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Usdoj Fbop Memo Re Quarterly Litigation Rep July to Sept 97 1998

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u.s. Department of Justice
Federal Bureau of Prisons

Dublin, California 94568

Office of the Regional Director

March 23,

MEMORANDUM TO WALLACE H.

1998

CHENEY, GENERAL COUNSEL

FROM:

Harlan W.

Penn,

Regional Counsel

SUBJECT:

Quarterly Report for Period July to September,

1997

Attached are the FOI/PA and litigation forms reporting
information for the July to September, 1997 quarter.
As
explained in the following paragraph, I am not including tr,e Tort
or Administrative Remedy forms this quarter.
Unless specifically requested, we will not include Tort, ~,:= or
Administrative Remedy statistical forms in future quarte";;'
reports.
In each case the forms used requi re data a ~ rea -j':'
available in Central Office to be electronically or man~ :~~~
compi led here and then typed onto a blan k form tha t i s : :.~':. : 'l:·:ed
or mailed to Central Office and then, if used in furthe! :.': rts,
copied from the faxed or mailed copy.
The possibilitig~
clerical error are significant.
The Tort information ~~
. :led
from the Tort Data Base which we transmit monthly to : i.'
Branch.
The FOr reporting requirements have changed
significantly in recent months.
We provide the reque~"
information to Renee Barley at the beginning of eac~, l~;. :,"
also include information in the monthly report whi-h ~:
distributed by E-mai:.
The Central Office data bd;-;~ ':.:'
some of the information althouqh it may not inc 1 ud . . , Cl~. ; :
required by new DO.! Guide2i:les.
Administrative Pc:;,(::,j':'
information provided I:. F!~e"'ic\l~ reports was enti!"r.:·J ' : ,
".:
from Sentry and tIIE:!1 t.ypf"d ":.l': a form as d'::,scr':'L'''l rJ:
Eliminating the r<'7oi r ma 1 trclnS'-"r iption and transmi~~>::.
' ... :',
statistics will save S'cl::' : ~m(' dnd should improvt, : :.'
of national repurt5.

2

There were no settlements or awards requiring narrative analysis
during the July to September period. The trials or hearings
noted are described below:

u. s. v. Zubick/ CV 97-3555-JGD (CDCA). [LOS)

Three hearings held
in Los Angeles re sentence ~omputation/credit issues. Writ
granted and inmate release ordered July 30/ 1997. Case was
unusually complicated by repeated efforts of District Court to
revise sentence to take into account Ninth Circuit orders
regarding two prosecutions involving similar conduct under old
and new law.
Naidenoff v. Stratman, CV 96-2008 BTM(CGA) (CDCA). [SDC/PHX]
Court-ordered immediate release of inmate following hearing
regarding imposition of Special Parole Term Violation sentence
and resulting computation based upon Parole Commission Notice of
Action.
Low v. Clarke-Cain, CV 95-0888 RMT (SHx) (CDCA). [BRN]
Religious
Freedom Restoration Act case in which inmate seeks injunctive
relief for practice of Satmar sect of Hasidic Judaism.
Trial
held September 29-30/ 1997 in Los Angeles, but recessed for
settlement discussions.
Previously the Court ordered Low placed
in a halfway house for High Holidays.

.

LITIGATION - 1997

4th QUARTER REPORT

Awn

SET

Awn/SET

2

0

1

S

46

10

0

0

0

626

47

16

0

3

0

39

135

36

6

0

5

0

4

43

726

39'

0

0

1

$2,500

- --

- --

323

--

- --

- --

0

4

2

15

172

11

8

0

0

9

62

190

197

2,862

229

42

0

11

OTH

ANS

7

4

48

331

50

4

11

170

19

549

53

8

20

6

33

67

45

6

12

4

SER

46

29

5

8

WXR

61

- --

---

- --

CO

28

6

0

31

LaC

NUM

HC

FTC

SIV

MXR

42

23

8

NCR

62

30

NER

90

SCR

TOT

186

396

PEN

CLD

--

HIT

$2,692

DEFJ II I T IONS

LOC tlur·j lie

Location
Total Ilum[,er of LaHsuits
Numbe r

0

f

~'il.",-j

Hdbeas C<)rpus Ac li

in QUiHt8f

ron s Fi 1 (~d

i~,

Qua r I

~-

r

FTC - Humber Gf rTcr,. IV::.t ions Fi led 1 It CJua11 '.:1
BIV - Ilumber of Bi'.,:ens ";'-=1 ions Fih·j in Q·Jdn·~·:OTli - Other ;\I:t i OTiS Fi 1 cd in 0uart'~'1
f-oJlS - Number' ot Li t igat ion Heports ('~Imple: t~j
PEII - Numbe r 0 I l\c t ions Pend i nq
eLl) - Ilumbe r (J f A~=t ions C !,):)€:d
HIT
Numb.?f of Hearinqs c,r Trials dl;Jr~-~Jt :,,'.-. !~n,d·/:-l.:-'
M'il) -

Numb.::: r

cd

AHd Ids

I:

i ve !\Ild I ','s is 1-':.: 1o'.·.. S)
(tbrrcd j'lt: 1~I1;d'/s:s t':_.\:.

r

lid rId t

SET - llumber
f Settli.:[rl·:;nts
- All\(;IH.l of S..::t t ler!lcnts anj t\',-:arjs

183

'.':S}

.MllJ/~;~:T

LITIGATION ANALYSIS
The total number of lawsuits filed increased by 19 from last quarter.

1997 QUARTERLY LITIGATION REPORT
FOURTH QUARTER
I. TRIALS AND HEARINGS
MID-ATLANTIC REGION
Mildred Thompson v. Hemingway, - FPC Alderson - On July 22, 1997,
hearing was held to determine why the Bureau of Prisons had not
yet published a new policy to replace the "Crimes of Violence"
Program Statement which was declared void in Wiggins v. Wise. At
the conclusion of the hearing, the Magistrate called both sides
into her chambers and suggested that the Bureau should seriously
consider "settling these cases," as she indicated the current
Bureau position is causing a "public relations problem" for the
Bureau with the Court.
NORTHEAST REGION
McCarthy v. United States, No. 96-7701 (3d Cir.).
On July 21, 1997, the Court of Appeals heard oral argument in
this appeal of a habeas corpus denial.
Inmate Arthur McCarthy,
49352-080, filed the petition challenging the recalculation of
his federal sentence days before his "parole eligibility" date,
his calculation changed the inmate's parole eligibility date. The
Court of Appeals affirmed the District Court's order that denied
the petition stating that the sentence computation was a proper
exercise of BOP's discretion.
Michael Lloyd v. Ronald Levine, et. al., No. 96 - , Od Ci L )
On July 21, 1997, the Court of Appeals heard oral argument
concerning the dismissal of a Bivens complaint relating to the
denial of CCC placement. The district court granted Defendants'
Motion for Summary Judgment stating that the "decision to deny
plaintiff CCC placement is not judicially reviewable absent a
constitutional violation" and no reasonable fact finder would
find one in this case.
Moore v. Agusto, 93 Civ. 4835 (MGC) (S.D.N.Y.) On July 21. lY97,
a trial commenced in this Bivens case in which the plaintit!.
inmate Christopher Moore, 39228-053, alleged excessive USe of
force was used when removing him from the roof top recreatlon
area at MCC NY.
After two hours of deliberations, the jUly
returned a verdict in favor of each defendant.
Drino v. Wigen. et a1., Civil No. 96-7308 (E.D.Pa.) - On
August 12,1997, a trial was held in this Bivens case filt>ct by
FCI Schuylkill inmate Gary Drino, 02906-015. The Plaintltt
alleged that the DHO's finding that he committed a prohib~~pd act
(l'Assaulting any Person" (Code 224)) was racially motivatE'd
The

bench trial lasted one day.
defendants.

The Court ruled in favor of the

Stiver v. Meko, 96-3400 (3d Cir). On September 23, 1997, this
habeas case was argued before the Court of Appeals. The
appellee, FCI McKean inmate Robert C. Stiver, alleged that he was
unlawfully denied 3621(e} early release eligibility because of
prior convictions for aggravated assault and armed robbery.
Through his appointed attorney, he argued that the decision to
include prior violent offenses when determining early release
eligibility for completion of the Drug Abuse Program violates the
Double Jeopardy and Ex Post Facto Clauses of the United States
Constitution. The focus of the argument was whether the Bureau
of Prisons use of a prior conviction for robbery and aggravated
assault to exclude an inmate from early release eligibility was a
reasonable interpretation of 18 USC § 3621(e).
II.

