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PRISONS - SOUTH CENTRAL REGION UNITED STATES GOVERNMENT

memorandum

,~~ry S

'Mi~~l D.

eqional Counsel

Monthly Report - January 1, 1993 - January 31, 1993
TOt

Wallace H. Cheney, Assistant Director/General Counsel
Central Office
ADMINISTRATIVE RBMEDIES

Received In Month

Answered In Month

DEC

JAN

107
99

104
90

DEC

JAN

245
46

228
70
5S
243
0

TORT CLAIMS

Number
Number
Number
Number
Number

Pend!nq
Received
Answered
Pending
Over Six Mon

63
228

0

FOI/PRIVACY
Number
Number
Number
Number
Number

Pending
Received
Answered
Pending
Over 30 Days

DEC
19
28

15
24

32

23

15
0

16

DEC

JAN

18

10
1

LITIGATION

New Cases Recd
Cases Closed
Habeas corpus

Bivens
FTCA
Other
Lit Reports
Cases With Hearings
or Trials
Cases with Settlements
or Awards

JAN

28
10
5

2

6

3

2

1.

1

0

17

9

1

2

0

2

CPTICNAL.l"OltM NO. 'D
(1dY. ' ..0)
a.A PPM .. ,., CPR) lot-".I

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-2-

SIGNIFICANT TORT CLAIM:

This off ice 1s currently processing three (3) tort claims
related to the medical care furnished to Juan Maldonado
Ramirez, Reg. No. 53236-079. Mr. Ramirez's left leg was
amputated just below the knee due to gangrene infection.
His claim seeking $1,000,000.00 was denied on July 15,
1992 (tort claim #92-ll0).
On January 13, 1993, an
attorney
representing
Mr.
Ramirez
requested
a
reconsideration of the denial of this tort claim.
On
this same date, a tort claim (#T-SCR-93-28) was presented
on behalf of Mirna Pena Ramirez, the wife of Juan
Maldonado Ramirez, requesting $2,500,000.00 for loss ot
consortium damages. An additional claim (#T-SCR-93-27)
was presented on behalf of Mr. Ramirez on January 13,
1993, seekinq $8,000,000.00 for negligence associated
with the amputation of his right leg.
It should be noted that the attorney representing Mr. and
Mrs. Ramirez is the same attorney that represented
Esteban RiVera in his recent settlement with the Bureau
of Prisons.
SIGNIFICANT CASES.
Goggin v. U.S., 91-2735(W.D. TN) - An FTCA action
involving an inmate at Memphis who has alleged he did

not receive proper medical treatment for an ankle
injury. G099in alleges he injured his ankle on the
recreation yard, and one week later he was admitted to
a community hospital suffering from fever, pain, and
infection which resulted in the skin splitting. This
case is set for trial on March 31, 1993.
McCollum V, Clark, 91-3024(W.D. TN) - A habeas action
filed by an inmate at Memphis who claimed his
constitutional rights are being violated.
This
association began at USP Leavenworth, when Jane stock
was a contract English Teacher and McCollum was serving
a 20 year sentence. Approximately one (1) week after
Ms. Stock quit teaching at Leavenworth, the two began
corresponding telephonically and in writing. After
McCollum transferred to Memphis he requested Ms. stock
be added to his visiting list. His request was denied
because the two did not have a relationship prior to
his incarceration and for security reasons. McCollum
however, alleges because he has no other visitors an
exception to policy should be made and his request
should be granted. An evidentiary hearing was set for
January 14, 1993. The Bureau of Prisons received a
favorable rulinq.

Turner v. U.S., EP-92-70-B (W.O. TX) - A hearing to
Compel Plaintiff was held on December 28, 1992, whereby
the c6Ut't ordered plaintiff's attorney to comply with

2147679724'"

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2023072995;# 3

-3-

our discovery request. This case is an FTCA action
wherein the inmate alleges he was not provided adequate
medical treatment for a work related injury. The
inmate fell while working in Food Service. He alleges
he was not medically fit to work and FeI La Tuna staff
~ere deliberately indifferent to his disabilitieS.
J d ~~
laint!ff'S attorney's are not actively pursing thi .;; Q~~
(.
claim, and it is anticipated this action will be
r~ro~~
dismissed.

~

j

Wright y, United states, 91-2583-G/A (W.O. TN) - Earl
Wright filed suit alleging the Bureau of Prisons
destroyed a photo album and photos. He claimed he was
entitled to $8,004.95 for 80 photos and one (1) photo
album. He was offered $100.95 durinq the tort claim
stage. The court determined the inmate was entitled to
$264.95. It should be noted the inmate failed to
indicate on the property form, completed prior to his
transfer, that he had property valued at over $100.00
was presented 'to the court. This fact has resulted in
favorable ruling in the past, but was not effective in
this case.
Shaw v. Thornburg, et a1., CIV-92-265-A, WO/OK Received Magistrate's Report and Recommendation in our
favor. Briefly, inmate filed a Bivens claim alleqing
an El Reno staff member concealed a razor blade in his
hand and shook hands with the inmate, cutting the
inmate's hand. court dismissed defendants Beeler,
Quinlan ana Thornburgh for lack of personal
involvement. Inmate asked that correctional officer be
dismissed at a defendant. Note that court found
service was proper in accordance with Oklahoma law
although defendants argued improper service because no
Notice and Acknowledgment forms were included in
service packet. Court refused to construe action under
FTCA because of improper service on U.S.

Upoominq Trials;
Armour V, Mims - 91-2502-GB (W.O. TN.) - Donald Armour
filea a Biyens action alleging staff at FeI Memphis
arbitrarily and capriciously and with del1~erate
indifference when he was denied a Xosher diet for 21
days. A jury trial is scheduled for 02-22-1993. A
pre-trial conference is scheduled for 02-12-1993.
Mr. Neal Adler, Associate Warden at FeI Memphis is
expected to be an expert witness on the Jewish Kosher
diet program. Mr. Adler is Jewish. Mr. Armour simply
did not follow the proper procedures to be placed on
the Kosher Diet Program. When he submitted the proper
authorization, he was allowed to participate in the
proqram.
Han!! V. Ouinlan - 91-2726-GBRE (W.O. TN.) - Tal1b
Hanif filed a Bivens action alleging staff at FCI

SENT BY:

. ....

-4-

Memphis denied him the right to participate in a kosher
diet program. Initially, Mr. Hanif was denied the
opportunity to participate in the kosher diet program
because he did not fail within the guidelines of Bureau
of Prisons policy. However, he was eubsequently
allowed to participate.
TRAVEL AND ANNUAL LEAVE SCHEDULES
Mike Hood Annual Leave - February 16, 1993
Travel - February 18-19, 1993 - FCI, Three Rivers Ethics Training
Matt Carney Travel - February 12, 1993 - FCI, Fort Worth Ethics Training
February 16 - March 5, 1993 - Training at
Glynco
Lori cunningham Travel - February 5, 1993 - FCI, Big Spring Ethics Training
February 12, 1993 - FCI, El Reno Ethics Training

...

.

BUREAU OF PRISONS - SOUTH CENTRAL REGION

-

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ATTN 0 ...

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memorandum

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UNITED STATES GOVERNMENT

~.'-~'~~'

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~onthl~ebrUary 1, 1993 - February 28, 1993

Wallace H. Cheney, Assistant Director/General counsel
central Office

"DMINIS'l'R"TIVB REMEDIES
Received

Answered
TORT CLAIMS

Number Pending
Number Received
Number Answered
Number Pending
Number Over six Mon

rOI/PRIVACY
Pending
Received
Answered
Pending
Number Over 30 Days

Number
Number
Number
Number

LITIGATION

FTCA
Other

Lit Reports
Cases with Hearings
or Trials
Cases with settlements
or Awards
... _ . _ _ _ _ _ _ _ _

104

90

90

97

DEC

JAN

FEB

245
46

243
90
50

0'

228
70
55
243
0

DEC

JAN

FEB

19

lS

16

28
32

24

39

23
16'
2

17

JAN
10
1

FEB

63
228

15

0

28

Bivens

.. ' 4 "

JAN

107
99

DEC
18

New Cases Recd
Cases Closed
Habeas Corpus

.......

FEB

DEC

283

1

38

7

12
11

10
5
2
1

6

6

3

5

1
0

17

9

1
0
9

1

2

3

0

2

2

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OPTIONALFOI'lM NO. '0
(REV. ,~O)
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SIGNIFICANT CASES.

Manual v. Thornburgh, SA-91-CA-0163 (W.O. TX.) On February 10, 1993, Ms. Manual was awarded
$12,610.27, as back pay, $22,290.50 as attorney'.
fees, plus expenses, costs of court, and
postjudqment interest in the amount of 3.45% per
annum. In addition, Ms. Manual was granted
reinstatement effective December 17, 1992. The
court found that Ms. Manual had been subjected to
sex discrimination by male lieutenants at FeI
Bastrop during 1984 and 1985. This action will
not be appealed.
Bob E. B~iles v. united states, 3:92-CV-1963-Boyle
(N.D. TX) - A trial was held on March 1, 1993, to
litigate an FTCA action filed by inmate Bob E.
Bailes, who is currently housed at Fort Worth.
Mr. Eailes claimed 22 boxes of personal and legal
property were lost by Bureau of Prisons staff at
FeI Big Spring" Texas in October 1990. Bailes
submitted altered documents to the court to
support his claim. During trial, Bureau of
Prioon~

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co to

~hc

c~thcnti~ity

of

the official R&D file copies of the property forms
Bailes had altered, and the court found that
Bailes was using the courts for tlrecreational fl
purposes. Bailes was sanction the cost of the
filing fees as well as the government's cost of
litigating the case. In addition, Bailes is
prohibited from filing future actions without
leave of the court until he pays the sanctions.

Fcr Bastrop

Warden, Bill Hedrick, was subpoenaed
to testify as an expert witness in a state of
Texas civil action against the Sheriff of Bexar
County, Texas. The case was filed by an inmate
housed at the county jail because the sheriff
refused to allow pornographic material in the
Bexar County Jail. The government moved to quash
the subpoena on ground of failure to satisfy
technical requirements of 28 C.F.R. 16.22{
sovereign immunity, and doubtful relevance. The
court ruled that while the desired testimony was
relevant, the government's refusal to waive
sovereign immunity provided the court with no
means of denyinq the motion to quash.

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Dane Garrison v. J. J. Clark, et. al., 92-5683
(6th cir.) - On February 24, 1993, the Sixth
Circuit Court vacated a summary judgment which was
affirmed by the u.s .. District Court, Western
District of Tennessee. The circuit court
concluded that the evidence was such that a
summary judgment was not warranted with respect to
Ernie Bristol. Mr. Bristol is the Health Service
Administrator at Fe! Memphis. This Bivens type
suit was filed by inmate Dane Garrison. Mr.
Garrison alleges that he was subjected to cruel
and unusual punishment by medical staff at FCI
Memphis, and that his right to due process under
the Fourteenth Amendment was violated. These
allegations result trom an injury Mr. Garrison
sustained to his right leq at FeI MQmphi~. Mr.
Garrison's right leg was injured when a piece of
metal was thrown from a lawn mower.
Earl Wright y. Bureau of Prisons, 91-2583-G/A
(w.O. TN) - Earl Wright filed suit alleging the
Bureau of Prisons destroyed a photo album and
photos. He claimed he was entitled to $8,004.95
for 80 photos and one (1) photo album. He was
offered $100.95 durin9 the tort claim stage. The
court determined the inmate was entitled to
$264.95. It should be noted the inmate failed to
indicate on the property form, completed prior to
his transfer, that he had property valued at over
$100.00 was presented to the court. This fact has
resulted in favorable ruling in the past, but was
not effective in this case. Mr. Wright has
appealed the courts judgment.
Rufus Young, 3r. V, Edwin Meese, CA-3-88-005-T
(Northern District of Texas, Dallas Division) is
scheduled for trial on April 6, 1993. A former
staff member is challenging his termination for
sexual harassment. Trial is expected to last tor
three days.
Upcoming Trials;
Goggin v. U.S., 91-2735(W.D. TN) - An FTCA action
involving an inmate at Memphis who has alleged he
did not receive proper medical treatment for an
ankle injury. G099in alleges he injured his ankle
on the recreation yard, and one week later he was
admitted to a community hospital suffering from
fever, pain, and infection which resulted in the
skin splittinq. This case is set for trial on
March 31, 1993.

