Usdoj Fbop Memo Re Quarterly Litigation Rep July to Sept 97 1998
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u.s. Department of Justice Federal Bureau of Prisons Dublin, California 94568 Office of the Regional Director March 23, MEMORANDUM TO WALLACE H. 1998 CHENEY, GENERAL COUNSEL FROM: Harlan W. Penn, Regional Counsel SUBJECT: Quarterly Report for Period July to September, 1997 Attached are the FOI/PA and litigation forms reporting information for the July to September, 1997 quarter. As explained in the following paragraph, I am not including tr,e Tort or Administrative Remedy forms this quarter. Unless specifically requested, we will not include Tort, ~,:= or Administrative Remedy statistical forms in future quarte";;' reports. In each case the forms used requi re data a ~ rea -j':' available in Central Office to be electronically or man~ :~~~ compi led here and then typed onto a blan k form tha t i s : :.~':. : 'l:·:ed or mailed to Central Office and then, if used in furthe! :.': rts, copied from the faxed or mailed copy. The possibilitig~ clerical error are significant. The Tort information ~~ . :led from the Tort Data Base which we transmit monthly to : i.' Branch. The FOr reporting requirements have changed significantly in recent months. We provide the reque~" information to Renee Barley at the beginning of eac~, l~;. :," also include information in the monthly report whi-h ~: distributed by E-mai:. The Central Office data bd;-;~ ':.:' some of the information althouqh it may not inc 1 ud . . , Cl~. ; : required by new DO.! Guide2i:les. Administrative Pc:;,(::,j':' information provided I:. F!~e"'ic\l~ reports was enti!"r.:·J ' : , ".: from Sentry and tIIE:!1 t.ypf"d ":.l': a form as d'::,scr':'L'''l rJ: Eliminating the r<'7oi r ma 1 trclnS'-"r iption and transmi~~>::. ' ... :', statistics will save S'cl::' : ~m(' dnd should improvt, : :.' of national repurt5. 2 There were no settlements or awards requiring narrative analysis during the July to September period. The trials or hearings noted are described below: u. s. v. Zubick/ CV 97-3555-JGD (CDCA). [LOS) Three hearings held in Los Angeles re sentence ~omputation/credit issues. Writ granted and inmate release ordered July 30/ 1997. Case was unusually complicated by repeated efforts of District Court to revise sentence to take into account Ninth Circuit orders regarding two prosecutions involving similar conduct under old and new law. Naidenoff v. Stratman, CV 96-2008 BTM(CGA) (CDCA). [SDC/PHX] Court-ordered immediate release of inmate following hearing regarding imposition of Special Parole Term Violation sentence and resulting computation based upon Parole Commission Notice of Action. Low v. Clarke-Cain, CV 95-0888 RMT (SHx) (CDCA). [BRN] Religious Freedom Restoration Act case in which inmate seeks injunctive relief for practice of Satmar sect of Hasidic Judaism. Trial held September 29-30/ 1997 in Los Angeles, but recessed for settlement discussions. Previously the Court ordered Low placed in a halfway house for High Holidays. . LITIGATION - 1997 4th QUARTER REPORT Awn SET Awn/SET 2 0 1 S 46 10 0 0 0 626 47 16 0 3 0 39 135 36 6 0 5 0 4 43 726 39' 0 0 1 $2,500 - -- - -- 323 -- - -- - -- 0 4 2 15 172 11 8 0 0 9 62 190 197 2,862 229 42 0 11 OTH ANS 7 4 48 331 50 4 11 170 19 549 53 8 20 6 33 67 45 6 12 4 SER 46 29 5 8 WXR 61 - -- --- - -- CO 28 6 0 31 LaC NUM HC FTC SIV MXR 42 23 8 NCR 62 30 NER 90 SCR TOT 186 396 PEN CLD -- HIT $2,692 DEFJ II I T IONS LOC tlur·j lie Location Total Ilum[,er of LaHsuits Numbe r 0 f ~'il.",-j Hdbeas C<)rpus Ac li in QUiHt8f ron s Fi 1 (~d i~, Qua r I ~- r FTC - Humber Gf rTcr,. IV::.t ions Fi led 1 It CJua11 '.:1 BIV - Ilumber of Bi'.,:ens ";'-=1 ions Fih·j in Q·Jdn·~·:OTli - Other ;\I:t i OTiS Fi 1 cd in 0uart'~'1 f-oJlS - Number' ot Li t igat ion Heports ('~Imple: t~j PEII - Numbe r 0 I l\c t ions Pend i nq eLl) - Ilumbe r (J f A~=t ions C !,):)€:d HIT Numb.?f of Hearinqs c,r Trials dl;Jr~-~Jt :,,'.-. !~n,d·/:-l.:-' M'il) - Numb.::: r cd AHd Ids I: i ve !\Ild I ','s is 1-':.: 1o'.·.. S) (tbrrcd j'lt: 1~I1;d'/s:s t':_.\:. r lid rId t SET - llumber f Settli.:[rl·:;nts - All\(;IH.l of S..::t t ler!lcnts anj t\',-:arjs 183 '.':S} .MllJ/~;~:T LITIGATION ANALYSIS The total number of lawsuits filed increased by 19 from last quarter. 1997 QUARTERLY LITIGATION REPORT FOURTH QUARTER I. TRIALS AND HEARINGS MID-ATLANTIC REGION Mildred Thompson v. Hemingway, - FPC Alderson - On July 22, 1997, hearing was held to determine why the Bureau of Prisons had not yet published a new policy to replace the "Crimes of Violence" Program Statement which was declared void in Wiggins v. Wise. At the conclusion of the hearing, the Magistrate called both sides into her chambers and suggested that the Bureau should seriously consider "settling these cases," as she indicated the current Bureau position is causing a "public relations problem" for the Bureau with the Court. NORTHEAST REGION McCarthy v. United States, No. 96-7701 (3d Cir.). On July 21, 1997, the Court of Appeals heard oral argument in this appeal of a habeas corpus denial. Inmate Arthur McCarthy, 49352-080, filed the petition challenging the recalculation of his federal sentence days before his "parole eligibility" date, his calculation changed the inmate's parole eligibility date. The Court of Appeals affirmed the District Court's order that denied the petition stating that the sentence computation was a proper exercise of BOP's discretion. Michael Lloyd v. Ronald Levine, et. al., No. 96 - , Od Ci L ) On July 21, 1997, the Court of Appeals heard oral argument concerning the dismissal of a Bivens complaint relating to the denial of CCC placement. The district court granted Defendants' Motion for Summary Judgment stating that the "decision to deny plaintiff CCC placement is not judicially reviewable absent a constitutional violation" and no reasonable fact finder would find one in this case. Moore v. Agusto, 93 Civ. 4835 (MGC) (S.D.N.Y.) On July 21. lY97, a trial commenced in this Bivens case in which the plaintit!. inmate Christopher Moore, 39228-053, alleged excessive USe of force was used when removing him from the roof top recreatlon area at MCC NY. After two hours of deliberations, the jUly returned a verdict in favor of each defendant. Drino v. Wigen. et a1., Civil No. 96-7308 (E.D.Pa.) - On August 12,1997, a trial was held in this Bivens case filt>ct by FCI Schuylkill inmate Gary Drino, 02906-015. The Plaintltt alleged that the DHO's finding that he committed a prohib~~pd act (l'Assaulting any Person" (Code 224)) was racially motivatE'd The bench trial lasted one day. defendants. The Court ruled in favor of the Stiver v. Meko, 96-3400 (3d Cir). On September 23, 1997, this habeas case was argued before the Court of Appeals. The appellee, FCI McKean inmate Robert C. Stiver, alleged that he was unlawfully denied 3621(e} early release eligibility because of prior convictions for aggravated assault and armed robbery. Through his appointed attorney, he argued that the decision to include prior violent offenses when determining early release eligibility for completion of the Drug Abuse Program violates the Double Jeopardy and Ex Post Facto Clauses of the United States Constitution. The focus of the argument was whether the Bureau of Prisons use of a prior conviction for robbery and aggravated assault to exclude an inmate from early release eligibility was a reasonable interpretation of 18 USC § 3621(e). II. SETTLEMENTS AND AWARDS MID-ATLANTIC REGION Funderburk v. USA, - LSCI Butner - FTCA property settlement for $183.35. SOUTH CENTRAL REGION Daas v. Henman, W.D. La. - FOC Oakdale - Case was settled for $2,500 and converted from a Bivens to an FTCA case. The case involved allegations of improper placement of the inmate in Administrative Detention when inmate threatened to file lawsuits and sent threatening correspondence to the Warden. Caldwell v. United States, W.D. Oklo - Fcr El Reno - Inmate alleged that BOP personnel