SETTLEMENTS AND AWARDS

MID-ATLANTIC REGION
Funderburk v. USA, - LSCI Butner - FTCA property settlement for
$183.35.
SOUTH CENTRAL REGION
Daas v. Henman, W.D. La. - FOC Oakdale - Case was settled for
$2,500 and converted from a Bivens to an FTCA case. The case
involved allegations of improper placement of the inmate in
Administrative Detention when inmate threatened to file lawsuits
and sent threatening correspondence to the Warden.
Caldwell v. United States, W.D. Oklo - Fcr El Reno - Inmate
alleged that BOP personnel failed to provide him with adequate
winter clothing which resulted in his suffering a minot" illness.
This 1989 FTCA case was settled for $1,000.00.
Wright v. Miller, W.D. Tex. - FCr BASTROP - The case involved
alleged excessive use of restraints during a bus trip.
The
plaintiff agreed to convert this Bivens action into an FTCA
action and settled for $2500.
NORTH CENTRAL REGION
Suarez v. Scott, et al., D. Kansas CV-95-3407-KHV - USP
Leavenworth - A Bivens/FTCA case.
Inmate alleged he Welt; dPIued
food, water, and opportunity to use a lavatory when he ..... d~: J laced
in four point restraints. The complaint was amended t () ,Hid d
claim under the FTCA. An agreement has been reached t C' !; •• ~ ~ ~ e
the same for $250.00.

NORTHEAST REGION
Oriahki v. U.S., (M.D.Pa.)
$176.50.

- FTCA property settlement for

Administrator of Estate of Harris v. U.S., 96-6549(E.D.Pa) - FTCA
case involved allegations of medical malpractice; delay in
receiving appropriate eye care for former inmate William Harris.
The death of the inmate was unrelated to the issues in the case.
Settlement for $1,500.00.
Tulloch et. al. v. U.S., 92-4866 (SDNY) - MCC New York - FTCA
case filed in June 1992 by six inmates who alleged that while on
the elevator at MCC New York the elevator suddenly plunged to the
basement. A settlement was reached. The amounts varied by
inmate with a total of approximately $90,000.00.
III.

PENDING CASES OF INTEREST

NORTH CENTRAL REGION
Tighe v. Booker, 97-1046, (10" Cir. D.Ct.) - FCI FLORENCE - The
Tenth Circuit affirmed a district court decision awarding credit
for time spent in federal custody on writ. The inmate was in
state custody when he was writted into federal custody for
federal prosecution. Tighe's state sentence continued to run
during entire period (31 months) in federal custody on writ.
The
federal sentence was ordered to run concurrently with state term
and was started on date of sentencing. He sought credit toward
his federal term for 31 months on writ, which was already
credited toward state term. The district court ordered BOP to
give that credit, citing Brown decision from the Tenth Circuit,
finding that the length of time on federal writ exceeded the 19
months in Brown, thus, the custody "transmuted" to federal
custody and the inmate should get the credit toward the federal
sentence. The Tenth Circuit upheld the district court, holding
that due to the length of time in federal custody on writ, the
inmate was "in custody in connect ion with the federal Chell'ges,
and thus was entitled to credit, relying on the previous decision
in Brown, despite the fact that the inmate already received
credit for that time toward his state sentence.
II

Saleem v. Helman, 7th Cir. Case No. 96-2502, (FCI PEK).
Th~'
offender challenged the denial of conjugal visits as a vicIldtion
of First Amendment and RFRA. After the district court d 1 !:n~ l ssed
the claim, inmate appealed.
In an unreported opinion, th .. court
held RFRA had been declared unconstitutional, citing ~~_v~
Heorne v. Flores, 117 S. Ct. 2157 (1997) and no longer W,l~:
enforceable. The court followed long line of cases hold: ::'1 an
inmate has no constitutional right to contact visitation 01
conjugal visits.

NORTHEAST REGION
Roussos v. Menifee, No. 97-7011, 1997 WESTLAW 401319 (3d Cir.).
The Third Circuit, following the 9th Circuit decision in Downey,
held that the BOP could not use the two point firearm enhancement
to find a "crime of violence" for purposes of denying 3621(e)
eligibility. The Court of Appeals did agree with our position
that the appropriate remedy was to remand the case for the Bureau
to reconsider Inmate Victor ROussos, 30950-054, eligibility
consistent with the court decision (not to order immediate
release) .
M.B. v. Reish, No. 96-2347 (2d Cir. July 30, 1997). The Court of
Appeals affirmed the decision of the district court in favor of
the Bivens defendant. WITSEC inmate M.B. appealed the grant of
summary judgement to nine MCC NY staff members in a Bivens action
in which he alleges that adjudication of disciplinary charges
violated his constitutional rights.
Ansar el Muhammad a/k/al Tracy L. Munnerlyn v. George C. Wigen,
et.al., Civil Action No. 95-3668 (E.D.Pa). - This case, which has
been construed as a RFRA case, involves allegations that staff at
FCI Schuylkill illegally intercepted the Plaintiff's religious
mail sent from his wife.
In addition, the Plaintiff, former
inmate Tracy Munnerlyn, Reg. No. 06006-097, also alleges he was
placed in segregation, given an incident report and disciplinary
sanctions and transferred in retaliation for his religious
beliefs. The case was stayed pending resolution of the Flores
case by the Supreme Court. Subsequent to the Flores decision,
the Department of Justice granted authorization for private
counsel for each of the named defendants (although private
counsel WILL NOT be reimbursed for any direct challenges to the
constitutionality of RFRA).
The defendants have recently agreed
.on a private attorney and the case is scheduled to proceed in the
near future .

.

NORTH CENTRAL REGION
Rahman v. Keohane and Kane, 97-3270-CV-S-RGC, (W.O. MO.)
Inmate alleges various conditions of
- USMC SPRINGFIELD confinement violate his constitutional rights and RFRA.
Plaintiff is represented by former u.s. Attorney General Ramsey
Clark.

---------_._--.

Tiehev. Booker, 10th eire Case No. 97-1046, (D.CL" 95-D-0638) (FCI FLF)

The Tenth Circuit affinned a district court decision awarding credit for time spent in federal
custody on writ. The inmate was in state custody when he was writted into federal custody for
federal prosecution.. Tighe's state sentence continued to nut during entire period (31 months) in
federal custody on writ. The federal sentence was ordered to run concurrently with state tenn
and was started on date of sentencing. Tighe was returned to Louisiana, completed his state teoo
and was taken into federal custody. He sought credit toward federal teon for 31 months on writ.
which was already credited toward state term. The district court ordered BOP to give that credit,
citing Brown decision from the Tenth Circuit, finding that the length of time on federal writ
exceeded the 19 months in Brown. thus. the custody "transmuted" to federal custody and the
inmate should get the credit toward the federal sentence.
On appeal, the Tenth Circuit upheld the District Court, holding that "in light of the length of'
time in federal custody on writ, the inmate was "in custody in connection with" the federal
charges. and thus was entitled to credit, relying on the previous decision in Brown. The fact that
the inmate already received credit for that time toward his state sentence was "of no moment" to
the Tenth Circuit.
SETTLEMENTS OR JUDGMENTS

Suarez v. Scott, et aI, D. Kansas Case No. 95-3407·KHV, USP Leavenworth

-"

Inmate alleges he was denied food, water, and opportunity to use a lavatory when he placed in
four point restraints. The district court denied a motion to dismiss and/or for summary judgment
and appointed counsel to represent the ironate. The deposition ofthe irunate and several staff
were taken and additional depositions were scheduled outside of the Leavenworth area. The
complaint was amended to add a claim under the FTCA. An agreement has been reached to
settle the same for $250.00 which is nuisance value.
DECISIONS OF INTEREST

None to report.

PENDING CASES OF INTEREST
Rahman v. Keohane and Kane. W.D. MO. Case No. 97-3270-CV-S-RGC. MCFP Springfield

_

Inmate alleges various conditions of confinement violate his constitutional rights and RFRA
Plaintiff is represented by fanner U.S. Attorney General Ramsey Clark. The DOJ has appro~ed
outside counsel for the defendants. Outside counsel. David Baker. filed a responsive pleadmg
on on or about September 24, 1997 on behalfof Warden Keohane. Outside Counsel noted that
fanner Regional Director Patrick Kane had not been served and suggested, pursuant to

F.R.Civ.P. 25 (a)(1) that Mr. Kane was deceased..
Buford ex rei. LeIer v. USA. D. Kansas Case No. 97-2263-JWL. USP Leavenworth
Relatives of deceased inmate have brought on FTCA action alleging BOP negligence led to
death ofdecedent. Inmate Leger was murdered by inmate Storey in August. 1995. Storey
recently pleaded guilty to murder.