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Turner V. U.S., EPe~2~70-B (W.O. TX) - This case
is an FTCA action wherein the inmate alleges he
was not provided adequate medical treatment for a
work related injury. The inmate fell while
working in Food Service. He alleses he was not
medically fit to work and FeI La Tuna staff were
deliberately indifferent to his disabilities.
This case is set for trial on March 16, 1993.
Armour y. Mims - 91-2502-GB (W.O. TN.) - Donald
Armour filed a Bivens action alleging staff at FeI
Memphis arbitrarily and capriciously and with
deliberate indifference when he was denied a
Kosher diet for 21 days. Mr. Neal Adler,
Associate Warden at FCI Memphis is expected to be
an expert witness on the Jewish Kosher diet
program. Mr. Adler is Jewish. Mr. Armour simply
did not follow the proper procedures to be placed
on the Kosher Diet Program. When he submitted the
proper authorization, he was allowed to
participate in the program. A jury trial is set
for March 29, 1993.

Hanif V' Quinlan - 91-2726-GBRE (W.O. TN.) - Talib
Hanit filed a Biyens action alleginq stat! at FCI
Memphis denied him the right to participate in a
kosher diet program. Initially, Mr. Hanif was
denied the opportunity to participate in the
kosher diet pro9ram because he did not fail within
the guidelines of Bureau of Prisons policy.
However, he was subsequently allowed to
participate. The trial set for February 17, 1993,
has been reset for May 19, 1993.
TRAVEL AND ANNUAL LEAVE SCHEDULES
Mike Hood -

Military Leave - March 15-26, 1993

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SENT BY:

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REGION UNITED STATES GOVERNMENT

memorandum

April 14,
0"""1

202 307 2995;# 1

l":r-r/'.-

Michael D. Hood, Regional Counsel

.,

Month l y Report - March 1, 1993 - March 31, 1993
Wallace H. Cheney, Assistant Director/General Counsel
Central Office

1<DMINISTRATIVE REMEDIES
Received
lmswered

DEC

JAN

107

104

99

90

DEC
245
46
63
228
0

JAN

DEC
19
28
32
15
0

JAN

DEC
18
28
10
5
2
1
17

JAN

FEB
90
97

MAR

rEB
243
90
50
283
1

MAR

FEB
16
39
17
38
7

MAR

FEB
12

MAR

103
112

TORT CLAIMS
Number
Number
Number
Number
Number

Pending
Received
Ans wered
Pending
Over Six Mon

228
70
55
243
0

283
63
75
271
0

FOI/PRIVACY
Number
Number
Number
Number
Number

Pending
Recei v ed
Answered
Pending
Over 30 Days

15
24
23
16
:2

38
68
45
61
15

LITIG1<TION
New Cases Reed
Cases Closed
Habeas corpus
Bivens
FTCA
Other
Lit Reports
Cases With Hearings
or Trials
Cases With Settlements
or Awards

10
1

23

11

9

0
9

6
5
1
0
9

7
12
3
1
14

1

:2

3

4

0

:2

2

1

6

3
1

OPTIONAL. 1"'0 .. ,... NO . 10

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SENT BY:

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2147679724 ...

2023072995:# 2

2

SIGNIFICANT

CASESr

Dawson y. USA, 4:92-CV-144-A (N.D. TX) - This case
involved an inmate running into a telephone pole at
FCI, Fort Horth. The case was dismissed by court. ' ...
However, contempt charges against two AUSA's handl!nq
the case are still pending. The Judge believes tn~
AUSA's bargained in bad faith during a settlement
conference.
Meese, 3-88-CV-5-T (N.D. TX) -,'·This case
involves a former employee's challenge to his firing
for inappropriate conduct toward another staff member.
The former employee is charging his dismissal was
based on racial reasons. The trial which beqan on
April 6, has been completed. However, a decision has
not yet been rendered.
Young Y,

4:92-CV-0094-Y (N.D. TX) - A civilian
and her passenger are seekin9 455X in damages
resulting from a traffic accident with a BOP vehicle
operated by an employee from FeI, Seagoville.
Fleming Y, USA,

Smith v. Spears, C-92-2691 (S.D. TX) - Inmate is
challen9ing how his two one-year sentences were
carried out. Magistrate has recommended the BOP's
eXhaustion and 2251 ar9uments be denied and would
require the BOP to respond to the merits of the
petition.
UPCOMINQ TRIALS.

Frederick Keller Y, Michael FitzpatricK,
No. 91-CV-102-C (N.D. TX) - Bivens action originally
against Warden, M.D. and P.A. for damages inmate
alleged occurred when he fell down a flight of stairs.
Inmate claimed fall was caused because PA had refused
to 9ive him medication because he was late for pill
line. PA states inmate had previously been warned
about being late for pill line and she (PA) received
word from M.D. that medication was not necessary.
Specifically, inmate wanted valium, and medical staff
had previously determined that inmate had become
addicted to valium and the drug no longer had
therapeutic value in his case.
Warden and M.D. have been dismissed. P.A. is only
defendant remaininq. Trial set for September 7, 1993.
AUSA handling case is hopeful we will win summary
judqment on behalf of PA and trial will be avoided.

·

SENT BY :

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21 47679724-

2 0 23 0 72995 ; ~

3

Black culture WorKshop v. United States,
A-89-CA-602 (W.D. TX.) - On April 19, 1993, the
jury selection and trial will begin.
Initially,
this case was dismissed by the U.S. District Court,
Western District of Texas on June 29, 1990.
The
inmates appealed, and on September 26, 1991,i," the
Fifth Circuit Court of Appeals remanded the case to
the District Cour,t. The Fifth Circuit affirma'ci the'
Di,trict Court's dismissal of the
individual
(Biyens) defendants, but remanded the case for
further consideration on: 1) the :legal basis, if
any, for injunctive rslief against the United
States;
2)
the
exhaustion
of
remedies
by
appellants;
3)
the proper party
or
parties
defendant; and, 4) if necessary, the merits of the
sui t.
In addition, plaintiff Larry Varner was
transfer from FCI Bastrop, and the Fifth Circuit
stated the District Court should consider whether
Varner transferred for retaliatory reasons.
Goggin v . U. S., 91-2735(W.D. TN) - An FTCA action
involving an inmate at Memphis who has alleged he
did not receive proper medical treatment for an
ankle injury. Goggin alleges he injured his ankle
on the recreation yard, and one week later he was
admi tted to a community hospital suffering from
fever, pain, and infection which resulted in the
skin splitting.
It has recently been discovered
that some or Goggin's medical records may have been
altered. This matter is being investigated. Due to
the court's heavy docket, this caBe is being
continued until June 2, 1993.
Turner y. U.S., EP-92-70-B (W.D. TX) - This case is
an FTCA action wherein the inmate alleges he was
not provided adequate medical treatment for a work
related injury.
The inmate fell while working in
Food Service. He alleges he was not medically fit
to work and FCI La Tuna staff were deliberately
indifferent to his disabilities. This case is set
for trial on June 28, 1993.
Armour V, Mirna 91-2502-GB (W.D. TN.) - Donald
Armour filed a Biyens action alleging staff at Fer
Memphis acted arbitrarily and capriciously and with
deliberate indifference when he was denied a Kosher
diet for 20 days. Mr. Neal Adler, AS50ciate Warden
at FCI Memphis is expected to be an expert witness
on the Jewish Kosher diet program.
Mr. Adler is
Jewish and familiar with the Jewish beliefs.
Armour alleges to be an Afri~an H&gr&w.
upon hi~
arrival at FCI Memphis in December 1990, he
requested to participate in the Kosher Diet

3

SENT BY:

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21 4 767 9 72 4~

2023072995:# 4

4

Program, and Chllplllin Mims refused the request
because he was not familiar vith the African Hebrew
religion. He (Mime) linked the African sect to the
Yllhweh Ben Yahweh sect and denied Armour's request.
Four (4) dllYs later chaplain Lonegran approved the
request without the knowledge of Mims.
Arinour
participated in the Kosher progrllm for the first
time at Memphis on 12-17-90. However, the nex't day'
Mims became IIwllre of Lonegran approving the request
lind he (Mims) instructed Food Service staff to
inform Armour that he would no longer be allowed to
participate in the Kosher program. Armour filed a
BP-9, and on 1-7-91, Warden J. J. Clark granted his
request. On 1-15-91 Al Worthly, Regional Religious
Services Admini5trator,
spoke with Armour to
explain that the reason it took so long for him to
be approved was that he had been confused with the
Yahweh Ben Yllhweh sect and the African Hebrew
religious beliefs had to be confirmed by Mims.
Armour has been transferred out of Memphis because
he expressed his thoughts that if remained at
Memphis that he would injure a female staff member.
Armour now III leges thllt the transfer was done in
retalilltion for his pursuing the Kosher Diet
lawsuit. He subsequently added more defendants to
the suit. The court has continued this case, but a
trill1 dllte hilS not been set. However, a Motion for
Summary Judgment was filed on 3-16-93.
Hanif v. Quinlan
91-2726-GBRE (W.D. TN.)
Inmates Talib Hani! and Jasper Young filed this
Biyens action 1I11eging staff at FCI Memphis denied
them the right to participate in a Kosher diet
program.
Both inmates profess to be ~~slim
Funda mentalist.
They contend that FCI Memphis
staff have discriminated against them by not
allowing them to participate in the Kosher Diet.
The
inmates were denied
the
opportunity to
participate in the Kosher Diet program because they
are not Jewish, and Muslims do not fall within the
guidelines
of
Bureau
of
Prisons
policy
to
participate in the Kosher Diet program.
Both
plaintiffs are requesting that Memphis comply with
Burellu of Prisons policy and participate . in the
Common Fare Diet program.
ThQ trial set tor
February 17, 1993, has been reset for May 19, 1993.
Jackson v. united states, A-90-CA-108 (W.O. TX) Inmate Jackson filed this FTC'; action alleging
staff at FeI Bastrop handcuff~d him and forced him
to use one crutch to walk to the shower in the
Special Housing Unit.
Jackson had a leg injury
which required that he use the crutches to
ambulate. Upon exiting the shower, he slipped and

2147679724 ...

