UNITED STATES GOVERNMENT

(

memorandum
DATE:

REPLY TO
ATl'N OF:

SUBJECT:

TO:

Mid-Atlantic Regional Office, Annapolis Junction, MD 20701

April 13, 1998

Bill Burlington, Regional Counsel
Mid-Atlantic Region
QUARTERLY REPORT - January 1, 1998 thru March 31, 1998
Nancy Redding, Acting Executive Assistant
Office of General Counsel

TORTS
NOM

PROP

PI

PPPI

182

141

39

0

MBD

SET

2

0

7

WD

AMT

PEND

DBN

OD

186

152

0

$1396

A/O A/P
7

115

LITIGATION

{

B/T

SET

54

5

3

NOM

BC

FTC

BIV

OTH

ANS

PEN

CLD

27

15

3

6

3

41

314

AWD
$199,711.02

ADMINISTRATIVE REMEDIES
HUM

DBa

SPB

NED

MH

LEG

PD

GRT

DEN

PEN

OD

549

172

13

50

1

24

8

38

462

123

0

FOI/PRIVACY
NOM

ANS

PEN

OD

120

109

23

0

TRIALS AND BEARINGS:

USP Terre Haute - Yanez v. US - This FTCA trial was held in
January. The inmate claimed that staff at USP Terre Haute
lost his hobby craft material when he was transferred.
Judgment was entered in the favor of the u.s.

(

'.

FCX Memphis - Johnson v. U.S. - This is a FTCA claim for lost
property arising out of the October 20, 1995, disturbance.
In
this case we were also permitted to argue discretionary
function exception. The court denied our motion and the case
proceeded to trial on January 21, 1998, and was
continued/completed on January 30, 1998. At the close of
plaintiff's proof, the Government moved for judgment as a
matter of law arguing again that the discretionary func:ion
2680

(

(

Page 2
MXR Quarterly Report
exception barred recovery, or in the alternative, that
plaintiff had not made out a prima facie case of negligence.
Having drawn a blurred line between discretionary decisions
and their ministerial implementation, the court concluded that
the BOP's development of a procedure to remove inmate personal
property was protected by the discretionary function
exception, but that the ministerial implementation was subject
to negligence analysis. Throughout, plaintiff contended that
we should not have removed the property or that we should have
returned the inmates to the same cells they occupied prior to
the disturbance. At the Judge's ins~stence that plaintiff
could have the merits considered only if he challenged the
ministerial implementation, plaintiff included that in his
challenge. The Judge then ruled in favor of the Government
and dismissed the complaint, but it is unclear as to whether
that ultimate decision was based upon the discretionary
function exception or lack of negligence.

FCl Beckley - pepew y. Hawk and Olson - This inmate filed suit
in Massachusetts because his right to have unprivileged
communications with his attorney had been restri.cted for one
year. He requested an injunction and money damages. A
hearing was held in Boston February 3, 1998. A second hearing
was held on March 16, 1998, after which the Judge dismissed
the individual liability claims 'for lack of personal
jurisdiction and transferred the official capacity claims to
the Southern District of West Virginia.
FCi Manchester - Dunlap v. Luttrell. et al, - On
February 23-25, this Biyens excessive force case was tried to
a jury. After two full days of testimony the jury deliberated
less than one hour, concluding that the four defendants did
not use excessive force in subduing an unruly inmate.
This
case also involved an FTCA claim for failure to train and
supervise the officers, and failure to provide proper medical
care to the inmate after the use of force incident. The Judge
was visibly angry at the government for canceling an outside
medical exam, and ordered that such an exam take place before
she decides the FTCA claim. The government· was allowed to
select an outside physician to perform one exam, and the
plaintiff was allowed to select one physician. Both exams have
now been completed and neither indicates any injuries that
could be attributed to the use of force incident.
SETTLEMENTS:

(

Guiterrez v. u.s. - We were informed on ,January 14, 1998, by
the AUSA in this case that the plaintiff had accepted our
Offer of Judgment for $140,000 plus costs (actual costs
$7,711.02). This is the case where the inmate, while in USMS
custody in a local jail in Michigan, fell out of the top bunk
2681

(

Page 3
MXR Quarterly Report
and permanently damaged his left elbow. Subsequently, he was
returned to BOP custody where there was a delay in surgery and
some mix-ups during post-surgery rehab.
FPC Alderson - Poindexter v. US - This old FTCA case arose
from an accident involving an Alderson vehicle and an inmate
driver. The vehicle struck another car, injuring its driver
and damaging the vehicle. The only issue was the extent of
physical damages to the driver of the other car. The case has
been settled for $40,000.
FCI Memphis - Martin. et ale y Hawk. et ale - The three
plaintiffs in this case have accepted the $4,000 each
settlement offer under FTCA. This is the Biyens/FTCA case
where the Director was still a defendant regarding the
implementation of the BOP's change in our bed board policy.

