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,

FEDERAL BUREAU OF PRISONS
WESTERN REGIONAL OFFICE

OFFICE OF THE REGIONAL COUNSEL
3RD QUARTER REPORT
April 1, 1993 - Jnne 30, 1993
TO:

Wallace H. Cheney
General Counsel

FROM:

Douglas Curless
Regional Counsel

DATE:

July 29, 1993

LITIGATION MATTERS:
Supreme Court activity:

None.

9th Circuit activity:
Hale v. ARCOR CA9 No. 88-15785, 89-15162 en banc opinion May 4,
1993.
The en banc 9th Circuit reversed a panel decision favorable to
inmates.
The panel in a 2-1 opinion indicated that for some work
assignments inmates must be considered "employees" under the Fair
Labor Standards Act (FLSA) and, accordingly, be paid minimum wage.
The majority expressly stated it could not make a blanket decision
that inmates were never employees. However, in this case involving
Arizona DOC inmates, the Court found the "employment" relationship
with inmates did not stem from any remunerative relationship or
bargained-for exchange of labor for consideration, but from
incarceration itself [quoting Vanskike v. Peters 974 F.2d 806 (7th
Cir. 1992); cert. denied, 113 S.ct. 1303 (1993)]. The 9th Circuit
held the labor provided to ARC OR by Arizona DOC inmates working for
programs structured pursuant to the state's requirement that
prisoners work at hard labor is labor belonging to the institution
and does not entitle inmates to minimum wage.
Lahey v. Floyd CA9 No. 92-55511 April 27, 1993.
A 9th Circuit panel has given us some further direction regarding
Mills v. Taylor and jail time credit (JTC) under the sentencing
guidelines and 18 USC § 3585 (b). The panel indicated third party
custody as a condition of pretrial bond release is not sufficient
restraint of liberty to qualify for JTC pursuant to 18 USC § 3585
(b). Inmate was released to the custody of his brother and had to
be at his brothers residence from 10:00 p.m. until 6:00 a.m. and
c~12.1d !!0t. be a~·.ra~7 frc!!1 the re~ide~c~ f=r ~cr::. th~rl 24 hc~:::-:;.

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his bond conditions were changed so he could stay at his own house.
The panel indicated release on bond under these conditions did not
approach jail type conditions.
U.S. District Court activity:
U.S. v. Carmichael CR 92-335 HRF D. Oregon.
Inmate walked away from FPC Sheridan.
Was recaptured wi thin 2
weeks.
Trial held April 26, 1993.
Inmate found guilty on April
27, 1993. Mary Sullivan monitoring.
Wilmer v. Meyers C 92-1145 FMS N.D. Cal (San Francisco).
Bivens case against staff at FCI Dublin. Inmate Wilmer refused to
be strip searched before placement in SHU pending investigation.
Wilmer overpowered the two female Correctional Officers who were
attempting the strip search. The Lt. and another male correctional
officer had to restrain Wilmer while female CO's wrapped her in a