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2023072995;# 5

5

fell. JacKson was treated at a local hospital and
upon his return to the institution, he alleges that
four (4) staff members assaulted him while he was
in restraints.
He allegGs that the assault
resulted in the loss of use of his lower
&xtremi ties.
Jackson
was
transferred 1:· to
springfield. However, medical staff were unabJe to
conclusively
d~tQrmine
that
Jackson
was
a"
parapleqio.
Jackson was released on parole, and
has since been arrested for sexual battery on a
child.
Information has been obta~ned by the FBI
which is vital to the government in this action,
and additional witness statements ha.ve been
introduced to the court in camera. Trial has been
set for May 3, 1993.
Daniel Sims v. J. J. Clort, 90-2036-TU/B, (W. D.
TN.)
Inmate filed this Biyens styla action
alleging he received an incident report and was
round guilty of possession ot narcotics as a result
of a conspiracy desig-ned to victimize him.
The
government filed a Motion for Summary Judqment, and
the court allowed sims a.n opportunity to respond.
Sims filed a brief with the court stating he had
was unable to respond because Bureau of Prisons
star! at FeI Phoenix were not allowing him access
to his legal materials. The court then ordered the
government
to
provide
a
detailed
response
addressing Sims' allegations.
The AUSA has
providad the court with a response and Bupporting
declarations from Bureau of Prisons staff which
disput Sims' allegations.
Basically, Sims has
refused to enter general population and he is being
housed in the Spacial Housing Unit. Therefore, the
amount of legal material he is allowed to keep in
his cell is limited. Procedures are in place for
him to access his property (submit a copout to Unit
staff), but Armour refuses to comply. A Motion for
summary Judgment has been filed.
Trial has been
set for July 27, 1993.
TRAVEL AND 1NNOAL LEAVE SCHEDULES

Mike Hood Management Assessment Meetinq - April 19-23, 1993
Lori cunninqham Ethics Trainin9 - FeI Memphis - April 13, 1993
FPC Millington - April 14, 1993

BUREAU OF PRISONS - SOUTH CENTRAL REGION UNITED STATES GOVERNMENT

DATE:

memorandum
May 12, 1993 //',

d...f:;:J
/ /
,/,f/~d'\
v'
'
''-i1 '--J
Mic ael D. Hood, Regional Counsel
0#

.. ~'(

SUBJECT:

Monthly Report - April 1, 1993 - April 30, 1993
TO:

Wallace H. Cheney, Assistant Director/General Counsel
Central Office

ADMINISTRATIVE REMEDIES
Received
Answered

JAN

FEB

MAR

104
90

90
97

103
112

JAN

FEB

MAR

228

243

APR
96
88

TORT CLAIMS
Number
Number
Number
Number
Number

Pending
Received
Answered
Pending
Over six Mon

APR
271
72
51
292

70

90

55
243

50
283

283
63
75
271

1

o

o

JAN

FEB

MAR

15
24
23
16

16
39
17
38

38
68
45
61

APR
61
61
59
63

JAN

FEB

MAR

10
1
6

12
11
6

23

3

5

12

1

o

1
0

3
1

o
o

9

9

14

18

2

3

4

4

2

2

1

o

o

FOI/PRIVACY
Number
Number
Number
Number

Pending
Received
Answered
Pending

LITIGATION
New Cases Recd
Cases Closed
Habeas Corpus
Bivens
FTCA
other
Lit Reports
Cases With Hearings
or Trials
Cases With Settlements
or Awards

9
7

APR
22
21
8

13

SIGNIFICANT CASES:
Lawrence Caldwell v. U.s. - No. 92-6183 (WD/OK)
D.C. No. CIV-91-1588-C - Tenth Circuit reversed and
OPTIONAL FORM NO. IG
(REV. ,-80)
GSA P'PMR (., CPR) '01-11 ••
5OU~II.

2

remanded issue of "custodial negligence" to District
court, stating that government's motion to dismiss for
failure to state a claim under 12(b) (6) should have
been denied, while conceding that plaintiff's
allegations, which included being placed in a cell that
was too small without access to fresh air, having
roommates who were inmate informers, and being fed from
the common fare diet program, did not rise to the level
of outrageous conduct, given that plaintiff was housed
at El Reno for only ten days.
Turner v. U.S., EP-92-70-B (W.O. TX) - This case is an
FTCA action wherein the inmate alleges he was not
provided adequate medical treatment for a work related
injury. The inmate fell while working in Food Service.
He alleges he was not medically fit to work and Fe! La
Tuna staff were deliberately indifferent to his
disabilities. Judge Bunton signed the Judgement
dismissing this action with prejudice on April 14,
1993. The court found that Turner did not establish
the essential elements to support a claim of negligence
due to the fact that he did not present expert medical
evidence to sUbstantiate his claim that La Tuna had
breached the standard of care. The costs of this
action were accessed against Turner.
UPCOMING TRIALS:

Robert Graven v. Dale Brown, et ale - civil Action No.
92-921-A (MD/LA) - Inmate at Carville filed Bivens
alleging his medication was not properly refilled and
he is forced to sleep on a wool blanket even though he
is allergic to wool.
Inmate filed Motion for
Discovery, AUSA filed Protective Order to Stay
Discovery and Motion to Dismiss/summary Judgment.
Magistrate fixated on Protective Order not in
accordance with local rules and didn't address issues
of immunity, exhaustion, etc. Scheduled hearing on
Discovery'issues for June 4, 1993. AUSA feels we will
succeed on Motion for Reconsideration before discovery
hearing.
Young v. Meese - Civil Action No. 3:88-CV-5-T (ND/TX)
This case involves a former employee's challenge to his
firing for inappropriate conduct toward another staff
member. The former employee claimed that his dismissal
was r~cially motivated. The bench trial concluded in
mid-April and a decision is pending.
Black Culture Workshop v. united states, A-89-CA-602
(W.O. TX.) - On June 28, 1993, the jury selection and
trial will begin. Initially, this case was dismissed

,

3

by the u.s. District court, Western District of Texas
on June 29, 1990. The inmates appealed, and on
September 26, 1991, the Fifth Circuit Court of Appeals
remanded the case to the District Court. The Fifth
Circuit affirmed the District Court's dismissal of the
individual (Bivens) defendants, but remanded the case
for further consideration on: 1) the legal basis, if
any, for injunctive relief against the united states;
2) the exhaustion of remedies by appellants; 3) the
proper party or parties defendant; and, 4) if
necessary, the merits of the suit. In addition,
plaintiff Larry Varner was transfer from FCI Bastrop,
and the Fifth Circuit stated the District Court should
consider whether Varner transferred for retaliatory
reasons.
Goggin v. u.s., 91-2735(W.D. TN) - An FTCA action
involving an inmate at Memphis who has alleged he did
not receive proper medical treatment for an ankle
injury. Goggin alleges he injured his ankle on the
recreation yard, and one week later he was admitted to
a community hospital suffering from fever, pain, and
infection which resulted in the skin splitting. This
case is continued until
June 2, 1993.
Armour v. Mims - 91-2502-GB (W.O. TN.) - Donald Armour
filed a Bivens action alleging staff at FCI Memphis
arbitrarily and capriciously and with deliberate
indifference when he was denied a Kosher diet for 21
days. Mr. Neal Adler, Associate Warden at FCI Memphis
is expected to be an expert witness on the Jewish
Kosher diet program. Mr. Adler is Jewish. Mr. Armour
simply did not follow the proper procedures to be
placed on the Kosher Diet Program. When he submitted
the proper authorization, he was allowed to participate
in the program. On April 27, 1993, Judge Gibbons
denied the government's Motion for Summary Judgment and
qualified immunity for Chaplain Ray Mims. She based
her decision on the fact that a genuine issue of
material fact remains regarding whether Memphis'
Religious Diet supplement which mandates certain
procedural requirements before an inmate may be served
a kosher diet is reasonably related to a penological
objective. The Assistant u.s. Attorney is preparing a
Motion for Reconsideration in which the institution
supplement will be directly related to a penological
objective. A trial date has not been set.
Hanif v. Ouinlan - 91-2726-GBRE (W.O. TN.) - Talib
Hanif filed a Bivens action alleging staff at Fe!
Memphis denied him the right to participate in a kosher
diet program.
Initially, Mr. Hanif was denied the
opportunity to participate in the kosher diet program

•

4

because he did not fail within the guidelines of Bureau
of Prisons policy. However, he was subsequently
allowed to participate. The trial set for February 17,
1993, has been reset for May 19, 1993.
Jackson v. united States, A-90-CA-108 (W.O. TX) Inmate Jackson filed this FTCA action alleging staff at
FCI Bastrop handcuffed him-and forced him to use one
crutch to walk to the shower in the Special Housing
unit.
Jackson had a leg injury which required that he
use the crutches to ambulate. upon exiting the shower,
he slipped and fell. Jackson was treated at a local
hospital and upon his return to the institution, he
alleges that four (4) staff members assaulted him while
he was in restraints. He alleges that the assault
resulted in the loss of use of his lower extremities.
Jackson was transferred to Springfield. However,
medical staff were unable to conclusively determine
that Jackson was a paraplegic. Jackson was released on
parole, and has since been arrested for sexual battery
on a child.
Information has been obtained by the FBI
which is vital to the government in this action, and
additional witness statements have been introduced to
the court in camera. Trial has been set for May 3,
1993.
Daniel Sims v. J. J. Clark, 90-2036-TU/B, (W.O. TN.) Inmate filed this Bivens style action alleging he
received an incident report and was found guilty of
possession of narcotics as a result of a conspiracy
designed to victimize him. Trial has been set for July
27, 1993.

BUREAU OF PRISONS - SOUTH CENTRAL REGION UNITED STATES GOVERNMENT

memorandum
5Ua.JECT:

TO .

. iI.

Monthly Report - May 1, 1993 - May 31, 1993

' 7 [Q3

L-~~nr~~~
BUREAU OF PRISONS

I!
I

i
--- ...

_....Q£FICE OF GENERAL COUNSEL

Wallace H. Cheney, Assistant Director/General Counsel
Central Office

ADMINISTRATIVE REMEDIES
JAlI

Received
Answered

104
90

FEB
90
97

MAR

APR
96
88

MAY
52
35

FEB
243
90
50
283
1

MAR

APR
271

51
292
0

MAY
292
53
36
309
0

FEB
16
39
17
38

MAR

APR
61
61
59
63

MAY
63
69
51
81

FEB
12

MAR

14

APR
22
21
8
13
0
0
18

MAY
31
6
16
8
2
2
18

103
112

TORT CLAIMS
JAN

Number
Number
Number,
Number
Number

Pending
Received
Answered
Pending
Over six Mon

228
70
55
243
0

283
63
75
271
0

72

FOI/PRIVACY
JAN

Number
Number
Number
Number

Pending
Received
Answered
Pending

15
24
23
16

38
68
45
61

LITIGATION
JAN

New Cases Recd
Cases Closed
Habeas Corpus
Bivens
FTCA
Other
Lit Reports
Cases with Hearings
or Trials
Cases with settlements
or Awards

10
1
6
3
1
0
9

11

6
5
1
0
9

23
9
7
12
3
1

2

3

4

4

3

2

2

1

0

1

OPTIONAL FORM NO. 10
(REV. 1-80)

GSA FPMR (41 CFR) IO'w".'
5010-1,4

· U.S. Government Pnnllng OtfIce: 1991 -

281n82140080

2

SIGNIFICANT CASES:

Okoye v. Burkhart, 4:93-CV-0008-Y (NO TX) - This was a
habeas case where petitioner claimed he was receiving
inadequate treatment for his liver problems (swollen
liver) and his hepatitis. Petitioner then died from
hepatic failure, primary hepatic carcinoma, and
hepatitis B, which he had for 10 years. The case was
then dismissed as moot. His only relatives are in
Nigeria, and it currently appears that no wrongful
death suit will be filed.
Benoit v. U.S., 93-704 CWO/LA) - BOP officer from
Oakdale was conducting training in riot techniques for
group of LA state correctional officers. While BOP
staff demonstrated use of several different types of
tear gas dispersal systems, a state officer was struck
in the groin by one of the gas projectiles that
randomly ricocheted from its intended course. state
officer seeks $250,000 in damages under FTCA.
ADVERSE JUDGMENTS:
Henthorn v. Hester, 92-2630 (W.O. TN.) - Donald
Henthorn filed this Bivens action alleging he was
homosexually fondled by FPC Millington Correctional
Officer Michael Hester. A Motion for Summary
Judgment/Motion to Dismiss was denied by Judge Julia
Gibbons. She agreed that the defendant may have been
acting in accordance with normal and permissible
procedures and that such procedures may include
touching of genitalia while conducting a search.
However, Judge Gibbons stated in her order dated 4-2693, that she would reconsider the motion for summary
judgment if the defendant submitted an affidavit
explaining what procedures he used while patting down
plaintiff during the searches) complained of. On 5-1893, the AUSA Harriet Halmon submitted a Renewed Motion
to Dismiss, or in the Alternative, Motion for Summary
Judgment. Attached to the Motion was supporting
documentation from the following FLETC' staff: Attorney
Advisor, J. Stuart Bauch and Correctional Programs
Specialist, George Damrilli and Terry Graham,
Correctional Program specialist. It is anticipated
that this case will be dismissed in light of Judge
Gibbons 4-26-93 order.
Burkhart v. Woodall. Hibbitts. & Hahn, 91-3026-4A (W.O.
TX) - Inmate filed this Bivens action against staff at
FPC Millington. He alleged that he suffers from
permanent damage to his ankle because staff failed to
properly assign him to a work detail where he could

