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Usdoj Fbop Memo Re Monthly Litigation Report July 1998

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~EDSTATESGOVERNMENT

memorandum
Northeast Region, Philadelphia, PA

FEDERAL BUREAU OF PRISONS
August 11, 1998
MEMORANDUM FOR WALLACE H. CHENEY, ASSISTANT DIRECTOR AND GENERAL
COUNSEL, FEDERAL BUREAU OF PRISONS

FROM:
SUBJECT:

Henry J. Sadowski, Regional Counsel
Monthly Report - July 1998

I. ADMINISTRATIVE LEGAL ACTIVITIES - SUMMARy REPORT
A. Administrative Remedies - 1998

Pending on 1st
Rec'd in month
Ans'd in month
Pending at End
Over 30 days

JAN
110
113
132
91

a

FEB
91
155
100
146

a

MAR
146
187
171
162

APR MAY JUN
162 167 180
188 187 172
183 174 207
167 180 145
a 000

JUL AUG SEP OCT NOV DEC
145
153
152
146

o

B. Administrative Tort Cla±ms - 1998

JAN FEB MAR APR MAY JUN JUL AUG SEP OCT NOV DEC
Pending on 1st 236 262 261 283 320 348 319
Rec'd in month 77 73 92 73 60 64 51
Recons. rec'd

3

2

3

4

1

o

3

Ans'd in month 54 76 73 40 33 93 77
Pending at End 262 261 283 320 348 319 296
Over 180 days
a a a a 0 a a
C. Tort Claim Investigation Status:
Pending
Over 60 days

As of July 31, 1998

ALF ALM ALP ALW BRO DAN FAI FTD LEW LOR MCK NYM OTV RBK SCH
2
2
7
0
2
5
3 14 12
0
4
2
2 12 10
0
0
0
0
0
0
0
0
0
0
0
0
0
0
1

.

2

D. FO:r/Privacy Ae't Requests - 1998
Pending on 1st
Rec'd in month
Ans'd in month
Pending at End
Over 20 days

JAN
37
34
58
13
1

FEB
13
28
35
9
1
*

MAR APR MAY JUN JUL AUG SEP OCT NOV DEC
32 32 4
9 15
41 31 45
32 38
41 59 27
29 21
15 32
32
4 22
1
1
0 6*
0
Records awaiting retrieval from archives.

E. FOn Requests for records:

As of'July 31, 1998

ALF ALM ALP ALW BRO DAN FA! FTD LEW LOR MCK NYM OTV RBK SCH
Pending
.1
0
0
0
0
5
4
1
1
1
2
1
1
0
0
Over 20 days
0
0
0
0
0
3* 1* 0
0
1* 0
1* 0
0
0
*This file has not been received from archives.

:I::I:.

L:I:TIGATION ACTIVITY - 1998 NORTHEAST REGION

A. SUMMARY REPORT

Cases Open
New Cases
Habeas Corpus
FTCA
Bivens
Other
Bivens/FTCA
Lit Reports
Cases Closed

JAN FEB MAR APR MAY JUN JUL AUG SEP OCT NOV DEC
670 604 597 606 625 639 613
13 15 21 24 19 13 11
7 13 13 15
6
5
3
1
4
4
1
2
3
1
2
1
3
4
1
3
6
1
1
4
2
0
1
3
O'
2
2
2
0
0
0
9
9 10
8 10 10
4
7 12
66
5
5 26 14

B. SETTLEMENTS AND AWARDS:

- None

C. S:I:GN:I:F:I:c;ANT CASES, TB:I:ALS or BEARINGS;

Significant New Cases:
McClurg v. Harding, 98-605 (D. Conn)
Holder v. Harding, 98-656 (D. Conn)
FCI Danbury inmates Penelope McClurg, 21528-018 and Tinia Holder,
09474-424, filed separate, similar motions requesting an
expedited hearing and temporary restraining order against the
practice of cross-gender pat searches at FCI Danbury. Both

.

