u.s. Department of Justice

(

Federal Bureau of Prisons

Dublin, Califomia 94568

November 6, 2001
MEMORANDUM FOR CHRISTOPHER ERLEWINE, ASSISTANT DIRECTOR/
GENERAL COONSEL, GENERAL COUNSEL , REVIEW

~~ Lv~. Pv-, "'~

FROM:

SUBJECT:.

Harlan W. Penn,

'" .
Reg~onal

,.

Counsel

......
'.- .~
--~

Monthly Report for October 2001
J

L:ITIGAT:ION
1.

3621 (e) CASES SIGNIFICANT DEVELOPMENTS/APPEALS

Gunderson v Hood (SET) This DAP appeal raised the issue of
whether P.S. 5162.04 was properly promulgated or whether it
should have been published pursuant to the APA. The Court held
that P.S. 5162.04 was properly promulgated as an interpretive
rule as it applied in this case. The holding, however, is
limited to the facts in this case.
Lloyd v. Slade (LOS) Petition for Writ of Habeas Corpus
contesting 3621(e) ineligibility due to 922 (g) conviction denied.
Shaw v. Pontesso (PHX) Petition for Writ of Habeas Corpus
contesting 3621(e) ineligibility due to weapon enhancement
denied.
Warden v. Hood (SET) After a lengthy procedural battle, the Court
granted Asst. Federal Public Defender's motion to reinstate its
original order and granted the Petitioner one year off his
sentence. Jurisdiction was questionable in this case as the
inmate is now at TCI.
2.

NEW CASES (NON-3621 (e) )

Ames v. Pontesso (PHX) Inmate appealed the lower court's
dismissal of this case involving loss of personal property.
Lower court dismissed case on grounds of FTCA law enforcement
exception.

4206

(
'

.,

(

Shorter v. Slade (LOS) Petitioner alleges due process violations
of third PHO re-hearing held October 2, 2000, and seeks
expungement of incident report dating from 1995 riots at FCl
Terminal Island.
u.S. v. Williams (LOS) Petition for Writ of Habeas Corpus seeking
credit for prior state custody time.
QPlinger v. Barron (LaM) Inmate challenges the constitutionality
of testing under the DNA Backlog Elimination Act via first
amended complaint.
(Originally dismissed with leave to amend.)
Wisdom v. Andrews (TCl) Petition for Writ of Habeas Corpus
arguing that his PLRA sentence and BRA sentence should be
aggregated so he can get GCT. Each sentence individually is less
than a year, so he currently would not get any GeT. Combined,
the sentence would be greater than a year.
3•

SZGNIFICAN'l' DEVELOPMENTS/APPEALS

Friedman v. U.S. Bureau of Prisons (PHX) Privacy' Act'· suit.i$·
,soon for costs. of approxi~tely; $40p. ~p.

expec~ed, ...~~._l:?e set~led

Gonzales v. Pendleton (TCN) This case was dismissed as moot by
the district court on October 4, 2001. This was a habeas case in
which the inmate requested sentence credit for time spent in
state custody while awaiting to be brought into Federal custody.
The inmate was released from custody in 2000.
Gonzales v. Slade (LOS) Petitioner contested sentence
computation, arguing that he was entitled to time spent on
federal writ at MDCLA, when he was receiving credit for the same
time on his state sentence. Petition denied.
Gossai v. BOP (LaM) ~legations by inmate visitor that he was
improperly denied the right to visit his brother at FPC Lompoc.
Case dismissed without prejudice.
Perkins v. U.S. (LOS) Ninth Circuit dismissed appeal for failure
to prosecute. Petitioner alleged that because she served less
than one year, she was denied credit for good conduct time.

Three overcrowding cases (Granger v. Mitchell, Chilcote v.
Mitchell, Wainwright v. Mitchell) (SET) dismissed by the District
Court stating triple bunking of inmates does not violate their
constitutional rights. In the alternative, the court dismissed
the cases based upon qualified immunity.
Harrell v. U.S. (SET) FTCA complaint of lost property dismissed
by applying postal matter exception of the FTCA.

4207

Parsons v. Hood (SHE) Petition for Writ of Habeas Corpus
contesting allegedly inadequate medical and psychiatric care
denied.
Parker v. Herrera (LOM) FTCA case involving allegations of lost
property dismissed without prejudice.
Ramos v. U.S. (LaM) Petition for Writ of Habeas Corpus dealing
with jail credit. Court modified (reduced) the inmate's sentence
since BOP could not award certain jail credit that was promised
in a plea agreement.

U.s. v. Ziski (LOS)

Two criminal defendants awaiting sentencing
have filed liens on the homes of the sentencing judge, the two
prosecutors and MDCLA Warden. AUSA has filed Temporary
Restraining Order and Order to Show Cause to quash these liens.

Unger v. Gaines (SAF) Former inmate's complaint of delay in
providing necessary dentures dismissed for failure to prosecute.
Vander v. U.s. DOJ (SAF) Ninth Circuit affirmed the district
court's Qecision that an inmate's exclusive remedy against the
government for a work-related injury is the Inmate Accident
Compensation Act. This is true even if the inmate is challenging
the medical care provided in response to the injury. This case
has been published at 2001 WL 1181348.

('
.

