•

•

UNITED STATES GOVERNMENT

memora'ndum

Date:

November 12, 1996

David R. Essig, Regional Counsel, r~ortheast Region
Attn of: Federal Bureau of Prisons, Philadelphia, Pa. 19106

Reply to

Subject:
To:

Monthly Report - Oc:ftober 1996

Wallace H. Cheney, General Counsel and

Assistant Director, Federal Bureau of Prisons
Washington, D.C. 20534
ADMINISTRATIVE LEGAL ACTIVITIES - SUMMARy REPORT

Administrative Remedies - 1996
JAN FEB MAR APR
DEC
Pending on 1st 130 93 124 59
Rec'd in month 148 135 119 161
Ans'd in month 185 104 184 102
Pending at End 93 124 59 118
.Over 30 days
0
0
0
0
Administrative Tort Claims
JAN FEB MAR
DEC
Pending on 1st 323 356 361
Rec'd in month 95 86 82
Recone. rec'd
2 15
4
Ans'd in month 64 96 78
Pending at End 356 361 369
Over 180 days
0
0
0

MAY JUN JUL AUG SEP OCT NOV
118 78 98 119 112 79
146 122 178 164 137 159
186 102 157 171 170 115
78 98 119 112 79 123
0
0
0
0
0
0

- 1996
APR MAY JON JUL AUG SEP OCT NOV
369 364 362 362 326 307 306
74 90 88 77 69 66 79
10
9
9
9
6 11
5
89 101 97 124 94 78 88
364 362 362 326 307 306 302
0
0
0
0
0
0
0

Tort Claim Investigation Status: ·As of October 30, 1996

I

ALF ALM ALP ALW BRO DAN FAI FTD LEW LOR MCK NYM OTV RBK SCH
Pending
12 9 17 2 6 11 11 13 24 3 11 10 4 6 7
Over 60 days 0 0 ZOO 0 0 0 0 0 0 0 0 0 0

•

-2-

FOI/Privacy Act Requests JAN FEB MAR
DEC
Pending on 1st 86 97 115
Rec'd in month 29 39 49
Ans'd in month 18 21 18
Pending at End 97 115 146
68 81 97
Over 30 days
LITIQA~IQH A~TI~IIY

-

1996
APR MAY JUN JUL AUG SEP OCT NOV
146 170 141 143 155
54 35 43 36 33
30 64 41 24. 89
170 141 143 155 99
116 107 100 119 66

99
35
65
69
34

69
47
60
56
24

1~~6 HOR~HEAST R~QION

JAN FEB MAR APR MAY JUN JUL AUG SEP OCT NOV
DEC
Cases Open
New Cases
Lit Reports
Cases Closed
Habeas Corpus
FTcA
Bivens
Other
Bivens/FTCA

SETTLEMENTS

AND

548 555 567 564 565 569 576 575 580 587
24 24 26 22 24 22 24 14 29 17
12 17 21 19 19 20 13 17 15 18
16 17 18 25 23 18 17 15 24 10
8 14
9
7
3 11
4
8 10
7
1
1
2
8
3
1
4
2
4
2
8
4
5
8
2
9 13 13 12
13
4
2
1
0
3
1
5
0
3
1
1
0
0
2
2
0
0
1
3
1

AWARDS;

1. Wagner v, United States, Civil No. 4:CV-96-0289 (M.D.Pa.
October 18,1996)
Judge McClure entered summary judgment against the United
States and in favor of Inmat·e Michael Wagner, 03718-010, in
the amount of $172.90 plus costs. The inmate had been taken
to Special Housing at USP Allenwood and his property was
left unsecured for over three and a half hours. We had
argued that the complaint should be dismissed because an
institution emergency kept staff from securing the prop~rty.
The court found that the discretionary function exemption
would not apply in this case because the institution was
back to normal operations prior to the placement of the
inmate in SHU. We are recommending against appeal.
2.

Gonzalez v. United States, 95-CV-7448 (E.D.Pa.)

•

Inmate Mario Gonzalez, 12380-075, filed a Federal Tort
Claims complaint alleging that his property worth $1682.50
was lost at FCI Schuylkill after, an institution transfer.
The return receipt was signed by staff but the box was never
located.
Inmate rejected our attempt to settle the
administrative claim and brought this action.
Case settled
for $750.00.

-3-

3. Jones v. United States, 94-CV-5086 (E.D.Pa.)
This FTCA case was brought by former inmate Rother Jones, Reg. No.
36662-066, who suffered a massive brainstem hemorrhage on
October 18, 1991, after being transferred from FCI·Loretto to Fel McKean, via
USP Lewisburg. Jones had been under prescribed medication to control
hypertension. Approximately 2-3 hours after arriving at FCI McKean, he suffered
a brainstem hemorrhage, which left him paralyzed from the neck down and
affected his speech. The complaint alleged that the failure to provide Jones his
medication on October 18,1991 was the cause of his brainstem hemorrhage.
The case was scheduled for trial on November 12,1996. Case was settled for
$75,000 because of lack of records concerning medication and because of
serious nature of injury.