RELIGIOUS FREEDOM RESTORATION ACT CASES
Saleem v. Belman. 7th Cir. Case No. 96-2502, (pCI PEK)
Offender challenged denial of conjugal visits as a violation ofFirst Amendment and RFRA.
After district court dismissed claim, inmate appealed. Iil an unreported opinion, the court held
RFRA had been declared Wlconstitutional, citing City ofBeome v. Flores. 117 S.Ct. 2157 (1997)
and no longer was enforceable. Court followed long line of cases holding an inmate has no
constitutional right to contact visitation or conjugal visits. See 1997 WL 527769.

ENSIGN AMENDMENT LITIGATION
No new cases filed.

CRIMINAL MATTERS
United States v; Rickets. S.D. Ill. FCI Greenville

Inmate Rickets was sentenced to a consecutive 12 year sentence for mutiny and rioting. The case
arose out of the October. 1995 disturbance at FCI Greenville.
United States v.IJohnson. N.D. Ill. MCC Chicago
MCC is housing several defendants who are facing the death penalty in the Northern District of
Illinois. Defense.counsel requested that their expert be pennitted to interview several BOP staff
who have interacted with the defendant in order to develop an opinion whether the defendant
could safely function in a correctional facUity like ADX Florence without posing a risk to staff or
other inmates. MCC Attorney Ken Hyle has been in contact with our office and Doug Curless in
the OOC concerning this recurring and sensitive issue.

United States v. Ralph E. Brandon. Sixth Circuit Case No. 97-3812. FMC Rochester

Brandon is a 18 USC 4241(d) commitment. Staff determined that psychotropic medicauon was
in the patienfs best medical interest and necessary to restore him to competency. Defense
counsel sought an evidentiary hearing for the purpose ofobtaining a judicial detenninatlon of the
need for medication. The district court declined and the defendant appealed. The coun of
appeals is reviewing two issues: (1) whether a pre-trial detainee has a right to a judicial

_.-

proceeding prior to the involuntary administration of psychotropic medication deemed necessary
to restore to competency; and (2) appellate jurisdiction.

ADMINISTRATIVE CLAIMS AND OTHER MATTERS OF INTEREST
None this month.
TRIALS OR HEARINGS

Pederson v. Reno, Case No. 5-95-30, FPC DuluthlUNICOR D. Minn.
This Title VIIlEqual Pay Act trial was held September 16-18th in St. Paul, Minnesota. The
plaintiff testified that she was not paid as much as similarly-situated male Systems Factory
Managers in the BOP. The plaintiff admitted documents showing that the systems operation
was under the Unicor Metals Division and the BOP's Grade Guidelines for Managers graded the
Duluth Metals Factory Manager as a GS-12. Next the plaintiff's expert deposition was
admitted. The plaintiff's expert stated that the plaintifrs position was incorrectly evaluated with
the Woods Factory Manager criteria and instead should have been evaluated with the Metals
Factory Manager criteria. Finally, she provided evidence that the Systems Factory Manager
position at FCI Schuylkill was paid a GS-12.
The defense countered with testimony that the systems operation has moved to several divisions
in Unicor, that the panels-systems operation did not involve the fabrication of metal pans from
raw materials, that no specific criteria existed for evaluating Systems Factory Managers in the
BOP's Grade Guidelines for Managers, and when evaluated with the OPM's classification
standards; the plaintifr s position correctly graded as a GS-11, not a GS-12. Several defense
witnesses also testified that managing a Unicor operation at higher-secW'ity institution was more
dangerous, involved greater tool control, called for a greater supervision of inmates. and was
more responsibility than managing a Unicor operation at a Federal Prison Camp. After closing
arguments, Judge Alsop took the case under advisement.
Of the remaining nine trials and hearings held, six mental health hearings were held at the MCFP
Springfield, and one mental health bearing was held at FMC Rochester. USP Florence was the
site ofa criminal arraigrunent in a inmate on inmate homicide case (U.S. v. Monis). L'SP
Marion staffpanicipated in a pre-trial hearing in the case Huskey v. USA.

UPCOMING HEARINGS OR TRIALS
Love v. Tippy, 8th Cir. Case No. 96-4224-MN, FCI Waseca, DAP credit
Oral argument scheduled for Monday, October 20, 1997 in S1. Paul Minnesota. Inmate Love's
underlying conviction is carrying a fireann during the commission of a drug offense or a crime of
violence, 18 USC 924(c)( I). This is the exact same offense that the plaintiff in Sesler \". Pitler

was convicted of and denied DAP credit under.

--

PERSONNEL ISSUES
None
STAFF TRAVEL AND LEAVE

John

October 7-8
October 20 -24

Daryl

October 3
October 7-8
October 7-8

Dan
Vincent

Sept. 29 - Oct. 10
October 20 - 24

Gwen

October 17

Janet

October 14 - 17

Gary

October 9,10

LeeAnn

None

Master Agreement Training
OGClNew Attorney Training
CLE Medical Malpractice
Master Agreement Training
Master Agreement Training
Institution Familiarization
New Attorney Training
Annual Leave
Annual Leave
Annual Leave

Claims database WAN to Mary Rose Hagan on September 30, 1997.

·'

U.S. DEPARTMENT OF mSTICE
Federal Bureau of Prisons
North Central Region
Office of Regional Counsel

--'

Kansas City_ KS 66101
October 10, 1997
MEMORANDUM FOR WALLACE H. CHENEY, ASSISTANT DIRECTOR
GENERAL COUNSEL & REVIEW

FROM:

JOHN R. SHAW, Regional Counsel

SUBJECT:

MONTHLY REPORT (September_ 1997)

LITIGATION, CLAIMS, AND ADMINISTRATIVE REMEDY STATISTICS
LITIGATION:

NUM • Number of totallawsulta flied In the month (1)
He • Number of habeas corpus actions flied In the reporting period
FTC • Number of FTCA actions flied
SIV· Number of Bivens actions filed
OTH • Number of other actions flied, e.g., mental health, mandamus
ANS • Number of litigation reports completed
PEN· Number of cases pending
CLD • Number of cases closed
HIT· Number of hearings or trials (Inetude In narrative)
SET· Number of settlements (include In narrative)
AWD • Number of Awards (Include In narrative)

Total new cases for calendar year 244

ADMlNISTRATIVE CLAIMS:
JAN

70

_.'
..2££

'n.

.Q

iQiQiSiQii.QiQiQ.!

FEB
98

MAR
95

APR
66

Total for Calendar Year
Pending

MAY JUN
95
•
706
560

, g;;:g~;:;::;x;::;::;;:;;;;:;;=t4 .. ,J.....c,o...w ...d.Q. ,.

( &:',$

JUL
151

AUG
69

SEP
62

OCT

!'Oy I DEC

I

I

..-"

ADMINlSTRATIVE REMEDIES
JAN

FEB

MAR

APR

MAY JUN

176

180

210

196

226

Total for Calendar Year

140

JUL
164

AUG
163

SEP

OCT

NOV

DEC

154

1,609

FREEDOM OF INFORMATION ACTIPRIVACY ACT REQUESTS

ACTUAL ON-HAND
ACTUAL RECEIVED
ACTUAL PROCESSED
ACTUAL BACKLOG

FOIA

PRIVACY ACT

0
0
0

50
78
45
16

0

ADVERSE DECISIONS
Clay v. Knowles D. Colorado Case No. 97-Z-0S90 (USP FLP)
Judge Weinsheink ordered the government to grant credit toward an inmate's consecutive federal
sentence time spent in a federal facility, which was already credited toward his state tenn.
Inmate escaped from Colorado DOC and arrested later by FBI on federal drug charges. He was
held at FeI Englewood pending federal trial. His federal sentence was ordered to run
CONSECUTIVELY to any outstanding sentence. On date of federal sentencing. Colorado DOC
restarted the state term. USMS requested designation and BOP designated to Englewood. where
he remained until surrendered to the state, upon discovery of the designation error. The inmate
received credit toward his state term for the period in custody from the date of federal sentence
on. Upon completion of the state obligation, the inmate was returned to federal custody. He
received jail credit for the time spent in custody prior to federal sentencing, and his sentence was
commenced on the date received into BOP custody from the state. The Court's order directs the
BOP to begin the inmate's sentence on the date of federal sentencing, to stop it on the date he
was returned to the state authorities, and to begin the sentence again on the date he was returned
to federal custody. The order precludes the BOP from giving effect to the sentencm~ court's
order for consecutive service of the federal term. The Institution and NCRO have recommended
appeal. The U.S. Attorney's Office has recommended against appeal only because of the
perceived unfavorable judicial climate in the Tenth Circuit concerning sentence computation and
jail credit cases. See Tighe, below.

