Fbop Mxr Monthly Report 2002jan
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UNITED STATES GOVERNMENT memorandum ( DATE: REPLY TO February 6, ~ ~ i7~£~~~~n~i f Mid-Atlantic Regional Office, Annapolis Junction, MD 20701 Counsel ATTN OF: Mid-Atlantic Region SUBJECT: January 2002 Monthly Report M: Mm: Christopher Erlewine, General Counsel Linda DuBose, Executive Assistant ADMINISTRATIVE REMEDIES JAN Received Answered 116 116 TORT CLAIMS JAN FEB MAR APR MAY JON JUL AUG SEP OCT NOV DEC FEB MAR. APR MAY JON JUL AUG SEP OCT NOV DEC 110 # Pending 46 # Received 62 # Answered 101 # Pending 2* # Over Six Month *Serious personal injury and complex false imprisonment claims still under review. ( ' .. /PRIVACY # Pending # # # # Received Answered Pending Over 20 Working Days JAN FEB MAR. APR MAY JON JUL AUG SEP OCT NOV DEC FEB MAR. APR MAY JON JUL AUG SEP OCT NOV DEC 22 47 30 40 4* LITIGATION JAN Cases Pending New Cases Received Habeas Corpus Bivens FTCA Other Cases Closed Cases Pending Lit Reports Completed Cases/Hearings or Trials Settlements/Awards $ Settlements/Awards ($ in Thousands) 75 16 6 3 2 5 9 82 8 0 0 0 4611 Page 2 MXR Monthly Report ( SIGNIFI~T DECISIONS OR ADVERSE DECISIONS: MXR CLC - FCI Memphis and Petersburg -' Tyrone Lee v. Joe Young, (discipline/good conduct time) - The case was dismissed by the court without requiring a response from the government. Petitioner challenges the loss of good conduct time resulting from discipline proceedings at FCI Petersburg prior to his transfer to FCI Memphis. He specifically contends that staff violated his due process rights during the discipline process (no incident report within 24 hours and no UDC hearing within three days) . In conducting an extensive Sandin analysis, the court determined that to the extent Petitioner has been disallowed good conduct time, "any effect on the total period of time he will serve in prison is too uncertain and attenuated to constitute a deprivation of a liberty interest." The court then determined that he was not entitled to any procedural protections delineated by Wolff or its progeny. The inmate appealed and we drafted a reply brief, arguing that the inmate has a protected liberty interest in revoked good conduct time, and that Wolff did apply. We then noted that he did. not point to a Wolff violation, that we afforded him all process that was due, and that the district court's dismissal should be upheld. ( LEXINGTON CLC - FMC Lexington filed a motion with the N.D. Ill. for a downward departure of his sen ence due to his medical condition. ~ is scheduled to be resentenced on Feb. 14. ~ ~'1~ theory is FMC Lexington was slow to respond to a bowel obstruction, so ~ therefore he is in danger if he has a cardiac episode because Lexington will similarly respond slowly. Joe Tang did a lengthy declaration for Dr. Growse, Clinical Director, completely refuting this theory. On Feb. 1, filed another lengthy motion further claiming poor medical care. Contrary to these allegations, the medical records indicate ........ received excellent, timely care. SETTLEMENTS: MXR CLC - Salvateria v. U.S. - In an effort to move this Cumberland, medical malpractice case to working with Dr. Kendig to set up an i of former inmate ~ Salvateria. ~~ ~ LEXINGTON CLC - FMC Lexington 06451 - This claim asserts that a piece of the ceiling in his cell fell on him while he was asleep in his bed. Investigation reveals water pipe problems and liability vests against the U.S. Dr. Ramirez is reviewing the inmate's allegations of insomnia and headaches and we will approach the inmate's counsel with a settlement offer. t)~~ BECKLEY CLC - FCI Beckley Administrative Tort Claim - The inmate seeks $2.5 million for adaches and damage to his left eye which occurred when a contract pharmacist gave him the wrong prescription eye drops. The inmate appears to have suffered little if any physical injury. We are currently awaiting approval from Central Office for settlement authority. \,r1(j False Imprisonment Tort Claims - As a result of two claims where inmates were erroneously kept in custody beyond their release dates we have circulated a memo, prepared by Larry Collins, to ISM and Community Corrections, suggesting with short term sentences, we need a more detailed analysis of possible jail credit before we designate the inmate. In each of our two cases, the CCM staff did not appreciate the extent of jail credit owed the inmate, which in turn