2~2

UNITED STATES GOVERNMENT

memorandum

(
DATE:

July 15, 1998

Mid-Atlantic Regional Office, Annapolis Junction, MD 20701

ATTN OF:

Bill Burlington, Regional Counsel
Mid-Atlantic Region

SUBJECT:

QUARTERLY REPORT - April 1, 1998 thru June 30, 1998

REPLY TO

TO:

Amy Whalen Risley, Executive Assistant
Office of General Counsel

TORTS
NOH

PROP

Pl:

139

108

25

PPPl:

WD

MBD

SBT

AMT

PEND

DEN

OD

Alo

Alp

2205

154

120

1

15

101

3

0

3

18

Bl:V

OTH

ANS

PEN

CLD

BIT

SBT

42

261

102

4

3

Ll:Tl:GATl:ON

(

NOH

HC

I'TC

40

16

4

16

4

AWl)

$22,900

ADMl:Nl:STRATl:VE REMKDl:BS
NOM

DBO

SPB

KED

MIl

LBG

I'D

GRT

DEN

PEN

OD

528

177

14

37

2

12

5

26

532

101

1

1'0l:/PR:IVACY
NOM

ANS

PEN

00

137

127

35

2*

*Files are being retrieved from archives

TRl:ALS AND HBARl:NGS:

(

FMC Lexington - velda Reed y. Reno - This age discrimination
case was argued before the 6th Circuit on Tuesday, April 21st.
The panel consisted of Judges, Ryan, Lay and Daughtery. On
June 8th, the Sixth Circuit ruled that the Bureau's mandatory
age requirement for primary law enforcement positions did not
violate the Age Discrimination in Employment Act, 29 U.S.C.
633a, or the Veterans Preference Act. This opinion is the
first published opinion which approves of the Bureau's policy
since the initiation of FERS in 1986. This is a major vlctory
for the BOP ~ We do not expect it' to be appealed.

2683

(

In Re Lincoln - FMC Lexington - On April 29, 1998, an
emergency hearing was held to hear inmate Lincoln's claim that
he was illegally being held beyond his release date.
In fact,
inmate Lincoln was not released the week of April 20th, as he
refused to sign the installment schedule for payment of his
fine, as required by 18 U.S.C. 3624(e). This hearing was
complicated by the U.S. Attorney's Office and Probation,
concluding that our form (from the IFRP Program Statement)
constitutes an impermissible delegation of a court function to
the Probation Officer. While I believe their position is
incorrect, I have written Jeff Shorba with some language that
we could use to modify the form, thus eliminating any
confusion about the fact that the installment agreement
relates only to collection of a fine, where a court has
previously determined both the amount of, and timing for
payment of the fine.
After the hearing, inmate Lincoln signed
a revised form and was released.
FMC Lexington - Kevin Jones y. J.T. Holland. et al, - A TRO
hearing was held on April 10, 1998, in this Biyens case
pertaining to plaintiff's allegations he was denied pain
medication and treatment for his kidney stones and back pain.
Even though Judge Wilhoit subsequently dismissed the action
with prejudice, the order did state that he (Judge Wilhoit)
had determined at the April 10, 1998, preliminary injunction
hearing that the defendants were deliberately indifferent to
plaintiff's serious medical needs because the cause of the
blood in plaintiff's urine had not been discovered and
properly addressed.
However, the Court dismissed the action
in its entirety, since plaintiff received the relief he
requested, to be seen by an outside urologist and obtain some
type of relief. Judge Wilhoit also' ordered $1,200 in attorneys
fees.
We have forwarded a-recommendation that this case be appealed.
Aside from contesting this factual finding, we are
recommending that we appeal the court's failure to require
exhaustion of administrative remedies in this Bivens case.
The Sixth Circuit now has two published decision requiring
inmates to exhaust in 1983 cases, Brown v. Toombs, 1998 WL
136185. (6th Cir. 1998) and White v. McGinnis, 131 F.3d 583
(6th Cir. 1997). Unfortunately, neither decision addresses
the claim that monetary relief was not available in-the state
system.