CRIMINAL CASE TRACKING

Criminal Cases
JAN

FEB

MAR

APR

MAY

JON

JOL

AUG

SEP

OCT

Referred

15

17

14

25

9

10

29

34

14

29

Accepted

0

3

2

4

2

1

2

1

0

1

Declined

12

9

9

16

4

7

18

16

7

23

Pending
Decision

59

64

38

72

75

77

86

103

110

115

NOV

DEC

NEW INFORMATION ,ON ACTIVE PROSECUTIONS
ASSAOLT

U.s. v. Rodriguez-Lopez (SDC) Inmate on staff assault case.
pled guilty and sentencing is set for January 7, 2002.

4208

Inmate

('

u.s. v. Mendoza-Aguilar (TCN) Inmate on staff assault trial
postponed to January 8, 2002.
u.s. v. Ponce-Hernandez (TCN) Inmate on staff assault trial
postponed to December 18, 2001.
u.s. v. Escano (TCN) Inmate on staff assault trial postponed to
November 27, 2001.
ESCAPE

u.s. v. Quintin Lee Havier (TCN) CCC escapee scheduled for
sentencing on November 15, 2001.
u.s. v. Layne (PHX) CCC escapee sentenced to 18 months consecutive
to his current sentence followed by 3 years of supervised release.
United States v. Nelson (BRN) FPC Boron escapee pled guilty October
4, 2001. Sentencing set for December 10, 2001.

u.s.

v. Romero (TCN) CCC escapee ordered detained pending trial.

u.s.

v. Simpson (TCN) CCC escapee ordered detained pending trial.

u.s. v. Thomas (PHX) CCC escapee scheduled to be sentenced on
December 3, 2001.
CONTRABAND

u.s. v. Davis (LOS) Inmate indicted for possession of amphetamines
and marijuana.
(Contraband discovered during dry-cell procedure.)
u.s. v. Exum (TRM) Trial for inmate possessing heroin set for
November 27, 2001.
u.s. v. Martinez (LOM) Inmate visitor sentenced to a year and a day
plus 3 years supervised release for attempting to provide contraband
to prison inmate.
SEX OFFENSES

u.s.

v. McKnight (PHX) Retired Fe! Phoenix Assistant Food Service
Manager scheduled to be sentenced November 19, 2001, on two counts
of sexual abuse of ward.

4209

STATIST:ICS

(

ADMINISTRATIVE REMEDIES
JAN

FEB

MAR

APR

lGY

JON

JUL

AUG

SEP

OCT

98

67

104

65

67

67

34

116

103

70

I
JAN

FREEDOM 01' DtI'OmtATION/PRIVACY ACT:
,
,
i
SEP
AUG
lGY
JON
JUL
APR
MAR
:rEB

DEC

NOV

i

i

OCT

RECEIVED

43

35

48

32

51

42

40

49

35

30

CLOSED

37

30

53

33

49

36

49

47

32

39

PEND:ING

38

43

38

37

39

45

36

38

41

.32

30 DAYS

0

1

0

4*

6*

5*

7*

7*

4*

6*

6 MONTHS

0

0

0

0

0

0

0

0

0

0

i

NOV

DEC

I

0
4
2
2
6
5
2
0
3
0
APPEALS
.*Wa1t1ng for records from Arch1ves, not cons1dered overdue .

.

. .

NOMBER 01' FOI/PA PENDING:

II

'Tit

DUB

LOM

BON

NEL

PBX

SAl'

SDC

SET

SBE

TCI

TCN

TlQI

VIM

OTBER(

0

7

5

0

0

0

1

1

1

1

2

2

0

1

11

HOV

ADMINIS~TIVE

TORT CLAIMS

JAN

FEB

MAR

APR

!aY
1

JON

JUL

AUG

SEP

OCT

RECEIVED

40

26

43

40

45

41

39

47

39

38

CLOSED

45

33

23

28

91

18

30

68

22

15

RECONSIDER

0

0

0

0

0

0

0

0

0

0

PENDING

98

91

111

123

98

121

128

107

124

147

OVER 6

0

0

0

0

0

0

0

1

1

1

DEC

MONTHS
Tort Claim Investigations Over 60 Days:
DUB

LOI'

LOM

LOS

NEL

PBX

SAF

SDC

SET

SBE

TCI

TCN

TBM

VIM

TOTAL

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

1

Numbers adjusted as of June 1, 2001, by researching Lawpack.

4210

b

I

I

LITIGATION:
JAN

FEB

!GUt

APR

MAY

JON

JUL

AUG

SEP

OCT

476

479

473

477

472

474

475

469

482

476

11

5

14

10

9

8

4

22

9

5

HC

8

3

6

8

5

5

2

13

3

3

!'TCA

0

0

2

2

0

0

0

1

1

1

BZVENS

3

2

3

0

1

1

1

3

2

0

OTHER

0

0

3

0

3

2

1

5

3

1

CLOSED

8

11

10

15

7

7

10

9

15

17

PENDING AT
END 01'
MONTH

479

473

477

472

474

475

469

482

476

464

LITlGAT:tON
REPORTS
COMPLETED

7

8

12

8

8

9

6

10

4

7

OPEN AT
BEGINNING
OF KONTB

NEW CASES
RECEIVED

(

4211

NOV

DEC

u.s. Department of Justice
(

Federal Bureau of Prisons

Dubin, Caflomia 94S68

December 5, 2001
MEMORANDUM FOR CHRISTOPHER ERLEWINE, ASSISTANT DIRECTOR/
GENERAL COUNSEL, GENERAL COUNSEL & REVIEW

FROM:

~
~arlan

SUBJECT:

enn, Regional Counsel
crt for November 2001
LITIGATION

1.

(

BURE; UOF PRISONS
OGC/UTIGA nON BRANCH

.J

NEW 3621 (e) CASES

Machado v. Pendleton (TUC) Petition for Writ of Habeas Corpus
contesting 3621{e) denial as well as denial of UNICOR job
assignment.
2.

