke following
transfer to FMC Carswell in 1995. Bivens defendant Macy
dismissed from action.
Final settlement conference April 29,
1998, FTCA trial May 26, 1998.
Hermanson v. Hood (TCN), Bivens complaint alleging 1st Amendment

violations due to enforcement of Zimmer Amendment provisions
prohibiting displaying NC-17, R & X rated movies to inmates.
Court dismissed defendants Hawk & Reno and BOP.
Warren v. Crabtree (SHE) 3621(e) case. Government filed Motion to
Dismiss asserting BOP argument that habeas corpus petition
challenging the denial of a 3621(e) early release was not ripe
for judicial review until inmate had completed all three phases
of the DAP program. Court denied, and found that cases are ripe
for judicial review as soon as BOP makes initial, prospective
eligibility determination.
Johnson v. Crabtree (SHE), 3621(e) case. District Court granted
habeas for inmate finding that 18 U.S.C. 842(h) is not a crime of
violence and issue of eligibility is ripe upon notification of
provisional eligibility determination. Motion for
reconsiderat~on filed on issue of ripeness.
Motion was denied
January 5, 1998. Solicitor General denied BOP request for
appeal.
Lucas, Mercadel, and Douthit v. White (DUB), Bivens/FTCA cases in
which three former female inmates allege they were sexually
assaulted and harassed by male inmates and staff while housed in
SHU at FDC Dublin.
Settlement agreement executed Februa~y 24,
1998.
Ben Kalka & Ken Mitchell v. John Megathlin, et al (TCN)
Bivens case dismissed by Judge Browning in which inmate Kalka and
attorney Ken Mitchell alleged that staff actions (inspecting
legal mail) violated attorney-client privilege and that
contacting other law enforcement agencies with information was
not a violation of a clearly established right.
We have
requested publication of the opinion for the language granting
qualified immunity on these issues.
Newson v. U.S.A. (NEL) , Previously reported, $6,000,000 FTCA case
in which wife and husband sue u.s. for injuries she suffered in
September 19Q4 auto accident involving inmate driver. BOP
liability is clear under Nevada tort law, damages is the main
issue. Matter now in discovery, depositions to be scheduled in
May. Defense counsel have met -AUSA advises that U.S. Ildb~lity
will be substantial, as Susan Newson's actual medicals now exceed
$300,000 after several surgeries and she is unable to worK.
Policy limits of other defendants total approx. $lmillio~.

TRIALS/HEARINGS:
Low v. Clarke-Cain (BRN), Religious Freedom Restoration A~~ case
in which inmate sought injunctive relief for practice o~ ~d~~ar
sect of Hasidic Judaism.
Settlement discussions ongoing.
7rlal

resumption postponed.
State of Oregon v. Billy Lee Oatney (TCN) , Capital murder case in
Oregon at which five TCN staff were subpoenaed for penalty phase
by defense after material witness finding by state Court.
Defendant was a former inmate at TCN (defense wanted to establish
that defendant was "good" inmate). Staff testified March 17,
1998. Jury convicted and handed down death penalty.
Paralegal
Tom Byron assisted USAO during hearing to oppose subpoena for
staff and testified at the penalty hearing.
RELIGION:
Low v. Clarke-Cain (BRN) , see above.
MEDICAL MALPRACTICE TORT CLAIMS/LITIGATION REFERENCING GAO
REPORT ON AGENCY MEDICAL CARE: None
CASES INVOLVING THE ENSIGN AMENDMENT: None
CASES

DIS~SSED

PURSUANT TO PRISON LITIGATION REFORM ACT: None

ENVIRONMENTAL MATTERS: None
SETTLEMENTS:
Wickline v. U.S.A. (LOF/NEL) FTCA case regarding lost inmate
property settled for $124.00.
Form 40s could not establish
proper handling of inmates' property during transfer between
institutions.

CRIMINAL CASE TRACKING
1.

TOTAL CRIMINAL CASES REFERRED THIS MONTH:26

2.
CRIMINAL CASES ACCEPTED FOR PROSECUTION AWAITING TRIAL/
DISPOSITION:
ASSAULT:
U.S. v. Gonzales, et ale (SAF), April 25, 1998 trial
date set for inmate/inmate assault by five inmates
Joel Gonzales, #94461-198, Anthony Avaloz,#
04519-031, Loebardo Valenzuela, #46662-198, Jorge
Munoz-Garcia # 09780-051, and Lorenz Gomez-Tovar,
#47560-198.

ESCAPE: None
FRAUD/FORGERY:
u.s. v. Richard Lewis (TCN) , 18 usc 1001 prosecution
against inmate Lewis, register No. 28914-048, for
soliciting documents to falsify and falsifying
documents provide documentation of history of
substance abuse to support his application to OAP
program for purpose of becoming eligible for early
release incentive award.
BO~CIDE:

u.s. v. Roy Green (LOM) , inmate indicted April 2,
1998 for murder of SOS Scott Williams (2 counts) and
assaults on four other officers.
u.s. v. Matt Lindsey (PHX) , prosecution of inmate
Matt Lindsey, Register No. 02331-061 for November 1,
1997 murder of inmate Bernard Jackson, Register No.
41722-008. AUSA Pat Snyder is assigned to prosecute
the case.
u.s. v. Carlos Miranda and Chris Anderson (LOM) ,
1993 murder of inmate James Jackson.
Sentenced to
10 years/3 years supervised release March 23, 1998.
u.s. v. Aaron Stone (LOM) ,
1995 hostage situation.
agreement reached.
Sentencing April 27, 1998.

Plea

INTRODUCTION/POSSESSION OF CONTRABAND:
u.s. v. Chavira (PHX), found in possession of contraband of
drugs and sentenced to additional 22 months.
u.S. v. Greenwood and Cain (PHX),entered pleas of guilty.
Sentencing is pending.
u.s. v. Venegas (PHX), pled guilty to attempted
introduction
of contraband and sentenced to 33 months.
PROPERTY: None
SEX OFFENSES:
u.S. v. Phyllis Goree (PHX), Prosecution against
former staff for engaging in sex with inmate and
introduction of drugs into a prison.

u.s. v. Mark Miles (LOS), former Correctional
Officer, who pled guilty to misdemeanor Abusing a
Position of Authority for sexual relationship with
inmate, sentenced to 1 year probation/3 months CCC
or home detention March 16, 1998.
WEAPONS: None
3.

CRIMINAL MATTERS REFERRED (MATTERS DECLINED ARE NOTED) :
ASSAULT:

TRM - 1 unarmed inmate/inmate assault declined
LOM - 1 serious inmate/inmate assault declined
PHX - 1 inmate/inmate assault declined
2 inmate/staff assaults declined
1 inmate/inmate attempted sexual assault declined
SAF - 2 inmate/inmate assault referred, one. declined to
date
SHE - 3 inmate assaults referred
ESCAPE: None
FRAUD/FORGERY: None
HOMICIDE: None
INTRODUCTION/POSSESSION OF CONTRABAND:

LOM - 3 cases declined, 1 pending
LOS - 2 Visiting Room attempts referred
TRM - 1 Visiting Room attempt accepted, 2 declined
PROPERTY: None
SEX OFFENSES: None
WEAPONS:

LOM - 6 referrals declined

••

STATISTICS ••

Tort Claims: JANFEB
MAR
DEC
Received
34
40
62
Closed
47
38
64
Reconsidered
0
0
Pending
110
86
i
3
Over 6 Mo.
3
Investigations Pending Over
LOM
LOF
DUB
BRN
TOTAL
0
0
0
0 5

MAY

JUN

JUL

AUG

SEP

OCT

NOV

60 Days:
NEL
LOS

PBX

SAF

SDC

SHE

TRM

TCN

APR

1
102

0

0

0

0

0

0

0

5

APR

MAY

JUN

JUL

AUG

SEP

OCT

NOV

FOI/PA Pending More than 30 Days on Feb. 28, 1998:
BRN DUB
LOM
LOF
LOS
NEL
SAF
SDC
SHE
PBX
0
0
0
0
0
0
0
0
0

TRM
0

TCN
0

TOTAL

FOI/.PA:
DEC
Received
Closed
Pending
30 days
6 Months
'Appeals

JAN

FEB

MAR

21
27
14
2

32
24
22

23
33
12
0

0

0

0
0
0

0

1

0
0

*Does not include inmates transferred out of Region or CCMs.
Administrative Remedies:
APR
JAN
FEB
MAR
114
112
91
Li tig,ation:
DEC
Open Cases:
New Cases:
HC
FTCA
Bivens
Other
Closed
Lit Reports

JAN

FEB

MAR

294 * 303
21
21
19
1
4
0
1
134
13
15

308
17
17
1
2
2
12
8

MAY

JUN

JUL

AUG

SEP

OCT

NOV

APR

MAY

JUN

JUL

AUG

SEP

OCT

5
5

5
11

DEC

NOV

*Total Number of Open Cases Reflects LMS and PACER Reviews with
Institution Legal Staff Conducted since Last Report

..

U.S. Department of Justice
Federal Bureau of Prisons

Dublin, California 94568

May 6, 1998
MEMORANDUM TO WALLACE H. CHENEY
ASSISTANT DIRECTOR/GENERAL COUNSEL
FROM:

SUBJECT:

Harlan W. Penn, Regional Counsel
Monthly Report for April 1998

~~ CASES OF INTEREST
SUPREME COURT:

~~

James Jacks v. Crabtree, et al., (SHE) petition for writ of
certiorari was filed January 7, 1998 by the Federal Public
Defender/Oregon in this 3621(e) action, challenging BOP's use of
prior criminal convictions in eligibility determinations for
early release.
Awaiting notice of status.
NINTH CIRCUIT MATTERS:
United States v. Kenneth Gibson (District of Nevada) Appeal from
the denial of a Writ of Mandamus filed by inmate with a 922(g)
conviction who completed DAP outside the Ninth Circuit and sought
to have Court designate him to location in Ninth Circuit, or
order application of Ninth Circuit case law and BOP policy to
enable him to receive early release. Appeal challenges BOP
policy of granting or denying early release for DAP on basis of
where inmates are housed.

Ben Kalka & Ken Mitchell v.
TCN) Notice of Appeal filed
summary judgement rejecting
5th, & 6th Amendment rights
mail.

John M~gathlin, et al (Dist. Of AZby plaintiffs. District Court granted
plaintiff's arguments that 1st, 4th,
were violated in handling of legal

Spann v. Adams (Dist. AZ, SAF)
Notice of Appeal filed by plaintiff to District Court's dismissal

.
of 2241 petition, there was no prior service on BOP or the US
Attorney.
DISTRICT COURT MATTERS:
Figueroa v. Macy/U.S. (DUB), Consolidated Bivens/FTCA actions
involving death of former DUB female inmate from stroke following
transfer to FMC Carswell in 1995.
Final settlement conference
April 29, 1998 - case settled for $100,000.00.
Byrd v. Crabtree (SHE),3621(e) 2241 decision holding against BOP
determination that a prior conviction under Washington State
Assault II statute qualified as "aggravated assault" to
disqualify inmate for early release eligibility. Court ordered
BOP to place inmate in halfway house to complete DAP early
release requirements. Memorandum being prepared for appeal.
Renner v. Crabtree (SHE),3621(e) 2241 decision holding against
BOP determination that a prior conviction under Washington State
Assault II statute qualified as "aggravated assault" to
disqualify inmate for early release eligibility. Because inmate
has already been released, Court ordered a one-year reduction in
term of supervised release.
Adams v. Crabtree (SHE), 3621(e) decision holding against BOP
determination that a prior conviction under Washington State
Assault II statute qualified as "aggravated assault". However,
Court' i.ndicated that Renner was not otherwise qualified for early
release because he had committed prohibited acts and been
expelled from DAP.
Hensel v. Crabtree (SHE), Court denied and dismissed habeas
petition challenging the implementation of the IFRP for
collection of Court imposed fines and restitution.
Newson v. U.S.A. (NEL), Previously reported, $6,000,000 FTCA case
in which wife and husband sue U.S. for injuries she suffered in
September 1994 auto accident involving inmate driver. BOP
liability is clear under Nevada tort law, damages is the main
issue. Deposi-tions set for June. Plaintiff Susan Newson's actual
medicals now exceed $300,000 after several surgeries and she is
unable to work.
TRIALS/HEARINGS:
Low v. Clarke-Cain (BRN), Religious Freedom Restoration Act case
in which inmate sought injunctive relief for practice of Satmar
sect of Hasidic Judaism.
Settlement agreement signed by all
parties and presented to the Court May 1, 1998.

..
. RELIGION:
Low v. Clarke-Cain (BRN), see above.

MEDICAL MALPRACTICE TORT CLAIMS/LITIGATION REFERENCING GAO
REPORT ON AGENCY MEDICAL CARE: None
CASES INVOLVING THE ENSIGN AMENDMENT: None
CASES DISMISSED PURSUANT. TO PRISON LITIGATION REFORM ACT: None
ENVIRONMENTAL MATTERS: None
SETTLEMENTS:
Figueroa v. Macy/U.S.

(DUB), see above.

Low v. Clarke-Cain (BRN), see above.
Janet Kohlar v. Janet Reno (TCN) Settlement of Title VII
employment discrimination case for no money damages.

CRIMINAL CASE TRACKING
1.

TOTAL CRIMINAL CASES REFERRED THIS MONTH: 25

2.
CRIMINAL CASES ACCEPTED FOR PROSECUTION AWAITING TRIAL/
DISPOSITION:
ASSAULT:
U.S. v. Gonzales, et ale (SAF), April 25, 1998 trial
date set for inmate/inmate assault by five inmates
Joel Gonzales, #94461-198, Anthony Avaloz,#
04519-031, Loebardo Valenzuela, #46662-198, Jorge
Munoz-Garcia # 09780-051, and Lorenz Gomez-Tovar,
#47560-198.