helped account for the inmate being 4612 Page 3 MXR Monthly Report ( designated to an institution, when the term had already expired, or was about to expire. LEXINGTON CLC - FCI Manchester TRT-MXR-2001- rt f'\ 04493, is one of the tort claims for a late release mentioned above. ~I~ Settlement negotiations continue with the receipt of a $100,000 counter offer by the inmate's lawyer. We will be presenting a counter offer of approximately $15,000. UPDATE ON CASES, TRIALS OR HEARINGS, ETC. NOTED IN PRIOR REPORTS: LEXINGTON CLC - FCI Ashland - Rogerick Vanzant v. USA. et ale - Plaintiff alleges his First Amendment rights, RFRA rights and equal protection rights under the Equal Protection Clause were violated by his unit counselor and manager. Vanzant received incident reports for poor sanitation, and was also sanctioned for leaving his unit to watch Muslim ta s in the chapel, even though he was on unit restrictions. ~ CRIMINAL: BECKLEY CLC - Dennis Thomas, former Chaplain, FCI Beckley, was sentenced January 28, 2002, in Huntington, West Virginia, by Judge Chambers, to a 41-month sentence for Possession with Intent to Distribute Heroin, in violation of 21 USC §841(a) (1). The Court found Thomas was responsible for 14 grams of heroin. Under the guidelines the base offense level was 16. In accordance with 2D1.1(b) (2), the base offense level was increased by two points because the object o£ the offense was the distribution of a controlled substance in a correctional facility. The level was also increased by two points pursuant to 381.3, as Thomas abused a position of pubic trust in a manner that significantly facilitated the commission of the offense. With an overall offense level of 20 and no criminal history points, the guideline range was 33 - 41 months. The Judge sentenced Thomas to the maximum penalty allowed under the guidelines. and-. cted or Assault (18 U.S.C. The charges stem from the disturbance at Fcr Beckley in December 1999. A new trial date has not been set. BECKLEY CLC - FPC Alderson former Correctional Officer, has been indicted for Abusive Sexual Contact, in violation of 18 U.S.C. § 2244. Trial has ,been postponed. A new trial date has not been set. MXR CLC - FCI Morgantown - U.S.A. v. Coger - This case has been set for trial to begin February 11, 2002. It involves a former FCr Morgantown staff member who has been charged with extortion pursuant to 18 U.S.C. § 872(f), Extortion by Officers or Employees of the U.S. The defendant was allegedly extorting money and favors from inmates at the institution. SITUATIONS OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS WASTE SITES, ETC. : District of Columbia Prisoners in Virginia Facilities - We have had several habeas petitions filed in the E.D. Virginia, where the inmate names as custodian the Virginia Warden, even though the underlying issue involves a BOP sentence computation or a decision by the U.S. Parole Commission. Judge Ellis has asked the U.S. Attorney's Office to brief the issue of who is the proper respondent in such cases. This issue is of some importance, as some in the U.S. Attorney's Office initially felt 4613 Page 4 MXR Monthly Report these petitions should be filed in the Dist rict of Columbia , not the E.D. Virginia. After much discussion, they will now concede the petitions are properly filed against the Virginia warden in the E.D. Virginia, but that given the federal interests , the u.s. Attorney's Office should be permitted to respond on behalf of the BOP or U.S . Parole Commission . ( Josep h Washington - The State of Ohio and the u.S. Attorney's Office for the Southern District of Ohio have written the Attorney Gene ral and Director Hawk Sawyer, complaining that the BOP refused to follow a state court order that called for conse c utive servi ce of inmate Washington's state and federal sentences. We origi nally refused to take this inmate, citing the federal court J & C which called for concurrent service of the two sentences. However, after being approached by the U.S. Attorney ' s Office, the court has now issued a new order which indicates the court would support the BOP assuming primary custody, which in effect means the two sentences will be consecutive. Since Ohio is now in NERO, we are working with for the of primary custody to the BOP. tJ~ LEXINGTON CLC - FMC Lexington - Joe Tang worked with the Clinical Director Michael Growse, Dr. Mike Nelson, HSD, Labor Law Deputy Tamara