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Usdoj Fbop Memo Re Quarterly Litigation Report Jan 1 97 Through March 31 97

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UNITED STATES GOVERNMENT

memorandum
Date:

April 16, 1997

David R. Essig, Regional Counsel, Northeast Region
Attn of: Federal Bureau of Prisons, Philadelphia, Pa. 19106

Reply to

Subject:

Quarterly Report-January 1,1997through March 31,1997

Wallace H. Cheney, General Counsel and
Assistant Director, Federal Bureau of Prisons
Washington, D.C.
20534

To:

Attached are the statistics requested for the quarterly report for the second
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 )
This is an update of this case discussed in last quarter's report. Inmate
Benjamin Mackey. 09717-054. at FCI Schuylkill, filed a 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 focused on two issues: whether the Bureau
properly calculated the inmate's parole violation term and whether the DHO
forfeited more statutory good time than was available at the time of the Infraction
The court requested an additional declaration detailing these issues. Hank
Sadowski assisted the AUSA at the hearing. On February 13,1997. the court

ruled for the Bureau on all issues except one. The court ordered that the inmate
receive 6 days of statutory good time. The court noted that the Bureau had
forfeited 166 days of statutory good time whereas the DHO summary stated the
inmate is to forfeit 160 days of SGT. We complied with the order.

2. United States v, Gonzales, 117 S,Ct. 1032 (1997)
This case was also discussed in last quarter's report. On
March 3, 1997, the Supreme Court held that a federal
sentence imposed under 18 U.S.C. § 924(c), which prohibits
concurrent service llwith any other term of imprisonment,"
may not be ordered to run concurrently with an existing
state sentence. Hank Sadowski assisted the Solicitor
General's office at the December 11, 1996 argument. The
decision noted, in dicta, that the Bureau of Prisons is
responsible for aggregation of sentence under 18 U.S.C. §
3584.

3. Fisher v. Goard. et aI., 96-CV-0486 (W.D.N.Y.)
This case was also discussed in last quarter's report. New York State inmate
Amy Fisher alleged that a number of New York state institution staff have had
sex with her, some with her consent, some without. She 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 filed an Amicus brief asserting that the court had no jurisdiction
to order the United States to take a state prisoner. We focused the court on 18
U.S.C. § 3626 as the proper standard for assessing the injunctive request. The
court requested the parties to respond to our brief. Plaintiff submitted a
response asserting that § 3626 is unconstitutional. The court has certified the
issue to the Attorney General under 28 U.S.C. § 2403(a). Federal 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.
4.

United States y, Price, Crim. No. 96-145-01 (E.D.Pa.)

Pretrial releasee Kenneth Price had a sentencing hearing
before Judge Rendell on February 7, 1997. The defendant
argued that his advanced liver condition was an
extraordinary circumstance justifying downward departure
from the sentencing guidelines of 21-27 months.
Defendant's
i
med 9al expert testified that defendant has cirrhosis of the

liver and had a 50% chance of catastrophic internal bleeding
within the next two years. The AUSA's medical expert
testified that the medical condition was not as severe as
presented by defendant. The AUSA requested the Bureau's
assistance to address the ability of the Bureau to care for
the defendant. Medical records were reviewed by Health
Services Division. Hank Sadowski testified at the hearing
concerning the probable designation to a medical facility
and the medical services available for federal prisoners.
The court found defendant's medical condition to be "an
extraordinary physical impairment" under Sentencing
Guideline § 5H1.4 and sentenced -him to probation with 12
months home detention.
5. Palmer v. United States, CV-95-383

(M.D.Pa.)

This Federal Tort Claims Act case was filed by Inmate Lovell
Palmer, 23307-083, who alleged that he slipped and fell in
January 1994 at USP Lewisburg. His administrative tort
claim was for $1000.
In his complaint, he requested damages
in excess of $25,000. We moved to limit the inmate to the
$1000. On pressure from the court (and to save expense of
trial), we offered settlement to the inmate in the amount of
$1000 which the inmate refused. We moved for partial
summary judgment against the United States in the amount of
$1000. Judge Kosik granted our request for a bifurcated
trial limited to the issue of whether the inmate can claim
damages above that requested in his administrative claim.
This part of the trial was held on
January 15, 1997. The court heard testimony from Dr. Keiper
(retired) formerly at USP Lewisburg and Dr. Klinkerfuss (now
at FMC Springfield). The Springfield doctor testified via
video
teleconference. Before ruling on our motion, Judge Kosik
requested an exam of the inmate by a non-BOP doctor.
Attorney Mike Sullivan assisted at the trial. No decision
has yet been rendered.
6.

United States y. Medina, 97- CR-

(S.D.N.Y.)

Pretrial detainee Jose Medina, 43311-054, has been charged
with the attempted extortion of Bill Cosby. On January 24,
1997, the legal office at MCC NY was advised by the AUSA
that, at a bail hearing earlier that day, inmate Medina

alleged that he had not been allowed to see a Rabbi and that
he had not eaten since he arrived at MCC on January 18,
1997. The inmate requested an order directing the Warden to
provide him Kosher food and to permit him to meet with a
Rabbi. A hearing on these issues was scheduled for 2:30
p.m. that day.
The Warden immediately decided to place the inmate on common
fare.
The Chaplain later concurred with this decision.
Arrangements were made for the inmate to see the Rabbi.
Attorney Alma G. Lopez attended the hearing.
Prior to the hearing, Ms. Lopez explained the MCC's position
to the AUSA and defense counsel. MCC records showed that
inmate Medina had received all his meals, except for one
refusal, since his arrival at the MCC. Defense counsel
understood the MCC's position and only requested
documentation showing that the common fare meals are kosher
so that his client could be appeased.
During the hearing, defense counsel indicated that although
his client had received all his meals, he was flushing down
the foods that he was prohibited from eating by his
religion. Magistrate Judge Peck agreed with the MCC's
solution.
7.

Li v. Canarozzi, et al., 95 Civ. 0706 (S.D.N.Y.)

Jury trial commenced on February 3, 1997 in this 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. Staff were responding to a
disturbance involving a fight among many inmates.
Plaintiff
sustained injuries that day, the most serious was a broken
arm. Plaintiff
alleged that staff caused the injuries. Our version was
that the injuries were sustained during the fight among the
inmates. Dominique Raia and Alma Lopez assisted the AUSAs.
Trial was completed
a verdict late that
jury found that the
occurred during the

on February 14, 1997. The jury returned
day in favor of all defendants. The
injuries sustained by the Plaintiff
disturbance on the unit, not in the

elevator.

8. United States v. Coleman, Criminal No. ---- (E.D.N.Y.)
Pretrial detainee Leonard Coleman, 47321-019, requested an emergency
hearing before the criminal trial judge to address alleged lack of medical care at
MDC Brooklyn. In addition the attorney complained that her client was being
held in administrative detention (pending investigation of a threat against the
detainee). A hearing was held on March 5,1997. Azzmeiah Vazquez attended
the hearing. On the administrative detention issue, Judge Platt found that he did
not have jurisdiction since the detainee did not pursue administrative remedies.
On the medical issue, the defense attorney advised the court she was not ready
to proceed. The MDC Clinical Director
was prepared to testify. This was unnecessary since the AUSA was not opposed
to release under strict conditions. The court ordered the AU.SA to draft a
proposed order of release.
9.

Leonard Falzone y. Federal Bureau of Prisons. et al.,
Civil Action No. 97-574 (ED.Pa.) (formerly Case No. 96-215 (ED.Ky.)

Inmate Leonard Falzone. 83361-020, filed a petition for habeas corpus in E.D.
Ky. challenging the disallowance of 14 days good conduct time for an infraction
committed at Lewisburg Camp. The DHO hearing summary erroneously did not
specify the loss of GCT. An amended DHO summary was later prepared. The
inmate challenged the authority of the DHO to amend the summary. The MARO
and Ashland had responsibility for this litigation and a response was duly filed in
E.D. Ky. After the inmate was transferred to FCI Schuylkill, the case was
transferred to ED.Pa. On February 26,1997, a hearing was held before U.S.
Magistrate Judge Rueter on the petition. Our offer of assistance was accepted
by MARO. Joyce Horikawa assisted at the hearing. DHO Zimany testified that
his notes and contemporaneous records showed that he had disallowed the
good conduct time for the inmate. The only document which did not reflect the
disallowance was the DHO summary. The error was cured when the DHO
issued an amended DHO summary and the inmate was afforded the right to
appeal. On February 27. 1997, the Magistrate Judge recommended that the
petition be denied. On March 17. 1997. Judge Katz adopted the Report and
Recommendation. dismissing the petition.
10. Linn v. Wigen, Civ 96-3147 (ED.Pa.)
Former inmate Michael Linn, 81843-054, brought a Bivens action against staff at
FCI 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. He asserted that one
similarly situated non-Jewish prisoner was given a eee placement. He also

alleged that the shoulder surgery was recommended by a
contract specialist and the defendant denied it anyway. A non-jury trial was held
before Judge Dalzell on March 13, 1997. Joyce Horikawa assisted the AUSA at
the trial. At the close of evidence, the Judge ruled from the
bench and entered a judgement for all defendants.
The Judge
held that the plaintiff failed to present evidence that the
CCC decision was based on his religion and had failed to
show that medical staff was deliberately indifferent to his
medical needs.
11. 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. On March 7, 1997, the United States Attorney.
seeking the death penalty, had a hearing before the DOJ panel. No decision has
been made.
In this same case. Judge Muir held a hearing on March 10, 1997 on defense
attorneys's motions pertaining to telephone access and special mail. Inmate
Hammer is under phone and correspondence restrictions for disciplinary
reasons. Defense attorneys asked the court to order USP Allenwood to permit
Hammer to make unmonitored calls to defense experts. They also requested the
court to order USP Allenwood to permit Hammer to make monitored calls to any
defense witness (including another inmate now in a state system). Defense
attorneys are also asserting the Clerk of Court mail should be automatically
included in Special Mail. Hope Moro attended the hearing and testified
concerning some of these issues. On March 31, 1997, the court denied all the
motions except the court held that clerk of court mail should be treated as
Special Mail. We are preparing a motion for reconsideration.
12.

Curran v. United States, 3:93CV1749 (D.Conn.)

Former inmate Kimberly Curran, 07921-026, filed this Fpderal
Tort Claims Action complaint alleging that a staff member at
FCI Danbury had sexually harassed and assaulted her.
On
March 18, 1997, Judge Thompson granted our motion to
dismiss. The court held: (1) any alleged actions by tht>
staff member were outside the scope of his employment; and
(2) decisions concerning staff discipline and inmate
transfers and furloughs fall within the discretionary
function exception to the FTCA.
13. Dobson y. Bureau of Prisons, CV-96-01767

(D.D.C.)

Inmate Sherman Dobson, 00003-099, filed an action under the

Freedom of Information Act challenging the denial of
memoranda
and staff statements which were generated after the
disturbance
at USP Lewisburg in October 1995. With one exception, Judge Sporkin upheld
that denial and excisions in the FOIA processing. The court found that the
inmate was also requesting statements of witnesses relating to an inmate
discipline hearing. The court found no exemption applied to these statements
since they had been provided to the inmate at the DHO hearing. The original
FOIA request we processed did not request these statements. We complied with
the court order and sent the inmate the additional statements.
14. United States v. Marino, Crim. No. - - (S.D.N.Y.)
Inmate Daniel Marino, 99111-012, arrived at MCC NY on
February 12. 1997 to face prosecution of criminal charges. He was moved from
FCI Ashland pursuant to a writ ad prosequendum. On March 27, 1997. the
AUSA contacted the MCC NY and advised that Judge Sterling Johnson
scheduled a hearing for March 28, 1997 to address allegations by the defendant
concerning medical care at MCC NY. The JUdge required the Warden to appear
at the hearing. Attorney Alma Lopez accompanied the Warden. The defendant
alleged that he had blood in his stool and he had not been examined since he
was at MCC. BOP records show that he was examined by the Staff Physician on
March 17, 1997 and was scheduled for a colonoscopy. The Judge stated he did
not want to get involved in the details of the defendant's medical care. He
suggested a meeting to resolve the dispute. A meeting was held following the
hearing and defense counsel requested that a private doctor examine the
inmate. The defense counsel were requested to send their request with
supporting documents in writing. The inmate received his scheduled
colonoscopy on
April 2, 1997. The Warden will decide whether to grant the request after the
results of the tests are received.

