Fbop Scr Monthly Report 1999oct-dec

• Topics: Court Access, BOP Litigation Reports

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u.s. Department of Justice
Federal Bureau of Prisons

(
South Central Regional Office

Dallas, Texas 75219
November 8, 1999

MEMORANDUM FOR CHRISTOPHER ERLEWINE
,
ASSISTANT DIRECTOR/GENERAL COUNSEL
FROM:

Michael D. Hood, Regional Counsel

SUBJECT:

'Monthly Report - October 1999
ADMINISTRAT%VE REMEDIES
JAN

I'D

MAR

APR

HAY

JON

JtJL

AUG

SSP

OCT

RBCBIVBD

184

226

225

202

199

245

187

211

175

185

ANSWBRBJ)

117

165

161

135

152

164

140

162

134

NOV

DRC

(
TORT CLAIMS
JAR

I'D

MAR

APR

MAY

JUH

JtJL

AUG

SRIt

OCT

PBNDJ:NG

211

201

192

183

192

198

208

206

217

219

RBCBJ:V1m

ARSWBRBJ)

PBNDJ:NG

197

193

186

207

205

206

227

219

212

OVBR SJ:X XO

NOV

DRe

NOV

DBe:

FOi/PRIVACY

(

JAN

PBS

MAR

APR

MAY

JON

JtJL

AUG

SBP

OCT

PBNDDIG

RBCBJ:VBD

ANSWBRBD

PBNDJ:NG

OVBR 20 DAYS

3535

(

I
JAN

FEB

MAR

APR

MAY

JUN

JUL

AUG

SEP

OCT

CASES CLOSED

HABEAS CORPUS

BIVENS

FTCA

OTHBR

LIT REPORTS

HEARINGS/
TRIALS

SETTLEMENTS/
AWARDS

CASES RECD

(

LITIGATION
NOV

DEC

CASES WITH HEARINGS OR TRIALS
FMC FORT WORTH

Fuller v. U.S.A., (FTCA/ N. D. Tex . ). A settlement conference was
held on October 27, 1999 . The plaintiff's attorneys , AUSA Wayne
Hughes, Deputy Civil Division Chief Mattie Compton, and Al
Munguia were in attendance. This i s a medical malpractice
lawsuit which raises a llegati o ns
medical care the
laintiff received for his knee.

CASES WITH SETTLEMENTS OR AWARDS

(

Adverse judgments
a.
See Significant Cases heading.

3536

Tort Claim settlements

None
c.

Other settlements

None
SIGNIFICANT CASES
FCI E1 Reno and FTC Oklahoma City

3621(e) Cases . The U. S. District Court for the Western District
of Oklahoma has held in Lawton v. Guzik (FTC Oklahoma City),
Clark v. Fleming (FCI EI Reno), and Schardein v. Fleming (FCI El
Reno) that the two-point firearm sentence enhancement provisions
of P . S . 5162.04 are contrary to the 10 'h Circuit Court of
Appeals' holding in Fristoe, and the inmates in these cases must
be given reconsiderati on for earl y release.
We will reconsider each inmate's eligibility for a 3621(e)
release and report back to the court. We plan on pursuing
appeals in Clark and Schardein. Lawton will not be appealed
because this inmate has a January 2000 mandatory release date
(without the benefit of a 3621(e) early release). By the time
Lawton reaches the court of appeals, inmate Lawton will have been
mandatorily released, and there will not be a justiciable issue.
We objected to a Magistrate's Report and Recommendation issued in
Baker v. Fleming (FCI El Reno) . Here, the Magistrate found that
P . S. 5162.04 was an impermissible construction of 3621(e) and
contrary to Fristoe. The objections focused upon the nature of
the Director's discretion while distinguishing the case from
Fristoe . The objections also requested that the case be stayed
pending a ruling from the 10'h Circuit Court of Appeals in a
consolidated group of USP Leavenworth cases pending before the
appellate court which raise the same issues.
Due to the strength
of the objections filed in the case, the District Court found the
issue to be "an extremely close one" and stayed the case pending
a ruling from the appellate court in the USP Leavenworth cases.
SIGNIFICANT TORT CLAIMS

Smith. Inmate
a mental health patient at FMC
Carswell, alleges persona
ury . She claims that she was given
psychotropic medication which caused her to become ill and be
placed in a contract hospital . She i s claiming damages in the
amount o f $3,500.00. (T-SCR-99-477)