Chrisler, and the HRM at Victorville, on a disability issue regarding a job applicant for Victorville, CA, whose physical was done by Dr. Growse locally as a courtesy . with MS, the The candidate reported he was recent l y diagnosed th oug h he is in good condition now and can ·cal and do all irements of being a CO . ( '. LEXINGTON CLC - FMC Lexington - In the Spring of 2001 a folder containing sensit i ve staff information was inadvertently left unattended for l ess than two hours on a desk in UNICOR where inmates have access. The Union brought thi s to the attention of the Warden, who was already aware of the incident and had taken steps to address the issue . After several unsuccessful attempts with the Union, the Warden issued a memorandum to all staff concerning the event and pr.ocedures to follow if they felt private information had been compromised. which proceeded to arbitration. The Union filed a grievance The ALJ decided that the Warden needed to provide staff with another notice. The Union obtained no more relief than was previously provided by the Warden in her first memorandum. After notice was provided, a class action form was circulated by a local law firm by staff at FMC Lexington . For a fee of $25.00 and 40% contingency fee the firm will file an action based on violation of the Privacy Act. Legal staff were informed that the suit may be filed as early as this week , and have alerted the U.S . Attorney's Offic e . Per sonne l I ssues : 4614 Joyce Zoldak - Jan02 Page 1 UNITED STATES GOVERNMENT memorandum :;;'7£ February 6, 2002 ;..;::: :," Bill Burlington, Regional Counsel Mid-Atlantic Region "-".:... January 2002 Monthly Report P.Ei'::,· :-: Mld·Atlantl~ R~9:.onal Ofhce. Annapolis Junction. MD 20701 Christopher Erlewine, General Counsel "-:--=::. Linda DuBose, Executive Assistant ADMINISTRATIVE REMEDIES JAN Received Answered 116 116 TORT CLAIMS JAN PEB MAR APR KAY JllN JUL AUG SBP OCT NOV DBC FEB MAR APR KAY JllN JUL AUG SBP OCT NOV DBC Pending 110 46 Received 62 Answered 101 Pending 2· OVer Six Month ·Serious personal injury and complex false 2mprlsonment claims still under review. # # # # # (~- FOI/PRIVACY # # # # # Pending Received Answered Pending Over 20 Working Days JAN PBB MAR APR KAY JllN JUL AUG SBP OCT NOV DBC PEB MAR APR KAY Jt1N JlJL AUG SBP OCT NOV DEC 22 47 30 40 4· LITIGATION JAN Cases Pending New Cases Received Habeas Corpus Bivens FTCA Other Cases Closed Cases Pending Lit Reports Completed Cases/Hearings or Trials Settlements/Awards $ Settlements/Awards ($ in Thousands) 75 16 6 3 2 5 9 82 e 0 0 0 ( " 4329 Page 2 Joyce Zoldak - Jan02 - - - - - - - - - - - - - - - --- -- c Page 2 MXR Monthly Report SIGNIFICANT DECISIONS OR ADVERSE DECISIONS, MXR CLC - FeI Memphis and Petersburg - Tvrone Lee v. Joe Young. (discipline/good conduct time ) - The case was dismissed by the court wit.hout requir ing a response from the gc-,'ernmen:. Petitioner challenges the loss of good conduct time resulting from discipline proceedings at Fer Petersburg prior to his transfer to Fe: Mer..pr. :s . He specifically contends that staff violated his due process r igr.:s dur:r.g the discipline process (no incident report within 2~ hcurs a~c ~: ~~: ~earing within three days) In conducting an extensive Sandi n ana: ys : s. :r:.e court determined that to the extent Petitioner has been disal!c~e~ aCQ~ conduct time. "any effect on the total period of time he . . 'i::!. seI"':e :,. ;:::":..son is tOO uncertain and attenuated to constitute a dep:-~~a:!=~ :~ ~ ::..be~:; interest." The court then determined that he was not e~::..::~~ :~ 5~~' p:,,~cedural protections delineated by Wolff or its pr0gen~·. ;:-:~ :":-.rr,a: e appealed and we drafted a reply brief, arguing that the !~t;';c.::.e ::5~ :. ;:-:.-::e::ed liberty interest in revoked good conduct time, and :hat !::.:::::: old apply. We th en noted that he did not point to a Wolff ·.riola : :c:"":, :ha: '~:e af f orded him all process that was due, and that the dlstr:..c: =c~~:'s d:..s~:..ssal should be upheld. LEXINGTON CLC - FMC Lexington - Rcbe!"':. ~::-ill=:--. ::'led a motion with the N.D. Ill. for a downward departure of his sen:ence due to his medical condition. Krilich is scheduled tc be :-ese~:e~ced on Feb. 14. Krilich's theory is FMC Lexington was slo...., ':.0 respond tc a bowel obstruction. so therefore he is in danger if he has a cardiac episode because Lexington will similarly respond slowly. Joe Tang die a le:1gthy declaration for Or. Growse, Clinical Director, completely refut: ing this theory. On Feb. 1. Krilich filed another lengthy mc::..or. furthe:- claiming poor medica l care. Contrary to these allegations, the medical records indicate Krilich received excellent, timely care. ( SETTLEMENTS: - In an effort :0 move this Cumberland, working with Or. Kendig to LEXINGTON CLC - FMC Lexington - r-~ -.;:-;~ :: , ,;1 f. rec= ( 58668 - 004) This claH: 5SSe-:"'::.S ::-.;": : i~e inmate was injured when a piece of the ceiling in his CE:l~ ~el l on ~i::-. ....