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Usdoj Fbop Memo Re Quarterly Rep Apr 1 97 Thru June 30 97 1997

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UNITED STATES GOVERNMENT

memorandum
Date: July 17,

1997

Reply to Henry J. Sadowski, Regional Counsel ,Northeast· Region
Attn of: Federal Bureau of Prisons, Philadelphia, Pa. 19106

Subject: Quarterly Report - April 1, 1997 through June 30, 1997
To:

Wallace H. Cheney, General Counsel and

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

Attached are the statistics requested for the quarterly report for the third quarter
of FY 1997.
The following is a synopsis of the significant cases in litigation during the quarter:

A. SETTLEMENTS AND AWARDS
1. Hammed v. United States, CV-95-10306 (S.D.N.Y.)-In this Federal Tort
Claims Act complaint, former inmate Ali Hammed. 03822-070, alleged that FCI
Otisville lost his property on an institution transfer. Inmate requested $180 In
damages. The major issue was the evaluation of the property. Case settled for
$120.
2. Dennie v. Teague. Civ. No. 96-CV-634 (N.D.N.Y.) - Inmate Akali Dennie.
11762-014, filed Bivens case alleging failure to protect him from assault by
another inmate while at FCI Ray Brook. Our records show placement of Dennie
into SHU cell with inmate who assaulted him the night before. Due to possible
exposure, we agreed to convert into FTCA case and settle for $5000.00
3. Mulligan v. United States, Civ. No. 96-7796 (E.D.Pa.) - Inmate FrancIs
Mulligan. Reg. No. 31580-066. filed FTCA case alleging that while at FCI
Schuylkill, he slipped and fell on three separate occasions due to staff
negligence in maintaining a

-2-

clear sidewalk. He further alleges that as a result of the falls, one of his
pacemaker wire leads was torn from his heart, which required surgical repair.
Our medical expert confirmed that the fall may have caused the wire to separate.
As a result of a number of factors, it was agreed to settle the case for $4.000.00.
4. Curtis v. United States. 96-4240 (E.D.PA..)- 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.

B. SIGNIFICANT DECISIONS. HEARINGS OR TRIALS
1. Colon v. Menifee, Appeal No. 96-7588 (3d Cir.) - Oral argument was heard
before the Third Circuit on May 9, 1997 in our appeal from the grant of a habeas
corpus petition by Judge Muir in 4:CV-96-0807 (M.D.Pa. June 28. 1996).
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). Judge Muir 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. Hank
Sadowski assisted the AUSA. To date, no decision has been issued.
2. Roussos v. Menifee. No. 97-7011 (3d Cir.) - On July 8, 1997. the Third Circuit
heard oral argument in another 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). He was found so because of a two
point enhancement for a firearm in connection with a drug offense. On
November 27,1996. Judge McClure denied the petition and upheld the BOP
interpretation. (Judge McClure later overruled himself in another petition on the
same issue.) The inmate appealed to the Third Circuit. This case was argued
by the same AUSA who argued the above Colon case. Hank Sadowski assisted
the AUSA. The oral argument was not as focused as the Colon argument The
court asked a number of questions concerning the Downey decision from the 9th
Circuit. The court also asked questions about Third Circuit law which found mere
possession of a firearm is not a crime of violence. The court reserved ruling
-3-

3. Pollard v. Secor, et. al. 95 Civ. 5599 (E.D.Pa.) - Jury trial held on June 23
and 24, 1997 in the above Bivens case. Inmate Rodney Pollard. Reg. No