\.
3

3537

(

Monroe. ............ an inmate at FMC Carswell. alleges that a
delay in ~a treatment plan regarding a kidney transplant
and a delay in reevaluating her classifica tion so that she could
receive a medical furlough resulted in irreparable damage to her
health.
She is claiming damages in the amount of $140.000.00 .
(T-BOP-99-140)
Furnish.
FMC Carswell inmate
filed a tort
claim with the NERO through an
rney
medical
malpractice and deficiency due to a Stage IV Carcinoma of the
Larynx.
Inmate"""" was originally at FCI Danbury when she
told staff that~ a sore throat. Subsequently. she was
sent to FCI Dublin. where she had a sore throat and a growing
mass on the right side of her neck. A biopsy was performed at
FCI Dublin and it was de termined that she should be treated at
FMC Carswell. She had surgery in October 1998. and remains at
FMC Carswell. FMC Carswell will investigate and formulate a
response for the NERO. The inmate is claiming $5.000.000.00 in
damages. (T-NER-99-492)

Jackson. FCI El Reno inmate
has filed a tort claim
alleging a personal injury was cau
a roof fell on him on
May 3. 1999. That day. a tornado hit FCI El Reno and caused
significant damage to a housing unit. The claimant is not
represented by counsel in this $250.000 claim. The claimant also
alleges inadequate medical care.
(T-SCR-99-467)
Cline. A conditional settlement Off~750 was made by the
government and accepted by claimant
. As previously
reported. this tort claim involves a car aCC1 ent with an Fcr El
Reno staff member. OGC approval of the settlement is pending.
(T-SCR-98-357)
USAA . USAA Casualty Insurance Company submitted a tort claim on
behalf of their client for the sum of $1.656.06 due to the
negligence of a staff member from FCI Three Rivers. An
investigation of the tort claim revealed that a staff member was
negligent when they backed into a civilian vehicle in traffic. A
$1.656.06 payment has been mailed to the insurance company.
(T-SCR-99-314)
SIGNIFICANT ADMINISTRATIVE REMEDIES

Kuban. FCI Three Rivers inmate . . . . . . filed a request for
administrative rem_ntesting the ban on sexually explicit
materials. Inmate
alleges his First Amendment rights were
violated by the B~d Congress with the enactment of Public Law
105-227. Inmate . . . . . stated that the purpose of his BP-9 was to
exhaust his admin1strative remedies; he did not request relief.
Kimbrough. FMC Fort Worth inmate
administrative remedy request
4
3538

filed an

publication based on our recent policy change regarding the
implementation of the Ensign Amendment
UPCOMING TRXALS OR HEARINGS
FMC CARSWELL

We have submitted a request for a Motion for commitme.'ng
\~1~
nt to 18 U.S.C. Section 4245 concerning inmate
11
.
We have as~ed for an expedited hearing because she as a
Dece er 1999 release date,

'li

FCl: EL RENO

United States v. Lonnie Troy. A telephone conference call is
scheduled for November 9, 1999, at 4:00 p.m., with United States
District Judge Philip Pro (District of Nevada).
Judge Pro had
ordered that an inmate receive jail credit toward the service of
his federal sentence for time credited toward his California
state sentence. A copy of the inmate's California sentence
computation will be provided to Judge Pro to substantiate that
the inmate is not entitled to "double credit", in accordance with
§ 3585(b).
PTC Oklahoma City
Trial in Trentadue v. United States was set to commence on
November 8, 1999. However, it has been indefinitely postponed
pending interlocutory appeal to the 10 th Circuit Court of Appeals
by the three remaining individual defendants.
MEDXCAL MALPRACTICE
LITIGATION
See Cases with Hearings heading.
TORT CLAIMS
See Significant Tort Claims heading.
ENSIGN AMENDMENT
See Administrative Remedies heading.
LITIGATXON
None

3539

(

TORT CLAJ:MS
None
RELIGIOUS FREEDOM RESTORATION ACT

LITIGATION
None
TORT CLAJ:MS

None

PRISON LJ:TIGATION REFORM ACT ORDERS
None
SITUATIONS OF INTEREST
FIIC CARSWELL

c.,.