·r.ile he was asleep in his bed. Investigation reveals ~ate~ ~:pe p~cb:~:ns and . liability vests against the U.S. Dr. Ramire~ is !·e·:ie·..;ir.g :he; :nmate's al legations of insomnia and headaches and we ",'il: approacr. :he inmate's counsel wit h a settlement offer. TRT-MXR-2001-06451 - BECKLEY CLC - FeI Beckley - Frank Sanchez, Administrative Tort Claim - The inmat e seeks $2.5 million for headaches and damage to his left eye which occurred when a contract pharmacist gave him the wrong prescription eye drops. The inmate appears t o have suffered little if any physical injury. We are cu!rently awaiting approval from Central Office for settlement authority. False Imprisonment Tort Claims . As a result c: two claims where inmates were erroneously kept in custody beyond the ir release dates we have circulated a memo, prepared by Lar:-y Collins, to ISM and Commu nit y Corrections, suggesting with short term sentences, we need a more detailed analysis of possible jail credit before we designate the inmate. In each of our two cases, the CCM staff did not appreciate the extent of jail credit owed the inmate, which lr. : ~:- ~ helped account for the inmate being -- - --- - - - - - - - - - - - - ' 4330 Joyce Zoldak - Jan02 ( Page:= Page 3 MXR Monthly Report ". designated to an institution. when the term had already expired. or was about to expire. LEXINGTON CLC - FeI Manchester TRT-MXR-200l-04493. is one of the tort c above. Settlement negotiations continue with counter offer by the inmate's lawyer. We offer of approximately $15,000. . 'o/)CJ a ate release mentioned receipt of a $100,000 presenting a counter UPDATE ON CASES, TRIALS OR HEARINGS, ETC. NOTED IN PRIOR REPORTS: LEXINGTON CLC - FCI Ashland - Rogerick Vanzant v. USA, et al. - Plaintiff alleges his First Amendment rights, RFRA rights and equal protection rights under the Equal Protection Clause were violated by his unit counselor and manager. Vanzant received incident reports for poor sanitation, and was also sanctioned for leaving his unit to watch Muslim tapes in the chapel, even though he was on unit restrictions. We are awaiting word from Rich Montague in Torts Branch for permission to argue to dismiss the RFRA part of the claim. CRIMINAL: ( .. .... " - BECKLEY CLC - Dennis Thomas, former Chaplain, FCI Beckley, was sentenced January 28, 2002, in Huntington, West Virginia, by Judge Chambers, to a 41-month sentence for Possession with Intent to Distribute Heroin, in violation of 21 USC §841Ca) (1). The Court found Thomas was responsible for 14 grams of heroin. Under the guidelines the base offense level was 16. In accordance with 2D1.l(b) (2), the base offense level was increased by two points because the object of the offense was the distribution of a controlled substance in a correctional facility. The level was also increased by two points pursuant to 3B1.3. as Thomas abused a position of pubic trust in a manner that significantly facilitated the commission of the offense. With an overall offense level of 20 and no criminal history points, the guideline range was 33 - 41 months. The Judge sentenced Thomas to the maximum penalty allowed under the guidelines. BECKLEY CLC FCI Beckley - Myron Bonds, Reg. No. 12444-058, and Kelly Baugh, Reg. No. 35370-083 were previously indicted for Assault (18 U.S.C. § 111(a) (1) and lllCb)). The charges stem from the disturbance at FCI Beckley in December 1999. A new trial date has not been set. BECKLEY CLC - FPC Alderson -~, former Correctional Officer,\o"~ has been indicted for Abusiv~act, in violation of 18 U.S.C. § 2244. Trial has been postponed. A new trial date has not been set. MXR CLC - FCI Morgantown - U.S.A. v. Coger - This case has been set for trial to begin February 11. 