SETTLEMENTS AND AWARDS
1. Matos v. United States, CV-94-8977 (S.D.N.Y.)

Civilian filed a Federal Tort Claims Act complaint alleging
negligence of MCC NY caused her to slip and fallon stairs
in the institution. She had sought $1 million. There was
an injury from the fall; but there was little evidence of
negligence. The AUSA settled this case for $6000.
2.

Riyera-Torres y. United States, CV-95-233

(M.D.P~.)

Inmate Carlos Rivera-Torres, 33217-054, brought a Federal
Tort Claims Act complaint alleging that he slipped and fell
on ice at LSCI Allenwood in March 1994. The case was
scheduled for trial on March 27, 1997. 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.

3.

Allen y. United States, CV-96-615 (M.D.Pa.)

Inmate Royal Allen, 36863-019, filed a Federal Tort Claims
Act complaint alleging that his property was lost when he
was taken to the Special Housing Unit at LSCI Allenwood.
Our investigation revealed probable liability for the loss
of the property. Attempts to settle with the inmate proved
fruitless. We filed a motion for summary judgment against
the United States for the amount demanded in the
administrative tort claim, which we felt was appropriate for
the loss. On January 31, 1997, the court granted our motion
and entered summary judgment against the United States for
$174.65 and for costs of $83.22 (the filing fee paid by the
inmate) .

Attachments

NORTHEAST REGIONAL OFFICE
LITIGATION QUARTERLY REPORT
FROM 0110111997 TO 0313111997

LOC
MXR
NER
SER
NCR
SCR
WXR
CO
TOT

NUM

HC

FTC

BIV

OTH

ANS

PEN

CLD

HIT

53

21

12

14

5

22

573

50

9

SET
2

AWD

1

NARRATIVE 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)

TORT CLAIMS SECOND QUARTER - FY97 (JANUARY 1. 1997 - MARCH 31.
1997)

Loc

Num

PP

PI

Mxr
NER
SER
"Ncr
Scr
Wxr
CO.
Sum

0
181
I
I
0
0
0
183

0
137
I
I
0
0
0
139

0
24
0
0
0
0
0
24

PPPI
0
I
0
0
0
0
0
I

WD
0
2
0
0
0
0
0
2

Med

Set

0
17
0
0
0
0
0
17

0
24
0
0
0
0
0
24

Amt
0
7947
0
0
0
0
0
7947

Pen

Den

00

AIO

AlP

0
211
0
1
0
0
0
212

0
114
0
0
0
0
0
114

0
0
0
-0
0
0
0
0

0
0
0
0
0
0
0

0
105
0
0
0
0
0
105

••••

NORTHEAST REGIONAL OFFICE
ADMINISTRATIVE REMEDIES QUARTERLY REPORT
FROM 01-01-97

LOC NUM
MXR
NER 373
SER
NCR
SCR
WXR
TOT

TO

03-31-97

DHO

SPH

MED

MH

LEG

FD

GRT

DEN

PEN

00

142

13

24

0

7

3

25

257

87

0

NARRATIVE ANALYSIS
DEFINITIONS
LOC - LOCATION
NUM - NUMBER OF TOTAL AD REMEDIES FILED
DHO - NUMBER OF DHO REMEDIES FILED
SPH - NUMBER OF SPECIAL HOUSING UNIT REMEDIES FILED
MED - NUMBER OF MEDICAL REMEDIES FILED
MH - NUMBER OF MENTAL HEALTH REMEDIES FILED
LEG - NUMBER OF LEGAL REMEDIES FILED
FD - NUMBER OF FOOD REMEDIES FILED
GRT - TOTAL OF NUMBER OF REMEDIES GRANTED
DEN - TOTAL NUMBER OF REMEDIES DENIED
PEN - TOTAL NUMBER OF REMEDIES PENDING
00 - TOTAL NUMBER OF REMEDIES OVERDUE

LfflGATION NARRA TNES
JANUARY " 1997 - MARCH 31, 1997
SIGNIFICANT CASES
L. J. and Maylene carter, LR-C-9S-407 (ED/AR)
In this FTCA action, the. plaintiffs sought reimbursement for
subsistence fees charged while they were housed in a halfway
house. Their theory was based on the fact that the Judgment and
Commitment Order, which did impose fines and restitution,
contained the form language that liThe fine includes any costs of
incarceration and/or supervision." On January 21, 1997, the
court ruled that we acted within our authority in collecting the
subsistence fees, and that our actions were not in violation of·
the J & C. The court also noted that plaintiffs did have a
choice in the matter - if they did not want to pay subsistence,
they could have been housed in a correctional institution, where
no subsistence or costs of incarceration would have been
assessed.
Rolf

w.

Starke v. John M. Tombone, et al., 396-CV3454-G (ND/TX)

This is a Section 1983 case. Plaintiff alleges that the
defendants have conspired under the color of state law to violate
his First, Fifth, Sixth, Eighth, and Fourteenth amendment rights.
Specifically, plaintiff states that his health has suffered as a
result of inhaling secondary smoke from cigarettes, cigars, and
pipe tobacco products.
He only asks for jUdgment against the
defendants. He does not request any monetary damages.
Kenneth Lee stewart v. John Tombone, warden, 397-CV0129-R and
Talford B. Royal v. John Tombone, Warden, 397-CV0182-H (NO/TX)
Basically, this is a 3621(e) appeal. There's a little bit of a
different twist in these cases versus the normal 3621(e) cases.
Petitioners are not challenging the fact that the Bureau of
Prisons has classified their crime as a "crime of violence".
Rather, they contend that the Bureau of Prisons entered into a
"contractual" agreement with them which stated that if they
completed the 500 hour OAP Program, they would receive a year off
their sentence. They state that they were granted the one year
off, but when the new program statement concerning crimes of
violence was issued, staff at FCI Seagoville found them
ineligible for early release. They contend that the Bureau's
denial of the year off creates a state created liberty interest.
Wilson Barrell v. Kathleen Hawks, 97-0048-A

(WO/OK)

The Bivens case recently filed by inmate Harrell is based on the
Ensign Amendment.
Harrell is alleging his counselors, the unit

2

manager, the ISM, Warden, Mr. Cooksey, and the Director of the
BOP, conspired to deprive him of his 1st, 4th, 5th, 9th, and 14th
amendment rights. Harrell is seeking $1,000,500.00 in damages,
an injunction, and attorney fees.
Harrell has not exhausted his
administrative remedies.
Donald Holmes v. S. W. Phelps, et al., 5:96CV225 (EO/TX)
The plaintiff alleges harassment, discrimination, and verbal and
physical abuse by FCI Texarkana staff.

CASES

WITH HEARlNG OR TRIAL

Hoot v. Gibson, A-96-CA-390 (WD/TX)
On January 28, 1997, Judge Sparks held a hearing to consider the
petitioner's request for DAP credit for seven weeks spent in nonOAP bed as the result of mutual error of staff and petitioner.
The Central Office's position that the petitioner had not met the
statutory requirement of 180 days in a OAP bed was articulated by
Dr. J. Jones, OAP Administrator, SCRO. The Court rUled that the
equities of the case were in the petitioner's favor, and entered
judgment orally in favor of the Petitioner.
Gerald Esposito v. George E. Killinger, et al., 4:96-CV-927-Y
ND/TX
A hearing was held on January 31, 1997, on a pending TRO on
ESPOSITO, Gerald, who claims we have denied him adequate
medical care. At the hearing, the Court denied the TRO due to
the requested medical procedure being scheduled.
The Judge
suggested that Inmate Esposito drop the case to avoid it being
dismissed as frivolous.
Noel Edward Plunkett v. Joe Gunia, et al., C-96-548 (SD/TX)
Bivens case. Reported in February. Evidentiary hearing held on
March 7, 1990. No rUling as of this time.
Dennis O'Neal McAnnich v. Frank Woods, et ale
Bivens case.

Spears hearing held on March 25, 1997.

united states v. Rasha Mansour, 4:97-CV-079-Y (NO/TX)
A commitment hearing for hospitalization was held at FMC Carswell
on March 12, 1997, pursuant to 18 USC 4245. Ms. Mansour was
committed to our inpatient unit.

3

spaniol v. USA
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. Ruth Yeager, Deputy civil Chiefs, feels very optimistic
of our chances of prevailing.

CASE WITH SE7TLEMENT OR AWARD
Karia Ramos v. U.S.A., civil Action No. EP-94-CA-342-MC (ND/TX)
Adverse jUdgment rendered by magist~ate. Action brought by the
mother and daughter of a former inmate at FPC La Tuna. The
daughter has cerebral palsy and cannot walk, talk, or breathe
without assistance.
In October 1993, when the family went to
visit inmate Juan Ramos, there was no handicapped ramp to access
the visiting area. The Warden allowed Mrs. Ramos, because she
was a frequent visitor, to use the loading ramp around the side
of the building.
Because a government vehicle was blocking the
ramp, Mrs. Ramos wheeled her daughter along the roadway. The
roadway contained concrete splatters and was bumpy. Ramos' chair
hit one of the concrete bumps, and Ramos became dislodged from
her wheelchair. She sustained almost no physical injuries. The
Court awarded $30.00 in actual damages, and $5,970.00 in pain and
sUffering (Total jUdgment $6,000.00).
BOP and u.S. Attorney's
Office have agreed to not appeal this case.

SIGNIFICANT TORT CLAIMS
Inmate Marsha BUCHANON, Register Number 19548-001 - Former inmate
at FMC Carswell has submitted an administrative claim (T-SCR-9720), alleging that while she was being x-rayed on January 17,
1995, the x-ray machine malfunctioned and she sustained burns to
both of her eyes.
She claims that the examination revealed she
had sustained flash burns and had photophobia/photo sensitivity.
She is seeking three hundred thousand dollars ($300,000.00) in
damages. A review of the medical documents she attached to her
claim indicates that on January 17, 1995, a physician at FMC
Carswell noted in her medical chart that she had photophobia
secondary to flash in her eyes.
AGERTON, Dr. William D. (Civilian) - (T-SCR-96-472) Dr. Agerton
alleges that he was employed by EMCare to provide medical
services to health care providers, such as the Federal Medical
Center in Fort Worth, Texas, and on May 16, 1996, Dr. John Barry
(Clinical Director) refused to allow him to provide medical care
at FMC Fort Worth.
Dr. Agerton alleges that he has sustalned
loss of pay and restriction of hospital privileges.

