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Usdoj Fbop Memo Re Quarterly Litigation Rep Oct 1 96 Thru Dec 31 96 1997

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UNITED STATES GOVERNMENT

memorandum
Date: January 14,

1997

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

1,1996 through December 31.1996

Wallace H. Cheney, General Counsel and

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

Attached are the statistics requested for the quarterly report for the first quarter of

FY 1997.
The following is a synopsis of the significant cases in litigation during the quarter:

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

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

96-18:~'1

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

til"

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

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

3.

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

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

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

On October 23, 1996, Judge Leisure held a hearing cOllcerning
the scheduling of a co-defendant meeting for the puq)(me of
a plea offer to all defendants. The court instruct t'd l hE:'
MCC NY to make arrangement for a codefendant metinq !Ol
October 28, 1996 at 2: 00 pm. Attorney Alma Lopez ilt If'ndE:'d
the hearing.
5. Moscato v. Federal Bureau of Prisons. 98 F.3d 757(3d Cir 1996)

---

tn4Ris case, the Third Circuit established the procedural default rule for habeas
corpus cases. The inmate, Phillip Moscato, 08126-050, brought a habeas
corpus action challenging a DHO decision from 1993. The primary issues below
were the sufficiency of the evidence to support the DHO finding and the denial of
a requested witness due to unavailability (the witness was at FPC Allenwood and
the inmate had his DHO hearing at LSCI
Allenwood). sl~~dministrativ~Rije~ls b,y the inmate were rejected as untimely,
Following thecCAh·'Circuit. the Cetll{ of ~ppe-8ls held that the doctrine of
procedural default applies in habeas corpus actions challenging inmate
discipline. When an inmate has not fully exhausted administrative remedies and
no longer has such a remedy. a court could not consider the habeas petition
unless the inmate established cause for the failure to exhaus,t and prejudice
resulting therefrom.
,-this ease, the inmate eoutd-not estabttSllcause. and the
court did not need
address whether there
prejudice. Hank 9'dowski haa
presen~ral a ument before the Cou f App Is~~ July 1999!
/
,/

//
/

trOljbli~ootnote

~

'''--

witn~~'ses,

/

.
I

There i • in dicta, a
on unavailability
Ttl:
court
/'-.
.'
focus on the distance between FPC Allenwood an he LSCI AlleT)Wood and
que loned whethe,(/1he request~d inmate witness were unavail(;lb'le. The
be r justificatigr:rls institution seeuf!ty since bri ing inmate wi~sses from one
i titution i~t~:~lnother always causes'se~rit isks. We have..passed this
reeell i1lleny:atron ·tb-'he-oHOs at the-Camp "
6. United States v. Diekan. Cr 95-10382 (D. Mass.)
Inmate John Diekan. 20946-038. was serving a 5 month sentence at a CCC in
Boston. The CCM ordered him to submit to a routine blood test as part of his
physical required to remain at the CCC. Diekan refused and asserted religious
grounds. He told the CCM that sometimes he was a Christian Scientist and
sometimes he was a Catholic. The CCM found that Diekan had requested
weekend passes to attend evening religious service at a Catholic Church The
CCM denied his request not to submit to the blood test. Diekan (a former
attorney) filed an emergency motion to enjoin the Bureau from "retaliating"
against him for failure to submit to the blood test. Judge Keeton (the sentencing
judge) scheduled a hearing for Monday. October 28. 1996. The court asked
CeM Pete Weld to attend the hearing, The CCM told the court that alllnrnates
were so screened to ensure there were no communicable diseases. and. If he
continues to refuse. Diekan would be placed in a federal institution so he can be
isolated. The court dismissed the motion for lack of jurisdiction. The next day
the inmate agreed to the blood test.
7. United States y, Gonzales, No. 95-1605 (S.Ct.)