2002. It involves a former FCI Morgantown staff member who has been charged with extortion pursuant to 18 U.S.C. § 872(f), Extortion by Officers or Employees of the U.S. The defendant was allegedly extorting money and favors from inmates at the institution. SITUATIONS OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS WASTE SITES, ETC. : District of Columbia Prisoners in Virginia Facilities - We have had several habeas petitions filed in the E.O. Virginia. where the inmate names as custodian the Virginia Warden. even though the underlYlng issue involves a SOP sentence computation or a declsion by the U.S. Parole Commission. Judge Ellis has asked the U.S. Attorney's Oftice to brief the issue of whc is the proper respondent in such cases. This issue is of some importance. as some ir. the C.S. Attorney's Office initially felt 4331 Page 4 Joyce Zoldak - Jan02 ('. Page 4 MXR Monthly Report these petitions should be filed in the District of columbia, not the E.O. Virginia. After much discussion, they will now concede the petitions are properly filed against the Vi rginia warden in the E.D. Virginia. but that given the federal interests, the u.s. Attorney' 5 Office should be permitted to respond on behalf of the BOP or U.S. Parole Commission. Jos eph Washington - The State of Ohio and the u.s. Attorney's Office for the Southern District of Ohio have written the Attorney General and Director Hawk Sawyer. complaining that the BOP refused to follow a state court order that called for consecutive service cf inmate Washington's state and federal sentences. We originally refused to take this inmate , citing the federa l court J & C which called fo~ concurrent service of the two sentences. Howe ver. after be~ng approached by the U. S . Attorney's Office. the court. has no ...· issued a new creer ...·:-:.!ch indicat.es the court. would support the BOP assuming prima!'"y custoo;· ...... hich in effect means the two sentences will be consecut.ive . Since Ohio 1S now in NERO. we are working with Hank Sadowski to arrange for the ~ransfer of prima r y custody to the BOP. We fully expect. to litigat.e this mat.ter. LEXINGTON CLC - FMC Le xing ton - Joe Tang worked wit.h the Clinical Director Michael Growse. Dr. Mike Nelson. HSD. Labor -Law Deputy Tamara Chrisler. and t he HRM at Victorville. on a disability issue regarding a job applicant. for Victorville, CA. whose physical was done by Dr . Growse locally as a court.esy. The candidate reported he was recent ly diagnosed with MS. though he is in good condition ss t.he cal irements of a CO . (' LEXINGTON CLC - FMC Lexington - In t.he Spring of 2001 a folder containing sensitive staff information .....as inaove.r t.ently left unat.t.ended for less t.han two hours on a desk in UNICOR ...'here inmates have access. The Union brought this to the at.tent.ion of the warden. \,'ho was already aware of t.he incident and had taken st.eps to address the issue. After several unsuccessful attempt.s with the Union, the Warden issued a me~orandum to all staff concerning the event and procedures to follow if they fe lt private information had been compromised. The Union filed a grievance which proceeded to arbitration. The ALJ decided that the Warden needed to provide staff wi t h another notice. The Union obtained no more relief than was pre v iousl y provided by the Warde;. in her first memorandum. After notice was provided, a class action form was circulated by a local law firm by staff at FMC Lexington . For a fee of 525.00 and 40% contingency fee the firm will file an action based on violat.ion of the Privacy Act. Legal staff were informed that t he suit may be filed as early as this ~e ek, and have alerted the U.S. Attorney's Office. Personnel Issues: ( 4332 Joyce Zoldak - Jan02 Page 6 Page 6 ( MXR Monthly Report Mid-Atlantic Region Litigation for the Month of January 2002 FC! CUM FCI MEM FCI MRG MXP. Hazelton OhlO Co, MARO Consolidated Legal Center Blvens HC FTCA Other ~ 0 1 0 0 0 3 1 0 1 0 0 2 0 0 0 0 0 0 0 0 0 0 0 0 0 2 (I 0 1 Lexington Consolidated Legal Center Bivens HC :rCA FMC LEX 0 1 1 FCI ASH 1 0 0 0 FCI MAN 1 0 Big Sandy 0 0 0 McCreary 0 0 0 1 2 B:.vens :) Total 2 4 1 2 1 FCC BUT FCI PET PET MEO FPC SEY W:.nton VA Contracts FCI BEC FPC ALO US? 1.E£ Glem'llle McDowell 0 0 6 He :'.-", RegionDl TotDl 4333 1 0 0 0 0 0 0 0 0 5 Other 0 0 0 0 Butner Consolidated Legal Center Blvens Other HC FTCA Total 0 0 0 0 0 0 0 1 0 0 0 0 2 Beckley Consolidated Legal Center Blvens Other HC FTCA 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Total 3 0 0 0 0 0 3 0 0 0 0 0 0 1 0 0 0 0 5 Tctal 0 0 0 0 0 0 Other Total 5 16