failed to provide him with adequate winter clothing which resulted in his suffering a minot" illness. This 1989 FTCA case was settled for $1,000.00. Wright v. Miller, W.D. Tex. - FCr BASTROP - The case involved alleged excessive use of restraints during a bus trip. The plaintiff agreed to convert this Bivens action into an FTCA action and settled for $2500. NORTH CENTRAL REGION Suarez v. Scott, et al., D. Kansas CV-95-3407-KHV - USP Leavenworth - A Bivens/FTCA case. Inmate alleged he Welt; dPIued food, water, and opportunity to use a lavatory when he ..... d~: J laced in four point restraints. The complaint was amended t () ,Hid d claim under the FTCA. An agreement has been reached t C' !; •• ~ ~ ~ e the same for $250.00. NORTHEAST REGION Oriahki v. U.S., (M.D.Pa.) $176.50. - FTCA property settlement for Administrator of Estate of Harris v. U.S., 96-6549(E.D.Pa) - FTCA case involved allegations of medical malpractice; delay in receiving appropriate eye care for former inmate William Harris. The death of the inmate was unrelated to the issues in the case. Settlement for $1,500.00. Tulloch et. al. v. U.S., 92-4866 (SDNY) - MCC New York - FTCA case filed in June 1992 by six inmates who alleged that while on the elevator at MCC New York the elevator suddenly plunged to the basement. A settlement was reached. The amounts varied by inmate with a total of approximately $90,000.00. III. PENDING CASES OF INTEREST NORTH CENTRAL REGION Tighe v. Booker, 97-1046, (10" Cir. D.Ct.) - FCI FLORENCE - The Tenth Circuit affirmed a district court decision awarding credit for time spent in federal custody on writ. The inmate was in state custody when he was writted into federal custody for federal prosecution. Tighe's state sentence continued to run during entire period (31 months) in federal custody on writ. The federal sentence was ordered to run concurrently with state term and was started on date of sentencing. He sought credit toward his federal term for 31 months on writ, which was already credited toward state term. The district court ordered BOP to give that credit, citing Brown decision from the Tenth Circuit, finding that the length of time on federal writ exceeded the 19 months in Brown, thus, the custody "transmuted" to federal custody and the inmate should get the credit toward the federal sentence. The Tenth Circuit upheld the district court, holding that due to the length of time in federal custody on writ, the inmate was "in custody in connect ion with the federal Chell'ges, and thus was entitled to credit, relying on the previous decision in Brown, despite the fact that the inmate already received credit for that time toward his state sentence. II Saleem v. Helman, 7th Cir. Case No. 96-2502, (FCI PEK). Th~' offender challenged the denial of conjugal visits as a vicIldtion of First Amendment and RFRA. After the district court d 1 !:n~ l ssed the claim, inmate appealed. In an unreported opinion, th .. court held RFRA had been declared unconstitutional, citing ~~_v~ Heorne v. Flores, 117 S. Ct. 2157 (1997) and no longer W,l~: enforceable. The court followed long line of cases hold: ::'1 an inmate has no constitutional right to contact visitation 01 conjugal visits. NORTHEAST REGION Roussos v. Menifee, No. 97-7011, 1997 WESTLAW 401319 (3d Cir.). The Third Circuit, following the 9th Circuit decision in Downey, held that the BOP could not use the two point firearm enhancement to find a "crime of violence" for purposes of denying 3621(e) eligibility. The Court of Appeals did agree with our position that the appropriate remedy was to remand the case for the Bureau to reconsider Inmate Victor ROussos, 30950-054, eligibility consistent with the court decision (not to order immediate release) . M.B. v. Reish, No. 96-2347 (2d Cir. July 30, 1997). The Court of Appeals affirmed the decision of the district court in favor of the Bivens defendant. WITSEC inmate M.B. appealed the grant of summary judgement to nine MCC NY staff members in a Bivens action in which he alleges that adjudication of disciplinary charges violated his constitutional rights. Ansar el Muhammad a/k/al Tracy L. Munnerlyn v. George C. Wigen, et.al., Civil Action No. 95-3668 (E.D.Pa). - This case, which has been construed as a RFRA case, involves allegations that staff at FCI Schuylkill illegally intercepted the Plaintiff's religious mail sent from his wife. In addition, the Plaintiff, former inmate Tracy Munnerlyn, Reg. No. 06006-097, also alleges he was placed in segregation, given an incident report and disciplinary sanctions and transferred in retaliation for his religious beliefs. The case was stayed pending resolution of the Flores case by the Supreme Court. Subsequent to the Flores decision, the Department of Justice granted authorization for private counsel for each of the named defendants (although private counsel WILL NOT be reimbursed for any direct challenges to the constitutionality of RFRA). The defendants have recently agreed .on a private attorney and the case is scheduled to proceed in the near future . . NORTH CENTRAL REGION Rahman v. Keohane and Kane, 97-3270-CV-S-RGC, (W.O. MO.) Inmate alleges various conditions of - USMC SPRINGFIELD confinement violate his constitutional rights and RFRA. Plaintiff is represented by former u.s. Attorney General Ramsey Clark. ---------_._--. Tiehev. Booker, 10th eire Case No. 97-1046, (D.CL" 95-D-0638) (FCI FLF) The Tenth Circuit affinned a district court decision awarding credit for time spent in federal custody on writ. The inmate was in state custody when he was writted into federal custody for federal prosecution.. Tighe's state sentence continued to nut during entire period (31 months) in federal custody on writ. The federal sentence was ordered to run concurrently with state tenn and was started on date of sentencing. Tighe was returned to Louisiana, completed his state teoo and was taken into federal custody. He sought credit toward federal teon for 31 months on writ. which was already credited toward state term. The district court ordered BOP to give that credit, citing Brown decision from the Tenth Circuit, finding that the length of time on federal writ exceeded the 19 months in Brown. thus. the custody "transmuted" to federal custody and the inmate should get the credit toward the federal sentence. On appeal, the Tenth Circuit upheld the District Court, holding that "in light of the length of' time in federal custody on writ, the inmate was "in custody in connection with" the federal charges. and thus was entitled to credit, relying on the previous decision in Brown. The fact that the inmate already received credit for that time toward his state sentence was "of no moment" to the Tenth Circuit. SETTLEMENTS OR JUDGMENTS Suarez v. Scott, et aI, D. Kansas Case No. 95-3407·KHV, USP Leavenworth -" Inmate alleges he was denied food, water, and opportunity to use a lavatory when he placed in four point restraints. The district court denied a motion to dismiss and/or for summary judgment and appointed counsel to represent the ironate. The deposition ofthe irunate and several staff were taken and additional depositions were scheduled outside of the Leavenworth area. The complaint was amended to add a claim under the FTCA. An agreement has been reached to settle the same for $250.00 which is nuisance value. DECISIONS OF INTEREST None to report. PENDING CASES OF INTEREST Rahman v. Keohane and Kane. W.D. MO. Case No. 97-3270-CV-S-RGC. MCFP Springfield _ Inmate alleges various conditions of confinement violate his constitutional rights and RFRA Plaintiff is represented by fanner U.S. Attorney General Ramsey Clark. The DOJ has appro~ed outside counsel for the defendants. Outside counsel. David Baker. filed a responsive pleadmg on on or about September 24, 1997 on behalfof Warden Keohane. Outside Counsel noted that fanner Regional Director Patrick Kane had not been served and suggested, pursuant to F.R.Civ.P. 25 (a)(1) that Mr. Kane was deceased.. Buford ex rei. LeIer v. USA. D. Kansas Case No. 97-2263-JWL. USP Leavenworth Relatives of deceased inmate have brought on FTCA action alleging BOP negligence led to death ofdecedent. Inmate Leger was murdered by inmate Storey in August. 