'--"

October 15, 1997

Quarterly Report - SCRO

7/1/97 - 9/30/97
SOUTH CENTRAL REGIONAL OFFICE
NARRATIVES
JULY 1, 1997 - SEPTEMBER 30, 1997

SIGNIFICANT CASES
Fowler v. USA, 97-2006 (ED/LA). Coleatha Fowler and Adrian Perry
brought a Federal Tort Claims action in the Eastern District of
Louisiana. Fowler and Perry are the administrators of the
estates of Ricardo E. Lopez' two minor children. Lopez was
murdered by Albert Young while Young was participating in the
home confinement program. Plaintiffs allege that the Bureau
failed to properly monitor Young's home confinement. The
assigned AUSA filed an answer and is currently drafting a Motion
to Dismiss.
McAlpine v. Thompson, 94-1406-L (WO/OK). This case has reached
the 10th Circuit Court of Appeals. The case involved our denying
the inmate his use of peyote during religious ceremonies.
However, because the inmate was released from BOP custody in
November 1996, the AUSA will argue that the petitioner's request
for relief is moot.
Anez S. Robinson v. United States of America. C.A. No. 97-051,
(SD/TX).
Plaintiff alleges that he b~oke two metal rods in his
back when he fell from an exercise bicycle. A broken seat on the
bicycle caused the fall.
Plaintiff alleged BOP employees were
the proximate cause of his injury by not insuring the seat on the
exercise bicycle was tight before allowing inmates to use it.
Plaintiff alleges nothing has been done to repair the broken rods
and he is totally disabled and unable to work.
Plaintiff claims
undue physical/emotional pain and suffering and is seeking
$3,000,000.00, and any other relief deemed appropriate by the
court.
Rocha v. Reno, A-97-CA-549-SS (WD/TX). This case was filed
pursuant to Title VII of the Civil Rights Act of 1964. Plaintiff
alleges discrimination based upon national origin and age when
another person was offered the position the plaintiff sought at
FCI Bastrop .

.. .., .3,Q.d, (

Spanjol v. USA, 4:94-CV-237 (ED/TX). Wrongful death case
involving treatment at several institutions. The Court ruled in
our favor, stating that although there may have been some
negligence, it was not the proximate cause of his injury.
FCI La Tuna reports receipt of Jacquez v. United States, et al.,
EP-97-CA-311-H. This is one of three cases involving the same
issue - that inmates were allowed to take and successfully
complete certain college classes, but were never issued
transcripts for the completion of those classes, SCRO will
handle these cases.

CASES WITH SEITLEMENT OR AWARD
a.

Adverse judgments
In Martinez v. Fleming, A-97-CA-010-SS (WO/TX), an FCI
Bastrop habeas petition, Judge Sparks ruled that an inmate
convicted of 21 U.S.C. Section 841(a) (1) with a two-point
enhancement for possession of a weapon in connection with a
drug offense is not a violent offender for the purposes of
early release under 18 U.S.C. Section 3621(e). Notice to
Appeal has been withdrawn.
In Donald Pettigrew v. Fleming, A-97-CA-088-SS (WO/TX),
another FCI Bastrop habeas petition, Judge Sparks ruled that
an inmate convicted of 21 U.S.C. Section 846 with a
two-point enhancement for possession of a firearm during the
course of the conspiracy is not a violent offender for the
purposes of early release under 18 U.S.C .. Section 362l(e).
The Daas v. Henman case from FDC Oakdale was settled for
$2,500 and converted from a Bivens to an FTCA case. The
case involved allegations of improper placement of the
inmate in Administrative Detention when inmate threatened to
file lawsuits and sent threatening correspondence to the
Warden.
Caldwell v. United States (WO/OK). This 1989 FTCA case from
FCI EI Reno was settled for $1,000.00.

Sinks v.Slade, EP-97-CA-116-F. The FCI La Tuna petitioner
challenged the BOP's determination that he was ineligible
for early release because his crime was considered a crime
of violence. The District Court ruled that the inmate's two
point enhancement cannot make him ineligible for early
release because it is not a conviction.

Bobby James Cammock v. Bureau of Prisons et al.,
C.A.C-96-196, SD/TX. Court dismissed habeas petition.

Court concluded that possession of a firearm by an illegal
alien (922g) is not a IIcrime of violence ll pursuant to 18
U.S.C. § 3621(e) (B). The Court further stated IIthis legal
conclusion does not mean that petitioner is entitled to a
one-year reduction in his sentence. Section 3621 makes
clear
that the one-year reduction is discretionary with the BOP." A
reconsideration motion has been filed.
b.

Tort

Cla~

settlements

Vernon Robertson had filed a tort claim alleging FTC
Oklahoma City staff failed to protect him from a violent
state inmate who assaulted inmate Robertson causing him
limited permanent injury of his hand.
Inmate Robertson was
offered a settlement of $1500, which he accepted. Attempts
are being made to contact the prosecuting AUSA to have the
money applied toward restitution instead of to claimant's
inmate account.
c.

Other settlements
Wright v. Miller. The final settlement of $2,500.00 was
accepted by the plaintiff, with no admission of liability.
The case involved alleged excessive use of restraints during
a bus trip. The plaintiff agreed to convert this Bivens
action into an FTCA action.

CASES WITH HEARING OR TRIAL
Robert Horey v. Warden Woods, et al., C.A. No. C-97-292 (SD/TX).
The inmate's cell became flooded with sewage. He seeks damages
for prolong exposure to harmful waste and improper sanitization.
A Spears hearing was conducted on July 14, 1997. The Magistrate
Judge is to submit her recommendation.
Three defendants have
been dismissed.
Banks v. USA, A-95-CA-292 (WO/TX), was tried in Austin on
August 11. Phase I only addressed the issue of whether the
United States was liable for the plaintiff's alleged slip and
fall in an FCI Bastrop housing unit in 1994. The Magistrate
Judge, citing a need to research the issue of the admissibility
of some of the evidence, has not yet ruled on the question of
liability.
Four Mental Health Commitment Hearings, under provisions of
18 U.S.C. 4245 were held at FMC Carwell.
MEDICAL MALPRACTICE
LITIGATION

Cancio v. John Stone, A-97-CA-544-SS (WO/TX). Bivens action
against HSA at FCI Bastrop alleging deliberate indifference in
treatment provided for an injured finger.
Martinez v. U.S.A .. Significant medical malpractice case,
alleging negligence by Bureau staff at FCI Bastrop, first by the
medical staff in failing to treat his ankylosing spondylosis
appropriately, and s7cond by unit officers ~n failing to.se 7ure
medical attention wh1le he suffered paralys~s and excruc~at1ng
pain for several days.
Tommy Tompkins v. John Doe. et al., H-97-1894 (SD/TX).
This
Bivens-type lawsuit involves the medical care he received at
several SCRO and NCRO institutions relating to cancer in his
mouth. Much of the treatment was provided by consultants. He
seeks a minimum of $75,000 for physical pain and mental anguish
from delays in providing care and surgery. This case will be
reported in our October monthly report.
TORTS
Brian Fuller has filed a tort claim requesting damages in the
amount of $3,241,000.00. This claim replaces a lawsuit the
inmate voluntarily dismissed.
Inmate filed his lawsuit pro se,
but has now hired an attorney for his tort claim. Allegations in
the tort claim originated at FCI Seagoville, but also involve FCI
Three Rivers and FCI Bastrop. Inmate is requesting compensation
for delay in surgeries (two) retaliation; allergic reaction to
medication; loss of future earning capacity; disfigurement;
future medical expenses; and future pain and suffering.
Throughout the proceedings for the lawsuit, the AUSA and Clinical
Director were confident there was no BOP negligence.
(T-SCR-97-240)
Horace Jackson, T-SCR-97-381, $1,500,000.
FMC Fort Worth
alleging negligent infliction of mental anguish and emotional
distress for failure of BOP to surgically remove a G.K. nail from
his hip, causing pain and difficulty in walking.
GUERRIERI, Mario - Mr. Guerrieri, an inmate housed at FMC Fort
Worth, alleges that he contracted a staph infection after he
underwent surgery at the contract hospital (Texas Osteopathic
Hospital) in Fort Worth, Texas. He contends that after the
surgery he was returned to the institution and on the third day
he was told that he had a staph infection from either the
IIdoctor's tools or from the operating room. II Mr. Guerrieri also
contends that medical staff at FMC Fort Worth have failed to
treat him for a nerve condition which resulted after he had two
strokes in a county jail. Mr. Guerrieri seeks $750,000.00 for
past and future pain and suffering.
(T-SCR-97-276)
JAMIESON,. Alisa - Ms. Jamieson alleges that while she was housed

