Usdoj Fbop Memo Re Monthly Litigation Report July 1998
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.. ~EDSTATESGOVERNMENT memorandum Northeast Region, Philadelphia, PA FEDERAL BUREAU OF PRISONS August 11, 1998 MEMORANDUM FOR WALLACE H. CHENEY, ASSISTANT DIRECTOR AND GENERAL COUNSEL, FEDERAL BUREAU OF PRISONS FROM: SUBJECT: Henry J. Sadowski, Regional Counsel Monthly Report - July 1998 I. ADMINISTRATIVE LEGAL ACTIVITIES - SUMMARy REPORT A. Administrative Remedies - 1998 Pending on 1st Rec'd in month Ans'd in month Pending at End Over 30 days JAN 110 113 132 91 a FEB 91 155 100 146 a MAR 146 187 171 162 APR MAY JUN 162 167 180 188 187 172 183 174 207 167 180 145 a 000 JUL AUG SEP OCT NOV DEC 145 153 152 146 o B. Administrative Tort Cla±ms - 1998 JAN FEB MAR APR MAY JUN JUL AUG SEP OCT NOV DEC Pending on 1st 236 262 261 283 320 348 319 Rec'd in month 77 73 92 73 60 64 51 Recons. rec'd 3 2 3 4 1 o 3 Ans'd in month 54 76 73 40 33 93 77 Pending at End 262 261 283 320 348 319 296 Over 180 days a a a a 0 a a C. Tort Claim Investigation Status: Pending Over 60 days As of July 31, 1998 ALF ALM ALP ALW BRO DAN FAI FTD LEW LOR MCK NYM OTV RBK SCH 2 2 7 0 2 5 3 14 12 0 4 2 2 12 10 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 . 2 D. FO:r/Privacy Ae't Requests - 1998 Pending on 1st Rec'd in month Ans'd in month Pending at End Over 20 days JAN 37 34 58 13 1 FEB 13 28 35 9 1 * MAR APR MAY JUN JUL AUG SEP OCT NOV DEC 32 32 4 9 15 41 31 45 32 38 41 59 27 29 21 15 32 32 4 22 1 1 0 6* 0 Records awaiting retrieval from archives. E. FOn Requests for records: As of'July 31, 1998 ALF ALM ALP ALW BRO DAN FA! FTD LEW LOR MCK NYM OTV RBK SCH Pending .1 0 0 0 0 5 4 1 1 1 2 1 1 0 0 Over 20 days 0 0 0 0 0 3* 1* 0 0 1* 0 1* 0 0 0 *This file has not been received from archives. :I::I:. L:I:TIGATION ACTIVITY - 1998 NORTHEAST REGION A. SUMMARY REPORT Cases Open New Cases Habeas Corpus FTCA Bivens Other Bivens/FTCA Lit Reports Cases Closed JAN FEB MAR APR MAY JUN JUL AUG SEP OCT NOV DEC 670 604 597 606 625 639 613 13 15 21 24 19 13 11 7 13 13 15 6 5 3 1 4 4 1 2 3 1 2 1 3 4 1 3 6 1 1 4 2 0 1 3 O' 2 2 2 0 0 0 9 9 10 8 10 10 4 7 12 66 5 5 26 14 B. SETTLEMENTS AND AWARDS: - None C. S:I:GN:I:F:I:c;ANT CASES, TB:I:ALS or BEARINGS; Significant New Cases: McClurg v. Harding, 98-605 (D. Conn) Holder v. Harding, 98-656 (D. Conn) FCI Danbury inmates Penelope McClurg, 21528-018 and Tinia Holder, 09474-424, filed separate, similar motions requesting an expedited hearing and temporary restraining order against the practice of cross-gender pat searches at FCI Danbury. Both . 3 inmates have a history of being sexually abused and are assigned to the "Bridge Unit n , which is a housing unit for women who have suffered traumatic experiences, inclUding sexual assault/abuse. Counsel has been appointed to represent both inmates. Under informal pressure from the court, the Warden agreed to exempt the two inmates from routine cross-gender pat searches until a full hearing on the merits can be held. The hearing is currently scheduled for October 1998. We are trying to move up the hearing date. Trials: United States v. Hammer, M.D. PA On July 24, 1998, the jury returned a death penalty verdict against inmate David Paul Hammer, 24507-077 for the murder of another inmate at USP Allenwood. Formal imposition of sentence was scheduled for September 17, 1998. The inmate fired his attorneys and moved for immediate imposition of the death penalty. After