3

inmates have a history of being sexually abused and are assigned
to the "Bridge Unit n , which is a housing unit for women who have
suffered traumatic experiences, inclUding sexual assault/abuse.
Counsel has been appointed to represent both inmates. Under
informal pressure from the court, the Warden agreed to exempt the
two inmates from routine cross-gender pat searches until a full
hearing on the merits can be held. The hearing is currently
scheduled for October 1998. We are trying to move up the hearing
date.
Trials:
United States v. Hammer, M.D. PA
On July 24, 1998, the jury returned a death penalty verdict
against inmate David Paul Hammer, 24507-077 for the murder of
another inmate at USP Allenwood. Formal imposition of sentence
was scheduled for September 17, 1998. The inmate fired his
attorneys and moved for immediate imposition of the death
penalty. After an August 3, 1998 hearing, Judge Muir issued an
order for another competency hearing before ruling on the
inmate's motion.
Hearings:
1)U.S. v. Castaldo, Crim. No. ----- (S.D.N.Y.)
On June 30, 1998, MCC New York received a memorandum from an AUSA
indicating a credible source informed him that the life of inmate
James Castaldo, 16032-050, may be in danger. Castaldo was
removed from general population and placed in administrative
detention pending a threat assessment. The inmate objected to
the criminal trial judge. Judge Keenan requested a written
explanation by 9:30 a.m. on July 2, 1998 and scheduled a hearing
for 10:30 a.m. At the hearing, the Court determined the issue
was not ripe since the threat assessment had not yet been
completed. The Judge expressed some concern for the adequacy of
the reasons on the administrative detention order. After the
assessment was completed, the threat was found to be too vague.
The inmate was released to general population on July 13, 1998.
Clinton Stroble represented the MCC NY.
2)

u.s. y.

Muyet, Crim. No. ----- (S.D.N.Y.)

On July 27-29, 1998 the District Judge Peter K. Leisure held
three hearings to address two allegations by inmate John Huyet,

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E. ENSl:GN AMENDMENT CASES:

Nyhus y. RenQ, et al., C.A. NQ. 97-324E (W.O.Pa.)
CravierQ v. RenQ, et al., C.A. NQ. 97-31E (W.O.Pa.)
The abQve-referenced cases were bQth filed by FCI McKean inmates
challenging variQus cQmpQnents Qf the Ensign Amendment and the
BOP's pQlicy change on persQnal property. The Magistrate Judge
assigned tQ both cases issued a report and Recommendation
dismissing the cases. She fQund that Bureau pQlicy placed
reasonable limitatiQns and was within its discretion. The CQurt
considered the Ensign amendment allegations vQluntarily withdrawn
since the Plaintiffs have filed, with the assistance Qf counsel,
a new case styled as a class action (Wolf, Craviero, and Nyhuis
v. ReDo, et.al, 97-408E).
F. PLiA 1915 Dl:SMiSSALS:

None

l:l:l:. TRAVEL AND LEAVE SCHEDQLE FOR AUGUST 1998:

Hank SaqQwski -Travel - Aug. 31 - Sept. 2 - Sentencing Training
Annual Leave - August 17 - 21
Mike Tafelski -Travel - NQne Scheduled
Annual Leave - August 28, 1998
Toni Brown -

Travel - None Scheduled
Annual Leave - August 24, 1998

Les Owen -

Reports to MOC Brooklyn on August 17, 1998

Ron Hill -

Travel - None Scheduled
Annual Leave - None Scheduled

James Vogel -

Travel - None Scheduled
Annual Leave - August 14, 1998

U.S. Department of Justice
Federa1 Bureau of Prisons
Wl!slortr Nl!!1itmal OffiCl!
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 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
~rior criminal convictions in eligibility determinations for early
release.
L'
NINTH CIRCUIT MATTERS:

Timothy Robles vS. USA, et ale (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 Corom., CV-97-1338-CO -Notice of
Appeal filed.
DISTRICT COURT MATTERS:

Cordova v. Reno (TAf), first Bivens action filed by TAf inmdte
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 ale (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 ale (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 ale (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/BEARINGS: None
RELIGION: None
CASES DISMISSED PURSUANT TO PRISON LITIGATION REFORM ACT: None
ENVIRONMENTAL MATTERS: None
SETTLEMENTS: None
CRIMINAL CASE TRACKING
1.

CR~INAL

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.