NEW CASES (NON-3621(e»

Dixon v. Slade (VIM) Bivens complaint alleging deliberate
. indifference to medical treatment of broken arm.
El-Jassem v. u.s. Parole Commission (LOM) Petition for Writ of
Habeas Corpus contesting continued incarceration. Emergency
motion asserting petitioner was not permitted to send or receive
legal mail was denied after declarations were submitted detailing
petitioner's status in Administrative Detention.
Friedman v. Herrera (LOM) Petition for Writ of Habeas Corpus
contesting sentence computation.
Ganoe v. Hood (SHE) Petition for Writ of Habeas Corpus contesting
eIMS assignment and alleged lack of prior notice.
Hodson v. Schultz (DUB) Emergency Motion for Injunctive Relief
claiming he has been restricted in receiving documents from court
clerk. Staff have facilitated delivery of documents and expect
proceedings to be dismissed as no other relief was requested.

4267

Jackson v. Herrera (LaM) Petition for Writ of Habeas Corpus
contesting disciplinary proceedings.
Kay v. United States (LaM) Inmate filed motion seeking to amend
sentence because he is required to make restitution payments via
IFRP.
King v. Andrews (Tel) Inmate alleged sentencing judge failed to
group his sentences and after his § 2255 petition was denied,
inmate filed a § 2241 petition. BOP believed case should be
addressed by Wackenhut's counsel so the USAO filed only a
procedural motion asserting improper venue. On appeal, Wacke~hut
counsel felt the inmate's position had merit and decided not to
file a brief. USAO sent letter to g' ;'. Circui t resting on the
record below.
McCrary v. Adams, et al. (LaM) Bivens complaint complaining of
use of force and four-point restraints.
Oliver v. Andrews (TCI) Petition for Writ of Habeas Corpus
seeking credit for street time before return to custody. Inmate
had been on appeal bond; U.S. Marshals Service did not receive
mandate after Court of Appeals affirmed conviction and thus did
not notify inmate to surrender.
Turner v. United States (SHE) FTCA complaint alleging failure to
protect.
3.

('

SIGNIFICANT DEVELOPMENTS/APPEALS

Blum v. Hardin-Cassel (PHX) Trial held in case alleging
retaliation due to inmate's legal activities. Testimony
completed but judge has ordered certain records from the central
file of plaintiff's incarcerated husband be produced. Plaintiff
is a former inmate.
Casarez v. Slade (VIM) Petition for Writ of Habeas Corpus granted
in 3621(e) case in which inmate was denied eligibility on account
of prior state conviction for assault with a deadly weapon.
Flowers v. Finnerty & Flowers v. United States (LOM) Bivens and
FTCA complaint alleging staff assault and improper placement in
restraints for five days pending settlement conference.
Foley-Clark v. United States (DUB) Bivens/FTCA action in which
former DUB inmate alleges BOP, FBI, and OIG failed to protect her
whi.le she wore body microphone during investigation of staff for
sexual assault. All Bivens defendants previously dismissed.
Discovery stayed but must be completed by December 30, 2001.

4268

(

(

Friedman v. u.s. Bureau of Prisons (PHX) Joint stipulation to
Privacy Act suit for $500>:: which represents plaintiff's
costs has been submitted to the court for approval.
s~ttl~

Godfrey v. Ashcroft (SET) FTCA complaint by staff member arising
from inmate assault dismissed with prejudice.
House v. Barron (LOM) Petition for Writ of Habeas Corpus
contesting DHO findings denied.
Merritt v. Morek (LOS) Ninth Circuit dismissed appeal from ruling
on discovery matters. Underlying Bivens complaint alleges
employment discrimination, loss of prospective earnings, loss of
employment longevity and constitutional violations.
Moore v. Schultz (DUB) FCI Dublin key case scheduled for
settlement conference on December 6 but due to potential impasse,
litigation will likely proceed.
Morris v. Hood (SHE) Petition for Writ of Habeas Corpus seeking
release to CCC dismissed as moot.
Muhammed v. Adams (LOM) Petition for Writ of Habeas Corpus
contesting 3621(e) eligibility denied.

('

Pacheco-Camacho v. Hood (SHE) g .... Circuit upheld lower courts
decision that BOP sentence prorating procedures (28 C.F.R. §
523.20) do not conflict with 18 U.S.C. § 3624(b} (1).
Romero v. United States (PHX) FTCAwr'ongful; 'death {sl.l'icide' irl~
SHU}·' settlement of $86,000 approved by Dis'trict 'Court.T'
Rose v. Adams, et al. (LOM) Bivens complaint alleging sexual
harassment dismissed without prejudice.
Sum v. Fitzpatrick (LOM) Petition for Writ of Habeas Corpus
contesting 3621{e) eligibility denied.

Thornton v. Fitzpatrick (LOM) Petition for Writ of Habeas Corpus
contesting 3621(e) eligibility denied.
Vacarro v. Dobre (NEL) Oral argument set for December 4, 2001, in
9th Circuit on challenge to district court's partial summary
judgement dismissal and trial verdict for certain defendants in
this deliberate indifference suit. Asst. Regional Counsel
Stewart and AUSA to attend~
Williams v. Herrera (LOM) Petition for Writ of Habeas Corpus
contesting 3621(e) eligibility denied.

4269

CRIMINAL

CASE TRACKING
\,

Criminal Cases
-JAN

FEB

MAR

APR

MAY

JON

JUL

AUG

SEP

OCT

Referred.