ESCAPE: None
FRAUD/FORGERY:
U.S. v. Richard Lewis (TCN), 18 USC 1001 prosecution
against inmate Lewis, Register No. 28914-048, for
soliciting documents to falsify and falSifying
documents provide documentation of history of
substance abuse to support his application to DAP
program for purpose of becoming eligible for early

..
release incentive

~ward.

HOMICIDE:
u.s. v. Roy Green (LOM) , inmate indicted April 2,
1998 for murder of SOS Scott Williams (2 counts) and
assaults on four other officers.
Trial date set for
January 5, 1999.
u.S. v. Matt Lindsey (PHX) , prosecution of inmate
Matt Lindsey, Register No. 02331-061 for November 1,
1997 murder of inmate Bernard Jackson, Register No.
41722-008. AUSA Pat Snyder is assigned to prosecute
the case.
u.S. v. Aaron Stone (LOM) ,
1995 hostage situation.
Plea agreement reached.
Sentencing June 1, 1998.

INTRODUCTION/POSSESSION OF CONTRABAND:
PROPERTY: None
SEX OFFENSES:
u.S. v. Phyllis Goree (PHX) ,
former staff for engaging in
introduction of drugs into a
before federal grand jury on

prosecution against
sex with inmate and
prison. Goree to appear
5/5/98.

WEAPONS: None
3.

CRIMINAL MATTERS REFERRED (MATTERS DECLINED ARE NOTED) :
ASSAULT:
DUB - 1 fire setting declined.
TRM - 2 assaults on staff, 1 inmate fight referred.
PHX - 5 inmate on inmate assaults referred and declined.
1 inmate on staff assault referred, still pending.
SAF - 3 inmate on inmate assaults referred.
SHE - 3 inmate on inmate assaults referred.

ESCAPE: None
FRAUD/FORGERY:

..

HOMICIDE: None
INTRODUCTION/POSSESSION OF CONTRABAND:
LOM - 2 visiting room introduction cases referred.
LOS - 1 visiting room introduction case referred.
PROPERTY: None
SEX OFFENSES:
PHX - 1 inmate-on-inmate sexuat"assault referred- pending.
"WEAPONS:

LOM - 2 cases referred.

••

STATISTICS ••

MAR
Tort Claims: JANFEB
DEC
62
40
34
Received
47
64
38
Closed
0
0
Reconsidered
86
110
Pending
3
3
1
Over 6 Mo.
Investigations Pending Over
LOF
LaM
DUB
BRN
TOTAL
0
0
0
0 5

MAY

JUN

JUL

AUG

SEP

OCT

NOV

60 Days:
LOS
NEL

PHX

SAF

SDC

SHE

TRM

TCN

APR

1
102

0

0

0

0

0

0

0

5

APR

MAY

JUN

JUL

AUG

SEP

OCT

NOV

FOI/PA Pending More than 30 Days on Feb. 28, 1998:
NEL
PHX
SAF
LOS
LaM
LOF
SDC
SHE
BRN DUB
0
0
0
0
0
0
0
0
0

TRM
0

TCN
0

TOTAL

JAN
FOIt-PA:
DEC
Received 21 32
27
Closed
14
Pending
2
30 days
0
6 Months 0
Appeals
0

FEB

MAR

23
24
22
0
0
0

39
33
12
0
0
1

33
18
0
1

0
0

*Does not include inmates transferred out of Region or CCMs.

II

Administrative Remedies:
APR
JAN
FEB
MAR
114
80
91
112

MAY

JUN

JUL

AUG

SEP

OCT

NOV

MAR

APR

MAY

JUN

JUL

AUG

SEP

OCT

308
17
17
1
2
2
12
8

309
18
5
5
5
1
11
8

DEC

LL
LL
LL
LL
Li tig,ation: JAN
FEB
DEC
Open Cases: 294* 303
New Cases: 21
21
HC
19
1
FTCA
4
Bivens
0
1
Other
134
Closed
13
15
Lit Reports

14
1
2
17

*Total Number of Open Cases Reflects LMS and PACER Reviews with
Institution Legal Staff Conducted since Last Report

NOV

..

u.s. Department of Justice
Federal Bureau of Prisons

Dublin, California 94568

June 10, 1998
MEMORANDUM TO WALLACE H. CHENEY
ASSISTANT DIRECTOR/GENERAL COUNSEL
FROM:

SUBJECT:

Harlan W. Penn, Regional Counsel
Monthly Report for May 1998

•• 'CASES OF INTEREST

~~

SUPREME COURT:
James Jacks v. Crabtree, et ale (SHE), petition for writ of
certiorari filed January 7, 1998 by the Federal Public
)efender/Oregon in this 3621(e) action, challenging BOP's use of
prior criminal convictions in eligibility determinations for early
release. Awaiting notice of status.
NINTH CIRCUIT MATTERS: None
DISTRICT COURT MATTERS:
Berryv. Crabtree, Frank v. Crabtree, Warren v. Crabtree (SHE),
judgments in three 3621(e) cases decided by Judge Haggerty holding
that convictions of 924 (c) (1) are "crimes of violence" as defined in
924(c).
Court further stated that it was reasonable for the BOP to
label all 924(c) offenses as "crimes of violence" because the
combination of using or carrying a gun while illegally drug
trafficking, "by its nature, involves a substantial risk that
physical force against the person or property of another may be used
in the course of committing the offense."
Byrd v. Crabtree, Renner v. Crabtree (SHE), 3621(e) decision holding
against BOP determination that a prior conviction under Washlnqton
State Assault I I statute qualified as "aggravated assault" to.
disqualify inmate for early release eligibility.
Court ordered BOP
to place Byrd in halfway house to complete DAP early release
:equirements.
Before that order, Renner's release date was Apr:l 6,
1998. Memorandum being prepared for appeal.

o

u.s. v. Julian Lee Simmons (LOM) , assault of Correctional
Officer. Trial date continued pending psychological exam.
u.s. v. Aaron Stone (LOM) , 1995 hostage situation.
agreement reached. Sentencing June 1, 1998.

Plea

INT.RODUCTION/POSSESSION OF CONTRABAND: None
PROPERTY: None
SEX OFFENSES: None
WEAPONS: None
3.

CRIMINAL MATTERS REFERRED (MATTERS DECLINED ARE NOTED) :
ASSAULT:

LOM - 1 inmate fight referred.
1 assault on staff referred.
PHX - inmate fight involving 4 inmates declineq.
2 inmate fights involving 2 inmates declined.
SHE - 1 assault of inmate referred.
TRM - 1 assault of staff (food tray) declined.
1 inmate fight declined.
ESCAPE: None
FRAUD/FORGERY: None
HOMICIDE: None
INTRODUCTION/POSSESSION OF CONTRABAND:
LOM - 3 visiting room introduction cases referred.
SHE - 1 introduction of narcotics referred.
TRM - 1 heroin possession referred.
PROPERTY: None
SEX OFFENSES: None
WEAPONS:
LOM - 1 possession case referred.
1 manufacturing case referred.
.•

STATISTICS

Tort Claims:

~~

JAN

FEB

MAR

APR

MAY

JUN

JUL

AUG

SEP

. OCT

NOV

DBC

.
62
43
39
40
34
Received
58
47
36
64
38
':.:losed
1
1
0
0
Reconsidered
102 110
110
86
Pending
2
4
3
3
Over 6 Mo.
1
Investigations Pending Over 60 Days:
NEL
LOF
LOS
LOM
BRN
DUB
1
1
0
1
0 0
0

FOIL.PA:
Received
Closed
Pending
30 days
6 Months
Appeals

JAN
21
27
14
2
0
0

FEB
32
24
22
0
0
0

MAR

23
33
12
0
0
1

APR
39
33
18
0
0
1

MAY

0
91

PHX
0

SAF
0

SDC
0

SHE
1

TRM
0

TCN
4

TOTAL

JUN

JUL

AUG

SEP

OCT

NOV

DEC

26
29
15
*2
0
4

FOI/PA Pending More than 30
LOF
LOS
LOM
BRN DUB
0
0
0
0
*In both cases, waiting for

Days on May 31, 1998:
NEL
PHX
SAF
SDC
SHE
TRM
TCN
0
0
0
0
0
0
0
records from Federal Records Center.

TOTAL
0

Administrative Remedies:
MAR
APR
JAN
FEB
91
112
114
80

MAY

DEC

~i ti~ation: JAN
Open Cases: 297
New Cases: 24
HC
FTCA
Bivens
Other
0
Closed

FEB
306
21
19
1
4
1
134

311
17
17
1
2
2
12

Lit Reports 13

15

8

MAR

JUN

JUL

AUG

SEP

OCT

NOV

APR
312
18
5
5
5
1
11

MAY

JUN

JUL

AUG

SEP

OCT

329
18
14
1
2
2
17

13
1
2

8

17

0

90

1

NOV

DEC

.

U.S. Department of Justice
Federal Bureau of Prisons

Western Regional Office
Dublin, California 94568

July la, 1998

MEMORANDUM TO WALLACE H. CHENEY
ASSISTANT DIRECTOR/GENERAL COUNSEL

FROM:

SUBJECT:
~~

Harlan W. Penn, Regional Counsel
Monthly Report for June 1998

CASES OF INTEREST

~~

SUPRE SUPREME COURT:
James Jacks v. Crabtree, et al. (SHE), petition for writ of
certiorari filed January 7, 1998 by the Federal Public
Defender/Oregon in this 3621(e) action, challenging BOP's use of
~rior criminal convictions in eligibility determinations for early
release. Awaiting notice of status.

NINTH CIRCUIT MATTERS: None
DISTRICT COURT MATTERS:
Caballero vs. Floyd (PHX), FTCA case for inmate property, dismissed
on May 1, 1998. Court granted summary judgment for defendant,
relying on "detention of goods" exemption to FTCA action.
U.S.
Attorney's office is requesting publication.
Holland v. Pontesso (PHX), Habeas petition in which inmate claims
the PLRA prevents him from challenging his criminal conviction via
§ 2255.
District Court has ordered a response to this allegation.
Huerta-Chica v. Reno (SAF) , Mandamas action in which inmate claims
INS refuses to remove a detainer which makes him ineligible for
halfway house placement and DAP consideration.
Kalka v. Crabtree (SHE), Bivens ac~ion against 23 defendants
alleging a variety of claims including medical malpractice, lack of
1ccess to law library, religious claims.

o

Newson v. U.S.A. (NEL), $6,000,000 FTCA case in which wife and
husband sue U.S. for injuries she suffered in September 1994 auto
accident involving inmate driver.
BOP liability is clear under
Jevada tort law, so damages is the main issue.
Depositions
scheduled for last week in July.
Parmelee v. Perrill (SET), Bivens case in which plaintiff alleges
access to courts violations based on adequacy of, and access to, the
main law library; opening of special mail outside his presence;
being denied unmonitored legal calls; access to his legal materials;
and'being denied access to the Administrative Remedy process.
Plaintiff seeks injunctive relief, compensatory damages, and
punitive damages.
Parra-Rochin v. Fitzpatrick (LOM), 3621(e) habeas petition alleging
the Bureau of Prisons allowed participation in the DAP program, but
was determined to be ineligible for the sentence reduction due to an
INS detainer. Inmate alleges that this decision viol~tes the Equal.
Protection Clause.
Payton v. Campbell, Soderling v. Campbell, first two habeas
petitions filed by TAF inmates, the first involving designation and
custody.classification, the second prior custody credit and good
time.
No specific allegations involving the contractor, but the
USAO in Fresno has been advised that Wackenhut has retained private
local counsel.
rRIALS/HEARINGS: None
RELIGION: None
CASES DISMISSED PURSUANT TO PRISON LITIGATION REFORM ACT: None
ENVIRONMENTAL MATTERS: None
SETTLEMENTS: None
CRIMINAL CASE TRACKING
1.

CRIMINAL CASES ACCEPTED FOR PROSECUTION AWAITING TRIAL/
DISPOSITION:
ASSAULT:
U.S. v. Julian Lee Simmons (LOM), assault of Correctional
Officer that occurred on December 14, 1997. Case originally
scheduled for trial on May 26, 1998, but trial date vacated due
to inmate's conduct during hearing.
Judge ordered competency
hearing.
U.S. v. Aaron Stone (LOM), 1995 hostage situation.

Plea.

agreement reached.
Sentenced on June 1, 1998 to 36 months
consecutive to current sentence.
Judge assigned to the case was
Judge Marshall, same judge assigned to the Roy Green case, who
departed downward by 35 months; administrative action by BOP was
a factor.
ESCAPE: None
FRAUD/FORGERY:
u.S. v. Rich~rd Lewis (TCN) Inmate submitted falsified DAP
documents.
FBI has interviewed female accomplice in Las Vegas,
who has agreed to cooperate and has signed release for production
of her original treatment records, which were forged by inmate
Lewis.
HOMICIDE:
,u.S. v. Roy Green (LOM) , inmate indicted April 2, 1998 for murder
of SOS Scott Williams (2 counts) and assaults on four other
officers.
Defense counsel filed a motion stating that they
cannot adequately represent their client because he refuses' to
speak to them unless he has contact visitation.
Judge Marshall
has ordered a hearing concerning the matter, but wishes to visit
LOS to look at the accomodations herself prior to actually
scheduling the hearing. Although scheduled for June 9, defense
counsel have yet to meet with the committee at the USAO to
present any mitigating factors concerning the death penalty
issue.
u.S. v. Matt Lindsey (PHX), prosecution for November 1, 1997
murder of inmate Bernard Jackson. AUSA Pat Snyder is assigned to
prosecute the case.
INTRODUCTION/POSSESSION OF CONTRABAND:
u.S. v. Lamarr Dunn (LOM), On June 16, 1998, inmate pled guilty
to two counts of Possession of Contraband, 18 U.S.C.
§ 1791. One count involved Possession of Marijuana, the other
count involved Possession of a Prohibited Object (weapon).
Sentencing scheduled for September 9, 1998.
PROPERTY: None
SEX OFFENSES:
u.S. v. Robert Gorsuch (LOM), Former staff member pled
one count of Abusive Sexual Contact, 18 U.S.C. § 2244.
Sentencing scheduled for August 17, 1998.

gu:~~y

to

.
WEAPONS: None
l.