3

elevate his ankle.
Personal service was effected on
Paul Woodall, Correctional Officer, Tom Hibbitts,
Correctional Officer, and John Hahn, Superintendent.
However, the Assistant United states Attorney was not
served with a copy of the complaint and a responsive
pleading was not filed with the court. The decision to
not file an answer was based on a memorandum issued by
Chief Judge Robert McRae, dated April 10, 1985,
regarding service of process.
Essentially, Judge McRae
stated if the united States Attorney's Office must be
served. On 4-22-92, a default judgment was entered
against the above-named BOP staff members.
On 05-5-92,
the United States filed a motion to set aside the entry
of default. On 5-6-93, the court denied the motion.
On 5-20-93, a Motion for Reconsideration of Order
Denying Motion to Set Aside Entry of Default and
Entering Default Judgment was filed with the court. A
ruling has not been made to date. However, the AU SA
Harriet Halmon has since made contact with DOJ
Appellate Division and a decision has been made that a
responsive pleading will be filed anytime an employee
is served properly pursuant to Rule 4(d) (1).
Lavado v. Keohane. et. al., 88-2891-GB (W.D. TN) - This
action was filed in 1988, and was monitored by the
SERO. We are currently attempting to locate all
documents relating to this case. On 4-22-93, the sixth
Circuit affirmed the district court's judgment in part
and reversed the judgment in part, the case has been
remanded for further proceedings. Henry Lavado, Jr.,
has since been released.
It appears this action
involved the alleged opening of "Special Mail." As
soon as more information is obtained, I will notify
your office.
UPCOMING TRIALS:

Black Culture Workshop v. United States, A-89-CA-602
(W.D. TX.) - On June 28, 1993, the jury selection and
trial will begin. Initially, this case was dismissed
by the U.S. District Court, Western District of Texas
on June 29, 1990. The inmates appealed, and on
September 26, 1991, the Fifth Circuit Court of Appeals
remanded the case to the District Court. The Fifth
Circuit affirmed the District Court's dismissal of the
individual (Bivens) defendants, but remanded the case
for further consideration on: 1) the legal basis, if
any, for injunctive relief against the united states;
2) the exhaustion of remedies by appellants; 3) the
proper party or parties defendant; and, 4) if
necessary, the merits of the suit.
In addition,

4

plaintiff Larry Varner was transfer from FeI Bastrop,
and the Fifth Circuit stated the District Court should
consider whether Varner transferred for retaliatory
reasons.
Goggin v. u.s., 91-2735(W.D. TN) - An FTCA action
involving an inmate at Memphis who has alleged he did
not receive proper medical treatment for an ankle
injury. Goggin alleges he injured his ankle on the
recreation yard, and one week later he was admitted to
a community hospital suffering from fever, pain, and
infection which resulted in the skin splitting. This
case was 90ntinuedi however, the trial date has not
been set.
Armour v. Mims - 91-2502-GB (W.D. TN.) - Donald Armour
filed a Bivens action alleging staff at FCI Memphis
arbitrarily and capriciously and with deliberate
indifference when he was denied a Kosher diet for 21
days. Mr. Neal Adler, Associate Warden at FCI Memphis
is expected to be an expert witness on the Jewish
Kosher diet program. Mr. Adler is Jewish. Mr. Armour
simply did not follow the proper procedures to be
placed on the Kosher Diet Program. When he submitted
the proper authorization, he was allowed to participate
in the program. On April 27, 1993, Judge Gibbons
denied the government's Motion for Summary Judgment and
qualified immunity for Chaplain Ray Mims. She based
her decision on the fact that a genuine issue of
material fact remains regarding whether Memphis'
Religious Diet supplement which mandates certain
procedural requirements before an inmate may be served
a kosher diet is reasonably related to a penological
objective. The Assistant u.s. Attorney has filed a
Motion for Reconsideration in which the institution
supplement will be directly related to a penological
objective. A trial date has been set for 8-23-93.
Hanif v. Ouinlan - 91-2726-GBRE (W.D. TN.) - Talib
Hanif filed a Bivens action alleging staff at FCI
Memphis denied him the right to participate in a kosher
diet program. Initially; Mr. Hanif was denied the
opportunity to participate in the kosher diet program
because he did not fail within the guidelines of Bureau
of Prisons policy. However, he was subsequently
allowed to participate. The trial set for February 17,
1993, has been reset for September 10, 1993. FCI
Memphis is scheduled to begin a common fare program on
July 12, 1993. It is anticipated that this case will
be moot at that time.
Daniel Sims v. J. J. Clark, 90-2036-TU/B, (W.D.TN.) Inmate filed this Bivens style action alleging he
received an incident report and was found guilty of
possession of narcotics as a result of a conspiracy

5

designed to victimize him.
July 27, 1993.

Trial has been set for

Taylor v. U.S.A., 4:92-CV-300-A (ND TX) - This is an
FTCA case where plaintiff sought damages for personal
property damaged at Terre Haute. The BOP concedes
negligence but challenges the damage claim. Plaintiff
sought $10,800 at the administrative level, and now
seeks $114,000. He has refused settlement offers of
$700.00 and $1,300.00. The Court denied his motion for
appointment of counsel on June 4, after hearing
arguments from both sides. Trial is set for June 11,
1993.
U.S v. Kenneth Kirk, 92-110 (SD/IN) - Inmate at
Carville originally filed Rule 35 motion alleging that
he is not receiving appropriate medical treatment for
chronic back problem, and that judge was misled at
sentencing that BOP could provide care.
Hearing set
for June 18 in Indianapolis, focusing on capacity of
BOP nationally to deal with inmate medical care.
OTHER INFORMATION:
Garcia v. Hurst, 91-2896-G/A - Inmate filed suit
alleging he was entitled to time served in a state
institution to be credited to his federal sentence. On
9-30-92, Judge Julia Gibbons remanded this case back to
the Bureau of Prisons for reconsideration of the issue
of sentencing credit. She specifically requested that
the BOP consider whether to make a retroactive
designation of the Rhode Island prison as the place of
service of Garcia's federal sentence.
She further
stated that if the BOP made such a designation, then it
should award Garcia with 675 days of credit. On 2-1093, Charles Turnbo, SCR Regional Director, reported via
a letter
complied
Garcia's
sentence
credit.

to Judge Gibbons that her order had been
with and a Nunc Pro Tunc designation of
sentence had been entered and Garcia's
was recalculated to reflect the 675 days of

Jackson v. United States, A-90-CA-108 (W.D. TX) Inmate Jackson filed this FTCA action alleging staff at
FCI Bastrop handcuffed him and forced him to use one
crutch to walk to the shower in the Special Housing
unit.
Jackson had a leg injury which required that he
use the crutches to ambulate.
Upon exiting the shower,
he slipped and fell.
Jackson was treated at a local
hospital and upon his return to the institution, he
alleges that four (4) staff members assaulted him while
he was in restraints. He alleges that the assault
resulted in the loss of use of his lower extremities.

6

Jackson was transferred to Springfield. However,
medical staff were unable to conclusively determine
that Jackson was a paraplegic. Jackson was released on
parole, and has since been arrested for sexual battery
on a child.
Information has been obtained by the FBI
which is vital to the government in this action, and
additional witness statements have been introduced to
the court in camera. A trial was held May 3-5, at
which time the jury returned a verdict in favor of the
defendants in the Bivens action. The judge also ruled
in favor of the United states in the FTCA action.
Coupar v. Samford, EP-92-CA-244-B - coupar filed a
Bivens action against Liz Samford, Paralegal, FCr La
Tuna alleging she retaliated against him for exercising
his constitutional right of access to courts. The
incident report was written after Coupar provided a
false statement on a tort claim.
Specifically, Coupar
was attempting to seek reimbursement for items he
allegedly purchased in the Commissary because staff
denied him access to a medical diet.
During the tort
claim investigation, it was determined Coupar did not
purchase the items he was seeking to be compensated
for.
The court granted the Motion to Dismiss/Summary
Judgment and the case was dismissed with prejudice.
costs were taxed against Coupar.
Robert Graven v. Dale Brown. et aI, 92-921-A (MD/LA)
Inmate at Carville filed Bivens alleging his medication
was not properly refilled and he is forced to sleep on
a wool blanket even though he is allergic to wool. At
June 4th hearing, magistrate allowed inmate 30 days to
amend his complaint, dropping non-monetary damages in
order for inmate to circumvent remedy exhaustion
requirement.
Ricky Joe Shugart v. Esam Hussein. et al., 93-005-B
(MD/LA) - Inmate at Carville filed Bivens alleging PA
improperly revoked his wheelchair privileges and
approved him for a work assignment.
Hearing on June
4th, magistrate counseled inmate that his complaint
failed to state a claim under Bivens, and that he
should amend and pursue under FTCA.

'.

:st~..J

,.

~y:
~

2147679724'"

2023072995;# 2

BUREAU OF PRISONS - SOUTH CENTRAL REGION UNITED STATES GOVERNMENT

memorandum
19~3-,

July 8,

/7

iAiJ~

IUaJICT,

TO.

{;ichael

D. Hood, Reqional Counsel

Monthly Report - June 1, 1993 - June 30, 1993

Wallace H. Cheney, Assistant Director/General Counsel
Central Office

ADKIHISTRATIVB RBMEDIIS
ReceiveCi

Answered.

JAB

I'll 8

KAR

~I'R

KAY

.70)1

104
90

90

96

97

103
112

52
35

71

Jd

rEB

KAR

KAY

228

243
90

283

"'UK

TORT CLAIMS

Number
Number
Number
Number

Pending
Received
Answered
Pending

N\l1nber Over Six Mon

88

72

243

50
283

271

APR
271
72
51
292

0

1

0

0

292
53
36
309
0

JAN
15

rEB
16

KAJl

APR

KAY

38

61
61
S9
63

63
69
51
81

JUH
81
87
82
86

MAR
23
9

A»a

HAY

JOB

22

31

16

21

6

3

7

8

16

7

12

13

3

0

6
2

1
14

0
18

8
2
2
18

14

70
5S

63
7S

309
67

98
278
0

~OI/PRIVACY

Number
Number
Number
NumDer

Pending
Received

Answered
pending

24

39

68

23

17

16

38

45
61

JAIl
10
1
6
3

riB

LITIGATION
New Cases ReceS
Cases Closed
Habeas Corpus
Bivens
FTCA
Other

Lit Reports
Cases With Hearings
or Trials
Cases With settlements
or Awards

12

9

11
6
5
1
0
9

2

3

4

4

3

1

2

2

1

0

1

1

1
0

0

OPTIONA~

1'0"'" NO. 10

(JUN.'.)

OM W .. R (•• CI'A) lOl-It,.
"I~II.