at FTC Oklahoma City, BOP medical staff administered a sulfa
drug. Further, she states that the PA acknowledged that the drug
she had been prescribed was sulfa, immediately confiscated the
medication, and ordered new medication. Ms. Jamieson states that
she did not receive any of the medications and as a result of her
high fever she became dehydrated and was taken to a local
hospital for treatment. She seeks $50,000.00 in damages
(T-SCR-97-189)
RODRIQUEZ, Jesus - Mr. Rodriquez, an inmate housed at FMC Fort
Worth, alleges that he fell while he was housed at the EI Paso
County Jail, prior to being sentenced, and sustained a hernia.
The sentencing judge recommended that he be housed at a medical
facility in order to have the hernia. surgically repaired.
Mr. Rodriquez contends that medical staff at FMC Fort Worth have
refused to provide the surgical repair because his sentence is
too short. Mr. Rodriquez seeks $1,500,000.00 for past and future
pain and suffering. (T-SCR-97-298)
PETERSEN, Justin - Claimant asserts FCI Bastrop staff failed to
provide a proper prosthesis and prosthetic socks for the
amputated stump of his left leg. He also states that due to the
negligence in the maintenance of a hazardous situation in the
shower and in his cell, claimant suffered a fall in each of those
places. (T-NCR-97-150).
CARTER, Norma - A memorandum of law was sent to DOJ via the
Central Office.
It is anticipated that a settlement offer of
$150,000 will be made. A denial letter was sent to Claimant's
counsel, but was primarily intended to motivate him to provide
additional documents as to her current medical status and seek
reconsideration in order that settlement negotiations could
begin.
(T-SCR-97-28).
MAY, Charles - Mr. May is currently housed at FCl Oakdale;
however, he alleges that he fell from a top bunk at FCl Bastrop
on August 5, 1996. Mr. May contends that he has not received
proper medical attention for the injuries to his back since the
fall.
Mr. May further states that the Bureau of Prisons medical
staff failed to provide proper medical treatment for a knee
problem, which resulted in his falling from the top bunk at FCI
Bastrop. Mr. May seeks $500,000.00 for past and future pain and
suffering. (T-SCR-97-239).

JOHNSON, Timothy - Timothy Johnson filed a claim seeking
$50,000.00 for a knee injury he sustained at FCl Oakdale.
Mr. Johnson alleges that he fell while playing basketball on
December 29, 1996, and that he received physical therapy, which
was indicated as necessary by an Orthopedic Surgeon. He contends
the therapy was stopped on May 9, 1997, by the therapist because
he was not responding. He further states that the physical
therapist indicated that further medical evaluation was needed.

Mr. Johnson states that he suffers from numbness, swelling,
popping, and burning sensations due to the instability of his
left knee. He also states he was slapped by a staff member. The
matter has been brought to the attention of Internal Affairs.
(T-SCR-97-238) .

SIGNIFICANT TORT CLAIMS
Wholesale Petroleum, a convenience store, has filed a claim for
damages received when a BOP semi truck, driven by FeI El Reno
staff, struck a canopy covering the fuel pumps. Claimants are
seeking approximately $20,000.00 in damages.
(T-SCR-97-281).
The region forwarded its recommendation to Central Office, with
the determination to be made by DOJ.
Christopher Martinez, (T-SCR-97-338) and Bruno Diaz,
(T-SCR-97-357) were victims of an assault which occurred at FCI
Three Rivers during June 1997. Martinez is requesting
compensation of $60,000.00 for his injuries. Diaz is requesting
compensation of $30,000.00 for his injures. An initial review of
the SIS reports does not indicate the institution was aware these
inmates were in any type of danger.
FPC Bryan reports that a tort claim has been filed for wrongful
death regarding inmate Hortencia Flores-Cabrera. The inmate
suffered liver failure and died as the result of INH-induced
Hepatitis. Health Services staff were disciplined regarding the
medical treatment afforded this inmate. There are concerns
regarding government liability. FPC Bryan is preparing a
memorandum of law to aid DOJ staff when considering whether to
offer a settlement in this case and how much the offer will be.

RELIGIOUS FREEDOM RESTORATION ACT
LITIGATION
ADMINISTRATIVE REMEDY
Inmate Sheri Cohen at FMC Carswell alleges religious
discrimination by staff. Response is pending. The case number
is 139831-R3.
FCI Texarkana reports that in Administrative Remedy 140091-Fl,
the inmate is requesti~g to have his religion recognized as
satanism. FCI Texarkana is initially denying the request.

ENSIGN AMENDMENT:
LITIGATION
Received favorable Report and Recommendation from the

Magistrate Judge in the Harrell case.
favorable final order is forthcoming.

We expect that a

Milford Topsy v. Michael Purdy, et al .. CA-C-97-229 (SD/TX).
Dismissed under PLRA requirements because inmate failed to
satisfy filing fees.
TORTS
Kenneth Herbert Linn - T-SCR-97-109 and T-SCR-97-111.
Inmate
complained that the Bureau of Prisons did not give inmates
sufficient notice of the new provisions of the Ensign Amendment
in time for inmates to contact and notify publishers to have
subscriptions routed to different mailing addresses.

LITIGATION
LOC

NOM

HC

FTC

BIV

om

ANS

PEN

CLD

HIT

SET

AJfD

HXR
NER
SER
NCR
SCR

67

45

6

12

4

39

135

36

6

5

0

WXR

co
~o~

NARRATIVE ANALYSIS (NARRATIVE ATTACHED ON SEPARATE PAPER)
DEFINITIONS
LOC
NUM
HC
FTC
BIV
OTH
ANS
PEN
CLD

- LOCATION
- NUMBER OF TOTAL LAWSUITS FILED IN QUARTER
- NUMBER OF HABEAS CORPUS ACTIONS FILED
- NUMBER OF FTCA ACTIONS FILED
- NUMBER OF BIVENS ACTIONS FILED
- OTHER ACTIONS FILED
- NUMBER OF LITIGATION REPORTS COMPLETED
- PENDING
- NUMBER OF ACTIONS CLOSED
HIT - NUMBER OF HEARINGS OR TRIALS (INCLUDE INFO IN NARRATIVE)
SET - NUMBER OF SETTLEMENTS (INCLUDE INFO IN NARRATIVE)
AND - NUMBER OF AWARDS (INCLUDE INFO IN NARRATIVE)
GOVERNMENT ACTION AND DATE OF ACTION - (INCLUDE INFO IN NARRATIVE)

FOIA/PA REQUESTS
MXR

I
i

NER

I

SER
NCR
SCR

i

LOC

NOM

PROC

PEND

OD

A/OD

A/P

CA

,

129

WXR

CO
TOT
NARRATIVE ANALYSIS
DEFINITIONS

130

48

7

26

mrs

25

mrs

J

WC - LOCATION
NUM - NUMBER FILED IN QUARTER
PROC - PROCESSED
PEND - PENDING
OD -OVERDUE
AlOD - AVERAGE NUMBER OF DAYS OVERDUE
AlP - AVERAGE LENGTH OF TIME TO PROCESS
CA - CIVIL ACTIONS FILED UNDER FOIIPA ACTS

Tort Claims Third Quarter - FY 97 (April 0 I, 1997 - June 30, 1997)loc
pppi wd
med set
amt
pen
den
od
alo
alp
scr
141
III
18
I
0
II
53
10616 187
116
Num - Number of claims filed
PP - Personal Property claims
PI
- Personal Injury claims
PPPI - Both PP & PI claims
WD - Wrongful death claims
Med - Medical claims
Set - Settled!Approved claims
Amt - Amount paid
Pen - Pending/open claims
Den - Number of claims Denied
00 - Number of claims Overdue
AlO - Avg number of days Overdue
AlP - Avg number of days to Process
(Med = PIM + WDM + PPPIM + PPWDM)
(WD = WD + PPWD)

num

pp

68

0

pi

UNITED STATES GOVERNM
memoran
Mid-Atlantic Regional Office, Annapolis Junction, MD 20

DATE:

REPLBill Burlington, Regional Counsel
ATTNMid-Atlantic Region
SUBQUARTERLY REPORT - July 1, 1997 thru September 30, 1997
TONancy Redding, Executive Assistant
Office of General Counsel