TOTAL CRIMINAL CASES REFERRED THIS MONTH: 23

3.

CRIMINAL MATTERS REFERRED (MATTERS DECLINED ARE NOTED) :
ASSAULT:

LOM -

2 inmate on inmate assaults
2 inmate on staff assaults
PHX - 2 inmate on staff assaults, declined
1 inmate on inmate assault, declined
2 inmate fights, declined
SAF - 1 inmate on staff assault
SOC - 1 inmate on inmate assault
SHE - 2 inmate on inmate assaults
TCN - 1 inmate assault on staff, declined
TRM - 1 inmate assault on inmate, declined
2 inmate fights, declined
ESCAPE: None
FRAUD/FORGERY: None

HOMICIDE: None
INTRODUCTION/POSSESSION OF CONTRABAND:

LOM - 3 introductions
1 conspiracy to introduce, declined
PROPERTY: None
SEX OFFENSES: None
WEAPONS:

Lorn - 1 inmate manufacture of a weapon
1 threatening a staff member and possession of a
sharpened· instrument
••

STATISTICS

~~

ADMINISTRATIVE REMEDIES
APR
MAR
JAN
FEB
114
80
112
91

MAY
90

JUN

110

JUL

AUG

SEP

OCT

NOV

DEC

to

I

ADMINISTRATIVE TORT CLAIMS
JAN FEB MAR
62
34
40
RECEIVED
47
64
CLOSED
38
1
0
RECONSIDER 0
102
PENDING
110 86
3
1
3
OVER 6
MONTHS

APR

MAY

JON

43
36
1
110
2

39

48
29
0
110
0

58
0
91
1

Tort Claim Investigations Over 60 Days:
I LOS I NEL I PBX
BRN I DUB I LOM I LOF
0
11
I0
10
10
10
10

JUL

AUG

SEP

OCT

NOV

DEC

I SAP I SDC I SHE I TRM I TCN I TOTAL
r0
I 0 11 17
I0
I9

FREEDOM OF INFORMATION/PRIVACY ACT:
FEB
MAR
APR
MAY
JON
JUL
AUG
SEP
JAN
OCT
NOV
DEC
23
26
32
39
19
21
RECEIVED
29
21
24
33
33
27
CLOSED
22
12
18
15
13
14
PENDING
0
0
2*
0
0
30 DAYS
2
0
0
0
0
0
0
6 MONTHS
1
1
4
1
0
0
APPEALS
* In both cases, wa1t1ng for records from the Federal Records Center.

FOI/PA PENDING MORE THAN 30 DAYS ON JUNE 30, 1998:
I LOS I NEL I PBX I SAF I SDC
BRN .1 DUB I LOM I LOF
0
I0
I0
I0
10
10
10
10

LO

I SHE I TRM I TCN I TOTAL
J0 I 0
I0
10

LITIGATION:

JAN

I

OPEN CASES
NEW CASES
HC
FTCA
BIVENS
OTHER
CLOSED
LITIGATION
REPORTS

297
24
19
1
4
0
134
13

FEB
306
21
17
1
2
1
12
15

MAR

311
17
5
5
5
2
11

8

APR
312
18
14
1
2
1
17
8

MAY
329
18
13

1
2
2

1
17

JON

325
9
5
1
2
1
13
5

JUL

AUG

SEP

OCT

NOV

DEC

..

u.s. Department of Justice
Federal Bureau of Prisons
Western Regional Office
Dublin, California 94568

August 17, 1998
MEMORANDUM TO WALLACE H. CHENEY
ASSISTANT DIRECTOR/GENERAL COUNSEL

FROM:

SUBJECT:
~~

Harlan W. Penn, Regional Counsel
Monthly Report for July 1998

CASES OF INTEREST

~~

SUPREME COURT:

James Jacks v. Crabtree, et al. (SHE), petition for writ of
certiorari filed January 7, 1998 by the Federal Public
)efender/Oregon in this 3621(e) action, challenging BOP's use of
~rior criminal convictions in eligibility determinations for early
release.
L-'
NINTH CIRCUIT MATTERS:

Timothy Robles vs. USA, et al. (No. CA9 96-56762)
Court of Appeals decided that Section 401 of the comprehensive Drug
Abuse Prevention & Control Act of 1970 does not permit the U.S.
Parole Comm. to impose a second term of special parole after it
revokes the original special parole term. BOP was ordered recompute
the sentence. USPC has issued a NOA, but Robles is in custody in
Hawaii facing drug charges while on release for this appeal.
Miller v. Crabtree & U.S. Parole Comm., CV-97-1338-CO -Notice of
Appeal filed.
DISTRICT COURT MATTERS:

Cordova v. Reno (TAF), first Bivens action filed by TAF inmate
naming both BOP and Wackenhut (WCC) defendants.
Inmate claims
refusal of dental treatment while in USMS, BOP, and WCC facilities.
Fresno USAO notified of case July 28, 1998.

.
Cox v. Bailey (SAF), CIV 97-749-TUC-FRZ. Habeas petition in which
inmate challenges his criminal sentence pursuant to 28 U.S.C. §
'241. Court has followed the CA9 decision in Lorentson allowing
_iling due to limitations imposed by AEDPA.
Onaghise v. Bailey (SAF), CIV 8-232-TUC-RMB. Habeas petition in
which inmate challenges his criminal sentence pursuant to 28 U.S.C.
§ 2241. Court has followed the CA9 decision in Lorentson allowing
filing due to limitations imposed by AEDPA.
Lunenburg v. Clark (SAF), CV 98-2749-CBM(SH) (C.D. Cal.) This habeas
petition for DAP credit was recently transferred to the District of
Arizona (Tucson) from the Central District of California.
Forgac v. Perrill, et al. (SET), C98-563 (Western Dist. of WA)
Bivens case alleges violations of Access to Courts: (law library,
duplication of legal materials, legal mail, legal telephone
calls)and Involuntary Servitude: Pretrial inmate sanctioned to
perform extra duty.
Kwasigroch v. Perrill, et al. (SET), C98-554C (Western Dist. WA)
Bivens case alleges violations of access to Courts: INS detainee
access to Main Law Library.
Adams v. BOP, et al. (SET), C98-149FVS (Eastern Dist. WA)
Bivens in which Plaintiff alleges sexual abuse by Geiger Corrections
~enter staff.
Complaint will be dismissed if Plaintiff does not
~ile an amended complaint by August 14, 1998.
Newson v. U.S.A. (NEL), $6,000,000 FTCA case in which wife and
husband sue U.S. for injuries she suffered in September 1994 auto
accident involving inmate driver. BOP liability is clear under
Nevada tort law, so damages is the main issue. Depositions are
being conducted in July and August.
TRIALS/HEARINGS: None
RELIGION: None
CASES DISMISSED PURSUANT TO PRISON LITIGATION REFORM ACT: None
ENVIRONMENTAL MATTERS: None
SETTLEMENTS: None
CRIMINAL CASE TRACKING
1.

CRIMINAL CASES ACCEPTED FOR PROSECUTION Aw.AITING TRIAL/
DISPOSITION:
ASSAULT:'

..

u.s. v. Julian Lee Simmons (LOM), assault of Correctional Officer
that occurred on December 14, 1997. Case originally scheduled
for trial on May 26, 1998, but trial date vacated due to inmate's
conduct during hearing.
Competency hearing ordered.
u.S. v. Jesus Martinez-Solares (TCN), Inmate had been found
mentally incompetent to stand trial.
This was erroneous. After
study at USMCFP Springfield, inmate was found competent.
Defense
counsel wants his client to sign plea agreement, however, it is
believed that his mental state has deteriorated and another study
has been requested.
ESCAPE:
u.S. v. Terrance Nikrasch (LOM), former FPC inmate pled guilty to
escape and possession of counterfeit currency.
Sentencing
September 28,' 1998.
~UD/FORGERY:

u.S. v. Richard Lewis (TCN), FBI has interviewed inmate Lewis'
Female accomplice in Las Vegas, Nevada.
She has agreed to
cooperate and has signed release for production of her original
WestCare treatment records, which were forged by Lewis.
.
Prosecution stayed pending AUSA's involvement in extradition of
suspects in USBP Officer murder in Nogales.
Suspects, including
the shooter, are currently confined in Mexico.
HOMICIDE:
u.S. v. Roy Green (LOM), inmate indicted April 2, 1998 for murder
of SOS Scott Williams (2 counts) and assaults on four other
officers.
Judge Marshall visited the visiting area provided at
LOS and found violation of 18 U.S.C. §3005, which provides that
counsel in capital cases shall have access to the accused Mat all
reasonable hours."
INTRODUCTION/POSSESSION OF CONTRABAND:
u.s. v. Lamarr Dunn (LOM), inmate pled guilty to two coun~~ uf
Possession of Contraband, 18 U.S.C. §1791. One count inv(·lv~~
Possession of Marijuana, the other count involved PosseS~l.r. of a
Prohibited Object (weapon).
Sentencing September 9, 19(t~.
PROPERTY: None
SEX OFFENSES:

o

u.s.

v. Robert Gorsuch (LOM) , former staff member pled guilty to
one count of Abusive Sexual Contact, 18 U.S.C. § 2244.
Sentencing scheduled for August 17, 1998.
WEAPONS: None

2.

TOTAL CRIMINAL CASES REFERRED THIS MONTH: 11

3.

CRIMINAL MATTERS REFERRED (MATTERS DECLINED ARE NOTED) :
ASSAULT:

LOM -- 2 inmate/inmate assaults referred
SAF - 1 inmate/ inmate assault deciined
1 inmate/ inmate fight declined
SDC - group fight involving 12 inmates declined
TCN - 1 inmate on staff assault
ESCAPE: None
FRAUD/FORGERY:

TCN - 1 Fraud/Forgery Case
HOMICIDE: None
INTRODUCTION/POSSESSION OF CONTRABAND:

LOM - 2 visiting room introduction cases referred.
SDC - 1 marijuana possession declined.
TRM - 1 marijuana possession referred.
PROPERTY: None
SEX OFFENSES: None
WEAPONS: None

••

STATISTICS··

ADMINISTRATIVE REMEDIES
APR
FEB
MAR
JAN
114
80
112
91

MAY
90

JUN

JUL

110

101

AUG

SEP

OCT

NOV

DEC

..

r RECEIVED
CLOSED
RECONSIDER
PENDING
OVER 6
MONTHS

34
38
0
110
1

40
64
0
86
3

62
47
1
102
3

43
36
1
110
2

48
29
0
110
0

39
58
0
91
1

Tort Claim Investigations Over 60 Days:
I LOS I NEL I PHX
BRN I DUB I LOM I LOF
0
12
11 .
11
10
10
11

FREEDOM OF INFORMATION/PRIVACY ACT:
APR
MAR
FEB
JAN
39
23
32
21
RECEIVED
33
33
24
27
CLOSED
12
18
22
14
PENDING
0
0
0
2
20 DAYS
0
0
0
0
6 MONTHS
1
1
0
0
APPEALS

MAY
26
29
15
2*
0
4

52
57
1
106
0

I SAF TSDC I SHE I TRM TTCN I TOTAL
I0

10

JUN

JUL

19
21

30
29
14
2**
0
2

13

0
0
1

1 0

AUG

11

12

OCT

SEP

16

NOV

DEC

* In both cases, waiting for records from Records Center.
** Staff ·at SDC searching for old visitor logs & ISM at SHE unable to locate
records.
FOI/PA PENDING MORE THAN 20 DAYS ON JULY 31, 1998:
I LOS I NEL I PHX I SAF I SDC
BRN I DUB I LOM I LOF
1
I
I
I
I
I
I

T

1

I SHE I TRM TTCN I TOTAL
I1

I

I

12

LITIGATION:
OPEN CASES
NEW CASES
He
FTCA
BIVENS
OTHER
CLOSED
LITIGATION
REPORTS

JAN
297
24
19
1
4
0
134
13

FEB
306
21
17
1
2
1
12
15

MAR

311
17
5
5
5
2
11
8

APR
312
18
14
1
2
1
17
8

MAY
329
18
13

1
2
2
1
17

JUN

JUL

325
9
5
1
2
1
13
5

325
15
8
1
5
1
15
6

AUG

SEP

OCT

NOV

DEC

U.S. Department of Justice

Federal Bureau of Prisons
Western Retl;Onal ()ff;c{!
Dublin, California 94568

September 3, 1998
MEMORANDUM TO WALLACE H. CHENEY
ASSISTANT DIRECTOR/GENERAL COUNSEL

FROM:

SUBJECT:

Harlan W. Penn, Regional Counsel
'Monthly Report for August 1998

NEW LITIGATION:

Atadero v. BOP et al. (TAF) , §2241 petition challenging denial of
3621(e) sentence reduction due to prior robbery conviction.
Petition filed July 6, 1998. AUSA Sherrill A. LaPrade faxed
oetition to WXRO August 25, 1998. Response due September 28, 1998 .
.~agistrate Judge mistakenly construed petition as alleging loss of
good time credits. Dennis Wong has been assigned the litigation
report, due to AUSA by September 15, 1998.
Brodin v. Hawk et. a 1 .. (SHE), Habeas Corpus action challenq i
jurisdiction of court in underlying criminal conviction.

nq

Crooker v. Adams (LOM) , Habeas Corpus action in which inmrltt'
alleges that he is a Medium security inmate wrongfully desiqrl.Jt ._'d to
a penitentiary.
Inmate also alleges that he cannot parti("i~'d!" lrl
DAP, even though it was judicially recommended, because
penitentiaries no longer offer the program.
Dowling vs. Crabtree (SHE), Emergency motion to release infTI,s', ~ " d
halfway house.
Inmate was mistakenly determined to be OAf' "I: _.
release eligible and scheduled for halfway house on Septemt.:
1998. FPD argues that staff error should not preclude imr..I"
::.,r..
completing communi t y t ransi t ion component as schedu led anu :' '. '; : llq
early release incentive.
Dozier v. Fitzpatrick (LOM), 3621 (e) case in which the inrr"l"
alleges that he should be eligible for reduction in senten"
orior manslaughter conviction.