an August 3, 1998 hearing, Judge Muir issued an order for another competency hearing before ruling on the inmate's motion. Hearings: 1)U.S. v. Castaldo, Crim. No. ----- (S.D.N.Y.) On June 30, 1998, MCC New York received a memorandum from an AUSA indicating a credible source informed him that the life of inmate James Castaldo, 16032-050, may be in danger. Castaldo was removed from general population and placed in administrative detention pending a threat assessment. The inmate objected to the criminal trial judge. Judge Keenan requested a written explanation by 9:30 a.m. on July 2, 1998 and scheduled a hearing for 10:30 a.m. At the hearing, the Court determined the issue was not ripe since the threat assessment had not yet been completed. The Judge expressed some concern for the adequacy of the reasons on the administrative detention order. After the assessment was completed, the threat was found to be too vague. The inmate was released to general population on July 13, 1998. Clinton Stroble represented the MCC NY. 2) u.s. y. Muyet, Crim. No. ----- (S.D.N.Y.) On July 27-29, 1998 the District Judge Peter K. Leisure held three hearings to address two allegations by inmate John Huyet, .... J...... iQ,SiQiWiQiQ.SM: iSM.t.t.t.J..J:kt.. .... tt.tA...t.v.Z.&.i5k. W t ,b@'&' . iQ•• J.J,Q.J.t.t.t..M.. J.w.C.......... u'O'S.&J..e.=#w&MiM.zax,....wml4&1t h z1A.Q,,:A ".£.t.0.((i:&h4tJ,S.c.c.%JJ.O:V:;;:::::WW;:iiia:t»1 Ii.. . 5 E. ENSl:GN AMENDMENT CASES: Nyhus y. RenQ, et al., C.A. NQ. 97-324E (W.O.Pa.) CravierQ v. RenQ, et al., C.A. NQ. 97-31E (W.O.Pa.) The abQve-referenced cases were bQth filed by FCI McKean inmates challenging variQus cQmpQnents Qf the Ensign Amendment and the BOP's pQlicy change on persQnal property. The Magistrate Judge assigned tQ both cases issued a report and Recommendation dismissing the cases. She fQund that Bureau pQlicy placed reasonable limitatiQns and was within its discretion. The CQurt considered the Ensign amendment allegations vQluntarily withdrawn since the Plaintiffs have filed, with the assistance Qf counsel, a new case styled as a class action (Wolf, Craviero, and Nyhuis v. ReDo, et.al, 97-408E). F. PLiA 1915 Dl:SMiSSALS: None l:l:l:. TRAVEL AND LEAVE SCHEDQLE FOR AUGUST 1998: Hank SaqQwski -Travel - Aug. 31 - Sept. 2 - Sentencing Training Annual Leave - August 17 - 21 Mike Tafelski -Travel - NQne Scheduled Annual Leave - August 28, 1998 Toni Brown - Travel - None Scheduled Annual Leave - August 24, 1998 Les Owen - Reports to MOC Brooklyn on August 17, 1998 Ron Hill - Travel - None Scheduled Annual Leave - None Scheduled James Vogel - Travel - None Scheduled Annual Leave - August 14, 1998 U.S. Department of Justice Federa1 Bureau of Prisons Wl!slortr Nl!!1itmal OffiCl! Dublin. California 94568 August 17, 1998 MEMORANDUM TO WALLACE H. CHENEY ASSISTANT DIRECTOR/GENERAL COUNSEL FROM: SUBJECT: Harlan W. Penn, Regional Counsel Monthly Report for July 1998 •• CASES OF INTEREST ~~ SUPREME· COURT: James Jacks v. Crabtree, et ale (SHE), petition for writ of certiorari filed January 7, 1998 by the Federal Public )efender/Oregon in this 3621 (e) action, challenging BOP's use of ~rior criminal convictions in eligibility determinations for early release. L' NINTH CIRCUIT MATTERS: Timothy Robles vS. USA, et ale (No. CA9 96-56762) Court of Appeals decided that Section 401 of the comprehensive Drug Abuse Prevention & Control Act of 1970 does not permit the U.S. Parole Comm. to impose a