1995. Storey recently pleaded guilty to murder. RELIGIOUS FREEDOM RESTORATION ACT CASES Saleem v. Belman. 7th Cir. Case No. 96-2502, (pCI PEK) Offender challenged denial of conjugal visits as a violation ofFirst Amendment and RFRA. After district court dismissed claim, inmate appealed. Iil an unreported opinion, the court held RFRA had been declared Wlconstitutional, citing City ofBeome v. Flores. 117 S.Ct. 2157 (1997) and no longer was enforceable. Court followed long line of cases holding an inmate has no constitutional right to contact visitation or conjugal visits. See 1997 WL 527769. ENSIGN AMENDMENT LITIGATION No new cases filed. CRIMINAL MATTERS United States v; Rickets. S.D. Ill. FCI Greenville Inmate Rickets was sentenced to a consecutive 12 year sentence for mutiny and rioting. The case arose out of the October. 1995 disturbance at FCI Greenville. United States v.IJohnson. N.D. Ill. MCC Chicago MCC is housing several defendants who are facing the death penalty in the Northern District of Illinois. Defense.counsel requested that their expert be pennitted to interview several BOP staff who have interacted with the defendant in order to develop an opinion whether the defendant could safely function in a correctional facUity like ADX Florence without posing a risk to staff or other inmates. MCC Attorney Ken Hyle has been in contact with our office and Doug Curless in the OOC concerning this recurring and sensitive issue. United States v. Ralph E. Brandon. Sixth Circuit Case No. 97-3812. FMC Rochester Brandon is a 18 USC 4241(d) commitment. Staff determined that psychotropic medicauon was in the patienfs best medical interest and necessary to restore him to competency. Defense counsel sought an evidentiary hearing for the purpose ofobtaining a judicial detenninatlon of the need for medication. The district court declined and the defendant appealed. The coun of appeals is reviewing two issues: (1) whether a pre-trial detainee has a right to a judicial _.- proceeding prior to the involuntary administration of psychotropic medication deemed necessary to restore to competency; and (2) appellate jurisdiction. ADMINISTRATIVE CLAIMS AND OTHER MATTERS OF INTEREST None this month. TRIALS OR HEARINGS Pederson v. Reno, Case No. 5-95-30, FPC DuluthlUNICOR D. Minn. This Title VIIlEqual Pay Act trial was held September 16-18th in St. Paul, Minnesota. The plaintiff testified that she was not paid as much as similarly-situated male Systems Factory Managers in the BOP. The plaintiff admitted documents showing that the systems operation was under the Unicor Metals Division and the BOP's Grade Guidelines for Managers graded the Duluth Metals Factory Manager as a GS-12. Next the plaintiff's expert deposition was admitted. The plaintiff's expert stated that the plaintifrs position was incorrectly evaluated with the Woods Factory Manager criteria and instead should have been evaluated with the Metals Factory Manager criteria. Finally, she provided evidence that the Systems Factory Manager position at FCI Schuylkill was paid a GS-12. The defense countered with testimony that the systems operation has moved to several divisions in Unicor, that the panels-systems operation did not involve the fabrication of metal pans from raw materials, that no specific criteria existed for evaluating Systems Factory Managers in the BOP's Grade Guidelines for Managers, and when evaluated with the OPM's classification standards; the plaintifr s position correctly graded as a GS-11, not a GS-12. Several defense witnesses also testified that managing a Unicor operation at higher-secW'ity institution was more dangerous, involved greater tool control, called for a greater supervision of inmates. and was more responsibility than managing a Unicor operation at a Federal Prison Camp. After closing arguments, Judge Alsop took the case under advisement. Of the remaining nine trials and hearings held, six mental health hearings were held at the MCFP Springfield, and one mental health bearing was held at FMC Rochester. USP Florence was the site ofa criminal arraigrunent in a inmate on inmate homicide case (U.S. v. Monis). L'SP Marion staffpanicipated in a pre-trial hearing in the case Huskey v. USA. UPCOMING HEARINGS OR TRIALS Love v. Tippy, 8th Cir. Case No. 96-4224-MN, FCI Waseca, DAP credit Oral argument scheduled for Monday, October 20, 1997 in S1. Paul Minnesota. Inmate Love's underlying conviction is carrying a fireann during the commission of a drug offense or a crime of violence, 18 USC 924(c)( I). This is the exact same offense that the plaintiff in Sesler \". Pitler was convicted of and denied DAP credit under. -- PERSONNEL ISSUES None STAFF TRAVEL AND LEAVE John October 7-8 October 20 -24 Daryl October 3 October 7-8 October 7-8 Dan Vincent Sept. 29 - Oct. 10 October 20 - 24 Gwen October 17 Janet October 14 - 17 Gary October 9,10 LeeAnn None Master Agreement Training OGClNew Attorney Training CLE Medical Malpractice Master Agreement Training Master Agreement Training Institution Familiarization New Attorney Training Annual Leave Annual Leave Annual Leave Claims database WAN to Mary Rose Hagan on September 30, 1997. ·' U.S. DEPARTMENT OF mSTICE Federal Bureau of Prisons North Central Region Office of Regional Counsel --' Kansas City_ KS 66101 October 10, 1997 MEMORANDUM FOR WALLACE H. CHENEY, ASSISTANT DIRECTOR GENERAL COUNSEL & REVIEW FROM: JOHN R. SHAW, Regional Counsel SUBJECT: MONTHLY REPORT (September_ 1997) LITIGATION, CLAIMS, AND ADMINISTRATIVE REMEDY STATISTICS LITIGATION: NUM • Number of totallawsulta flied In the month (1) He • Number of habeas corpus actions flied In the reporting period FTC • Number of FTCA actions flied SIV· Number of Bivens actions filed OTH • Number of other actions flied, e.g., mental health, mandamus ANS • Number of litigation reports completed PEN· Number of cases pending CLD • Number of cases closed HIT· Number of hearings or trials (Inetude In narrative) SET· Number of settlements (include In narrative) AWD • Number of Awards (Include In narrative) Total new cases for calendar year 244 ADMlNISTRATIVE CLAIMS: JAN 70 _.' ..2££ 'n. .Q iQiQiSiQii.QiQiQ.! FEB 98 MAR 95 APR 66 Total for Calendar Year Pending MAY JUN 95 • 706 560 , g;;:g~;:;::;x;::;::;;:;;;;:;;=t4 .. ,J.....c,o...w ...d.Q. ,. ( &:',$ JUL 151 AUG 69 SEP 62 OCT !'Oy I DEC I I ..-" ADMINlSTRATIVE REMEDIES JAN FEB MAR APR MAY JUN 176 180 210 196 226 Total for Calendar Year 140 JUL 164 AUG 163 SEP OCT NOV DEC 154 1,609 FREEDOM OF INFORMATION ACTIPRIVACY ACT REQUESTS ACTUAL ON-HAND ACTUAL RECEIVED ACTUAL PROCESSED ACTUAL BACKLOG FOIA PRIVACY ACT 0 0 0 50 78 45 16 0 ADVERSE DECISIONS Clay v. Knowles D. Colorado Case No. 97-Z-0S90 (USP FLP) Judge Weinsheink ordered the government to grant credit toward an inmate's consecutive federal sentence time spent in a federal facility, which was already credited toward his state tenn. Inmate escaped from Colorado DOC and arrested later by FBI on federal drug charges. He was held at FeI Englewood pending federal trial. His federal sentence was ordered to run CONSECUTIVELY to any outstanding sentence. On date of federal sentencing. Colorado DOC restarted the state term. USMS requested designation and BOP designated to Englewood. where he remained until surrendered to the state, upon discovery of the designation error. The inmate received credit toward his state term for the period in custody from the date of federal sentence on. Upon completion of the state obligation, the inmate was returned to federal custody. He received jail credit for the time spent in custody prior to federal sentencing, and his sentence was commenced on the date received into BOP custody from the state. The Court's order directs the BOP to begin the