:.

;~

t'

Earls vs. Haro (NEL), 3621(e) case challenging denial of eligibility
under Director's discretion for 841 enhancement.
iernandez v. United States (LOS), FTCA complaint in which plaintiff
alleges that MDCLA Staff began " a systemic psychological effort to
create a rift between him and his co-defendants (Mexican Mafia
Members) based on information that he was on a hit list." As a
result, plaintiff alleges his assault by a another inmate while in
the holding cell of the United States Marshal Service was due to
MDCLA's negligence.
Hidalgo v. Perrill (SET), Bivens complaint in which plaintiff
alleges illegal confinement in the Special Housing Unit in violation
of his due process rights.
Livingston v. Bailey (SAF), 3621(e) case in which inmate alleges his
firearms conviction under Section 924 (Bailey) should be dismissed.
Marsh v. Reno et al. (TAF) , Bi vens complaint alleging lack of
medical care by both BOP and TCI.
Inmate mailed copy to WXRO' which
was not file-stamped.
Defendants are AG, Director, USMS, Wardens of
LOS, TRM, SAF, PHX, BRN, and "Pleasanton", and Wackerthut Corrections
Corp., TCI, and their Hospital Administrator and Clinical Director.
No indication of service.
Matt Carney assigned the litigation
report.
~ikolacik

v. Unknown Agents (LOM), FTCA/Bivens complaint in which
Lnmate alleges he contracted a virus as a result of being double
celled with inmates who were infected with the virus.

Mi tchell v. USA, et al. (TAF), Bi vens complaint re environmental
tobacco smoke.
SCRO Assistant Regional Counsel Al Munguia notified
us on August 25, 1998 that he is working on the case, per OGe
Litigation Branch, since there are a large number of BOP detpndants
in several institutions, most of them in SCRO.
Reed vs. Hawk, et. a 1. (SHE), Habeas Corpus act ion cha llenq i nil
jurisdiction of sentencing court to try and sentence the lin' I,·: i yinq
criminal conviction.
Riggs v. Perrill (SET), Habeas Corpus in which pet it ione r Chd. ~ ,--nges
his urinalysis resul t s, cIa iming BOP is requi red to conduct :: .::- ,:e
determination tests when loss of good conduct time is at i ~~; ';'.
Peti tioner claims hi s pos i t i ve drug test is due to his con~ :;~; ~ ,;)ll
of poppy seeds. A dra f t mot ion was completed, and a respon:-;·· .... I:
filed on August 17, 1998.

CRIMINAL CASE TRACKING

1.

CRIMINAL CASES ACCEPTED FOR PROSECUTION AWAITING TRIAL/
DISPOSITION:
ASSAULT:

u.s. v. Julian Lee Simmons (LOM) , assault of Correctional Officer
that occurred on December 14, 1997. Case originally scheduled
for trial on May 26, 1998, but trial date vacated due to inmate's
conduct during hearing. Competency hearing ordered. No new
information.
U.S. v. Jesus Martinez-Solares (TCN), Inmate had been found
mentally incompetent to stand trial.
Thi~ was erroneous.
After
study at USMCFP Springfield, inmate was found competent.
Defense
counsel wants his client to sign plea agreement, however, it is
believed that his mental state has deteriorated and another study
has been requested.

ESCAPE:
U.S. v. Terrance Nikrasch (LOM) , former FPC inmate pled guilty to
escape and possession of counterfeit currency.
Sentencing
September 28, 1998.

FRAUD/FORGERY:
U.S. v. Richard Lewis (TCN), Lewis forged documents to
substantiate drug use to qualify for DAP and early release.
FBI
has interviewed inmate Lewis' Female accomplice in Las Vegas,
Nevada.
She has agreed to cooperate and has signed release for
production of her original WestCare treatment records, which were
forged by Lewis.
Prosecution stayed pending AUSA's involvement in
extradition of suspects in USBP Officer murder in Nogales.
Suspects, including the shooter, are currently confined in
Mexico.

HOMICIDE:
U.S. v. Roy Green (LOM) , inmate indicted April 2, 1998 for murder
of SOS Scott Williams (2 counts) and assaults on four other
officers. On July 30, 1998, Judge Marshall signed an order
establishing new deadlines.
Trial date is April 13, 199~;
October 5, 1998, deadline for defense counsel to present
mitigating factors to USAO concerning death penalty; October ::,
1998, deadline for USAO to send death penalty submission tCI ~OJ;
and November 23, 1998, deadline for gov't decision.

INTRODUCTION/POSSESSION OF CONTRABAND:

u.s.

v. Lamarr Dunn (LOM) , inmate pled guilty to two counts of
Possession of Contraband, 18 U.S.C. §1791. One count involved
Possession of Marijuana, the other count involved Possession of a
Prohibited Object (weapon).
Sentencing September 9, 1998.
PROPERTY: None
SEX OFFENSES:

u.S. v. Robert Gorsuch (LaM), former staff member pled guilty to
one count of Abusive Sexual Contact, 18 U.S.C. § 2244.
Sentencing rescheduled for September 28, 1998.
WEAPONS: None
2.

TOTAL CRIMINAL CASES REFERRED THIS MONTH: 7

3.

CRIMINAL MATTERS REFERRED (MATTERS DECLINED ARE NOTED) :
ASSAULT:

LOM -- 1 inmate on inmate stabbing, pending
1 inmates assault on inmates, pending
inmate on inmate, denied
ESCAPE: None
FRAUD/FORGERY:
HOMICIDE: None
INTRODUCTION/POSSESSION OF CONTRABAND:
LOM - 1 visiting room, pending
1 conspiracy to introduce, pending
PROPERTY: None
SEX OFFENSES: None
WEAPONS: None
LOM - 1 introduction of weapon, pending

.•

STATISTICS ......

2

I ADMINISTRATIVE
I

JAN

l 91

FEB
112

REMEDIES
APR
114
80

MAR

MAY
90

ADMINISTRATIVE TORT CLAIMS
JAN FEB MAR
40
34
62
RECEIVED
47
CLOSED
64
38
0
1
RECONSIDER 0
.PENDING
102
110 86
3
3
1
OVER 6
MONTHS

APR
43
36
1
110
2

JUL
101

JUN

110

MAY
39
58
0
91
1

JUN

48
29
0
110
0

Tort Claim Investigations Over 60 Days:
I LOS I NEL I PHX
BRN I DUB I LOM J LOF
0
11
14
I0
I0
I3
I0
CCM Long Beach 1
Taft
1

FREEDOM OF INFORMATION/PRIVACY ACT:
FEB
MAR
APR
JAN
32
21
23
39
RECEIVED
24
27
33
33
CLOSED
22
12
18
PENDING
14
0
0
0
20 DAYS
2
0
0
0
6 MONTHS
0
0
1
1
0
APPEALS

MAY
26
29
15
2
0
4

SEP

AUG
114

JUL
52
57
1
106
0

AUG
50
45
2
113
0

OCT

SEP

NOV

OCT

DEC

NOV

DEC

I SAF I SDC I SHE I TRM I TCN I TOTAL
I0
12
15
11
I 0 I 18

JUN

19
21
13

0
0
1

JUL
30
29
14
2
0
2

AUG
20
22
12
0
0
3

FOI/PA PENDING MORE THAN 20 DAYS ON JULY 31, 1998:
BRN I DUB I LOM I LOF
I LOS I NEL I PHX I SAF I SDC
0
I0
I0
I0
I0
J0
I0
I0
10

SEP

OCT

NOV

DEC

J SHE I TRM I TCN I TOTAL
I0

I0

I0

I0

LITIGATION:
OPEN CASES
NEW CASES
I HC

JAN
297
24
19

FEB
306
21
17

MAR

311
17
5

APR
312
18

MAY
329
18

14

13

JUN

JUL

325
9
5·

325
15
8

AUG
333
12
7

SEP

OCT

NOV

DEC

.,

FTCA
BIVENS
OTHER
CLOSED
LITIGATION
REPORTS

1

1

5

1

1

1

1

0

4

2

5

2

2

2

5

4

0

1

2

1

2

1

1

1

1
17

13

15

4

5

6

7

134

12

11

17

13

15

8

8

lJ.S. Department of Justice

Federal Bureau of Prisons
Dublin, California 94568

October 8,

1998

MEMORANDUM TO WALLACE H. CHENEY
ASSISTANT DIRECTOR/GENERAL COUNSEL

FROM:

SUBJECT:

Harlan W. Penn, Regional Counsel
Monthly Report for September 1998

LITIGATION
NEW 3621(e) CASES:
Allen v. Crabtree, (SHE) Removal from DAP program after discovery
that inmate lacked proper documentation for admission.
Atadero v. Bureau of Prisons, (TAF) 3621 (e) ear] y relea~(-' dpnicd
because of prior ddult robbery conviction.
Inmate Atad("r<-, held
completed the RDAP prior to the enactment of 3621 (-,) alld dr'llleS
that subsequent preclusion is an issue of improppr relll .!'-' :v.-'
application ot BOP policy.
l

Gavis v. Crabtree, (SHE)
ear 1 y reI e as e pur sua n t t
5330.10.

CJ

Determination inmate wa:~ int'liqi:
C han 9 e Not ice - 0 3 toE' r () q r d m ~ ~ t .!: .

Niemeier v. Crab!'l ee, (~HE) Delermilldtion inmat t'
for early relerlst' pursudllt to c:hanqp Notice-(l~ t,
Statement 5330.1().

v;d:~

Washeleski v. (:rdb~ rpe, (SHE) Det(;lmindl iun i nrnd:"
for ear 1 y r e 1 e d Sf' f) l1 I S lJ d n t toe han q F' Nl) tic e - C13 1,
Statement 5330.1 ().

J

r,·

!'t"'l: J:'

Wd::
;'

.,

r ( ,;: ..

Wood v. Pontess(J, (PH:-:) I'nmate st?pkinq i6;'1 (e) t·, it]('\ i·:.
a 1995 memorandum ll'qu.'stillq eliqiL)ility tur th·, :-;\[' !:
Denied due to a ;-p'Jin! L'nhanL:ement tor weapons f':::';":';:::

tnr
:~., r i t

. NEW CASES/OTHER:
Anderson v. Clark, (TRM) Bivens action in which inmate Anderson
alleges that Warden Clark violated his Eighth Amendment rights by
not releasing him to a halfway house. When we received a copy of
this petition, it was accompanied by the Court's dismissal of the
case without prejudice.
Cash v. Adams, (LOF) Habeas petition in which the inmate alleges
that he received a false incident report upheld by the DHO.
Davis v. Rardin, (LOM) Bivens action in which the inmate alleges
that he was placed in the Special Housing Unit for 59 days
without being served a detention order or charged with any rule
violation.
Inmate also alleges that he was not allowed to
purchase bottled water while in SHU, which resulted in damage to
his skin.
Radovich v. Esqueda, (SOC) Bivens action in which plaintiff
alleges unlawful search, seizure, arrest and detention.
He also
claims he was required to submit to an unlawful strip search at
MCC San Diego where his religious underclothing was cut ott his
body. He seeks compensatory, punitive and "exemplary" damaqps.
The incident at MCC was videotaped.
Shorter v. Renn, (TRM) Bivens action in which inmate allp(H-~::;
inadequate medical treatment for his eye condition while dt FeI
Terminal Island and FPC Nellis, dnd asks for $7,OOO,O()() i l l
damages.
Recently, the Court ordered the Clerk to neqrlt. ~ :\\'
original filinq nf thi~ case since the matter 'had not l""li
.reviewed pursuant t<l the ['LRA. Since the Court c()lwllld·',: ':j.J~
inmate Shorter had tu make partied payments, and ~w held !, "
: r;::
case currently not d(lc:kcted.
Labostrie v. Seifert, (LOS) Bive1Js action in which pLJ;I,:
private investiqat(lr who alleges violations of his ( : ( l l l : " : '
right to access tu inmates housed at MDCLA. Plaintitt 1t,',1.
entrance due to failure to report criminal histc1ry nrl
non-attorney applicatiun. Seeks injunctive, decldldt()l',',
monetary relief.

" 1

:'

Lundahl v. United ~;tatcs, (LOS) FTCA/Bivens acti!)l; Will I'
Lundahl vaguely dllt-~(w~ thlee unit staff member~ t:nnc";f ..
violate her civil r iqht :.~.

Meyers v. Sinclvsf::r'! (L/.'.~) (::Upt:l ie'l Court, CA.) !';\"'.'::.'
was filed in thE-' Wl"llq j~()llrt. PldiliLiLf IS CUrrt.'111 ly ,J:.

.....

housed at MDCLA.
Plaintiff alleges deliberate indifference to
his medical needs, improper medications dispensed and exposure to
extensive liver damage and possible death.
Seeks compensatory
and punitive damages.
Parker v. Adams, (LOF) Habeas petition in which inmate alleges
that the BOP refuses to release him to Washington D.C., to serve
the remainder of his concurrent term.
Troutt v. Adams, (SAF) Bivens action in which former inmate
claims a PA subjected him to a painful prostate examination
without medical justification.