SIGNIFICANT CASES OR TRIALS:
1. Benjamin Mackey v. Bureau of Prisons. Civil No. 96-5286 (E.D.Pa.)
Inmate Benjamin Mackey, 09717-054, at FCI Schuylkill, filed a rambling habeas
corpus action challenging a DHO finding that he possessed marijuana and the
calculation of prior custody credit. Judge Shapiro held a hearing on the petition
for Thursday October 17, 1996. The court stated from the bench that she was
only focusing on two issues: whether the Bureau properly calculated the inmate's
parole violation term and whether the DHO forfeited more statutory good time
than was available at the time of the infraction. The court requested an
additional declaration detailing these issues. Hank Sadowski assisted the AUSA
I

at the hearing. During the hearing Hank discovered that the institution ISM had
miscalculated the full term date to the inmate's benefit. Instead of getting out
sooner, the inmate may actually get out later.
2. Lloyd v. Levine, et al. Civil Action No. 96-1827 (D.N.J.)
Judge Simandle held a hearing on October 21 , 1996, in the above case.
Counsel for Inmate Michael Lloyd , 44935-066, filed what purported to be a §
1983 action requesting essentially injunctive relief to order the inmate to be
placed in a CCC for 180 days. He alleged that his CCC placement was
improperly influenced by recommendations from sentencing judge and AUSA. In
addition to the Warden and other Fort Dix staff, the sentencing judge and the
AUSA were named as defendants. We moved to dismiss the complaint.
Attorney AI Munguia represented the Bureau . At the hearing , Plaintiffs attorney
raised new factual allegations concerning alleged improper contact by the FBI.
The court requested a declaration addressing these allegations. The court
stated it would rule on our motion after submission of the additional information .

-4-

3. United States v . Legrano, 94 CR 1231 (E.D.N .Y.)
On October 23, 1996, Judge Ross (E.D .N.Y.) called MCC NY Attorney
Dominique Raia to request Dr. Voulo (staff physician) testify in a sentencing
hearing ASAP. Dr. Voulo previously had treated Legrano while Legrano was at
MCC NY. Legrano is regularly seen in various clinics . The issue was whether
the BOP could care for Legrano properly if housed at a BOP facility (facing a life
sentence) . Dr. Voulo testified as to several specific medical conditions and
essentially covered his medical treatment since his incarceration with the BOP
and opined that the BOP could adequately care for him. The court reserved
ruling . Dominique attended the hearing .
4. United States v. Santiago, et aI., 96 Cr402 (S.D. N.Y.)
On October 23, 1996, Judge Leisure held a hearing concerning the scheduling of
a co-defendant meeting for the purpose of a plea offer to all defendants. The
court instructed the MCC NY to make arrangement for a codefendant meting for
October 28, 1996 at 2:00 pm. Attorney Alma Lopez attended the hearing .

5. Moscato v. Federal Bureau of Prisons, 1996 WL 601922(3d Cir. Oct. 22,
1996)
In this case, the Third Circuit established the procedural default rule for habeas
corpus cases. The inmate, Phillip Moscato, 08126-050, brought a habeas
corpus action challenging a DHO decision from 1993. The primary issues below
were the sufficiency of the evidence to support the OHO finding and the denial of
a requested witness due to unavailability (the witness was at FPC Allenwood and
the inmate had his DHO hearing at LSCI Allenwood). In addition the
administrative appeals by the inmate were rejected as untimely. Following the
7th Circuit, the Third Circuit Court of Appeals held that the doctrine of procedural
default applies in habeas corpus actions challenging inmate discipline. When an
inmate has not fully exhausted administrative remedies and no longer has such a
remedy, a court could not consider the habeas petition unless the inmate
established cause for the failure to exhaust and prejudice resulting therefrom. In
this case, the inmate could not establish cause, and the court did not need to
address whether there was prejudice. Hank Sadowski presented oral argument
on behalf of the Bureau.
6. United States v. Zampardi, 96 Cr 749 (E.O.N.Y.)
Inmate Michael Zampardi, 00128-748, a pretrial detainee at MOC Brooklyn, filed
a motion with the criminal trial judge, Judge
Gleeson, to be removed from administrative detention. Zampardi was placed in
protective custody after the. AUSA advised that the FBI received reliable
information that a contract was taken out for his life. The detainee offered to
"waive" his safety and alleged that the isolation is adversely effecting his health.
Judge Gleeson scheduled a hearing for November 1, 1996. The wrong inmate
was brought to the hearing and the hearing was held on November 4, 1996.
Attorney Azzmeiah Vazquez assisted the AUSA at the hearing. The court
reserved ruling.