·U.S. OCMrnlNftt PMtlng 0HIca: ,", - 281n82l4COBO

~~~I
UI·
~~.,

2023072995;# 3
2
8IGHI~IC1HT

C1SISI

Taylor v. U.S.A L , 4:92-CV-300-A (ND TX) - This is an

FTCA case whare plaintiff sought damagQs for personal
property damaged at Terre Haute. The BOP conceded
negliqence but challenged the damage claim. Plaintiff
sought $10,800 at the administrative level, and
$114,000 at trial. The court awarded plaintiff
$313.51. BOP will not recommend appeal.

U.S.A. y. James Kay Coger, Criminal No. 92-30009-01
(USDC, WO/AR) - Inmate petitioned sentencing court for

habeas relief under 28 U.S.C. 52241 or 52255. In the
alternative, petitioner sought a 72 hour medical
furlough to visit his personal physician for an
examination. Court gave the govarnment 10 days to
respond. Inmate had suffered a myocardial infarction
and underwent surgery for a coronary bypass less than
ona month after coming into BOP custody at FCI
Texarkana. Less than seven days after inmate returned
to FeI Texarkana, inmate Buffered a ruptured appendix
and was returned to a local hospital where his appendix
was removed and 14 inches of colon. A litigation
report has been supplied to the AUSA arquing that the
sentencing court has no authority to order & medical
furlough absent some evidence of a constitutional
violation.

v, United States, 93-2332-GBRE
(W.D. TN) - This inmate, seventy-one year old James
Perry Williams filed this FTCA case allsginq negligence
on the part of the medical staff at FCI Memphis. The
specific incident inmate Perry complains ot stems from
an incident when he was beinq transported to the Health
Services Unit from the Recreation Yard in a golf cart
James Williams

type ambulance, be1n; driven by a Physician'.
Assistant. The PA failed to strap inmate Perry down,
and when he (the PAl turned the corner the cart hit a
flower bed and inmate Perry was thrown from the cart.
Parry does not appear to have any permanent injuries;
however, compensation for pain and Buffering may be
appropriate. Perry is represented by counsel.
ADVERBS JUDGMENTS:

Henthorn y. Hester, 92-2630 (W.O. TN.) - Donald
Henthorn filed this Biyens action alleging he was
homosexually fondled by FPC Millington correctional
Officer Michael Hester. A Motion for Summary
Judqment/Motion to Dismiss was danied ~y Judqe Julia
Gibbons. She aqreed that the defendant may have been

2147679724'"

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to

./.

~

2023072995;# 4

acting in accordance with normal and permissible
proceaures and that such procedures may include
touching of genitalia while conductinq a search.
However, Judge Gibbons stated in her or4er dated
4-26-93, that she would reconsider the motion for
summary judqment if the dQfendant submitted an
affidavit explaining what procedures be used while
patting down plaintiff durinq the searches) complained
ot. On 5-18-93, the AUSA Harriet Halmon submitted a
Renewed Motion to Dismiss, or in the Alternative,
Motion for Summary Judgment. Attached to the Motion
was supporting documentation trom the followinq FLETC
statt: Attorney Advisor, J. Stuart Bauch and
Correctional Programs specialist, George Damrilli and
Terry Graham, Correctional Program specialist. It is
anticipated that this case will De dismissed in light
of Judge Gibbons 4-26-93 order.
Burkhart v, Woodall. Hibbitt&, i Hahn, 91-3026-4A
(W.O. TX) - Inmate filed this Biyens action against
staff at FPC Millington. He alleged that he suffers
from permanent damage to hi. ankla because staff failaQ
to properly assign him to & work detail where he could
elovate his ankle. (Personal service was effected on
Paul Woodall, correctional Officer, Tom Hibbitts,
Correctional Officer, and John Hahn, Superintendent.
However, the Assistant United states Attorney was not
sarved with a copy of the complaint and a responsiva
pleading was not filed with the court. The decision to
not file an answer was basad on a memorandum issued by
Chief Judge Robart McRae, dated April 10, 1985,
re9ar~inq service or proces~.
Essentially, Judge McRae
stated it the United States Attorney's Office must be
served. On 4-22-92, a default judgment was entered
against tho 8Dove-named BOP·statt members. On 05-5-92,
the United states filed a motion to set aside the entry
of default. On 5-6-93, the court denied the motion.
On 5-20-93, a Motion for Reconsideration of Order
Denying Motion to set Aside Entry ot Default and
Entering Default Judqment was tiled with th~ court. A·
rulinq has not been made to date. However, the AUSA
Harriat Halmcn has since made contact with DOJ
Appellate Division and a decision has been made that a
responsive pleading will be tiled anytime an employee
is served properly pursuant to Rule 4(d) (1). No
deoilioD hal b8.~ mad. ~y the court.
SIGRlrICAXT CASBSa

A response to inmate Tony Bruce's tort claim is
currently being dratted. Inmate Bruce was injured when
a probationary staff member failed to adequately secure
a vegetable prep area at FeI Memphis, And an inmate who

2'47679724~

2023072995;# 5

was issued a .Ifrench knife" to cut vegetables, ran from
the kitchen into the Dining Room swinging the knife at
inmate Bruce. Investigation revealed the two inmates
had been involved in a confrontation the previous
evening, but neither inmate reported the confrontation
to staff. CUrrently, comparative negligence is bein;
evaluated. Bruce is currently incarcerated at FCl
Phoenix, and is represented by counsel. His requested
damages are $10,000.00. He does not appear to have any
permanent damages from the four cuts, two of which
required sutures, which Bruce alleges he had to remove
himself while locked in tho Special Housinq Unit at
Memphis.
Qpcominq Trials:
Blaek Culture Workshop y. United states, A-89-CA-602

(W.O. TX.) - On June 28, 1993, the jury selection and
trial will begin. Initially, this case was dismissed
by the U.S. District Court, western Diatrict of Texas
on June 29, 1990. The inmates appealed, and on
September 26, 1991, tho Fifth Circuit Court'of Appeals
remanded the case to the District Court. The Fifth
Circuit artirmed the District Court's dismissal ot the
individual (Biyens) defendants, but remanded the case
for further consideration on: 1) the legal basis, if
any, for injunctive relief aqainst the United states;
2) the exhaustion of remedies by appellants, 3) the
proper party or parties defendant; and, 4) if
necessary, the merits of the suit. In addition,
plaintiff Larry Varner was transfer from FeI Bastrop,
and the Fifth Circuit statQQ the District Court should
consider whether Varner transferred for retaliatory
reaCons. Trial haa been lobe4ule4 for sept~.~ 20,
1993.

Goggin y. u.s., 91-2735(W.D. TN) - An FTCA action
involving an inmate at Memphis who has alleged he did
not receive proper medical treatment for an ankle
injury. Goggin alleqes he injured his ankle on the
recreation yard, and one week later he was admitted to
a community hospital sUffering from fever, pain, and
infection which resulted in the skin split~lnq. Thi.
cas. has ~.eD r ••• t for Auqust 25, 11.3.
Armour V. Mim. 91-2502-GB (W.O. TN.) - Donald Armour
filed a Biyens action alleging staff at Fel Memphis

arbitrarily and capriciously and with deliberate
indifference when he was denied a Kosher diet for 21
days. Mr. Neal Adler, Associate Warden at Fer Memphis
is expected to be an expert witness on the Jewish
Kosher diet program. Mr. Adler is Jewish. Mr. Armour

~cNI

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2:39PM

2'47679724~

2023072995;# 6

5

simply did not follow the proper procedures to be
placQd on the Xoehar Diet Program. When he submitted
the proper authorization, he was allowed to participate
in the program. On April 27, 1993, Judge Gibbons
danied the government's Motion for Summary Judqment and
qualified immunity tor Chaplain Ray Mime. She based
her decision on the tact that a genuine issue of
material fact remains regarding whether Memphis'
Reliqious Diet supplement which mandates certain
procedural requirements before an inmate may be served
a kosher diet is reasonably related to a penological
objective. The Assistant U.S. Attorney has filed a
Motion tor Reconsideration in which the institution
supplement will be directly related to a penological
objective. A trial date has been set tor 8-23-93.
Bani! v. Quinlan - 91-2726-GBRE (W.O. TN.) - Talib
Hanif tiled a Biyens action alleging staft at FeI
Memphis denied him the right to partioipate in a Kosher
diet proqram. Initially, Mr. Manif was denied the
opportunity to participate in the kosher diet program
because he did not fail within the quidelinee of Bureau
of Prisons policy. However, he was subsequently
allowed to participate. The trial set for February 17,
1993, has been reset tor september 10, 1993. FeI
Memphis is scheduled to begin a common fare program on
July 12, 1993. It ia anticipated that this c&e. will
be moot at that time.
eTHER IBFORMATleN.
paniel Sims V, J, J, Clark, 90-2036-TU/B, (W.D. TN.) Inmate filed this Biyens style action alleging he
received an incident report and was found quilty of
possession of narcotics as a result of a conspiracy
designed to victimize him. Trial has been set tor July
27, 1993 • . The courted granted the qovernment'8 Kotioa
tor Summary Judqment on Kay 27, 1113, aD4 the oa •• va.
diami88e4.
a~, S8-2891-GB (W.O. TN) - This
action was filad in 1988, and was monitored by the
SERO. This Biyens styled cae. was filed on
11-1888, DY inmate Henry Lavado, Jr. Lavado alleged that
multiple staff members at FeI Memphis had opened his
"special Mail" frem his attorney on ten different
occasions over a period of several months. He
requested $35,000.00 compensatory damages, and
$70,000.00 punitive damaqes.
on 11-15-89, the U.S.
District court, Western District of Tennessee, Western
Division, granted summary Judqment on 11-15-89.
However, on 4-22-93, the Sixth circuit attirmea the
district court's judgment in part and reversed the

Lavado y. Keohane, et.

"

"" ~ I~

I

..

I.J I •

\

L 1 4 '/ b '/ ~ n 4 ~

2023072995;# 7

judgment in part. The sixth circuit remanded the case
with instructions to the District Court to determine
if, on two (2) separate occasions, Al Langa, who was
the Paralegal, opened and read irunate Lavado's "special
mail" and wh"ther the acts were arbitrary or
capricious. A s t a tus ccnteranca bas baen .et tor 1130
p.m. on we~na.day June 30, li93. The conterenoe vill
be conducted via t a l ephone.

SENT BY:
·

~
.

OPa

.UWECTt

TO,

202 307 0626:# 2

BUREAtJOF PRISONS - SOUTH CENTRAL REGI0NuNITED STATES GOVERNMENT

August 5, 1993
TO

2147679724~

: 8- 6-93 :10:26AM :

Mk~

memorandum
,

Mich~~ D. Hood, Reqional Counsel
Monthly Report - July 1, 1993 - July 31, 1993
Wallace H. cheney, Assistant Director/General counsel

Central Office

ADHINISTRATIVI BIKEDIIS
Received
Answered

JAB

rEB

90

IWt
103

APR

104

90

97

112

88

JAB

riB

)Wl

228

243
90
50

283

APIt
271
72

243
0

283

271

1

0

JAN

rBB

MAR

9'

72

JUL
84

71

62

KAY

JtrJI

JVL

292

30~

S3

67
98

278
69
94

278

253

0

0

JVlf

JOL

81
87

KA1C
52
35

JUII

TORT CLAIMS
Number Pending

Number 'Received
Number Answered
Number Pending

Number Over Six Men

70

5S

63
75

51 , 36
292 "309
·0
0

rOI/PRIVACY

Number
Nwnber
Num})er
Number

Pending
Received
Answered.
Pending

LITIGATIOIJ
New Cases Recd
Cases Closed

Habeas Corpus
Bivens
FTCA
Other
Lit Reports
Cases With Hearinqs
or Tria18
Cases With Settlements
or Awards
Tort Claim Settlement

15

16

APR
61

HAY
63

24

39

68

61

69

23

4S

82

61

59
63

Sl

16

17
38

81

86

86
15
81
80

JAH

:rEB

IWl

JOJI

.TOL

12

AJa

MAY

10

8

16
11

13
10

1

7
12
3

16
3
7
7

14

11
6

22
21

31

1

23
9

2

0

0
9

1

1

2
2

0

0

14

18

18

14

12

2

3

4

4

3

1

1

2

2

1

0

1

1

0
1

6
:3
1
0
9

5

38

13
0

6

4

OPTIONAL. POIltM NO.'O
(REV. ' ..0)
CS.A Jl'PMR (e, CPIlt) 10,.\ 1.1
BOU~".

SENT BY:

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2'47679724~

202 307 0828;# 3

2

PRIOR ADVERSE INFORMATION - STILL PENDING:
Henthorn V. Hester, 92-2630 (W.D. TN.) - Donald
Henthorn filed this Biyens action alleqing he was
homosexually fondled by FPC Millington correctional
Officer Michael Hester. A Motion for Summary
Judgment/Motion to Dismiss was denied by Judge Julia