4

The South Central Regional Health Services Administrator has
indicated that the contract was with EMCare and not with any
individual. It is not clear at this time why Dr. Agerton was
denied access to FMC Fort Worth; however, the claim is currently
being investigated by staff at Fort Worth.
Dr. Agerton is
seeking $100,000.00 in damages.
BOSTIC, Billye E., Register Number 62285-080 has filed an
administrative claim (T-SCR-97-53) because the Bureau of
Prisons imposed a cost of incarceration fee.
He alleges that
after he refused to pay $21,352.00 per year, he was placed on
refusal status until he paroled on June 3, 1996. He contends
that he lost early parole consideration, halfway house placement,
pay for six months, social security pay for three months, three
months of earnings, work privileges, dormitory privileges, and
purchase privileges.
Mr. Bostic has attached a Memorandum and Opinion (Billye E.
Bostic v. Joe Aguirre, Warden, EP-96-CA-139-DB) by United States
District Judge David Briones, in which Mr. Bostic's Habeas was
granted. Judge Briones stated that the "Bureau of Prisons shall
not collect cost of incarceration fees" because Mr. Bostic's
sentence did not meet all three prongs of 28 C.F.R. § 505.1.
In
addition, there is documentation attached to Mr. Bostic's claim
that indicates that the Bureau of Prisons continued to hold him
accountable for the cost after Judge Briones issued the order on
April 30, 1996.
ROBERTSON, Vernon Ray, Register Number 17017-057 has filed an
administrative tort claim alleging that on December 16, 1996, he
was violently assaulted by a State of Oklahoma inmate while they
were housed at FTC Oklahoma City. Mr. Robertson contends that he
was beaten and stabbed with a broom handle.
He also states that
the inmate had a history of violence and that BOP staff failed to
provide adequate protection. He seeks $300,000.00 in damages.
(T-BOP-97-015)
GADSON, Floyd, Register Number 09390-058 - Mr. Gadson contends on
June 13, 1996, he requested medication for his diabetes. He
states that he was refused treatment and was issued an incident
report. He contends that as a result of the denied medical
care, he developed a diabetic ulcer on his foot, which burst open
and has caused him a significant amount of pain.
Mr. Gadson requests $4,500,000.00 for emotional distress and
permanent physical injury.
(T-SCR-97-44)
CARTER, Norma J., Register Number 21603-034 - Harry T. Winmann,
3850 N. Causeway Boulevard, Number 590, Metairie, Louisiana, has
filed a claim (T-SCR-97-28) on behalf of Norma J. Carter.
Ms. Carter alleges that medical staff at FPC Bryan denied timely
surgical care for a pilonidal abscess and that she ultir.ately had

5

to undergo a colostomy. Ms. Carter is a diabetic and contends
that she is susceptible to wound infection.
She is seeking
$500,000.00 in damages.
COLLINS, Clyde, Register Number 16940-009 - (T-SCR-97-64) The
family of deceased inmate has filed a claim for the death of Mr.
Collins. Al Weisenberger, an attorney in El Paso, has submitted
the claim, but there is no authorization from Mrs. Collins or any
of Mr. Collins' six children authorizing Mr. Weisenberger to
represent them in a wrongful death claim against the government.
Mr. Collins died from a heart attack while playing softball at
FPC El Paso on July 17, 1996. The Collins family contends that
the Bureau of Prisons did not provide adequate treatment for
Mr. Collins abnormal EKG in March 1995, nor was the annual
physical conduct in March 1996. The family also states that
staff failed to perform CPR within a reasonable time, prohibited
another inmate "who was trained in CPR" to perform CPR, and did
not timely summons an ambulance. The claimants seek
$15,000,000.00 in damages ($5,000,000 for personal injury and
$10,000,000.00 for wrongful death).
PETERSEN, Justin, Register Number 98535-012 - Mr. Petersen
contends that during transfer between MDC Los Angeles and FCI
Bastrop his prosthetic socks were lost, that because staff did
not replace the socks he has suffered a breakdown of the skin on
his amputated stump, that FCI Bastrop is not adequately equipped
to house disabled inmates, that while he was housed there he
slipped and hit his head on his locker, and that the shower bar
broke and he fell causing a bruise to his hand.
Mr. Petersen
complains that he was transferred to USFMCP springfield for
treatment, but because he only had 5 months remaining to be
served, staff would not consider making any significant repairs
to his prosthetic device. He seeks $900 for temporary repair of
his prosthesis, $18,000 for replacement of his prothesis and
$15,000 for personal injury. (T-NCR-97-150).
Investigation
pending.
FANTROY, Richard, Register Number 27764-077, alleges during June
1996 at FMC Fort Worth, he was given incorrect medication for his
medical condition. The claim is in the amount of $500,000.
(T-SCR-97-47).
Investigation pending.
TELFAIR, Milton, Register Number 59903-080, has filed a claim
concerning his medical treatment at FCI Oakdale.
He is confined
to a wheelchair and suffers from recurrent anal fissures.
He
underwent a hemorrhoidectomy and anal fissurectomy, but feels
additional treatment should have been provided.
He is currently
incarcerated at FMC Fort Worth. (T-SCR-97-25).
Investigation
pending.

6

SIGNIFlCANTADM!NlSTRATIYE REMEDIES
Fort Worth received and responded to Administrative Remedy
#128997-F1, in which Wali Muhammed, Reg. No. 19148-009, alleged
Nation of Islam were denied access to an additional meeting time
.and their yearly ceremonial meal. There was no validity
to the allegations.
Administrative Remedy 130071-F1, Inmate Freeman, requests to
display a "dream catcher".
He alleges this is an American Indian
religious belief.
Information received indicates the BOP does
not recognize this as a religious item although some institutions
allow it. Texarkana denied the inmate's request.
Our office has not received a regional appeal regarding this
issue. The inmate has until April 17, 1997 to file an appeal.
Inmate Wayne Matra, at FCI Texarkana, filed a Request for
Administrative Remedy, Case Number 124992-F1, the inmate alleges
discrimination in religious practices. He alleges the
institution is not utilizing the proper "prayer oil". The
institution's response was that the oil was not a religious item
in itself; however, it was used to facilitate a religious
practice. We agreed to return to using the requested oil.
Inmate Baxendale filed Administrative Remedy 125535-F1, alleging
that the BOP misinterpreted the Ensign Amendment. He
specifically requested to continue receipt of "Playboy" .

. ENSIGN AMENDMENT:
LITIGATION
See Harrell v. Hawkins under significant cases.
TORTS
Adam Winchester has submitted a tort claim seeking $128.80
because he is not receiving his monthly sUbscription of
Penthouse magazine.

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SCRO SECOND QUARTERLY REPORT FY'97
(RECEIVED VIA GROUPWISE ON 4/21/97)

LITIGATION NARRATIVES
JANUARY 1, 1997 - MARCH 31, 1997

SIGNIFICANT CASES
L. J. and Maylene Carter, LR-C-95-407 (ED/AR)
In this FTCA action, the plaintiffs sought reimbursement for
subsistence fees charged while they were housed in a halfway
house. Their theory was based on the fact that the Judgment and
Commitment Order, which did impose fines and restitution,
contained the form language that liThe fine includes any costs of
incarceration and/or supervision. II On January 21, 1997, the
court ruled that we acted within our authority in collecting the
subsistence fees, and that our actions were not in violation of
the J & C. The court also noted that plaintiffs did have a
choice in the matter - if they did not want to pay subsistence,
they could have been housed in a correctional institution, where
no subsistence or costs of incarceration would have been
assessed.
Daniel Schmaus v. N. L. COnner, 6:96CV1023 (ED/TX)
In this Habeas action, the inmate alleges his third revoked term
of Special Parole had expired and the U.S. Parole Commission had
determined his "sentence had expired". He alleges the Bureau of
Prisons refuses to release him.
Eddie Wayne Roberson y. Warden, 5:96CV216 (ED/TX)
In this Habeas action, the inmate alleges the Warden refuses to
give jail time credit for time he spent in state custody under
federal detainer.
Rolf W. Starke y. John M. Tombone. at al., 396-CV3454-G (ND/TX)
This is a Section 1983 case.
Plaintiff alleges that the
defendants have conspired under the color of state law to violate
his First, Fifth, Sixth, Eighth, and Fourteenth amendment rights.
Specifically, plaintiff states that his health has suffered as a

result of inhaling secondary smoke from cigarettes, cigars, and
pipe tobacco products. He only asks for judgment against the
defendants. He does not request any monetary damages.

Kenneth Lee Stewart y. John Tombone. Warden, 397-CV0129-R and
Talford H. Royal v. John Tombone. Warden, 397-CV0182-H (ND/TX)
Basically, this is a 3621{e) appeal. There's a little bit of a
different twist in these cases versus the normal 3621(e} cases.
Petitioners are not challenging the fact that the Bureau of
Prisons has classified their crime as a "crime of violence".
Rather, they contend that the Bureau of Prisons entered into a
"contractual" agreement with them which stated that if they
completed the 500 hour DAPS Program, they would receive a year
off their sentence. They state that they were granted the one
year off, but when the new program statement concerning crimes of
violence was issued, staff at FCI Seagoville found them
ineligible for early release. They contend that the Bureau's
denial of the year off creates a state created liberty interest.
Wilson Harrell v. Kathleen Hawks, 97-0048-A CWO/OK)
The Bivens case recently filed by inmate Harrell is based on the
Ensign Amendment. Harrell is alleging his counselors, the unit
manager, the ISM, Warden, Mr. Cooksey, and the Director of the
BOP, conspired to deprive him of his 1st, 4th, 5th, 9th, and 14th
amendment rights. Harrell is seeking $1,000,500.00 in damages,
an injunction, and attorney fees. A Martinez report is due in
March. Harrell has not exhausted his administrative remedies.
Donald Holmes v. S. W. Phelps. et al., S:96CV22S (ED/TX)
The plaintiff alleges harassment, discrimination, and verbal and
physical abuse by FCI Texarkana staff.
Wells y. Garbow, EP-97-CA-029-DB (WO/TX)
An inmate at FCI La Tuna was removed from the ICC program at

Lewisburg for having a two point enhancement for firearms.
However, after his removal, the inmate had his sentence clal-ified
to state he did not use firearms.
Moreover, a Post-Sentence
Investigation was prepared that did not give him a two point
enhancement for firearms.
However, the inmate was never returned
to the ICC. The inmate agreed to dismiss the action in return

for accelerated CCC placement within policy and home confinement
when eligible.

CASES WITH HEARING OR TRIAL
Hoot v. Gibson, A-96-CA-390 (WO/TX)
On January 28, 1997, Judge Sparks held a hearing to consider the
petitioner1s request for DAP credit for seven weeks spent in
non-DAP bed as the result of mutual error of staff and
petitioner. The Central Office's position that the petitioner
had not met the statutory requirement of 180 days in a DAP bed
was articulated by Dr. J. Jones, OAF Administrator, SCRO. The
Court ruled that the equities of the case were in the
petitioner's favor, and entered judgment orally in favor of the
Petitioner.
Gerald Esposito v. George E. Killinger, et al., 4:96-CV-927-Y
ND/TX
A hearing was held on January 31, 1997, on a pending TRO on
ESPOSITO, Gerald, who claims we have denied him adequate
medical care. At the hearing, the Court denied the TRO due to
the requested medical procedure being scheduled. The Judge
suggested that Inmate Esposito drop the case to avoid it being
dismissed as frivolous.
Noel Edward Plunkett y. Joe Gunia, et al., C-96-548 (SD/TX)
Biyens case. Reported in February. Evidentiary hearing held on
March 7, 1990. No ruling as of this time.
Dennis QINeal MCAnnich y. Frank Woods. et al.
Biyens case.

Spears hearing held on March 25, 1997.

United States v. Rasha Mansour, 4:97-CV-079-Y (ND/TX)
A commitment hearing for hospitalization was held at FMC Carswell
on March 12, 1997, pursuant 'to 18 USC 4245.

Ms. Mansour was committed to our inpatient unit.
SPanjol y. USA
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. Ruth Yeager, Deputy Civil Chiefs, feels very optimistic
of our chances of prevailing.

CASE WITH SETTLEMENT OR AWARD
Maria RamOS y. U.S.A., Civil Action No. EP-94-CA-342-MC (ND/TX)
Adverse judgment rendered by magistrate. Action brought by the
mother and daughter of a former inmate at FPC La Tuna.
The
daughter has cerebral palsy and cannot walk, talk, or breathe
without assistance.
In October 1993, when the family went to
visit inmate Juan Ramos, there was no handicapped ramp to access
the visiting area. The Warden allowed Mrs. Ramos, because she
was a frequent visitor, to use the loading ramp around the side
of the building. Because a government vehicle was blocking the
ramp, Mrs. Ramos wheeled her daughter along the roadway.
The
roadway contained concrete splatter and was bumpy. Ramos' chair
hit one of the concrete bumps, and Ramos became dislodged from
her wheelchair. She sustained almost no physical injuries. The
Court awarded $30.00 in actual damages, and $5,970.00 in pain and
suffering (Total judgment $6,000.00). BOP and U.S. Attorney's
Office have agreed to not appeal this case.