-57. United States v. Diekan, Cr 95-10382 (D. Mass.)
Inmate John Diekan, 20946-038, is serving a 5 month sentence at a CCC in
Boston. The CCM ordered him to submit to a routine blood test as part of his
physical required to remain at the CCC. Diekan refused and asserted religious
grounds. He told the CCM that sometimes he was a Christian Scientist and
sometimes he was a Catholic. The CCM found that Diekan had requested
weekend passes to attend evening religious service at a Catholic Church. The
CCM denied his request not to submit to the blood test. Diekan (a former
attorney) filed an emergency motion to enjoin the Bureau from "retaliating"

against him for failure to submit to the blood test. Judge Keeton (the sentencing
judge) scheduled a hearing for Monday, October 28, 1996. The court ~sked
CCM Pete Weld to attend the hearing. The CCM told the court that all Inmates
are so screened to ensure there are no communicable diseases, and he plans to
place Diekan in a federal institution so he can be isolated. The court dismissed
the motion for lack of jurisdiction. The next day the inmate agreed to the blood
test.
8. United States v. Leggett 4:CR-94-0097 (M.D.Pa.)
Defendant Michael K. Leggett, Reg. No. 83644-011 (who is 'currently housed at
USP Lewisburg as a holdover) was charged and found guilty (on November 13,
1995) of assaulting a Unit Manager at USP Allenwood in April 1994. On March
25, 1996, during the sentencing hearing, inmate Leggett assaulted his counsel.
On October 17, 1996, after the inmate/defendant was evaluated by at least two
mental health experts and new counsel appointed, a hearing was held
specifically to decide if Leggett was competent to be sentenced. After the mental
health expert testified, USP Lewisburg Attorney Mike Tafelski testified that
according to a previous P.S.I. from a 1992 sentencing, he acted as his own
"attorney" and that during a conversation Mike had with him he appeared to
understand the significance of the issues discussed. Judge Muir has not ruled
on the inmate's competency.

RELIGIOUS CASES: New cases: See Diekan above.
Significant activity in pending cases:
1. Munnerlyn (aka Muhammad) v. Wigen. 95-CV-3668 (E.D.Pa.) -- Inmate
Tracy Munnerlyn, 06006-097, brought this Bivens type action alleging that he
was placed in administrative detention in retaliation for the practice of his religion.
The institution prepared an incident report charging the inmate with encouraging
a group demonstration. The incident report was subsequently expunged. The
inmate alleges the "Group" is a religious organization. Magistrate Judge
recommended partial grant and partial denial of summary judgment. Magistrate
Judge recommended denial on claim that, personal correspondence with religious
references should have been treated as religious material.
AUSA has requested to be removed from representation due to inability to argue
unconstitutionality of RFRA. Main Justice representation panel has yet to rule.
-62. Ghana v. Holland, CV-96-089 (M.D.Pa.) -- This action is a Bivens action by
Inmate Emory Ghana, 11416-050, and 29 other inmates at USP Allenwood
challenging the limitation on R, X & NC-17 films. Inmate alleges First
Amendment violation to deny religious films which may also be so rated. RFRA
is not cited as support by Plaintiffs. Plaintiffs request money damages and

injunctive type rel ief. On October 22 , 1996 , Court dismissed complaint for failure
to exhaust administrative remedies.
TRAVEL AND LEAVE SCHEDULE FOR NOVEMBER 1996:
Dave EssigTravel - None scheduled
Annual Leave - November 27, 29
Hank Sadowski Travel - None scheduled
Annual Leave - November 13-15
Joyce Horikawa Travel - November 26 - CLE Course, Philadelphia
Leave - None scheduled

Annual

Ron Hill Travel - None scheduled
Annual Leave - November 29
Jay Furtick Travel - None scheduled
Annual Leave - November 29
Roy Lathrop
Travel- November 1 - 15 FCI Fort Dix
Annual Leave - November 29
Fort Dix Attorney AI Munguia is on military leave November 4-15. (scheduled
prior to notice of Darrin Howard's resignation). Roy Lathrop has been
temporarily assigned to FTD to provide legal support in his absence.

cc: Regional Director, NER
Deputy Regional Director, NER
All NER CEOs
All Regional Counsel
All NER institution attorneys and paralegals
Attorneys at GLYNCO and MSTC, Aurora

UNITED STATES GOVERNMENT

memorandum

Date:

December 6, 1996

Attn of:

David R. Essig, Regional Counsel, Northeast Region
Federal Bureau of Prisons, Philadelphia, Pa. 19106

Subject:

Monthly Report - November 1996

Reply to

To:

Wallace H. Cheney, General Counsel and

Assistant Director, Federal Bureau of Prisons
Washington, D.C. 20534
ADMINISTRATIVE LEGAL ACTIVITIES - SUMMARY REPORT
Administrative Remedies - 1996
JAN FEB MAR APR
DEC
Pending on 1st 130 93 124 59
Rectd in month 148 135 119 161
Anstd in month 185 104 184 102
Pending at End 93 124 59 118
Over 30 days
0
0
0
0
Administrative Tort Claims
JAN FEB MAR
DEC
Pending on 1st 323 356 361
Rectd in month 95 86 82
Recons. rectd
2 15
4
Ansld in month 64 96 78
Pending at End 356 361 369
Over 180 days
0
0
0

MAY JUN JUL AUG SEP OCT NOV
118 78 98 119 112 79 123
146 122 178 164 137 159 115
186 102 157 171 170 115 153
78 98 119 112 79 123 85
0
0
0
0
0
0
0

- 1996
APR MAY JUN JUL AUG SEP OCT NOV
369 364 362 362 326 307 306 302
74 90 88 77 69 66 79 58
10
9
9
9
11
6
5
5
89 101 97 124 94 78 88 99
364 362 362 326 307 306 302 266
0
0
0
0
0
0
0
0

