Fbop Ner Quarterly Reports 1998jan-dec

• Topics: Court Access, BOP Litigation Reports

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UNITED STATES GOVERNMENT

memorandum
Date:
Reply to
Attn of:
Subject:
To:

April 21, 1998
Henry J. Sadowski, Regional Counsel, Northeast Region
Federal Bureau of Prisons, Philadelphia, Pa. 19106
Quarterly Report - January 1, 1998 through March 31, 1998

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 second quarter of FY 1998.
The following is a synopsis of the significant cases in
litigation during the quarter:
A. SETTLEMENTS.AND AWARDS

1.
(

Kagan v. United States, CV 94-3663 (DNJ)

This wrongful death civil action originated as a Bivens action
filed by the next of kin of inmate Philip I. Kagan, Reg. No.
14361-050, who died in September 1993 at Fcr Schuylkill. The
complaint alleges that the deceased was denied adequate medical
treatment for a known heart condition. As a result, the
deceased's health allegedly deteriorated until he lapsed into a
coma and died of complications caused by cardiac and pulmonary
failure. The District Court dismissed the action in August 1995.
On appeal, the Third Circuit held that, although Plaintiff failed
to state a claim under Bivens, he did state a cause of action
under the Federal Tort Claims Act, 28 U.S.C. § 2671, ~ ~.
(FTCA). On remand, the case was converted to an FTCA case and
settled for'SIC,DOO.DO. Settlement was based upon poten:ial
exposure ·to liability and a relatively small amount in a wrongfu':',
death case.
2.

Markoff v. United States, Civil Action No. 96-2543

........

This Federal Torts Claim Act complaint was filed by f~:~~~ :nma~e
Morton Markoff, 11116-050, who alleges that as a resu':'::!
improper medical care while housed at the Federal Cor rt:·:--:. : :':ia 1
Institution, Ft. Dix he suffered a permanent injury anj ~~S~:~l~~
loss of function to his right ring finger and left e1c::-,; d:"•. : a:~,.
Plaintiff was a practicing medical doctor prior to his

2598

incarceration.
Sett~emenL LUL ~~~,vvv.vv "~~ _~~ __ . ______ .
there was some exposure based on a delay in medical treatment.
C. SIGNIFICANT CASES, TRIALS or HEARINGS:

(

1. United States v. pong Kyu Kim, Crim. No. ---- (EDPA)
On January 23, 1998, Judge Dalzell held a sentencing hearing for
defendant Dong Kyu Kim. The defendant requested a downward
departure from the sentencing guidelines of 10-16 months,
alleging, as an alien, the Bureau of Prisons would treat him
worse than a non-alien defendant.
I assisted the AUSA and
discussed Bureau policy concerning designations of deportable
aliens and explained the rationale underlying it.
I also
addressed the court's questions concerning split sentences "under
Sentencing Guideline 5Cl.1. The court decided that defendant did
not warrant a downward departure from the guidelines and
sentenced him to a 5 month term, 36"month supervised release with
the condition that the first 5 months be in home detention.
2.

(
'"

United States y. Luis Felipe, No. 97-1155, 97-1484

(2d Cir.)

On January 22, 1998j the Second Circuit heard oral argum~nt
concerning the authority of a district judge to impose
restrictions on conditions of confinement for Luis Felipe, 14067074, the leader of the Latin Kings. The district court held that
18 U.S.C. § 3582(d) provided the court with jurisdiction to limit
the defendant's contact with the outside world.
The district
court also held it had inherent authority to impose such
restrictions. The AOSA advised that the Court of Appeals focused
primarily on the 3582(d) jurisdiction prong.
The Court of
Appeals took the case under advisement.
3. U.S. V. pavid Rosario, 96-CR-126 (JFK) (S.D.N.Y.)
On January 5, 1998, Kevin McDonald, Health Services
Administrator, MCC New York, testified during the above-captioned
criminal matter. His testimony focused mainly on certifying
copies of previously subpoenaed medical records.
Clinton Stroble
assisted the AUSA in preparing the witness.
4.

United States v. Camacho-Negron,

(MDPA)

On February 11, 1998, Tom Mueller, Attorney Advisor, Fe:
Allenwood, assisted at a committed fine hearing before r'~ag:strate
Judge Askey. At th~ conclusion of the hearing, the Magis:~ate
found inmate Antonio Camacho- Negron, Reg. No. 03587-065, :c b~
indigent and he was released on February 13,.1998.

2599

5. United States v. Stiso, Crim No.

(

~-----

(S.D.N.Y.)

Attorney Patrick Stiso was indicted on charges of racketeering,
conspiracy to distribute narcotics, and obstruction of justice.
As a result of the indictment, the Wardens at MCC NY and MDC
Brooklyn suspended attorney visiting privileges for Mr. Stiso.
The attorney representing Mr. Stiso filed. an appeal of the
Wardens' decisions with the Regional Director. The Regional
Director denied the appeal. On March 5, 1998, a sta~us
conference was held before Judge Chin, who was assigned to Mr.
Stiso's prosecution. Mr. Stiso's criminal attorney presented
arguments concerning his suspension of visiting privileges from
MCC New York.
Clinton Stroble, Attorney, MCC NY, attended the
conference with AUSA Richard Sullivan, and argued the
government's position. The court requested a brief addressing
its jurisdiction to consider the issue.
7. United States v. Ginsberg, Crim. No. -95-634

(

(E.D.Pa.)