FMC Carswell achieved accreditation by the Joint Commission on
the Accreditation of Healthcare Organizations with a sc~re of'90.
FCI PORREST CJ:TY

Inmate

has filed a complaint with the Architectural

and Transportation Barriers Compliance Board alleging FCI Forrest
City's physical plant has (i) a ramp into the food service area
without handrails, (ii) no elevator in the recreation building,
and (iii) the ra_ClineS) that are too steep. As previously
reported, inmate
has filed a lawsuit which raises similar
allegations. Act10n has been taken to correct the ramp in the
food service area.
FOC HOUSTON

On October 15, 1999, FDC Houston was dedicated. Among the
dignitaries was Chief Judge George Kazen of the United States
District Court for the Southern District of Texas. Following the
ceremony, legal staff gave Chief Judge Kazen a well-received tour
of the institution.

,
'.

On October 19, 1999, 11 staff members of the local Federal Public
Defender's Office toured FDC Houston. The tour group consisted
of attorneys, investigators, and several members of the support
staff. Several FDC Houston procedures were discussed and no
6
3540

significant concerns were raised.
On October 25, 1999, FDC Houston received its first inmate, a
self-surrender for the work cadre. The incarceration of pretrial
inmates is anticipated to begin within approximately 30 days .
THREE RIVERS

AUSA Kurt Didier, AUSA Larry Ludka, and Civil Division Chief
Keith Wyatt toured the institution on October 27, 1999.
CRIMINAL MATTERS AND PROSECUTIONS
FCI FORREST CITY

(

On August 8, 1999, inmate Esparza-Lopez assaulted a Correctional
Officer by striking him in the face and kicking him in the rib
cage.
Staff members escorted the Correctional Officer to the
medical clinic where he received treatment for abrasions on his
right eye and bruises on his rib cage.
The inmate was restrained
and escorted to medical services, where he received treatment for
minor abrasions and lacerations.
Inmate Esparza-Lopez has been
indicted in the United States District Court for the Eastern
District of Arkansas for violating 18 U.S.C. §§ Ill, 3013, 3571
and 1114.
FTC OKLAHOMA CITY

On November 3, 1999, a federal grand jury returned an II-count
indictment against a former FTC Correctional Counselor, Breavess
McBride, for violating 18 U.S.C. §§ 2241(1), 2244(a} (2) and
2243(b}.
Previously, the defendant was offered a plea bargain,
and he accepted a plea of 3 years incarceration for his acts.
Due to the plea, the grand jury proceedings were halted.
However, at a subsequent hearing, the defendant disputed the
facts of the case and Judge Robin Cauthron rejected the plea
agreement.
Therefore, the grand jury proceedings resumed,
resulting in the indictment.
PERSONAL ISSUES

3541

•

u.s. Department of Justice
Federal Bureau of Prisons
South Central Regional Office

Dallas, Texas 75219
December 8, 1999

MEMORANDUM FOR CHRISTOPHER ERLEWlNE
ASSISTANT DIRECTOR/GENERAL COUNSEL
FROM:

Michael D. Hood, Regional Counsel

SUBJECT:

Monthly Report - November 1999

ADMINISTRATIVE REMEDIES
JAN

PBB

MAR

APR

MAY

JON

JUL

AUG

SSP

OCT

NOV

RBCB%VBD

184

226

225

202

199

245

187

211

175

185

219

ANSWBRBD

117

165

161

135

152

164

140

162

134

119

DBC

TORT CLAIMS

JAN

PBS

MAR

APR

MAY

JON

JUL

AUG

PBND%NG

211

201

192

183

192

198

208

206

217

219

212

RBCBXVJU)

ANSWBRBD

PBND%NG

197

193

186

207

205

206

227

219

212

230

OVBR SXX MO

(

SBP

OCT

NOV

DBC

POI/PRIVACY
JAN

PBS

MAR

APR

MAY

JON

JOL

AUG

SBP

OCT

NOV

PBNDING

RBCBXVBD

ANSWERBD

PBNDING

OVBR 20 DAYS

3565

DBC

(

LITIGATION
JAN

PBB

MAR

APR

MAY

JDH

JUL

AUG

SBP

OCT

NOV

CASBS CLOSED

BABBAS CORPUS

BnrBNS

"CA

OTBBR

L:tT RBPORTS

IlBARINGS/
TR:tALS

SB'nLBMBN'lS/
AWARDS

CASES RBCD

DEC

CASES WITH HEARl:NGS OR TRIALS

(

FMC CARSWELL

U.S.A. v. Sonia Williams. There was a mental health commitment
hearing pursuant to 18 U.S.C. 4245(d) regarding inmate Sonia
Willia~s on November 10, 1999.
After consideration, a 4245
commitment was ordered by the court.
FCl: Forrest City