2

sheet and conducted a strip search. Inmate demanding $750,000 in
damages.
Trial set for September 20, 1993.
AUSA Paul Solon and
Jenifer Grundy handling.
u.S. v. Diane Nevell CR 92 653 JMR
D. AZ (PHX)
Wife of inmate charged with introduction of contraband (drugs in
the visiting room hidden in infant's clothing). convicted by jury
on 5/6/93. Jane Haschmeyer monitoring.
Alexander V. Perrill CIV 87-582-TUC-RMB D. AZ (TUC)
Alexander is a former inmate who prevailed in a habeas action
convincing the District Court he had not received enough foreign
j ail time credit. The Court granted his habeas request and ordered
immediate release. Appeal was not sought because of the time lag
in getting appeal authority from the Department and delay in
getting cases argued and decided in the 9th Circuit. Inmate filed
a Bivens suit against BOP staff.
Inmate contends his sentence
recalculation resulted in his late release from custody.
Credit
had been erroneously awarded by an ISM at another institution. To
further complicate matters the ISM at this institution is now
deceased.
BOP and the u.S. Attorney's Office for District of Arizona filed a
motion for summary judgement and qualified immunity for all
defendants.
All defendants were dismissed with the exception of
Warden Bill Perrill and ISM Luis Rivera. In a 2-1 decision the 9th
Circuit denied our appeal for qualified immunity for the Warden and
ISM for their alleged lack of response to the inmates claims for
foreign jail credit. only Central Office can grant foreign JTC in
conjunction with DOJ Office of International Affairs. Neither the
Warden or ISM has authority to award foreign jail credit.
The case was remanded to USDe in Tucson. Plaintiff seeks $625,000
in damages. Discovery has been concluded. AUSA offered to settle
with plaintiff for $30,000 (we were not consulted). DOJ would not
authorize a monetary settlement. in a Bivens case.
Pretrial
conference set for August 4, 1993. We anticipate trial this fall.
AUSA Gene Bracamonte, paralegal Tom Byron, and Valerie Stewart
handling.
united states v. Dale DeNoyer CR-93-306 JSL C.D. Cal.
USP Lompoc inmate prosecuted for manufacturing a weapon in UNICOR.
AUSA Julie Ryan prosecuted in the Central District of California.
One day trial resulted in guilty verdict.
Sentencing set in
October 1993. Matt Carney monitoring.
u.S. v. Johnathan George
S.D. Cal (San Diego)
MCC SD pretrial detainee awaiting trial on federal felon in
possession of a firearm charges was writted from custody by San
Diego D.A. for trial on minor state charges.
After appearing in
state Superior Court on' June 2, 1992 inmate assaulted a Deputy

3

Sheriff, took her revolver, and escaped.
shot and killed the driver, and escaped.
October 5, 1992.

George stopped a car,
He was recaptured on

George has 3 federal charges pending.
Felon in possession of a
firearm (original federal charge), escape from federal custody
(June 2, 1992), and felon in possession of a firearm (recapture
October 5, 1992).
George was tried and convicted of all three
charges in June. Sentencing is set for September. George faces 3
state char-ges from the events of June 2, 1992. Assaulting a law
enforcement officer, escape, and capital murder. State trial for
assault/escape/murder is continued to February 1994.
Family of murder victim has filed a $2,000,000 FTCA claim against
BOP, USMS, and San Diego Sheriffs Office for negligence resulting
in
escape
and
murder.
Andrea
Dahlsten
handling
tort
claim/monitoring criminal cases.
u.S. v. Raymond Paige/George Davis CR 92-760 S.D.CA (San Diego)
Inmates at MCC San Diego were charged with introducing drugs into
MCC San Diego.
All inmate defendants pled guilty on 5/7/93.
Andrea Dahlsten monitoring.
u.S. v. Deloney CR 92-164 RGS D. AZ (PHX).
Staff member pled guilty to accepting a bribe to
contraband into FCI PHX. Jane Haschmeyer monitoring.

introduce

Vigil. et.al. v. MCC San Diego et.al.
BOP was served with a Bivens complaint and summons on July 1, 1993.
Two deputy u.s. Marshals are seeking $100,000 each ($50,000
compensatory/$50,000 punitives) for being unlawfully detained by
staff at MCC San Diego.
The deputies returned a mentally ill,
::uicid~l i:1~yta t.o ~·~cc aftar a suicide att€:iI(~/t at tWiCe SaIl Dl~yo. He
had been confined in an area hospital. Upon his return the inmate
was obviously psychotic and had indicated he had attempted suicide
on the way to MCC. The institution was under orders not to accept
inmates in this condition. The Marshals attempted to drop him off
and staff refused to accept the inmate. A court order was obtained
after approximately 1 hour and the Marshals left the institution.
Andrea Dahlsten handling •
. EEO/FOIA Cases:

Leonardo Stewart v. Ouinlan, CIV 91-707 RMB (D. AZ-TUC)
Racial discrimination suit settled after going through EEO
administrative process. EEO recommended $150,000 and reinstatement
to position. AUSA settled for $79,615.77 and no reinstatement (for
all claims).
Stipulated Agreement entered 4/12/93 with payment
within 30 days for Final Order of Dismissal. Funds came from DOJ
judgment fund.