14640-050, alleged that while he was at FCI Schuylkill he was improperly placed
in administrative detention and then transferred as a result of the practice of his
religion. Defendants' Motion for Summary Judgement was denied. At 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. Jay
Furtick assisted the AUSA.
4. Gibbons v. United States, CV-95-4654 (S.D.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 NY. The inmate claimed that he was using a piece of equipment when it
disengaged, striking him. After the trial, the court requested additional briefing
on the duty of the United States to instruct the inmates on the operation of the
equipment. Plaintiff sought $300,000 in damages. The court recently ruled in
favor of the United States.
5. 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
federal 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. After review of some information, the Judge stated he did not want to
get involved in the details of the defendant's medical care. Based upon the
court's suggestion. the parties held a meeting to resolve the dispute.
6. United States v. Papagni, 95-CR-31 (E.D.N.Y.) - On April 8, 1997. Judge
Frederic Block issued an order to show cause to determine whether the United
States Attorney's office must obtain all phone tapes made by a Witsec Inmate.
who is a scheduled witness in this case. The court entered an order requIring
the

-4-

Bureau to preserve all phone tapes pending a hearing. On April 17. 1997 a
hearing was held in which Hank Sadowski and Craig Trout assisted the AUSA
The AUSA submitted a motion to vacate the preservation order supported by an
excellent brief (with exhibits) which focused the court on whether BOP phone
tapes can be deemed to be in the possession of the prosecution. The court
allowed briefs to be submitted. The court held a second hearing on May 1 1997.

and modified his preservation order to require the institution to preserve
recordings for certain numbers. No conclusive ruling has yet resulted.
7. United States v. Felipe. 94 GR 395 (S.D.N.Y.) - On April 16. 1997. JUdge
Martin held a hearing addressing whether restrictions on confinement he
imposed on a sentence for Luis Felipe. 14067-074. were within his authority.
The AUSA argued that. under the facts of this case. the court had the authority to
impose restrictions under 18 U.S.C. § 3582(d). Felipe is the leader of the Latin
Kings and the evidence before the court showed that Felipe had ordered
murders while in pretrial detention. Defense counsel stressed the
unprecedented nature of the restrictions. On April 29, 1997. the court issued an
opinion upholding the restrictions under § 3582(d). In dicta the court also opined
that it had the inherent authority to order such restrictions. The order is now on
appeal.
8. United States v. Rosario. Grim. No. ----- (S.D. N.Y.) - Inmate David Rosario.
39665-054, arrived at MGG NY on January 23. 1997 to face prosecution of
federal racketeering charges. Rosario arrived from New York state custody.
where he was serving a forty year plus life sentence. He was placed in
administrative detention as MCG NY deemed him to be a high security risk and
pending classification. The inmate had separatees and MGG had heard (without
documentary confirmation) that the inmate had an
extensive disciplinary record in the state. Judge Keenan (the criminal trial judge)
held a hearing on April 7. 1997 to address complaints from defense counsel
concerning this placement. Alma Lopez represented the Bureau. Judge Keenan
expressed concern that the inmate had been in AD since January 1997 and the
MCC still had not receive documentation from the state concerning his
disciplinary problems. The court asked the AUSA to submit a
report by April 19. 1997 setting forth whether the MCG will continue to house the
inmate in AD. The inmate was removed from AD on April 12. 1997.

-5-

9. United States v. Shapiro, Grim. No. 96-1019 (E.D.N.Y.) - On April 1. 1997.
JUdge Block held a hearing addressing complaints made by inmate Robert
Shapiro (a.k.a. Robert Weldon). 43063-053, regarding access to a law library
The inmate is serving a federal sentence and was brought back via Writ to face
federal charges of attempting escape and forging a Judgment & Commitment
order. Azzmeiah Vazquez represented the Bureau at the hearing The Inmate
demanded more access to law library. access to a fax machine. and access to a
copy machine. Azzmeiah was able to show that the inmate requested access to
the law library only three times in the last three months. She also went over the
inmate's commissary account to show he was able to afford copies The court
advised the inmate of the difficulties of appearing pro se. The court stated that It