King v. Snyder.
A hearing was held on November 24, 1999, in
this FCI Forrest City case. Inmate King asserts that he was
improperly denied early release pursuant to 18 U.S.C. 3621{e) due
to his Felon in Possession of a Firearm conviction. At the
hearing, we argued that the petitioner's early release
ineligibility is consistent with 18 U.S.C. 3621(e). A ruling was
not issued at the hearing, and we await further word from the
court.
CASES WITH SETTLEMENTS OR AWARDS

Adverse judgments

None
2

3566

Tort Claim settlements

None
c. Other settlements
None
SXQNXFXCANT CASES
PCX Bastrop
Martinez v. F.C.I. Bastrop Medical Department. In this case, the
suffers from herniation of a spinal disc and seeks an
order from the court directing that the BOP give him further
medical evaluation. The contract orthopedist recommended surgery
as a possible option. However, the BOP decided against surgery
as it was not medically necessary. Originally, the case was
filed as a habeas petition that was subsequently dismissed sua .
sponte because it sought relief outside the scope of the
petition. The plaintiff has now pled a Bivens complaint, or at
least the court has chosen to treat it as such. However, the
plaintiff still has not requested monetary relief. The u.s.
Attorney's Office plans to convert the case to an FTCA action and
seek summary judgment on the grounds that there is no triable
issue of negligence ar.d the inmate has not exhausted
administrative remedies.
plainti~f

Schrader v. Sandoval. We received a favorable opinion from the
5 th Circuit Court of Appeals in this case. When this Bivens suit
was originally filed, the u.s. Attorney's Office moved to
substitute the U.S.A. as the defendant on the ground that
immunity attached so long as the defendant was in the scope of
his employment and involved in rendering medical services. The
district court denied the motion on the ground that 42 U.S.C. 233
only applies to.simple negligence cases under FTCA, not Bivens
actions. We appealed the case.
On appeal, the district court was reversed. The appellate court
found that a P.H.S. officer accused of assault and battery in
violation of the Eighth Amendment, due to the manner in which he
conducted a rectal examination, is immune from suit under 42
U.S.C. 233. This appeal has been pending for over a year. The
plaintiff has never filed an administrative tort claim, and the
statute of limitations has run. Thus, we are now able to move
for a dismissal for lack of subject-matter jurisdiction.
The only reported case law interpreting 18 U.S.C. 233 is a
district court decision from Michigan. Although the appellate
3

3567

damages. It appears his negatives were confiscated and
misplaced. Hawkins has already filed a Bivens action alleging
conspiracy and neglect.
(T-SCR-99-S27)
Barnes. FCI Texarkana inmate
filed a $5,000,000
claim alleging he was placed in SHU after surgery, denied medical
treatment, and suffered an infection as a result. The inmate
returned from surgery at a local hospital, and he was placed in
SHU pending investigation of possible inappropriate conduct
during his stay at the hospital. SHU was filled to capacity and
mattresses were brought in to assist in the overflow. The inmate
was assigned to a mattress on the floor where he remained for one
night. Upon his release to the general population the following
day, he did not report to sick call; therefore, he was not
monitored. By the time the inmate reported to sick call, he had
wrapped toilet tissue around his incision and an infection had
set in. He has been treated and the infection has healed. An
investigation regarding this claim continues.
(T-BOP-99-211)

( ...