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 -at all
reasonable hours."
INTRODUCTION/POSSESSION OF CONTRABAND:

U.S. v. Lamarr Dunn (LOM), inmate pled guilty to two cuu~~~
Possession of Contraband, 18 U.S.C. §1791. One count invt :~ •.
Possession of Marijuana, the other count involved Posse~~: :.
Prohibited Object (weapon). Sentencing September 9, 19(11..
PROPERTY: None
SEX OFFENSES:

j

0:

d

u.s.

v. Robert Gorsuch (LaM), 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:

LaM -- 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:

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

STATISTICS

44

ADMINISTRATIVE REMEDIES
MAR
APR
FEB
JAN
114
80
112
91

MAY

JON

JUL

90

110

101

AUG

SEP

OCT

NOV

DEC

.
I RECEIVED
CLOSED
RECONSIDER
PENDING
OVER 6
MONTHS

34

40

38
0
110
1

64
0
86
3

62
47
1
102
3

43

39

48

36
1
110
2

58
0
91

29
0
110
0

1

Tort Claim Investigations Over 60 Days:
I LOS I NEL 1 PBX
BRN I DUB I LOM I LOF
I0
10
0
11
11
11
12

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

MAY
26
29
15
2*
0
4

52
57
1
106
0

I SAP I SDC I SHE I TRM I TCN
I1
I0
1 0 10 1 2

JUN

JUL

19
21
13
0

30
29
14
2**

0

0

1

2

SEP

AUG

OCT

TOTAL
6

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 TpBX I SAF I SDC
BRN I DUB I LOM I LOF
I1
I
I
I
I
I
I
I

1 SHE I TRM I TCN I TOTAL
I1

I

12

I

LITIGATION:
OPEN CASES
NEW CASES
HC
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

325
15
8
1
5
1
15
6

13
5

AUG

SEP

OCT

NOV

DEC

UNITED STATES GOVERNMENT

memorandum
August 7, 1998Mid-Atlantic Regional Office. Annapolis Junction. MD 20701

I>ATE:

ATTNflf:

Bill Burlington, Regional Counsel
Mid-Atlantic Region

SIlnJU,:

July 1998 Monthly Report

RI,PI.Y TIl

Til:

A·ITS:

Wallace H. Cheney, General Counsel
Amy Whalen Risley, Executive Assistant

ADMINISTRATIVE REMEDIES

JAN

FEB

MAR APR

Received
Answered

135
143

187
181

229
178

TORT CLAIMS

JAN

FEB

MAR APR

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

230
68
91
195
0

195
54
71
179
0

179
75
58
190
0

tllVACY

JAN

FEB

MAR APR

13
# Pending
43
# Received
34
# Answered
23
# Pending
# Over 20 Working Days
1
-File has been requested from archives.

23
24
34
12
2-

12
54
41
23
0

160
201

190
62
60
191
0

23
54
53
24
0

MAY JUN

JUL

168
174

200
194

214
156

MAY JUN

JUL

191
42
38
195
0

195
49
83
154
1

154
45
67
138
0

MAY JUN

JUL

24
36
42
18
4- -

18
47
32
35
2-

SEP

OCT

NOV

DEC

AUG

SEP

OCT

NOV

DEC

AUG

SEP

OCT

NOV

DEC

35
52
57
30
3-

- -One file requested from archives; another request archives sent wrong file.
FEB

LITIGATION

JAN

MAR APR

MAY JUN

Cases Pending
New Cases Received
Habeas Corpus
Bivens
FTCA
Other
Cases Closed
Cases Pending
Lit Reports Completed
Cases/Hearings or Trials
Settlements/Awards
$ Settlements/Awards
($ in Thousands)
- ~ ·rected figures

338 331 329 314
41611
7
7
4
4
3
5- 01
6
1
1
2
0
1
2
1
0
19
14
21
62
331 329 314 273
15
12
14
8