On March 4, 1998, Assistant Regional Counsel Joyce Horikawa and
Quincy Heck, Regional Health Systems Administrator, assisted the
AUSA at a sentencing hearing in the above case before Judge
Brody. The defendant, Irwin Ginsberg, who was convicted of
setting fire to a building to collect insurance money, requested
downward departure from his sentencing guidelines based on his
physical and emotional state.
Defendant ha~ a 15 year history of
Type II diabetes and associated complications. He also has a
history of hepatitis C, carpel tunnel syndrome,
degenerative disk disease, hypertension, peptic ulcers, irritable
bowel syndrome, chronic rhinitis, cardiac arrhythmi~ and
depression. Mr. Heck testified about the medical facilities and
operation of the medical departments in the various Bureau of
Prisons institutions in this region. He testified that based
upon his review of the defendant's medical records and the
testimony of the medical experts, as well as his personal
knowledge of the Bureau of Prisons, the Bureau was capable of
handling this defendant and his particular medical needs.
The
sentence has not yet been imposed.
8. United States v. Mayhue, Crim. No. 96-548 (E.D.Pa.)
On-March 10, 1998, Judge Joyner issued an order that Mark Mayhue,
51264-066 serve the remainder of his 9 month sentence under home
detention. The inmate was designated to Lebanon County Jail in a
work release program.
He was not eligible under 18 U.S.C.
§ 3624(c}to enter home confinement until July 1998.
On
March 12, 1998, I contacted the Judge's law clerk and advised
that the Bureau would violate the statute if it followed the
court order. The Judge held a telephonic hearing on Marcr. 13,
1998. Joyce Horikawa and I participated in the hearing.
The
court stated it did not want to issue orders contrary to statute
and rescinded the order.
3

2600

9. Brown v. Morton et al., CV-95-2881 (E.D.N.Y.)
On Friday, March 13, 1998, at 11:15 a.m., a conference call was
held with Judge Gold, the AUSA, Fcr Schuylkill, inmate Orson
Brown, 43993-053 and James Vogel, Paralegal, MDC Brooklyn.
Judge
Gold asked if the two page complaint the inmate recently filed
was intended to be an amendment to the above~referenced matter or
a new complaint. The inmate indicated that he filed this as a
new case because his Bivens claims regarding medical care had
been dismissed. Additional miscellaneous issues were discussed,
including the deposition of the Plaintiff and status of discovery
responses.
10. United States v. Rojas, Crim No. ---- (E.D.N.Y.)
On March 20, 1998, a hearing was held before Judge Weinstein
regarding subpoenas, issued by an attorney for the defendant,
demanding documents regarding inmates (not the defendant) at MDC
Brooklyn and Fcr Otisville. MDC Brooklyn attorney Azzmeiah
Vazquez argued the Bureau's objections to the subpoena
(burdensome, relevancy, privacy). The Court agreed and advised·
the defense attorney that the Court would not issue an order
compelling the disclosure of this information.
11. United States v. McNaughton, 93 Crim. 147 (E.D.Pa.)
On March 30, 1998, r participated in an emergency telephone
hearing before Judge Brody. In connection with an April 1, 1998
hearing on a motion to vacate his sentence, Richard McNaughton,
08042-073, was removed by the U.S. Marshal from the camp at
Lewisburg on the morning of March 30· pursuant to a writ.
His
attorney requested an emergency hearing to ask the court to
release the inmate on bail pending the hearing. Counsel
expressed concern for the ability of the writ· custodians to
administer medication, etc. Counsel advised that the inmate
received fine medical care at Lewisburg. The court asked the
Bureau's position on the medical care and whether the inmate
could be held at FCI Fairton. I advised inmates on writ are
afforded a supply of medication.
I also advised that the court
could recommend FCI Fairton but I would need to check with the
Warden to ensure there were no security concerns. The court
determined that the inmate's presence was not necessary for the
hearing and vacated the writ. The inmate was immediately
returned to Lewisburg.
12. ,U.S. v. Hammer 4:Cr-96-239 (M.D.Pa.)
On April 13, 1998, a contempt of court hearing was held before
District Judge Muir in Williamsport, PA. At issue was the
failure by USP Allenwood mail room staff to comply with the
court's order relating to the opening of ~Special Mail" from the
Clerk of Court and defense counsel.
Five USP Allenwood staff
4
2601

(

testified concerning the four pieces of mail which were opened
contrary to the Court's order. It appears that confusion
concerning whether the court order was still effective caused the
inadvertent opening. On April 16, 1998, the court found there
were no grounds to hold the Warden in contempt. The court
modified the injunction to ensure compliance.
cc: Regional Director
Senior Deputy Regional Director
Deputy General Counsel
All Associate General Counsel

2602

NORTHEAST REGIONAL OFFICE
LITIGATION OUARTERLY REPORT
FROM 01/01/1998 TO 03/31/1998

(

LOC

NOM

FTC

BIV

OTB

ANS

PEN

CLD

BIT

606

SET

AWD

MXR

NER

SER
".

NCR
SCR
WXR

CO
TOT

(

DEFl:Nl:TIONS:
LOC - LOCATION
NOM - NUMBER OF TOTAL LAWSUl:TS FILED IN QUARTER
BC - NUMBER OF HABEAS CORPUS ACTl:ONS FILED
FTC - NUMBER OF FTCA ACTIONS Fl:LED
BIV - NUMBER OF BIVENS ACTIONS FILED
OTB - OTBER ACTIONS FILED
ANS - NUMBER OF LITIGATION REPORTS COMPLETED
PEN - PENDING
CLD - NUMBER OF ACTIONS CLOSED
BIT - NUMBER OF BEARINGS OR TRI~S (INCLUDE INFO IN NARRATIVE)
SET - NUMBER OF SETTLEMENTS (INCLUDE INFO IN NARRATIVE)
AWD - NUMBER OF AWARDS (INCLUDE INFO IN NARRATIVE)
GOVEJitNMENT ACTION AND DATE OF ACTION - (INCLUDE IN NARRATIVE)

2603

NORTHEAST REGIONAL OFFICE
TORT CLAIM OUARTERLY REPORT
FROM 01/01/1998 TO 03/31/1998

(

Set

Amt

Pen

Den

AlO

AlP

3861

278

115

121

C.O.