Oral argument ift ERie eriminal appeal was heard before the
Supreme Court on December 11, 1996. The issue was whether a
federal sentence imposed under 18 U.S.C. § 924(c), which
prohibits concurrent service Uwith any other term of
imprisonment, II may be ordered to run concurrently with a
state sentence, i.e., does "any other term of imprisonment"
encompass state sentences as well as federal.
The position
of the United States was that it encompasses state sentences
as well. ,lliguel Est~ (who argued
v.
a :~
present~d argument on behalf of.-the/unit tl States;/ Th~~/~
argumep't went well and/the C9urt had a irm graf=!,p' that /tlte
stat?te/wa~ directeg;to federal sente ces'and wasn.o~/an
att~pf to control ~~~entenCing (j' ~reti~//' Hahk
Sadowski assisted Mr. Estrada at the a rgumelU(.
I
8.

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

On November 27, 1996, the United States District Court for
the Western District of Pennsylvania granted the petition
for writ of habeas corpus in the above case. The court
summarily adopted the Report and Recommendation of the
Magistrate Judge which found that the Bureau incorrectly
concluded Petitioner was ineligible for 18 U.S.C. § 3G21(e)
early reduction because Petitioner Terrance L. Jones,
Register No. 03840-055, had committed a crime of violence.
We had construed the order granting the petition as one
finding Jones eligible for early reduction. Notwithstanding
Jones's otherwise release date of December 12, 1997, the
institution was exploring CCC placement for community
transition. This had the impact on reducing the maximum
possible reduction for Jones to about 6 months. On t tH~'
basis of a letter written by Jones to the court,
JUdge
McLaughlin held a telephone hearing on December 11, 1~96.
Dave Essig represented the Bureau. The Judge concluded that
his intention was that Jones receive the maximum benefit and
ordered Jones released on December 12, 1996.
9. Hunter y. Malinov, Civil Action No. 96-1195 (E.D.Pa.1
Inmate Milton Hunter, 18759-016, brought a Bivens action
against medical staff at FCI Schuylkill alleging that he had
prostate cancer and staff has not properly treated him.
Inmate had since been transferred to FCI Cumberland. '.m
December 12, 1996, Judge Shapiro held a status conference to

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

10. Harris v, Bureau of Prisons, et aI"
(E. D.

Civil No. 96-6549

Pa. )

Counsel for former inmate William Harris, 44917-066 filed a
combination FTCA and Bivens complaint against the Bureau of
Prisons and staff at FCl Schuylkill, alleging negligent
medical treatment for a detached retina in early 1995. As a
result, he allegedly lost sight in one eye . . None of the
Bureau defendants have been served. The U.S. Attorney was
served on December 3, 1996. Judge Marvin Katz held a
pretrial conference on
December 18, 1996. Joyce Horikawa assisted the AUSA at the
conference.

~
I

Plaintiff's attorney reported that Plaintiff recently died
of a heart attack, and she was not sure if she would pursue
the case. She also indicated that she did not know the
jurisdictional basis for her allegations of statutory
violations. The court gave her 30 days in which to file an
amended complaint, naming the United States as the sole
defendant under the FTCA. Plaintiff agreed that she would
request no more than $100,000.00. The jUdge indicated that
once Plaintiff filed an amended complaint, he would place
this case on the arbitration docket.
11.

~

,

I'"
\

\

United States v, Marsico, Criminal No. 96-261

(E.D.Pa.)

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

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

'!

12. United States v, Zampardi, 96 Cr 749 (E.D.N.Y.)
Inmate Michael Zampardi, 00128-748, a pretrial detainee at
MDC Brooklyn, filed a motion with the criminal trial judge,
Judge Gleeson, to be removed from administrative detention.
Zampardi was placed in protective custody after the AUSA
advised that the FBI received reliable information that a
contract was taken out for his life. The detainee offered
to "waive" his safety and alleged that the isolation is
adversely effecting his health. Judge Gleeson scheduled a
hearing for November 1, 1996. The wrong inmate was brought
to the hearing and the hearing was held on November 4, 1996.
Attorney Azzmeiah Vazquez assisted the AUSA at the llf~al"ing.
On November 6, 1996, the court dismissed the motion for
failure to exhaust available remedies within the BOP.
13. United States v. Celester, Crim, No. --- (D.N.J.)
On December 2. 1996, released defendant William Celester had a sentencing
hearing before Judge Garrett Brown in Trenton, NJ. Celester was the former
Police Director for Newark. NJ. Celester argued, in part, for a downward
departure from the
sentencing guideline range of 21 to 27 months, because he had a series of
medical problems which could not be handled "given the modest state of penal
medicine in many facilities." Celester has
hypertension. congestive heart failure and malabsorption syndrome secondary to
an intestinal bypass. The AUSA submitted a letter from Regional HSA asserting
that the medical problems could be handled at any federal institution (also
confirmed with Medical Designations). Assistant Regional Counsel Joyef>
Horikawa attended the hearing. The court himself questioned the defendant 5
doctor and determined the doctor was unaware of the medical capablhlle~ of the
Federal Bureau of Prisons. Not only did the court reject the defendants 'pquest