(

FCl Morgantown (4th Circuit) - Pelissero and Hayes y. 7hQrnpson
On April 10th, this 2-point enhanceme~t/Felon in Possession,
early release case was argued to the 4th Circuit.
The panel
was prepared to rule that the new rule mooted these cases. We
pointed out that the new rule did not apply, as both.
appellants entered a drug treatment program prior to 2=~ober
1997.- When this was pointed out, Judge Billy Wilkens
responded "you realize that admission hurts your case,- By
2~4

(

this comment, I believe Judge Wilkens may have been suggesting
that the panel was prepared to strike down the Program
Statement, Definition of the Term. Crimes of Violence, and had
hoped to avoid that result by upholding the new rule, a la
Bush v. Pitzer.
SBTTLBMBNTS:

FMC Lexington - Dumphord y. Reno - We received an adverse
Preliminary Injunction in this case, which involves an
extremely severe case of facial keloids. After much work by
Joe Tang and the staff at Lexington, the Preliminary
Injunction order has now been vacated as part of a settlement
agreement. Aside from agreeing to allow inmate Dumphord to be
seen by his private plastic surgeon, the Bureau agreed to pay
approximately $13,900 in attorney fees. When apprised of the
settlement, Judge Karl Forester seemed pleased that the matter
was resolved and that Dr. Dowden would be allowed to continue
treating inmate Dumphord.
.

c.

FCl Petersburg - Jenkins V. U.S. - This is the FTCA case
brought by the estate of a deceased former Fcr Petersburg
inmate who was scalded and stabbed by a former correctional
officer at that facility (who was then convicted of assault) .
The case was settled for $7,500 and the settlement release has
been written very broadly to put an end to any further
litigation over this incident.
FCl Milan - Miller V. U.S, - Plaintiffs Shantel Miller and
Ryanesha Swims, a minor child, filed this complaint after
denial of their administrative claim (sum certain $250,000).
It was determined to be in the best interests of the
government to settle the case for $1,500. The plaintiffs were
at FDC Milan for a social visit when the seven year old
plaintiff's finger received a 3-cm laceration to her thumb,
with a large amount of bleeding, when it was caught in the
lobby door. The case was settled for several reasons: child
and parent might be considered invitees under Michigan law;
the doors involved were glass and very heavy which causes them
to swing shut quickly; the chairs are positioned in the
visiting room in such a way that the mother'S view of the
child playing with the door was obscured; under Michigan law
negligence cannot be imputed to the parent; and under Michigan
law a child under the age of seven cannot be found
contributorily negligent.

(
2685

UNITED STATES GOVERNMENT

(

memorandum
DATE:

October 9, 1998

Mid-Atlantic Regional Office, Annapolis Junction, MD 20701

AliNOF:

Bill Burlington, Regional Counsel
Mid-Atlantic Region

SUBJECT:

QUARTERLY REPORT - July 1, 1998 thru September 3D, 1998

REnYTO

TO:

Amy Whalen Risley, Executive Assistant
Office of General Counsel

TORTS
Nt1M

PROP

P:I

141

105

31

PPP:I

WD

MBD

POD

SBT

AKT

$2475

DBN

OD

AIO Alp

93

3

12

155

4

0

1

20

B:IV

OTH

ANS

PEN

CLD

HIT

SBT

AWD

11

29

27

284

50

1

0

$0

104

L:IT:IGAT:ION

",

NOM

HC

PTC

70

24

6

ADM:IN:ISTRATrvE RBMBD:IBS

C
Nt1M

DBO

SPH

MED

MH

LBG

I'D

GRT

DRR

PBN

OD

630

205

9

60

5

17

13

32

572

109

1

FO:I/pR:IVACY
NOH

ANS

PBN

OD

158

156

37

2

TR:IALS AND HEAR:INGS:

Fez Milan - Beckley y. Scibana - The inmate" filed an
injunction and TRO requesting immediate medical care for a
prothesis of his left shoulder and the resulting pain. The
hearing took place on August 24, 1998, in front of a new
Federal judge. The Judge heard testimony from Dr. Parker,
Chief Medical Officer, and testimony from Beckley. The Court
requested that Beckley continue to work with medical staff and
that upon his placement into a CCC he could seek medical
surgery at his own cost. The Court did "not grant Beckley's
request for an Order for Tylenol #3 and immediate surgical
intervention. The Judge deferred to Dr. Parker's judgment.
SBTTLBMBNTS: None

2686