Sum

234

164

3861

279

115

PPPI

Med

158

Ncr

Scr

Wxr

Loc

Num

Mxr

NER

227

Ser

DEFINITIONS:

LOC
NOM
PP
PI
PPPI
WD

Med

Set
Amt
Pen
Den
OD
A/O
Alp

(

LOCATJ:ON
NUMBER FJ:LED IN QUARTER
PERSONAL PROPERTY CLAJ:MS
PERSONAL INJURY CLAIMS
PERSONAL PROPERTY/PERSONAL INJURY CLAJ:MS
CLAJ:MS WJ:THDRAWN
CLAJ:MS ALLEGJ:NG MEDICAL NEGLIGENCE
CLAIMS SETTLED
AMOUNT PAID
CLAIMS PENDING
CLAIMS DENIED
CLAIMS OVERDUE
AVERAGE DAYS OVERDUE
AVERAGE DAYS TO PROCESS

2604

e_====

.llYA+.!+.e.:.tpw.

NORTHEAST REGiONAL OFFiCE
ADMINISTRATIVE REHEDXES OUARTERLY REPORT
FROM 01/01/98 TO 03/31/98

(
LOC

NOM

DHO

SPH

MED

455

172

LEG

GRT

DEN

PEN

362

162

MXR
NER
SER
NCR
SCR

WXR
TOT

DEFlNXT:IONS

LaC
NOM
DHO
SPH.
MEn
MIl

LEG
·FD

GRT
DEN
PEN
aD

LOCATION
NUMBER OF TOTAL AD REMEDIES FILED
NUMBER OF DHO REMEDIES FILED
NUMBER OF SPECIAL HOUSING UNIT REMEDIES FILED
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

2605

UNITED STATES GOVERNMENT

memorandum
(

Northeast Region, Philadelphia, PA
FEDERAL BUREAU OF PRISONS
July 24, 1998
MEMORANDUM FOR WALLACE H. CHENEY, ASSISTANT DIRECTOR AND GENERAL
COUNSEL, FEDERAL BUREAU OF PRISONS

FROM:

Henry J. Sadowski, Regional Counsel

SUBJECT:

Quarterly Report - April 1, 1998 through June 30, 1998

·Attached are the statistics requested for the quarterly report
for the third quarter of FY 1998.
The following is a synopsis of the significant cases in
litigation during the quarter:
(

SETTLEMENTS AND AWARDS

1. Estate of Robert Bates v. United States, Civil No. 97-0048,
(E.D.Pa.)
- Inmate died of a coronary at FCI Fairton.
During
discovery, new facts were revealed indicating that settlement was
in the best interest of the Bureau of Prisons.
This FTCA
wrongful death originally sought $250,000.00 in dam~ges. The
case· settled for $150,000.00.
2. Rogers v. MCC New York. et al., 96 Civ. 6811 (S.D.N.Y.) Pro ~ former inmate filed suit against three physician
assistants and one cook supervisor.
Plaintiff claims he injured
his eyes with a degreaser solution while cleaning the stove in
food services, as part of his job. The parties agreed to settle
as a claim under the Federal Torts Claims Act for $2,500.00.
3. Custard v. United States, 96-1835(M.D.Pa.) USP Lewisburg inmate, with lower bunk bed slip based upon
physical disabilities, allegedly slipped and fell while climbing
out of upper bunk in SHU and sustained personal injury.
Co~rt
approved stipulation for settlement in amount of $1500.00.

(

2606

2
4. Couser v. United States, 96-656 (W.D.N.Y.)

Former ICC inmate at Lewisburg alleged his finger sustained
frostbite because he was forced to march without gloves.
Case
settled for $6000.
B. SiGNiFZCANT DECISIONS, BEARINGS OR TRIALS
1. U.S. v. Hammer 4:Cr-96-239 (M.D.Pa.)
On April 13, 1998, a contempt of court hearing was held before
District Judge Muir in Williamsport, PA. At issue was the
failure by U$P Allenwood mail room staff to comply with the
court's order relating to the opening of "Special Mail" from the
Clerk of Court and defense counsel. Judge Muir held that there
was insufficient reason to hold the Warden in contempt.
T'he
court issued some modifications to the injunction to insure that
inmate David Hammer, Reg. No. 24507-077, receives all of his
special mail unopened.

(

On June 22, 1998, inmate Hammer pled guilty to the murder charge.
The death penalty phase of the sentencing is scheduled to
conclude by the week of July 27, 1998.
2. U.S. y. Guzman, et al., S8 97 Cr. 786 (S.D.N.Y.)
Several hearings have been held before Judge Scheindlin
concerning the placement of an inmate in administrative detention
at MCC New York. Miquel Guzman, Reg. No. 43104-054, is
considered the leader o~ the Power Rules criminal organization,
alleged to have engaged in murder, extortion, robbery, assault,
and other acts of violence and'narcotics trafficking.
The inmate
was placed in administrative detention in February 1998, pending
an investigation by the U.S. Attorney's office of an alleged
conspiracy between Power Rules and the Maisonett organization to
intimidate each others cooperating witnesses.
This conspiracy
may have resulted in the slashing of a cooperating Maisone:~e by
a Power Rules defendant.