Tort Claim Investigation Status: As of November 30, 1996

ALF ALM ALP ALW BRO DAN FAI FTD LEW LOR MCK NYM OTV RBK SCH
Pending
1 3 23 a 5 11 10 11 28 2 8 6 1 3 6
Over 60 days a a 9 a a 3 1 a a 2 a a a a a

-2-

FOI/Privacy Act Requests JAN FEB MAR
DEC
Pending on 1st 86 97 115
Rec'd in month 29 39 49
Ans'd in month 18 21 18
Pending at End 97 115 146
68 81 97
Over 30 days

1996
APR MAY JUN JUL AUG SEP OCT NOV
146 170 141 143 155
54 35 43 36 33
30 64 41 24 89
170 141 143 155 99
116 107 100 119 66

99
35
65
69
34

69
47
60
56
24

56
36
55
37
17

FOIA Requests for records: As of November 30, 1996
ALF ALM ALP ALW BRO DAN FAt FTD LEW LOR MCK NYM OlV RBK SCH
Pending
0 2 1 1 0 2 1 1 6 0 1 1 1 4 3
Over 30 days 0 0 1 0 0 0 0 0 0 0 0 0 0 0 0

~ITIGAAIQN ACTI~ITY

- 1~~6 NORTHEAST REGION
JAN FEB MAR APR MAY JUN JUL AUG SEP OCT NOV

DEC
Cases Open
New Cases
Lit Reports
Cases Closed
Habeas Corpus
FTCA
Bivens
Other
Bivens/FTCA

SETTLEMENTS

548 555 567 564 565 569 576 575 580 587 581
24 24 26 22 24 22 24 14 29 17 13
12 17 21 19 19 20 13 17 15 18
7
16 17 18 25 23 18 17 15 24 10 19
8 10
4
7
7
8 14
9
3 11
3
2
4
2
2
4
8
1
1
3
1
1
13
9 13 13 12
5
8
4
8
2
9
1
3
5
0
0
3
1
1
4
2
0
0
0
0
0
1
3
2
2
1
1
0

AND AWARDS;

1. Miller v. Reno, 4:CV:93-1475 (M.D.Pa.)

Three day trial in EEO case concluded on February 29, 1996 with a jury verdict
adverse to the BOP. The staff member was reassigned to his prior correctional
officer position after serving as a case manager trainee for 13 months. The staff
member alleged that this reassignment was based on race discrimination. In
addition the staff member asserted that the reassignment was retaliatory since it

occurred two months after he made a complaint about racial remarks made by
his supervisor. The jury found for the staff member on both counts. The case
finally settled. We agreed to afford Plaintiff a Case Manager position at USP
Lewisburg, attorney fees of $37,500, and damages of $15,000.

-3-

2.

McCarthy v. United States, 4:CV-95-0723 (M. D. Pa. )

Inmate Arthur McCarthy, 49352-080, filed an FTCA complaint
alleging medical malpractice caused him to lose sight in his
right eye.
Our medical expert concluded that a two week
delay in providing the inmate care for a detached retina was
outside the appropriate standard of care. Accordingly, case
was settled for $110 ,0 00.

SIGNIFICANT CASES OR TRIALS:
1. United States v. Gonzales, No. 95-1605 (S.Ct.)
Oral argument in this criminal appeal has been scheduled
before the Supreme Court for December 11, 1996. The issue
is whether a federal sentence imposed under 18 U.S.C. §
924(c), which prohibits concurrent service "with any other
term of imprisonment," may be ordered to run concurrently
with a state sentence , i. e., does "any other term of
imprisonment" encompass state sentences as well as federal.
The position of the United States is that it encompasses
state sentences as well. Miguel Estrada (who argued Reno v.
Koray) has been assigned the argument and he has asked Hank
Sadowski to assist him.
2. United States v. Zampardi, 96 Cr 749 (E.D.N.Y.)

This is a follow up to this case discussed in last month's
report. Inmate Michael Zampardi, 00128-748, a pretrial
detainee at MDe Brooklyn, filed a motion with the criminal
trial judge, Judge Gleeson, to be removed from
administrative detention. Zampardi was placed in protective
custody after the AUSA advised that the FBI received
reliable information that a contract was taken out for his
life. The detainee offered to "waive" his safety and
alleged that the isolation is adversely effecting his
health.
Judge Gleeson scheduled a hearing for November 1,
1996. The wrong inmate was brought to the hearing and the
hearing was held on November 4, 1996. Attorney Azzmeiah
Vazquez assisted the AUSA at the hearing. On November 6,
1996, the court dismissed the motion for failure to exhaust
available remedies within the BOP.