SIGNIFICANT DEVELOPMENTS:
Bowen v. Crabtree, (SHE) 3621(e) decision affecting eleven
inmates.
District Court held BOP may not apply Change Notice-03
to Program Statement 5330.10 to inmates who have been determined
to be provisionally eligible for the early release incentive
without running afoul of the retroactivity doctrine and the Ninth
Circuit's recent decision in Cort v. Crabtree, 113 F.3d 1081 (9
Cir. 1997).
Buggs v. Crabt ree , (SHE) Habeas sentencing decision aga i rlst BOP's
computation of inmate's sentence.
Although inmate was first
arrested by StatE-:' .::;overeign, Court ruled that State reI i llqll i shed
primary custody by failing to follow proper criminal pr(\I"',jtll f ' .
Thus, Federal authurities became primary custodian de.::;pit" !llfll.Jlt'
only coming into Federal custody pursuant to writ of hath'd::
corpus ad proseq1l0ndllm.
For g a c v. Per r ill, ( ~ ET ) P 1 a i n t iff f i led a Fir s t Am end f' Ii
Complaint addinq tw··LVt' new defendants on August ~"
1 Ll l j " .
Furguiel v. Ben(lv, ('rPM) Auqust ~:), 1998, opinion neqd!'
opinion previ(lLl:~ly t ilf'u on Mdrch lO, 1998.
In thj,.; ':1_
case, the 9' Ci 1I'Ii it (',)llcluded that there was no issu,
retroactivity 1'''II,''':-l,ilJll the poliry against prior vic']··:,'
convictions s1 ric"· : hi' HOf' had never informed him he W,i:
eligible.
The k.'·,: Wd~ t.hat the inmate had no "settled
expectations" ttl.t: tit' Wd~ ever eliqible for early rel,-,j,
Hogan v. USA, ('I'F'~·~, !·:'.·,':I::FTiA '--:':150 concprninq (111"'-.1,1'.
occurred primal; :,' 1: i\'!':" wittl som'" minor alleUdt J(lfl:'
from TRM, SDC, dII i "ll.
!Iismis.::;ed due to impro~wl Vf'II
Kalka & Mitchr'l ~ .... !.,. "},1' 11 I~_"~---,-:J_. , (TeN) (SJth ( , i r .
appeals the Dis!; :.. . II: t '." qrdIlI r.d detendants' Mr)t if':.
Summary Judgemell:, '. :' 1'.'
oJ , ,t i 'r I L,.) ~ e don
1 s t, >t- h , ."
14th Amendment - (1: - ';:, i.
,! ;"UillCl f'l i·son officials imp;':, .
t ' " ; : '

I

his legal mail, disclosed privileged material to AUSA and IRS,
who in turn, obtained search warrant to search Kalka's cell/legal
materials. In the same motion, Kalka seeks mandamus action
against prison officials at OXF and extension to file appeal
brief.
Defendants' reply filed September 2, 1998 opposing
mandamus relief and extension. By order dated September ~l,
1998, 9th Circuit denied mandamus relief, granted motion tor
extension, and accepted Plaintiffs' opening brief. Answer due
October 21, 1998.
Mota v. United States, (SOC) Pretrial Conference has been
continued and calendared for November, 9 1998.
Parmelee v. Benov, (SOC) On September 14, 1998 continuance filed
for telephonic status conference before Magistrate Judge.
Calendared for October 16, 1998.
Riggs v. Perrill, (SET) Respons'e to Petitioner's Reply Brief
filed on September 30, 1998.
United States v. Keesee, (TRM) Habeas petition concernin<l
detainer dismissed as moot.

,j

CRIMINAL CASE TRACKING

Criminal Cases
JAN
Referred
Accepted
Declined
Pending
Decision

FEB

MAR

APR

MAY

JUN

JUL

AUG

SEP
26

OCT

3

16
7

Declined Cases:

(DUB) Inmateassdlll te'<1 dlluther inmdtc'.
(LOM) On August 3, 19qH inmate acti vateci a metal <it:!
subsequent search 1 OCd t ed a weapon ill his 1 eft 5IwF'.

0'

(PHX) On August 30, 1(1Q8, staff conducted a rout ill" f
inmate. The inmate attempted to secret.e a sllbst rlfl""
and refused order;.; t (' r't (Jduce the item.
Inmate r"~~ i ,"
to be restrained dnd sf'veral other ~5ldtf 'member;~ t tWI,
against inmate Bud:,,=,. TWl) str3tt memb.'rs H='ceivc'd ;lIill'
from the use of t(lt,';:".

NOV

DEC

Recreation Cage.
(PHX) On September 8,
(PHX) On September 23,

1998, inmate assaulted another inmate.
1998, inmates were involved in a fight.

(PHX) On September 26, 1998, inmate became combative while being
escorted to SHU for using intoxicants.
Inmate was taken to the
ground by staff.
(PHX) On September 28,
UNICOR.

1998, inmates were observed fighting in

(TCN) On September 15, 1998 staff became aware that an inmate
submitted a fraudulent claim against the BOP/United States, under
the FTCA.
(TCN) On September 11, 1998 inmate assaulted another inmate,
striking him with closed fists in SHU. Each inmate received
minor/superficial injuries.

by

(TCN) On September 9, 1998 inmate became verbally abusive with
staff and was placed in hand restraints/taken to SHU.
While
under staff escort to SHU, inmate spat at/hit Senior Offj,'C't
Specialist.
(TCN) On September 16, 1998, while housed in SHU, inmat'· W,j;-;
observed ingesting a foreign object and refused staff <'1 j •.• " t
produce the item, instead swallowing it.
Inmate was pid"": (lfj
dry cell status.
1.29 grams of a brown tar-like substarl'"
wrapped in plastic, was discovered.
The substance te~t.· I
positive for heroin but the inmate was no longer in nt ~: " , ,j: ....
cell status nor under constant staff supervision.
(I

(TRM) Inmate was found wi th approximatel y 90 gram:-; l>l r: ::
. ,::<1.
Although the U.S. Attorney's Office has indicated thci:
,.
to prosecute due to quantity and since the inmat" wi 1
another 15+ years, we dre attemptinq to persudde tiw...
:"
I
AUSA about the impo r t dnee () f prosecu t i nq the i nmd t .' •
(TRM)

Inmate assaulted

~nother

(TRM)

Inmate was f!lund

ltl

posse:-;sion uf mariiudlld

(TRM)

Inmate WdS tnUlld

lli

possession of heroin

Active Prosecutions:
ASSAULT:

inmate.
(.1

(.hl.

u.s. v. Lee, (SAF) Gerald Lee, Reg. No. 49025-008 assaulted
Nathaniel Askew, Reg. No. 88847-011 with a pool ball in a sock.
Sentencing scheduled for October 5, 1998.
U.S. v. Martinez-Solares, (TCN) 1996 staff assault perpetrated by
inmate Martinez (a.k.a. Gomez-Diaz) on female counselor.
Following competency examination, inmate pled guilty.
Staff
member/victim appeared at sentencing on September 24, 1998 and
provided victim impact statement. Awaiting further update from
AUSA as to particulars of plea agreement.
United States v. Simmons, (LOM) Assault of a correctional officer
that occurred on December 14, 1997.
Inmate Simmons found
competent to stand trial. Trial scheduled for October 20, 1998.
United States v. Wehmhoefer, (LOM) Assault of another inmate that
occurred on March 4, 1997. Trial scheduled for October 13, 1998.
ESCAPE: None
FRAUD/FORGERY:

U.S. v. Lewis, (TCN) Prosecution of inmate Lewis, Reg. No.
28914-048, for soliciting drug abuse treatment records from
outside source to falsify and falsifying documents to provide
documentation of history of substance abuse to support his
application to RDAP program for purpose of becoming eligible for
§ 3621(e) early r~lease incentive.
Grand Jury Hearing irlitially
set for September 30, 1998, but postponed due to schedulillo
HOMICIDE:

United States v. Green, (LOM) On July 30, 1998, L1udge Mrit ;::.0111
signed an order establishing new deadlines. Trial date ;:: tlf'! i 1
13, 1999; October S, lCjCJ8, deadline for defense ,',)unsel "
present mitigating factors to USAO concerninq de,lt h P"lloI:' .,.;
October 22, 199H, deadline tor USAO to send der1Ul IWlld 1 t ':'
submission to DUel; and November ~3, 1 CJ 9R, deadJi!I" 11'1
prosecution deci~ion to file a notice of intent 1" :-;\"'f: '~.' i",llL
penalty.
Currently rdrLicipdtinq in .several crimitl(d ' 1 : . , ..
requests.
U.S. v. Lindsey, (PHi:) Prosecuti(ln ot inmate Mat!
Register No. 02331-061 tor November 1, 1997 murd"l
Be rna r d J a c k son, Re q i s l erN 0 • II 17 ::' ::' - 0 0 8 . Lin d.5 \ .')'
September 8, 199H.
INTRODUCTION/POSSESSION OF CONTRABAND:

Lind!~.·:,

cd
W d ;:;

!:.~:,'.
;:.:.

scheduled for trial on October 6, 1998.
Four staff members are
expected to testify along with former staff member Phyllis Goree.

PROPERTY: None
SEX OFFENSES:
u.s. v. Goree, (PHX) Sentencing for Sexual Contact with a
~risoner and Accepting a Bribe is scheduled for October 5, 1998.
united States v. Gorsuch,· (LOM) Former staff member pled guilty
to one count of Abusive Sexual Contact, 18 U.S.C. §2244.
Sentenced on September 28, 1998. Received a sentence of 51
months, 3 year term of supervised release, and $100 special
assessment.

WEAPONS: None
~~

ADMINISTRATIVE REMEDIES
FEB
JAN
I MAR APR
80
112
1114
91
I

STATISTICS

MAY
90

~~

JON

I JUL I AUG I SEP

TOCT TNOV

I DEC

110

1101

I

I

1114

1126

I

FREEDOM OF INFORMATION/PRIVACY ACT:
DEC·
APR MAY JON JUL AUG SEP OCT NOV
FEB MAR
JAN
20
33
30
26
19
32
23
39
RECEIVED 21
22
33
29
21
29
33
24
33
27
CLOSED
12
12
14
12
18
15
13
22
14
PENDING
0
0
2
0
2
0
0
0
2
20·DAYS
0
0
0
0
0
0
0
0
6 MONTHS 0
0
3
1
4
1
2
0
1
0
APPEALS
FOI/PA PENDING MORE THAN 20 DAYS ON SEPTEMBER 30, 1998:
NEL
PHX
SAF
SDC SHE TRM
LOF
LOS
TCN TOTAL
BRN DUB LOM
0
0
0
0
0
0
0
0
0
0
0
0
0
ADMINISTRATIVE TORT CLAIMS
JAN
34
38
0
110
1

FEB
40
64
0
86
3

MAR

APR
43
36
1
110
2

MAY
39
58
0
91
1

JON

48
62
RECEIVED
47
29
CLOSED
1
0
RECONSIDER
102
110
PENDING
0
3
OVER 6
MONTHS
Tort Claim Investigations Over 60 Days:
BRN
0

DUB
3

LOM
3

LOF
0

LOS
1

NEL
0

PHX
1

SAF
0

JUL
52
57
1
106
0

AUG
50
45
2
113
0

SDC
3

SEP
27
36
1
105
0

SHE
0

OCT

NOV

DEC

TRM

TCN

TOTAL

1

1

13

LITIGATION:
MAR

286

FEB
297

JAN

'.~

MAY

JUN

306

APR
311

329

JUL
325

AUG
325

SEP
333

312

OPEN AT
BEGINNING
OF MONTH
NEW CASES
RECEIVED
HC

24

21

17

18

18

9

15

12

17

19

17

5

14

13

5

8

7

8

FTCA

1

1

5

1

1

1

1

0

2

BIVENS

4

2

5

2

2

2

5

4

7

OTHER

0

1

2

1

2

1

1

1

0

CLOSED

13

12

11

17

1

13

15

4

2

PENDING AT
END OF
MONTH
LITIGATION
REPORTS
COMPLETED

297

306

311

312

329

325

325

333

348

13

15

8

8

17

5

6

7

7

OCT

NOV

DEC

u.s. Department of .Justice
Federal Bureau of Prisons
Dublin, California 94568

November 12, 1998
MEMORANDUM TO WALLACE H. CHENEY
ASSIST~

FROM:

SUBJECT:

DIRECTOR/GENERAL COUNSEL

Harlan W. Penn, Regional Counsel
Monthly Report for October 1998
LITIGATION

,-

This report includes information from all Western Region
Institutions except only partial information was received from
FCI, Terminal Island and no information was received from FC!
Dublin. Next month's report will incorporate these reports.

\.,
NEW 3621 (e) CASES:
Nelson v. Crabtree, (SHE)
Habeas petition challenging BOP
determination inmate was ineligible for early release pursuant to
Director's discretion when he was previously determined to be
eligible.
Williams v. Clark, (TRM) Habeas petition challenging BOP
determination inmate was ineligible for DAP and early release due
to a 2-point enhancement.
NEW CASES/OTHER:

(

Grafman v. Hood, (TCN) Bivens complaint against Wardens Hood and
Floyd, a TCN Case Manager, unknown staff of the USPC, plaintiff's
USPO, and the Behavioral Systems Southwest CCC.
The inmate is
alleging false imprisonment, violation of civil rights by USPC in
imposing unlawful 2nd term of special parole, damages relating to
plaintiffs contracting Hepatitis C, slander when he was
classified as a sex offender, and emotional distress. This
follows Grafman's successful habeas corpus petition, which found
the USPC lacked authority to impose 2nd special parole term.
Order granting relief compelled USPC to reissue new Notice of

3239

Action, amending plaintiff's release date to account for street
time.
Hardy v. Crabtree,

(SHE) Habeas petition.