(

At the first hearing on April 20, 1998, the court was no:
satisfied with the reason for the AD placement.
Dominiq~e Raia
assisted at this hearing. On April 28, 1998, an in came;a
hearing was held.
The AUSA and MCC Attorney Clinton Strct:~
explained why inmate Guzman should remain in an administ~d~:~e
detention, including information which suggests that the s:ashlng
is only one overt act in a much broader conspiracy.
Judg~

2607

(
Scheindlin accepted the position that the scope of the
investigation was larger than the slashing.
In open court, the
Judge then advised Guzman and his attorney about the scope of the
pending investigation.
Further, she advised that MCC had a
legitimate security reason for continuing Guzman's administrative
detention status.
On Monday, April 27, 1998, Judge Scheindlin issued an Order 'to
Show Cause why MCC New York inmate Gregory Ferguson, Register No.
41832-054, (a co-defendant in the Po~er Rules case) should not be
released from an administrative detention status. The inmate was
placed in AD pending an incident report for a threat against a
staff member.
During a telephone conversation with his
girlfriend, inmate Ferguson stated that he was going to punch the
counselor in the face.
The inmate was upset because the staff
member removed the girlfriend from the visiting list. At 'the
court hearing, Dominique Raia played the recorded conversation.
Ms. Raia explained to the court that MCC takes all threats
seriously and that staff had a duty to protect inmates and staff.
Judge Scheindlin did not order inmate Ferguson released from
administra,tive detention, however, she did order that the
disciplinary process be expedited. The court also wanted a
letter from MCC which'explained why the girlfriend's name was
removed from the visiting list. The letter was provided by Ms.
Raia.
3. Royce y. Hahn, 1998 WESTLAW 272632 (3d Cir. May 29, 1998)
The Third Circuit held that the conviction for possession of a
firearm by a felon is not a crime of violence which would trigger
the notice provisions of 18 U.S.C. § 4042(b) (requiring notice of
release to law enforcement officials for drug or violent
offenders). The Court also held that a conviction for possession
of a machine gun was not crime of violence for these purposes.
We have filed a petition for rehearing requesting reexamination
of the machine gun issue.
4. 'People of the State of New York v. James C. Allen
On May 20, 1998, an R&D staff member from MCC New York testified
in a state criminal proceeding that was filed against former
federal inmate James C. Allen for introducing contraband lnto the
state correctional facility.
It was alleged that Mr. Allen
introduced a razor into the facility . . The defendant argued that
the razor was with him when he left MCC NY.
The jury found the
defendant not guilty of introduction of contraband.

2608

4
5. United States v, Louis Acosta, Crim. NO. 96-00556-02

(E.D~Pa.)

On May 28, 1998, Quincy Heck, Health Systems Administrator, NERO
and Michael Tafelski assisted the AUSA in a sentencing hearing in
which the defendant attempted to argue for a downward departure
based upon his medical condition (i.e. - wheelchair). The Judge
commented from the bench that testimony was not required as he
understood that the BOP could accommodate the defendant's medical
condition.

cc: Regional Director
Senior Deputy Regional Director
Deputy General Counsel
All Associate General Counsel

(....

2609

r- .

NORTHEAST REGIONAL OFFXCE
LITIGATION OUARTERLY REPORT
FROM 04/01/1998 TO 06/30/1998

LOC

NOM

FTC

BJ:V

OTH

ANS

PEN

CLD

613

BIT

SET

AWD

MXR

NER

·8

SER
NCR
SCR·
WXR

CO
TOT

DEFINITIONS:
LOC - LOCATJ:ON
NON - NUMBER OF TOTAL LAWSUJ:TS 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
BIT - NUMBER ·OF HEARINGS OR TRIALS (INCLUDE INFO IN NARRATIVE)
SET - NUMBER OF S·ETTLEMEN'l'S (INCLUDE INFO IN NARRATIVE)
AWD - NUMBER OF AWARDS (INCLUDE INFO IN NARRATJ:VE)
GOVERNMENT ACTION AND DATE OF ACTION - (INCLUDE J:N NARRATIVE)

(.
2610

(

NORTHEAST REGIONAL OFFXCE
TORT CLAIM QUARTERLY REPORT
FROM 04/01/1998 TO 06/30/1998

Set

Amt

Pen

Den'

3861

C.O.

Sum

234

164

AlO

AlP

278

115

121

3861

279

115

Loc

Num

Mxr

NER

227

158

Ser

Ncr

Scr

Wxr

PPPI

Med

(
'"

'PEFl:NIT:rONS:
LOC
NUN
PP
PI
PPPI

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

2611

NQRTHEAST REGIONAL OFFICE
NORTHEAST REGIONAL OFFICE
'ADMINISTRATIVE REMEDIES OUARTERLY REPORT
FROM 04/01/98 TO 06/30/98

LOC

NOM

DHO

SPH

MED

455

172

LEG

GRT

DEN

PEN

362

162

MXR
NER
SER
NCR
SCR
WXR
TOT

(

DEFINITIONS
LOC
NUN
DHO
SPR
MED
MH
LEG
PO
GRT
DEN
PEN
OD

(
2612

u.s. Department of Justice
Federal Bureau of Prisons

Northeast Regional Office

U.S. Custom House
2nd & CheslnlI1 Streets
Philtuklphia. PA. 19106

October 20, 1998
MEMORANDUM FOR WALLACE H. CHENEY, ASSISTANT DIRECTOR AND GENERAL
COUNSEL, FEDERAL BUREAU OF PRISONS

FROM:

Henry J. Sadowski, Regional Counsel

SUBJECT: Quarterly Report July 1, 1998 through September 30, 1998
Attached are the statistics requested for the quarterly report
for the fourth quarter of FY 1998.