3. United States v. Celester, ,Crim. No. --- ((O.N.J.)
On December 2, 1996, released defendant William Celester had a sentencing
hearing before Judge Garrett Brown in Trenton, NJ. Celester was the former
Police Director for Newark, NJ. Gelester argued, in part, for a downward
departure from the

-4-

sentencing guideline range of 21 to 27 months, because he had a series of
medical problems which could not be handled "given the modest state of penal
medicine in many facilities." Gelester has
hypertension, congestive heart failure and malabsorption syndrome secondary to
an intestinal bypass. The AUSA submitted a letter from Regional HSA asserting
that the medical problems could be handled at any federal institution (also
confirmed with Medical Designations). Assistant Regional Counsel Joyce
Horikawa attended the hearing. The court himself questioned the defendant's
doctor and determined the doctor was unaware of the medical capabilities of the
Federal Bureau of Prisons. Not only did the court reject the defendant's request
to go below the sentencing guidelines, the court imposed a sentence of 30
months, above the guidelines because Gelester violated the public trust.

4. Fisher v. Goord, et al., 96-CV-0486 (W.D.N.Y.)
New York State inmate Amy Fisher ("Long Island Lolita" of Joey Buttafuoco
fame) is alleging that a number of New York state institution staff have had sex
with her, some with her consent, some without. She has filed a civil rights action
against numerous state officials. As part of her relief, she has moved the court
to order her transferred to the Federal BOP. The United States is not a party to
the action. We have filed an Amicus brief asserting that the court has no
jurisdiction and that there is no authority to order the United States to take a state
prisoner. Judge Arcara held a hearing on December 3, 1996. The Judge
focused on our argument that revised 18 U.S.C. § 3626 sets the standard for his
decision on injunctive relief. Neither Plaintiff nor the New York state defendants
addressed this statue in their briefs. The court requested Plaintiff to submit a
response to this argument within 14 days.
5. United States v. Hammer, 4:CR-96-239 (M.D.Pa.)
Inmate David Hammer, 24507-077, has been charged with the April 1996 murder
of an inmate at USP Allenwood. The United States Attorney has requested
authorization from DOJ to seek the death penalty. On November 21 & 25, 1996,
Judge Muir held hearings on a motion filed by defense counsel challenging the
attorney visiting procedure at USP Allenwood. Defense counsel objected to the
number of searches (pat and visual) of Hammer to and from each visit. Defense
counsel also objected to non-contact visits. Attorney Hope Moro assisted the
AUSA at the hearings. The court requested proposed orders from both sides.
The court has not issued its decision.

-5-

6. State of New York v. Marc Johnson, Crim. No. 13048/95
(Supreme Ct. N. Y . )

Federal parole violator Marc Johnson, 24552-053, is housed
at MDC
Brooklyn pending the parole revocation hearing by the U.S.
Parole Commission.
Johnson is also facing New York state
charges for attempted murder. The Parole Commission denied
the District Attorney's request for production because the
Commission was to conduct their revocation hearing first.
New York State Justice Lott held a hearing on November · 21,
1996 to determine if the State had violated speedy trial
rights. The ISM from the MDC testified at the hearing
concerning the efforts made by the prosecutors to secure the
defendant and concerning the position of the Parole
Commission. Azzmeiah Vazquez assisted the state prosecutor
at the hearing.
The state court reserved ruling.
7.

•

United States v. Solomon, -- CR --

(S.D.N.Y.)

On November 4, 1996, Judge Preska held a hearing on
allegations by Pretrial detainee Amir Solomon, 3609B-054,
that he had wanted to attend the trial but was physically
unable to do so.
In a prior proceeding, the detainee had
tried to throw a chair at the Judge. The Judge found he
waived his right to attend the trial, but she permitted him
to apply for re-entry.
Solomon was trying to argue that all
the proceedings held in his absence were improper because he
was medically unable to apply for reentry. At the hearing ,
MCC NY staff testified concerning Solomon's ability to
attend the court proceedings. Dominique Raia attended the
hearing. The court found that Solomon attempt to allege a
medical excuse was not credible and determine that he
voluntarily did not attend the proceedings.
B.

United States v. Muyet, 95 CR. 941 (S.D.N . Y.)

On November 13, 1996, Judge Leisure held a hearing on why
one of his prior orders was not complied with by MCC NY.
The court had ordered that leal materials be dropped off and
delivered to the defendants on a Saturday .
Instead the
inmates did not receive the materials until the following
Monday. Despite written instructions to staff, the
materials were inadvertently placed in the mail room instead
of being immediately delivered.
The Warden personally
appeared at the hearing and apologized to the court for the
error.
(Dominique Raia was at the Mathurin hearing below) .

The court accepted the apology.
On November 20, 1996, the law clerk for the judge asked the
Warden to agree for a one time visit between detainee John
Muyet, 38027-054, and a non-family vis itor. Arrangements
were attempted for the visit but the inmate could not
contact his visitor and demanded instead that she be added
to his permanent visiting li st. The inmate threatened that
if his request as denied, the Judge would make the Warden
appear in court again. The Warden
sent a letter to the court advising him of this situation.
- 6-

9.

united States v. Mathurin,

CR

(S.D.N.Y.)

On November 1 3 , 1996, a former Physician's Assistant at MCC
NY testified in the criminal trial of Pierre Mathurin,
42870-054. As part of his defense to drug charges, the
inmat e alleged that he had a leg injury which required him
to have a narcotic in his possession. The former PA
testified that the inmate did not have a leg injury which
required him to take a narcotic. Dominique Raia attended
the hearing.