4

,
People of California v. Emdy
Los Angeles D.A. and defense counsel both have requested inmates
Central file via FOI request.
Emdy murdered his brother for
informing on a third brother (while incarcerated with the state).
Emdy the defendant and Emdy the victim did time together at USP
Lompoc.
Central files must be produced by trial date of June 6,
1993.
Sellers update: We have recei ved numerous inmate requests to
correct" inaccurate" information contained in PSI's in light of the
opts Memo issued by Central Office.
Alan Ellis, Esq. a self
proclaimed post conviction relief expert has widely dispersed a
newsletter indicating BOP must clear up inaccurate information
contained in PSI's. We are responding to inmates that PSI reports
are records generate~and maintained by the Courts and mandated by
FRCrimP #32. The sentencing Court is the "record custodian.
BOP
receives a copy of th~ record. If the inmate wants to change the
record, he/she needs to seek that change with the Court or USPo.
We currently face one lawsuit filed by an FCI SHE inmate against
Kathy Hawk, Pat Kane, Wally Cheney, and Doug Curless over
information contained in a Post Sentence Report (filed in the
District of Columbia)~.
UNICOR and Environmen~al Issues:
On August 17, 1993; California EPA has called a meeting of
Potentially Responsibae Parties (PRP's) to discuss environmental
cleanup of the busineSs site of Omega Chemical Company in Southern
California.
FPC Boron has been listed as a PRP because Omega
received spent solvents from Unicor operations at FPC Boron.

occupational safety and Health Administration (OSHA) has increased
its insPection acti-y"'ity tr... is pa.st YUai. Lt::.L.
·J.·ll~y have conducted
inspections at 7 institutions in WXR. The primary focus of these
inspections is UNICOR.
OSHA has indicated fines will be levied
against institutions that don't correct OSHA deficiencies.
MATTERS OF INTEREST: ::
A recent trend in the~: District Courts in the Western Region finds
Judges running 924(c)" gun counts concurrent with other sentenced
counts, contrary to statute.
We have been contacting USPO's and
AUSA's to notify them~of our problem in computing the sentences.
They indicate they are not willing to appeal.
TRAINING AND EDOCATION
April 13-15 Valerie Stewart attended the AGAI Environmental Law
Seminar in San Francisco.

April 19-May 7 Janelle Brock attended FLETC for BOP basic training.

5

April 22 Tim Roberts was guest speaker at Pepperdine School of Law
on the topic of sentencing issues.
May 24-28 Janelle Brock TDY to FCI TIi June 1-4 TDY to MDC LA.
May 25, 1993 Legal, DHA/DHO, CCM's and Correctional Services toured
Pharm Chem Labs in Menlo Park, CA.
June 8-10, 1993 AGAI/BOP training at MSTC Aurora, Co. Presenters:
Doug Curless, Valerie Stewart. Attendees:
Tim Roberts and Mary
Sullivan.
June 22-24 Valerie stewart and intern Reg Webster attended EPA's
federal facilities compliance conference in San Francisco.
staff News:
Janelle Brock has been selected as an Attorney/Advisor for the LCI
branch in Central Office. Her reporting date is October 12, 1993.

An Tran has been selected as the DOJ honors program attorney for
Western Region. Her reporting date is August 22, 1993.
Institutions
USP Lompoc: Attorney/Advisor Matt Carney arrived at USP Lompoc on
April 24, 1993.

MDC Los Angeles:
Ed Ross rejoins legal.
Ed has held posts as
acting Deputy HSA and Acting unit Manager for the past 9 months.

6

WESTERN REGIONAL OFFICE

QUARTERL Y REPORT
TORT CLAIMS
April 1, 1993 through June 30, 1993
3RD QUARTER - FY93

·§5f=.........

I'tJrAL

..

,

.

5

138

2

3

2

143.00

2

11

5

2

4

3·

166.80

3

20

7

29

7

24

1,874.64

20

97

42

8

2

5

2,900.87

1

31

10

1

1

none

none

none

8

5

1

1

4

295.26

2

36

14

10

1

5

841.96

4

27

16

5

none

2

65.95

1

14

5

14

3

1

84.53

5

34

11

16

3

4

2,674.25

5

33

13

9

5

8

969.65

23

34

14

7

1

6

604.21

3

20

10

2

1

none

none

1

5

2

106

32

64

10,621.12

70

370

154