Gibbons. Sha agreed that the defendant may have been
acting in accordance with normal and permissible
procedures and that such procedures may include
touchinq of genitalia while conducting a searoh.
However, Judge Gibbons stated in her order dated
4-26-93, that she would reconsider the motion for
summary judqment if the defendant submitted an
affidavit explaining what procedures he used while
patting down plaintiff during the search(s) complained
of. On 5-18-93, the AUSA Harriet Halmon submitted a
Renewed Motion to Dismiss, or 1n the Alternative,
Motion for Summary Judqment. Attached to the Motion
was Bupporting documentation from the followin; FLETC
staff: Attorney Advisor, J. stuart Bauch and
correctional Programs Specialist, Caorge Damrill; and
Terry Graham, Correctional Program Specialist. It is
anticipated that this case will De dismissed in light
of Judge GiDDons 4-26-93 order.
Burkhart V. Woodall. Hibbitts. , Hahn, gl-3026-4A
(W.O. TX) - Inmate filed this Biyens action against
staff at FPC Millinqton. He alleqed that he Buffers
from permanent damage to his ankle beoause staff
failed to properly ass!qn him to B work detail where
he could elevate his ankle. Personal service was
affected on Paul woodall, Correctional Officer, Tom
Hibbitts, Correctional Officer, and John Hahn,
superintendent. However, the Assistant united States
Attorney was not served with a copy of the complaint
and a responsive pleading was not f11e4 with the
court. The decision to not file an answer was based
on a memorandum issued by Chief Judge Robert McRae,
dated April 10, 1985, regarding service of p~oce8 ••
Essentially, Judge McRae stated if the united states
Attorney's Office must be served. On 4-22-92, a
default jUdqment was entered against the above-named
BOP staff member.. On 05-5-92, the United states
filed a motion to set aside the entry of default. On
5-6-93, the court denied the motion. On 5-20-93, a
Motion for Reconsideration of Order Denying Motion to
Set Aside Entry of Default and Entering Default
Judqment was filed with the court. A rulinq has not
bean made to date. However, the AU8A Harriet Halmon
has since ma4e contact with DOJ Appellate Division and

·
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2147679724"

202 307 0626;# 4

3

a decision has been made that a responsive pleading
will be filed anytime an employee 18 served properly
pursuant to Rule 4(d)(1). 50 decision haa ~••D maGe
by the court.
significant Cases.
Jame. Williams v, united state., 93-2332-GBRE
(w.O. TN) - This inmate, seventy-one year old Jame8

Perry Williams filea this FTeA ca •• alleging
neq11qence on the part of the medical staff at FeI
Memphis. The specific incident inmate Perry complains
of stem. from an !noident when he was beinq
transported to the Health Services Unit from the
Recreation Yard in a golf cart type ambulance, being
driven by a Physician's Assistant. The PA failed to
strap inmate Perry down, and when he (the PA) turned
the corner the cart hit a tlower bed and inmate Perry
was thrown from the cart. Perry aoes not appear to
have any permanent injuries; however, compensation for
pain and Buffering may be appropriate. Perry 1.
represented by counsel.The Assistant u.s. Attorney 1s
preparinq to propose a settlement of $7,500.00
Rochelle MoGuire

v,

Charles Turnbo, at a1., Case
Number 4:91-CV-831-Y, USDC, ND/TX (Fort worth
Division). This is a Biyens action by the

representative of a deceased inmate. The complaint
stems from the inmate's death after a visit. The
inmate swallowed a larqe amount of cocaine in bags,
and the baqs burst while she was in a dry cell. She
alleqes that the Bureau of Prisons knew that she had
ingestea the cocaine ana should have taken her
immediately to the hospital. She also alleges that
the Bureau of Prison. should have prevented the
transfer of drugs in the visiting room because the
Bureau knew that the inmate might try to smuqqle drugs
into the institution.
On June 23, 1993, the plaintiff filed his complaint

tor the third time with the court. The first
complaint, filed in 1989, was dismissed for failure to
exhaust administrative remedies and for failure to'
t1maly serva the defendants. Tha complaint was
refiled in 1991 after plaintiff's FTCA administrative
claim was denied by the Bureau ot Prisons. The
complaint was dismissed for a second time for failure
to timely serve the defendants.
On June 8, 1993, the court granted plaintiff's motion
for relief from its earlier order dismissinq the case

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2147679724~

202 307 0828;# 5

4

without prejudice. The court ordered plaintiff to
fila proof of service by June 24, 1993, and stated
that defendants may still attack the method of
service.

Currently, the plaintiff has still failed to
adequately serve the defendants. The plaintiff's
motion for an enlargement of time to file summonses is
pending before the court.
Setfe y, USA, SA-93-CA-0396, WD/TX,

Plaintiff, a

former physician-administrator and director of the

Generic Drug branch of the FDA, was convicted of
perjury. He came into Bureau Custody in 1993 at 6'
years of age and in poor physical condition. One
month later, his lower extremities became seriously
infected and was transported to a local hospital,
where his lett leq was amputated below-the-knee. His
middle toe on his right foot was amputated thr •• w••ks
later.

He Drought an FTCA claim seeking $2.5 million dollar ••
The administrative claim was denied ana plaintiff
filed suit in federal court. He claims that the BOP
did not designate him to an adequate facility. He
also claims that he was not adequately treated when
his condition worsened. Plaintiff is represented by
counsel. The AUSA handling the case specializes in
medical malpractice law. seRO has submitted a lengthy
litigation report, and an answer is pending. ~here
does not appear to be any avenue for a dispositive
motion. The case is likely to qo to trial on the
merits.
The case has been reviewed by an MD/JD from the Navy
who concluded that there was no causal link between
the BOP's alleged negligence 1n designation and
Dr. Seife's infection. Moreover, it appears that
Dr. Selta was comparatively negligent in failing to
notify staff of his deteriorating condition
immediately prior to his transfer to the local
hospital. Additionally, it appears that the cause of
the illness is unknown.
Gibson

v'

U.S.A, 4:92-CV-0679-A, ND/TX.

Plaintiff, an

alleged parapleqic, claimed that FeI Fort Worth was in
violation of the Architectural Barriers Act and
various sections of the Constitution. Plaintiff
complained that conditions at FCI Fort Worth were
unsanitary and that inmates with wheelchaira could not
access showers, closets, hallways and rooms. Hia

SENT BY:

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2147679724'"

202 307 0828;# 6

5

original complaint sought relief under the FTCA, and
also appeared to seek relief under the Architectural
Barriers Act. The court ultimately construed the
complaint as seekinq money damaqes only under the
FTCA, and dismissed it for failure to exhaust
administrative remedies.
Lgbodaro y. Reeyes cQunty, P-93-CA-015, WD/TX.
Plaintiff brought a Biyens suit alleqing he was
transferred to FMC Rochester for a mental health
evaluation and treatment without notice or a hearing.
Answer is due Auqust 6. SCRO obtained affidavit. from
staff at FMC Rochester showinq that plaintiff received
a mental health evaluation, but not treatment, at FMC
Rochester. The seRO litiiation report referred to'
P,s. v, Jones, 811 F.2d 444 (8th eire 1987), which
holds that inmates have no statutory or constitutional
right to notice or a pretransfer hearinq prior to a
transfer tor mental health evaluation.
Significant Tort Claims
A settlement of $2,000.00 was accepted by inmate
Bruce's attorney, Elizabeth Unqer carlyle. Ms.
Carlyle has since provided the BOP with a latter, in
which she states inmate Bruce is willinq to accept the
settlement. Inmate Bruce was injured when a
probationary staff member failed to adequately 8ecure
a vegetable prep area at FeI Memphis, and an inmate
who was issued a "french knife" to cut vegetable., ran
from the kitchen into the Dininq Room Bwinqing th~
knife at inmate Bruce. Investigation revealed the two
inmates had been involved in a confrontation the
previous evening, but neither inmate reported the
confrontation to staff. currently, comparative
negligence is being evaluated. Bruce is currently
incarcerated" at FCI Phoenix, and ie repre8ent.a by
counsel. His requested damages are $10,000.00. He
does not appear to have any permanent damages from the
tour cuts, two of which required sutures, which Bruoe
alleges he had to remove himself while locked in the
Special Housinq Unit at Memphis.
Upcoming Trials;

Black culture Workshop V, united stites,
A-89-CA-602 (W.O. TX.) - Initially, this case was
dismissed by the u.s. District Court, Western ~18trict
ot Texas on June 29, 1990. The inmates appealed, and
on September 26, 1991, the Fifth Circuit Court of

SENT BY:

2 ' 47679724~

202 307 0828 ;# 7

6

Appeals remanded the case to the District Court. The
Fifth Circuit affirmed the District Court's dismissal
of the individual (Biyens) defendants, but remanded
the case for further consideration on: 1) the legal
basis, if any, for injunctive relief against the
United states; 2) the exhaustion of remedies by
appellants; 3) the proper party or parties defendant;
and, 4) if necessary, the merits of the suit. In
addition, plaintiff Larry Varner was transfer from FCI
Bastrop, and the Fifth Circuit stated the District
Court should consider whether Varner transferred for
retaliatory reasons. Trial haa been aoheduled for
september 20, 1993.

Goggin v, u.s., 91-2735(W.D. TN) - An FTCA action
involving an inmate at Memphis who has alleged he did
not receive proper medical treatment for an ankle
injury. Goggin alleges he injured his ankle on the
recreation yard, and one week later he was admitted to
a community hospital suffering from fever, pain, and
infection which resulted in the skin splitting. Thia
case has been reset fer Ootober 20, 1993.
Armour Y. Mime - 91-2502-GB (W.O. TN.) - Donald
Armour filed a Bivens action alleging ataff at FCI
Memphis arbitrarily and capriciously and with
deliberate indifference when he was denied a Kosher
diet for 21 days. Mr. Neal Adler, Associate Warden at
FCI Memphie is expected to be an expert witness on the
Jewish Kosher diet program. Mr. Adler is Jewish.
Mr. Armour simply did not follow the proper procedures
to be placed on the Kosher Diet Program. When he
submitted the proper authorization, he was allowed to
participate in the program. On April 27, 1993, Judge
Gibbons denied the government's Motion for Summary
Judgment and qualified immunity for Chaplain Ray Mi~s.
she based her decision on the fact that a genuine
issue of material fact remains regarding whether
Memphis' Religious Diet supplement which mandates
certain procedural requirements before an inmate may
be served a kosher diet is reasonably related to a
penological objective. The Assistant U.S. Attorney
has filed a Motion for Reconsideration in which the
institution supplement will be directly related to a
penological objective. A trial date hae been eet for
8-23-93 . It is antioipated that thie trial will be
reset.
Hanif y. Quinlan - 91-2726-GBRE (W.O. TN.) - Talib
Hanif filed a Biyens action alleging staff at FCI
Memphis denieQ him the right to participate in a

8- 6-93 ;10:29AM

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202 307 0828;# 8

7

kosher diet program. Initially, Mr. Hanif was denied
the opportunity to participate in the kosher diet
program because he did net fail within the guidelines
ot Bureau of Prisons policy. However, he was
subsequently allowed to participate. The trial Bet
for February 17, 1993, has been reset for September
10, 1993. FeI Memphis is scheduled to begin a common
fare program on July 12, 1993. It is anticipated that
this case will be moot at that time.
OTHER INFORMATION:

Layado y. Keohane, at. a1., 8S-2S91-GB (W.D. TN) This actien was filed in 1988, and was monitored by
the SERO. This Biyens styled case was filed on
11-18-88, by inmate Henry Lavado, Jr. Lavado alleged
that multiple staff members at FeI Memphis had opened