was not going to ask the MOC to change policy solely because the inmate
refused appointed counsel.
10. United States v. Coffey, Cr. 94-282 (0. Nevada) - On April 8, 1997, U.S.
District Judge Pro held a hearing via telephone concerning the 18 month federal
sentence he imposed on inmate John Alexander Coffey, 30281-048 on July 28,
1995. The issue was whether the federal sentence was to run concurrently with
a state term. The inmate had been in the primary custodial jurisdiction of
Arizona state authorities. The inmate was taken to federal court via writ and
received the 18 month federal sentence prior to the imposition of the state
sentence. The Judgement and Commitment Order did not reference the state
sentence. The inmate was returned to state custody and was sentenced to a
term of about 2% years. He completed service of this state sentence on or about
December 9, 1996. The inmate was designated to FCI Fort Dix. The federal
sentence was computed to be consecutive to the state since the Federal
Judgement and Commitment Order was silent concerning the federal judge's
intention. In the hearing, Judge Pro stated for the record that his intention was
that his federal sentence was to be served concurrently. Since the court's
intention was now clear, the jUdge was advised that we would recompute his
federal sentence to run concurrently with the state. On the telephone for this
hearing, at the Judge's request, were Warden Hurley, FCI Fort Dix. Harlan Penn,
WRO, Hank Sadowski, NER, and the inmate.
11. United States v. M.S., Cr. No. --- (E.D.N.Y.) - On April 24, 1997, we learned
that the court was presented with a proposed order to direct MDC Brooklyn to
accept 17 year old juvenile, M.S. Azzmeiah Vazquez tracked down the AUSA.
who advised the court
-6-

that the Bureau of Prisons needed to be heard before the order was Signed At
about 6:00 pm, the court had an emergency hearing at which the AUSA advised
the court of the statute requiring segregation of juveniles and the practical
problems for housing him at the MDC. The court decided not to sign the order
placing the juvenile in MOC.
12. United States v. Simone.Cr.No.92-35-01 (E.D.Pa.) - On June 9.1997. a
hearing was held concerning the status of inmate Robert F. Simone. Reg No
33980-066. Inmate Simone, a former attorney from Philadelphia. was moved
from a halfway house, as a program failure, to FCI Fairton and was sr.hprllllprl to
be returned to FPC Nellis (later changed to FPC Schuylkill). His attorney filed a
motion to preclude his transfer, which motion was granted by JUdge Dalzell. the
sentencing jUdge. The inmate, who formerly represented some organized crime
members now housed at Fel Fairton, was placed into administrative detention
His attorney alleged retaliation (as well as failure to give medications) At the

hearing. the Judge gave both sides an opportunity to reach an agreement and it
was decided that the Plaintiff would be transferred to FPC Schuylkill the next
day, via one day furlough. Hank Sadowski represented the Bureau.
13. United States v. Zachariades, E.D.N.Y. - On June 17,1997, a hearing was
held before U.S. District Judge Dearie regarding a subpoena issued by defense
counsel concerning the production. the next day, of 75 telephone tapes of calls
placed by inmate Constantine Zachariades, Reg. No. 45658-053. As the case
was currently in trial. and the judge requested an expedited resolution, a
schedule agreeable to all parties was reached. MDC Brooklyn attorney
Azzemiah Vazquez assisted at the hearing.
14. United States v. Wells, Cr. No. ---- (S.D.N.Y.) - On June 4. 1997, a hearing
was held before Magistrate Judge Grubin concerning the medical care being
provided to inmate Priscilla Wells. Reg. No. 40358-054. After hearing from MCC
NY attorney Dominique Raia, the Court stated that the medical treatment the
inmate was receiving was adequate.
15. United States v. Pappas. CR-95-0368 (S.D.N.Y.) - On June 5, 1997. MCC
NY physician Dr. Glover was subpoenaed to testify concerning the current
medical status of inmate Dennis Pappas. Reg. No. 45783-053. Dr. Glover stated
that the inmate was ill but was capable to stand trial. Dominique Raia assisted.
-7-