inmate's sentence on the date of federal sentencing, to stop it on the date he was returned to the state authorities, and to begin the sentence again on the date he was returned to federal custody. The order precludes the BOP from giving effect to the sentencm~ court's order for consecutive service of the federal term. The Institution and NCRO have recommended appeal. The U.S. Attorney's Office has recommended against appeal only because of the perceived unfavorable judicial climate in the Tenth Circuit concerning sentence computation and jail credit cases. See Tighe, below. '--" October 15, 1997 Quarterly Report - SCRO 7/1/97 - 9/30/97 SOUTH CENTRAL REGIONAL OFFICE NARRATIVES JULY 1, 1997 - SEPTEMBER 30, 1997 SIGNIFICANT CASES Fowler v. USA, 97-2006 (ED/LA). Coleatha Fowler and Adrian Perry brought a Federal Tort Claims action in the Eastern District of Louisiana. Fowler and Perry are the administrators of the estates of Ricardo E. Lopez' two minor children. Lopez was murdered by Albert Young while Young was participating in the home confinement program. Plaintiffs allege that the Bureau failed to properly monitor Young's home confinement. The assigned AUSA filed an answer and is currently drafting a Motion to Dismiss. McAlpine v. Thompson, 94-1406-L (WO/OK). This case has reached the 10th Circuit Court of Appeals. The case involved our denying the inmate his use of peyote during religious ceremonies. However, because the inmate was released from BOP custody in November 1996, the AUSA will argue that the petitioner's request for relief is moot. Anez S. Robinson v. United States of America. C.A. No. 97-051, (SD/TX). Plaintiff alleges that he b~oke two metal rods in his back when he fell from an exercise bicycle. A broken seat on the bicycle caused the fall. Plaintiff alleged BOP employees were the proximate cause of his injury by not insuring the seat on the exercise bicycle was tight before allowing inmates to use it. Plaintiff alleges nothing has been done to repair the broken rods and he is totally disabled and unable to work. Plaintiff claims undue physical/emotional pain and suffering and is seeking $3,000,000.00, and any other relief deemed appropriate by the court. Rocha v. Reno, A-97-CA-549-SS (WD/TX). This case was filed pursuant to Title VII of the Civil Rights Act of 1964. Plaintiff alleges discrimination based upon national origin and age when another person was offered the position the plaintiff sought at FCI Bastrop . .. .., .3,Q.d, ( Spanjol v. USA, 4:94-CV-237 (ED/TX). Wrongful death case involving treatment at several institutions. The Court ruled in our favor, stating that although there may have been some negligence, it was not the proximate cause of his injury. FCI La Tuna reports receipt of Jacquez v. United States, et al., EP-97-CA-311-H. This is one of three cases involving the same issue - that inmates were allowed to take and successfully complete certain college classes, but were never issued transcripts for the completion of those classes, SCRO will handle these cases. CASES WITH SEITLEMENT OR AWARD a. Adverse judgments In Martinez v. Fleming, A-97-CA-010-SS (WO/TX), an FCI Bastrop habeas petition, Judge Sparks ruled that an inmate convicted of 21 U.S.C. Section 841(a) (1) with a two-point enhancement for possession of a weapon in connection with a drug offense is not a violent offender for the purposes of early release under 18 U.S.C. Section 3621(e). Notice to Appeal has been withdrawn. In Donald Pettigrew v. Fleming, A-97-CA-088-SS (WO/TX), another FCI Bastrop habeas petition, Judge Sparks ruled that an inmate convicted of 21 U.S.C. Section 846 with a two-point enhancement for possession of a firearm during the course of the conspiracy is not a violent offender for the purposes of early release under 18 U.S.C .. Section 362l(e). The Daas v. Henman case from FDC Oakdale was settled for $2,500 and converted from a Bivens to an FTCA case. The case involved allegations of improper placement of the inmate in Administrative Detention when inmate threatened to file lawsuits and sent threatening correspondence to the Warden. Caldwell v. United States (WO/OK). This 1989 FTCA case from FCI EI Reno was settled for $1,000.00. Sinks v.Slade, EP-97-CA-116-F. The FCI La Tuna petitioner challenged the BOP's determination that he was ineligible for early release because his crime was considered a crime of violence. The District Court ruled that the inmate's two point enhancement cannot make him ineligible for early release because it is not a conviction. Bobby James Cammock v. Bureau of Prisons et al., C.A.C-96-196, SD/TX. Court dismissed habeas petition. Court concluded that possession of a firearm by an illegal alien (922g) is not a IIcrime of violence ll pursuant to 18 U.S.C. § 3621(e) (B). The Court further stated IIthis legal conclusion does not mean that petitioner is entitled to a one-year reduction in his sentence. Section 3621 makes clear that the one-year reduction is discretionary with the BOP." A reconsideration motion has been filed. b. Tort Cla~ settlements Vernon Robertson had filed a tort claim alleging FTC Oklahoma City staff failed to protect him from a violent state inmate who assaulted inmate Robertson causing him limited permanent injury of his hand. Inmate Robertson was offered a settlement of $1500, which he accepted. Attempts are being made to contact the prosecuting AUSA to have the money applied toward restitution instead of to claimant's inmate account. c. Other settlements Wright v. Miller. The final settlement of $2,500.00 was accepted by the plaintiff, with no admission of liability. The case involved alleged excessive use of restraints during a bus trip. The plaintiff agreed to convert this Bivens action into an FTCA action. CASES WITH HEARING OR TRIAL Robert Horey v. Warden Woods, et al., C.A. No. C-97-292 (SD/TX). The inmate's cell became flooded with sewage. He seeks damages for prolong exposure to harmful waste and improper sanitization. A Spears hearing was conducted on July 14, 1997. The Magistrate Judge is to submit her recommendation. Three defendants have been dismissed. Banks v. USA, A-95-CA-292 (WO/TX), was tried in Austin on August 11. Phase I only addressed the issue of whether the United States was liable for the plaintiff's alleged slip and fall in an FCI Bastrop housing unit in 1994. The Magistrate Judge, citing a need to research the issue of the admissibility of some of the evidence, has not yet ruled on the question of liability. Four Mental Health Commitment Hearings, under provisions of 18 U.S.C. 4245 were held at FMC Carwell. MEDICAL MALPRACTICE LITIGATION Cancio v. John Stone, A-97-CA-544-SS (WO/TX). Bivens action against HSA at FCI Bastrop alleging deliberate indifference in treatment provided for an injured finger. Martinez v. U.S.A .. Significant medical malpractice case, alleging negligence by Bureau staff at FCI Bastrop, first by the medical staff in failing to treat his ankylosing spondylosis appropriately, and s7cond by unit officers ~n failing to.se 7ure medical attention wh1le he suffered paralys~s and excruc~at1ng pain for several days. Tommy Tompkins v. John Doe. et al., H-97-1894 (SD/TX). This Bivens-type lawsuit involves the medical care he received at several SCRO and NCRO institutions relating to cancer in his mouth. Much of the treatment was provided by consultants. He seeks a minimum of $75,000 for physical pain and mental anguish from delays in providing care and surgery. This case will be reported in our October monthly report. TORTS Brian Fuller has filed a tort claim requesting damages in the amount of $3,241,000.00. This claim replaces a lawsuit the inmate voluntarily dismissed. Inmate filed his lawsuit pro se, but has now hired an attorney for his tort claim. Allegations in the tort claim originated at FCI Seagoville, but also involve FCI Three Rivers and FCI Bastrop. Inmate is requesting compensation for delay in surgeries (two) retaliation; allergic reaction to