SIGNIFICANT TORT CLAIMS
Inmate Marsha BUCHANON, Register Number 19548-001 - Former inmate
at FMC Carswell has submitted an administrative claim
(T-SCR-97-20), alleging that while she was being x-rayed on
January 17, 1995, the x-ray machine malfunctioned and she
sustained burns to both of her eyes. She claims that the
examination revealed she had sustained flash burns and had
photophobia/photo sensitivity. She is seeking three hund~erl
thousand dollars ($300,000.00) in damages.
A review of the medical documents she attached to her cldlrr
indicates that on January 17, 1995, a physician at FMC Calswell
noted in her medical chart that she had photophobia secondd:Y to

flash in her eyes.
AGERTON, Dr. William D. (Civilian) - (T-SCR-96-472) Dr. Agerton
alleges that he was employed by EMCare to provide medical
services to health care providers, such as the Federal Medical
Center in Fort Worth, Texas, and on May 16, 1996, Dr. John Barry
(Clinical Director) refused to allow'him to provide medical care
at FMC Fort Worth.
Dr. Agerton alleges that he has sustained
loss of pay and restriction of hospital privileges.
The South Central Regional Health Services Administrator has
indicated that the contract was with EMCare and not with any
individual.
It is not clear at this ~ime why Dr. Agerton was
denied access to FMC Fort Worth; however, the claim is currently
being investigated by staff at Fort Worth.
Dr. Agerton is seeking $100,000.00 in damages.
BOSTIC, Billye E., Register Number 62285-080 has filed an
administrative claim (T-SCR-97-53) because the Bureau of
Prisons imposed a cost of incarceration fee.
He alleges that
after he refused to pay $21,352.00 per year, he was placed on
refusal status until he paroled on June 3, 1996. He contends
that he lost early parole consideration, halfway house placement,
pay for six months, social security pay for three months, three
months of earnings, work privileges, dormitory privileges, and
purchase privileges.
Mr. Bostic has attached a Memorandum and Opinion (Billye E.
Bostic v. Joe Aguirre. Warden, EP-96-CA-139-DB) by United States
District Judge David Briones, in which Mr. Bostic'S Habeas was
granted. Judge Briones stated that the "Bureau of Prisons shall
not collect cost of incarceration fees" because Mr. Bostic's
sentence did not meet all three prongs of
28 C.F.R. § 505.1.
In addition, there is documentation attached
to Mr. Bostic's claim that indicates that the Bureau of Prisons
continued 'to hold him accountable for the cost after Judge
Briones issued the' order on April 30, 1996.

ROBERTSON, Vernon Ray, Register Number 17017-057 has filed an
administrative tort claim alleging that on December 16, 1996, he
was violently assaulted by a State of Oklahoma inmate while they
were housed at FTC Oklahoma City. Mr. Robertson contends that he
was beaten and stabbed with a broom handle.
He also states that

the inmate had a history of violence and that BOP staff failed to
provide adequate protection. He seeks $300,000.00 in damages.
(T-BOP-97-015)

MEDICAL
GADSON, Floyd, Register Number 09390-058 - Mr. Gadson contends on
June 13, 1996, he requested medication for his diabetes. He
states that he was refused treatment and was issued an incident
report. He contends that as a result of the denied medical
care, he developed a diabetic ulcer on his foot, which burst open
and has caused him a significant amount of pain.
Mr. Gadson requests $4,500,000.00 for emotional distress and
permanent physical injury.
(T-SCR-97-44)
CARTER, Norma J., Register Number 21603-034 - Harry T. Winmann,
3850 N. Causeway Boulevard, Number 590, Metairie, Louisiana, has
filed a claim (T-SCR-97-28) on behalf of Norma J. Carter. Ms.
Carter alleges that medical staff at FPC Bryan denied timely
surgical care for a pilonidal abscess and that she ultimately had
to undergo a colostomy. Ms. Carter is a diabetic and contends
that she is susceptible to wound infection. She is seeking
$500,000.00 in damages.
COLLINS, Clyde, Register Number 16940-009 - (T-SCR-97-64) The
family of deceased inmate has filed a claim for the death of Mr.
Collins. Al Weisenberger, an attorney in El Paso, has submitted
the claim, but there is no authorization from
Mrs. Collins or any of Mr. Collins' six children authorizing
Mr. Weisenberger to represent them in a wrongful death claim
against the government.
Mr. Collins died from a heart attack while playing softball at
FPC El Paso on July 17, 1996. The Collins family contends that
the Bureau of Prisons did not provide adequate treatment for Mr.
Collins abnormal EKG in March 1995, nor was the annual physical
conduct in March 1996. The family also states that staff failed
to perform CPR within a reasonable time, prohibited another
inmate "who was trained in CPR" to perform CPR, and did not
timely summons an ambulance. The claimants seek $15,000,000.00 in
damages ($5,000,000 for personal injury and $10,000,000.00 for
wrongful death) .

MEDICAL/ADA CLAIM
PETERSEN, Justin, Register Number 98535-012 - Mr. Petersen
contends that during transfer between MOC Los Angeles and FCI
Bastrop his prosthetic socks were lost, that because staff did
not replace the socks he has suffered a breakdown of the skin on
his amputated stump, that FCI Bastrop is not adequately equipped
to house disabled inmates, that while he was housed there he
slipped and hit his head on his locker, and that the shower bar
broke and he fell causing a bruise to his hand.
Mr. Petersen complains that he was transferred to USFMCP
Springfield for treatment, but because he only had 5 months
remaining to be served, staff would not consider making any
significant repairs to his prosthetic device. He seeks $900 for
temporary repair of his prosthesis, $18,000 for replacement of
his prothesis and $15,000 for personal injury. (T-NCR-97-150).
Investigation pending.
REYNOSO-OLASCAGO, Jose, Register Number 64714-079 Mr. Reynoso-Olascago alleges that while he was walking on the
track at FCI Big Spring, he was hit in the face by a bat that had
slipped out of a softball player's hands. He was transported to
a local community hospital for treatment, he later underwent
surgery to repair his fractured jaw. He claims that BOP staff
negligently allowed him to walk around the track while a game was
in progress. He seeks $10,000,000.00 in damages. (T-SCR-96-430).
No liability concerns.
FANTROY, Richard, Register Number 27764-077, alleges during June
1996 at FMC Fort Worth, he was given incorrect medication for his
medical condition. The claim is in the amount of $500,000.
(T-SCR-97-47).
Investigation pending.
TELFAIR, Milton, Register Number 59903-080, has filed a claim
concerning his medical treatment at FCI Oakdale.
He is confined
to a wheelchair and suffers from recurrent anal
fissures.
He underwent a hemorrhoidectomy and anal fissurectomy,
but feels additional treatment should have been provided.
He is
currently incarcerated at FMC Fort Worth.
(T-SCR-97-25).
Investigation pending.

SIGNIFICANT ADMINISTRATIVE REMEDIES

Fort Worth received and responded to Administrative Remedy
#128997-F1, in which Wali Muhammed, Reg. No. 19148-009, alleged
Nation of Islam were denied access to an additional meeting time
and their yearly ceremonial meal. There was no validity
to the allegations.
Administrative Remedy 130071-F1, Inmate Freeman, requests to
~isplay a "dream catcher".
He alleges this is an American Indian
religious belief.
Information received indicates the BOP does
not recognize this as a religious item although some institutions
allow it. Texarkana denied the inmate's request.
Our office has not received a regional appeal regarding this
issue, the inmate has until April 17, 1997 to file an appeal.
Inmate WaYne Matra, at FCI Texarkana, filed a Request for
Administrative Remedy, Case Number 124992-Fl, the inmate alleges
discrimination in religious practices. He alleges the
institution is not utilizing the proper "prayer oil". The
institution's response was that the oil was not a religious item
in itself; however, it was used to facilitate a religious
practice. We agreed to return to using the requested oil.
Inmate Baxendale filed Administrative Remedy 125535-F1, alleging
that the BOP misinterpreted the Ensign Amendment. He
specifically requested to continue receipt of "Playboy".
MEDICAL MALPRACTICE:
LITIGATION
Caesar Morales-Morales y. Norris Knight. et al., 597CV0023
(ND/TX)
In this action, the plaintiff names a contract physician,
contract clinic, contract hospital, retired BOP physician and
current physician. The plaintiff asserts he fell on his arm,
surgery was performed, and that despite the surgery he still has
problems. He asserts improper and inadequate treatment due to
deliberate indifference. There is no show cause order in this
matter; thus, research for a litigation report has not yet
occurred.
James Watson Ramsey y. USA. et al., 3:96-CV-3358-G (ND/TX)
This FMC Fort Worth case involves 12 named defendants.

The

inmate claims he was subjected to cruel and unusual punishment
through denial and delay of medical care of his burns. Based on
a preliminary assessment, there does not appear to be any
liability on the part of staff. Mr. Ramsey's complaint appears
to be frivolous pursuant to the PLRA.
Carter v, FMC Medical Review Board, et aI"
The inmate had a previous case filed
issues regarding the lack of medical
Carswell. The case was dismissed as
Prison Litigation Reform Act of 1995

TORTS

4:96-CV-690-A (ND/TX)

which raised identical
care she received at FMC
frivolous pursuant to the
on December 1, 1996.

(FTCA)

Inmate Norma CARTER, asserts government negligence regarding
timely provision of surgical care for a pilonidal abscess at
outside hospital by staff at FPC Bryan, resulting in extensive
parasacral infection.
Preliminary investigation reveals n6
evidence of delay or inappropriate treatment by FPC Bryan staff.
CANIPE, Terry, Register Number 60647-080 (T-BOP-96-159)- Inmate
alleges that during the morning hours of July 30, 1994, while he
was incarcerated at FCr Bastrop, he was attacked by other inmates
during an institution lockdown. He claims that he sustained a
broken finger and "other injuries. n Mr. Canipe contends that he
did not seek immediate medical attention because he had been
warned by other inmates not to give any information about how he
sustained the injuries.
At approximately 6:00 p.m., Mr. Canipe reported to institution
staff that he had slipped on some stairs and had fallen down.
Medical staff examined Mr. Canipe and requested x-rays of hlS
hand and face.
On August 2, 1994, the x-ray revealed that he had
suffered a broken finger, and approximately ten days latet, he
was examined by a contract orthopedic physician who noted a
partial ligament rupture on the splinted finger.
The inmate
was instructed to initiate range of motion exercises. On August
11, 1994, an x-ray revealed a dislocation involving the 101nt of
the right ring finger.
Surgery was later performed by a ("c:~~ I act
surgeon, and Mr. Canipe was referred to Springf ield. Mr. :',Wl pe
is seeking one million dollars in damages.

ENSIGN AMENDMENT:
LITIGATION
FeI El Reno. Harrell v. Hawkins.
Inmate asserts that
return of publication pursuant to Ensign Amendment violates
his constitutional rights.
TORTS
Adam Winchester has submitted a tort claim seeking $128.80
because he is not receiving his mont~~y subscription of
Penthouse magazine.