his "Special Mail t ' from his attorney on tan different
occasions ever a period of several months. He
requested $35,000.00 compensatory damages, and
$70,000.00 punitive damages. on 11-15-89, the U.S.
District Court, western District or Tennessee, Western
Division, qranted Summary Judqmant on 11-15-89.
However, on 4-22-93, the Sixth Circuit affirmed the
district court's judgment in part and reversed the
judgment in part. The Sixth Circuit remanded the case
with instructions to the District
urt 0
termina
it, on two (2) eeparata occasions, Al Langa,
0 was
the Paralegal, opened and read 1 a
Lavedo'
"special mail" and whether the ac
ar itrary or
capricious. Th. AaaiataDt u.s. Atto~D.Y haa acha4ule4
to a.po •• ~ava40 in her otfice OD Auquat 25, 1113.
TRAVEL

Mike Hood Assisting Central Office staff with Adminiatrative Remedy
Training - FCl Bastrop - August 25-26
Sentencing Institute - Raleigh-Durham, He - September 7-10
Linda Mutt Assisting Central Office statf with Administrative Remedy
Training - FCI Memphis - August 23-24

"

/

BUREAU OF PRISONS -

DATE:

REPLY TO
ATTN OF:

SUBJECT:

TO:

September 24,

SOUTH CENTRAL REGI0ItJNITED STATES GOVERNMENT

memorandum

19~

(/
l,.,~\
r0 ~~;:~.'
~,>-d ~

/,:

tf/

Mic ael D. Hood, Regional Counsel
Monthly Report - August 1, 1993 - August 31, 1993
Wallace H. Cheney, Assistant Director/General Counsel
Central Office

ADMINISTRATIVE REMEDIES
JAN
Received
104
Answered
90

APR
96
88

MAY

52
35

JUN
72
71

JUL
84
62

AUG
113
107

APR
271
72
51
292
0

MAY
292
53
36
309
0

JUN
309
67
98
278
0

JUL
278
69
94
253
0

AUG
253
80
56
277
0

APR
61
61
59
63

MAY
63
69
51
81

JUN
81
87
82
86

JUL
86
75
81
80

AUG
80
58
31
107

APR
22
21
8
13
0
1
18

MAY
31

JUN
16
3
7
7

JUL
14
13
10
4

AUG
20
7

9

23
9
7
12
3
1
14

3

4

2
0

1
0

FEB
90
97

lout

FEB
243
90
50
283
1

MAR

JAN
15
24
23
16

FEB
16
39
17
38

MAR

JAN
New Cases Recd
10
Cases Closed
1
Habeas Corpus
6
Bivens
3
FTCA
1
Other
0
Lit Reports
9
Cases with Hearings
or Trials
2
Cases with Settlements
or Awards
2
Tort Claim Settlement 0

FEB
12
11
6

MAR

103
112

TORT CLAIMS

Number
Number
Number
Number
Number

JAN
Pending
228
Received
70
Answered
55
Pending
243
Over Six Mon
0

283
63
75
271
0

FOI/PRIVACY

Number
Number
Number
Number

Pending
Received
Answered
Pending

38
68
45
61

LITIGATION

5

1
0

6

16
11

9

2

0

0

18

0
14

12

9
2
0
16

4

3

1

1

1

0
0

1
0

1
0

0

1

1
0

2
2

OPTIONAL FORM NO.1 0
(REV. 1-80)
GSA FPMR (41 CFR) 101-11.6
5010-"4
.. U.S. G?:;: 1992-312-071/50046

2

James Williams v. united states, 93-2332~GBRE
(W.D. TN) - This inmate, seventy-one year old James
Perry Williams filed this FTCA case alleging
negligence on the part of the medical staff at FC!
Memphis. The specific incident inmate Perry complains
of stems from an incident when he was being
transported to the Health Services unit from the
Recreation Yard in a golf cart type ambulance, being
driven by a Physician's Assistant. The PA failed to
strap inmate Perry down, and when he (the PA) turned
the corner the cart hit a flower bed and inmate Perry
was thrown from the cart. Perry does not appear to
have any permanent injuries; however, compensation for
pain and suffering may be appropriate. Perry is
represented by counsel.The Assistant u.s. Attorney is
preparing to propose a settlement of $7,500.00.
Plaintiff agreed to a settlement of $5,000.00. A'
stipulation for Comprise Settlement has been forwarded
to plaintiff's attorney.
ADVERSE JUDGMENTS:
Burkhart v. Woodall. Hibbitts. & Hahn, 91-3026-4A
(W.D. TX) - Inmate filed this Bivens action against
staff at FPC Millington. He alleged that he suffers
from permanent damage to his ankle because staff
failed to properly assign him to a work detail where
he could elevate his ankle. Personal service was
effected on Paul Woodall, Correctional Officer, Tom
Hibbitts, Correctional Officer, and John Hahn,
superintendent. However, the Assistant united states
Attorney was not served with a copy of the complaint
and a responsive pleading was not filed with the
court. The decision to not file an answer was based
on a memorandum issued by Chief Judge Robert McRae,
dated April 10, 1985, regarding service of process.
Essentially, Judge McRae stated if the united states
Attorney's Office must be served. On 4-22-92, a
default judgment was entered against the above-named
BOP staff members. On 05-5-92, the united states
filed a motion to set aside the entry of default. On
5-6-93, the court denied the motion. On 5-20-93, a
Motion for Reconsideration of Order Denying Motion to
set Aside Entry of Default and Entering Default
.
Judgment was filed with the court. The motion was
denied by Judge McRae. AUSA Halmon has contacted DOJ
Appellate Division regarding an interlocutory appeal.
PRXOR ADVERSE XNFORMATION - STILL PENDING:
Henthorn v. Hester, 92-2630 (W.D. TN.) - Donald
Henthorn filed this Bivens action alleging he was

3

homosexually fondled by FPC Millington Correctional
Officer Michael Hester. A Motion for Summary
Judgment/Motion to Dismiss was denied by Judge Julia
Gibbons. She agreed that the defendant may have been
acting in accordance with normal and permissible
procedures and that such procedures may include
touching of genitalia while conducting a search.
However, Judge Gibbons stated in her order dated
4-26-93, that she would reconsider the motion for
summary judgment if the defendant submitted an
affidavit explaining what procedures he used while
patting down plaintiff during the searches) complained
of. On 5-18-93, the AUSA Harriet Halmon submitted a
Renewed Motion to Dismiss, or in the Alternative,
Motion for Summary Judgment. Attached to the Motion
was supporting documentation from the following FLETC
staff: Attorney Advisor, J. stuart Bauch and
Correctional Programs Specialist, George Damrill; and
Terry Graham, Correctional Program Specialist. It is
anticipated that this case will be dismissed in light
of Judge Gibbons 4-26-93 order.
SIGNIFICANT CASES:
Black CUlture Workshop v. united states, A-89-CA-602
(W.D. TX.) - Initially, this case was dismissed by
the u.s. District Court, western District of Texas on
June 29, 1990. The inmates appealed, and on
September 26, 1991, the Fifth Circuit Court of Appeals
remanded the case to the District Court. The Fifth
Circuit affirmed the District Court's dismissal of the
individual (Bivens) defendants, but remanded the case
for further consideration on: 1) the legal basis, if
any, for injunctive relief against the united states;
2) the exhaustion of remedies by appellants; 3) the
proper party or parties defendant; and, 4) if
necessary, the merits of the suit. In addition,
plaintiff Larry Varner was transfer from FeI Bastrop,
and the Fifth Circuit stated the District Court should
consider whether Varner transferred for retaliatory
reasons. On August 31, 1993, AUSA Atkinson notified
Hartin sweaney that summary judgment had been granted
in favor of the united states and the individually
named defendants.
Rochelle McGuire v. Charles Turnbo, et al.,
4:91-CV-831-Y, USDe, ND/TX (Fort Worth Division) - The
Court ordered that plaintiff be granted an extension
to serve defendants and file proof of service with

4

court as required by the local rules. As discussed
last month, this case has been dismissed twice because
plaintiff failed to properly serve the
defendants.
Significant Tort Claims
A tort claim for personal ~nJury has been filed by the
American civil Liberties Union, Los Angles Branch, on
behalf of Dr. Humberto Alvarez-Machain. Dr. AlvarezMachain alleges Drug Enforcement Administration Agents
kidnapped him from Mexico, and beat and tortured him.
He further states he was incarcerated by the Bureau of
Prisons at the Federal Correctional Institution, La
Tuna from April 6, 1990 until April 10, 1990.
The allegation relating to the Bureau of Prisons
relates to inadequate medical care at FCI La
Tuna, as well as MDC Los Angles. Dr. AlvarezMachain contends that the medical staff at FCI La
Tuna did not speak Spanish, and he was unable to
communicate his medical condition to them.
On April 10, 1990, he was transferred to the
Metropolitan Detention Center, Los Angles, where he
remained until he was released to the custody of the
Immigration and Naturalization service on December 14,
1992.
Dr. Alvarez-Machain does not mention the reason he was
brought to the united states.
However, the DEA
reportedly had evidence that Dr. Alvarez-Machain was a
key player in the death of DEA Agent Nicky Camarino,
whom we now honor during the drug-free workplace week
each October.
upcoming Trials:
Goggin v. u.s., 91-2735(W.D. TN) - An FTCA action
involving an inmate at Memphis who has alleged he did
not receive proper medical treatment for an ankle
injury. Goggin alleges he injured his ankle on the
recreation yard, and one week later he was admitted to
a community hospital suffering from fever, pain, and
infection which resulted in the skin splitting. This
case has been reset for October 20, 1993.
Armour v. Mims - 91-2502-GB (W.O. TN.) - Donald
Armour filed a Bivens action alleging staff at FC!

.'

5

Memphis arbitrarily and capriciously and with
deliberate indifference when he was denied a Kosher
diet for 21 days. Mr. Neal Adler, Associate Warden at
F.cI_ .. ~~mphis is expected to be an expert witness on the
Jewish"" Kosher diet program. Mr. Adler is Jewish.
.
Mr. Armour simply did not follow the proper procedures
to be placed on the Kosher Diet Program. When he
submitted the proper authorization, he was allowed to
participate in the program. On April 27, 1993, Judge
Gibbons denied the government's Motion for summary
Judgment and qualified immunity for Chaplain Ray Mims.
She based her decision on the fact that a genuine
issue of material fact remains regarding whether
Memphis' Religious Diet supplement which mandates
certain procedural requirements before an inmate may
be served a kosher diet is reasonably related to a
penological objective. The Assistant u.s. Attorney
has filed a Motion for Reconsideration in which the
institution supplement will be directly related to a
penological objective. A trial date has been set for
8-23-93. It is anticipated that this trial will be
reset.
Hanif v. Ouinlan - 91-2726-GBRE (W.O. TN.) - Talib
Hanif filed a Bivens action alleging staff at FeI
Memphis denied him the right to participate in a
kosher diet program. Initially, Mr. Hanif was denied
the opportunity to participate in the kosher diet
program because he did not fail within the guidelines
of Bureau of Prisons policy. However, he was
subsequently allowed to participate. The trial set
for February 17, 1993, has been reset for
September 10, 1993. FeI Memphis is scheduled to begin
a common fare program "o"n July 12, 1993. A pretrial
conference has been set for september 13, 1993, at
1:30 p.m.
It is anticipated that the court will
consider whether or not Hanif's First Amendment right
was violated during the period of time FeI Memphis
staff denied him the right to partake in the kosber
diet.
OTHER INFORMATION:
Lavado v. Keohane. et. a1., 88-2891-GB (W.O. TN) This action was filed in 1988, and was monitored by
the SERO. This Bivens styled case was filed on
11-18-88, by inmate Henry Lavado, Jr. Lavado alleged
that multiple staff members at Fe! Memphis had opened
his "Special Mail n from his attorney on ten different
occasions over a period of several months. He
requested $35,000.00 compensatory damages, and
$70,000.00 punitive damages. on 11-15-89, the U.S.

6

District Court, Western District of Tennessee, Western
Division, granted Summary Judgment on 11-15-89.
However, on 4-22-93, the Sixth Circuit affirmed the
district court's judgment in part and reversed the
judgment in part. The sixth Circuit remanded the case
with instructions to the District Court to determine
if, on two (2) separate occasions, Al Langa, who was
the Paralegal, opened and read inmate Lavado's
"special mail" and whether the acts were arbitrary or
capricious. The scheduled deposition of Lavado was
postponed due to his request for an enlargement of
time and a Motion for a Protective Order. Lavado
contends that he does not have adequate funds to
communicate between Florida (residence) and Memphis.
AUSA Halmon filed a response to the motions, and the