261
13
7
5
1
0
12
261
21

2

AUG

2

1
2
$147.7 $52.0

273
16
6
5
2
3
28
261
13
1
4
0
1
0
2
o $13.9- $9.0

0

0
0

JUL

261
36
11
3
2
20
25
272
7
0
0
0

AUG

SEP

OCT

NOV

DEC

..
Page 2
MXR Monthly Report
ITEMS OF INTEREST, PERSONAL.LEAVE, BUSINESS TRIPS, MOVES, ETC.
Bill Burlington, Regional Counsel, August 31-Sept. 2, 1998
will be at the MSTC Denver for Sentencing Training.
This month we welcome Alicia Daniels-Lewis to the Regional
Office, as our new Honors Attorney.
Alicia comes to us from
North Carolina Central University, in Durham.
Alicia, is
married and has a 12 year old son.
We look forward to Alicia
starting work with us on August 31, 1998.
We also bid a fond
adieu to Dave Recker, who will be moving in early September to
FCC Florence, Colorado.
Dave has done a great job during his
year with us, and will be missed by everyone. We wish Dave
the best of luck in his new challenging assignment.
Milt Williams, Paralegal, FCl Petersburg, and Randy Smith,
Paralegal, FCl Elkton, will attend the Sentence Computation
Training in Aurora August 31-September 2.
As of August 5, 1998, we bid farewell to Shannon Cheek, the
summer intern at FCl Manchester from Eastern Kentucky
University. We thank her for the excellent assistance she
provided.
SITUATION OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS
WASTE SITES, ETC.:
FCI Petersburg - Judge Robert Merhige, Federal District Judge,
Eastern District of Virginia, retired in June. Robert Jaspen,
Chief of Civil for the E.D. of Virginia resigned from the u.S.
Attorney's Office to take a job in the Staff Attorney's Office
of the Fourth Circuit. During his approximately 23 years in
the U.S. Attorney's Office, Bob has handled numerous FCl
Petersburg cases.
FMC Lexington - Joe Tang, Attorney, assisted with coordinating
a visit from the Chief of the Civil Division, E.D. Kentucky,
and two civil AUSAs. This visit was arranged to educate the
U. S. Attorney's staff about Lexington's medical services and
improving interoffice relations. Medical staff gave a
presentation on various aspects of the medical care provided
at Lexington. The visitors were also given a tour, along with
a question and answer session. The feedback from the visitors
was very positive, and both parties feel a similar tour can be
done in the future for pro se clerks, other U.S. Attorney's
office staff, etc.
FMC Lexington - On July 10, 1998, Judge Forester wrote a
letter to Warden Holland criticizing our use of a P.A. to
perform a routine physical on a pre-sentenced 18 U.S.C. § 3552
inmate Forester referred to Lexington for a medical and
psychological evaluation. Judge Forester was also critical of

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Page 3
MXR Monthly Report
the fact the medical summary did not specify which doctors
reviewed x-rays and other test results. Judge Forester
concluded the letter stating if we do not have the proper
staffing to conduct these §3552 evaluations in the future, he
will no longer refer them to Lexington. The summary prepared
by staff was a standard summary which Judges have never
complained about in the past. Typically, Judges want a short
summary written for non-medical persons.
In response, Joe
Tang, Attorney, FMC Lexington, assisted in preparing a letter
to Judge Forester informing him that P.A.'s are qualified to
do routine physical exams and prepare evaluation summaries,
but his concerns were noted, and in the future Lexington would
have physicians review the findings and prepare the summaries.
We also provided Judge Forester with the more detailed
information he was seeking. Joe personally delivered the
letter to the Judge's law clerk. The law clerk, who leaves
this month, is apparently the one who has been "pushing" the
medical cases filed against the staff at FMC Lexington, as
well as the Dumphord case.
FOIA Appeal Decision - An inmate at Terre Haute filed a FOIA
request in early 1996 seeking a copy of his complete
psychology file.
Everything was released to him but what was
considered MMPI raw test data. He appealed that decision to
the regional office and we supported the withholding .. The
inmate appealed to alP. alP has been struggling with this
issue since October of 1996 mostly due to staff turnover. We
have had discussions with alP staff on numerous occasions and
have provided them information from our Psychology
Administrator regarding Psychologist's Code of Ethics. This
month we received a copy of alP's letter to the former inmate
which released the grid where the inmate filled in a circle to
represent his response to a question, but supported our
withholding of the actual MMPI raw test data. We are not sure
if it made a differ~nce in this case, but the inmate had been
provided with a written summary of the test results. We were
pleased to receive this favorable decision.
Prisoner Litigation Reform Act:
FMC Le~ington - Jones v. Holland - We have just received a
copy of the memo from the Civil Division, recommending
against an appeal in this case.
We still feel this case
should be appealed, as the procedure followed by the court in
this case represents the typical, current practice in the
Eastern District of Kentucky--a practice that is at odds with
the clear mandate of the PLRA.
The u.s. Attorney and the
Civil Division concede the errors by the court, but recommend
against appeal based on the nominal award of attorneys fees.
We still feel this is an excellent opportunity to receive a
published appellate court opinion in a BOP case requiring
exhaustion in a Bivens act~on under PLRA .