(

The following is a synopsis of the significant cases in
litigation during the quarter:
A. SETTLEMENTS AND AWARDS
1. Dorothy Schrader v. Reno, et al., Appeal No. 97-7610 (3d Cir);
No. 4:CV-96-1467 (M.D.Pa.)
On September 9, 1998, I participated in a mediation conference to
try to resolve the above-referenced appeal.
In 1996, the
p~aintiff (former employee Dorothy Schrader) filed a complaint
alleging sex discrimination under Title VII, 42 U.S.C. § 2000(e);
and a number of other statutory and constituti~nal grounds.
The
district court granted summary judgment in our favor.
Plaintiff
filed a Notice of Appeal to the Third Circuit challenging only
the resolution of the Title VII claim.
The Third Circuit
requested the parties to consider participation in Alternative
Dispute Resolution (ADR). We decided to pursue ADR since there
was the possibility of a reversal on appeal and since the
termination letter improperly referred to a discharge for medical
reasons notwithstanding all medical evaluations confirmed fitness
for duty. The case was settled for $100,000.

2613

2. Dziamba v. United States, 97-395 (D.N.J.) -- FTCA case in
which inmate alleged staff failed to protect him from sexual
assault at FCI Fairton.
Evidence pointed to exposure because of
pacing on inmate in SHU with an inmate he needed to be separated
from. After some considerable pressure from the court, case
~ettled on eve of trial for $500,000.
3. Johnstone v. United states 95-5714 (E.D.Pa.) - Former FMC Ft.
Worth inmate, who suffered penile implant damage while on a work
assignment, filed an Inmate Accident Compensation claim after
exhausting his internal appeals. After lAC review of new
information, case was settled for $20,854.00
4. Fears v. United States - 97-23 (W.D.Pa.) - FCI McKean inmate'
'Shawn Fears, 34183-060, filed a FTCA complaint requesting
$2496.00 for the alleged loss of personal property.
Staff had
packed the inmate's property when he was placed in SHU. The
property was later destroyed during an institution disturbance.
The district court denied our motion for summary judgment in
which we raised the discretionary function defense.
Case settled
for $500.
5. Custard v. Essig, eta al., 4:~V-96-1835 (M.D.Pa.) - USP
Lewisburg inmate Bob Custard, 07539-055, filed FTCA action
requesting damages for injuries allegedly incurred when he
slipped from an upper bunk and fell into an exposed steam pipe in
SHU.
Inmate had a lower bunk slip. Case settled for $1800.

NEW

CASES;

1. McClurg v. Harding, 98-605 (D. Conn)
Holder v. Harding, 98-656 (D. Conn)
Codianni-Robles v. Harding, 98(D.Conn.)

(

FC! Danbury inmates Penelope McClurg, 21528-018, Tinia Holder,
09474-424, and Beatrice Codianni-Robles, 11866-014 filed
separate, similar petitions requesting an expedited hearing and
temporary restraining order against the practice of cross-gender
pat searches at Fer Danbury. All three inmates have a history of
being sexually abused and are assigned to the "Bridge Unit",
which is a housing unit for women who have suffered traumatic
experiences, including sexual assault/abuse.
Counsel has been
appointed to represent both inmates.
Under informal pressure
from the court, the Warden agreed to exempt McClurg and Holder
from routine cross-gender pat searches until a full hearing on
the merits. McClurg transferred to a community corrections

2614

3
(
\

center and her case was dismissed as moot.
Codianni-Robles was
recently transferred to FMC Carswell for medical care and the
status of her involvement in the cases is still pending.
A
hearing of the TRO in Holder is scheduled for October 20, 1998.
A hearing on the merits of the petition in Holder is currently
scheduled for November 30 and December 1, 1998.
2. Nyhus v. Reoo, et al., C.A. No. 97-324E (W.D.Pa.)
Craviero v. Reno, et al., C.A. No. 97-31E (W.D.Pa.)
These cases were both filed by FCI McKean inmates challenging
various components of the Ensign Amendment and the BOP's policy
change on personal property. The Magistrate Judge assigned to
both cases issued a report and Recommendation dismissing the
cases.
She found that Bureau policy placed reasonable
limitations on property and was within its discretion.
The Court
considered the Ensign amendment allegations voluntarily withdrawn
since the Plaintiffs have filed, with the assistance of counsel,
a new case styled as a class action (Wolf, Craviero, and Nyhuis
v. Reno, et. aI, 97-408E).

(

3. Fairweather v. U.S. Dept of Justice, 4:98-CV-1432 (M.D.Pa.) USP Lewisburg Correctional officer challenges the application of
the umisdemeanor domestic crime of violence" to his prior
offense.
Assigned to Lori Cunningham.
Parties agreed to dismiss
case without prejudice based on recent memorandum from Assistant
Director, HRD, suspending removal.
C. TRIALS and BEARINGS:
1. United States v. Hammer, M.D. PA
On July 24, 1998, the jury returned a death penalty verdict
against inmate David Paul Hammer, 24507-077 for' the murder of
another inmate at USP Allenwood.
Several hearings were held.
The inmate fired his attorneys and moved for immediate imposition
of the death penalty.
Judge Muir issued an order for a
comRetency examination. The court found Hammer competer.: a~~
final sentencing is scheduled for November 4, 1998.
2. U.S. y. Castaldo, Crim. No. ----- (S.D.N.Y.)

(

On June 30, 1998, MCC New York received a memorandum fro~ ~~ AUS~
indicating a credible source informed him that the life 0: :~mate
James Castaldo, 16032-050, may be in danger.
Castaldo ~as
removed from general population and,placed in administra::~~

2615

(
detention pending a threat assessment. The inmate objected to
the criminal trial judge. Judge Keenan requested a written
explanation by 9:30 a.m. on July 2, 1998 and scheduled a hearing
for 10:30 a.m.
At the hearing, the Court determined the issue
was not ripe since the threat assessment had not yet been
completed. After the assessment was completed, the threat was
found to be too vague. The inmate was released to general
population on July 13, 1998.
Clinton Stroble represented the
MCC NY.
3.

u.s.

v. Muyet, Crim. No. ----- (S.D.N.Y.)