3RD QUARTER REPORT

LITIGATION - 1997

SET

Awn/SET

0

2

$180,000

1

0

1

$750,000

36

15

0

4

0

171

40

10

0

0

0

30

726

39

0

0

0

0

3

26

352

40

1

1

2

$296,863

0

18

192

8

7

0

0

0

2,713

233

39

1

9

$1,226,863

FTC

BIV

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22

4

16

3

47

77

51

5

19

8

NER

63

22

11

19

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66

40

6

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43

23

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57

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26

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377

LOC

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45

NCR

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CLD

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339

63

5

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333

7

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27

600

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3

60

4

10

6

44

2

8

1

4

6

203

36

95

33

208

PEN

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DEFINITIONS
!.oe - Location
!lUI·l IW
-

FTC BIV
CiTH
ldlS
PEll
CLI)

-

Total NumbF[ of Lai'/SlJlts Filed in QlJeutt::r
Humber (f Habeas r:Grp'j3 A,~tions Fil!~·d in ( J I l l l " ' :
Humber of FTCl.. Actions Fi led ira Quarter
Number c,f Ui\!t~ClS A.=t ions Fil.:d In (JllillU::"
Other l ..cticins Filed In VlliJrlt2r
Number of Litigali:)n Pepor'_s C':rLlplE:lt:d
Numbe r e f !v::t ions Pend i ng
number of Actions Cl~,sed

HIT - Number of Iiearinqs or Trials (Nlrr-ati'.'C:' A:IJl'/.c;l.c. f·

1J

~':;;I

- Number of !.. ·.·/ards (Uarrat i'!';; r.. nal'/sis r: 11 :.·.·;3.:
SET - Number of :-';cltlements (Narr-ative 1\nd1'lsis [.' 1.',-:.";,'
.A:i·1f)/SET - Amcunt of Se:t t lEIllt:nts arj.j j..'o':'lrd~
I\~'JD

LITIGATION ANALYSIS
The total number of lawsuits tiled decreased by 46 from last <llmrter. the total dollar amount for cuses settled incrcased due to one case in the

NeRO.

1997 QUARTERLY LITIGATION REPORT
THIRD OUARTER

I.

SIGNIFICANT HEARINGS AND TRIALS

NORTHEAST REGION
Colon v. Menifee, Appeal No. 96-7588 (3d Cir.) - Oral argument
was heard on May 9, 1997 in our appeal from the grant of a habeas
90rpUS petition.
Petitioner Jimmy Colon, 19968-038, challenged
the Bureau's decision that his conviction for felon in possession
of a firearm under 18 U.S.C. § 922{g) was a crime of violence
precluding him from early reduction consideration under 18 U.S.C.
§ 3621{e).
The district court held that the Bureau was not
entitled to conclude that the possession of a firearm by a felon
is a crime of violence for purposes of 18 U.S.C.
§ 3621{e) eligibility.
The Third Circuit focused on the nature
of
.
deference the court should accord the interpretation of the
Bureau. No decision has been issued.
Roussos v. Menifee, No. 97-7011 (3d Cir.) - On July 8, 1997, oral
argument was held in a 18 U.S.C. § 3621(e) case.
Inmate Victor
Roussos, Reg. No. 30950-054, filed a petition for writ of habeas
corpus challenging his ineligibility for early release under 18
U.S.C. § 3621(e). Because of a two point enhancement for a
firearm in connection with a drug offense.
The district court
denied the petition and upheld the BOP interpretation.
No
decision has been issued.
Pollard v. Secor. etc aI, 95 Civ. 5599 (E.D.PA.), FCI Schuylkill.
Jury trial was held on June 23 and 24, 1997 iri this Bivens case.
Inmate Rodney Pollard, Reg. No. 14640-050, alleged that he was
improperly placed in administrative detention and then
At
transferred as a result of the practice of his religion.
beginning of trial, Judge Ludwig granted a renewed motion to
dismiss administrative detention claim on basis of Sandin and a
recent Third Circuit case. After one hour deliberations, the
jury returned a verdict in favor of all defendants.
Gibbons v. United States, CV-95-4654 (S.D.N.Y.), MCC N.Y. This
FTCA case went to trial on April 8, 1997.
Inmate Gary Gibbons,
34115-054, alleged that he injured his hand as a result of using
defective and dangerous weight lifting equipment at MCC N.Y. and
sought $300,000 in damages. The court ruled in favor of the
United States.
Palmer v. United States, CV-95-383 (M.D.PA.) - This Federal Tort
Claims Act case was filed by Inmate Lovell Palmer, 23307-083, who
alleged that he slipped and fell in January 1994 at USP
Lewisburg. His administrative tort claim was for $1000.
In his
complaint, he requested damages in excess of $25,000.
We moved
1

for partial summary judgment against the United States in the
amount of $1000. The jUdge granted our request for a bifurcated
trial limited to the issue of whether the inmate can claim
damages above that requested in his administrative claim.
This
part of the trial was held on January 15, 1997. No decision has
yet been rendered.

II.

SETTLEMENTS AND AWARDS

MID ATLANTIC REGION
Venus Michels v. USA, FMC Lexington - Plaintiff, who alleged she
was coerced into sexual contact with ex-correctional officer Eddie
Smith, accepted a final settlement of $150,000.
This is the final
civil case arising out of the actions of Eddie Smith.
Lydia K. Porter v. USA, FMC Lexington - Plaintiff, who alleged
negligent care by BOP staff after she had a tooth extraction and
developed a serious infection, accepted a final settlement offer of
$30,000.

NORTH CENTRAL REGION
Perse v. United States, FCl Englewood - Plaintiff is the wife of a
deceased Colorado Department of Corrections (CDOC) staff member who
died in a rappelling accident.
BOP staff members were present to
assist the CDOC in conducting its training program and the
plaintiff has alleged that their negligence was the cause of her
husband's death.
Plaintiff's rappelling expert has provided a very
strong opinion pointing toward BOP staff negligence in the
accident.
The BOP concurred in the settlement of this case for
$750,000.
Lang v. United States, FMC Rochester - Hybrid Bivens/FTCA case
alleging a failure to protect.
Lang was assaulted by his cellmate
within two hours of arriving at FMC.
The plaintiff suffet"ed
significant personal injury. The case settled as a FTCA claim fOl'
$300,000.
NORTHEAST REGION
Hammed v. United States, FCI Otisville - Federal Tort
property claim settled for $120.00.

Clcumf~

Act

Dennie v. Teague, FCI Ray Brook - Inmate Akali Dennie, 117~~014,
filed Bivens case alleging failure to protect him from cHWrl .... l t by
another inmate.
Case converted into an FTCA and settled for
$5000.00.
Mulligan v. United States, FCl Schuylkill - Inmate Francl!'
Mulligan, Reg. No. 31580-066, filed FTCA case alleging hp ftllpped
2

and fell due to staff negligence in maintaining a clear sidewalk,
and that the fall caused one of his pacemaker wire leads to tear
from his heart, requiring surgical repair. Our medical expert
confirmed that the fall may have caused the wire to separate. The
case settled for $4,000.00.
Curtis v. United States, FCI Fairton - FTCA case regarding delay in
medical treatment which occurred as a result of the institution
transfer of the inmate Plaintiff, Glenn Curtis, Reg. No. 44293-066.
The case settled for $45,000.00.
WESTERN REGION
Graham v. USA, FCI Dublin - FTCA action in which an inmate was hit
by a roll of roofing material that fell through the roof of food
service at FCI Dublin. The matter settled for $3,500.00.
Asberry v. BOP,MDC Los Angeles - EEO action in which an employee
was discharged from MDC Los Angeles after episodes indicating he
was unable to perform his duties. He asserted that he was the
victim of retaliation for assisting female employees in reporting
sexual harassment. The jury awarded him $500,000.00 and the United
States settled for a total of $280,000.00, inclusive of attorneys
fees.
Moracco v. Reno, FCI Safford - FTCA action in which a former inmate
at FCI Safford complained that he was injured when he fell from a
van while in leg irons and other restraints. The United States
Attorneys Office in Tucson agreed to settle for $12,363.00.
III.

PENDING CASES OF INTEREST

CENTRAL OFFICE
Estate of Kenneth Michael Trentadue, et al ..v. United States, et
al. ,
CIV-97-849L (WD/OK) - Action involves death of an inmate at FTC
Oklahoma City in August 1995.
Inmate's family believes staff
murdered the inmate and that Bureau of Prisons' officials are now
covering up the incident.
Plaintiff asserts both Bivens and FTCA
theories.
NORTH CENTRAL REGION
Garrett v. Hawk, Case No. 96-1429, 10th Cir. Court of Appeals, FCC
Florence. The district court dismissed sua sponte a Bivens action
for failure to exhaust administrative remedies.
On appeal, the
Court of Appeals requested a brief from the government cW to
whether the exhaustion requirement of the Prison Litigatlor~ Reform
Act (PLRA) (42 USC § 1997e (a)) applies to Bivens actiOlw.
FCI Greenville Disturbance Cases. Eleven similar Bivem; CtiHeS
containing allegations against staff at FCI GreenvillE" .t: :"(pnq
excessive use of force in the aftermath of the Octobel·, ;. ',',I)
disturbance have been filed by inmates. The Department ot Just 1('('
3

has been closely examining these actions to determine whether
representation should be granted to individual BOP employees.

4

UNITED STATE
Mid-Atlantic Regional Office. Annapolis Ju

DATE:
REPLY TO Bill Burlington, Regional Counsel
AnN OF: Mid-Atlantic Region

SUBJECT: QUARTERLY REPORT· April 1. 1997 thru June 30. 1997
TO:

Nancy Redding. Executive Assistant
Office of General Counsel

TORTS
NUM PROP PI
165

43

118

PPPI

WD MED SET

2

0

2

PEND DEN aD A/a AlP

AMT

11 $3608

4·

97

205

LITIGATION
NUM HC
45

22

FTC

BIV

OTH ANS PEN CLD

4

16

3

47

HIT

SET

AWD

5

2

$180.000

339

63

FD

GRT

DEN PEN aD

14

62

497

ADMINISTRATIVE REMEDIES
NUM DHO SPH
453

172

22

MED MH LEe
29

2

11

60

FOI/PRIVACY
NUM

ANS

PEN

aD

127

119

53

21

·We are in the process of obtaining settlement approval from
the Central Office for three of these claims or a check from
Treasury; one claim was just recently transferred from another
Region.

TRIALS AND HEARINGS:
FCI Beckley - Keats v. Olson· oral arguments were held on
April 10. 1997. regarding this habeas concerning jail credit
The Magistrate issued a R&R in this habeas case. to which the
BOP filed objections. The Magistrate concluded that the
inmate's sentence commenced when the BOP accepted him into
custody to serve his federal sentence. even though the state
had primary jurisdiction and the federal sentence was to run
consecutive to the state sentence. The BOP's mistake (In
accepting hIm In custody instead of sending him to the state)
effectively turned the consecutive sentence into a concurrent
sentence. The Magistrate also found that there had been a due
process violation. which could possibly lead to Bivens
liability for those who computed the sentence.

0

28

103

USP Terre Haute. Locascio v. Clark - A hearing was held on
May 12.1997. before Judge McKinney. Locascio filed a TRO.
preliminary injunction. and permanent injunction based on the
fact that he was placed in administrative detention after a
Prime Time Live interview with Sammy "The Bull" Gravano
indicated that Locascio had conspired to kill John Gotti. In
his complaint. Locascio alle'ged that he was being denied
access to the court and his counsel since he was in AD and
wanted to be released to the general population. Locascio was
released to general population on Monday morning. This action
was dismissed.

FCI Petersburg. Platshorn v. Hahn - An evidentiary hearing
was held on June 4. regarding the aggregation of a parolable
sentence with a non-parolable sentence. Platshom who was
released on parole from the parolable portion of the sentence.
seeks to have SGT earned on the parolable sentence applied to
the consecutive non-parolable sentence. John White. RISA.
testified at the hearing and presented an excellent
explanation of the computation by BOP. The AUSA and Milt
Williams. Paralegal. Fel Petersburg. got the impression that
regardless of § 4161 maximum rate of SGT. Magistrate Judge
Lowe intends to somehow hold that Platshorn is entitled to
additional SGT. On June 30.1997. Magistrate Judge Lowe
ordered the BOP to provide the court by July 11 a copy of the
P.S. in existence prior to 5880.30.
FCI Milan - Idema v. Pontesso - A hearing was held on June 9.
1997. regarding this habeas petition. The JUdge acknowledged
that referral and eee placement decisions were at the BOP's
discretion. BOP staff adVised the Judge that eee referral for
Idema would be completed pending disposition of the incident
reports the inmate had received

FPC Seymour Johnson - Milton v. Flowers, et al. - This is a
Bivens case that was originally filed in 1993. The Judge
ordered a contempt hearing on plaintiffs request for
sanctions. The hearing was held on Friday. June 20. 1997. at
10:00 a.m. In Raleigh with Warden Flowers. Randy Meeks.
Charlie Hamilton (retired AUSA previously involved in the
case). Kathy Harris and Bill Burlington in attendance. When
the pro se plaintiff had not appeared by 10:30. the JUdge
stated that he would not rule on the motion. The Judge agreed
to consider a motion for attorney's fees and costs (totaling
$6.500). and to order the plaintiff to show cause in ten days
why the remaining Issue should not be dismissed. The AUSA
filed the motion on June 24. 1997. If the Judge awards
attorney's fees and costs against the plaintiff. it is
unlikely he will pursue the remaining issue.