TORTS
NOM

PROP

PI

PPPI

WD

KED

SET

210

123

65

15

0

7

21

BIV

OTB

ANS

PEN

CLD

7

4

48

331

50

2

AKT

PEND

DEN

OD

A/O A/P

220

141

1*

58

5019

99

LITIGATION
NOM

BC

FTC

42

23

8

B/T

SET

AWD

1

$183.55

ADMINISTRATIVE RBMBDIES
NOM

DBO

SPB

MBD

MB

LEG

PI>

GRT

DEN

PEN

OD

499

157

11

45

2

25

2

47

468

58

0

FOI/PRIVACY
NOM

ANS

PEN

OD

176

197

39

15 (over 30 days)
29 (over 10 days)

*We are in the process of obtaining settlement approval from
the Central Office for this claim.
TRIALS AND BEARINGS:
FPC Alderson - Mildred Thompson v. Hemingway - On July 22,
1997, Magistrate Mary Fienberg held a hearing to determine why
the Bureau of Prisons had not yet published a new policy to
replace the "Crimes of Violence" Program Statement which was
declared void in Wiggins v. Wise. At the conclusion of the
hearing, the Magistrate called both sides into her chambers
and suggested that the Bureau should seriously consider
"settling these cases," as she indicated the current Bureau
position is causing a "public relations problem" for the

in

:; .QQ.iQ.WiWiiiXA

i.:;,

W"

.J ..

Bureau with the Court.
It is clear from the hearing that BOP stands very little
chance of prevailing with Magistrate Fienberg, if we take the
position that we can consider conduct that was not the subject

of a formal conviction when we make early release
determinations. I tried to stress to Magistrate Fienberg that
the Bureau feels strongly that Congress certainly didn't
intend BOP to release early from prison, inmates whose crimes
involved in any form, weapons. She did not seem to be
persuaded. Ms. Thompson and all the other inmatee at Alderson
who prevailed on these suits against the Bureau have now been
reclaseified by staff as ~eligible· for early release.
Fel Mamphis - Coval Baker v. USA - This is an alleged failure
to protect FTCA case arising out of the unprovoked attack by
inmate Paulino on inmate Baker. Trial was to begin Friday
morning but had to be delayed until 1:00 p.m. because the
Judge failed to writ out the inmate. USMS and R&D staff
worked quickly to get the inmate to court by 1:00 p.m. The
pro se inmate was permitted to call one inmate and one staff
member as witnesses_ At the conclusion of the plaintiff's
case, AUSA Quarles moved for a judgment as a matter of law as
the plaintiff had failed to establish a prima facie case of
negligence. After a few moments of consideration, the Judge
granted the motion and ruled in favor of the government.
It
is interesting to note that plaintiff did not present any new
evidence that had not already been rebutted in prior
pleadings. Nothing new was revealed that made the trial any
more detailed than the pleadings already before the court.
SB'l'TLBHENTS:

LSCl Butner - Funderburk v. USA - Parties filed a stipulation
of dismissal in this action. The Bureau agreed to pay inmate
Funderburk $lB3.35 for the loss of his personal property.

UNJ:TED STATES GOVERNMENT

memorandum
Date: October 16,
~ly

to
Attn of:

1997

Henry J. Sadowski, Regional Counsel, Northeast Region
Federal Bureau of Prisons, Philadelphia, Pa. 19106

Subject: Quarterly Report - July ~, 1997 through September 30,

1997
To:

Wallace H. Cheney, General Counsel and

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

Attached are the statistics requested for the quarterly
report for the fourth quarter of FY 1997.
The following is a sYnopsis of the significant cases in
litigation during the quarter:
A. SETTLEMENTS AND AWARDS
l)Oriahki v. U.S., 3:CV-95-2114 (M.D.Pa) - Inmate Felix
Oriahki, 51338-079, filed FTCA case involving allegations of
loss of property which was mailed overseas. BOP had no
evidence staff actually mailed it. U.S. Magistrate Judge
recommended our motion for summary judgement be denied. Case
settled for $176.50.
2) Administrator of Estate of Harris v. U.S.,96-6549(E.D.Pa)
- FTCA case involved allegations of medical malpractice
(delay in receiving appropriate eye care) filed by former
inmate William Harris, Reg. No. 44917-066. Government·s
expert indicated potential liability. Death of inmate
unrelated to issues in case. Case settled for $1,500.00.
3) Tulloch et. al. v. U.S., 92-4866 (SDNY) - FTCA case filed
in June 1992 filed by six inmates who alleged that while on
the elevator at MCC New York en route to the roof area the
elevator SUddenly plunged to the basement. On the eve of
trial, and facing potential liability as a result of
overcrowding on the elevator and evidence of injuries, a
settlement was reached. The

-3-

District court denied the petition stating that the sentence
computation was a proper exercise of BOP's discretion. Mike
Tafelski assisted the AUSA at the argument. The Court of
Appeals affirmed the District Court's order.
4) Michael Lloyd v. Ronald Levine, et. al., No. 96- ,
Cir)

(3d

On July 2~, ~997, the Court of Appeals also heard oral
argument concerning the dismissal of a Bivens complaint
relating to CCC denial,
In July ~996, inmate Michael Lloyd,
44935-066, filed, through counsel, a request for preliminary
injunction and a Bivens complaint alleging that the decision
of the Warden at FCI Ft. Dix to deny him CCC placement was
based upon the improper influence and retaliatory motives of
the prosecuting AUSA and sentencing Judge. On November 4,
~996, the district court granted Defendants' Motion for
Summary Judgement stating that "decision to deny plaintiff
CCC placement is not judicially reviewable absent a
constitutional violation" and no reasonable fact finder
would find one in this case. The district court also held
it did not have personal jurisdiction over AUSA and FBI
agent and that AUSA and Judge have absolute immunity. The
Court of Appeals focused on the absolute immunity question.
The Court of Appeals affirmed the District Court's order.
5) Moore v. Agusto, 93 Civ. 4835 (MGC)

(S.D.N.Y.)

On July 2~, ~997, a trial commenced in this Bivens case in
which the plaintiff, inmate Christopher Moore, 39228-053,
alleged excessive use of force was used when removing him
from the roof top recreation area at MCC NY. Plaintiff
testified that after he refused to put on his orange
jumpsuit, he was grabbed and dragged into the grill area and
beat up by two staff members. Plaintiff claimed that a
third staff member grabbed his head and slammed it against
the wall.
Plaintiff claimed that when he regained
consciousness he was suspended in the air with both feet off
the ground. Plaintiff also alleged he heard staff indicate
that they were going to throw him down the stairs.
Plaintiff contended he has permanent injury to his shoulder.
During the trial, numerous depositions were also permitted
by the Court. On July 23, ~997, after two hours of
deliberations, the jury returned a verdict in favor of each
defendant. Dominique Raia and James Vogel assisted.
-4-

6) Drino v. Wigen, et. al., Civil No. 96-7308 (E.D.Pa.)
On August 12, 1997, a trial was held in this Bivens case
filed by FCI Schuylkill inmate Gary Drino, 02906-015. The
Plaintiff alleged that the DHO's finding that he committed a
prohibited act (UAssaulting any Person D (Code 224» was
racially motivated. The inmate's administrative remedy
appeals were denied. The bench trial lasted one day. The
Court ruled in favor of the defendants.
7) United States v. Paraffin-Homen, Crim. No. ----(S.D.N.Y.)
Pastor Perafan-Homen, 53476-053, (the last leader of the
Cali Cartel to be incarcerated) was placed into
administrative detention at MCC NY based upon information
received that his life may have been in danger. His attorney
filed a motion with the sentencing court to have him
released into general population.
In August 1997, MCC Attorney Dominique Raia convinced the
judge that a motion before the criminal jUdge was not the
proper jurisdiction basis for such a challenge. His
attorney then filed a Petition for Writ of Habeas Corpus. A
hearing was held on August 15, 1997, before the Honorable
Sidney H. Stein. The court denied the writ, since the
petitioner failed to demonstrate that the Bureau of Prisons
has abused the discretion to place him protective custody.
On that same day, Paraffin-Homen's attorney filed an
expedited appeal in the Second Circuit. After appeal papers
were prepared for submission, the DEA (who provided original
information) requested that the Warden release the inmate
from administrative detention based upon a reevaluation of
the threat assessment. Eventually, after discussions with
all parties, the inmate was released into general population
and the appeal was withdrawn.
8) U.S. V. Russo, et al., 96-CR-696 (S-2) (DRH)

(S.D.N.Y.)