On July 27-29, 1998 the District Judge Peter K. Leisure held
three "hearings to address two allegations by inmate John Muyet,
38027-054: (1) that he did not have access to the Law Library
while detained in the SHU at MCC NY; and (2) that a letter from
his attorney concerning sentencing had been confiscated by staff
at the MCC and never returned. After the first hearing, the
court was satisfied with our explanation concerning access to the
law library.
The court requested more information about the
inmate's access to his legal materials and the allegatio~ that
this letter was in legal materials not returned to the inmate.

The second hearing was held the next day.
Staff testified that
inmate Muyet had available all of his legal material from his
former housing unit (one bin in his SHU cell and opportunity to
exchange item for item with the other materials).
Judge Leisure
was still concerned that staff could not definitively say inmate
Muyet did not have other legal materials somewhere in the MCC.
Judge Leisure continued the sentencing hearing and requested that
AUSA provide an update 'the next day on the efforts to locate the
missing legal materials.
MCC NY records show that inmate Muyet had four boxes of legal
material upon admission to MCC NY and three containers of legal
material while in SHU~
It was explained to the Judge that the
four boxes worth of legal material were most likely transferred
into the three containers as no other legal material ca~ b~
located at MCC.
Clinton Stroble represented the MCC NY.
4.

u.s. y.

Carozzo and piMaria, Crim. No.

97~CR-80(E.D.~.Y.

On August 19, 1998, MOC Brooklyn Staff attorney Les Owe~ a~j :SM
David Williams attended a sentencing hearing.
Mr. Will~d~s
testified regarding the application of prior custody C:~l:~ d~j
sentence aggregation.

2616

5
5. United States v. Enlow, Cr. 94-265 (E.D.Pa.)
On September 4, 1998, defendant Idris Enlow, 47528-066, had a
resentencing hearing before Judge Brody. A question arose
concerning the interaction of the federal sentence with a state
parole violation warrant. Prior to the hearing, the co~rt
conveyed her intent to have the defendant be in primary federal
custody. The state agreed to withdraw the state violation
warrant and to reissue it as a detainer.
I represented at the
hearing that the Federal Bureau of Prisons would accept primary
jurisdiction.
I also addressed some ~ssues concerning sentence
computation. The court was satisfied and sentenced the defendant
to 90 months.
cc: Regional Director
Senior D~puty Regional Director
Deputy General Counsel

(

2617

(

NORTHEAST REGIONAL OFFICE
LITiGATION OUARTERLY REPORT
FROM 07/01/1998 TO 09/30/1998

LOC

NOM

FTC

BIV

OTB

ANS

PEN

CLD

616

BIT

SET

AWD

MXR

HER

SER
NCR
SCR
WXR

CO
TOT

DEFIN:r:TZONS:
LOC - LOCATION
NUN - NUMBER OF TOTAL LAWSUITS FILED IN QUARTER
BC - NUMBER OF HABEAS CORPUS ACTIONS FILED
FTC - NUMBER OF !'TCA ACTIONS FILED
BIV - NUMBER OF BIVENS ACTIONS FILED
OTB - OTBER ACTIONS FILED
ANS - NUMBER OF LITIGATION REPORTS COMPLETED
PEN - PENDING
CLD - NUMBER OF ACTIONS CLOSED
BIT - NUMBER OF BEARINGS 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 - (IWCLUDE IN NARRATIVE)

2618

NORTHEAST REGIONAL OFFICE
TORT CLAIM· QUARTERLY BEPORT

FROM 07/01/1998 TO 09/30/1998

Med

Set

Amt

Pen

Den

AID

AlP

6151

265

136

144

C.O.

Sum

161

117

6151

265

136

Loc

Num

PPPI

Mxr

NER

156

115

Ser

Ncr

Scr

Wxr

PEFINiTIONS:
LOC
'NOM
PP
PI
PPPI
WD
Med
Set
Amt
Pen
Den 1
OD
A/O
A/P

- 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

2619

NORTHEAST REGIONAL OFFXCE
ADMINISTRATIVE REMEDIES OUARTERLY REPORT

(

FROM 07/01/98 TO 09/30/98

LOC

NOM

DHO

SPH

MED

451

206

LEG

GRT

DEN

PEN

301

108

MXR

NER

0._

SER

NCR
SCR

WXR
TOT

DEFINITIONS
(

LOC
NUN
DBO
SPB
NED
MH
LEG
FD
GRT
DEN
PEN
OD

LOCATION
NUMBER OF TOTAL AD REMEDIES FILED
NUMBER OF DBO REMEDIES FILED
NUMBER OF SPECIAL HOUSINGtUNIT REMEDIES FILED
-i
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

2620

u.s. Department of Justice
Federal Bureau of Prisons
Northeast Regional Office
U.S. Custom House
2nd &: Chestnut Streets
Philadelphia, PA. 19106

January 25, 1999
MEMORANDUM FOR CHRISTOPHER ERLEWINE, ASSISTANT DIRECTOR AND
GENERAL COUNSEL, FEDERAL BUREAU OF PRISONS

FROM:

Henry J. Sadowski, Regional Counsel

SUBJECT: Quarterly Report October 1, 1998 through December 31,
1998
Attached are the statistics requested for the quarterly report
for the first quarter of FY 1999.
The following is a synopsis of the significant cases in·
litigation during the quarter:
A. SETTLEMENTS AND AWARDS
1. Cuoco v. United States. et.
This Bivens/FTCA case in which
alleged excessive use of force
FTCA prior to trial based upon
U.S. Attorney's office.