matter is still pending.

t

BUREAU OF PRISONS - SOUTH CENTRAL REGI~ITED STATES GOVERNMENT

memorandum

October 12, 1 ( \

tJi1 ("'\ ~~

DATE:

Mic~l

REPLY TO
. ATTN OF:

SUBJECT:

D.

ood, Regional Counsel

Monthly Report - September 1, 1993 - September 30, 1993

TO:

Wallace H. Cheney, Assistant Director/General Counsel
Central Office

'JO:t:·
ADMINISTRAT:IVE REMED:IES
JAN

FEB

MAR

APR

MAY

JUN

JUL

AUG

SEP

104
90

90
97

103
112

96
88

52
35

72
71

84
62

113
107

94
66

JAN

FEB

MAR

APR

MAY

JUN

JUL

AUG

Pending
228
Received
70
Answered
55
Pending
243
Over Six Mon
0

243
90
50
283
1

283
63
75
271
0

271
72
51
292
0

292
53
36
309
0

309
67
98
278
0

278
69
94
253
0

253
80
56
277
0

SEP
277
74
59
292
0

FEB
16
39
17
38

MAR

APR

MAY

JUN

JUL

AUG

SEP

15
24
23
16

38
68
45
61

61
61
59
63

63
69
51
81

81
87
82
86

86
75
81
80

80
58
31

107
60
33

107

94

JAN

FEB

MAR

APR

MAY

AUG

12
11
6
5
1
0

22
21
8
13
0
1
18

31
6
16
11
18

14
13
10
4
0
0
12

20
7

9

23
9
7
12
3
1
14

JON
16
3
7
7
2
0
14

JUL

New Cases Recd
10
Cases Closed
1
Habeas Corpus
6
3
Bivens
FTCA
1
0
Other
Lit Reports
9
Cases With Hearings
or Trials
2
Cases With Settlements
or Awards
2
Tort Claim
Settlements
0

0
16

SEP
17
36
4
8
3
2
10

3

4

4

3

1

1

1

2

2

1

0

1

1

0

1

0

0

0

0

0

0

1

0

0

Received
Answered

TORT CLA:IMS
Number
Number
Number
Number

FO:I/PRIVACY

JAN
Number
Number
Number
Number

Pending
Received
Answered

Pending

L:ITIGAT:ION

2
2

9
9
2

OPTIONAL FORM NO. 10
(REV. 1-80)
GSA FPMR (41 CFR) 101-11.6
5010-114
oU.S. GPO: !992-312-071/50046

2

PENDING SETTLEMENTS

James Williams v. united states, 93-2332-GBRE (W.O. TN) - This
inmate, seventy-one year old James Perry Williams filed this
FTCA case alleging negligence on the part of the medical staff
at FC! Memphis. The specific incident inmate Perry complains of
stems from an incident when he was being transported to the
Health Services unit from the Recreation Yard in a golf cart
type ambulance, being driven by a Physician's Assistant. The PA
failed to strap inmate Perry down, and when he (the PA) turned
the corner the cart hit a flower bed and inmate Perry was thrown
from the cart. Perry does not appear to have any permanent
injuries; however, compensation for pain and suffering may be
appropriate. Perry is represented by counsel. The Assistant
u.S. Attorney is preparing to propose a settlement of $7,500.00.
Plaintiff agreed to a settlement of $5,000.00. A Stipulation
for comprise Settlement has been forwarded to plaintiff's
attorney.
a.

Adverse judgments

Shugart v. Hussein. Walker. et.al., 93-005-B-1 (M.D. LA) Inmate at Carville filed this Bivens action against
Hansen's Disease Center Public Health Service Physician's
Assistant, Esam A. Hussein, Bureau of Prisons Medical
Technician Judith Walker, and an Unknown John Doe at FMC
Carville. Shugart alleged that Hussein removed him from
"medically unassigned" and forced him to perform on a work
detail, and denied him medical care. While Shugart was in
the custody of the U.S. Marshal Service, he suffered a
fall. A cat-scan performed in a community hospital in
Wisconsin indicated that Shugart was in need of surgery to
correct a herniated disc with nerve root encroacr~ent.
However, when Shurgart arrived at FCI Texarkana, the catscan result was not in his medical file. Subsequent x-rays
indicated that Shugart had a normal lumbar spine.
Dr. Stringfellow at FCI Texarkana recommended that Shugart
be designated to FMC Carville for further medical
evaluation. Shugart alleges that he was transferred to
Carville in order to receive physical therapy for the back
condition.
Shugart also suffered from a detached retina, for which he
received correctional surgery in January 1993. Shugart
claims that the retina became detached due to a fall he
sustained in December 1992. He claims that when he fell,
he was under the influence of a medication prescribed and
administered by P.A. Hussein. shugart further claims that
he requested a wheelchair in order to go to the dining hall
for diner, but Judith Walker denied the request, and when
he attempted to walk to the dining hall he hit his head.
ADVERSE OPINION OF MAGISTRATE JUDGE: Absolute Immunity was
plead for P.A. Hussein, but Magistrate Stephen C.

3

Ridlinger's has provided a Report and Recommendation that
states absolute immunity is not appropriate for a Bivens
claim. The Assistant u.s. Attorney James Thompson, Baton
Rouge Louisiana made contact with Roger Einerson, Torts
Branch, Department of Justice, regarding the opinion of
Department of Justice relating to the pleading of absolute
immunity for Public Health Service Commissioned Officers.
Mr. Einerson stated the Solicitor General had provided a
brief in the case of u.s. v. Smith, 111 S.ct. 1180 (1991),
which opposes the granting of absolute immunity for Public
Health Service staff sued in Bivens actions. Mr. Einerson
further advised Mr. Thompson and South Central Regional
staff that the Bureau of Prisons will not be supported
should an appeal reach the Solicitor General's level on
cases pleading absolute immunity for Public Health Service
Commissioned Officers sued in a Bivens action.
A telephonic conference was held on Wednesday, October 6,
1993, between Roger Einerson and Mike Hood regarding this
matter. Also, Mike forwarded a brief prepared by the
Appellate section of the civil Division to Mr. Einerson
which supported the BOP's position regarding PHS immunity.
On October 12, 1993, Mr. Einerson advised that the brief,
which was supplied by Hank Sadowski, persuaded the Torts
Branch that the BOP has an arguable position and, thus,
will allow us to present the argument
PRIOR ADVERSE INFORMATION - STILL PENDING:
Henthorn v. Hester, 92-2630 (W.D. TN.) - Donald Henthorn
filed this Bivens action alleging he was homosexually
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....
,...,

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Hester. A Motion for summary Judgment/Motion to Dismiss
was denied by Judge Julia Gibbons. She agreed that the
defendant may have been acting in accordance with normal
and permissible procedures and that such procedures may
include touching of genitalia while conducting a search.
However, Judge Gibbons stated in her order dated 4-26-93,
that she would reconsider the motion for summary judgment
if the defendant submitted an affidavit explaining what
procedures he used while patting down plaintiff during the
searches) complained of. On 5-18-93, the AUSA Harriet
Halmon submitted a Renewed Motion to Dismiss, or in the
Alternative, Motion for Summary Judgment. Attached to the
Motion was supporting documentation from the following
FLETC staff: Attorney Advisor, J. stuart Bauch and
correctional Programs specialist, George Damrill; and Terry
Graham, Correctional Program Specialist. It is anticipated
that this case will be dismissed in light of Judge Gibbons
4-26-93 order.

4

SIGNIFICANT CASES

Dearing v. UNICOR. et. al., A-93-CA-515-JN (W.D. TX)
Plaintiff Charles Dearing, filed a Bivens action that
he was discriminated on the basis of physical handicap
by staff at FCl Bastrop. transferred to from FCl
Bastrop to FCI Three Rivers.
UPCOMING TRIALS

Garrison v. Bristol, 92-5683 (6th Cir.) - On February
24, 1993, the sixth Circuit Court vacated a summary
judgment which was affirmed by the u.s. District
Court, Western District of Tennessee. The circuit
court concluded that the evidence was such that a
summary judgment was not warranted with respect to
Ernie Bristol. Mr. Bristol is the Health Service
Administrator at Fel Memphis. This Bivens type suit
was filed by inmate Dane Garrison. Mr. Garrison
alleges that he was subjected to cruel and unusual
punishment by medical staff at FCl Memphis, and that
his right to due process under the Fourteenth
Amendment was violated. These allegations result from
an injury Mr. Garrison sustained to his right leg at
FCl Memphis. Mr. Garrison's right leg was injured
when a piece of metal was thrown from a lawn mower.
The Sixth Circuit panel ruled that the evidence is
such that summary judgement was not warranted with
respect to Ernie Bristol. The panel ruled that a
genuine issue of material fact remains with respect to
whether or not ~r~ Bristol violat~d ~~rris~n/s Eight
Amendment Right when he ordered Garrison out of the
institution hospital without providing treatment.
This claim was sUbstantiated by an inmate affidavit.
The incident allegedly occurred when Garrison was
telling another inmate that he (Garrison) intended to
contact his attorney if he did not receive adequate
treatment. Allegedly, Mr. Bristol overheard the
statement and "threw" Garrison out of the institution
hospital.
Goggin v. U.S., 91-2735(W.D. TN) - An FTCA action
involving an inmate at Memphis who has alleged he did
not receive proper medical treatment for an ankle
injury. Goggin alleges he injured his ankle on the
recreation yard, and one week later he was admitted to
a community hospital euffering from fever, pain, and
infection which resulted in the skin splitting. This
case has been reset for December 1993 or January 1994.

·

.
5

Armour v. Mims - 91-2502-GB (W.D. TN.) - Donald
Armour filed a Bivens action alleging staff at FeI
Memphis arbitrarily and capriciously and with
deliberate indifference when he was denied a Kosher
diet for 21 days. Mr. Neal Adler, Associate Warden at
FCI Memphis is expected to be an expert witness on the
Jewish Kosher diet program. Mr. Adler is Jewish. Mr.
Armour simply did not follow the proper procedures to
be placed on the Kosher Diet Program. When he
submitted the proper authorization, he was allowed to
participate in the program. On April 27, 1993, Judge
Gibbons denied the government's Motion for Summary
Judgment and qualified immunity for Chaplain Ray Mims.
She based her decision on the fact that a genuine
issue of material fact remains regarding whether
Memphis' Religious Diet supplement which mandates
certain procedural requirements before an inmate may
be served a kosher diet is reasonably related to a
penological objective. The Assistant u.s. Attorney
has filed a Motion for Reconsideration in which the
institution supplement will be directly related to a
penological objective. A trial date has been set for
8-23-93. It is anticipated that this trial will be
reset.
Privette v. united states, 1:93-0090-C (N.D. TX) Inmate alleged he fell into a fence-post hole during
construction project at FCI Big spring, because
institution did not take precautions to secure
worksite. We have ample evidence that inmate was in
clearly marked unauthorized area at the time of fall.
Case is tentatively scheduled for trial within the
next 12 mos.
OTHER INFORMATION:
Hanif v. Quinlan - 91-2726-GBRE (W.O. TN.) - Talib
Hanif filed a Bivens action alleging staff at Fe!
Memphis denied him the right to participate in a
kosher diet program. Initially, Mr. Hanif was denied
the opportunity to participate in the kosher diet
program because he did not fail within the guidelines
of Bureau of Prisons policy. However, he was
subsequently allowed to participate. The trial set
for February 17, 1993, has been reset for September
10, 1993. FeI Memphis is scheduled to begin a common
fare program on July 12, 1993. This case was
dismissed by the court.
Layado v. Keohane, et. al., 88-2891-GB
This action was filed in 1988, and was
the SERO. This Bivens styled case was
11-18-88, by inmate Henry Lavado, Jr.

(W.O. TN) monitored by
filed on
Lavado alleged

·

.
6

that multiple staff members at FCI Memphis had opened
his "Special Mail" from his attorney on ten different
occasions over a period of several months. He
requested $35,000.00 compensatory damages, and
$70,000.00 punitive damages. on 11-15-89, the u.s.
District Court, Western District of Tennessee, western
Division, granted Summary Judgment on 11-15-89.
However, on 4-22-93, the sixth Circuit affirmed the
district court's judgment in part and reversed the
judgment in part. The sixth Circuit remanded the case
with instructions to the District Court to determine
if, on two (2) separate occasions, Al Lanqa, who was
the Paralegal, opened and read inmate Lavado's
"special mail" and whether the acts were arbitrary or
capricious. This case was dismissed at Lavado's
request.