SETTLEMENTS
FMC Lexington. Venus Michels v. USA· Plaintiff, who alleged
she was coerced Into sexual contact With ex-correctional
officer Eddie Smith. accepted a final settlement of $150.000.
This is the final Civil case arrslng out of the actions of
Eddie Smith

FMC Lexington - Lvdia K. Porter v. USA - Plaintiff, who
alleged negligent care by BOP staff after she had a tooth
extraction and developed a serious infection, accepted a final
settlement offer of $30.000.

UNITED STATES GOVERNMENT

memorandum
DATE: october3,1997
REPLY TO
ATTN OF:

SUBJECT:
TO:

Sherree L. sturgis, Regional Counsel
Bureau of prisons, Southeast Region
523 McDonough Blvd., S.E.
Atlanta, GA 30315

Third auarter 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 third Quarter (APR, MAY, JUN)

1997.

Litigation
NUMBER OF ACTIONS FILED
HABEAS CORPUS ACTIONS
FlCA ACTIONS
BIVENS ACTIONS
OTHER (Mandamus, etc)
NUMBER OF LITIGATION REPORTS
NUMBER PENDING
NUMBER CLOSED
NUMBER OF HEARINGSITRIALS
NUMBER OF SETTLEMENTS
AMOUNT OF AWARD
NUMBER OF CRIMINAL REFERRALS

43
23
4

10
6

30
726
39
?
?

S ?oo
?

Significant Case Activity

Civil Matters
95-1015~ - NORTHERN
DISTRICT OF FLORIDA - this is a voluminous case
involving approximately seventeen (17) inmates who
allegedly sustained serious injuries due to a Bureau of
Prisons bus accident in April, 1993. The case is
moving forward with an anticipated trial date of
sometime in October, 1997. We are working on
strategies to minimize the damages the plaintiffs win
at trial.

ROMERO, et al. v UNITED STATES;

DAVID GREENBERG v. DENNIS JOHNSON, et al

Court: NORTHERN DISTRICT OF FLORIDA
Docket No.: 93-30639/RV; Type of Case: Personal
Liability;
Damages Req: $2,000,000
Subj ect: MEDICAL TREATMENT, WORK
Institution: FPC, EGLIN
Facts Alleged: Inmate in 1994 alleges he was ordered to
discontinue his cardiovascular exercises and ordered to
wear boots in violation of doctors orders.
He was
prohibited from work in Food Servic~. These
restrictions prevented him from participation in his
Jewish religion.
Significant Activity: 06-10-97 Order adopts
magistrate's report, grants summary judgement,
dismisses action.
05-08-1997 Magistrate's repo~: :inds
the inmate failed to allege facts sufficient to
constitution cruel and unusual punishment. The lnmate
also failed to show that the denial of kosher foods for
two weeks substantially burdened the exercise 0: ~:s
religion.
Nor did an order to remove trash f~o~ :dbles
on the Sabbath on one occasion constitute a subs:,;:-.:ia:
burden.
DONACIANO CANATE TEJEDOR, et al v. UNITED STATES OF
AMERICA

Court: DISTRICT OF PUERTO RICO
Docket No.: 96-2655 (SEC); Type of Case: FTCFo.; :-.:.-: :-::>~
Req: $18,000
Subject: PROPERTY
Institution: MOC, GUAYNABO
Facts Alleged: Plaintiffs contend that durin~
in-processing, two gold Rolex Presidential w~:~·
watches were taken from them, and that they we:~
mailed to their family home in Columbia as the': .... : ,told they would be.
.
Significant Activity: 06-24-97 Order dismisses

because it falls within FTCA exception for property
detained by law enforcement officials.
Criminal Referrals

DEFENDANTS: Anthony Battle #11451-056
Institution Tracking No. ATL-94-4170
Name of Case: U.S. v. Battle
Court: FGAN
Docket No.: 1:95-CR-528
Institution: ATL
Date of Offense:
12/21/94
Description:
Inmate charged with homicide Officer
D'Antonio Washington.
Special Monitoring: Assigned due to death of staff
member.
Status of Referral: Accepted.
Update:
Motion For New trial and Sentencing Hearing
and Correction Or Reduction of Sentence filed on April
3, 1997
Assigned to:
AUSA: Bill McKinnon, Jan Jenkins, FBI:
Tyrone Smith, USP: Terry Collins, Angie Wiesman
DEFENDANTS: Johnnie Carter, Thomas Stevens
Institution Tracking No.: ATL-96-0273
Name of Case: U.S. v. Carter et al.,
Court: FGAN (Judge Tidwell)
Docket No.: 1:97-CR-257
Institution: ATL
Date of Offense: 11/96
Description: Staff involved in introducing b~ir.gi~g
drugs into institution.
Special Monitoring: Yes, defendants are ATL staff.
Status of Referral: Accepted.
Update: Carter and Stevens were indicted on 6/:~:~~ on
Traffic in Contraband Articles, and Conspiracy:.
Distribute a controlled substance.
Arraignmer.: ~eld O~
6/18/9~.
Pleas of Not Guilty entered.
DEFENDANTS: Desmond Lawrence #83529-022
Institution Tracking No.: ATL-96-0243
Name of Case: U.S. v. Lawrence
Court: FGAN
Docket No. 1:96-CR-424
Institution: ATL
Date of Offense:
9/12/96
Description:
Inmate assaulted Judi Parks,
Robert Willis and Melvin Adams.
Special Monitoring: Not assigned.

Status of Referral: Accepted.
Update: Status hearing held on May 7, 1997.
Pretrial
status set for May 29, 1997. AUSA has requested that
no further action be taken in disciplinary process.
Assigned to: AUSA: Katherine Monahan FBI: Tyrone Smith
USP: Terry Collins
Federal Tort Claims Act/Employee Claims
NUMBER FILED
127
99
PERSONAL PROPERTY
26
PERSONAL INJURY
o
MEDICAL
1
WRONGFUL DEATH
PERSONAL INJURY AND
1
PERSONAL PROPERTY
22
NUMBER PAID
$3081.00
AMOUNT PAID
82
NUMBER DENIED
87
NUMBER PENDING
o
NUMBER OVERDUE
20
AVERAGE PROCESSING TIME

FOI/PA
87
71
17
17

NUMBER RECEIVED
NUMBER CLOSED
NUMBER PENDING
TOTAL NUMBER OVERDUE
NUMBER OVERDUE 30 DAYS
NUMBER OF CIVIL ACTIONS

2
1

ouarterly comparison
TORT CLAIMS/EMPLOYEE CLAIMS
SER
1STOTR
2ND OTR
3RD OTR
4TH OTR

NUM
159
115
127

PROP
32
97
99

PI
22
15
26

APPR
44
28
22

AMT
3287
3363
3081

DEN
91
119
82

PEND
169
98
87

00
20
7
0

AlO
35
104

_._.

AlP
79
43
20

LlTICATION

I SER

I NUM I=:H[]

FTC

I BIV

10TH

I ANS I PEN I CLD I HIT I SET

: AWD

I
I

I
I

1STaTR
2ND aTR
3RD aTR
4TH aTR

11
31
23

36
67
43

5
7
4

10
16
10

36
60
30

10
12
6

699
722
726

37
44
39

FOI/PA
SER
1STaTR
2ND aTR
3RD aTR
4TH aTR

NUM
86
87
61
87

PROC
123
71
69
83

PEND
01
17
02
04

00

01
17
02
04

AlOD
02
02
02
02

AlP
30
30
30
30

CA
?
?
1
?

other Activities
Miscellaneous Activities
Travel:
Sherree Sturgis - April 7 - 11; New York City, New York to participate in Legal
Management review at MCC New York. cost 51,376.12
Sherree Sturgis - May 12 -15; Staff Assistance at MDC, Guaynabo, puerto,
Rico.. Cost 51,155.32.
Sherree Sturgis - May 1 • 2; Staff Assistance at MCC, Miami, Florida. Cost
5464.92.
Sherree Sturgis - June 29 • July 3; EEO Trial in Jesup, Georgia. Cost 5490.00.
Van vandivier - May 19 - 23; Training, washington, D.C., Tort Claim course for
Counsel. Cost 5951.51.
Earl Cotton - April 27 - May 9; Glynco, Georgia to attend trial of Cohen v.
united States. Cost 5488.97.
Mildred perryman - April 27 - May 9; to Denver, Colorado to attend Paralegal
training. Cost 51,366.47.
Marty Parker - April 27 - May 9; to Denver, Colorado to attenf ParalegJI
training. Cost 51,313.95.
Personnel Moves
Ajay Gohil - selected as the summer intern for the Southeast ReglonJI
counsel's Office. Starting date: June 23,1997.

· SOUTH CENTRAL REGIONAL OFFICE
NARRATIVES
·APRIL 1, 1997· JUNE :SO, 1997
SIGNIFICANT CASES
Guadalupe Martinez v. Janet Reno. et aI., 3:97-CV·0813
(NDfTX)
An employee from FCI Seagoville has brought an EEO action against
the Bureau of Prisons and the Department of Justice and alleges
that the BOP has discriminated against him based on his ethnic
origin. He claims that his performance appraisals were unjust
and inaccurate and that he was subjected to conditions (such as a
photo lineup) that other employees were not subjected to solely
because of his race.
Ronald Faldyn v. Lester Fleming, A-96-CA-0526-SS (WOrrX)
A final order was entered for the BOP defendants. Case is
significant because the issue was crime of violence determination
under 3621(e). The district affirmed the Bureau's discretion in
defining crimes of violence
Terise Ahr v. Reno
This FPC Bryan case revolves around an assertion that the Bureau
did not meet the proviSions of a settlement agreement in an EEO
case. In fact, we did not provide back pay within the 30 days
specified, but did within about 45 days in 1994 Plaintiff
raises numerous other complaints. which the AUSA argues are
independent issues which have not been exhausted
administratively.
Kevin Thomas Ford v. Robert Guzik, et aI., CIV-97-0233-R (WO/OK)
An FTC Oklahoma City inmate claims staff entered his cell and
struck inmate's head, arms. and hands with Folger-Adams keys and
knocked inmate into the shower Inmate seeks $750,000.00 in
compensatory damages and $750.00000 m punitive damages
ESTATE OF KENNETH MICHA:L TRENTADUE. ET AL.
V. UNITED STATES, ET AL .
CIV·97·849L (WD/OK)
Action involves death of an mmate at FTC Oklahoma City in August
1995. Inmate's family beheves staff murdered the inmate and
that Bureau of Prisons' OffiCP31s are now covering up the
incident. Plaintiff asserts both Bivens and FTCA theories.