15

17

14

25

9

10

29

34

14

29

Accepted

0

3

2

4

2

1

2

1

0

1

Declined

12

9

9

16

4

7

18

16

7

23

Pending
Decision

59

64

38

72

75

77

86

103

110

115

NOV

DEC

NEW INFORMATION ON ACTIVE PROSECUTIONS
ASSAULT

u.s. v. Escano (TCN) Inmate on staff assault trial postponed to
January 15, 2002.
U.s. v.

Rios-Escobar (VIM) Inmate on staff assault accepted for
prosecution. Inmate struck lieutenant in face and kicked officer in
chest.
ESCAPE

u.s. v. Bergie (SET) Prosecution for CCC escape, initially declined
by USAO in Montana, is being urged again due to BOP priorities.
u.s. v. Bryant (SDC) Escapee -sentenced to 60 month term concurrent
with current term plus three years supervised release.
u.s.

v. Denton & U.S. v. Caskey (SHE) Prosecution accepted against
two FPC Sheridan inmates who stole institution van and effected
escape. Inmates still at large.

U.s. v.

Fischer (SHE) Inmate escape while en route to
in Arizona. USAO indicated willingness to prosecute.

cce

in custody

u.s. v. Havier (TeN) cce escapee sentenced to 8 month consecutive
term with 2 years supervised release to follow.
u.s. v. Johnson (WXR) cee escapee pled guilty and sentencing
scheduled for December 7, 2001.
u.s. v. Little (SET) Seattle
is pending sentencing.

eee

escapee pled guilty to escape and
(

4270

u.s. v. Nelson (LOS) FPC Boron escapee scheduled for sentencing
December 10, 2001.

(

"

u.s. v. Palma (WXR) CCC escapee pled not guilty and trial is
scheduled for January 28, 2002.
u.s. v. Wallace (SET) Montana CCC escapee pled guilty to escape and
is pending sentencing.
u.s. v. Leon-Cebrero (SDC) Escapee scheduled for sentencing January
17, 2002.
u.s.

v. Orendain (SDC) Escapee sentenced to four month consecutive

term.
Three CCC escapes were declined for prosecution by USAO. Attempts
will be made to persuade USAO to reconsider, or in the alternative,
to request permission to have Matt Carney, PHX CLC Supervisor,
prosecute the cases.
CONTRABAND

u.s.

v. Exum (TRM) Trial for inmate possessing heroin removed from

calendar. Defense has filed motion to suppress confession and
requested government's position on plea bargain and possible
sentence.

u.s. v. Maldonado-Gutierrez (PHX) Introduction of contraband case
accepted for prosecution. Staff observed inmate kiss visitor and
make swallowing movement. During dry cell observation, inmate
produced 6 balloons containing cocaine.
u.s. v. Parrado-Herrera (PHX) Inmate possession of marijuana and
heroin in visiting room scheduled for trial January 8, 2002.
Three previously declined prosecutions of drug introduction cases
arising out of FCI Phoenix have been redelegated to another AUSA and
it is anticipated these cases will move forward in the near future.
SEX OFFENSES

u.s. v. Donaldson (DUB) Former Recreation Specialist pending new
indictment on charges of sexual contact with ward. Original charges
dismissed pending grand jury.
u.s. v. McKnight (PHX) Retired Assistant Food Service Manager
scheduled to be sentenced December 18, 2001, on two counts of sexual
abuse of ward.
u.s.

v. Mosqueda-Gonzalez (PHX) Inmate attempted to forcefully kiss
correctional officer while seated on top of staff member and
simulating having intercourse has been ordered to submit to mental
competency examination.

4271

STATISTICS

(

ADMINISTRATIVE REMEDIES
JAN

FEB

MAR

APR

MAY

JON

JUL

AUG

SEP

OCT

NOV

98

67

104

65

67

67

34

116

103

70

93

DEC

FREEDOM OF INFORMATION/PRIVACY ACT:
JAN

FEB

MAR

APR

MAY

JON

JUL

AUG

SEP

OCT

NOV

RECEIVED

43

35

48

32

51

42

40

49

35

30

18

CLOSED

37

30

53

33

49

36

49

47

32

39

31

PENDING

38

43

38

37

39

45

36

38

41

32

19

30 DAYS

0

1

0

4*

6*

5*

7*

7*

4*

6*

4*

6 MONTHS

0

0

0

0

0

0

0

0

0

0

0

3
4
5
0
2
6
APPEALS
*Wa1t1ng for records from Arch1ves, not

2

2

0
0
overdue.

0

cons~dered

DEC

II

NUMBER OF FOI / PA PENDING:
~'"'' ,

ATW

DUB

LOM

HON

NEL

PBX

SAF

SDC

SET

SHE

Tel

TCN

TRM

VIM

OTHER

0

6

1

0

1

2

0

0

0

2'

1

2

0

0

4

ADMINISTRATIVE TORT CLAIMS
JAN

FEB

MAR

APR

MAY
1

JON

JUL

AUG

SEP

OCT

N9V

RECEIVED

40

26

43

40

45

41

39

47

39

38

45

CLOSED

45

33

23

28

91

18

30

68

22

15

67

RECONSIDER

0

0

0

0

0

0

0

0

0

0

0

PENDING

98

91

111

123

98

121

128

107

124

147

131

OVER 6
MONTHS

0

0

0

0

0

0

0

1

1

1

3

Numbers adjusted June 1, 2001, by researching Lawpack.
Numbers adjusted December 1, 2001, by researching Lawpack.