RELIGIOUS CASES:

New cases: None

Significant activity in pending cases:
1. Munnerlyn (aka Muhammad) v. Wigen, 95-CV-3668 (E.D.Pa.)
-- Inmate Tracy Munnerlyn, 06006-097, brought this Bivens
type action alleging that he was placed in administrative
detention in retaliation for the practice of his religion.
The institution prepared an incident report c harging the
inmate with encouraging a group demonstration.
The incident
report was subsequently expunged.
The inmate alleges the
"Group " is a religious organization. Magistrate Judge
recommended partial grant and partial denial of summary
judgment. Magistrate Judge recommended denial on claim that
personal correspondence with religious references should
have been treated as religious material.
AUSA has requested to be removed from representation due to
inability to argue unconstitutionality of RFRA. An attorney

from the Torts Branch has been assigned to represent the
Defendants.
TRAVEL AND LEAVE SCHEDULE FOR DECEMBER 1996:
Dave Essig Travel - None scheduled
Annual Leave - December 20, 23, 24
Hank Sadowski Travel - December 11 - Supreme Court - Gonzales
argument
Annual Leave - December 26-January 3

Joyce Horikawa Travel - December 2 - U.S. v. Celester sentencing
hearing - Trenton, NJ
Annual Leave - December 23-24
Ron Hill Travel - None scheduled
Annual Leave - December 2, 6, 9, 10, 27, 30
Jay Furtick Travel - None scheduled
Annual Leave - January 2-3

-7-

Roy Lathrop
Travel - None scheduled
Annual Leave - December 23-27

cc: Regional Director, NER
Deputy Regional Director, NER
All NER CEOs
All Regional Counsel

All NER institution attorneys and paralegals
Attorneys at GLYNCO and MSTC, Aurora

•

•

UNITED STATES GOVERNMENT

memorandum

Date: January 10, 1997
Reply to
Attn of:

David R. Essig, Regional Counsel, Northeast' RegioIl~c;
Federal Bureau of Prisons, Philadelphia, Pa. 19106 ~

Subject: Monthly Report -:,' December 199ff
To:

Wallace H. Cheney, General Counsel and

Assistant Director, Federal Bureau of Prisons
Washington, D.C. 20534
ADMINISTRATIVE LEGAL ACTIVITIES - SUMMARy REPORT
Administrative Remedies - 1996
JAN FEB MAR APR
DEC
Pending on 1st 130 93 124 59
85
Rec'd in month 148 135 119 161
141
Ans'd in month 185 104 184 102
162
Pending at End 93 124 59 118
64
Over 30 days
0
0
0
0
0

MAY JUN JUL AUG SEP OCT NOV
118

78

98 119 112

79 123

146 122 178 164 137 159 115
186 102 157 171 170 115 153
78
. 0

98 119 112
0

0

0

79 123
0

0

85
' 0

Administrative Tort Claims - 1996
JAN FEB MAR APR MAY JUN JUL AUG SEP OCT NOV
DEC
Pending on 1st 323 356 361 369 364 362 362 326 307 306 302
266
Rec'd in month 95 86 82 74 90 88 77 69 66 79 58

.~

51
5
5
6 11
2 15
4
10
9
9
9
Recons. rec'd
10
Ans'd in month 64 96 78 89 101 97 124 94 78 88 99
84
Pending at End 356 361 369 364 362 362 326 307 306 302 266
243
0
Over 180 days
a a 0 a 0 0 a a 0 a
0

Tort Claim Investigation Status: As of December 30, 1996
ALF ALM ALP ALW BRa DAN FAI FTD LEW LOR MCK NYM OlV RBK SCH
1
12 1
12 4 6 11
2 2
3 6
Pending
Over 60 days
6
3

a
a
a a a a a

a
a
a a a a a a a a

-2-

FOI/Privacy Act Requests JAN FEB MAR
DEC
Pending on 1st 86 97 115
37
Rec'd in month 29 39 49
41
Ans'd in month 18 21 18
44
Pending at End 97 115 146
34
68 81 97
Over 30 days
9

1996
APR MAY JON JUL AUG SEP OCT NOV
146 170 141 143 155

99

69

56

54

35

43

36

33

35

47

36

30

64

41

24

89

65

60

55

170 141 143 155

99

69

56

37

116 1.07 100 119

66

34

24

17

FOIA Requests for records: As of December 30, 1996
ALF ALM ALP ALW BRO DAN FAI FTD LEW LOR MCK NYM OTV RBK SCH
022 1 0 2 022 1 1 224 2
Pending
Over 30 days 0 0 1 0 0 0 0 0 0 0 0 0 0 1 0

~lTlQAA10N

ACTIVITX - 1~~6 HQRTHEAST REQIQH
JAN FEB MAR APR MAY JON JUL AUG SEP OCT NOV

DEC
Cases Open
570
New Cases
14
Lit Reports
8
Cases Closed
25
Habeas Corpus
4
FTCA
3
Bivens
4
Other
2
Bivens/FTCA