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.
Page 4
MXR Monthly Report
SUBSTANTIVE PLEADINGS (COMPLAINT, MOTION FOR SUMMARY JUDGMENT,
ETC.): None
SETTLEMENTS: None
ADVERSE DECISIONS OR SIGNIFICANT DECISIONS:
FCI Memphis - Rowland v. US - After Rowland violated the terms
of his supervised release, the sentencing court imposed
second term of imprisonment. Upon completion of the second
term, the u.s. Parole Commission claimed that it also had
jurisdiction over Rowland and ordered him to serve yet another
term of imprisonment for the same violations. As a result,
Rowland brought a habeas corpus petition seeking his release.
The District Court granted the petition and the Government
appealed. On July 17, 1998, the Sixth Circuit affirmed the
District Court's decision in favor of Rowland.

a

UPDATE ON CASES, TRIALS OR HEARINGS, ETC. NOTED IN PRIOR
REPORTS:
FCI Petersburg - Bergquist v. US, et al. - In a court order
filed July 17, 1998, the government's Motion to Dismiss on
procedural grounds' (lack of formal service upon the U. S ., and
statute of limitations for filing the complaint) was denied.
The court noted the pro se inmate complaint was received by
the court prior to the SOL, although not stamped as officially
filed until after the SOL. The court also noted because the
court was responsible for service, the lack of service
argument fails.
Bergquist is now represented by counsel. The
case involves allegations that medical staff's delay in
diagnosing plaintiff's colon cancer resulted in his having to
undergo extensive and painful chemotherapy. The AUSA will be
at Petersburg on August 12, 1998, to review the medical
operation and speak to medical staff prior to obtaining an
expert witness. She will interview the former medical officer
on August 13.
FCI Petersburg - Platshorn v. Hahn - The saga continues with
this sentence computation case involving the issue of
aggregation of parolable and non-parolable sentences. After
both the appellant and appellee filed long informal briefs
with the Fourth Circuit, Platshorn's attorney filed a reply
brief, which is not permitted under the informal briefing
rules of the Fourth Circuit, along with a motion to supplement
the record. The AUSA filed a motion in opposition explaining
that documents filed by Platshorn's attorney were incomplete
and inaccurate.

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Page 5
MXR Monthly Report
FCZ Manchester - Shehee v. Robertson - As previously reported,
a Notice of Appeal was filed April 28, in this Bivens case as
a protective measure. The AUSA has now received a decision
from the Office of the Solicitor General approving the appeal
for all but one defendant.
USP Terre Haute - The U.S. District Court for the District of
Utah issued a TRO on July 10, 1998, prohibiting the BOP from
transferring William Thurmond from the District or the State
of Utah. A hearing was held on July 28, 1998, on the TRO in
which Judge Jenkins ordered the BOP to prepare a declaration
from Warden Clark basically stating that the Warden had
reviewed the transfer documents, was willing to accept the
inmate, and believed the inmate would be safe at USP Terre
Haute.
Inmate Thurmond was being housed in the Utah
Department of Corrections because he had previously cooperated
with authorities concerning a homicide at USP Terre Haute in
1983. Warden Clark reviewed the transfer packet and did not
agree with the inmate being designated to USP Terre Haute.
Legal staff at Terre Haute advised legal staff in the Western
Regional Office and that office stated they would redesignate
the inmate to another institution.
REPRESENTATION NOT RECOMMENDED FOR STAFF: None
SIGNIFICANT FTCA CLAIMS: None
MEDICAL MALPRACTICE CASES UPDATE:
FMC Lexington - Walls v. Holland, et ale - Judge Forester
denied plaintiff's Motion for a TRO to prevent his transfer
back to his parent institution.
Plaintiff alleges deliberate
indifference to his medical needs, i.e., treatment of his hand
which was damaged in an UNICOR accident at FCI Allenwood.
This ruling is significant because Judge Forester gave us only
two days to respond and a hearing was anticipated by the U.S.
Attorney's Office.
SIGNIFICANT ADMINISTRATIVE REMEDIES: None
NEW RFRA CASES AND UPDATES ON PREVIOUSLY REPORTED CASES:
FCI Beckley - Perkins v. Barnard, et al. - This was a Bivens
suit alleging a pat search by a female officer violated a male
inmate's constitutional rights. The inmate did not allege a
violation of RFRA. The case has been dismissed for Failure to
State a Claim.
ALTERNATIVE DISPUTE RESOLUTZON EFFORTS: None
18 U.S.C. § 3621(e) LITIGATION:

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Pa~6

MXR Monthly Report
FCI Morgantown - Kirby v. Bledsoe - This case represents our
first challenge to the new Program Statement 5162.04,
Categorization of Offenses. Kirby was initially found
ineligible under P.S. 5162.02 (922(g) conviction), and
declined participation in RDAP since he was ineligible for the
year off. Kirby exhausted his administrative remedies under
the old program statement. Subsequently, Kirby was told he is
not eligible under P.S. 5162.02 based on the Director's
discretion.
Kirby is challenging the new program statement on
the basis that it is unlawful and is an attempt by the BOP to
circumvent the will of Congress.
SIGNIFICANT NEW CRIMINAL REFERRALS SINCE LAST.MONTH'S REPORT:·
FCI Beckley - Fred Brunet, Reg. No. 18375-018, was scheduled
to be sentenced for Possession of Contraband (Marijuana,
Heroin, Pills) on July 24, 1998. The sentencing has been
rescheduled for August 27. The female visitor who brought the
drugs into the facility was sentenced in July to 15 months
imprisonment.
FMC Lexington - On July 2, 1998, William Davis, Reg. No.
11187-058, and James Thornton, Reg. No. 04919-028, were
indicted by a Lexington grand jury for Possession of
Narcotics. A visitor, Antonio Ferrell, introduced narcotics
to Davis in FMC Lexington's visiting room. .
FCI Beckley - Brian Clarke, Reg. No. 12541-014, was sentenced
on July 27, 1998 to 24 months imprisonment for Possession of
Contraband (a weapon) .
FCI Cumberland - On July 7, 1998, inmate Mark Bundy pled
guilty to Assault with a Dangerous Weapon. The indictment was
dismissed against inmate Marcel Washington. These two inmates
were originally indicted for Retaliation against a Federal
witness and assaulting another inmate on March 11, 1997.
FMC Lexington - The u.s. Attorney's Office finally chose to
decline prosecution on inmate John Werner, Reg. No. 07251-050,
for assaulting an officer in November 1997, during a struggle
over a syringe Werner had in his possession. Werner had been
continued over a number of grand juries in 1998, before the
U.S. Attorney's Office decided to decline, based on the
allegedly minor nature of the assault. Werner was
subsequently released from our SHU and transferred to MCFP
Springfield after Joe Tang, institution attorney, discovered
the assaulted officer was uncomfortable with Werner's return

o

Page 7
MXR Monthly Report
to Lexington's open population.
SUCCESSFUL PROSECUTIONS OR ANY ACQUITTALS SINCE LAST MONTH'S
REPORT: None
REHABILITATION ACT: None
Ensign Amendment Cases: None
Dismissals Under PLRA:
FCI Milan - Demma v. Parker, et al - We received a favorable
R&R reviewing the case under the PLRA based on the Waiver of
Reply. The Court stated under the PLRA revisions to section
1915, the case should be dismissed .

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.

Page 8

MXR Monthly Report
New Litigation Cases by Institution and Type
Received During the Month of July 1998

BIV
FTCA
HC
OTH
TOT

ALD
0
1
0
0
1

ASH
0
0
1
0
1

BEC
0
0
1
0
1

BUT0
0
0
20
20

CUM
2
0
5
0
7

ELK
0
0
0
0
0

LEX
0
0
0
0
0

MAN
0
0
0
0
0

MEM
0
0
0
0
0

MIL
1
1
1
0
3

MRG
0
0
2
0
2

PET

0
0
1
0
1

SEY
0
0
0
0
0

THA
0
0
0
0
0

TOT
3
2
11
20
36

- Represents both the FCI and LSCI
New Litigation Cases by Institution and Type
Received Calendar Year to Date

BIV
FTCA
HC
OTH
TOT

ALD.
0
1
1
0
2

ASH
1
0
2
0
3

BEC.
0
0
1
1
2

BUT"
1
0

CUM
3

3

9

20
24

16

-BUT represents both 1he FCI and the LSCI
ALD.