Kennard. FMC Carswell inmate
alleges that. she has
been denied adequate medical care for her right leg, which was
injured in a 1997 car wreck. She further alleges that since her
incarceration, she has attempted to get medical treatment for her
leg, and proper medical care has not been given. She states that
she experiences numbness from her knee to her hip. The claimant
is alleging $10,000 in damages.
(T-SCR-99-478)
SIGNcrFICANT ADMXNISTRATlVE REMEDIES
Flores. FCI Bas~rop inmate
who has been in SHU for
five weeks, has filed a BP-9 complaining that triple-ceIling in
SHU violates his Eighth Amendment rights. FCI Bastrop has had a
number of BP-8s on that issue, but this is the first BP-9 filed
recently. The SHU at FCI Bastrop has been overcrowded since
early August 1999, when disruptive behavior between rival gangs
resulted in the SHU placement of a large number of inmates. Many
of the cells are triple-celled. This situation will continue for
the foreseeable future.
Ruddock. USP Beaumont inmate
filed a BP-9
challenging the BOP's policy
ch reinstated the Ensign
Amendment and resulted in the rejection of sexually explicit
material addressed to him.
Gadson. FMC Fort Worth inmate
filed a BP-9
complaining of religious discrimination against the Nation of
Islam.
UPCOMING TRIALS OR HEARINGS

(

FMC CARSWELL

5
3568

c··
"

U.S.A. v. Nordell. A mental health commitment hearing pursuant
to 18 U.S.C. 4246 regarding inmate
will be held on
December 9, 1999.

MEDICAL MALPRACTICE
LITIGATJ:ON
See Significant Cases heading.

TORT CLAIMS
See Significant Tort Claims heading.
ENSIGN

AMENDMENT

See Significant Administrative Remedies heading.

LITIGATJ:ON
None

TORT CLAIMS
None

BELIGIOUS FREEDOM RESTORATION ACT

Ll:'l'l:GAT:ION
None

TORT CLAIMS
None
PRISON LITIGATION REFORM ACT ORDERS
None
SITUATIONS OF INTEREST
POC

HOUSTON

U.S. Magistrate Marcia Crone (SD/TX) and four members of her
staff toured FDe Houston on November 10, 1999. They were very
interested in all parts of the institution and asked several
6

3569

questions. Magistrate Crone subsequently stated that she
believes that many types of prison confinement complaints she
typically receives will be alleviated by the activation of FDC
Houston.
.
FDC Houston began to receive pretrial inmates on
November 16, 1999, and is expected to have one pretrial unit,
holding 124 inmates, filled by the end of the month. The
activation of a pretrial unit occurred earlier than originally
planned.
This early activation was caused by a defendant
receiving a reduced sentence due to the conditions in a u.s.
Marshals Service contract facility. Currently FDC Houston's work
cadre consists of 17 inmates.
On November 16, 1999, four staff members from the local Federal
Public Defender's office toured FDC Houston. This tour was
provided for those staff members who were unable to participate
in a previous tour.

u.s. Marshal Hiram A. Contreras (SD/TX) and AUSA Fred Dailey
visited FDC Houston on November 23, 1999. The purpose of their
visit was to discuss implementation of the Texas Exile Program,
whereby local law enforcement agencies are encouraged to present
firearms violations for federal prosecution. Primary discussion
concerned the ability of FDC Houston to receive newly arrested
persons directly from local law enforcement agencies after their
consultations with the ATF.
CRXMXNAL MATTERS AND PROSECUTXONS
FCI BEAUMONT (LOW)

The trial of inmate Alfredo Loera-Rosales is currently set to
begin on December 13, 1999. He is being prosecuted for
assaulting his Case Manager on June 12, 1999. It is anticipated
that inmate Loera-Rosales will claim that he was experiencing a
seizure when the assault occurred and that he cannot be held
responsible for his conduct.
FCl BEAUMONT (MEDIUM)

On October 5, 1999, inmate Andrew Jackson filed a motion to
withdraw his guilty plea in his pending prosecution for
assaulting teacher Gerardo Monroy on June 12, 1999. The motion
was pending as of November 23, 1999.
FCI BIG SPRING

In United States v. Garcia-Lopez, et al., all five defendants
pleaded guilty to one count of rioting. This prosecution arises
out of the May 1999 riot. Their sentencings are pending.
7

3570

..
(

According to the AUSA, the defendants will have a sentencing
guideline range of 31 to 41 months, and a recommendation will be
made to hav e the sentences run consecutively to any current term
of confinement.
The 12 inmates that were involved in the June 1999 disturbance
have been referred to the USAO in Lubbock, Texas, for prosecution
on assault and rioting charges . The USAO indicates that
indictments will be sought from the grand jury next month.
FMC FORT WORTH

On November 17, 1999, a correctional officer was arrested by the
Office of Inspector General and charged with Sexual Abuse of a
Ward. The alleged misconduct occurred approximately 2 ~ years
ago during the officer's tenure at FMC Carswell.
The officer is
on home duty status and wears a monitoring device.
No trial date
has been set.
FTC OKLAHOMA CITY

(. .