548 555 567 564 565 569 576 575 580 587 581
24

24

26

22

24

22

24

14

29

17

13

12

17

21

19

19

20

13

17

15

18

7

16

17

18

25

23

18

17

15

24

10

19

8

10

4

7

7

3

11

8

14

9

3

2

2

4

2

4

8

3

1

1

1

1

13

9

13

13

·12

5

8

2

8

4

9

1

3

5

0

0

3 . 1

1

4

2

0

0

0

0

0

1

3

2

2

1

0

1

1

SETTLEMENTS AND AWARDS;

None

SIGNIFICANT CASES OR TRIALS;
1. United States V, Gonzales, No. 95-1605 (S.Ct.)
Oral argument in this criminal appeal was heard before the
Supreme Court on December 11, 1996. The issue is whether a
federal sentence imposed under 18 U.S.C. § 924(c), which
prohibits concurrent service "with any other term of
imprisonment," may be ordered to run concurrently with a
state sentence, i. e., does "any other term of imprisonment"
encompass state sentences as well as federal. The position
of the United States is that it encompasses state sentences
as well. Miguel Estrada (who argued Reno v, Koray )
presented argument on behalf of the United States. The oral
argument went well and the Court appeared to have a firm
understanding that the statute was directed to federal
sentences and was not an attempt to control state sentencing
discretion. Hank Sadowski assisted Mr. Estrada at the
argument.

-3-

2.

Terrance Jones v. Meko, Civil No. 96-4

(W.D.Pa.)

On November 27, 1 996, the United States District Court for
the Western District of Pennsylvania granted the petition
for writ of habeas corpus in the above case.
The court
summari l y adopted the Report and Recommendation of the
Magistrate Judge which found that the Bureau incorrectly
concluded Petitioner was ineligible for 18 U.S.C. § 3621(e)
early reduction because Petitioner Terrance L. Jones,
Register No . 03840-055, had committed a crime of violence.
The court rejected our rationale that a two point
enhancement for firearms possession automatically
constitutes a crime of violence. We had construed the order
granting the petition as one finding Jones eligible for
early reduction.
Jones had a projected release (before
early reduction) of December 12, 1997, the institution was
exploring CCC placement for community transition. This had
the impact on reducing the maximum possible reduction ' for
Jones to about 6 months. On the basis of a letter written
by Jones to the court,
Judge McLaughlin held a telephone
hearing on December 11, 1996. Dave Essig represented the
Bureau. The Judge concluded that his intention was that
Jones receive the maximum benefit and ordered Jones released
on December 12, 1996.
3. Hunter v. Malinov, civil Action No. 96-1195 (EDPA)
Inmate Milton Hunter, 18759-016, brought a Bivens action
against medical staff at FCI Schuylkill alleging that he had
prostate cancer and staff has not properly treated him.
Inmate had since been transferred to FCI Cumberland. On
December 12, 1996, Judge Shapiro held a status conference to
go over discovery issues. The primary problem was a demand
by appointed counsel to photograph portions of the medical
department at FCI Schuylkill. Hank Sadowski assisted the
AUSA.
Counsel for Hunter agreed to withdraw his request for
photos until he toured the FCI.
4. Fisher v. Goord, et aI., 96-CV-0486 (W.O.N .Y.)
New York State inmate Amy Fisher ("Long Island Lolita" of Joey Butlafuoco

fame) is alleging that a number of New York state institution staff have had sex
with her, some with her consent, some without. She has filed a civil rights action
against numerous state officials. As part of her relief, she has moved the court
to order her transferred to the Federal BOP. The United States is not a party to
the action. We have filed an Amicus brief asserting that the court has no
jurisdiction and that there is no authority to order the United States to take a state
prisoner. Judge Arcara held a hearing on December 3, 1996.

-4The Judge focused on our argument that revised 18 U.S.C. § 3626 sets the
standard for his decision on injunctive relief. Neither Plaintiff nor the New York
state defendants addressed this statute in their briefs. The court requested
Plaintiff to submit a response to this argument within 14 days of the hearing. The
Plaintiff submitted a response asserting that Section 3626 is unconstitutional.
5. United States v. Hammer, 4:CR-96-239 (M.D.Pa.)
Inmate David Hammer, 24507-077, has been charged with the April 1996 murder
of an inmate at USP Allenwood. The United States Attorney has requested
authorization from DOJ to seek the death penalty. On November 21 & 25, 1996,
Judge Muir held hearings on a motion filed by defense counsel challenging the
attorney visiting procedure at USP Allenwood. Defense counsel objected to the
number of searches (pat and visual) of Hammer to and from each visit. Defense
counsel also objected to non-contact visits. Attorney Hope Moro assisted the
AUSA at the hearings. In an 31 page opinion dated December 5,1996, the court
denied the defendant's motion.

6. Harris

y. Bureau of Prisons. et al., civil Action No.

96-6549 (E.D.Pa.)
Counsel for former inmate William Harris, 44917-066 filed a
combination FTCA and Bivens complaint against the Bureau of
Prisons and staff at FC! Schuylkill, alleging negligent.
medical treatment for a detached retina in early 1995. A$ a
result, he allegedly lost sight in one eye. None of the
Bureau defendants have been served. The U.S. Attorney was
served on December 3, 1996. Judge Marvin Katz held a
pretrial conference on
December 18, 1996. Joyce Horikawa assisted the AUSA at the
conference.
Plaintiff's attorney reported that Plaintiff recently died
of a heart attack, and she was not sure if she would pursue
the case. She also indicated that she did not know the
jurisdictional basis for her allegations of statutory
violations. The court gave her 30 days in which to file an
amended complaint, naming the United States as the sole
defendant under the FTCA. Plaintiff agreed that she would
request no more than $100,000.00. The judge indicated that
once Plaintiff filed an amended complaint, he would place

this case on the arbitration docket.