2
2

ELK.
2
0
2
2
6

LEX
6
0
0
0
6

MAN
1
2
1
1
5

MEM
1
0
3
1
5

.Corrected figure lease counted twice)

MIL
3
3
7
0
13

MRG.
2
0
4
0
6

PET
2
0
3
0
5

SEY
0
0
1
0
1

THA
3
1
5
0
9

TOT
25
9
42
27
103

.Case counted for BEC should have been

..

u.s. Department of Justice
Federal Bureau of Prisons
Dallas, Texas 75219

South Central Regional Office

August 5, 1998
MEMORANDUM FOR WALLACE H. CHENEY
ASSISTANT DIRECTOR/GENERAL COUNSEL
FROM:

Michael D. Hood, Regional Counsel

SUBJECT:

Monthly Report - July 1998

ADMINISTRATIVE REMEDIES
RECEIVED
ANSWERED

JAN

FEB

MAR

APR

MAY

JON

JUL

160
90

180
108

189
141

163
85

197
158

190
138

186
125

AUG

SEP

OCT

NOV

DEC

TORT CLAIMS
FEB

MAR

APR

MAY

JON

JUL

133
56
33
156
0

156
67
36
187
1

195
52
46
201
1

201
48
45
205
1

193
45
53
185
1

193
47
61
179
1

176
52
54
174
1

JA
N

FE
B

MA
R

AP
R

MA
Y

JU

JU

N

L

56
28
28
56
22

56
30
22
54
45

54
43

15
88
70
33
10

21
45
41
21
9

21
42
39
24
9

24
38
46
16
8

JAN
PENDING
RECEIVED
ANSWERED
PENDING
OVER SIX MO

AUG

SEP

OCT

NOV

DEC

AU
G

SE
P

OC
T

NO
V

DE
C

FOI/PRIVACY
PENDING
RECEIVED
ANSWERED
PENDING
OVER 20 DAYS

I

LITIGATION

82

15
13

o

Page 7
MXR Monthly Report
to Lexington's open population.
SUCCESSFUL PROSECUTIONS OR ANY ACQUITTALS SINCE LAST MONTH'S
REPORT: None
REHABILITATION ACT: None
Ensign Amendment Cases: None
Dismissals Under PLRA:.
FCI Milan - Demma v. Parker. et al - We received a favorable
R&R reviewing the case under the PLRA based on the Waiver of
Reply. The Court stated under the PLRA revisions to section
1915, the case should be dismissed.

.

Page B

MXR Monthly Report
New litigation Cases by Institution and Type
Received During the Month of July 1998

BIV
FlCA
HC
OTH
TOT

ALD

ASH

BEC

BUr-

CUM

ELK

LEX

0

0
0
1
0

0
0
1
0
1

0
0
0
20
20

2
0
5
0
7

0
0
0
0
0

0
0
0
0
0

1

0
0
1

1

MAN
0
0

MEM
0
0

0
0
0

0
0
0

MIL
1
1
1

0
3

MRG

0
0
2
0
2

PET
0
0
1

0
1

SEY
0
0
0
0
0

THA

0
0
0
0
0

TOT
3

2
11

20
36

-Represents both the FCI and LSCI
New litigation Cases by Institution and Type
Received Calendar Year to Date
ALD.
BIV
FlCA
HC
OTH
TOT

0
1
1
0
2

ASH
1

0
2
0
3

BEC.

0
0
1
1
2

BUr1
0

3
20
24

- BUT represents both the FCI and the LSCI
ALD.

CUM

3
2
9
2
16

ELK.
2

lEX

MAN
1

MEM
1

0
2
2

0
0
0

2

6

5

0
3
1
5

6

6

1
1

.Corrected figure (case counted twice)

MIL

MRG.

PET

SEY

3
3

2
0
4
0

2
0
3
0
5

0
0
1
0

7
0
13

6

1

THA
3
1
5

TOT
25
9

42

0

27

9

103

.Case counted for BEC should have been

 

 

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