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

14. Fisher v. Goard. et aI., 96-CV-0486 (W.D.N.Y.)
New York State inmate Amy Fisher (Illong Island lolita" of Joey Buttafuoco
fame) is alleging that a number of New York state institution staff have had sex
with her, some with her consent, some without. She has filed a civil rights action
against numerous state officials. As part of her relief, she has moved the court
to order her transferred to the Federal BOP. The United States is not a party to
the action. We have filed an Amicus brief asserting that the court has no
jurisdiction and that there is no authority to order the United States to take a state
prisoner. Judge Arcara held a hearing on December 3, 1996. The Judge
focused on our argument that revised 18 U.S.C. § 3626 sets the standard for his
decision on injunctive relief. Nett'1'te1~1'airrtif1h1l:nhe'''NI!M"¥errk-stalte-eefet:t6atAts
~~SSE~~tatueirr elr brief . The court requested Plaintiff to subrriira-'
s onse to this argument within'14 days. The Plaintiff submitted a response
ct serting that Section 3626 is unconstitutional and requested the court to certify
the issue to the Attorney General under 28 U.S.C. § 2403(a). We are contacting
F;ederal ProgfSflls1o--seeif11iey want to file a lesponse·-GA~stitutionallty-of--->

~3G2&.

15. United States v. Hammer, 4:CR-96-239 (M.D.Pa.)
Inmate David Hammer, 24507-077, has been charged with the April 1996 murder
of an inmate at USP Allenwood. The United States Attorney has requested
authorization from DOJto seek the death penalty. On November 21 & 25. 1996.
Judge Muir held hearings on a motion filed by defense counsel challenging the
attorney visiting procedure at USP Allenwood. Defense counsel ohJected to the
number of searches (pat and visual) of Hammer to and from each ViSit Defense
counsel also objected to non-contact visits. Attorney Hope Mora aSSIsted the
AUSA at the hearings. In an 31 page opinion dated December 5. 1996. the court
denied the defendant's motion.
16. State of New York v. Marc Johnson, Crirn. No. 13048/95
(Supreme Ct. N.Y.)
Federal parole violator Marc Johnson, 24552-053, in hOl1fJed
at MDC
Brooklyn pending the parole revocation hearing by thr tJ.S.
Parole Commission.
Johnson is also facing New YOI k lit <It e
charges for attempted murder. The Parole Commission denied

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

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

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

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

United States v. Mathurin,

CR

(S.D.N.Y.)

On November 13, 1996, a former Physician's Assistant at MCC
NY testified in the criminal trial of Pierre Mathurin,
42870-054. As part of his defense to drug charges, the
inmate alleged that he had a leg injury which required him
to have a narcotic in his possession. The former PA
testified that the inmate did not have a leg injury which
required him to take a narcotic. Dominique Raia attended
the hearing.

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

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

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

officer position after serving as a case manager trainee for 13 months. The staff
member alleged that this reassignment was based on race discrimination. In
addition the staff member asserted that the reassignment was retaliatory since it
occurred two months after he made a
complaint about racial remarks made by his supervisor. The jury found for the
staff member on both counts. The case finally settled. We agreed to afford
Plaintiff a Case Manager position at USP Lewisburg, attorney fees of $37.500.
and damages of $15,000.
.