16. U.S. v. Barrios. 95 CR 524 (S.D.N.Y.) - On May 1. 1997, inmate Joe Barrios.
37320-054. appeared before Judge Stanton for sentencing under the influence of
heroin and cocaine. Sentencing was canceled and the Judge requested an
explanation as to how this could occur since the defendant was in the custody of
BOP. MCC NY Attorney Dominique Raia attended a hearing that day. The
warden submitted a letter responding to the Court's concerns. On May 23. 1997.
JUdge Stanton sent a letter to the Warden thanking him for the thoughtful and
thorough letter.
17. U.S. v. Salvatore Brunetti, (D.N.J.) - On May 8,1997, FCI Fairton attorney
Bobbie Truman and Chief Psychologist attended sentencing for pretrial detainee
Salvatore Brunetti. Reg. No. 07781-062. Brunetti was requesting a downward
departure from sentencing guidelines based on mental instability. Psychologist
was subpoenaed by defense attorney because of a report he prepared over a
year ago questioning Brunetti's stability. Psychologist testified that he feels
Brunetti duped him in the past and that Brunetti is stable. Defendant was
sentenced to forty years.
18. People of State of New York v. David Watson, - On May 13, 1997.
Azzmeiah Vazquez. Attorney Advisor at MDC Brooklyn, along with an AUSA for

the EDNY appeared before a state court judge who threatened to hold a MDC
Brooklyn staff member in contempt of court for not producing an inmate (David
Watson, Reg. No. 26104-053) pursuant to a state writ requested by the Brooklyn
District Attorney's office. During the hearing, the court was advised that the MOC
did not oppose the production of the inmate but the DA's office did not complete
the necessary paperwork (requested by the MDC prior to the hearing) to enable
the Warden to authorize the release of the inmate to state agents. The JUdge
did not hold staff in contempt and admonished the DA's office for not following
through with the necessary information.
19. Longoria v. BOP, at aI., 1:CV-97-0332 (M.D.Pa.) - Inmate

Gonzales-Longoria. Reg. No. 59761-079 filed a complaint alleging that his
telephone calls were being improperly blocked by USP Lewisburg. A telephone
conference was held on June 17. 1997, to discuss case. The magistrate judge,
the inmate, the AUSA, and USP Lewisburg attorney Michael Sullivan
participated. Magistrate Judge ordered each side to brief issue as to whether the
case should proceed as a.... Bivens case.
-8-

20. Wang v. Department of Justice, Civil No. 97-2462 (E.D.Pa.)Attorney Helen Wang filed this complaint requesting a temporary restraining
order and injunctive relief. On February 27, 1997, Attorney Wang was found in
possession of ammunition when trying to see some inmates at USP Lewisburg.
The case was referred to the FBI for criminal investigation. Her visits at USP
Lewisburg were suspended. Counsel for Attorney Wang argued that her visits to
all federal institutions have been suspended because of the investigation. The
complaint requested the court to order the Bureau to permit her access to federal
institutions. On
Aprii 25, 1997. Judge Brody held a status conference in chambers. Attorney
Wang was represented by two attorneys; the Deputy Chief of the Civil DIVISion
and Hank Sadowski represented the Bureau. The Judge recognized that the
investigation must be given sufficient time and denied the TRO. The court
scheduled a pretrial conference for September 3, 1997.
21. Starzecpyzel v. U.S.. 97 Civ 1349(S.D.N.Y.) - Attorney Stephen Roen filed
this complaint challenging the decision by the Warden at FCI Danbury to restrict
the attorney's visiting privileges for 30 days. Trying to graft this complaint to a
pending 2255 motion. Roen requested a temporary restraining order and ball for
the inmate Eileen Strazecpyzel, Reg. No. 34792-054. The attorney alleged thiS
decision interfered with the ability to represent the inmate in the 2255 motion to
vacate her sentence. On May 22.1997, Judge McKenna held a hearing Mike
Tafelski assisted the AUSA. The court ruled there was no jurisdiction to hear his
complaint concerning Fel Danbury. The Attorney then filed an administrative

appeal with the Regional Director concerning the suspension. Although
suspension was upheld, time period was reduced by seven days with the
attorney visits limited to the general visiting area to enhance staff supervision.
(Attorney was seen by staff massaging the inmate's shoulders. etc.). Attorney
has renewed the same complaint in the District of Connecticut. The Magistrate
Judge recommended the requests for TRO be denied, request for preliminary
injunction be denied, and requested defendants show cause why Plaintiffs
request to visit in "chapel room" rather than main visiting room should not be
granted. A response is expected to be filed before July 23, 1997.