4272

DEC

Tort Claim Investigations OVer 60 Days:

(

'JB

0

LOF

'I,oM

LOS

NEL

PHX

SAF

SDC

SET

SHE

TCI

TCN

TRM

VIM

TOTAL

0

0

0

0

0

0

0

0

0

0

0

0

0

0

LITIGATION:

(
'"

JAN

FEB

MAR

APR

MAY

JUN

JUL

AUG

SEP

OCT

NOV

OPEN AT
BEGINNING
OF MONTH

476

479

473

477

472

474

475

469

482

476

464

NEW CASES
RECEIVED

11

5

14

10

9

8

4

22

9

5

11

He

8

3

6

8

5

5

2

13

3

3

5

FTCA

0

0

2

2

0

0

0

1

1

1

1

BIVENS

3

2

3

0

1

1

1

3

2

0

2

OTHER

0

0

3

0

3

2

1

5

3

1

3

CLOSED

8

11

10

15

7

7

10

9

15

17

11

PENDING AT
END OF
MONTH

479

473

477

472

474

475

469

482

476

464

464

LITIGATION
REPORTS
COMPLETED

7

8

12

8

8

9

6

10

4

7

7

DEC

Miscellaneous

Asst. Regional Counsels Campbell and Stewart made presentations to the
USAO, Fresno Branch, E.D. CA.
Deputy Regional Counsel Wong to attend privatization work group, OGC.
FDC Honolulu Attorney Read to report to duty December 4, 2001.

(

4273

Page 1

Joyce Zoldak - 12-2001.wpd

(
t' .S. Department of Justice

Federal Bureau of Prisons
Dublin. Callfomla 903568

January..}, 2002
MEMORANDUM FOR CHRISTOPHER ERLEWINE, ASSISTANT DIRECTOR/
GENERAL COUNSEL, GENERAL COUNSEL & REVIEW
FROM:
SUBJECT:

Harlan W. Penn, Regional Counsel
Monthly Report for December ~OOl
LITIGATION

Nl:W CASES

Bil1.ingsley v. United States, et al. (Labor Law, PHX) Title VII
complaint by former FeI Lompoc employee complaining of unjust
cermination based on disability and race as well as allegations
of sexual harassment by female supervisor.

I

(

Cannon \'. Slade (LOS) Petition for Writ of Habeas Corpus
contesting OHO sanction.
~e2Ra:~e :'. Femme, ec al.
(LOM: Bivens complaint alleging
wrongful placement in SHU and destruction of personal property.

Johnson v. Lockhart (SAF) Petition for Writ of Habeas Corpus
seeklng co ~hange PS! based on events occurring after it was
authored.
Moreland v. Rothstein, et al. (SET) Bivens complaint alleging
interference by Warden, Judge, and AUSA with on-going criminal
prosecution.
SIGNIFICANT DEVELOPMENTS/APPEALS
F~fcy peticioners for Writ of Habeas Corpus requesting early
release eligibility were denied leave to amend petition adding
ADA argument. AlISO petitions denied.
(SHE)

Castillo v. United States (SOC) Settlement conference in complaint

(

4304

Page 2

Joyce Zoldak - 12-2001.wpd

(

alleging medical malpractice postponed to January 30, 2002.
English v. Reno (SAF) Bivens complaint alleging failure to
provide shoulder surgery dismissed based on plaintiff's failure
to respond. Inmate on escape status since June 2001.
Flowers v. Finnerty and Flowers v. United States (LOS) Bivens and
FTCA complaints alleging staff assault and improper 5 day
restraint to be settled with stipulation for dismissal of both
actions to be accomplished January 23, 2002.

...

G~: r i er1:"ez \'. Uni ted Sta tes, e ~ a2.
:..:'~~
E ~ '.'e:lS complaint
alleging inadequate medical care dlsmlssed for plaintiff's
failure to prosecute and comply with local rules.