The prosecution of a former correctional officer is scheduled for
trial on January 10, 2000 . The former officer and his courtappointed attorney examined selected areas of the institution in
preparation of their defense. AUSA Teresa Black and OIG agent
Ron Holland were also present. As previously reported, the
former officer has been indicted for committing aggravated and
abusive sexual abuse, and vio lating 18 U.S.C . §§ 2241(1),
2244 (a) (2) and 2243 (b) .
FCI SEAGOVILLE

Inmate Scott Burgess' trial began on December 1, 1999. He is
being prosecuted for assaulting federal officers (BOP and U.S.
Marshals Service) and engaging in disruptive behavior. As
previously reported, inmate Scott Burgess also assaulted his
Public Defender several months ago. Several staff members have
been subpoenaed to appear at the trial, which is proceeding as of
this date.
FCI THREE RIVERS

Inmate Jesus Ocerguera-Calderon will be referred to the grand
jury this month for assaulting the DHO in November of 1999 .
Inmate Deibi Parra-Lopez will be referred to the grand jury this
month for assaulting a correctional officer in October of 1999.
PERSONAL ISSUES

(
8
3571

u.s. Department of Justice
Federal Bureau ofPrisons

(

Dallas, Texas 75219

South Central Regional Office

January la, 2000
MEMORANDUM FOR CHRISTOPHER ERLEWINE
ASSISTANT DIRECTOR/GENERAL COUNSEL
FROM:

Michael D. Hood, Regional Counsel

SUBJECT:

Monthly Report - December 1999

ADNINIS'l'RATIVE REMBDIBS
JAN

FEB

MAR.

APR

MAY

JON

JtJL

AUG

SEP

OCT

NOV

DEC

RECEIVED

184

226

225

202

199

245

187

211

175

185

219

205

ANSWERED

117

165

161

135

152

164

140

162

134

119

144

TORT CLAIMS
JAN

FEB

MAR

APR

MAY

JON

JUL

AUG

SEP

OC~

NOV

DEC

PENDZNG

211

201

192

183

192

198

208

206

217

219

212

234

RECEIVED

ANSWERED

PENDING

197

193

186

207

205

206

227

219

212

230

257

OVER SIX NO

FOI/PRIVACY
JAN

FEB

MAR

APR

MAY

JON

JUL

AUG

SEP

OC~

NOV

DBC

PENDING

RECEIVED

ANSWERED

PENDING

OVER 20 DAYS

3592

LITIGATION

JAN

FEB

MAR

APR

HAY

..roN

Jt1L

AUG

SEP

OCT

NOV

DBC

CASES CLOSED

HABEAS CORPUS

BIVENS

!'TCA

cmmR

. 0

LIT DPORTS

HEARINGS/

CASES BCD

DIALS

SETTLI:MDft'S/
AWARDS

CASES WX'l'B IIEARl:NGS OR TlUALS
IKC CA1tS1IBLL

U.S.A. v. Karen Nordell. A Mental Health Commitment Hearing
regarding inmate Karen Nordell was held before U.S. Magistrate
Bleil pursuant to 18 U.S.C. 4246. After consideration, an order
committing inmate Nordell was signed.
Also see Medical Malpractice heading.
CASES WITH SBTTLBMEN'l'S OR AWARDS

Adverse judgments

None
b.

Tort Claim settlements

Cline. The previously reportedFCI El Reno Cline administrative
claim was settled for $12,750.00.
(T-SCR-98-357)
c.