On August 12, 1997, MCC NY received a copy of a proposed
order requiring MCC to continue to house inmate Andrew
Russo, 15043-053, until such time as he can make bailor
there is a final disposition of the referenced case. The
AUSA did not have any objections to the Order.
In a letter
dated August 12, 1997, the Warden expressed his objections
to the order. A status conference was held before the
Magistrate Judge on August 13,
-5-

1997, but the Magistrate Judge did not rule since the
district court had not ordered him to render a decision. On
September 23, 1997, Judge Hurley signed an order directing
that inmate Russo remain at MCC New York until further order
of the Court.
9) U.S. v. Motto, Crirn No. --- (E.D.PA)
On August 22, 1997, Judge Shapiro held a hearing concerning
the sentence computation of inmate William Motto, 35088-066.
The Court had ordered a sentence of 34 days for probation
violation. The inmate was released by FCI Fairton on August
20, 1997 since his presentence credit amounted to over 34
days. The court's intention was that the inmate served an
additional 34 days from date of sentence. At the hearing of
August 22, 1997, the court vacated the earlier sentence and
ordered a 74 days sentence to approximate her intended
release date for the inmate. Assisting the AUSA was Bobbie
Truman, Attorney Advisor at FCI Fairton.
10) United States v. Paul Rivera, Crim.No.---(E.D.N.Y.)
On August 12, 1997, Lieutenant Pitts of MOC Brooklyn
testified at the request of the AUSA concerning the
institutional adjustment and disciplinary history of the
defendant, inmate Paul Rivera, Reg. No. 46704-053. Azzmeiah
Vazquez, Attorney Advisor, MOC Brooklyn, assisted at the
hearing.
11)United States v. Coleman, Crim. No. ---- E.D.PA
On September 8, 1997, an evidentiary hearing was held before
Judge Robert Kelly. Defendant, Arthur Coleman, 01030-158,
was charged with escape for failing to return to his
community corrections center after a weekend pass. He
maintained that technically he did not escape because at the
time he failed to return to the CCC his prior sentence had
expired. The inmate constructed an erroneous argument on
the basis of old law sentence computation. Tom Peoples,
Regional Community Corrections Inmate Systems Specialist
appeared as a witness on behalf of the United States. He
testified as to the manner in which the defendant's old law
sentence was computed and that the computation was correct.
The judge ruled from the bench that the defendant was in
lawful BOP custody at the time of his escape. Assistant
Regional Counsel Joyce Horikawa assisted the AUSA at the
hearing.
-6-

12) Wang v. Department of Justice, et. ale

---- E.O.PA.

On September 8, ~997, via a conference call, the Judge
permitted the Plaintiff's attorney to withdraw, without
prejudice, the pending request for injunctive relief.
Plaintiff Helen Wang is the attorney who was stopped at USP
Lewisburg in February ~997, with six rounds of ammunition in
her briefcase. As a result of that action, and the pending
criminal investigation by the U.S. Attorney's office, Ms.
Wang was prohibited from entering various federal
institutions by the respective Wardens pending completion of
the investigation. Her attorney requested injunctive relief
(lifting of an alleged nationwide ban during investigation) .
The matter was held in abeyance by the Court pending the
completion of the criminal investigation. The AUSA declined
prosecution. The Plaintiff was informed by the BOP to
initiate a request to the Warden at each institution as it
is within his/her discretion to allow Ms. Wang to visit.
Michael Tafelski assisted the AUSA during the call.
~3)

United States v. Molinari, Criminal No. 95-672 (E.D.PA)

On September ~2, 1997, a sentencing hearing was held in
which the defendant argued for a downward departure alleging
that the BOP could not house, care for and treat this
defendant. Defense counsel argued that Mr. Molinari had an
extensive documented history of agoraphobia and panic
attacks and that incarceration would result in immediate
death. Dr. Gerard Bryant, Northeast Regional Psychology
Services Administrator, testified at length concerning the
BOP's ability to manage this inmate. Dr. Bryant informed
the court of numerous agoraphobics that are currently being
managed in the system. The Judge agreed the BOP could
properly house the defendant and sentenced the defendant to
a 71 month term of imprisonment.
~4)

Stiver v. Meko, 96-3400 (3d Cir)

On September 23, 1997, this habeas case was argued before
the Court of Appeals. The appellee, FCI McKean inmate
Robert C. Stiver, 04540-068, alleged that he was unlawfully
denied 3621(e) early release eligibility because of prior
convictions for aggravated assault and armed robbery.
Through his appointed attorney, he argued that the decision
to include prior violent offenses when determining early
release eligibility for completion of the Drug Abuse Program
violates the Double Jeopardy
-7-

and Ex Post Facto Clauses of the United States Constitution.
Paul Brysh, AUSA, W.D.Pa. represented the Bureau and did an
outstanding job. Joyce Horikawa sat at counsel table and
provided assistance during the argument. The focus of the

argument was whether the Bureau of Prisons use of a prior
conviction for robbery and aggravated assault to exclude an
inmate from early release eligibility was a reasonable
interpretation of 18 USC § 3621(e). The court of Appeals
took the case under advisement.
15} United States v. Kelp, et. al., Criminal No. 97-14
(E.D.PA)
On September 23, 1997, a sentencing hearing was held for
three individuals who were formerly correctional officers at
the local county jail. One of the issues was whether the
BOP could house these individuals safely. An affidavit was
submitted by the Regional Designator and testimony was
expected to be provided by the Assistant Correctional
Programs Administrator. Joyce Horikawa assisted the AUSA.
During the hearing, the Judge did not provide the AUSA the
opportunity to present the BOP's position.
Under the Supreme Court decision in Koon, the court found
that the possible risk to the defendants in prison was
justification to support a downward departure from the
sentencing guidelines. The court imposed sentences on two
defendants (the third was continued) of 51 and 41 months,
roughly half of the sentencing guidelines.
16) United States v. Clements, Criminal No. 97-

(E.D.PA)

On September 30, 1997, a conference call was held concerning
the available psychological treatment for defendant, inmate
Donald Patrick Clements, 12847-056. While housed at Fcr
Schuylkill serving a federal sentence, inmate Clemens
assaulted a correctional officer. After he was convicted,
and prior to sentencing, the court ordered a mental
examination be performed at FCr Butner. The study concluded
that the inmate has an Axis 2 personality disorder. Defense
counsel, in an effort to get a downward departure for
post-conviction rehabilitation, requested an order to have
the BOP house the defendant at FCr Butner so he could
receive Uintensive therapyn. During the conference call
with Judge Van Antwerpen, Michael Tafelski explained that,
according to the BOP'S psychologists, the services available
at
-8-

the inmate's designated institution (USP Atlanta) were
appropriate and the same as any other facility for treating
this individual. The Judge, in denying defense counsel's
motion, stated that he was deferring to the expertise and
opinion of the BOP.

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C. SIGNIFICANT PENDING CASES
1) United States v. Brian Brennan, 97 Cr. 393 (SDNY)
On September 16, 1997, Raymond Voulo, M.D., MCC New York
Health Services Department met with AUSA Andrew J. Frisch
regarding the criminal case of United States v. Brian
Brennan, 97 Cr. 393 (DGT). Further, Physicians Assistant
Ruben Ustarus and AUSA Frisch had a telephone conference on
September 23, 1997. Mr. Frisch considers both Dr. Voulo and
P.A. Usterus as potential witnesses in the referenced case.
Mr. Frisch seeks to have Dr. Voulo and P.A. Ustarus
establish at trial that inmate Brennan, 48126-053, was
addicted to heroin upon his admission to MCC New York.
During inmate Brennan's admission to MCC New York on or
about April 2, 1997, he told the Physician's Assistant that
he
used heroin six days a week and that he had last used the
narcotic two hours prior to his medical screening. Inmate
Brennan was referred to detox. Staff Attorney Clinton
Stroble attended the meeting. Trial is scheduled for
October 20 and 21, 1997.
2) Starzecpyzel v. U.S.,
Attorney Stephen Roen filed a complaint in the S.D.N.Y.
challenging the decision by the Warden at FCI Danbury to
restrict the attorney's visiting privileges for 30 days.
Trying to graft this complaint to a pending 2255 motion,
Roen requested a temporary restraining order and bail for
the inmate Eileen Starzecpyzel, 34792-054. The attorney
alleged this decision interfered with the ability to
represent the inmate in the 2255 motion to vacate her
sentence. The court ruled there was no jurisdiction to hear
his complaint concerning FCI Danbury. The Attorney then
filed an administrative appeal with the Regional Director
concerning the suspension. Although suspension was upheld,
time period was reduced by seven days with the attorney
visits limited to the general visiting area to enhance staff
supervision.
(Attorney was seen by staff massaging the
inmate's
-9-