medication; loss of future earning capacity; disfigurement; future medical expenses; and future pain and suffering. Throughout the proceedings for the lawsuit, the AUSA and Clinical Director were confident there was no BOP negligence. (T-SCR-97-240) Horace Jackson, T-SCR-97-381, $1,500,000. FMC Fort Worth alleging negligent infliction of mental anguish and emotional distress for failure of BOP to surgically remove a G.K. nail from his hip, causing pain and difficulty in walking. GUERRIERI, Mario - Mr. Guerrieri, an inmate housed at FMC Fort Worth, alleges that he contracted a staph infection after he underwent surgery at the contract hospital (Texas Osteopathic Hospital) in Fort Worth, Texas. He contends that after the surgery he was returned to the institution and on the third day he was told that he had a staph infection from either the IIdoctor's tools or from the operating room. II Mr. Guerrieri also contends that medical staff at FMC Fort Worth have failed to treat him for a nerve condition which resulted after he had two strokes in a county jail. Mr. Guerrieri seeks $750,000.00 for past and future pain and suffering. (T-SCR-97-276) JAMIESON,. Alisa - Ms. Jamieson alleges that while she was housed at FTC Oklahoma City, BOP medical staff administered a sulfa drug. Further, she states that the PA acknowledged that the drug she had been prescribed was sulfa, immediately confiscated the medication, and ordered new medication. Ms. Jamieson states that she did not receive any of the medications and as a result of her high fever she became dehydrated and was taken to a local hospital for treatment. She seeks $50,000.00 in damages (T-SCR-97-189) RODRIQUEZ, Jesus - Mr. Rodriquez, an inmate housed at FMC Fort Worth, alleges that he fell while he was housed at the EI Paso County Jail, prior to being sentenced, and sustained a hernia. The sentencing judge recommended that he be housed at a medical facility in order to have the hernia. surgically repaired. Mr. Rodriquez contends that medical staff at FMC Fort Worth have refused to provide the surgical repair because his sentence is too short. Mr. Rodriquez seeks $1,500,000.00 for past and future pain and suffering. (T-SCR-97-298) PETERSEN, Justin - Claimant asserts FCI Bastrop staff failed to provide a proper prosthesis and prosthetic socks for the amputated stump of his left leg. He also states that due to the negligence in the maintenance of a hazardous situation in the shower and in his cell, claimant suffered a fall in each of those places. (T-NCR-97-150). CARTER, Norma - A memorandum of law was sent to DOJ via the Central Office. It is anticipated that a settlement offer of $150,000 will be made. A denial letter was sent to Claimant's counsel, but was primarily intended to motivate him to provide additional documents as to her current medical status and seek reconsideration in order that settlement negotiations could begin. (T-SCR-97-28). MAY, Charles - Mr. May is currently housed at FCl Oakdale; however, he alleges that he fell from a top bunk at FCl Bastrop on August 5, 1996. Mr. May contends that he has not received proper medical attention for the injuries to his back since the fall. Mr. May further states that the Bureau of Prisons medical staff failed to provide proper medical treatment for a knee problem, which resulted in his falling from the top bunk at FCI Bastrop. Mr. May seeks $500,000.00 for past and future pain and suffering. (T-SCR-97-239). JOHNSON, Timothy - Timothy Johnson filed a claim seeking $50,000.00 for a knee injury he sustained at FCl Oakdale. Mr. Johnson alleges that he fell while playing basketball on December 29, 1996, and that he received physical therapy, which was indicated as necessary by an Orthopedic Surgeon. He contends the therapy was stopped on May 9, 1997, by the therapist because he was not responding. He further states that the physical therapist indicated that further medical evaluation was needed. Mr. Johnson states that he suffers from numbness, swelling, popping, and burning sensations due to the instability of his left knee. He also states he was slapped by a staff member. The matter has been brought to the attention of Internal Affairs. (T-SCR-97-238) . SIGNIFICANT TORT CLAIMS Wholesale Petroleum, a convenience store, has filed a claim for damages received when a BOP semi truck, driven by FeI El Reno staff, struck a canopy covering the fuel pumps. Claimants are seeking approximately $20,000.00 in damages. (T-SCR-97-281). The region forwarded its recommendation to Central Office, with the determination to be made by DOJ. Christopher Martinez, (T-SCR-97-338) and Bruno Diaz, (T-SCR-97-357) were victims of an assault which occurred at FCI Three Rivers during June 1997. Martinez is requesting compensation of $60,000.00 for his injuries. Diaz is requesting compensation of $30,000.00 for his injures. An initial review of the SIS reports does not indicate the institution was aware these inmates were in any type of danger. FPC Bryan reports that a tort claim has been filed for wrongful death regarding inmate Hortencia Flores-Cabrera. The inmate suffered liver failure and died as the result of INH-induced Hepatitis. Health Services staff were disciplined regarding the medical treatment afforded this inmate. There are concerns regarding government liability. FPC Bryan is preparing a memorandum of law to aid DOJ staff when considering whether to offer a settlement in this case and how much the offer will be. RELIGIOUS FREEDOM RESTORATION ACT LITIGATION ADMINISTRATIVE REMEDY Inmate Sheri Cohen at FMC Carswell alleges religious discrimination by staff. Response is pending. The case number is 139831-R3. FCI Texarkana reports that in Administrative Remedy 140091-Fl, the inmate is requesti~g to have his religion recognized as satanism. FCI Texarkana is initially denying the request. ENSIGN AMENDMENT: LITIGATION Received favorable Report and Recommendation from the Magistrate Judge in the Harrell case. favorable final order is forthcoming. We expect that a Milford Topsy v. Michael Purdy, et al .. CA-C-97-229 (SD/TX). Dismissed under PLRA requirements because inmate failed to satisfy filing fees. TORTS Kenneth Herbert Linn - T-SCR-97-109 and T-SCR-97-111. Inmate complained that the Bureau of Prisons did not give inmates sufficient notice of the new provisions of the Ensign Amendment in time for inmates to contact and notify publishers to have subscriptions routed to different mailing addresses. LITIGATION LOC NOM HC FTC BIV om ANS PEN CLD HIT SET AJfD HXR NER SER NCR SCR 67 45 6 12 4 39 135 36 6 5 0 WXR co ~o~ NARRATIVE ANALYSIS (NARRATIVE ATTACHED ON SEPARATE PAPER) DEFINITIONS LOC NUM HC FTC BIV OTH ANS PEN CLD - LOCATION - NUMBER OF TOTAL LAWSUITS FILED IN QUARTER - NUMBER OF HABEAS CORPUS ACTIONS FILED - NUMBER OF FTCA ACTIONS FILED - NUMBER OF BIVENS ACTIONS FILED - OTHER ACTIONS FILED - NUMBER OF LITIGATION REPORTS COMPLETED - PENDING - NUMBER OF ACTIONS CLOSED HIT - NUMBER OF HEARINGS OR TRIALS (INCLUDE INFO IN NARRATIVE) SET - NUMBER OF SETTLEMENTS (INCLUDE INFO IN NARRATIVE) AND - NUMBER OF AWARDS (INCLUDE INFO IN NARRATIVE) GOVERNMENT ACTION AND DATE OF ACTION - (INCLUDE INFO IN NARRATIVE) FOIA/PA REQUESTS MXR I i NER I SER NCR SCR i LOC NOM PROC PEND OD A/OD A/P CA , 129 WXR CO TOT NARRATIVE ANALYSIS DEFINITIONS 130 48 7 26 mrs 25 mrs J WC - LOCATION NUM - NUMBER FILED IN QUARTER PROC - PROCESSED PEND - PENDING OD -OVERDUE AlOD - AVERAGE NUMBER OF DAYS OVERDUE AlP - AVERAGE LENGTH OF TIME TO PROCESS CA - CIVIL ACTIONS FILED UNDER FOIIPA ACTS Tort Claims Third Quarter - FY 97 (April 0 I, 1997 - June 30, 1997)loc pppi wd med set amt pen den od alo alp scr 141 III 18 I 0 II 53 10616 187 116 Num - Number of claims filed PP - Personal Property claims PI - Personal Injury claims PPPI - Both PP & PI claims WD - Wrongful death claims Med - Medical claims Set - Settled!Approved claims Amt - Amount paid Pen - Pending/open claims Den - Number of claims Denied 00 - Number of