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Tennis Shoes Cost US Taxpayers Over $8,000

Though this is an unpublished case, and one we might ordinarily consider of small consequence, the prisoner litigant - David Cerullo - provided PLN with extensive information and background on the case that lends a very unusual perspective.

David Cerullo knew he was going to do some federal time. Two months before his sentenced started, on advice of his pretrial services officer, he purchased a $37.45 pair of tennis shoes from a K-Mart in Denver, Colorado.  On April 1, 1993, he self-surrendered to the Federal Prison in Littleton, Colorado to begin serving his sentence. He wore his new tennis shoes "in" hoping that he would thus have decent tennis shoes to wear for the first year for two of his sentence.

On April 14,1993, he was ordered to accompany a guard to a loading dock area. Cerullo was wearing his tennis shoes, and was unaware that he was being escorted to a work detail. He was taken to a dumpster and ordered to clean it and the adjoining loading dock with a pressure cleaning machine. Shortly into the task, and soaking wet, Cerullo asked the guard for permission to go change into work boots. Despite the fact that Federal Bureau of Prisons (BOP) policy requires prisoners to wear institution issued work boots on all work details, the guard refused Curullo's request and threatened to punish him if he didn't continue working. Curullo finished the detail, but his tennis shoes were totally ruined in the process.

He approached BOP staff at the prison and complained about his personal shoes being ruined. They laughed. He went to the law library and, after hours of combing through law books, found the Federal Tort Claims Act (FTCA). He requested the appropriate Tort Claim forms from the prison staff, who told him they were unable to provide them. After some further prodding, the forms were located. Cerullo submitted a claim to the BOP for $37.45.

A couple of months later a guard came to get Cerullo's ruined shoes. He said the BOP needed to photograph them for their investigation of his claim. Three months after that Cerullo received a letter from the BOP regional office in Kansas City stating that their investigation into his Tort Claim showed no fault by BOP staff and that his claim was denied.

The Federal Tort Claims Act imposes a duty on government agencies to settle legitimate minor claims in order to prevent congesting Federal Court dockets with litigation of those minor claims.

Cerullo wrote a letter to the US Attorney suggesting settlement negotiations rather the filing in court to seek relief on this $37.45 claim. The US Attorney did not respond.

On November 5, 1993, Cerullo filed a civil action in the US District Court for the district of Colorado in Denver.  On August 5, 1994, the Court ordered a settlement of Cerullo's claim. He was awarded $86 for the cost of the shoes and the recovery of his filing fees. What follows is an estimate of costs to the US taxpayers of the Court proceedings from November, 1993, to August, 1994.

The following costs have been calculated at $500/hr for judges, $100/hr or the assistant US Attorney, $50/hr for BOP staff and $40/hr for the US Marshals. The costs of court clerks, bailiffs, support staff, US Attorney's office overhead, courtroom building overhead. etc. have not been entered into the cost estimate. Estimates were calculated from the official Court Docket Sheet.

The total time spent by the US Attorney's preparing for and arguing the case; time spent by the Magistrate and Judge reviewing briefs, ruling on motions, and conducting hearings; and time spent by the US Marshals serving court papers adds up to an estimated $6,850. The transcript of the hearing, at $50/page, cost $550.  It is estimated that BOP staff time incurred investigating the claim, preparing evidence, writing reports, long distance calls and postage added up to $1,000.

The total estimated cost to the taxpayers to litigate this claim is a whopping $8,400. Cerullo would have settled for $30 in May of 1993 - without going to court.

The story may not have ended there, though. The BOP stated in open court that they preferred to take the case to trial (at taxpayers' expense) rather than settle the Tort Claim themselves, and were willing to appeal the decision all the way to the US Supreme Court. The Judge apparently dissuaded the BOP from appealing the case.

In the above case, the BOP was clearly wrong. They violated their own policies when the guard refused Cerullo's request to change into work boots. The BOP failed to adhere to the responsibility imposed on them by the Federal Tort Claims Act to settle this minor claim and avoid costly litigation in an already overburdened federal court system.

This case makes it plain that there are two sides to the "frivolous law suit" coin. Who was the "frivolous litigator" in this suit?  Cerullo, who would have settled for $30 to pay for his ruined tennis shoes, or the BOP who insisted on taking the case to court and soaking the US taxpayers for over eight thousand dollars?

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