second term of special parole after it revokes the original special parole term. BOP was ordered recompute the sentence. USPC has issued a NOA, but Robles is in custody in Hawaii facing drug charges while on release for this appeal. Miller v. Crabtree & U.S. Parole Corom., CV-97-1338-CO -Notice of Appeal filed. DISTRICT COURT MATTERS: Cordova v. Reno (TAf), first Bivens action filed by TAf inmdte naming both BOP and Wackenhut (WCC) defendants. Inmate claims refusal of dental treatment while in USMS, BOP, and WCC facilities. fresno USAO notified of case July 28, 1998. . Cox v. Bailey (SAF), CIV 97-749-TUC-FRZ. Habeas petition in which inmate challenges his criminal sentence pursuant to 28 U.S.C. § '241. Court has followed the CA9 decision in Lorentson allowing _iling due to limitations imposed by AEDPA. Onaghise v. Bailey (SAF), CIV 8-232-TUC-RMB. Habeas petition in which inmate challenges his criminal sentence pursuant to 28 U.S.C. § 2241. Court has followed the CA9 decision in Lorentson allowing filing due to limitations imposed by AEDPA. Lunenburg v. Clark (SAF), CV 98-2749-CBM(SH) (C.D. Cal.) This habeas petition for DAP credit was recently transferred to the District of Arizona (Tucson) from the Central District of California. Forgac v. Perrill, et ale (SET), C98-563 (Western Dist. of WA) Bivens case alleges violations of Access to Courts: (law library, duplication of legal materials, legal mail, legal telephone calls)and Involuntary Servitude: Pretrial inmate sanctioned to perform extra duty. Kwasigroch v. Perrill, et ale (SET), C98-554C (Western Dist. WA) Bivens case alleges violations of access to Courts: INS detainee access to Main Law Library. Adams v. BOP, et ale (SET), C98-149FVS (Eastern Dist. WA) Bivens in which Plaintiff alleges sexual abuse by Geiger Corrections ~enter staff. Complaint will be dismissed if Plaintiff does not ~ile an amended complaint by August 14, 1998. Newson v. U.S.A. (NEL), $6,000,000 FTCA case in which wife and husband sue U.S. for injuries she suffered in September 1994 auto accident involving inmate driver. BOP liability is clear under Nevada tort law, so damages is the main issue. Depositions are being conducted in July and August. TRIALS/BEARINGS: None RELIGION: None CASES DISMISSED PURSUANT TO PRISON LITIGATION REFORM ACT: None ENVIRONMENTAL MATTERS: None SETTLEMENTS: None CRIMINAL CASE TRACKING 1. CR~INAL CASES ACCEPTED FOR PROSECUTION AWAITING TRIAL/ DISPOSITION: ASSAULT: u.s. v. Julian Lee Simmons (LOM), assault of Correctional Officer that occurred on December 14, 1997. Case originally scheduled for trial on May 26, 1998, but trial date vacated due to inmate's conduct during hearing. Competency hearing ordered. U.S. v. Jesus Martinez-Solares (TCN), Inmate had been found mentally incompetent to stand trial. This was erroneous. After study at USMCFP Springfield, inmate was found competent. Defense counsel wants his client to sign plea agreement, however, it is believed that his mental state has deteriorated and another study has been requested. ESCAPE: U.S. v. Terrance Nikrasch (LOM), former FPC inmate pled guilty to escape and possession of counterfeit currency. Sentencing September 28,' 1998. ~UD/FORGERY: U.S. v. Richard Lewis (TCN), FBI has interviewed inmate Lewis' Female accomplice in Las Vegas, Nevada. She has agreed to cooperate and has signed release for production of her original WestCare treatment records, which were forged by Lewis. . Prosecution