NDU-04-1994

15:50

FROM

TO

9-2023072995

P.02

UNITED STATES GOVERNMENT

~

memorandum

".

1t{jd-Atlanlk R~gionnl Office, Annapolis JUJlctiOIl, MD 2070J

November 4, 1994

DATE:

REPL.,.TO
AT...'N

ot:

SUB/~(.7:

~W~
urlington, Regional Counsel

Bill

Mid-Atlantic Region

October 1994 Monthly Report

TO:

Wallace H. Cheney, General Counsel

.-.l1'H:

Nancy Redding, Executive Assistant
REMEDIES

MAR APR

MAY JUN

92

122

94

110

157

93

112

84

93

93

111

120

131

124

102

110

MAY JUN

JUL

AUG

SEP

OCT NOV DEC

206
74

187

204
61

221

183

lao

67

63

53

50

96

99

206

93
'87

61
63

183
1

180

0

204
3

221

5

1

155
0

AUG

SEP

OCT

94

82

78

45

69
31

JAN

FEB

Answered

104
111

TORT CLAIMS

JAN

FEB

MAR APR

# Pending

231

~ved
.
ered

.71

224
60
92

. ~ .. ·iding
:I Over Six Month

224

0

182
0

182
85
61
215
0

FOJlPRIVACY

JAN

FEB

MAR

APR MAY

JUN· JUL

# Pending
# Received

194

140

159

117· 91

58

66

32

42·
115

120
52

ADMINISTRATIVE

Received

78

215
62

70

JUL

0

AUG

SEP

OCT NOV
63
63

59

# Answered
.# Pending

112

122
103

72

58

48
81

57

98

74
95
74

140

159

153

91

42

120

74

94

# Over 30 Days

79

79

72

62

25

30

43

13

94
82
24

LITIGATION

JAN

FEB

MAR

APR

MAY JUN

JUL

AUG

SEP

OCT

Cases Pending
New Cased Received
Habeas Corpus
Bivens

177

186

201
22

197
19

199

224

224

263

267

6

7

29*
7

12

8

218
24
10

5

13

6

7

0
18

1

16
4
2

9
4
2

11

7

1
2
6

224

237

263

267

21
3

28

19

0

0

19
0

0
0

1

1
$.07

0
0

19· 26
6
11

FTCA

1

8
14
2

Other
Cases Closed
:ases Pending
..it Reports Completed
~earing or Trials
ents/Awards
.lements/Awards
($ in Thousands)
·Corrected figure.

1

2

6

8

11
201

21
197

12

25

0
0

1

1

1
1

$0

$0.1

~10

186

1,
0
0
$0

23

a

3

8
2

4

3

4

19

6
218

199
16

23
2

1

$155

3199

17·
9

,

$.05

2

DEC

NOV OEC

59

1
2
12
283

22
0

a
a

NOV DEC

••

NOU-04-1994

15:50

FROM

TO

Page 2
MXR Monthly Report

ITEMS OF INTEREST, PERSONAL LEAVE, BUSINESS TRIPS, MOVES, ETC.
Bill Burlington, Regional Counsel will be in Lexington for the
ITS hearing November 2 - 3 and November 14-17 will attend the
New Attorney Training/Regional Counsel Meeting in Denver.
Wanda Hunt. Deputy Regional Counsel. will be on annual leave
November 9 and 18 .
Marian Callahan. Assistant Regional Counsel, will attend a
FOrA training session in D.C. November e-9. and be on annual
leave November 23 and 25.
Kathy Harris, Paralegal Specialist. will be on annual leave
November 21-25 .
Randy Smith. Paralegal Specialist, Fcr Ashland. will be on
annual leave October 31-November 4.
Teresa Leneave. Paralegal Specialist. USP Terre Haute. will be
the staff duty officer November 1-8, and on annual leave
November 14-18.
Randy Everett, Legal Tech. USP Terre Eaute. will be on annual
leave November 7-11.
Joseph Tang. Attorney. FMC Lexington, will be on annual leave
November 25 and 28.
congratulations to our Honors Attorney, Cheryl Behymer. who
was sworn in to the Virginia State Bar on Tuesday. November 1.
after passing the bar exam.
SITUATION OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS
WASTE SITES, ETC.:
Meeting with Federal Judges - On oc~ober 20. 1994. Warden
Dennis Bidwell, Wanda Hunt and r met with Judge Motz (soon to
and) and
the Chief Judge, District of
rmer Chief
e)

FeI Cwnb,;!rland - Wancla Hunt :,~oor: also tou.red Fcr C,:,mberland
with 11ag~strate Rosenberg. wno appears to De very l~beral and
outspoken in his views regarding' prison management. L.I sense

NDU-04-1994

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9-2023072995

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Page 3
MXR Monthly Report

7

W

may' encounter a very activist Court who has had difficulty
Department of Corrections.

w~th the Maryland

USP Terre Haute - Indiana University Legal Assistant Clinic
students will tour the institution cn November lOth.

Staff Familiarization Visit • We want to extend our thanks to

ward~n· Thompson and his staff, pa~ticular Bob Eabineau, for
prov~ding Cheryl Beh~~er with a tour of'the inscitution and

.

inviting her to the Department Heads Meeting on October 18-19.
W.e also want to thank Warden ~-lise and his staff, part~cularly
Faye Pollard, for the tour.and warm reception Cheryl received
during her visit there on October 13-20.
FeI Memphis - Tom Read, At'torney at Nemphis, is working. with
the FBI and u.s. Attorney's Office to get 'indictments iri four
different criminal drug cases. The U.S. Attorney's Office has
been very cooperative in prosecuting any criminal case/we take
to them.from Memphis. These drug cases will all fall under
the enhancement for this activity under the Crime Bill.