Lemoine v. Falstead, 5:97-CV-109 (EDITX)
In this Bivens action, the inmate alleges FCI Texarkana staff
sexually harassed him to include touching. The allegations were
previously investigated by the Office of Internal Affairs and our
SIS. Both failed to substantiate the charges.
Henry v. Brady, et aI., 97-334 (WO/LA)
The suit concerns an FCI Oakdale staff member's alleged use of
force on an inmate during a routine pat search. The inmate
attempted to hamper the pat search. The inmate was placed in
restraints and escorted to the Special Housing Unit. The inmate
alleges the staff member used excessive force placing him in
restraints and during the escort to SHU.
Lee v. Fleming. A-96-CA-548-SS (WDITX)
The Court ruled on May 30. 1997. that 18 U.S.C. Section 922(9),
Possession of a Firearm by a Convicted Felon, is not in itself a
crime of violence within the meaning of 18 U.S.C. Section
924(c)(3); therefore. the Bureau could not consider the
petitioner a violent offender for the purposes of sentence
reduction pursuant to 18 US.C. Section 3621 (e)(2)(B). The AUSA
filed a motion for reconsideration and the court has denied the
sanction. The Bureau plans to seek permission to appeal.

CASES WITH HEARING OR TRIAL,
Dennis O'Neal McAnnich v Frank Woods. et al. C·96-132 (SDITX)
A hearing was held on Apnl 15. 1997. regarding derendant's
motion to dismiss. Defendants argued servIce by mail did not
give court jurisdiction over defendants In their indiVidual
capacities. Defendants requested personal service pursuant to
Rule 4(e). Defendants clalrned perso., who SIgned the return
receipt cards was unauthOrized to receive their mail. Court
disagreed 3rt' o::ite:: Tex:J~ law whlr:h :l(Ovldes for service by mail.
Court found service to be proper and denied motion to dismiss
The court ordered U.S. Atlornev's Office and Attorney General of
the U.S. to receive servIce
Banks v. USA. A-95-CA-292-J'\I cWOITX)
A hearing was held on April 13. 1997. In Austin regarding the
plaintiffs motion for disbursement of funds from the court to
pay for expert witnesses The magistrate recommended that all
parties agree to a bifurcaled tnal Since both expert witnesses'

testimonies pertain to damages. nolliability. The court will
then hold in abeyance the motion until after the liability phase
of the trial. If the U.S. is nolliable. the proceedings will go
no further, and the issue will be mooted. Both sides readily
assented.
Demarey v. Franco, EP-96-CA-238H (WDfTX)
An evidentiary hearing was held to determine whether due process
was given prior to the inmate's administrative detention.
On May 6. 1997, inmate Ronnie D. Boyd was given a detention
hearing for the misdemeanor assault of Acting Captain Marcus
Fernandez, w'1ich occurred dUring the December disturbance.
Mr. Fernandez was assaulted when inmale Boyd threw urine and
feces on him. The detention hearing was necessary as Boyd was
released on May 5,1997. via GCT release. The Court ordered Boyd
held without bond due to the danger he posed to the community.
Jean May Chessor had a commitmenl hearing at FMC Carswell under
18 U.S.C. 4246, The Judge committed the inmate for
hospitalization
On May 29, 1997, a hearinJ was held in a Dallas circuit court
regarding issues acout a Seagoville staff member's appearance in
a capital murder case in Kansas City, Missouri. The state Judge
held that the appearance was not required because a video
deposition could be laken In hel: of hiS appearance. We raised
objections under tha Touh\, regUlations. A video deposition was
taken on the same date
Ahr v. Ren~l.m. . 43-9~2·272 (SDfTX)
FPC Bryan reports that a Scheduling Conference was held in this
EEO civil action, The case was continued for 200 days 10 order
to provide Petitioner an op:.:lortunity 10 exhaust administrative
remedies regarding her as!'ert'on she was retaliated against by
staff at FMC Fort Werth. She states she went for an interview
for a teaching position and was allegedly queried about her
experiences at FPC Bryan and whether she planned to have another
baby (the Subject of ner IOlIlal EEO com:>lalntl We were ordered
to prOVide Petitioner "blank forms" to file her retaliation
complaint. and there has been some confusion regarding what forms
are necessary to initiate an EEO complaint. We were also ordered
to provide Petitioner with a "table of organlzahon" of the EEO
office in the '3ureau of Prisons as Pehtloner asserts a
"bureaucratic runaround" Ir her efforts to seek compliance with
the August 1994 se~lement agreement Both the court and the
AUSA do not seen- pleasel1 w!ttlthe way Petlhoner's EEO issues
were passed from·')€rson :0 person between 1994 and 1996

On June 19.1997. a TRO heanng was held by Judge McBryde on the
matter of Jimmy Lee Rebman v. USA. et al. Mr. Rebman is an
inmate at FMC Fort Worth seeking mandamus/injunctive relief
relevant to an cornea transplant. Judge McBryde ordered the
government to meet with plaintiffs attorney the following day
with a plan of action or schedule for the cornea transplant. A
cornea transplant was scheduled to take place within two weeks.
with a follow-up cataract surgery once the transplant surgery
site heals.
State of Missouri v. Dennis W. Clark. CR·49586F. SCRO Attorney
attended a hearing where the Missouri Public Defender sought to
compel the testimony of an employee at FCI Seagoville in a state
court trial. T"e state court's subpoena was filed with a Dallas
County Court. We contested the motion under 28 C.F.R.
§ 16.22 et s~. The Public Defender's motion was denied.
However. a dellosition was allowed.
On June 27. 1997 FCC Beaumont legal staff attended a Treaty
Transfer Consent Hearing before MagIstrate Judge Radford.
E.D.Tex.. for inmate GUTIERREZ-LARA. Jorge. The U.S. Attorney's
Office requested the L.egal Depanment's assistance insofar as the
inmate will be produced for the hearing and the format is unknown
to the AUSA

MEDICAL MALP.RAt.TICE
LlTICATION
Jose Ramirez." Jo~ Agulrr~...&&. EP-97-CA·002H (WDITX)
In this Bivens action. an inmate With a coronary condition from
FPC EI Paso alleges th'3t ~t:3ff ('Isolayed deliberate indifference
to his serious medical neeas

TORTS
John Henry 'jopsy filed ten claim T-SCR-96-445 seeking
$750.000.('0 Topsy claimed thattne Bureau was negligent in
treating his dizziness after falls he said occurred in 1995 while
at FCI Bastrop ann rln unn31ned transfer facility. The claim was
denied.
Eric Michael Lawrence file~ tort claim T-SCR-4 70 seeking $60.000.
Lawrence cl;:;mneC' that the Bureau was negligent In treating hiS
diabetes because he received hiS Insulin as long as two hours
later in the day on weekends than on weekdays. and because blood
sugar levels were not consl~tenlly tested on weekends at FMC Fort
Worth. Th~ ~1;:IInl V'~S cip.nJ..-cj

FCI Texarkana inmate Juan Carlos Rodriguez-Gonzalez requests
$150.000.00 for persona; Injury. He alleges that medical staff
at FCI Texarkana misdiagnosed and mistreated his eyes. He
asserts further malpractice :Jy their referral to doctors in the
community. Specifically. he states laser photocoagulation of his
eyes was not performed properly resulting in eye injury.
(T-SCR-97-155)
Inmate Charles McMeans ::ontends that the medical staff at FMC
Fort Worth hav~ denied him hip replacement surgery.
Mr. McMeans states that he needs hip replacement surgery due to a
fall he suffered at Fel Bastrop on the basketball court. and most
recently in the dini~g hall a! FMC Fort Worth. Both
Mr. McMeans and his wife. Veronica McMeans. previously filed
separate a:iministrative to~ claims for damages they alleged were
caused when Mr lI~cMeans fell on the basketball court at FCI
Bastrop. Botl'l claims were denied. He currently seeks
$1.500.00C.OO in damages. (T-SCR-97-217)
RODRIGUEZ-GONZALEZ Juan - Mr. Rodriguez-Gonzalez alleges that
during February 1996. l1'e(llcal staff at FCI Texarkana misdiagnosed
and performf!d negligent treatment to his eyes. He contends that
laser photoco~gulaticn on hIS eves was not performed properly and
as a result he has susta'ned permanent damage to his eyes. He
seeks $150.000.00 In damages Mr. Rodriguez-Gonzales was
released or Nl3Y 5. 1997. to INS custody in Callas. Texas.
(T-SCR-97- 1 55)
ESTUPINAN-'/l\SOUEZ Emert· Inmate at FCr La Tuna contends that in
1994 he inju~ed his ankle w.,ile playing soccer and was advised by
staff that i~ was okay However. In 1935. he states he began to
experience mere 0;1;'1 and "otlc~d muscle loss. Alleges negligence
for not prOvldm!l mndlcal trE'atment for his Achilles tendon.
Seeks $500.0000"
Investigatlcr r','/€.;Ii,d inIT,ate wa! evaluated for a fracture with
negative resll!15 shOrTly ;:l:'ter the InJurv A consultation was
requested 0., .!l.oe ~ 7. 1994. but the Inmate was not evaluated by a
specialist until Novembe: 1994. at which time it was determined
that the inmate had suffereo 3 ruptured Achilles tendon.
Mr. Estupir.an· ' /3sque.'.: wac; evaluated on multiple occasions. On
September 1. 1994. he wa!' Inslructed to not run or Jump until
evaluated by speC:I~Ii')t at wnlch lime Mr. Estuplnan-Vasquez
declined to 1I!'~ a (;ane. n'10 slated that he did nol reed it
There is a hlsto;y of ankle l..'·aln dating back t 1992, and the
medical recorc md,cates that Mr Estupu1an·Vasquez relnjured the
same anklE:': wi' I€" lo,:.,yin(, ",'ccer In Maj 1995 In May 1995. he was
treated for an inJII'Y to thO' I~~ leg. which he reported to have
injured playing :.oc:::er a ':ovple of aavs before

Institution ar.d Regional mejical staff acknowledge that there was
a delay in diagnosing the rupture: however. there is no
indication that ~he delay caused any damage.
WOODS. CAROLYN - Ms Woods is presenting a claim on behalf of
Audrey M. Woods. f\;athanlel Woods. and herself. Ms. Woods. an
inmate at FMC Carswell. alleges that staff at FMC Carswell failed
to provide her mother. Inmate Elizabeth Scallion. emergency
medical care when she suffered a cardiac arrest on November 8,
1~96. Ms. Woods further claims that staff prevented a "licensed
inmate paramedic" from providing life saving techniques. The
claim is being rejected because Ms. Woods did not meet the
requirements of Title 28 (;F R 14.3 for a wrongful death claim.
(T-SCR-97-178)
JAMIESON. t&a· ;;IlIeg~s she has a history of bladder and kidney
troubles and is ;3l1erqic to slJlfa/sulfer. However. the staff at
FTC Oklahoma City-nrescri~ed Bactr.um. which is a sulfa-based
medication. Inmate claim5 her Gondillon has worsened and she is
in pain and cti~t::omfort Inmate seeks S50.000 in compensation.
(T-SCR-97- -:89)
FTC Oklahoma City inmate John Rohrbach. claims that while he was
cleaning the stain/€ss stefl i:'\ F~oc Service. chemicals got
in his eye and that medical care was delayed. Inmate seeks
$15.000 in compensation (T-SCR-97-176)
FANTROY ~i~bar<1 - allegp.5 at FMC Fort Worth he was given the
wrong mediC:::ltlon. wrllch h~c; resulted In emotional distress and
inability to digest trloo proof!rly He claims personal injury in
the amount of :)5(1I~.(IOO Investigation pending.
(T-SCR-97-:4\