stayed pending AUSA's involvement in extradition of suspects in USBP Officer murder in Nogales. Suspects, including the shooter, are currently confined in Mexico. HOMICIDE: U.S. v. Roy Green (LOM), inmate indicted April 2, 1998 for murder of SOS Scott Williams (2 counts) and assaults on four other officers. Judge Marshall visited the visiting area provided at LOS and found violation of 18 U.S.C. §3005, which provides that counsel in capital cases shall have access to the accused -at all reasonable hours." INTRODUCTION/POSSESSION OF CONTRABAND: U.S. v. Lamarr Dunn (LOM), inmate pled guilty to two cuu~~~ Possession of Contraband, 18 U.S.C. §1791. One count invt :~ •. Possession of Marijuana, the other count involved Posse~~: :. Prohibited Object (weapon). Sentencing September 9, 19(11.. PROPERTY: None SEX OFFENSES: j 0: d u.s. v. Robert Gorsuch (LaM), former staff member pled guilty to one count of Abusive Sexual Contact, 18 U.S.C. § 2244. Sentencing scheduled for August 17, 1998. WEAPONS: None 2. TOTAL CRIMINAL CASES REFERRED THIS MONTH: 11 3. CRIMINAL MATTERS REFERRED (MATTERS DECLINED ARE NOTED) : ASSAULT: LaM -- 2 inmate/inmate assaults referred SAF - 1 inmate/ inmate assault deciined 1 inmate/ inmate fight declined SDC - group fight involving 12 inmates declined TCN - 1 inmate on staff assault ESCAPE: None FRAUD/FORGERY: TCN - 1 Fraud/Forgery Case HOMICIDE: None INTRODUCTION/POSSESSION OF CONTRABAND: LaM - 2 visiting room introduction cases referred. SDC - 1 marijuana possession declined. TRM - 1 marijuana possession referred. PROPERTY: None SEX OFFENSES: None WEAPONS: None •• STATISTICS 44 ADMINISTRATIVE REMEDIES MAR APR FEB JAN 114 80 112 91 MAY JON JUL 90 110 101 AUG SEP OCT NOV DEC . I RECEIVED CLOSED RECONSIDER PENDING OVER 6 MONTHS 34 40 38 0 110 1 64 0 86 3 62 47 1 102 3 43 39 48 36 1 110 2 58 0 91 29 0 110 0 1 Tort Claim Investigations Over 60 Days: I LOS I NEL 1 PBX BRN I DUB I LOM I LOF I0 10 0 11 11 11 12 FREEDOM OF INFORMATION/PRIVACY ACT: APR FEB MAR JAN 39 23 32 21 RECEIVED 33 24 33 27 CLOSED 18 12 22 14 PENDING 0 0 a 2 20 DAYS a 0 0 6 MONTHS 0 1 1 0 0 APPEALS MAY 26 29 15 2* 0 4 52 57 1 106 0 I SAP I SDC I SHE I TRM I TCN I1 I0 1 0 10 1 2 JUN JUL 19 21 13 0 30 29 14 2** 0 0 1 2 SEP AUG OCT TOTAL 6 NOV DEC * In both cases, waiting for records from Records Center. ** Staff at. SDC searching for old visitor logs & ISM at SHE unable to locate records. FOI/PA PENDING MORE THAN 20 DAYS ON JULY 31, 1998: I LOS I NEL TpBX I SAF I SDC BRN I DUB I LOM I LOF I1 I I I I I I I 1 SHE I TRM I TCN I TOTAL I1 I 12 I LITIGATION: OPEN CASES NEW CASES HC FTCA BIVENS OTHER CLOSED LITIGATION REPORTS JAN 297 24 19 1 4 0 134 13 FEB 306 21 17 1 2 1 12 15 MAR 311 17 5 5 5 2 11 8 APR 312 18 14 1 2 1 17 8 MAY 329 18 13 1 2 2 1 17 JUN JUL 325 9 5 1 2 1 325 15 8 1 5 1 15 6 13 5 AUG SEP OCT NOV DEC UNITED STATES GOVERNMENT memorandum August 7, 1998Mid-Atlantic Regional Office. Annapolis Junction. MD 20701 I>ATE: ATTNflf: Bill Burlington, Regional Counsel Mid-Atlantic Region SIlnJU,: July 1998 Monthly Report RI,PI.Y TIl Til: A·ITS: Wallace H. Cheney, General Counsel Amy Whalen Risley, Executive Assistant ADMINISTRATIVE REMEDIES JAN FEB MAR APR Received Answered 135 143 187 181 229 178 TORT CLAIMS JAN FEB MAR APR # Pending # Received # Answered # Pending # Over Six Month 230 68 91 195 0 195 54 71 179 0 179 75 58 190 0 tllVACY JAN FEB MAR APR 13 # Pending 43 # Received 34 # Answered 23 # Pending # Over 20 Working Days 1 -File has been requested from archives. 