al., 93 Civ. 1268 (S.D.N.Y.) John Andrew Cuoco, 80894-054,
was settled for $10,000 under the
the strong recommendation of the

2. Cuoco v. United States. et. al., 93 Civ. 2806 (S.D.N.Y.l - In
this Bivens/FTCA case, inmate Cuoco alleged that he su~fe~ed fro~
the salmonella poisoning that occurred at FC! Otisville :~
October 1991.
Prior to trial, experts agreed that the r:a:~tiff
received medical care consistent with salmonella poisor.:r.~ for a
period of 8-10 days.
Case settled under the FTCA for S~,~J2 on
the basis of settlements in similar salmonella cases.
3. Raineri v. U.S., 92-2509
United States agreed to pay
19006-038 for property lost
Housing Unit at FC! Fairton
avoid costs of trial.

(D.N.J.) - !n this FTCA ca~", :~e
$164.64 to inmate Bruce Ha::.·_·::,
when he was.placed in the ~; .. ~:~:
in May 1996. Case was se::.: .. ~! "_::

NEW CASES:

1. Sovulj v. U.S., 98-5550 (EDPA) - Widow of deceased inmate
Nediljko Sovulj, Reg. No. 02556-054, requests five million
dollars in compensation. She alleges negligent medical care at
FCI Schuylkill resulted in her husband's death of cancer a year
after his deportation to Crotia. BOP medical records do not
indicate any sign of significant medical complaints by the
deceased while in the custody of the BOP.
2. Estate of Randall Scott Anderson v. United States. et.al.,
3:98-CV-1833 (MDPA) - Parents of inmate Randall Scott Anderson,
Reg. No.09831-424, murdered at USP Lewisburg filed this complaint
alleging FTCA, Bivens and FOIA causes of action.
3.Peddle v. Sawyer. et.al.,98-2364(WWE)D. Conn.
Peddle, Reg. No. 07295-067, with the assistance
Services' Organization, filed this Bivens action
staff failed to protect her from a staff member
abused her.

- Inmate Sharon
of the Yale Legal
alleging .that
who sexually

c. TRIALS and HEARINGS:
1. Uni ted- Sta tes v. Hammer, 4: CR- 9 6-23 9 (M. D. Pa. ) - On Ns>vember 4,
1998, Judge Muir for~ally imposed the sanction of death upon
inmate David Paul Hammer, 24507-077, for the 1996 strangulation
killing of his cellmate. The Judge issued an order that the
inmate be put to death on January 14, 1999, unless an appeal is
filed.
On November 10, 1998, Hammer filed a pro se notice of
appeal.
Hammer then filed a motion to withdraw appeal.
Hammer
changed his mind again and filed a motion to withdraw his motion
to withdraw.
The Third Circuit accepted his appeal.
This has
stayed his execution.
FCC Allenwood Attorneys Tim Roberts and
Nellie Torres assisted the AUSA throughout the trial and
sentencing.
2. Chinchilla v. United States, 97 CV 0846 (S.D.N.Y.) - c~
October 19, 1998, the FTCA claim filed by inmate Roger
Chinchilla, 43293-053, went to trial. The Plaintiff al:e~ed that
the negligent maintenance of a soccer field at FeI Otis\':::~
caused him to suffer a severe and permanent injury to h:s :eg.
Our evidence showed that the inmate suffered a broken le:;, ~aused
by a collision with another inmate.
Four hours after :h0 :::al,
the Court ruled in favor of the government, based in i~~~·· ~art
upon the excellent staff testimony.
FCI Otisville Para:'·-L.t~ Ros
Bingham assisted the AUSA.

3. Lowe v. United States, 97-3038 (N.D. Iowa) - This FTCA case
filed by former ICC inmate Danny Lowe, 07100-029, went to trial
on October 27, 1998. The plaintiff alleged that a delay in
antibiotic treatment for his teeth caused an abscess and
subsequent extraction of teeth. The Court ruled in the
government's favor.
4. Holder v. Harding, 98-656 (D. Conn); Codianni-Robles v.
Harding, 98-1481(D.Conn) - Two female inmates have challenged the
ability of male staff to conduct routine pat searches. A hearing
on the merits of issuing a permanent injunction is scheduled for
March 1999.
In the interim, Inmate Tinia Holder, 09474- 424,
requested a TRO alleging that a number of actions taken by staff
amounted to retaliation for fining the lawsuit. The court held a
hearing on October 20 and 28, 1998. On November 10, 1998, the
Court issued an order prohibiting the assignment of a particular
officer (who the Court found had intentionally violated the
parties agreement exempting the Petitioner from routine crossgender pat searches) from any correctional post that may put him
in contact with the petitioner and formalizing the previously
agreed upon exemption. On November 12, inmate Holder alleged
that a male officer pat searched her on November 11, 1998. The
officer denied this allegation. An emergency hearing was held on
November 13 and 17, 1998. On November 24, 1998, the Court issued
an order denying the Petitioner's request (without making a
factual finding) and ordered that the Warden provide all staff
notice ,of the Court's November 9, 1998 within 72 hours.
On
December 3, 1998, another hearing was held after the inmate
alleged that she was once again cross-gender pat searched on
November 29, 1998. On January 11, 1999, the Court denied the
Petitioner's motion for contempt, holding in part, that the
Petitioner failed to establish her burden of proving by clear and
convincing evidence that the Court's prior order had been
violated. Mike Tafelski has been assisting the AUSA at the
hearings.
NOTE: Two more petitions have been filed by FCI Danbury inmates
containing, in part, the same allegation. Hicks v. Harding,3:98CV-1646 (RNC) (DFM) and Lowe v. Harding, 3:98-CV-1708(WWE) (HBF).
5. United States v. Luis, 98 Cr. 680(SDNY) On November I:,
1998, a hearing was held before Judge Schwartz regarding ~he
feasibility of satisfying subpoenas issued by defense counsel.
Dominique Raia attended the hearing and explained to the Court
the procedures and response times.