Harrell v. United States (SET) FTCA-' slip"and fall complaint
set,tl.ed'.for. $50'0.
Howard v, Adams (LOM) Bivens complaint alleging loss of personal
property and deliberate indifference to medical needs dismissed
~~~hou~ prejudice for failing t~ exhaus~ administrative remedies.
Moore \'. Schultz (DUB) Settlemer.:. conference in "key case"
scheduled for January 23, 2002.

(

Parsons v. Hood (SHE) Petitioner complaining of conditions of
confinement has appealed to Ninth Circuit the lower court's
dismissal of his petition.
Stewart v. Adams, et al. (LOS) Settlement conference scheduled
for January 17, 2002, in Bivens complaint alleging deliberate
indifference to medical care and delayed medical transfer.
Vacarro v. Dobre (NEL) Ninth Circuit upheld lower court's finding
in favor of remaining defendants in 10 year old deliberate
indifference Bivens complaint.
CRIMINAL CASE TRACKING

Criminal Cases
Referred
Accepted
Declined
Pending
Decision

JAN
15
0
12
59

FEB
17
3
9

64

MAR
14
2
9
38

APR
25
4
16
72

MAY
9

2

,

JUN

10
1

I

75

77

JUL
29
2
18

86

AUG
34
1
16
103

SEP
14
0

7
110

OCT
29
1
23
115

NOV
22
2
5
130

DEC
18
1
5
142

I.
I.

I·

NEW INFORMATION ON ACTIVE PROSECUTIONS
ASSAULT
!•

(

4305

Joyce Zoldak - 12-2001.wpd

Page 3

(

u.s.

"

v. Mendoza-Aguilar (TCN) Trial for inmate on staff assault
postponed to February 26, 2002.

u.s. v. Ponce-Hernandez (TCN) Trial for inmate on staff assault
postponed to February 5, 2002
ESCAPE
~.s. \'. Little (SET) Seattle CCC escapee pled guilty to escape and
is pending sentencing on January 11, 2002.

u.s. v. Nelson (LOS) FPC Boron escapee sentenced to 12 month
consecutive term with 3 years supervised release.
u.s.

v. Thomas (PHX) CCC escapee sentenced to time served
(approximately 6 months), 3 years supervised release, $100 special
assessment and $50 fine.

,.

u.s.

v. Wallace (SET) Montana CCC escapee sentenced to 4 months
concurrent, 3 years supervised release, 40 hours community service
and $100 fine.

..
I

CONTRABAND

u.s. v. Davis (LOS) Sentencing hearing continued to January 14, 2002
for lnmate possession of amphetamines and heroin.
u.s. v. Exum (TRM) Trial for inmate possessing heroin set for
January 8, 2002.
u.s.

v. Garcia-Salas (LOS) Indictment pending for inmate found with

!

•

I. ~

....

:C.S grams of heroin while at Fcr Victorville.

"

SEX OFFENSES

.

u.s. v. McKnight (PHX) Retired Assistant Food Service Manager
sentenced \two counts of sexual abuse of ward) to 5 years probation,
$50 special assessment, $5,000 fine, 100 hours community service,
enroll in mental health program and register with state as sex
offender.

.'...,
.

STATISTICS

ADMINISTRATIVE REMEDIES
JAN

FEB

98

67

MAR
104

APR

MAY

JUN

JUL

AUG

SEP

OCT

NOV

DEC

65

67

67

34

116

103

70

93

59

(..
~

4306

Joyce Zoldak - 12-2001.wpd

Page 4

(
FREEDOM OF INFORMATION/PRIVACY ACT:
JAN
FEB MAR
APR MAY JUN JUL AUG SEP OCT
30
40
49
35
35
48
42
32
51
RECEIVED 43
47
37
32
39
49
CLOSED
30
53
33
49
36
37
38
41
32
-13
36
38
PENDING
38
39
45
7*
7*
4*
6*
0
-1*
30 DAYS
1
0
6*
5*
0
0
0
0
0
0
0
0
0
6 MONTHS 0
0
0
2
3
2
APPEALS
6
5
0
2
4
*Waiting for records from Archives, not considered overdue.
NUMBER OF FOI/PA PENDING:
ATW DUB LOM HON NEL PHX
0
4
3
0
1
0

SAF
0

SDC
0

SET
0

SHE
8

TCI
1

TCN
0

NOV
18
31
19
4*
0
0

DEC
26
22
23
4*
0
0

TRM
0

VIM
0

OTHER
6

ADMINISTRATIVE TORT CLAIMS

('-_.

RECEIVED
CLOSED
RECONSIDER
PENDING
OVER 6
MONTHS

JAN

FEB

MAR

APR

MAY

JUN

JUL

AUG

SEP

OCT

NOV

DEC

40
45
0
98
0

26
33
0
91
0

43
23
0

40
28

45
91

41
18

47
68

0

0

0

III

123
0

98
0

121

39
30
0
128

0

0

39
22
0
124
1

38
15
0
147
1

45
67
0
131
3

30
52
0
109
5

0

Tort Claim Investigations Over 60 Days:
DUB LOF LOM LOS NEL PHX SAF SDC SET
0
0
0
0
0
0
0
0
0

0

107
1

SHE
0

Tel
0

TCN
0

TRM
0

VIM
0

TOTAL
0

LITIGATION:
OPEN AT
BEGINNING
OF MONTH
NEW CASES
RECEIVED
HC

JAN
476

FEB
479

MAR
473

APR
477

MAY
472

474

JUL
475

AUG
469

SEP
482

OCT
476

NOV
464

DEC
464

11

5

14

10

9

8

4

22

9

5

11

6

8

3

6

8

5

5

JUN

j:
2

13

3

3

5

3

I-.
!

----"
2

-_.... _. __.

•

'"
.._.

Numbers adjusted June 1, 2001, by researching Lawpack.
Numbers adjusted December 1, 2001, by researching Lawpack.

(
I~

---------------------------------------------------------------------------------------~,

4307

Page 5

Joyce Zoldak - 12-2001.wpd

FTCA

0

0

2

2

0

0

0

1

1

1

1

0

BIVENS

3

2

3

0

1

1

1

3

2

0

2

2

OTHER

0

0

3

0

3

2

1

5

3

1

3

1

CLOSED

8

11

10

15

7

7

10

9

15

17

11

57

PENDING AT
END OF
MONTH
LITIGATION
REPORTS
COMPLETED

479

473

477

472

474

~7S

469

482

476

464

464

413

7

8

12

8

8

9

6

10

4

7

7

7

MISCELLANEOUS:

u.s. v. Jason Duncan Smith (TCN) On November 13, 2001, Judge Collins
ordered the BOP provide the medication Klonopin to inmate Smith.
