Fbop Mxr Monthly Report 1996dec
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UNITED STATES GOVERNMENT memorandum December 3, 1996Mid-Atlantic Regional Office, Annapolis Junction, MD 20701 DATE: Bill Burlington, Regional Counsel Region REPLY TO ~id-Atlantic ATTN OF: SUBJECT: TO: ATTN: ,.·9,ecember 1996 Monthly Report Wallace H. Cheney, General Counsel Nancy Redding, Executive Assistant ADMINISTRATIVE REMEDIES NOV JAN FEB MAR APR MAY JUN JUL DEC Received 129 Answered 142 144 166 103 141 TORT CLAIMS JAN FEB MAR APR MAY JUN JUL DEC NOV # Pending AUG SEP OCT 153 157 157 116 207 151 160 124 183 114 127 135 133 153 191 143 149 176 AUG SEp· OCT 217 246 263 285 278 250 215 218 231 94 72 84 65 64 61 49 63 72 72 62 63 217 246 213 2* 4 5* 37 56 57 88 88 40 55 69 263 285 278 250 215 218 231 216 3* 4* 5* 3* 4* 4* 199 224 84 216 # Received 63 # Answered 45 # Pending 224 # Over Six Month 4* FOI/PRIVACY NOV JAN FEB MAR APR MAY JUN JUL DEC AUG SEP OCT # Pending 125 57 45 56 48 49 126 66 87 32 57 # Received 31 # Answered 29 # Pending 57 # Over 30 Days 34 54 2* 5* 126 124 135 104 91 94 96 88 82 58 48 65 67 58 51 26 49 38 61 27 87 68 78 49 40 50 61 124 135 104 91 94 96 88 82 57 62 50 63 63 67 49 39 76 105 LITIGATION NOV JAN FEB MAR APR MAY JUN JUL AUG DEC Cases Pending 285 New Cases Received 17 Habeas Corpus 10 Bivens 2 FlCA 3 Other 2 Cases Closed 6 Cases Pending 278 Lit Reports Completed 23 Cases/Hearings or Trials 277 278 8 23 3 11 4 10 1 2 0 0 4 279 296 291 301 311 322 32 12 26 12 17 22 5 13 5 4 5 11 4 2 2 279 265 16 26 0 1 1 SEP OCT 314 310 297 18 13 13 34 8 12 2 5 13 3 6 4 4 6 13 1 4 2 0 4 1 3 0 1 '0 1 2 3 .1 5 19 26 9 8 11 4 10 11 296 291 301 311 . 5 18 322 314 310 297 285 22 15 21 18 17 20 13 13 17 0 0 1 2 0 0 0 0 0 Settlements/Awards 2 1 1 0 0 2 1 0 0 0 0 0 $ Settlements/Awards $1.5 0$500.15 $ .53 $.15 0 $150 0 0 0 0 0 ($ in Thousands) *We are in the process of obtaining settlement approval from the Central Office for these claims. ITEMS OF INTEREST, PERSONAL LEAVE, BUSINESS TRIPS, MOVES, ETC. Bill Burlington. Regional Counsel. will be on annual leave January 27-31.1997. ' We say goodby this month to Carolyn Lanphear. Carolyn will be going to FCI Cumberland. January 19. 1997. We wish her the very best of luck in her new assignment. Bob Blackburn . Legal Tech . USP Terre Haute. will be on annual leave December 30 thru January 10. and in annual training January 27-31.1997. Mike Robar. Paralegal, FCI Manchester. will be institution duty officer January 14-21, 1997. Mike Bredenberg and Michelle Fuseyamore. Attorneys, FCC Butner. will be co-instructing annual refreshe r training in the areas of Ethics/Standards of Conduct and Use of Deadly Force. FCI Memphis is beginning Annual Refresher Training this week. Matthew Mellady, Attorney, will be instructing the session on legal issues, and Kathy Smallwood, Paralegal. will be involved in the HNT class instru ction. SITUATION OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS WASTE SITES, ETC .: FCC Butner - The institution conducted four mental health commi tment hearings via video teleconference during December. USP Terre Haute - several staff members will be traveling to Wisconsin for the Farmer v Brennan trial on January 21, 1997. Ensign Amendment - While I have not actually seen the suit, I heard on the news that either Penthouse or Hustler has challenged the military's refusal to carry sexually explicit . magaz ines in the Commissary. FCI Milan - The U.S. District Court for the Eastern District of Michigan forwarded newly adopted rules for PLRA as a result of a from a meeting between Kevin Walasinski, Attorney, FCI Milan, and district court staff. FMC Lexington - On December 9. 1996, a hearing was held pursuant to 18 U.S.C. § 4246 in U S v. Cosey . Magistrate James Todd subsequently entered an Order committing inmate Cosey to the custody of the Attorney General for continued hospitalization and treatment until the State of Georgia assumes responsibility for him or until such time his release would not pose or create substantial risk of damage to persons or property . Cosey believes certain individuals in Athens, Georgia. are killing members of his family through their control of biological/chemical machinery and these persons are in custody at the student activities center on the University of Georgia campus. SUBSTANTIVE PLEADINGS (COMPLAINT, MOTION FOR SUMMARY JUDGMENT, ETC.) : None SETTLEMENTS: FCI Butner - Peaslee v. Reno - In December. we received a final agency decision finding sexual harassment on the part of a former FCI Butner supervisor, Dr. Chris Norris. The ~ . complainant, Dr. Donna Peaslee, claimed Dr. Norris made advances at her, and when she refused them, began a course of sexual harassment. In finding discrimination, the Complaint Adjudication Officer found FCI Butner was responsible for Dr. Norris' actions, despite the fact when we first learned of such behavior, we proposed that Dr. Norris be terminated (he eventually resigned) . We have now been asked to attempt settlement with the complainant. ADVERSE DECISIONS OR SIGNIFICANT DECISIONS: FPC Alderson - Leacock v Reno - After filing our motion for a new trial in this case, a hearing was held in early December, where the Judge strongly recommended that the two sides try to settle, rather than force the court to rule on the government's motion for a new trial, suggesting that he would probably deny the motion and let Defendants take an appeal. This case stems from an adverse jury verdict, finding racial discrimination in the Bureau's firing of an African American physician at Alderson . The jury awarded $30, 000 and the plaintiffs attorneys have reque sted $97,000 in attorney fees. The parties submitted that for $60,000 the case could very likely be settled. We have now made a formal $60,000 settlement offer to plaintiffs attorney. FCI Butner - Rish v. Johnson - We recently received a denial of our second Motion for Summary Judgment in this case . Inmate Rish, along with two other former Butner inmates, allege they were exposed to HIV and Hepatitis B, when Butner staff faiiedto provide them with appropriate protective gear in connection with their work as inmate orderlies in the hospita l unit. As part of our motion we raised Qualified Immunity, and Section 803 of the PLRA, which requires proof of physical injury before you have a remedy for emotional damages. The Department has indicated that they are not inclined to recommend appeal on these issues. We are now requesting that if the Department does not allow an appeal. that private counsel be appointed for the three remaining individual defendants. UPDATE ON CASES, TRIALS OR HEARINGS, ETC. NOTED IN PRIOR REPORTS: FCI Memphis - Ashley v. BOP - On December 17,1996, even though this was supposed to have been a scheduling conference, because the plaintiff had not responded to the government's Motion, the Judge gave him the opportunity to do so in open court. Rather than respond to the Motion, plaintiff merely reargued the facts of his complaint. The AUSA, Brian Quarles, reiterated that plaintiff has failed to establish the burden and has not demonstrated a prima facie case for negligence or constitutional deprivation in either his complaint or his response to the government's ·Motion. This case arises out·of an assault that occurred against Ashley during the riot in October of 1995 and a disagreement over his classification. The court did not make a ruling . REPRESENTATION NOT RECOMMENDED FOR STAFF: None SIGNIFICANT FTC A CLAIMS : None MEDICAL MALPRACTICE CASES UPDATE: None SIGNIFICANT ADMINISTRATIVE REMEDIES: None NEW RFRA CASES AND UPDATES ON PREVIOUSLY REPORTED CASES: USP Terre Haute - Abdu l-Shaheed v Kimibler et al , TH 96-266-C-R/H This is a Bivens action filed against correctional officers at USP Terre Haute. The main thrust of the case consists of allegations of excessive force. However, the inmate does raise a First Amendment issue regarding destruction of religious material during the shakedown. ALTERNA TIVE DISPUTE RESOLUTION EFFORTS: None 18 U.S.C. § 3621(e) LITIGATION: FPC Alderson - Hall Y Wise - in a companion case to Wiggins Y Wise (previously reported) the court has ruled that a conviction for being a felon in possession of a firearm is not a violent offense, and that the Bureau's Program Statement, Crimes of Violence is ultra vires, to the extent that it does not follow the 4th Circuit caselaw of 16 U.S.C. § 924(c). We are getting tremendous pressure from the Federal Public Defender to reclassify the inmates who have won their cases. ·Our position has been that the court invited the Bureau to develop a new Program Statement, and that is what we are doing. Once a new Program Statement is developed, we will implement it at Alderson . Until then, the women will not be classified for early release. FCI Milan - Als ton v Pontesso, challenges BOP's designation of