claims Overdue AlO - Avg number of days Overdue AlP - Avg number of days to Process (Med = PIM + WDM + PPPIM + PPWDM) (WD = WD + PPWD) num pp 68 0 pi UNITED STATES GOVERNM memoran Mid-Atlantic Regional Office, Annapolis Junction, MD 20 DATE: REPLBill Burlington, Regional Counsel ATTNMid-Atlantic Region SUBQUARTERLY REPORT - July 1, 1997 thru September 30, 1997 TONancy Redding, Executive Assistant Office of General Counsel TORTS NOM PROP PI PPPI WD KED SET 210 123 65 15 0 7 21 BIV OTB ANS PEN CLD 7 4 48 331 50 2 AKT PEND DEN OD A/O A/P 220 141 1* 58 5019 99 LITIGATION NOM BC FTC 42 23 8 B/T SET AWD 1 $183.55 ADMINISTRATIVE RBMBDIES NOM DBO SPB MBD MB LEG PI> GRT DEN PEN OD 499 157 11 45 2 25 2 47 468 58 0 FOI/PRIVACY NOM ANS PEN OD 176 197 39 15 (over 30 days) 29 (over 10 days) *We are in the process of obtaining settlement approval from the Central Office for this claim. TRIALS AND BEARINGS: FPC Alderson - Mildred Thompson v. Hemingway - On July 22, 1997, Magistrate Mary Fienberg held a hearing to determine why the Bureau of Prisons had not yet published a new policy to replace the "Crimes of Violence" Program Statement which was declared void in Wiggins v. Wise. At the conclusion of the hearing, the Magistrate called both sides into her chambers and suggested that the Bureau should seriously consider "settling these cases," as she indicated the current Bureau position is causing a "public relations problem" for the in :; .QQ.iQ.WiWiiiXA i.:;, W" .J .. Bureau with the Court. It is clear from the hearing that BOP stands very little chance of prevailing with Magistrate Fienberg, if we take the position that we can consider conduct that was not the subject of a formal conviction when we make early release determinations. I tried to stress to Magistrate Fienberg that the Bureau feels strongly that Congress certainly didn't intend BOP to release early from prison, inmates whose crimes involved in any form, weapons. She did not seem to be persuaded. Ms. Thompson and all the other inmatee at Alderson who prevailed on these suits against the Bureau have now been reclaseified by staff as ~eligible· for early release. Fel Mamphis - Coval Baker v. USA - This is an alleged failure to protect FTCA case arising out of the unprovoked attack by inmate Paulino on inmate Baker. Trial was to begin Friday morning but had to be delayed until 1:00 p.m. because the Judge failed to writ out the inmate. USMS and R&D staff worked quickly to get the inmate to court by 1:00 p.m. The pro se inmate was permitted to call one inmate and one staff member as witnesses_ At the conclusion of the plaintiff's case, AUSA Quarles moved for a judgment as a matter of law as the plaintiff had failed to establish a prima facie case of negligence. After a few moments of consideration, the Judge granted the motion and ruled in favor of the government. It is interesting to note that plaintiff did not present any new evidence that had not already been rebutted in prior pleadings. Nothing new was revealed that made the trial any more detailed than the pleadings already before the court. SB'l'TLBHENTS: LSCl Butner - Funderburk v. USA - Parties filed a stipulation of dismissal in this action. The Bureau agreed to pay inmate Funderburk $lB3.35 for the loss of his personal property. UNJ:TED STATES GOVERNMENT memorandum Date: October 16, ~ly to Attn of: 1997 Henry J. Sadowski, Regional Counsel, Northeast Region Federal Bureau of Prisons, Philadelphia, Pa. 19106 Subject: Quarterly Report - July ~, 1997 through September 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 fourth quarter of FY 1997. The following is a sYnopsis of the significant cases in litigation during the quarter: A. SETTLEMENTS AND AWARDS l)Oriahki v. U.S., 3:CV-95-2114 (M.D.Pa) - Inmate Felix Oriahki, 51338-079, filed FTCA case involving allegations of loss of property which was mailed overseas. BOP had no evidence staff actually mailed it. U.S. Magistrate Judge recommended our motion for summary judgement be denied. Case settled for $176.50. 2) Administrator of Estate of Harris v. U.S.,96-6549(E.D.Pa) - FTCA case involved allegations of medical malpractice (delay in receiving appropriate eye care) filed by former inmate William Harris, Reg. No. 44917-066. Government·s expert indicated potential liability. Death of inmate unrelated to issues in case. Case settled for $1,500.00. 3) Tulloch et. al. v. U.S., 92-4866 (SDNY) - FTCA case filed in June 1992 filed by six inmates who alleged that while on the elevator at MCC New York en route to the roof area the elevator SUddenly plunged to the basement. On the eve of trial, and facing potential liability as a result of overcrowding on the elevator and evidence of injuries, a settlement was reached. The -3- District court denied the petition stating that the sentence computation was a proper exercise of BOP's discretion. Mike Tafelski assisted the AUSA at the argument. The Court of Appeals affirmed the District Court's order. 4) Michael Lloyd v. Ronald Levine, et. al., No. 96- , Cir) (3d On July 2~, ~997, the Court of Appeals also heard oral argument concerning the dismissal of a Bivens complaint relating to CCC denial, In July ~996, inmate Michael Lloyd, 44935-066, filed, through counsel, a request for preliminary injunction and a Bivens complaint alleging that the decision of the Warden at FCI Ft. Dix to deny him CCC placement was based upon the improper influence and retaliatory motives of the prosecuting AUSA and sentencing Judge. On November 4, ~996, the district court granted Defendants' Motion for Summary Judgement stating that "decision to deny plaintiff CCC placement is not judicially reviewable absent a constitutional violation" and no reasonable fact finder would find one in this case. The district court also held it did not have personal jurisdiction over AUSA and FBI agent and that AUSA and Judge have absolute immunity. The Court of Appeals focused on the absolute immunity question. The Court of Appeals affirmed the District Court's order. 5) Moore v. Agusto, 93 Civ. 4835 (MGC) (S.D.N.Y.) On July 2~, ~997, a trial commenced in this Bivens case in which the plaintiff, inmate Christopher Moore, 39228-053, alleged excessive use of force was used when removing him from the roof top recreation area at MCC NY. Plaintiff testified that after he refused to put on his orange jumpsuit, he was grabbed and dragged into the grill area and beat up by two staff members. Plaintiff claimed that a third staff member grabbed his head and slammed it against the wall. Plaintiff claimed that when he regained consciousness he was suspended in the air with both feet off the ground. Plaintiff also alleged he heard staff indicate that they were going to throw him down the stairs. Plaintiff contended he has permanent injury to his shoulder. During the trial, numerous depositions were also permitted by the Court. On July 23, ~997, after two hours of deliberations, the jury returned a verdict in favor of each defendant. Dominique Raia and James Vogel assisted. -4- 6) Drino v. Wigen, et. al., Civil No. 96-7308 (E.D.Pa.) On August 12, 1997, a trial was held in this Bivens case filed by FCI Schuylkill inmate Gary Drino, 02906-015. The Plaintiff alleged that the DHO's finding that he committed a prohibited act (UAssaulting any Person D (Code 224» was racially motivated. The inmate's administrative remedy appeals were denied. The bench trial lasted one day. The Court ruled in favor of the defendants. 