shoulders, etc.). The Attorney then renewed the same
complaint in the District of Connecticut. The Magistrate
Judge recommended the requests for TRO be denied, request
for preliminary injunction be denied, and requested
defendants show cause why Plaintiff's request to visit in
"chapel room" rather than main visiting room should not be

granted.
On September 27, 1997, another incident occurred involving
this attorney when he attempted to use the "special mail"
procedures to mail newspaper articles into his client. The
mail was opened in front of the inmate and copied before
being given to the inmate. The attorney filed in the
Southern District of New York (which was dismissed) and then
filed again in the District of Connecticut. The AUSA is
being assisted by Patty Gotts, Paralegal, FCI Danbury.
3) Ansar el Muhammad alklal Tracy L. Munnerlyn v. George C.
Wigen. et.al. Civil Action No. 95-3668 (E.D.Pa)
This case, which has been construed as a RFRA case, involves
allegations that staff at FCI Schuylkill illegally
intercepted the Plaintiff's religious mail sent from his
wife.
In addition, the Plaintiff, former inmate Tracy
MunnerlYn, Reg. No. 06006-097, also alleges he was placed in
segregation, given an incident report and disciplinary
sanctions and transferred in retaliation for his religious
beliefs. The case was stayed pending resolution of the
Flores case by the Supreme Court. Subsequent to the Flores
decision, Main Justice granted authorization for private
counsel for each of the named defendants (although private
counsel WILL NOT be reimbursed for any direct challenges to
the constitutionality of RFRA). The defendants have
recently agreed on a private attorney and the case is
scheduled to proceed in the near future.
cc: Regional Director
Senior Deputy Regional Director
Deputy General Counsel
~l Associate General Counsel

NORTHEAST REGIONAL OFFICE
LITIGATION QUARTERLY REPORT
FROM 07/01/1997 TO 09/30/1997

LOC
MXR
NER
SER
NCR
SCR
WXR
CO
TOT

NOM

90

BC

53

FTC

BIV

om

ANS

PEN

CLD

BIT

08

20

06

33

626

47

16

SET

AWD

3

0

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

NORTHEAST REGIONAL OFFICE
TORT CLAIM QUARTERLY REPORT
FROM 07/01/1997 TO 09/30/1997

Loe
Mxr
NER
Ser
Ncr
Ser
Wxr

C.O.
Sum

Num

PP

4
141
0
0
0
1
0
146

3
94
0
0
0
1
0
98

PPPI

PI
I

33
0
0
0
0
0
34

WD

0
9
0

0
0
0

0
0
0
0
9

0
0
0
0
0

Med
0
5
0
0
0
0
0
5

Set

Amt

0
42
0
0
0
0
0
42

0
4650
0
0
0
0
0
4650

Den

00

AIO

1
167

0
99

0
0
0
0
0
168

0
0
0
0
0
99

0
0
0
0
0
0
0
0

0
0
0
0
0
0
0

Pen

DEFINITIONS:
LOC

NOM
PP
PI
PPPI WD
Med Set Amt Pen Den OD
A/O ALP -

LOCATION
NUMBER FILED IN QUARTER
PERSONAL PROPERTY CLAIMS
PERSONAL INJURY CLAIMS
PERSONAL PROPERTY/PERSONAL INJURY CLAIMS
CLAIMS WITHDRAWN
CLAIMS ALLEGING MEDICAL NEGLIGENCE
CLAIMS SETTLED
AMOUNT PAID
CLAIMS PENDING
CLAIMS DENIED
CLAIMS OVERDUE
AVERAGE DAYS OVERDUE
AVERAGE DAYS TO PROCESS

••••

AlP

2
105
0

0
0
0
0
54

NORTHEAST REGIONAL OFFICE
FOIlpA REQUESTS QUARTERLY REPORTS
FROM 7/01/1997 TO 9/30/1997

LOC

NOM

PROC

116

156

PEND

OD

A/OD

ALP

CA

20

-

-

0

MXR

HER
SER
NCR
SCR
WXR
CO
TORT

35

DEFINITIONS:
LOC
NOM
PROC
PEND
OD
A/OD
A/P
CA

-

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

NORTHEAST REGIONAL OFFICE
NORTHEAST REGIONAL OFFICE
ADMINISTRATIVE REMEDIES QUARTERLY REPORT
FROM 7/1/97 TO 9/30/97

LOC

NOM

DHO

SPH

MED

403

134

22

27

MH

LEG

FD

GRT

DEN

PEN

00

1

13

2

46

222

130

0

MXR

NER

SER
NCR

SCR
WXR

TOT
DEFINITIONS
LOC
NOM
DHO
SPH
NED
MH
LEG
PO
GRT
DEN
PEN
OD

-

LOCATION
NUMBER OF TOTAL AD REMEDIES FILED
NUMBER OF DBO REMEDIES FILED
NUMBER OF SPECIAL HOUSING UNIT REMED~ES
NUMBER OF MEDICAL REMEDIES FILED
NUMBER OF MENTAL HEALTH REMEDIES FILED
NUMBER OF LEGAL REMEDIES FILED
NUMBER OF FOOD REMEDIES FILED
TOTAL OF NUMBER OF REMEDIES GRANTED
TOTAL NUMBER OF REMEDIES DENIED
TOTAL NUMBER OF REMEDIES PENDING
TOTAL NUMBER OF REMEDIES OVERDUE

F~LED

UNITED STATES GOVERNMENT

memorandum
DATE: October 21, 1997

REPLY TO
AnN OF:

SUBJECT:
TO:

Sherree L. SturgIs, Regional Counsel
Bureau of Prisons, southeast Region
523 McDOnough Blvd., S.E.
Atlanta, GA 30315

Fourth Quarter Report FY 97
wallace Cheney, General Counsel
Bureau of Prisons, central office
320 First Street, N.W.
washington, D.C. 20534

AnN: Nancy P. Redding, EXecutive Assistant
The following Information Is provided for the fourth Quarter UUL. AUG, SEP)
1997.

Lltlsatlon
NUMBER OF ACTIONS FILED
HABEAS CORPUS ACTIONS
FTCA ACTIONS
BIVENS ACTIONS
OTHER (Mandamus, etc)
NUMBER OF LITIGATION REPORTS
NUMBER PENDING
NUMBER CLOSED
NUMBER OF HEARINGSrrRIALS
NUMBER OF SETTLEMENTS
AMOUNT OF AWARD
NUMBER OF CRIMINAL REFERRALS

46
29

5
8
4

43

726
39

o
1

52,500.00
24

SER
1STOTR
2ND OTR
3RD OTR
4TH OTR

NUM
159
115
127
122

PROP
32
97
99
102

PI
22
15
26
20

APPR
44
28
22
13

AMT
3287

DEN
91

PEND
169

3363
3081
2855

119
82
49

98
87
108

00
20
7
0
2

AlO
35
104

-

AlP
79
43
20

--

23

LlTICATION

SER
1STOTR
2ND OTR
3RDOTR
4TH OTR

NUM
36
67
43
46

HC
11
31
23
29

FTC
5
7
4
5

BIV
10
16
10
8

OTH
10
12
6
4

ANS
36
60
30
43

PEN
699
722
726

CLD
37
44
39

HIT

SET

AWD

0

1

2,501.00

FOIIPA
SER
1STOTR
2NDOTR
3RD OTR
4TH OTR

NUM
86
87
61
87

PROC
123
71
69
83

PEND
01
17
02
06

00
01
17
02
04

AlOD
02
02
02
02

AlP
30
30
30
30

CA

?
?
1

?

other Activities
Miscellaneous Activities
Travel:
Sherree Sturgis -August 2 - 3; Tallahasse, Florida to discuss MIA bus accident
case with AUSA and plaintiffs' attorney. Cost $494.12.
van Vandivier - August 2 - 3; Tallahasse, Florida to discuss MIA bus accident
case With AUSA and plalnttlffs' attorney. Cost $558.00.
. van vandivier - August 6; Denver, COlorado; Resource staff for OHQ Training.

cost $1066.80.
Earl cotton - september 12 - 27; Alexandria, virginia to attend Leadership
Forum Training course. cost $1526.33.

personnel Moves
Djuana Ashford - selected as the secretary for correctIonal services In the
SERO. starting date: september 12,1997.
patricia DeJuneas - Honors Attorney startIng date 8/3/97.
Jennifer Merkel- Honors Attorney starting date 8/31/97.
cc:

Regional Director

 

 

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