-9-

C. SIGNIFICANT PENDING CASES
1. Fisher v. Goord, 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 instit,ution staff have had sex with her, some
with her consent, some without. She filed a civil rights action against 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. On July 16. 1997. the
court dismissed the complaint in an opinion of over 100 pages.
2. Palmer v. United States, CV-95-383 (M.D.Pa.) - This case was discussed in
last quarter's report. 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 Inmrltp tn
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 Mike
Sullivan assisted the AUSA. Before rUling on our motion, Judge KOSik requested
additional information. No decision has yet been rendered.
3. United States v. Hammer. 4:CR-96-239 (M.D.Pa.) - Inmate David Hammer
24507-077. has been charged with the April 1996 murder of an inmate at USP

Allenwood. The Attorney General approved seeking the death penalty should
the inmate be found guilty.
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
-10-

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
motions except the court held that clerk of court mail should be treated as
Special Mail. A motion or reconsideration was filed on May 5.
1997 and was denied on June 3, 1997.
4. Ferguson v. U.S. B.O.P.. 96 Civ 6163 (S.D. N.Y.) - Inmate Sylbourne
Ferguson, 06026-067, alleges he was physically assaulted by a staff member at
FCI Otisville. Case is significant because of DOJ's decision NOT to grant
representation to one of four BOP defendants. Although that particular
defendant's version of facts differed from the other three defendants. we
recommended private counsel be approved since, under either version. the use
of force still did not rise to level of constitutional violation (bump with chest)
Defendant had been disciplined (5 day suspension). Dispositive motions have
recently been filed for defendants represented by AUSA.

cc: Regional Director
Senior Deputy Regional Director
Deputy General Counsel
All Associate General Counsel

NORTHEAST REGIONAL OFFICE
LITIGATION QUARTERLY REPORT
FROM 04/01/1997 TO 06/30/1997

LOC
MXR
NER
SER
NCR
SCR
WXR
CO
TOT

NUM

HC

FTC

BIV

OTH

ANS

PEN

CLD

HIT

SET

AWD

63

22

11

19

10

27.

600

36

15

4

0

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)

NORTHEAST REGIONAL OFFICE
TORT CLAIM QUARTERLY REPORT
FROM 04/01/1997 TO 06/30/1997

Loc
Mxr
NER
SER
Ncr
Scr
Wxr
C.O.
Sum

Num
()

176
4
2
I
0
0
183

PI

PP

3
I

0
39
0
I

0

()

0

()

0
124

0
128

I

0
40

PPPI
0
8
0
0
0
0
0
8

WD

0
I
0
0
0
0
0
1

Med

Set

Amt

Pen

Den

OD

A/O

AlP

0
4
0
0
0
0
0
4

0
9
0
0
0
0
0
9

0
675
0
0
0
0
0
675

0
237
0

0
98
0
0
0
0
0
99

0
0
0
0
0
0
0
0

()

()

0
0

I 14

I
0
0
0
205

(I

3
28

(I

13

0

77
0
62

0

••••

NORTHEAST REGIONAL OFFICE
NORTHEAST REGIONAL OFFICE
ADMINISTRATIVE REMEDIES QUARTERLY REPORT
FROM 4/1/97 TO 6/30/97

LOC
MXR
NER
SER
NCR
SCR
WXR
TOT

NUM

DHO

SPH

MED

MH

LEG

FD

GRT

DEN

PEN

00

507

182

15

29

2

33

11

29

405

159

0

I

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

U.S. DEPARTMENT OF JUSTICE
Federal Bureau of Prisons
North Central Region
Office of Regional Counsel
Kansas City, KS 66101
July 3, 1997
MEMORANDUM FOR WALLACE H. CHENEY, ASSISTANT DIRECTOR
GENERAL COUNSEL & REVIEW
FROM:

JOHN R. SHAW, Regional Counsel

SUBJECT:

MONTHLY REPORT (June, 1997)

LITIGATION. CLAIMS. AND ADMINISTRATIVE REMEDY STATISTICS
LITIGATION:

JAN
38

FEB MAR APR MAY JUN JUL
28
27
39
22
23
Total new cases for calendar year 177

AUG

SEP

OCT

NOV

DEC

JUL
AUG SEP
FEB MAR APR MAY JUN
.,.
66
95
98
95
Total for Calendar Year 428
.,. June Claims unavailable due to tort data base failure

OCT

NOV

DEC

OCT

NOV

DEC

ADMINISTRATIVE CLAIMS:

JAN
70

ADMINISTRATIVE REMEDIES

JAN
176

FEB
MAR APR MAY JUN
184
124
180
226
196
Total for Calendar Year 1,112

JUL

AUG

ADVERSE DECISIONS
None reported

SETTLEMENTS OR JUDGMENTS

SEP

court granted summary judgment to five BOP employees: Ed Crosley, Denise Hilliard-Winston,
Marvin Lutts, Dave Helman and Steven J. Robinson. The court concluded that in 1992 the law
was, and still is, not clearly established. The court also concluded that BOP staff applied BOP
policy in denying the credit. As for the FTCA action, the court concluded that the 2680(h)
exception to the exception for false imprisonment committed by investigative or law
enforcement officers was not applicable because in calculating sentences, BOP officials are not
acting as investigative or law enforcement officers.
PENDING CASES OF INTEREST
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 as to whether
the exhaustion requirement of the PLRA (42 USC 1997e(a) applies to Bivens actions. lenifer
Grundy and Dan Eckhart are working with AUSA Marilyn Eskeson. Barbara Herwig in DOJ has
been contacted for input.
FC) Greenville Dsiturbance Cases. The following eleven similar Bivens cases contain
allegations against staff at FCI Greenville alleging excessive use of force in the aftermath of the
October, 1995 disturbance.
Okai v. Verefurth. et aI., S.D. III Case No. 96-47-JPG
Tyler v. Verefurth. et al.,
S.D. III Case No.96-46-1PG
Smith v. King. et al.,
S.D. III Case No. 96-507-JPG
Freiberger v. Seiter. et al.,
S.D. III Case No. 96-028-JPG
Johnson v. Seiter. et aI.,
S.D. III Case No.96-396-JPG
S.D. III Case No. 96-629-1PG
Huffman v. Hawk. et al.,
McCoy v. Nelson, et aI.,
S.D. III Case No.96-790-JPG
Williams v. Pitts. et al.,
S.D. III Case No. 96-597-JPG
Dunn v. Seiter. et al.,
S.D. III Case No. 95-928-1PG
Larkin v. Galloway. et. al.,
S.D. III Case No. 96-607-JPG
Stewart v. Seiter. et. aI.,
S.D. III Case No 96-983-JPG
The Department of Justice has been closely examining these actions on a case by case hasis to
determine whether granting representation to individual BOP employees is in the best interests of
the United States. In all of these matters, extensive time is being dedicated to document fC"iew
including OIA Reports and Institution records by both the 001 - Constitutional Tons Bmnch and
the NCRO. The matter is complicated because the agency took administrative discip)jn~
action against some of the defendants for conduct which in most cases did not involve the
respective plaintiffs. We have been working closely with 001 stafTregarding representation
issues and will continue to do so.
Representation issues have been resolved as to Okai v. Verefurth. et al., Tyler v. Verefurth, et
al., Smith v. King. et aI., and Freibereer v. Seiter. et al..