7) United States v. Paraffin-Homen, Crim. No. ----(S.D.N.Y.) Pastor Perafan-Homen, 53476-053, (the last leader of the Cali Cartel to be incarcerated) was placed into administrative detention at MCC NY based upon information received that his life may have been in danger. His attorney filed a motion with the sentencing court to have him released into general population. In August 1997, MCC Attorney Dominique Raia convinced the judge that a motion before the criminal jUdge was not the proper jurisdiction basis for such a challenge. His attorney then filed a Petition for Writ of Habeas Corpus. A hearing was held on August 15, 1997, before the Honorable Sidney H. Stein. The court denied the writ, since the petitioner failed to demonstrate that the Bureau of Prisons has abused the discretion to place him protective custody. On that same day, Paraffin-Homen's attorney filed an expedited appeal in the Second Circuit. After appeal papers were prepared for submission, the DEA (who provided original information) requested that the Warden release the inmate from administrative detention based upon a reevaluation of the threat assessment. Eventually, after discussions with all parties, the inmate was released into general population and the appeal was withdrawn. 8) U.S. V. Russo, et al., 96-CR-696 (S-2) (DRH) (S.D.N.Y.) On August 12, 1997, MCC NY received a copy of a proposed order requiring MCC to continue to house inmate Andrew Russo, 15043-053, until such time as he can make bailor there is a final disposition of the referenced case. The AUSA did not have any objections to the Order. In a letter dated August 12, 1997, the Warden expressed his objections to the order. A status conference was held before the Magistrate Judge on August 13, -5- 1997, but the Magistrate Judge did not rule since the district court had not ordered him to render a decision. On September 23, 1997, Judge Hurley signed an order directing that inmate Russo remain at MCC New York until further order of the Court. 9) U.S. v. Motto, Crirn No. --- (E.D.PA) On August 22, 1997, Judge Shapiro held a hearing concerning the sentence computation of inmate William Motto, 35088-066. The Court had ordered a sentence of 34 days for probation violation. The inmate was released by FCI Fairton on August 20, 1997 since his presentence credit amounted to over 34 days. The court's intention was that the inmate served an additional 34 days from date of sentence. At the hearing of August 22, 1997, the court vacated the earlier sentence and ordered a 74 days sentence to approximate her intended release date for the inmate. Assisting the AUSA was Bobbie Truman, Attorney Advisor at FCI Fairton. 10) United States v. Paul Rivera, Crim.No.---(E.D.N.Y.) On August 12, 1997, Lieutenant Pitts of MOC Brooklyn testified at the request of the AUSA concerning the institutional adjustment and disciplinary history of the defendant, inmate Paul Rivera, Reg. No. 46704-053. Azzmeiah Vazquez, Attorney Advisor, MOC Brooklyn, assisted at the hearing. 11)United States v. Coleman, Crim. No. ---- E.D.PA On September 8, 1997, an evidentiary hearing was held before Judge Robert Kelly. Defendant, Arthur Coleman, 01030-158, was charged with escape for failing to return to his community corrections center after a weekend pass. He maintained that technically he did not escape because at the time he failed to return to the CCC his prior sentence had expired. The inmate constructed an erroneous argument on the basis of old law sentence computation. Tom Peoples, Regional Community Corrections Inmate Systems Specialist appeared as a witness on behalf of the United States. He testified as to the manner in which the defendant's old law sentence was computed and that the computation was correct. The judge ruled from the bench that the defendant was in lawful BOP custody at the time of his escape. Assistant Regional Counsel Joyce Horikawa assisted the AUSA at the hearing. -6- 12) Wang v. Department of Justice, et. ale ---- E.O.PA. On September 8, ~997, via a conference call, the Judge permitted the Plaintiff's attorney to withdraw, without prejudice, the pending request for injunctive relief. Plaintiff Helen Wang is the attorney who was stopped at USP Lewisburg in February ~997, with six rounds of ammunition in her briefcase. As a result of that action, and the pending criminal investigation by the U.S. Attorney's office, Ms. Wang was prohibited from entering various federal institutions by the respective Wardens pending completion of the investigation. Her attorney requested injunctive relief (lifting of an alleged nationwide ban during investigation) . The matter was held in abeyance by the Court pending the completion of the criminal investigation. The AUSA declined prosecution. The Plaintiff was informed by the BOP to initiate a request to the Warden at each institution as it is within his/her discretion to allow Ms. Wang to visit. Michael Tafelski assisted the AUSA during the call. ~3) United States v. Molinari, Criminal No. 95-672 (E.D.PA) On September ~2, 1997, a sentencing hearing was held in which the defendant argued for a downward departure alleging that the BOP could not house, care for and treat this defendant. Defense counsel argued that Mr. Molinari had an extensive documented history of agoraphobia and panic attacks and that incarceration would result in immediate death. Dr. Gerard Bryant, Northeast Regional Psychology Services Administrator, testified at length concerning the BOP's ability to manage this inmate. Dr. Bryant informed the court of numerous agoraphobics that are currently being managed in the system. The Judge agreed the BOP could properly house the defendant and sentenced the defendant to a 71 month term of imprisonment. ~4) Stiver v. Meko, 96-3400 (3d Cir) On September 23, 1997, this habeas case was argued before the Court of Appeals. The appellee, FCI McKean inmate Robert C. Stiver, 04540-068, alleged that he was unlawfully denied 3621(e) early release eligibility because of prior convictions for aggravated assault and armed robbery. Through his appointed attorney, he argued that the decision to include prior violent offenses when determining early release eligibility for completion of the Drug Abuse Program violates the Double Jeopardy -7- and Ex Post Facto Clauses of the United States Constitution. Paul Brysh, AUSA, W.D.Pa. represented the Bureau and did an outstanding job. Joyce Horikawa sat at counsel table and provided assistance during the argument. The focus of the argument was whether the Bureau of Prisons use of a prior conviction for robbery and aggravated assault to exclude an inmate from early release eligibility was a reasonable interpretation of 18 USC § 3621(e). The court of Appeals took the case under advisement. 15} United States v. Kelp, et. al., Criminal No. 97-14 (E.D.PA) On September 23, 1997, a sentencing hearing was held for three individuals who were formerly correctional officers at the local county jail. One of the issues was whether the BOP could house these individuals safely. An affidavit was submitted by the Regional Designator and testimony was expected to be provided by the Assistant Correctional Programs Administrator. Joyce Horikawa assisted the AUSA. During the hearing, the Judge did not provide the AUSA the opportunity to present the BOP's position. Under the Supreme Court decision in Koon, the court found that the possible risk to the defendants in prison was justification to support a downward departure from the sentencing guidelines. The court imposed sentences on two defendants (the third was continued) of 51 and 41 months, roughly half of the sentencing guidelines. 16) United States v. Clements, Criminal No. 97- (E.D.PA) On September 30, 1997, a conference call was held concerning the available psychological treatment for defendant, inmate Donald Patrick Clements, 12847-056. While housed at Fcr Schuylkill serving a federal sentence, inmate Clemens assaulted a correctional officer. After he was convicted, and prior to sentencing, the court ordered a mental examination be performed at FCr Butner. The study concluded that the inmate has an Axis 2 personality disorder. Defense counsel, in an effort to get a downward departure for post-conviction rehabilitation, requested an order to have the BOP house the defendant at FCr Butner so he could receive Uintensive therapyn. During the conference call with Judge Van Antwerpen, Michael Tafelski explained that, according to the BOP'S psychologists, the services available at -8- the inmate's designated institution (USP Atlanta) were appropriate and the same as any other facility for treating this individual. The Judge, in denying defense counsel's motion, stated that he was deferring to the expertise and opinion of the BOP. :'.;;;hwmu..n._, . '.M.