Inmate Smith had recently received an 11-month supervised release
·.:~O.Lator sentence.
On DecemQer 11, 2001, a hearing was held in which
the Clinical Director (CD) testified that Klonopin was not an
appropriate medication for inmate Smith. Due to a scheduling conflict,
the hearing was continued to December 14. Following this hearing,
Judge Collins again ordered the BOP to provide Klonopin to inmate
Smith. Due to FCI Tucson's Clinical Director's unavailability, the
Clinical Director from FCI Phoenix examined inmate Smith on December
18. A hearing was held the following day in which the FCI Phoenix CD
appeared telephonically. Judge Collins canceled the order to
immediately provide Klonopin to inmate Smith. However, he scheduled
another hearing for January 7, 2002, in which he ordered the presence
of FCI Tucson Warden, CD and HSA. Judge Collins also ordered that
inmate Smith be transferred to USMCFP Springfield for medical
evaluation.
AUSA Westby advised that there is a hearing scheduled in
this matter for January 3, 2002, at which Tom Fink, Chief of the
Criminal Division, will argue that the court is without jurisdiction in
this matter. As of January 3, 2002, inmate Smith is en route to
USMCFP.

i

. I ...~ ~
I .
I

e.
I'

r
I

I

!

I.

I

i

I

Paul Charlton was sworn in as new u.S. Attorney for the District of
Arizona on December 18, 2001.

I

I
to"
I

I"·
j
I

(

l
I

I
4~OR

U.S. Department of Justice
Federal Bureau of Prisons

Dublin, Califomia 94568

January 4, 2002

MEMORANDUM FOR CHRISTOPHER ERLEWINE, ASSISTANT DIRECTOR/
GENERAL COUNSEL, GENERAL COUNSEL & REVIEW

Jj~lv·.J~
FROM:

~rlan W. Penn, Regional Counsel

SUBJECT:

Monthly Report for December 2001
LITIGATION

-rrn-lE-(G-IE bW~ rrul
~l~~......-,n.

lfU " "'' .

~)

or PRISONS

BU~E; U

OGC/UTtGATION BRtl~CH

NEW CASES

Billingsley v. United'States, et ale

(Labor Law, PHX) Title VII
complaint by former FCI Lompoc employee complaining of unjust
termination based on disability and race as well as allegations
of sexual harassment by female supervisor.

(
"

Cannon v. Slade (LOS) Petition for Writ of Habeas Corpus
contesting DHO sanction.
DelRaine v. Femme, et ale (LaM) Bivens complaint alleging
wrongful placement in SHU and destruction of personal property.

Johnsnn v. Lockhart (SAF) Petiti"on for Writ of Habeas Corpus
seeking to change PSI based on events occurring after it was
authored.
Moreland v. Rothstein, et ale

(SET) Bivens complaint alleging
interference by Warden, Judge, and AUSA with on-going criminal
prosecution.
SIGNIFICANT DEVELOPMENTS/APPEALS

Fifty petitioners for Writ of Habeas Corpus requesting early
release eligibility were denied leave to amend petition adding
ADA argument. AlISO petitions denied.
(SHE)

Castillo v. Uni ted States (SDC) Settlement conference in complaint
alleging medical malpractice postponed to January 30, 2002.

4274

(,

English v. Reno (SAF) Bivens complaint alleging failure to
provide shoulder surgery dismissed based on plaintiff's failure
to respond.
Inmate on escape status, since June 2001.

(

Flowers v. Finnerty and Flowers v. United States (LOS) Bivens and
FTCA complaints alleging staff assault and improper 5 day
restraint to be settled with stipulation for dismissal of both
actions to be accomplished January 23, 2002.
Gutierrez v. United States, et ale (LaM) Bivens complaint
alleging inadequate medical care dismissed for plaintiff's
failure to prosecute and comply with local rules.
Harrell v. United States (SET) FTCA' slip' and fall

complai~t

settled for $500.

Howard v. Adams (LaM) Bivens complaint alleging loss of personal
property and deliberate indifference to medical needs dismissed
without prejudice for failing to exhaust administrative remedies.
Moore v. Schultz (DUB) Settlement conference in "key case"
scheduled for January 23, 2002.

Parsons v. Hood (SHE) Petitioner complaining of conditions of
confinement has appealed to Ninth Circuit the lower court's
dismissal of his petition.

(

Stewart v. Adams, et ale (LOS) Settlement conference scheduled
for January 17, 2002, in Bivens complaint alleging deliberate
indifference to medical care and delayed medical transfer.
Vacarro v. Dobre (NEL) Ninth Circuit upheld lower court's finding
in favor of remaining defendants in 10 year old deliberate
indifference Bivens complaint.
CRDaNAL CASE TRACKING

I

I

Crimi.nal Cases
JAN

FEB

MAR

APR

MAY

JON

JUL

AUG

SEP

OCT

NOV

DEC

Referred

15

17

14

25

9

10

29

34

14

29

22

18

Accepted

0

3

2

4

2

1

2

1

0

1

2

1

Declined

12

9

9

16

4

7

18

16

7

23

5

5

Pending
Decision

59

64

38

72

75

77

86

103

110

115

130

142

4275

NEW INFORMATION ON ACTIVE PROSECUTIONS

(

ASSAULT

u.s.

v. Mendoza-Aguilar (TCN) Trial for inmate on staff assault
postponed to February 26, 2002.