6. United States v. Bin Laden, S2-98 Cr. 1023 (S.D.N.Y.) On
November 16 and November 17, 1998, Judge Sand of the Southern
District of New York held hearings concerning allegations and
complaints made by pre-trial inmates being held at MCC NY in
connection with the embassy bombings in Africa (Mohamed Rasheed
AI-Owhali, 42371-054; Mohammed Sadiq Odeh, 42375-054; Wadih Elias
EI-Hage, 42393-054). The Judge, the AUSA, and defense counsel,
toured the area where the inmates are housed.
Judge Sand denied
the inmates' complaint, concluding that based upon the totality
of the circumstances, th~ housing conditions are not only
adequate, but even better than the rest of the SHU inmates.
7. United States v. Rodney Robinson, Crim -- (E.D.N.Y.)- On
November 24, 1998, a jury verdict of guilty was returned against
one of the "Badfellas H defendant and former MDC Brooklyn staff
member Rodney Robinson.
He was found guilty on two counts of
bribery and one count of introducing heroin into'a correctional
facility.
He faces a mandatory minimum of eight years
imprisonment. MOC Brooklyn Attorneys Azzmeiah Vazquez and Les
Owen have been assisting the u.S. Attorneys office.
8. Rios v. Wiley, 1:CV-98-1507 (M.O.PA.) - On December 8, 1998,
in this habeas corpus case, the court ordered that FPC Allenwood
grant inmate Francisco Rios, 31077-054, additional prior custody
credit for about 22 months already credited towards his state
sentence. This credit would be contrary to 18 U.S.C. § 3585(b).
The court granted our motion to stay his order. A motion to
amend the order is pending.
9. Menillo v. Warden, No. 98-7340 (3d Cir. January 11, 1999) - On
.December 10, 1998, I presented oral argument before the Third
Circuit in this appeal of a habeas corpus case. The inmate was
sentenced on both state and federal charges. The inmate was
seeking a ruling that the federal government, not the state, was
the primary custodian, which would have caused him to receive
about two years of prior custody credit. The district court
denied the petition.
In a January 11, 1999 "not precedential"
opinion, the Third Circuit affirmed the denial of habeas relief
and held the record supported the Bureau's determination that the
inmate was in the primary jurisdiction of the state.
10. United States v. Walker, 4:CR:97-0012(M.O.PA.)- Inmate ~awyer
Lee Walker, 26727-083, was convicted of the assault of food
service worker at USP Lewisburg in July 1996. A resenten=:~?
hearing was required by the Third Circuit decision in Un::A~;
States v. Walker, 149 F.3d 238 (3d Cir,. 1998), which impl:ed
that, for sentencing guidelines purposes, all Bureau staf: may
not meet the definition of law enforcement officer.
On
4

December 29, 1998, the district court held that the evidence
supported a finding that the food service supervisor was a law
enforcement officer for purposes of the sentencing guidelines.
I expect a second appeal.
11. Carter v. Luther, Civil Action No. 94-72E (W.D.PA.) - Inmate
Joseph Carl Carter, 32856-004, alleged deliberate indifference to
his medical needs (asthma) by the former Warden at FCI McKean.
Specifically, he alleges that he personally advised the Warden
during his rounds through the SHU that the conditions (high
temperatures and poor air quality worsened his medical condition.
The case proceeded to trial on January 11, 1998. The jury
returned a favorable verdict. Assistant Regional Counsel Toni
Brown assisted the AUSA.
cc: Regional Director
Senior Deputy Regional Director
Deputy General Counsel

NORTHEAST REGIONAL OFFICE
LITIGATION QUARTERLY REPORT
FROM 10/01/1998 TO 12/31/1998

LOC

HUM

FTC

BIV

ANS

OTH

PEN

CLD

634

HIT

SET

AWD

MXR
..

NER

SER
NCR
SCR
WXR

CO
TOT

DEFINITIONS:
LOC - LOCATION
HUM - NUMBER OF TOTAL LAWSUITS FILED IN QUARTER
HC - NUMBER OF HABEAS CORPUS ACTIONS FILED
FTC - NUMBER OF FTCA ACTIONS FILED
BIV - NUMBER OF BIVENS ACTIONS FILED
OTH - OTHER ACTIONS FILED
ANS - ~ER 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 OUARTERLY REPORT
FROM 10/01/1998 TO 12/31/1998

Set

Amt

Pen

Den

6992

244

120

124

C.O.

Sum

183

122

6992

244

120

PPPI

Loc

Num

Mxr

NER

181

120

Ser

Ncr

Scr

Wxr

Med

DEFINITIONS;
LOC
NOM
PP
PI
PPPI
WD
Med
Set
Amt
Pen
Den
OD
A/O
A/P

A/O'

AlP

NORTHEAST REGIONAL OFFICE
ADMINISTRATIVE REMEDIES QUARTERLY REPORT
FROM 10/01/98 TO 12/31/98

LOC

NUM

DHO

SPH

533

293

M~D

LEG

GRT

DEN

PEN

340

167

MXR
NER

SER

NCR
SCR
WXR
TOT.

DEFINITIONS
LOC

HUM -

DHO SPH .MED MH
LEG FD GRT DEN PEN OD -

LOCATION
NUMBER OF TOTAL AD REMEDIES FILED
NUMBER OF DHO REMEDIES FILED
NUMBER OF SPECIAL HQUSING UNIT REMEDIES'FILED
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