-5-

7.

united States v. Marsico, Criminal No. 96-261 (E.D.Pa.)

Defendant, Michael Marsico, Reg. No. 49961-066, had a
sentencing hearing on December ~9, 1996 before Judge
Robreno. The Defendant had pleadedoguilty to 2 "counts of
bank robbery. Defense counsel requeste~ a downward
departure from the applicable sentencing guidelines because
of defendant's history of drug abuse and psychological
problems, including two post-arrest suicide attempts.
Counsel was implying that the Bureau of Prisons could not
adequately treat the defendant. Joyce Horikawa attended the
hearing with Dr. Gerard Bryant, the Regional Psychology
Administrator.
The AUSA advised the court that Bureau of Prisons staff were
available to address the treatment available to inmates. On
questioning from the court, defense counsel conceded that
the Bureau of Prisons could handle defendant's psychological
problems. The court denied defendant's motion for a
downward departure, and sentenced Marsico to a sentence of
156 months. Judge Robreno stated, given defendant's
inability to correct his drug addiction on his own, the
Bureau may be the only place where Marsico could adequately
address his drug problem.
8.

United States v, Price, Crim. No. 96-145-01 (E.D.Pa.)

Pretrial releasee Kenneth Price is scheduled for sentencing
before Judge Rendell on January 010, 1997. The defendant is
arguing that his advanced liver condition is an·
extraordinary circumstance justifying downward departure
from the sentencing guidelines of 21-27" months. The AUSA
retained a medical expert to testify that the medical
condition is not as severe as presented by defendant. The
AUSA requested the Bureau's assistance if the court has
questions concerning the ability of the Bureau to care for
the defendant. Hank Sadowski will attend the hearing.
9.

Li V' Canarozzi, et al"

95 Civ. 0706 (S.D.N.Y.)

Trial has been scheduled for the week of February 3, 1997

for this combined Bivens/Federal Tort Claims Act complaint
brought by former pretrial detainee Jian An Li, 44661-053,
who alleges that six officers at MCC NY assaulted him on an
elevator on
November 10, 1994. Staff were responding to a disturbance
involving a fight among 13 inmates. Judge Sand has not
ruled on several motions filed by the AUSA. A hearing was
held on the motions for January 9, 1997. The court
dismissed the FTCA count

-6-

and permitted the Bivens case to proceed to trial.
Dominique Raia and Alma Lopez attended the hearing.
10. Palmer v. United States, CV-95-383

(M.D.Pa.)

This Federal Tort Claims Act case is listed for trial on
January 15, 1996 before Judge Kosik. Inmate Lovell Palmer,
23307-083 alleged that he slipped and fell in January 1994
at USP Lewisburg.
His administrative tort claim was for
$1000.
In his complaint, he requested damages in excess of
$25,000. The AUSA filed a motion to limit the inmate · to the
$1000. On pressure from the court (and to have expense of
trial), we offered settlement to the inmate in the amount of
$1000 which the inmate refused. We have moved for partial
summary judgment against the United States in the amount of
$1000. We have requested the court to bifurcate the trial
and hold a hearing on the pending motions before proceeding
to the phase wherein most of the staff and inmate witnesses
would have to be produced.

RELIGIOUS CASES:

New cases: None

Significant activity in pending cases:
1.

Ghana v. Holland, Civil No. 96-0191 (M.D.Pa.)

Citing RFRA, Inmate Emory Ghana , 11416-050, alleges that USP Allenwood
improperly removed him from Common Fare (he was allegedly eating other food)
and that USP improperly denied his request for a cassette tape player and
religious tapes while in Special Housing. On November 27,1996, the
court granted our motion to dismiss on the basis of
Petitioner's failure to exhaust administrative remedies.

TRAVEL AND LEAVE SCHEDULE FOR JANUARY 1997:
Dave Essig Travel - None scheduled
Annual Leave - None scheduled

Hank Sadowski Travel - January 30 - US Attorney's Office, Newark, NJ
- Presentation before AUSAs
Annual Leave - None scheduled .

-7-

Joyce Horikawa Travel - None scheduled
Annual Leave - None scheduled
Ron Hill Travel - None scheduled
Annual Leave - None scheduled
Jay Furtick Travel - January 21 - 31 - FC! Fort Dix - Institution
Familiarization
Annual Leave - None scheduled

Roy Lathrop has been selected for the Paralegal Specialist
at FCI Estill. Roy's last day in the NER was January 2,
1997. We wish him well in his new assignment.
cc: Regional Director, NER
Deputy Regional Director, NER
All NER CEOs
All Regional Counsel
All NER institution attorneys and paralegals
Attorneys at GLYNCO and MSTC, Aurora