The sixth Circuit has requested a transcript of a case that's
on appeal, Henthorn v. Hester, Appeal No. 94-5090. The AUSA
and Tom Read are concerned that the Sixth Circuit might remand
for trial. This was a Bivens action against a correctional
officer alleged to have committed a homosexual assault on the
plaintiff during a routine shakedqwn.
SUBSTANTIVE PLEADINGS (COMPLAINT, MOTION FOR SUMMARY JUbGMENT,
ETC.): None
SETTLEMENTS:

None

ADVERSE DECISIONS OR SIGNIFICANT DECISIONS:
woods v. Bogan, 93-CV-72383-DT, E.D.Mich., FCI Milan

The portion of the case dealing with Bivens defendants has
been dismissed. The only remaining issue involves injunctive
relief regarding BOP's handling of legal mail. Judge Woods
suggest he may strike our policy if, pursuant to that policy,
we open a letter outside the inmate's presence, where the
letter is from a law firm (but not necessarily from an
identifiable attorney) and there is a claim for special
handling which is not real close to our suggested wording
"Legal Mail -- Open Only in the Presence of the Inmate."
However, inmate Woods has been redesignated for transfer co
Petersburg which will moot the issue, at least in the Eastern
District of Michigan.

3201

NDU-04-1994

r

15:52

FROM

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9-2023072995

p.es

page 4
MXR Monthly Report

UPDATE ON CASES, TRIALS OR HEARINGS, ETC. NOTED IN PRIOR
REPORTS:

c

Fer Ashland - Four staff members at FC! Ashland received
subpoenas in the matter of U.s. v. Charles William O'Brien.
Inmate O'Brien, Reg. No. 51875-060, is c~rrently a· criminal
defendant who is scheduled to have his criminal trial on
November 28, 1994.
Inmate O'Brien had filed a motion with the
criminal.court judge alleging that he had been denied access
to the law library, and denied special time allowances in
order to prepare for his criminal trial (O'Brien is proceeding
pro se with stand by counsel). The hearing was held on
October 27, 1994, in u.s~ District Court for the Southern
District of Ohio.
Though Bureau staff worked to get the
subpoena quashed, efforts wire unsuccessful due to the short
tirneframe involved and the AUSA assigned to the case being
unavailable.
During the hearing the AUSA objected to the
issuance of the subpoenas and asserted that the defendant
failed to follow procedures as outlined in 28 C.F.R. § 16.22
et. seq. The judge agreed, and staff returned without. having
to testify.
FMC Lexington - A hearing was held October 19, 1994, pursuant
to 18 U.S.C. § 4245 before a District Court Magistrate Judge
regarding Marie Zemek, Reg. No. 19104-086. At the hearing
Inmate Zemek was committed td the custody of the Attorney
General under § 4245 and placed in the Mental Health Unit at
FMC Lexington. An administrative hearing was held at the
institution on November 1, 1994, to determine if Inmate
Zemek's condition warranted forced medication.
It was
determined that forced medication was warranted in this case
at this time.

Shelton v. U.S., 1:94-0233, S.D.W.Va., FPC Alderson
FTCA case out of FPC Alderson arises from salmonella food
poisoning in Aprill May 1993.
Plaintiff, represented by
.
couns~l, seeks $250,000.
Cheryl Behymer attended a depositio~
of plaintiff by Stephen Horn, AUSA, at plaintiff's residence
in Ferrum, Virginia, on October 21, 1394.
Trial dace is set
for January 10, 1995, in Bluefield, West virginia.
Goggin v. USA,91-2735-TU/A, \·1.D.TE:nn., Fer f-1ernphis

o

It has now been eleven months since the conclusion of the
trial in this medical malpractice case and the Judge has not
entered a judgment. The plaintiff is seeking $1 million. The
BOP admitted liability at trial based on altered medical
records. However, our expert witness testified that the
outcome would have been the same regardless of the altered
records. At best, we anticipate that damages will be based on
the plaintiff's pain and suffez*ag for two days.

,-..--..,--,------

NDU-04-19g4

15:53

-------- -•..

,."

,. -.' ... '.

9-2023072995

TO

FROM

P.06

Page 5
·MXR

u.s.

Monthly Report

v. Casteaneda and Perez, 94-20178-Ml,

FeI

Memphis

This criminal murder case is expected to go to trial ~n
January 1995. Tom Read, Attorney at t-1emphis, has been \-/orking
with the u.s. Attorney's Office and the FBI preparing for
trial.
REPRESENTATION NOT RECOMMENDED FOR STAFF:

SIGNIFICANT FTCA CLAIMS:

None

None

SIGNIFICANT ADMINISTRATIVE REMEDIES:

None

MEDICAL MALPRACTICE CASES:
Dusenberv v. Eeeler, 94-371, E.D.Ky., FeI Lexington
In this petition for Writ of Habeas Corpus filed September 22,
1994, inmate Dusenbery request-s compassionate release, proper
medical care and cites the General Accounting Office Report as
evidence that the Bureau is not providing appropriate medical
care ..

3203