u.s. v. Ponce-Hernandez (TCN) Trial for inmate on staff assault
postponed to February 5, 2002
ESCAPE

u.s. v.

Little (SET) Seattle CCC escapee pled guilty to escape and
is pending sentencing on January 11, 2002.

u.s. v. Nelson (LOS) FPC Boron escapee sentenced to 12 month
consecutive term. with 3 years supervis~d release.
u.s.

v. Thomas (PHX) CCC escapee sentenced to time served
(approximately 6 months), 3 years supervised release, $100 special
assessment and $50 fine.

u.s. v. Wallace (SET) Montana CCC escapee sentenced to 4 months
concurrent, 3 years supervised release, 40 hours community service
and $100 fine.

,
(,

CONTRABAND

u.s. v. Davis (LOS) Sentencing hearing continued to January 14, 2002
for inmate possession of amphetamines and heroin.
u.s. v. Exum (TRM) Trial for inmate possessing heroin set for
January 8, 2002.

u.s. v. Garcia-Salas (LOS) Indictment pending for inmate found with
10.5 grams of heroin while at Fcr Victorville.
SEX OFFENSES

u.s. v. McKnight (PHX) Retired Assistant Food Service Manager
sentenced (two counts of sexual abuse of ward) to 5 years probation,
$50 special assessment, $5,000 fine, 100 hours community service,
enroll in mental health program and register with state as sex
offender.

(

4276

STATISTICS

I

I

ADMINISTRATIVE REMEDIES
JAN

FEB

MAR

APR

MAY

JON

JUL

AUG

SEP

OCT

"NOV

\DEC

98

67

104

65

67

67

34

116

103

70

93

59

I

I

FREEDOM OF INFORMATION/PRrv.ACY ACT:
JAN

FEB

MAR

APR

MAY

JON

JUL

AUG

SEP

OCT

NOV

DEC

RECEIVED

43

35

48

32

51

42

40

49

35

30

18

26

CLOSED

37

30

53

33

49

36

49

47

32

39

31

22

PENDING

38

43

38

37

39

45

36

38

41

32

19

23

30 DAYS

0

1

0

4*

6*

5*

7*

7*

4*

6*

4*

4*

6 MONTHS

0

0

0

0

0

0

0

0

0

0

0

0

6
2
2
3
0
2
0
5
4
0
APPEALS
*Wait1ng for records from Arch1ves, not cons1dered overdue.

0

0

.

('.-

I

NUMBER OF FOI/PA PENDING:

..... -

ATW

DUB

LOM

BON

NEL

PBX

SM

SOC

SET

SHE

TCI

TCN

'l'BM

VIM

OTHER

0

4

3

0

1

0

0

0

0

8

1

0

0

0

6

I

I

ADMINISTRATIVE TORT CLAIMS
JAN

FEB

MAR

APR

MAY
1

JON

JUL

AUG

SEP

OCT

NOV
2

DEC

RECEIVED

40

26

43

40

45

41

39

47

39

38

45

30

CLOSED

45

33

23

28

91

18

30

68

22

15

67

52

RECONSIDER

0

0

0

0

0

0

0

0

0

0

0

0

PENDING

98

91

111

123

98

121

128

107

124

147

131

109

OVER 6

0

0

0

0

0

0

0

1

1

1

3

5

MONTHS

1

Numbers adjusted June 1, 2001, by researching Lawpack.

2

Numbers adjusted December 1, 2001, by researching Lawpack.

(

'.

4277

Tort

II

C1a~

Investigations Over 60 Days:

I I I I I I I

II

UB

LOF

LON

LOS

NEL

PBX

SAF

SDC

SET

o

o

o

o

o

o

o

o

o

I

TCl

SHE

TCN

TRM

VIM

TOT1{'

.1'
I

o

o

o

o

o

o

,

LITJ:GATION:
JAN

FEB

MAR

APR

MAY

JON

JUL

AUG

SEP

OCT

NOV

DEC

OPEN AT
BEGINNJ:NG
OF MONTH

476

479

473

477

472

474

475

469

482

476

464

464

NEW CASES

11

5

14

10

9

8

4

22

9

5

11

6

HC

8

3

6

8

5

5

2

13

3

3

5

3

FTCA

0

0

2

2

0

0

0

1

1

1

1

0

BIVENS

3

2

3

0

1

1

1

3

2

0

2

2

RECE:rvED

~

r

OTHER

0

0

3

0

3

2

1

5

3

1

3

1

CLOSED

8

11

10

15

7

7

10

9

·15

17

11

57

PENDING AT
END OF
MONTH

479

473

477

472

474

475

469

482

476

464

464

413

LJ:TIGATION
. REPORTS
COMPLETED

7

8

12

8

8

9

6

10

4

7

7

7

MISCELLANEOUS:

u.s.

v. Jason Duncan Smith {TCN} On November 13, 2001, Judge Collins
ordered the BOP provide the medication Klonopin to inmate Smith.
Inmate Smith had recently received an I1-month supervised release
violator sentence. On December 11, 2001, a hearing was held in which
the Clinical Director (CD) testified that Klonopin was not an
appropriate medication for inmate Smith. Due to a scheduling conflict,
the hearing was continued to December 14. Following this hearing,
Judge Collins again ordered the BOP to provide Klonopin to inmate
Smith. Due to Fcr Tucson's Clinical Director's unavailability, the
Clinical Director from FCI Phoenix examined inmate Smith on December
18. A hearing was held the following day in which the FCI Phoenix CD

4278

r-

II

appeared telephonically. Judge Collins canceled the order to
immediately provide Klonopin to inmate Smith. However, he scheduled
another hearing for January 7, 2002, in which he ordered the presence
of FCI Tucson Warden, CD and HSA. Judge Collins also ordered that
inmate Smith be transferred to USMCFP Springfield for medical
evaluation.
AUSA Westby advised that there is a hearing scheduled in
this matter for January 3, 2002, at which Torn Fink, Chief of the
Criminal Division, will argue that the court is without jurisdiction in
this matter. As of January 3, 2002, inmate Smith is en route to
USMCFP.
Paul Charlton was sworn in as new u.S.
Arizona on December 18, 2001.

(

(

4279

A~torney

for the District of