Hogan v. USA, (SDC) Bivens/FTCA refiled, originally filed in the
same district and dismissed for improper venue. Case concerning
allegations which occurred primarily at ATL, with some minor
allegations arising from TRM, SOC, and COA.
All individual
government defendants have been named in their official
capacities only. AUSA Wang intends to file a Motion to Dismiss on
or before December 4, 1998.
Jones v. Hood, (TCN)
Motion to Reinstate Petition for Habeas
Corpus, although no service of original petition.
PACER info
reveals that § 2241 petition was filed April 29, 1998, with a May
6, 1998 order for service to be effected at government expense.
On September 11, 1998, Judge Browning dismissed the case under
Rule 41(b), for failure to prosecute.
Petitioner's motion to
reinstate was filed on October 23, 1998.
It is uncertain as to
what the underlying issue is, though it is believed to be a
state/federal concurrency matter.
Review of Administrative
Remedies fails to reveal any filings by this inmate.
McGowan v. Greenhill, (SHE)
Bivens action alleging excessive use
of force against Correctional Officer.
Reed v. Adams, (LOM) FTCA action in which the inmate alleges that
he received injuries to his shoulders, back, and head as a result
of a fall.
Simpson v. Files, (LOM) Bivens action in which the inmate alleges
that his legal material was destroyed, that he was prevented from
accessing the law library, and that he was assaulted while housed
in the Special Housing Unit.
SIGNIFICANT DEVELOPMENTS:
Bowen v. Crabtree, (SHE) 3621(e) decision affecting eleven
inmates. Court held BOP may not apply Change Notice-03 to
Program Statement 5330.10 to inmates who have been determined to
be provisionally eligible for the early release incentive without
running afoul of the retroactivity doctrine and the Ninth
Circuit's .recent decision in Cort v. Crabtree, 113 F.3d 1081 (9 1h
Cir. 1997). Supplemental Order issued requiring inmates to
complete community transition phase of the program prior to
receiving year off.
(

Kalka & Mitchell v. Megathlin, (TCN) (9th Cir.) Kalka appeals the
District Court's grant of defendants' Motion for Summary

3240

(

Judgement, in Bivens action based on 1st, 5th, 6th, & 14th
Amendment grounds, alleging prison officials improperly read his
legal mail, disclosed privileged material to AUSA and IRS, who in
turn, obtained search warrant to search Kalka's cell/legal
materials. In the same motion, Kalka seeks mandamus action
against prison officials at OXF and extension to file appeal
brief.
Defendants' reply filed September 2, 1998 opposing
mandamus relief and extension.
By order dated September 21,
1998, 9th Circuit denied mandamus relief, granted motion for
extension, and accepted Plaintiffs' opening brief. Answer due
October 21, 1998. Government obtained 3D-day extension to answer
Kalka's opening brief which appeals the district court's grant of
defendants' Motion for Summary Judgement. TCN legal staff
assisting AUSA in drafting reply brief. Answer due December 4,
1998.
Kurtz v. USA, (SHE) FTCA action alleging negligence on behalf of
Bureau staff in failing to prevent inmate from attempting to
commit suicide by hanging.
Inmate is permanently impaired.
Trial date' set for January 26 and 27, 1999.
Manning v. Reeves, (PHX) On appeal in the 9th Circuit.
had previously been reporte~ closed on August 1, 1997.

,r

This case

Mota v. USA, (SOC) Pre-Trial Conference has been continued and
calendared for November 9, 1998.
Plaintiff's ex parte
application to continue pre-trial conference was denied as per
order signed on October 20, 1998, by Judge Gonzalez.
Parmelee v. Benov, (SOC) On September 14, 1998, continuance filed
for telephonic status conference before Magistrate Judge.
Calendared for October 16, 1998. On October 30, 1998, a second
telephonic case management/settlement conference was scheduled
before Magistrate Judge Burns.
CRIMINAL CASE TRACKING

Criminal Cases
JAN
Referred
Accepted
Declined
Pending
Decision

(

FEB

MAR

APR

MAY

JUN

JUL

AUG

SEP

OCT

NOV

14
1

5
8

Declined Cases:

(SAF) On October 13, an inmate was found with a swollen face and

3241

DEC

('

another inmate is suspected of assault.
(SAF) On October 13, an inmate was found with bruises and another
inmate is suspected of assault.
(TCN) On October 24, 1998, an inmate threw his food tray out of
the food trap in SHU, striking a Senior Officer in the leg.
No
injuries observed.
Declined October 29, 1998, in favor of
administrative disciplinary action.
(TCN) On October 11, 1998, a Correctional Counselor had
instructed an inmate to depart the north side of Yucca Unit and
return to his assigned unit, Yucca South. As she turned her
back, other staff observed the inmate draw back a clenched fist
and make a swinging motion towards the back of her head.
There
was no contact.
Inmate was placed in SHU without incident.
Declined October 16, 1998 in lieu of administrative action.
(TCN) On October 5, 1998 inmate assaulted a Senior Officer when
he threw his food tray out of the food trap in SHU, striking him
in the leg.
No injuries were sustained.
Declined October 7,
1998, for administrative disciplinary proceedings.
Active Prosecutions:
ASSAULT:

U.S. v. Martinez-Solares, (TCN) Prosecution for 1996 staff
assault perpetrated by inmate Martinez (A.K.A. Gomez-Diaz) on
female counselor. Following competency examination, inmate pled
guilty to 18 U.S.C. § III Assault charge on September 24, 1998.
Staff member/victim appeared at sentencing and provided her
victim impact statement.
Inmate was sentenced by Judge Roll to a
30-month term.
U.S. v. Simmons, (LOM) Case involves the assault of a
correctional officer that occurred on December 14, 1997.
scheduled for December 1, 1998.

Trial

u.S. v. Wehmhoefer, (LOM) Case involves the assault of another
inmate that occurred on March 4, 1997. Trial scheduled for
January 12, 1998.

u.s. v. Lee, (SAF) Case involves the assault of another inmate
with a pool ball in a sock.
Sentencing scheduled for October 5,
1998.

(

ESCAPE:
U.S. v. Nikrasch,

(LOM) Case involves

3242

~n

escape from the FPC in

(

December of 1995.
Inmate pled guilty to one count ,of Escape from
a Federal Institution, one count of Possessing and/or Passing
Counterfeit $100 Bills, and one count of Possessing over $5,000
in Counterfeit Currency. Sentencing scheduled for November 2,
1998.
FRAUD/FORGERY:
u.s. v. Lewis, (TCN) Prosecution of inmate Lewis for soliciting
drug abuse treatment records from outside source to falsify, and
falsifying records to provide documentation of history of
substance abuse to support his application to RDAP program for
purpose of § 3621(e) early release eligibility. Grand Jury
Hearing held October 14, 1998, with indictments to follow in near
future.
HOMiCIDE:
u.S. v. Matt Lindsey, (PHX) Prosecution of inmate Matt Lindsey,
for November 1, 1997, murder of inmate Bernard Jackson.
Lindsey
was indicted on September 8, 1998. Lindsey made his first
appearance on October 22, 1998, and pled not guilty.
His
attorney is Jeffrey Allen Williams. Trial is set for December 9,
1998.

u.s.

v. Green, (LOM) On July 30, 1998, Judge Marshall signed an
order establishing new deadlines. Trial date is April 13, 1999;
October 5, 1998, deadline for defense counsel to present
mitigating factors to USAO con~erning death penalty; October 23,
1998, deadline for USAO to send death penalty submission to DOJ;
and November 23, 1998, deadline for gov't decision to file a
notice of intent to seek the death penalty.
Defense counsel met
the October 5, 1998, deadline; Prosecutors met the October 23,
1998, deadline.
Decision concerning Death Penalty expected by
mid-November.
INTRODUCTION/POSSESSION OF CONTRABAND:

u.s. v. Reagor, (PHX) On October 22, 1998 the U.S. Attorney's
Office accepted for prosecution an incident which occurred on
July 29, 1998. On that date, inmate Reagor attempted to secrete
a balloon on the Recreation yard containing brown heroin.
u.s. v. Toler, (PHX) On October 8, 1998, a jury found defendant
not guilty of Bribing a Federal Official and Attempted
Introduction of Contraband (narcotics).
PROPERTY: None

(

SEX OFFENSES:

u.s.

v. Goree,

(PHX) Defendant was sentenced on October 5, 1998.

3~3

She received 2 years supervised release and a $2,000 fine. She
previously pled guilty to Sexual Contact with a Prisoner and
Accepting a Bribe.
WEAPONS: None
••

ADMINISTRATIVE REMEDIES
MAR
FEB
JAN
I APR
91

114

112

180

STATISTICS

4~

I MAY

JON

I 90

I JUL I AUG

110

1101

I OCT

SEP
126

1114

NOV

DEC

1126

FREEDOM OF INFORMATION/PRIVACY ACT:
JAN
FEB MAR
APR MAY JON JUL AUG SEP OCT NOV
DEC
39
32
23
26
19
30
33
20
34
RECEIVED 21
24
29
27
33
33
29
21
22
33
28
CLOSED
22
12
18
12
14
13
14
12
15
18
PENDING
0
0
0
0
2
2
0
2
0
1
20 DAYS
0
0
0
0
0
0
0
6 MONTHS 0
0
0
0
0
1
2
0
1
4
1
0
3
APPEALS
FOI/PA PENDING MORE THAN 20 DAYS ON OCT. 31, 1998:
LOF
SAF
SDC SHE TRM
LOS
NEL
PHX
TCN TOTAL
BRN DUB LOM

.

1

ADMINISTRATIVE TORT CLAIMS
RECEIVED
CLOSED
RECONSIDER
PENDING
OVER 6
MONTHS

JAN
34
38
0
110
1

FEB
40
64
0
86
3

MAR

62
47
1

102
3

APR
43
36
1
110
2

MAY

JON

JUL

39
58
0
91
1

48
29
0
110
0

52
57
1
106
0

AUG
50
45
2
113
0

SEP
27
36
1

105
0

OCT
40
53
0
92
0

NOV

DEC

Tort Claim Investigations Over 60 Days:

BRN
0

DUB
2

LOM
0

LOF
0

LOS
1

NEL
0

SAF
0

PHX

0

SDC
3

SHE

TRM

TCN

TOTAL

0

0

0

6

LITIGATION:
OPEN AT
BEGINNING
OF MONTH

JAN
286

FEB
297

MAR

306

APR
311

MAY

JON

312

329

3244

JUL
325

AUG
325

SEP
333

OCT
348

NOV

DEC

INEW CASES
( RECEJ:VED

17

18

18

9

15

12

17

9

'17

5

14

13

5

8

7

8

4

1

1

5

1

1

1

1

0

2

1

BIVENS

4

2

5

2

2

2

5

4

7

4

OTHER

0

1

2

1

2

1

1

1

0

0

CLOSED

13

12

11

17

1

13

15

4

2

1

PENDJ:NG AT
END OF
MONTH
LITJ:GATJ:ON
REPORTS
COMPLETED

297

306

311

312

329

325

325

333

348

356

13

15

8

8

17

5

6

7

7

10

24

21

BC

19

PTCA

3245

(

u.s. Department of Justice
Federal Bureau of Prisons

Dublin. Califomia 94568

December 2, 1998
MEMORANDUM TO WALLACE H. CHENEY
ASSISTANT DIRECTOR/GENERAL COUNSEL

FROM:

SUBJECT:

Harlan W. Penn, Regional Counsel
Monthly Report for November 1998
LITIGATION

(

This report includes information from all Western Region
Institutions except MDC Los Angeles from which no information was
received.
Next month's report will incorporate their
information.

' ........ -

NEW 3621(e) CASES:
Cuevas v. Clark, (TRM) Habeas petition concerning 3621(e) early
release.
Inmate was denied year off eligibility due to two point
firearm enhancement.
Response deadline extended 60 days.
O'Reilly v. Reese, (DUB) Habeas petition in which inmate contends
she has been improperly denied a one year reduction in sentence
under 18 U.S.C.· 3621(e} following successful completion of
residential drug abuse program based upon a two level enhancement
imposed at sentencing for possession of a firearm.
First case in
this district challenging the Director's discretion to deny
benefits under the new program statement on categorization of
offenses.
Litigation report sent to AUSA on November 14, 1998,
and response filed on November 19, 1998.
Williams v. Clark, (TRM) Habe'as petition concerning 3621 (e) early
release.
Inmate denied year off eligibility due to two point
firearm enhancement.
Litigation report prepared and submitted by
Bob Ballash.
NEW CASES/OTHER:
Araujo v. B.G.P.,

(SHE) Bivens action alleging improper medical

3263

care concerning diagnosis and treatment of colon cancer.
Carter v. U.S., (TRM) FTCA action in which inmate was
incarcerated at TRM in the late 1980's, where he alleges medical
staff failed to diagnose and treat ble~ding in his brain.
Inmate
filed a tort claim which was denied based on the statute of
limitations. Complaint forwarded to the U.s. Attorney's Office
for assignment.
Davenport v. Zickefoose, (SHE) Bivens action alleging staff
denied his right to practice his religion (Jewish rites and
observations) .
McGowan v. Greenhill, (SHE) Bivens action alleging excessive use
of force against Correctional Officer.
Parmelee v. Conger, (SET) Bivens in which plaintiff alleges due
process violations stemming from a disciplinary hearing.
Case
assigned to the Regional Offic~.
SIGNIFICANT DEVELOPMENTS:

Ballou v. Perrill, (SET), 9 P Circuit Ct. of App.
Appellate Brief due January 21, 1998. After entering the
Residential Drug Abuse Program, Petitioner was deemed ineligible
for early release ~nder 3621(e) based on a prior bank robbery
conviction.
Petitioner seeks early release eligibility under
3621(e) based on promissary estoppel and ex post facto
principles.
Cox v. Bailey, (SAF) Petitioner challenging the circumstance of
his arrest. This case was dismissed without prejudice at
plaintiff's request on October 26, 1998.
Davis v. Perrill, (SET) Petitioner, alleges that his property was
improperly withheld when he was transferred from FDC Sheridan to
FDC SeaTac. Response filed on November 6, 1998.
Forgac v. Perrill, (SET) Motion for Summary Judgment filed on
November 16, 1998.
Plaintiff, a pretrial inmate claims his
constitutional rights were violated when staff punished him for
refusing to provide a urine sample, required him to perform extra
duty as a disciplinary sanction, refused to provide an adequate
number of legal copies, and denied him access to the Main Law
Library, while housed in the Special Housing Unit.
Gavis v. Crabtree, (SHE) 3621(e) decision affecting three (3)
inmates.
BOP may not use Director's Discretion to disqualify
inmates with po~sessory offenses or inmate with a two-point
enhancement from receiving the sentence reduction benefit.