Other settlements

None

3593

Lillie Schmidt v. United States. On December 10, 1999, inmate
Schmidt wrote a letter to u.S. District Judge McBryde complaining
about her medical treatment at FMC Carswell. She complains that
she injured her hip and has been given inadequate medical care.
On December 17, 1999, Judge McBryde ordered that the
correspondence be tre~ted as a habeas petition and the United
States respond within ten days. A response has been filed and is
currently pending.
FeI Forrest City

(

King v. Morrison. On December 21, 1999, U.S. Magistrate Henry L.
Jones entered an adverse Report and Recommendation in this RDAP
case. As previously reported, the petitioner asserts that he has
been improperly denied early release under P.S. 5162.02 due to
his 18 u.s.c. 922(g) conviction. The Magistrate found that
Martin v. Gerlinski controls in this case, and he recommended
that habeas relief be granted. We intend on objecting on the
grounds that Martin is inapplicable and 18 U.S.C. 922(g) is not a
nonviolent offense.
See Medical Malpractice heading.
S:IGNIF:ICAN'l' ToaT CLADfS

Haghighat. FMC Fort Worth inmate
filed an
administrative claim which alleges negligent and wrongful hernia
surgery was performed on him. He claims the surgery caused
serious, chronic and substantial pain. He asserts that he has
suffered permanent disabilities, including erectile dysfunction.
He claims government liability in the amount of $250,000 for
personal injury. (T-SCR-99-597)
SIGNIFiCANT ADMINISTRATIVE REMEDIES

None
UPCOMING TRIALS OR BEARINGS

3
3594

(

FMC FORT WORTH

Doe v. Habib. A settlement conference is slated for
January 13, 2000, and the trial is scheduled to begin the week of
January 17, 2000. As previously reported, this Bivens case
involves claims that a WITSEC inmate's identity was improperly
disclosed by a staff member.
MEDICAL MALPRACTICE

LITIGATION
FeI BL RENO

Armando Jose Torres v. Bureau of Prisons, et ale There was a
non-jury trial before u.s. Magistrate Bana Roberts in this FTCA
case. In his suit, the plaintiff claimed he received inadequate
and/or negligent medical care during his air transportation by
the U. S. Marshals and while housed at FCI El Reno. Previously,
the plaintiff reached a settlement with a local, private
physician, Dr. Clinton Strong. However, the claims against the
government remained.

It was determined that proper medical treatment was provided by
Bureau staff. The pl~intiff was examined on several occasions
after he was delivered to FCI El Reno by the U.S. Marshals.
After undergoing several diagnostic tests at outside hospitals,
it was determined that the plaintiff suffered permanent injury to
his bladder, bowel and sexual function.
At trial, the plaintiff called several medical experts who
testified that the plaintiff received negligent medical care at
FCI El Reno. Magistrate Roberts ruled that the FTCA explicitly
excludes the federal government from liability for the actions of
any contractor and this exception is a limitation upon the FTCA's
waiver of sovereign immunity. In conclusion, Magistrate Roberts
opined that credible evidence reflected that the plaintiff's
medical history was accurately recorded and he was provided
proper medical care. The medical care and treatment was
consistent with the national standard of care for a physician
assistant.
Also See Significant Cases heading.
TORT CLAD(S

See Significant Tort Claims heading.

3595

(---

ENS:IGN AMENDMENT

None
LITIGATION
None
':ORT CLAIMS

None
RBLIGZOUS FREEDOM RESTORATION ACT
LITIGATION
None
TORT CLAIMS

None
(

PRISON LITIGATION REFORM ACT ORDERS
None
SITUATIONS 01' ntTBRBST

800STON

Texas Attorney General John Cornyn held a press conference on
December 7, 1999, regarding the Texas Exile initiative. This
program intends to encourage local law en·forcement to present
specified firearms violations for federal prosecution. Mervyn
Mosbacker, United States Attorney for the Southern District of
Texas, was also in attendance and spoke in support of the
program. Efforts continue to be made to explore possible ways in
which FDC Houston would be able to receive direct commitment of
prisoners charged with such offenses in the manner requested by
the U.s. Marshal and u.S. Attorney.
FCI Three R1vers
On December 17, 1999, Julie Gerardi, Paralegal Specialist, was
honored by the U.S. Attorney's Office for her efforts which led
to a successful result in George Rodriguez v. United States. Ms.
Gerardi was only one of three individuals recognized for work in
5
3596

civil cases.
CRIMINAL MATTERS AND PROSECUTIONS
USP BEAUMONT

1999, inmates
observed walking quickly out 0
e flo
As staff members restrained
was observed walking out of
cell 125,
ng rom·
nd chest, and holding a
homemade weapon. Staff members ordered inmate IIIIIIto drop the
weapon. Inmate _ t o o k several steps and co~ed. Inmate
Brown was restra~nd carried, via stretcher, to Health
Services. Inmat~was then transported t
utside
hospital via ambulance.
inmate
pronounced dead. Inmate
were placed in Administrative Detention.
indictment is pending.