possession of firearm by a prohibited person as a crime of violence for purposes of eligibility for early release. Rasnake v pontesso - inmate challenges BOP's determination that his two point enhancement for possession of a weapon makes his instant offense a crime of violence and makes him ineligible for the year-off provisions of VCCLEA. FCI Ashland - Childs v USBOP - in addition to VCCLEA claims, this habeas petition raises due process and equal protection claims. The Magistrate Judge issued a R&R recommending that the exhaustion requirement be waived in light of the inmate's release date. Objections were filed with the Court seeking dismissal for failure to exhaust as mandated under the PLRA. The petition fails to state how the inmate's due process rights were violated . The petition claims that white inmates are routinely granted early release consideration, but black inmates are not. FMC Lexington - McGriff v. Beeler - petitioner challenges the BOP's interpretation of his current offense of Felon in Possession of a Firearm, 922(g), as a crime of violence under 3621(e). SIGNIFICANT NEW CRIMINAL REFERRALS SINCE LAST MONTH'S REPORT: FCI Petersburg - An indictment was returned charging inmates James Poteet, Reg. No. 23675-083, Miles Clarke , Reg . No. 23674-083, and Correctional Officer Gregg Smith with introduction and conspiracy to possess and possession of controlled substances with intent to distribute. The inmates are also being charged with bribery of a public official; with the officer being charged with receipt of a bribe by a public official. The indictment charges that from January 1995 to September 1996, Officer Smith allegedly supplied the inmates with marijuana, which they used and resold to others. Defendants were arraigned on December 31 , 1996, and all plead not guilty. Officer Smith requested and was appointed an attorney. Trial is scheduled for March 3, 1997. FCI Memphis - On December 15, 1996, FCI Memphis staff observed Sandra Rojas pass a potato chip bag to inmate Shell in the visiting room. The bag was seized and was found to contain small bags of marijuana. FBI and local law enforcement officials were called. Ms. Rojas was detained and ultimately arrested. Additional marijuana was found in her motel room. The matter has been referred to the U.S. Attorney's Office for prosecution. UPDATE ON PREVIOUSLY REPORTED CRIMINAL MAnERS: FCI Milan - Inmate Christopher Snow has a trial date of January 14, 1997, for possession of contraband in prison and assault of federal employee: The inmate rejected a plea agreement to combine these charges with a pending drug charge. FCI Milan - Inmate Morrison is scheduled for trial January 18, 1997, for two counts of attempted murder, two counts of aggravated assault, and one count of witness tampering. FCI 8eckely - The prosecution of inmate Hudgins for possessing contraband (marijuana) will start January 7, 1997, and is expected to last for two days. This is Beckley's first criminal prosecution . SUCCESSFUL PROSECUTIONS OR ANY ACQUlnALS SINCE LAST MONTH'S REPORT: FCI Petersburg - U.S. V. Arlin Raney - a one day trial was held on December 5, 1996, in this criminal trial in which Raney was charged with escape from the Petersburg Camp in 1995. After approximately 10 minutes of deliberation, the jury returned a verdict of guilty. Sentencing is scheduled for February 17, 1997. USP Terre Haute - On December 10, 1996, William Smith , Reg . No. 87774-012, plea bargained for a sentence of 18 consecutive months with three years of supervised release for an incident that occurred in the visiting room on March 5, 1994. During a visit by Smith's wife, Bonita Smith, she provided Smith with heroin. Although Bonita Smith has not yet been sentenced , the AU SA thinks that she will sign a plea bargain within the next few weeks. REHABILITATION ACT : None New Litig ation Cases by Institution and Type Re ceived During the Month of December 1996 ALD ASH BEC BUr CUM LEX MAN MEM MIL MRG BIV 0 0 0 1 1 2 1 1 1 0 FTCA 0 0 0 0 0 1 0 1 0 0 HC 0 1 0 0 0 1 0 1 3 5 OTH 0 0 0 0 0 0 0 0 0 0 TOT 0 1 0 1 1 4 1 3 4 5 New Litig ation Cases by Institution and Type Received Calendar Year to Date ALD ASH BEC BUT* CUM LEX MAN MEM MIL MRG BIV 1 2 0 2 13 8 11 2 11 ** 1 FTCA 3 2 1 2 1 3 4 7 3 0 21 4 7 13 2 16 4 5 10 15 OTH 1 0 0 1 3 2 1 1 2 0 TOT 26 8 8 18 19 29 20 15 26 16 HC • Represents the Complex •• One case subtracted beca use it was inadvertently coun ted twice .