3264

Hogan v. U.S., (SOC) Bivens/FTCA refiled, originally dismissed
for improper venue. Case concerning discipline issues which
occurred primarily at ATL, with some minor allegations arising
from TRM, SOC, and COA.
All individual government defendants
have been named in their official capacities only. AUSA intends
to file a Motion to Dismiss on or before December 4, 1998.
Kalka & Mitchell v. Megathlin, (TCN) (9th Cir.) Kalka appeals the
district court's grant of defendants' Motion for Summary Judgement
in legal mail/IRS search warrant case. TCN legal staff completed
second Litigation Report/reply brief and provided to AUSA on
November 25, 1998. Answer due December 4, 1998.
Kurtz v. U.S., (SHE) FTCA action alleging negligence on behalf of
Bureau staff in failing to prevent inmate from attempting to
commit suicide by hanging.
Inmate is permanently impaired.
Trial date set for January 26-27, 1999.
Inmate received
compassionate release on November 18, 1998.
Ledford v. Perrill, (SET) (HC) Petitioner claims BOP staff
incorrectly computed his sentence, failing to grant prior custody
credit for time spent in state custody.
Response filed on
November 13, 1998.

(

Mota v. USA, (SOC) FTCA regarding alleged injury during escorted
trip.
Pre-Trial Conference was held on November 9, 1998. A
mandatory settlement conference will be held on December 2, 1998.
The U.s. Attorney's Office does not intend to entertain
settlement negotiations at this time. A projected January 1999
trial date is expected to be set.
Onaghise v. Bailey, (SAF) Petitioner challenging the circumstance
of his arrest.
Case was dismissed by the court on September 28,
1998. This case was appealed to the 9" Circuit on October 20,
1998.
Parmelee v. Benov, (SOC) Rejection of IIHow to win Prison
Disciplinary Cases" Bivens case.
Parties are ordered to
designate their respective experts in writing by February 19,
1999. Supplemental or second date for designation of experts on
March 5, 1999.
Riggs v. Perrill, (SET) (HC) On November 20, 1998, the Court
adopted the Magistrate Judge's Report and Recommendation, issuing
an order denying and dismissing Petitioner's case with prejudice.
Petitioner sought additional "source determination" testing when
he received a positive urinalysis test while housed at a halfway
house.
Petitioner claimed the positive test result was due to
poppy seed consumption.

3265

(

Rod ri guez v . Ada ms,

(SAF) Dismissed as moot on October 23, 1998.

Unger v . Gaines, (SAF) Plaintiff filed a First Amended Complaint
o n November 25 , 1998 , adding Dr . Lawrence Gaskin , D.D.S. as an
additional defendant .
CRIMINAL CASE TRACKING
Criminal Cases
JAN
Referred
Accepted
Declin ed
Pendi ng
Decision

FEB

MAR

APR

MAY

JUN

JUL

AUG

SEP

OCT

NOV

H

15

1
5

12

8

3

DEC

0

Declined Cases :
INMAT E/~F
UB Inmate on staff assault perpetrated by
i nmate
thre w a cup of apple juice on t he employee
while con l.ned in the special housing unit.
Declined because act
was minor and not l ife threatening .
\)1\

V

nma
to the right
his chest.
He was t r ansported to a loca l hospital .
sustained a laceration to the right side
was a l so transported to a l ocal hospital.
I nmate
u stained
a two inch lacerat i on above his right eye .
lnmat
s u stained
nmates
0 d degree burns to his head and right shoulder.
_
sustained a contusion to the back of his head . The case
was declined for prosecution because of a lack of evidence and
the victim refused to testify .

tIIIIIII

tllllrand

(

INMATE - (PHX) On November 11, 1998, inmates
began fighting in a cell in the Special Housing Uni t.
was treated for a previously injured cut near his eye .
This case was declined for prosecution because it did not meet
prosecutoria l guidelines.
- (S AF) On October 27, 1 998 i nmate
re involved in a fight.
On November 3, 1998 inmate~and
were involved in a fight.

3266

vember 2
Inmate
the

~d

fires were set
paid
"
ed of inmate _ 9 - u e to a"

to se
owed
INMATE STAFF (MI OR) ) On November 11, 1998, inmate
while showering in SHU, threw a wet towel and spat at an Sen
Officer Specialist when the officer denied the inmate's request
for an additional razor. After brief confrontational avoidance,
inmate~strained and returned to his cell.
Subsequently,
inmate'llllll broke the window to his cell door, placed his two
arms out of the opening and threatened staff with a sharpened
pencil in each hand. The inmate was placed in ambulatory
restraints. Incident referred on November 13," 1998, with
prosecution declined on November 16, 1998, in lieu of
administrative disciplinary procedures.

INMATE/INMATE - (TeN) On November 18, 1998
reported that the previous evening, inmate
touched his buttocks, in a sexual manner, w e e was sleeping.
Medical assessments revealed no injuries. The case was referred
November 18, 1998 and declined on November 19, 1998, with
recommendations that the BOP exercise its internal inmate
disciplinary procedures.
(

"

November 13, 1998, inmate
, while proceeding through the service line in
threw his plate of food at inmate
who was working behind the serving line. No
es were sustained b~ inmate and it
bel'eved that
the assault occurred when~efused to give
additional food items. Matter referred and declined on ovember
16, 1998, in favor of administrative disciplinary procedures.
1 ! i ! M '

INMATE/INMATE - (TRM) Inmates
ere involved in
a fight in J-Unit on November 11, 1998. Only minor injuries were
sustained.
TRM) Inmates
ere invINe'n a fight on November 11,
) Inmate
assaulted an officer during a
pat search on November 17,
, the inmate hit the officers
hand.
Active Prosecutions:
ASSAULT:

(

u.S. v. Gonzalez, (SAF) On July 19, 1997, inmate Gonzalez and
Avaloz assaulted inmate DeLa Rossa. Inmates Valenzuela,
Munoz-Garcia and Gomez-Tovar assisted in the assault. On March

3267

c-

23, 1998 inmates Munoz-Garcia and Avaloz pled guilty to simple
assault.
Gonzales pled guilty to simple assault on June 15,
1998. Avaloz received a 6-month sentence concurrent to his
current offense, special assessment of $10.00 and restitution in
an amount to be determined in the future.
Munoz-Garcia received
a sentence of time served and a $10.00 special assessment.
Gonzalez received a sentence of time serviced, $10.00 special
assessment and 12 months of supervised release on July 17, 1998.
Valenzuela received a sentence of time served, special assessment
of $10.00 and an undetermined amount of restitution on August 4,
1998. Gomez-Tovar's indictment was dismissed on November 16,
1998.

u.s. v. Lee, (SAF) On October 30, 1997, Lee assaulted inmate
Askew with a pool ball in a sock. He received a sentence of 51
months imprisonment followed 3 years of sup~rYised release.
U.S. v. Simmons, (LOM) Case involves the assault of a
Correctional Officer that occurred on December 14, 1997.
scheduled for December 1, 1998.

Trial

u.s. v. Wehmhoefer, (LOM) Case involves the assault of another
inmate that occurred on March 4, 1997. Trial scheduled for
January 12, 1999.
(.

ESCAPE:

U.S. v. Finkle, (LOM) Case involves an escape from the FPC in
January of 1998. Trial scheduled for January 19, 1999.
U.s. v. Nikrasch, (LOM) Case involves an escape from the FPC in
December of 1995.
Inmate pled guilty to one count of Escape from
a Federal Institution, one count of Possessing and/or Passing
Counterfeit $100 Bills, and one count of Posses~ing over $5,000
in Counterfeit Currency. Sentencing scheduled for November 2,
1998.
FRAUD/FORGERY:

U.s. v. Lewis, (TCN) Prosecution of inmate for soliciting drug
abuse treatment records from outside source to falsify, and
falsifying records to document history of substance abuse to
support application to RDAP program for purpose of § 3621(e)
early release eligibility. Grand Jury Hearing held October 14,
1998. AUSA has requested witness interviews of BOP staff for
December 15, 1998.
/

~"

HOMICIDE:

U.s. v. Green, (LOM) On July 30, 1998, Judge Marshall signed an
order establishing new deadlines. Trial date is April 13, 1999;

3268

October 5, 1998, deadline for defense counsel to present
mitigating factors to USAO concerning death penalty; October 23,
1998, deadline for USAO to send death penalty submission to DOJ;
and November 23, 1998, deadline for gov't decision to file a
notice of intent to seek the death penalty. Currently
participating in several criminal discovery requests.
Defense
counsel met the October 5, 1998, deadline; Prosecutors met the
October 23, 1998; conference with Attorney General's Committee
concerning the Death Penalty on November 20, 1998; decision
concerning Death Penalty expected by first of December; filing
deadline for Intent to seek the death penalty is December 10,
1998.

u.s.

v. Lindsey, (PHX) Prosecution of Lindsey, for November 1,
1997 murder of inmate Jackson.
Lindsey was indicted on September
8, 1998. Lindsey made his first appearance on October 22, 1998
and pleaded not guilty.
Although trial is scheduled for December
9, 1998, AUSA advises it will be continued to a date after the
first of the year.

INTRODUCTION/POSSESSION OF CONTRABAND:

/

~.

'.

u.s. v. Reagor, (PHX) On October 22, 1998 the U.S. Attorney's
Office accepted for prosecution an incident which occurred on
July 29, 1998. On that date, inmate Reagor attempted to secrete
a balloon on the Recreation yard containing brown heroin. No new
information.
PROPERTY: None
SEX OFFENSES:
u.S. v. Secrease, (DUB) Former Correctional Officer pled guilty
to one count of knowingly engaging in a sexual act with a ward
(inmate) in violation of 18 u.s.c. 2243(b).
Sentencing is
scheduled for January 15, 1999.

WEAPONS: None
••

ADMINISTRATIVE REMEDIES
JAN
FEB
I MAR I APR
112
91
1114 1 80

(

STATISTICS

I MAY TJON

T90

FREEDOM OF INFORMATION/PRIVACY
JAN
FEB MAR
APR
32
23
39
RECEIVED 21
27
33
33
24
CLOSED
14
22
12
18
PENDING
2
0
0
0
20 DAYS
0
0
0
6 MONTHS 0

JUL

T110

101

44

AUG
114

SEP
126

OCT
126

NOV
1108
r

DEC

ACT:
MAY

JON

26
29
15
2
0

19
21
13
0
0

3269

JUL
30
29
14
2
0

AUG

20
22
12
0

0

SEP
33
33
12
0
0

OCT
34
28
18

NOV
33
31
20

1

1

0

0

DEC

J 4 11 12 1 3 J 0
11
11
FOI/PA PENDING MORE THAN 20- DAYS ON NOV. 30, 1998:
LOP
LOS
SAP
SDC SHE
NEL
PBX
BRN DUB LOM
1

APPEALS

(
I

0

0

1

0

13

I

TCN

TOTAL
1

TRM

ADMINISTRATIVE TORT CLAIMS
JAN
RECEIVED
CLOSED
RECONSIDER
PENDING
OVER 6
MONTHS

34
38
0
110
1

FEB
40
64
0
86
3

MAR

62
47
1
102
3

APR
43
36
1
110
2

MAY

JUN

JUL

39
58

48
29
0
110
0

52
57
1
106
0

0

91
1

AUG
50
45
2
113
0

OCT
40
53
0
92
0

SEP
27
36
1

105
0

NOV
37
42

DEC

0

87
0

Tort Claim Investigations Over 60 Days:

BRN
0

DUB
4

LOM
0

LOF
0

LOS
1

NEL
0

SAF
0

PBX
0

SDC
6

SHE
5

TRM

TCN

0

0

TOTAL
16

(
LITIGATION:

JAN

MAR

286

FEB
297

325

AUG
325

SEP
333

OCT
348

NOV
356

MAY

JUN

JUL

306

APR
311

312

329

OPEN AT
BEGINNING
OF MONTH
NEW CASES
RECEIVED
HC

24

21

17

18

18

9

15

12

17

9

8

19

17

5

14

13

5

8

7

8

4

3

PTCA

1

1

5

1

1

1

1

0

2

1

1

BIVENS

4

2

5

2

2

2

5

4

7

4

4

OTHER

0

1

2

1

2

1

1

1

0

0

0

CLOSED

13

12

11

17

1

13

15

4

2

1

11

PENDING AT
END OF
MONTH
LITIGATION
REPORTS
COMPLETED

297

306

311

312

329

325

325

333

348

356

353

13

15

8

8

17

5

6

7

7

10

10

3270

DEC

(
u.s. Department of Justice
Federal Bureau of Prisons
Dublin, California 94568

\,.:anuary 5, 1 ~99
MEMORANDUM TO CAROLYN A. SABOL
ACTING ASSISTANT DIRECTOR/GENERAL COUNSEL

FROM:

SUBJECT:

Harlan W. Penn, Regional Counsel
Monthly Report for December, 1998
LITIGATION

NINTH CIRCOIT MATTERS:

Berry v. Crabtree, (SHE) Apellee Crabtree'S brief filed arguing
the BOP decision that inmat~s with convictions of 18 USC 924(c)
are ineligible for early release was proper.
Montano-Figueroa, (SHE) Published decision on December 8, 1998.
Inmate challenged the BOP's IFRP and collection of court ordered
fines and collections. CA9 upheld the IFRP and ruled that 18 USC
3572(d) was not a bar to the BOP's diversion of a portion of
inmate's pay to meet Ulegitimate financial obligations."
Stamper v. Adams,
(SAF) Unpublished decision on November 18,
1998.
Favorable decision from Ninth Circuit holding that Koray
ruling can be applied retroactively as it is merely an
interpretation of an existing statute and not an unforeseen new
rule of law.
NEW 3621 (e) CASES:

Brammer v. Fitzpatrick, (LOM) Denial of sentence reduction due to
a § 2113(a) Bank Robbery even though inmate completed RDAP.
Claggett v. Cobos, (LOS) Denial of sentence reduction due to
two-point firearm enhancement.

(

Dawson v. Fitzpatrick, (LOM) Denial of sentence reduction due to
two-point firearm enhancement.
Inmate has not·completed RDAP.