Fe% Beaumont (Low)

(.....

Inmate Alfredo Loera-Rosales is due to be prosecuted on
January 18, 2000, for the June 1999 assault on his case manager .
I'C% BIG SPRING

....

united States v. Garcia-Lopez, et ale In this prosecution
arising out of the May 1999 disturbance, all five defendants
pleaded guilty to one count of Rioting. Sentencings are pending.
According to the AUSA, the defendants will have a guideline range
of thirty-one (31) to forty-one' (41) months and a recommendation
will be made to have the sentences run consecutively to any
current term of confinement.
The twelve inmates that were involved in the June 1999
disturbance have been referred to the u.s. Attorney's Office for
prosecution on assault and rioting charges. The AUSA indicates
that indictments will be sought from the grand jury this month.
FPC BRYAN

The Cook Supervisor who was acquitted on criminal charges of
Sexual Abuse of a Ward has returned to duty at FPC Bryan. A
determination has been made that administrative action is not
supportable. He will work in the mail room, where he has minimal
inmate contact, until he transfers to FOC Houston this month.
6

3597

(.f
\"

Inquiry continues into possible sexual abuse committed by three
other individuals. One correctional officer is on home duty
status, and two others have resigned their Bureau employment.
Grand Jury testimony has been presented regarding allegations
against the officer on home duty and one of the former officers.
We await word from the Grand Jury regarding possible indictments.
There has been no word as to what, if any, action will be taken
with respect to the allegations against the other former officer.
FCI BL RENO

Inmates James Penick and Darrell Hudec were indicted for
attempted escape in the u.s. District Court for the Western
District of Oklahoma.
We have received word that several other cases will be prosecuted
by the U.S. Attorney's Office. Inmates Sosipather Leonneli and
Arnalfo Gonzales-Garcia will be prosecuted for assault on staff;
inmates Ricardo Enriquez and Anthony Salome will be prosecuted
for possession of narcotics; and inmate Larry Davis will be
prosecuted for escape from the satellite camp.

(

r.rC OKLAIIOlG CITY
....

On November 12, 1999, inmate Hernandez pleaded guilty to assault
on a federal officer and is now awaiting sentencing. The
prosecution arises out of an assault the inmate committed on
August 26, 1999, when he hit a unit officer with a food service
tray.
A March 2000 trial date has been set in former correctional
counselor Breavess McBride's prosecution for sexually abusing
inmates. As previously reported, the former counselor has been
indicted for violating 18 u.s.c. §§ 2241(1), 2244(a) (2) and
2243(b).
I'CI SEAGOVILLE

After a trial last month, inmate Scott Burgess was found guilty
of several charges, including assaulting a u.S. Marshal. His
sentencing will probably occur soon.
I'CI TBREB RIVERS

(

On December 13, 1999, six inmates were indicted in four separate
cases. Inmates Javier Lujan-Perez and Porfirio Saldana-Ventura
were indicted by the grand jury for assault. These inmates were
observed assaulting another inmate with a lock tied to a belt.
7

3598

•

c·

In a separate incident, inmates Ka rlos Garza and Rolando Montoya
were indicted for assault.
These inmates were observed
assaulting another inmate with their fists and a lock attached to
a belt.
Inmate Jesus Oceguera-Caldero was indicted by the grand
jury for assaulting a staff member.
This inmate spit on the DHO
during a hearing.
Inmate Deibi Parra-Lopez was also indicted for
assaulting a staff member.
This inmate became upset and
assaulted a teacher because he did not want to attend class.

PERSONAL ISSUES

(

Schedu1ed Annua1/Sick Leave:

January 13

."nn ua 1 Leave

January 18-19

Annual Leave

February 9 &
14-18

Annual Leave

January 8-12

ACA Winter
Conference

January 8-12

ACA Winter
Conference

January 10 -13

Civil / Criminal
Litigation & Torts
LawPak Training

January 10-14

Annual Refresher
Training

January 31 -

Annual Refresher

Other Schedu1ed Absences:

3599