2. McCarthy v. United States, 4:CV-95-0723 (M. D. Pa. )
Inmate Arthur McCarthy, 49352-080, filed an FTCA complaint
alleging medical malpractice caused him to lose sight in his
right eye. o~~ ~eQi~yJ expQr~ eeBelHses enaL a two week
dE!J 8}' :i:R ~re'\·iEliH~ ene inmate cafe fot a detached Letind" was
GQ&siEle Efte apP~opLiaLe eeaftaa~a sf cyre
Wit~ the
necQssary eeReHrl."encel!l,~is case was settled for $110,000.
3. Wagner v. United States, Civil No. 4:CV-96-0289 (M.D.Pa.
October 18,1996)

Judge McClure entered summary judgment against the United
States and in favor of Inmate Michael Wagner, 03718-010, in
the amount of $172.90 plus costs. The inmate had been taken
to Special Housing at USP Allenwood and his property was
left unsecured for over three and a half hours. 'Ie h.ad
argued tbat the oOlftplaint: sfisyld be d; sm; saed becaU§e an
±nstitl:ltien emeIgellc:y kept staff from securing the property.
The court found that the discretionary function exemption
would not apply in this case because the institution was
back to normal operations prior to the placement of the
inmate in SHU. -We are I€colllluending against appeal.
4.

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

IllliI'!.te Mario Gonzalez, 12380-075, tl.led a Fedcl:'al Tort
Claims complaint alleging that his property worth $1682.50
was lost at FiCI schuylkl.ll aff:"'er an illstit\.lt; QJ1 tranoter.
The leLurft leceipt was signed by st.a-ff but t.he box wan never
lo'cated.
Inmate rejected OUI attempt to ee-t~ie the
~
d
.
.
.
1
i
~ l'J
.•
E-TC .... P"',-'" I
a Hll:Rl:st::lat:10e C a iii an
IoughL thIS aetl:ol1. 'Cane Bettled
for $750.00.
I"i
5. Jones v. United States. 94-CV-5086 (E.D.Pa.)

This FTCA case was brought by former inmate Rother Jones, Reg. No.
36662-066, who suffered a massive brainstem hemorrhage on
October 18, 1991, after being transferred from FCI Loretto to FCI
McKean, via USP Lewisburg. Jones had been under prescribed medication to
control hypertension. Approximately 2-3 hours after arriving at FCI McKean, he
suffered a brainstem hemorrhage, which left him paralyzed from the neck down
and affected his speech. lRe 88J1:'l(:llaiRt elleged tliet the failUie to plOvide Jones
his medication on October 18, 1991 was the cause of his brainstem hemorrhage.
TRe sese was ssl'leduled fa. (rial On Novemrlel 1:!, 1996. Case was settled for
$65,000 because of lack of records concerning medication and because of
serious nature of injury.

Attachments

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

LOC NUM
MXR
NER 44
SER
NCR
SCR
WXR
CO
TOT

HC

FTC

BIV

OTH

ANS

PEN

CLD

HIT

SET

AWD

16

5

17

6

33

570

54

19

4

1

NARRAliVE ANALYSIS

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

LITIGATION - 1997

He

FTC

BIV

OTH

ANS

34

6

17

4

57

70

38

4

14

14

NER

53

21

12

14

SCR

99

73

5

SER

67

31

WXR

56

CO

TOT

LOC

NOM

MXR

61

NCR

PEN

2ND QUARTER REPORT

AWD

SET

CLD

H/T

353

33

1

0

7

UNK

342

71

2

0

1

5

22

573

SO

9

1

2

$18,757.87

18

3

75

211

22

6

0

1

$6,000.00

7

16

12

60

722

44

0

0

0

31

7

14

4

29

335

65

4

0

2

17

0

1

9

7

16

52

7

1

0

0

423

228

102

49

259

2588

292

23

1

13

42

AWD/SET
$97,767.00

$222,000.00

$344,524.87

DEFINITIONS
LOC - Location
NUM - Total Number of Lawsuits filed in Quarter
HC - Number of Habeas Corpus Actions Filed in Quarter
FTC - Number of FICA Actions Filed in Quarter
BIV - Number of Bivens Actions Filed in Quarter
OTH - Other Actions Filed in Quarter
ANS - Number of Litigation Reports Completed
PEN - Number of Actions Pending
CLO - Number of Actions Closed
HIT - Number of Hearings or Trials (Narrative Analysis Follows)
AWO - Number of Awards (Narrative Analysis follows)
SET - Number of Settlements (Narrative Analysis Follows)
AWO/SET - Amount of Settlements and Awards

LITIGATION ANALYSIS
The total number of lawsuits filed increased by 77 from last quarter, as did the total in all
categories except Bivens, with 423 filed in this quarter and 346 filed in the first quarter.