<.v.vdltiws:;:; .:x. A;:;;:::;; ,::'001 P"IDiW"WID:!R"'Ii"'; Co..'., ev.n.QQQ.O" rsx;;;x;;""':'"!( .. (.w;:,.Q.w.Q,:;,,,,'( 0.« :h:Q,(i::V. . "!':"!'J.,O;: UiM. . .o;.C.«Qii H «Wt Q.Q.?&.V C. SIGNIFICANT PENDING CASES 1) United States v. Brian Brennan, 97 Cr. 393 (SDNY) On September 16, 1997, Raymond Voulo, M.D., MCC New York Health Services Department met with AUSA Andrew J. Frisch regarding the criminal case of United States v. Brian Brennan, 97 Cr. 393 (DGT). Further, Physicians Assistant Ruben Ustarus and AUSA Frisch had a telephone conference on September 23, 1997. Mr. Frisch considers both Dr. Voulo and P.A. Usterus as potential witnesses in the referenced case. Mr. Frisch seeks to have Dr. Voulo and P.A. Ustarus establish at trial that inmate Brennan, 48126-053, was addicted to heroin upon his admission to MCC New York. During inmate Brennan's admission to MCC New York on or about April 2, 1997, he told the Physician's Assistant that he used heroin six days a week and that he had last used the narcotic two hours prior to his medical screening. Inmate Brennan was referred to detox. Staff Attorney Clinton Stroble attended the meeting. Trial is scheduled for October 20 and 21, 1997. 2) Starzecpyzel v. U.S., Attorney Stephen Roen filed a complaint in the S.D.N.Y. 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 bail for the inmate Eileen Starzecpyzel, 34792-054. The attorney alleged this decision interfered with the ability to represent the inmate in the 2255 motion to vacate her sentence. The court ruled there was no jurisdiction to hear his complaint concerning FCI 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 -9- shoulders, etc.). The Attorney then 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 Plaintiff's request to visit in "chapel room" rather than main visiting room should not be granted. On September 27, 1997, another incident occurred involving this attorney when he attempted to use the "special mail" procedures to mail newspaper articles into his client. The mail was opened in front of the inmate and copied before being given to the inmate. The attorney filed in the Southern District of New York (which was dismissed) and then filed again in the District of Connecticut. The AUSA is being assisted by Patty Gotts, Paralegal, FCI Danbury. 3) Ansar el Muhammad alklal Tracy L. Munnerlyn v. George C. Wigen. et.al. Civil Action No. 95-3668 (E.D.Pa) This case, which has been construed as a RFRA case, involves allegations that staff at FCI Schuylkill illegally intercepted the Plaintiff's religious mail sent from his wife. In addition, the Plaintiff, former inmate Tracy MunnerlYn, Reg. No. 06006-097, also alleges he was placed in segregation, given an incident report and disciplinary sanctions and transferred in retaliation for his religious beliefs. The case was stayed pending resolution of the Flores case by the Supreme Court. Subsequent to the Flores decision, Main Justice granted authorization for private counsel for each of the named defendants (although private counsel WILL NOT be reimbursed for any direct challenges to the constitutionality of RFRA). The defendants have recently agreed on a private attorney and the case is scheduled to proceed in the near future. cc: Regional Director Senior Deputy Regional Director Deputy General Counsel ~l Associate General Counsel NORTHEAST REGIONAL OFFICE LITIGATION QUARTERLY REPORT FROM 07/01/1997 TO 09/30/1997 LOC MXR NER SER NCR SCR WXR CO TOT NOM 90 BC 53 FTC BIV om ANS PEN CLD BIT 08 20 06 33 626 47 16 SET AWD 3 0 DEFINITIONS: LOC - LOCATION NOM - NUMBER OF TOTAL LAWSUITS FILED IN QUARTER BC - NUMBER OF HABEAS CORPUS ACTIONS FILED FTC - NUMBER OF FTCA ACTIONS FILED BIV - NUMBER OF BIVENS ACTIONS FILED OTB - 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 07/01/1997 TO 09/30/1997 Loe Mxr NER Ser Ncr Ser Wxr C.O. Sum Num PP 4 141 0 0 0 1 0 146 3 94 0 0 0 1 0 98 PPPI PI I 33 0 0 0 0 0 34 WD 0 9 0 0 0 0 0 0 0 0 9 0 0 0 0 0 Med 0 5 0 0 0 0 0 5 Set Amt 0 42 0 0 0 0 0 42 0 4650 0 0 0 0 0 4650 Den 00 AIO 1 167 0 99 0 0 0 0 0 168 0 0 0 0 0 99 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Pen DEFINITIONS: LOC NOM PP PI PPPI WD Med Set Amt Pen Den OD A/O ALP - LOCATION NUMBER FILED IN QUARTER PERSONAL PROPERTY CLAIMS PERSONAL INJURY CLAIMS PERSONAL PROPERTY/PERSONAL INJURY CLAIMS CLAIMS WITHDRAWN CLAIMS ALLEGING MEDICAL NEGLIGENCE CLAIMS SETTLED AMOUNT PAID CLAIMS PENDING CLAIMS DENIED CLAIMS OVERDUE AVERAGE DAYS OVERDUE AVERAGE DAYS TO PROCESS •••• AlP 2 105 0 0 0 0 0 54 NORTHEAST REGIONAL OFFICE FOIlpA REQUESTS QUARTERLY REPORTS FROM 7/01/1997 TO 9/30/1997 LOC NOM PROC 116 156 PEND OD A/OD ALP CA 20 - - 0 MXR HER SER NCR SCR WXR CO TORT 35 DEFINITIONS: LOC NOM PROC PEND OD A/OD A/P CA - LOCATION NUMBER FILED IN QUARTER PROCESSED PENDING OVERDUE AVERAGE NUMBER OF DAYS OVERDUE AVERAGE LENGTH OF TIME TO PROCESS CIVIL ACTIONS FILED UNDER FOI/PA ACTS NORTHEAST REGIONAL OFFICE NORTHEAST REGIONAL OFFICE ADMINISTRATIVE REMEDIES QUARTERLY REPORT FROM 7/1/97 TO 9/30/97 LOC NOM DHO SPH MED 403 134 22 27 MH LEG FD GRT DEN PEN 00 1 13 2 46 222 130 0 MXR NER SER NCR SCR WXR TOT DEFINITIONS LOC NOM DHO SPH NED MH LEG PO GRT DEN PEN OD - LOCATION NUMBER OF TOTAL AD REMEDIES FILED NUMBER OF DBO REMEDIES FILED NUMBER OF SPECIAL HOUSING UNIT REMED~ES NUMBER OF MEDICAL REMEDIES FILED NUMBER OF MENTAL HEALTH REMEDIES FILED NUMBER OF LEGAL REMEDIES FILED NUMBER OF FOOD REMEDIES FILED TOTAL OF NUMBER OF REMEDIES GRANTED TOTAL NUMBER OF REMEDIES DENIED TOTAL NUMBER OF REMEDIES PENDING TOTAL NUMBER OF REMEDIES OVERDUE F~LED UNITED STATES GOVERNMENT memorandum DATE: October 21, 1997 REPLY TO AnN OF: SUBJECT: TO: Sherree L. SturgIs, Regional Counsel Bureau of Prisons, southeast Region 523 McDOnough Blvd., S.E. Atlanta, GA 30315 Fourth Quarter Report FY 97 wallace Cheney, General Counsel Bureau of Prisons, central office 320 First Street, N.W. washington, D.C. 20534 AnN: Nancy P. Redding, EXecutive Assistant The following Information Is provided for the fourth Quarter UUL. AUG, SEP) 1997. Lltlsatlon NUMBER OF ACTIONS FILED HABEAS CORPUS ACTIONS FTCA ACTIONS BIVENS ACTIONS OTHER (Mandamus, etc) NUMBER OF LITIGATION REPORTS NUMBER PENDING NUMBER CLOSED NUMBER OF HEARINGSrrRIALS NUMBER OF SETTLEMENTS AMOUNT OF AWARD NUMBER OF CRIMINAL REFERRALS 46 29 5 8 4 43 726 39 o 1 52,500.00 24 SER 1STOTR 2ND OTR 3RD OTR 4TH OTR NUM 159 115 127 122 PROP 32 97 99 102 PI 22 15 26 20 APPR 44 28 22 13 AMT 3287 DEN 91 PEND 169 3363 3081 2855 119 82 49 98 87 108 00 20 7 0 2 AlO 35 104 - AlP 79 43 20 -- 23 LlTICATION SER 1STOTR 2ND OTR 3RDOTR 4TH OTR NUM 36 67 43 46 HC 11 31 23 29 FTC 5 7 4 5 BIV 10 16 10 8 OTH 10 12 6 4 ANS 36 60 30 43 PEN 699 722 726 CLD 37 44 39 HIT SET AWD 0 1 2,501.00 FOIIPA SER 1STOTR 2NDOTR 3RD OTR 4TH OTR NUM 86 87 61 87 PROC 123 71 69 83 PEND 01 17 02 06 00 01 17 02 04 AlOD 02 02 02 02 AlP 30 30 30 30 CA ? ? 1 ? other Activities Miscellaneous Activities Travel: Sherree Sturgis -August 2 - 3; Tallahasse, Florida to discuss MIA bus accident case with AUSA and plaintiffs' attorney. Cost $494.12. van Vandivier - August 2 - 3; Tallahasse, Florida to discuss MIA bus accident case With AUSA and plalnttlffs' attorney. Cost $558.00. . van vandivier - August 6; Denver, COlorado; Resource staff for OHQ Training. cost $1066.80. Earl cotton - september 12 - 27; Alexandria, virginia to attend Leadership Forum Training course. cost $1526.33. personnel Moves Djuana Ashford - selected as the secretary for correctIonal services In the SERO. starting date: september 12,1997. patricia DeJuneas - Honors Attorney startIng date 8/3/97. Jennifer Merkel- Honors Attorney starting date 8/31/97. cc: Regional Director