A claim has b~l?r- f e~ on or;half of a I":1lnor named Riberto Ebelio
Lopez, who is the son of Rlchardo Lopez. Riberto Lopez was
killed by a i3~P es,=c.pee All')ert YC;Jng. who was incarcerated at a
facility under tile Cor"mur',I-; Ccrrectlofls Office 10 New Orleans.
Louisiana. ' h~ rrilIC/S "",,-"'er iled a tort claim seeking damages
for the wro:,\~ltL ~ el' ill.;> :); 1-'<. fattIer and the loss of support and
companionsh·p. The clalOl mlr~ors an earlier filed claim by the
daughter of deceased Lopez She IS seeking $500.000.00.
(T.NER·97-82)
Update from cur Fecruary r-=pon pertaining 10 a claim filed by
Norma CartH IT-~CR.9i-?3\ The Clinical Direclor reveals some
concern re!lt3rcll11g the n'JMI)~r of days which elapsed between the
time when Clc'l.'n:3f1t :')re!'\en'~d t:> the medical slaff with symptoms

indicative of a perire:tal abs,:ess and the time when appropriate
treatment was prov:ced. Tile Clinical Director at FPC Bryan feels
that we may ~.ave been InJrdinately slow in responding to and
recognizing whal the record seems to clearly indicate to have
been a serious medical condition complicated by diabetes. We may
ask that a higher level inquIry be conciucted in this case
(perhaps by an MD from the Ce"tral Office or a BOP Medical Center
other than Carswel! since t"ey provided treatment to this inmate
as well). The matter has been referred to OOM
An administrative claim has been submitted by a company named
Leaseall. Inc """,e clai'"' I~ o;igned by Sandy Carr, Manager for
Leaseall. Inc. ard she st?t?S that the,r truck was damaged when
a vendor was tjrivi"'q It-e tr'.lr:k out of Gate 1 at FCC Beaumont and
the gate was "lased cn tne Ir..lck There is nothing with the
claim to inoicate thaI the mCldent occurred. or Ms. Carr's
authority to make t"e claIm (T·SCR-97-134)
On May 6.1937 s'..,f(ve;lll:::;:S J)arked in the parking lot at FTC
Oklahoma City Wp'r~ darr.3~~d when Facilities staff and inmates were
spraying paint on the base:Jall backstop fence. To date. we have
received 62 clrllms ra"g'n~ from $100.00 to $2.000.00. As
reported bV 'Narden GU7.lk. !here IS some Indication that
apprOXimately 180 'l"tl:C e~ !;Ustrllned some type 0' damage.
Inmate VernOI) i~ay Rob!!rt!)>)n :11 FTC Oklahoma City alleges staff
were neghgent in f3i l lrp to orOle"t him from a state prisoner
whom the BOP knnw wa~ vaoler1 Inmate claimed he was assaulted
and sustained numerous inJuries. including a broken hand and a
crooked firg",' because j' W"'IS nOI set J:roperly Inmate Robertson
seeks $300.0ljO 00 'n co:r p'lr'so"
The SCRO offp.rp.o seltle~'e'l to D?vld Nolle, a Texarkana employee.
in the amour.l!)f ~'. P31::1 ";1 '"\1 lInmage sustained to Mr Nolte's
pickup, wh'c, \";' s sl' K!< ". il' ,msecllred barner gate The sum
certain is ill II-,e amc.;nt of ;; 1.9<.249
(T·SCR·97-17.~

Abdul Moha:n;'1 ~d h<lhQ 01 F- tv1C Fcn "vorth alleges he slipped and
fell on a wei floor A1legFI!" tt"'ere VlE-'f' no Signs posted
warning of the 'Alet f,oor A-; are's Jlt of hiS fal:. he alleges he
broke his b~'~': (131 1 ,S "f ~(milllnlury In the amount of
$1.500.000 I.wcs:.gatlon _.!r',o,ng CT -SCR·97-112)
Inmate John ~11:~ '(\c?::h ell r-.s tit> \V~,; cleaning stainless steel when
the chemicalS (m: In t'IS 1:"1',. il(1,11h;.: nn couldn't Vlash
his eyes t~C;;I·~:P. II :l~ no . '··t~'" dsn 1"a:lon had "bOIling" hot
water. Thls:~ :i work·relat,:u In:ury aile falls under Demko.
except the IOmal.:: .~Iso allt:~·~s lJ~lay Ir. receiving medical
treatment "'111.;1.,. ';?~!\s ~ • : f)(l.] 00 1'1 compensat'on
(T-SCR·97.17I3}

Inmate Vernon Ray Robertson alleges staff were negligent in
Inmate Vernon Ray Robenson alleges staff were negligent in
failing to protect him from a state prisoner whom the BOP
allegedly knew was violent. Inmate claimed he was assaulted and
sustained numer·JUS injuries. including a broken hand and a
crooked finger Decat.se Ii was not set properly. Inmate
Robertson seei<s ~300.00000 in compensation. (T-BOP-97-15)
Wali Muhammed. an Inmate housed at FMC Fort Worth. alleges that
he is being depri'Jej of fUf'lctional electrical stimulation therapy
and other medical treatments for his paralysis. He contends that
he has comr.1p.tp.d t.,e BlIre~tj of Prisons 500 hour drug program. but
has been deOle1 the olle yp.3r release because of a firearms
conviction. Th::s. I"p. t;!airns tI'Je denial of medical care.
Mr. Muhammed r,ont~nd!l that the stimulation therapy will allow him
to regain h:s <10':ily to wa'it. Mr. Muhammed seeks $5.000.000.00
for neglect t:1f"'lt::>! ::trquisr ane emotIOnal distress.
(T-SCR-97 _]1 f,)
SIGNIFICAN.I.,Ar;"-MlNl~T.R~DVEREMEDIES

An FCI Big Sprin9 in'Tl"lte. Ed£2r Fuller. filed an administrative
remedy cillnfl viol:nior'lC: 0f the RFRA. He alleges the Chaplain
denied him c:c:(:"!s~ to t"'e c.h:lpel did not allow him to pray. teach
or testify: and denil';!1 rim '\"Ie rlrht 10 offer communion. The
Chaplain dOCll'TlP....l'?d e~~n mectu1g With mmate Fuller with copious
notes. Repr,?!;p,nltHl'/es rr·~rn Ih'~ Pen!ecostal churcn visit the
institution mQ"~n.y 'lno ofer communion Communion is also
offered ten tUlles each mon:n. and the Chaplains offered to give
him commun,on In their offices ·..,henever he felt communion was
necessary '~'I: ('I ..' ";1' '. =If': ,)If.;Ir-d to C'ttempt to have
representati\'e~ flom Ihe f'entecostal church ceme more often.
Inmate Fulle- ,rc;.st~d I",s \'. ClS nol suffiCient to meet his needs.
Fuller behev;>~ Ir~ :,eE"j~ ".'1. only be 'llet once he IS permitted
to conduct h'!) n",,~ f.'~'V'':f'' a~c re IS allowed to oHer communion
to his inmate ~'r(lJI: 1I1r;"'c! e hll 'P'~ has adVised the Chaplain that
he was a /TI"!~l","' .:>' the ,;.,:rg~' (lr ('I It) commg to prison. The
administral;"~ .~ nfl'V W:~: ::en:ed at the inslitullonailevei.
Inmate Fullei ',25 pr0i1ISe~1 :Ive.~' 1II,gallon on this issue. On
April 12. 1997 Chapl;:"., V Irqhl wrote an Incident report against
Fuller for Ref~,~irg It') Ohp.v ='Ill Order ny conducting church
services wltr.c I. I )~-r.'
1 h,s ·....cldent -eport was informally
resolved tl'l tt~;! CI-;m:fln

."S,.

RELICIOUS~~~I;j)OM

RESTORATION ACT

L1TICATION
James v.

S~lIS~

£'5-27:)7 :WD,LA)

The inmate. a Nawe Amellcan. alleges the Warden took a blue
colored headband and a red colored headband from him. The
inmate alleges the color~d headbands were sacred. and he needed
them for religious purpos~s. No defendants have been served in
this case

ADMINISTRAl ,\IE: ReMalY
OTHER
A home-confinement mr.late. David Bishop. alleged constitutional
violations wh"!l" tt)~ BOP w'Juld nol allow him to leave home
frequently to ~C'~(!u~1 fiel::J witnessing The inmate claimed
that field witnessi'1g \\'a~ pr, essential tenet of his Delief as a
Jehovah'~ 'Nilness SCP.) dlt;' nC'1 have to respond to this issue
because the inmate sUbsequEmtly made threats of assault on a
staff memt-':lr ~'1,= .,,~c; rp\wne'lto fu'l custody.
Inmate \fI/II"~"1 Mills recel\to:?d Cin incident report for refusing
to obe~ an crder us he refL;sed to be housed with an African
American inmate Dunng the investigation and UDC. the inmate
failed to rtW;;~ ?oil" re":;W:·'."· iS5des The Inmate has filed a
BP-9 citing ,"i~ rp.!ighlJs hphefr: are of a white separatist
nature and hI'! C8'1 r.ot !;It:. a:JClinst his beliefs He lequests the
incident rpr0rt t'lP. expul1g<=>rj Sentry mdlcates religious
preferenr.e :l~ t\lat~vec\l'IF~IC'1I1 Inrrate claims his religiOUS
preferencp. ('.l'; f:lr~';"e!ho,=,rj I)' 're VillI! wh:ch IS not a BOP
recogmz':!1 rel:oiol1

ENSIGN

F.\!\~j,;~PM~ltr

LlTICiATI n~
Milford TCH1\..Y. M.!'~"1~' ~·t1:d'·.!'J ..~'., CA-C-97-229. SDfTX
Inmate at F..; :l! I~.> PI"'" ~ ali~gp.s 'us va-Ious nghts have been
8 r -\'~ I 'lO.~nl~ntallon of the EnSign
Amendmp.nl hl·';~'Jse sl.. rt re'ected tnree magazines Plaintiff
challenges!J c: lor :"UIl !. I,:ndt:lent as o\'erly broad In defining
terms. UI.(.):'",:':',I.\ tr.all. '. ~ .. l'. 3nd against hiS First and
Fourteen' I r :·r.l~··;-! .~Ilts
violated/d~;l"~(' (J':(: II~

Harrell v. Hawkir.5jHawr.',. C!V-97-48·A (WD/OK)
(Update - ;:he case was clIginally reported last quarter) We
have received ~ f.='·Jorable Report and Recommendation from the
magistrate juog=. A similarly favorable ruling is expected.

TORTS
Inmate Kenneth lmn, FCI Seagoville. conlends that as a result
of the Ensign Amendment he VIas no longer allowed to have
sexually explicit materials: therefore. his publications were
not forwarr.'~d to hs r~nllested location during the authorized
time frame. He Claims oamagE!S of $13.90 due to BOP negligence.

LITIGATION
LOC
MXR
NER
SBR
NCR
'SCR
WXR
CO
TOT

HC

NUN

FTC

BIV

OTH

ANS

PEN

CLD

HIT

SET

AWD

6

17

3

60

171

40

10

0

0

I

I

66

-

140

,

I

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

- LOCATION
- NUMBER OF TOTAL LA WSUITS FILED IN QUARTER
- NUMBER OF HABEAS CORPUS ACTIONS FILED
- NUMBER OF FTCA ACTIONS FILED
- NUMBER OF BiVENS ACTIONS FILED
- OTHER ACTIONS FILED
- Nl'l\1BER Of LITIGATION REPORTS COMPLETED
- PENDING
- t\UMBER Of ACTIONS CLOSED
- ~·llM?·ER ~~..: HEARINGS OR TRIALS (INCLUDE INFO IN NARRATIVE)
- ~·'UYS::'R C': SETTLEMENTS (INCLUDE INFO IN NARRATIVE)
- Nr':\1E,ER O~ AWARDS (INCLUDE INFO IN NARRATIVE)
GOVERNME~lT ACTION AND DATE OF ACTION - (INCLUDE INFO IN NARRATIVE)

Tort Claims Third Quarter - FY 97 (April 01. ]997 - June 30. 1997)
pppi wd
med set
amt pen den
loc
num pp i pi
]
9
]82 147 I 18
6
3084
221
60
20
scr

Num
PP
P]
PPP]
WD
Med
Set
Amt
Pen
Den
OD
A/O
A/P

- Numher of claims tiled
- Personal Property claims
- Personal Injury claims
- Both PP & PI claims
- Wrongful death claims
- Medical claims
- Settled/Approved claims
- Amount paid
- Pending10pen claims
- Number of claims Denied
- Number of claims Overdue
- A\'g number of days Overdue
- Avg number of days to Process

(Med = PIM -+- WOM + PPPIM + PPWDM)
(WD = WD + PP\VD)

od
0

alo

alp

0

124

 

 

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