3295

Muhammad v. Adams, (LOM) Denial of sentence reduction due to
two-point firearm enhancement.
Salsberry v. Clark, (TRM) Denial of sentence reduction due to
two-point firearms enhancement.
Sattes v. Cobos, (BRN) Denial of sentence reduction due to
two-point firearms enhancement.

NEW CASES/OTHER:
Broderick v. Goodroe, (LOS) Bivens action.
Plaintiff alleges
denial of access to proper medication while housed at MDCLA and
that he was forced to consume Prozac and denied access to
necessary medical procedures.
Camerena v. Adams, (LOM) Habeas petition in which inmate alleges
that he has been improperly classified.
Ceja v. Seifert, (LOS) Habeas petition in which plaintiff alleges
he was erroneously found guilty by the DHO of possession of
narcotics. He alleges the substance was medication provided by
the prison pharmacist.
Erlin v. U.S. Parole Commission, (LOS)
Bivens/FTCA action.
Plaintiff alleges the u.S. Parole Commission exceeded it~
authority by taking him into custody based on a parole violation,
that BOP failed to honor the court's order to release him on or
about October 28, 1997, anq that he was denied medical care and
received indifferent treatment which led to his stroke and bodily
injury.
Grafman & Grafman v. Hood, (TCN)
Bivens action alleging civil
rights violations, special parole, false imprisonment, personal
injury, slander, and intentional infliction of emotional
distress.
Kennedy v. Belchinsky,
dental treatment.

(LOM) Bivens action alleging inadequate

Merritt v. Morek, (BRN)
Bivens action alleging Fifth and Eighth
Amendment violations, job discrimination, back pay, and
longevity.
Moses v. FPC Phoenix Federal Prison, (PHX) No jurisdiction cited
but appears to be an FTCA action.
Inmate alleges she fell from
top bunk in her housing unit due to the lack of a ladder.

(

Most v. Stratman, (TCN) Bivens action.
Plaintiff alleges he
developed Carpal Tunnel Syndrome when new typing chairs were

3296

(--\

purchased by the Education Department, and that all MCC San Diego
defendants had personal knowledge of his physical problems but
intentionally failed to assist him.
Rieke v. Hood, (TCN) Habeas petition seeking jail credit.
Inmate
temporarily removed from State of Arizona custody pursuant to a
Writ ad Prosequendum for trial on Federal drug charges in the
District of Minnesota. At sentencing, the Federal court ordered
that Petitioner's 50-month term be served concurrently with any
other sentence, State or Federal.
Inmate seeks jail credit for
the time spent on writ, the period that he was subject to a
Federal detainer and retroactive application of the concurrent
sentencing order, to include time spent during exclusive service
of his state term.
Steiner v. IRS, (SHE) Bivens action alleging various
Constitutional violations, including false imprisonment.
Thompson v·. Crabtree, (SHE) Habeas petition alleging excessive
use of force by a Correctional Officer.
Urrutia-Valle v. Seifert, (LOS) Habeas petition seeking review of
the Magistrate Court's certification and order of petitioner's
extradition.
SIGNIFICANT DEVELOPMENTS:

Blue v. Bailey, (SAF) - Habeas petition seeking presentence
credit. On December 8, 1998, case was dismissed.
Copeland v. Hood, (TCN) On December 3, 1998, Judge William
Browning dismissed, with prejudice, the habeas petition which
sought expungement of a OHO Report and restoration of forfeited
good time, stemming from a 110 Refusing to Provide a Urine Sample
charge. Copeland claimed he suffered from "Shy Bladder"
syndrome, and Magistrate issued a Report and Recommendation (R&R)
to grant the petition.
Due to the significant correctional
issues involved FCI Tucson legal staff opposed the Magistrate's
R&R.
Cozine v. Crabtree, (SHE) Habeas petition concerning jail credit
issues and concurrent state and federal time.
Solicitor General
decided against appeal.
Davis v. Perrill, (SET) Habeas petition alleging property was
improperly withheld when inmate was transferred from FOC Sheridan
to FDC SeaTac.
Response filed on November 6, 1998.
(

Kurtz v. U.S., (SHE) FTCA action alleging negligence in failing
to prevent inmate from attempting to commit suicide by hanging.

3297

Inmate is permanently impaired. Inmate received compassionate
release on November 18, 1998.

(

Mota v. U.S., (SOC)
FTCA action regarding alleged injury during
escorted trip.
Pre-Trial Conference was held on November 9,
1998. Mandatory settlement conference held on December 2, 1998.
The U.S. Attorney's Office does not intend to entertain
settlement negotiations at this time. A bench trial has been
calendared and set for January 26, 1999.
Parmelee v. Benov, (SOC) Bivens action. Rejection of "How to Win
Prison Disciplinary Cases".
Parties ordered to designate their
respective experts in writing by February 19, 1999.
Supplemental
or second date for designation of experts March 5, 1999.
Riggs v. Perrill, (SET) Habeas petition. On November 20, 1998,
inmate failed a drug test and requested additional source
determination testing because he claimed the positive result was
due to poppy seed consumption.
Judge adopted the Magistrate's
Report and Recommendation, issuing an Order denying and
dismissing the petition with prejudice.

(00
'.

~. ~

,

..

Thompson v. Crabtree, (SHE) D. Ore. decision re disposition of
petitions under 28 U.S.C. 2241 which raise issues that would
previously have been brought in a Motion to Vacate, Correct of
Set Aside Judgement under U.S.C. 2255 but are now barred under
Anti-Terrorism and Effective Death Penalty Act of 1996. Cases
will be transferred, when filed, to the District of conviction.
CRI~NAL CASE TRACKING
Criminal Cases
JAN
Referred
Accepted
Declined
Pending
Decision

FEB

MAR

APR

MAY

JON

JUL

AUG

SEP

OCT
14
1
5
8

NOV
15
0
12
3

Declined Cases:

(DUB) *FCI Dublin Criminal case tracking information was not
available at time of preparation of monthly report. Monthly
report was submitted early due to ~s. Augustine's absence on
annual leave until after the new year.
(SAF) Inmate on Inmate Assault - Inmate was found with bruises
and is suspected of being assaulted by another inmate.
(SET) Inmate on Inmate Assault - AUSA declined to prosecute in

3298

DEC
16
0
7

9

(

favor of administrative disciplinary proceedings.
(SET) Inmate on Staff Assault - INS inmate spat in officer's
face. AUSA declined to prosecute in favor of administrative
disciplinary proceedings.
(SET) Inmate on Staff Assault INS inmate threw Kool-Aid at an
officer. AUSA declined to prosecute in favor of administrative
disciplinary proceedings.
(SHE) *SIS has not provided the figures.
criminal referrals in January.

Will update December

(TCN) Visiting Room - A female visitor identifying herself as the
sister of an inmate produced what was later discovered to be
falsified photo 10 to gain entry into FCI Tucson.
The visitor
had used the inmate's sister's name to gain entry.
The incident
was referred but declined in lieu of administrative disciplinary
action.
(TCN) Inmate on Staff Assault - Inmate threw water at staff.
There were no injuries involved. The matter was referred as a
minor assault but was declined that ~ame day.
(
-'-..

(TeN) Possession of Narcotics - While conducting a search of
inmate locker staff discovered .4 gram of suspected marij uana.
The substance tested positive for marijuana and was referred but
declined in lieu of administrative disciplinary action.
(TRM) *Statistics pending.
SIS.

Delay due to recent retirement of

Active Prosecutions:
ASSAULT:

u.S. v. Simmons, (LOM) Assault of a Correctional Officer that
occurred on December 14, 1997. On December 3, 1998, the
defendant was found guilty of Assault on a Law Enforcement
Officer.
Sentencing scheduled for February 22, 1999.
u.s. v. Wehmhoefer, (LOM) Assault of another inmate that occurred
on March 4, 1997. Trial rescheduled for May 19, 1999.
ESCAPE:
u.S. v. Finkle, (LOM) Escape from FPC in January of 1998.
scheduled for January 19, 1999.

Trial

u.S. v. Nikrasch, (LOM) Escape from FPC in December of 1995.
Inmate pled guilty to one count of Escape from a Federal

3299

(

Institution, one count of Possessing and/or Passing Counterfeit
$100 Bills, and one count of Possessing over $5,000 in
Counterfeit Currency. Sentencing was rescheduled for December 21,
1998, but is now postponed with no new date.
FRAUD/FORGERY:

u.s.

v. Lewis, (TCN) Soliciting drug abuse treatment records from
outside source to falsify records to document history of
substance abuse to support application to RDAP program for
purpose of § 3621(e) early release eligibility. Grand Jury
hearing held October 14, 1998. AUSA requested witness interviews
of BOP staff for December 15, 1998. AUSA and FBI Special Agent
met with FCI Tucson SIS/legal staff, as well as potential
witnesses for trial on December 17, 1998. AUSA confident that
inmate can successfully be prosecuted for Attempted Escape and
two counts of Fraud, as well as Witness Tampering, as he
contacted the witness to urge her to recant/change her testimony.
HOMICIDE:

(

U.s. v. Green, (LOM) On July 30, 1998, Judge signed an order
establishing new deadlines. Trial date is April 13, 1999; On
December 2, 1998, the Attorney General authorized the USAO to
seek the Death penalty in this case. On December 10, 1998, the
USAO filed the Notice of Intent to Seek the Death Penalty. On
December 15, 1998, a status conference was scheduled, however,
inmate Green refused to come out of his cell to attend.
Judge
agreed to hold the conference at MOC-Los Angeles, however,
MDC-Los Angeles, for security reasons, refused to allow inmate
Green's mother to enter the institution to attend the conference.
The Judge postponed all future status conferences unless the
parties requested it.
Judge also stated that the parties are to
submit their information in writing from this point forward.
Lastly, Judge requested a Memorandum of Law explainin~ why inmate
Green could not be banned from the courtroom during the trial, as
well as information concerning application of restraints and
video conferencing.
Note that 9th Circuit case law prohibits
exclusion of a defendant from the courtroom unless he exhibits
disruptive behavior in the courtroom.
U.S. v. Lindsey, (PHX)
November 1, 1997 murder of inmate
Jackson. Lindsey was indicted on September 8, 1998, made his
first appearance on October 22, 1998, and pled not guilty. Trial
date has been postponed to January 27, 1999.
INTRODOCTION/POSSESSION OF CONTRABAND:
u.s. v. Reagor, (PHX) Inmate Reagor attempted to secrete a
balloon on the Recreation yard containinq brown heroin.
On

3300

October 22, 1998 the U.S. Attorney's Office accepted for
prosecution.
PROPERTY: None
SEX OFFENSES:

u.S. v. Secrease, (DUB) Former Correctional Officer pled guilty
to one count of Knowingly Engaging in a Sexual Act with a Ward
(Inmate) in violation of 18 U.S.C. ::~3{b). Sentencing is
scheduled for January 15, 1999.
WEAPONS: None
••

STATISTICS··

ADMINISTRATIVE REMEDIES
JAN

I FEB

91

1112

MAR
114

APR

MAY

JON

I JUL

80

90

110

1 101

I SEP

AUG
114

OCT
126

1 126

NOV
108

DEC
86

FREEDOM OF INFORMATION/PRIVACY ACT:
JAN

RECEIVED
. CLOSED
PENDING
20 DAYS
6 MOwrBS
APPEALS

21
27
14
2
0
0

FEB
32
24
22
0
0
0

MAR

23
33
12
0
0
1

APR
39
33
18
0
0

1

MAY

JON

26
29
15
2
0
4

19
21
13
0
0
1

JUL
30
29
14
2
0
2

AUG
20
22
12
0
0
3

SEP
33
33
12
0
0
0

FOI/PA PENDING MORE THAN 20 DAYS ON DEC. 31, 1998:
.
BRN DUB LOF LOM LOS NEL PBX SAF SDC SET SHE TAF
1
0
0
0
0
0
0
0
0
0
0
0

OCT
34
28
18
1
0
0

NOV
33
31
20
1
0
3

DEC

28
32
16
1
0
0

TCN
0

TRM
0

TOTAL

OCT
40
53

NOV
37
42
0
87
0

DEC
39
31
0
95
0

1

ADMINISTRATIVE TORT CLAIMS
JAN

('.

RECEIVED
CLOSED
RECONSIDER
PENDING
OVER 6
MONTHS

34
38
0
110
1

FEB
40
64
0
86
3

MAR

62
47
1
102
3

APR
43
36
1
110
2

MAY

JON

JUL

39
58
0
91

48
29
0
110
0

52
57
1
106

1

/Tort Claim Investigations Over 60 Days:

3301

0

AUG
50
45
2

113
0

SEP
27
36
1
105
0

0

92
0

I BRN

DUB

LOF

LOM

LOS

NEL

PHX

SAF

SOC

SET

SHE

TAF

TCN

TRM

10

3

0

0

0

0

0

0

0

0

2

0

0

0

(

;

,,
,

,i
..

.

LITIGATION:

.

-

JAN

(

TOTAL
--

306

APR
311

MAY
312

MAR

286

FEB
297

329

.ruL
325

AUG
325

SEP
333

O~~ :
348

NOV
356

DEC
353

JUN

OPEN AT
BEGINNING
OF MONTH
NEW CASES
RECEIVED
HC

24

21

17

18

18

9

15

12

17

9

8

19

19

17

5

14

13

5

8

7

8

4

3

11

FTCA

1

1

5

1

1

1

1

0

2

1

1

1

BIVENS

4

2

5

2

2

2

5

4

7

4

4

6

OTHER

0

1

2

1

2

1

1

1

0

0

0

1

CLOSED

13

12

11

17

1

13

15

4

2

1

11

16

PENDING AT
END OF
MONTH

297

306

311

312

329

325

325

333

348

356

353

356

LITIGATION
REPORTS
COMPLETED

13

15

8

8

17

5

6

7

7

10

10

c

SCHEDULED LEAVE:

(

3302

 

 

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