1997 QUARTERLY LITIGATION REPORT
SECOND QUARTER
I. SETTLEMENTS AND AWARDS
MID ATLANTIC REGION
Fitzpatrick & Oliver v. USA, FPC Millington. Two cases brought
under the Federal Tort Claims Act (FTCA) were settled for $16,987
and $12,773 respectively. An inmate driver who while speeding,
rear-ended another vehicle and injured the passengers. The inmate
was cited by the police for following too closely.
Leacock v. Reno, FPC Alderson. An African American physician
discharged from Alderson claimed race was the motive. The case
settled for $65,000.
This case was tried by a jury in November,
with the jury awarding the physician $30,000. The plaintiff then
filed a motion for attorneys fees and costs totaling $97,000. At
the hearing on the government's motion for a new·trial, the judge
urged settlement at a figure one half the amount we would have been
forced to pay, considering attorney's fees and costs.
The
settlement agreement included a provision that there was no
admission of discrimination in this settlement.
Mitchell v. USA, USP Terre Haute. Bivens/FTCA case, property
settlement for $7.00.
Barrios v. U.S., Elder v. U.S., Wilson v. U.S., FPC Alderson. Three
FTCA cases alleged negligence based on an outbreak of salmonella
poisoning. A settlement was reached with each plaintiff in the
amount of $1,000.
SOUTH CENTRAL REGION
,Maria Ramos v. U.S.A., FPC La Tuna. An FTCA action brought by the
mother and daughter of a former inmate at FPC La Tuna. The
daughter has cerebral palsy and uses a wheelchair.
In October
1993, when the family went to visit inmate Juan Ramos, there was no
handicapped ramp to access the visiting area and the daughter had
to use a rear entrance that was not meant for handicap access.
Ramos' wheelchair hit a concrete bump, which dislodged her from the
wheelchair. She sustained almost no physical injuries. Tilt:" court
awarded $30.00 in actual damages, and $5,970.00 in pain and
suffering.
NORTHEAST REGION
Matos v. United States, MCC NY. A civilian filed a COmplillllt
alleging negligence that caused her to slip and fallon Gtcllrs in
the institution. There was an injury from the fall; but t h'-loe was
little evidence of negligence. The AUSA settled this caSe fOl'
$6000.
Rivera-Torres v. United States, LSCI Allenwood.
Inmate fil~d a
FTCA complaint alleging that he slipped and fell on ice ilt LSCI

Allenwood in March 1994. The inmate sustained a fracture to his
right ankle, which required a cast for several months. His
recovery was hampered by his diabetes. No specific records could
be located for snow and ice removal for the day in question.
Case
settled for $12,500.
Allen v. United States, LSCI Allenwood.
Inmate Allen, filed a FTCA
complaint alleging that his property was lost when he was taken to
the Special Housing Unit at LSCI Allenwood. On January 31, 1997,
the court granted our motion for judgment against the U.S. for the
FTCA $174.65 and for costs of $83.22 (the filing fee paid by the
inmate) .
NORTH CENTRAL REGION
Baramdyka v. BOP, FCI Florence. Foreign jail credit case in which
the BOP provided an inmate 28 months jail credit, immediate
release, and $1000.00 in settlement. The inmate was released on
March 4, 1997 and signed a stipulation holding BOP and all staff
harmless thus waiving his right to sue in the future.
WESTERN REGION
Jimmy Joe Fields v. BOP, Fcr Stafford.
Estate of deceased inmate
agreed to settle for $40,000.
Inmate, released from FCI Stafford,
alleged inadequate medical diagnosis and care for throat cancer.
Gainey v. Reno, FCI Tuscon. EEO case filed by staff member at Fcr
Tuscon alleging that he had suffered discrimination on the basis of
status as a Native American and was victim of retaliation for
filing EEO complaints. Mediation hearing on March 7 resulted in
settlement in the amount of $182,000 including attorneys fees.
Central office staff represented BOP at mediation.
II.