In Okai v. Verefurth. et at, four defendants were approved for representation. The four
defendants are being represented by Jesselyn Brown, Constitutional Torts Branch, Civil
Division. Rick Hess and Neil Perryman are providing representation to the two defendants
denied representation. Discovery is complete and this case is currently in the pre-trial stage. The
court has appointed counsel for the plaintiff.
I,n Tyler v. Verfurth. et aI., four of the defendants are being represented by Jesselyn Brown.
Constitutional Torts Branch, Civil Division; one employee was approved outside counsel by
DOJ and is represented by Michael Nester; and three employees were denied representation.
This case is currently in the discovery stage.
In Smith v. Kine. et aI., one defendant has been granted representation and is being represented
by the U.S. Attorney's Office for the Southern District of Illinois. Four defendants were denied
representation. A motion has been filed for summary judgment as to the one employee granted'
representation. Additionally, the plaintiff has retained counsel and amended his complaint
naming additional staff who currently are requesting representation.
In Freiberger v. Seiter. et aI., the one named defendant was denied representation.
As to the remainder of the cases, requests for DOJ representation and the issuance of NCRO
recommendations are ongoing processes.
RELIGIOUS FREEDOM RESTORATION ACT CASES
DeNoyer v. Reno. et ai, D. Colorado, ADX Florence
Native American inmate alleges discrimination in provision of religious activities at the ADX.
ENSIGN AMENDMENT LITIGATION
Amate•• Moore and Levitan v. Reno, DOC Case, FCC Florence Case
CRIMINAL MATTERS
United States v. Ricketts and Jones, FeI Greenville. S.D. Illinois
Ricketts and Jones are charged with rioting. mutiny and assault as a result of conduct from the
October. 1995 disturbance. Trial began in East St. Louis on June 9. 1997 and lasted sevcn days.
Both were convicted of riot and mutiny. Jones was also convicted of two counts of assault. Both
were acquitted of two other assault charges. Sentencing is scheduled for September) 9. ) Q97.
United States v. Tim McVeigh. FCI Englewood. D. Colorado
Following the jury verdict and recommendation of death. Mr. McVeigh was returned to J-"CI
Englewood pending sentencing. Staff are. working with the prosecution team and U.S.
Attorney's Office on issues of surveillance. outgoing social mail, and psychological intcrvcntion.

ADMINISTRATIVE CLAIMS AND OTHER MATTERS OF INTEREST

Davis, Gary L., T-NCR-96-856, USP Leavenworth
Claimant alleges BOP staff failed to protect him from another inmate. Staff were aware that the
claimant and the assailant had quarreled in the SHU. After the two were released, claimant
attempted to resolve the issue. Claimant was stabbed by the assailant several times with a prison
made weapon. Claimant seeks $500,000 in damages.
Mitchell, William, NCR 96-754,
Inmate seeks $50,000 under FTCA for violations of RFRA. Claimant alleges BOP failed to
follow policy concerning cleaning of common fare utensils and that condiments are not Kosher.
Trays are washed separately from regular trays and condiments are Kosher.
UPCOMING HEARINGS OR TRIALS

PERSONNEL ISSUES

Tom Mueller moves to Pennsylvania to assume his duties at Allenwood. He will be missed.
Walter Pimot has began his duties as a legal intern. Mr. Pimot recently completed his second
year of law school at the University of Missouri. Kansas City School of Law.
STAFF TRAVEL AND LEAVE

John
Daryl
Sick Leave
Dan
Tom
Gwen
Janet
Gary
LeeAnn

Annual Leave
Annual Leave
July 9 & 10
None Scheduled
Sick Leave
Adminstrative Leave
None Scheduled
None Scheduled
None Scheduled
Annual leave

July 3
July 3. 7 8 & II

July 7
July 17. 18

June 30 - Jul~ 3

Claims database NOT WAN'D to Mary Rose Hagan due to failure of our tort data base:

 

 

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