SIGNIFICANT CASES

NORTHEAST REGION
United States v. Gonzales, 117 S.Ct. 1032 (1997)
On March 3, 1997, the Supreme Court held that a federal sentence
imposed under 18 U.S.C. § 924 (c), which prohibits conCU1TPll~
service "with any other term of imprisonment, may not be 01 d"led to
run concurrently with an existing state sentence. The COlll~ lloted,
in dicta, that the Bureau of Prisons is responsible fOl- etqq: "qdt lOll
of the sentence under 18 U.S.C.
§ 3584.
It

Fisher v. Goord, et al., 96-CV-0486 (W.D.N.Y.)
New York State inmate Amy Fisher alleged that a number of !~ ...... VOl Yo
state institution staf f have had sex with her, some wi t h h.·:
consent, some without.
She filed a civil rights action dq ... n::!
numerous state of f icials. As part of her relief, she hel:: m, ··.·f·d t b.·
court to order her transferred to the BOP. The United St d~ .':: If;
not a party to the action. The U.S. filed an Amicus bli.'~
asserting that the court had no jurisdiction to order th.' \'::~t.·d
States to take a state prisoner. The court has certified' :;.. ~:;:;,j'
to the Attorney General under 28 U.S.C. § 2403(a).
Fedel":

Programs was advised and they requested the AUSA to file a brief
upholding the constitutionality. We expect to file a brief by May
1, 1997.
Li v. Canarozzi, et al., 95 Civ. 0706 (S.D.N.Y.), MCC NY,
This is a Bivens complaint brought by former pretrial detainee Jian
An Li, 44661-053, who alleged that six officers at MCC NY assaulted
him on an elevator on November 10, 1994. The case went to trial
February 3 through February 14, 1997. The jury returned a verdict
in favor of all defendants and found that the injuries sustained by
the Plaintiff occurred during the disturbance on the unit, not in
the elevator.
Linn v. Wigen, Civ 96-3147 (E.D.Pa.), FCl Schuylkill.
Former inmate Michael Linn, brought a Bivens action against staff
at Fcr Schuylkill, Regional Counsel, and Central Office Appeals
Administrator Ed Crosley alleging primarily that (1) he was denied
CCC placement because he was Jewish, and (2) he was denied surgery
for a shoulder injury and was given work assignment contrary to his
medical problem, A non-jury trial was held on March 13, 1997, ;\t
the close of evidence, the Judge ruled from the bench a:.: .:.::,-!'~:.
judgment for all defendants.
III. SIGNIFICANT HEARINGS AND TRIALS
NORTHEAST REGION
Palmer v, United States, CV-95-383 (M.D.Pa.), USP Lewisbu~g.
This is a FTCA case filed by an inmate who alleged that he slipped
and fell.
His administrative tort claim was for $1000, and in his
complaint, requested damages in excess of $25,000.
The judge
granted our request for a bifurcated trial limited to th~ issue of
whether the inmate can claim damages above that requested in his
administrative claim.
This part of the trial was held OIl JcUlUC11"Y
15, 1997, No decision has yet been rendered.
SOUTH CENTRAL REGION
L. J. and Maylene Carter v. U.S., LR-C-95-407 (ED/AR)
FTCA action for reimbursement for subsistence fees ChCllq .. d while
they were housed in a halfway house because the Judgment "wi
Commitment Order, contained the form language that "thr· ! Ill"
includes any costs of incarceration and/or supervision." "n
January 21, 1997, the court ruled that we acted within Oli!
authority 'in collecting the subsistence fees, and that ()~;: d('t lOW:
were not in violation of the J & C,
The court also not , .. j : !LI!
plaintiffs did have a choice in the matter - if they d I ,j : : ' : Wdll~
to pay subsistence, they could have been housed in Cl ("' : : ,.: ; :'11.1:
institution, where no subsistence or costs of inca~celd: : ( :...... Ol! 1d
have been assessed.

Spaniol v. USA
Family of deceased inmate claims BOP's negligence led to the
inmates wrongful death. A trial was held in Sherman, Texas on March
12-13, 1997. The judge ordered both parties to submit their
closing briefs within 10 days. The Deputy Civil Chief, feels very
optimistic of our chances of prevailing.

 

 

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