23 24 34 12 2- 12 54 41 23 0 160 201 190 62 60 191 0 23 54 53 24 0 MAY JUN JUL 168 174 200 194 214 156 MAY JUN JUL 191 42 38 195 0 195 49 83 154 1 154 45 67 138 0 MAY JUN JUL 24 36 42 18 4- - 18 47 32 35 2- SEP OCT NOV DEC AUG SEP OCT NOV DEC AUG SEP OCT NOV DEC 35 52 57 30 3- - -One file requested from archives; another request archives sent wrong file. FEB LITIGATION JAN MAR APR MAY JUN Cases Pending New Cases Received Habeas Corpus Bivens FTCA Other Cases Closed Cases Pending Lit Reports Completed Cases/Hearings or Trials Settlements/Awards $ Settlements/Awards ($ in Thousands) - ~ ·rected figures 338 331 329 314 41611 7 7 4 4 3 5- 01 6 1 1 2 0 1 2 1 0 19 14 21 62 331 329 314 273 15 12 14 8 261 13 7 5 1 0 12 261 21 2 AUG 2 1 2 $147.7 $52.0 273 16 6 5 2 3 28 261 13 1 4 0 1 0 2 o $13.9- $9.0 0 0 0 JUL 261 36 11 3 2 20 25 272 7 0 0 0 AUG SEP OCT NOV DEC .. Page 2 MXR Monthly Report ITEMS OF INTEREST, PERSONAL.LEAVE, BUSINESS TRIPS, MOVES, ETC. Bill Burlington, Regional Counsel, August 31-Sept. 2, 1998 will be at the MSTC Denver for Sentencing Training. This month we welcome Alicia Daniels-Lewis to the Regional Office, as our new Honors Attorney. Alicia comes to us from North Carolina Central University, in Durham. Alicia, is married and has a 12 year old son. We look forward to Alicia starting work with us on August 31, 1998. We also bid a fond adieu to Dave Recker, who will be moving in early September to FCC Florence, Colorado. Dave has done a great job during his year with us, and will be missed by everyone. We wish Dave the best of luck in his new challenging assignment. Milt Williams, Paralegal, FCl Petersburg, and Randy Smith, Paralegal, FCl Elkton, will attend the Sentence Computation Training in Aurora August 31-September 2. As of August 5, 1998, we bid farewell to Shannon Cheek, the summer intern at FCl Manchester from Eastern Kentucky University. We thank her for the excellent assistance she provided. SITUATION OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS WASTE SITES, ETC.: FCI Petersburg - Judge Robert Merhige, Federal District Judge, Eastern District of Virginia, retired in June. Robert Jaspen, Chief of Civil for the E.D. of Virginia resigned from the u.S. Attorney's Office to take a job in the Staff Attorney's Office of the Fourth Circuit. During his approximately 23 years in the U.S. Attorney's Office, Bob has handled numerous FCl Petersburg cases. FMC Lexington - Joe Tang, Attorney, assisted with coordinating a visit from the Chief of the Civil Division, E.D. Kentucky, and two civil AUSAs. This visit was arranged to educate the U. S. Attorney's staff about Lexington's medical services and improving interoffice relations. Medical staff gave a presentation on various aspects of the medical care provided at Lexington. The visitors were also given a tour, along with a question and answer session. The feedback from the visitors was very positive, and both parties feel a similar tour can be done in the future for pro se clerks, other U.S. Attorney's office staff, etc. FMC Lexington - On July 10, 1998, Judge Forester wrote a letter to Warden Holland criticizing our use of a P.A. to perform a routine physical on a pre-sentenced 18 U.S.C. § 3552 inmate Forester referred to Lexington for a medical and psychological evaluation. Judge Forester was also critical of • -.. 1 t .. .n.m. .1 uni Fii ,1 . .t.Uu .. t. 4%Q&W£W.Q,J,:; ,J , .. - r;:;:;:::;::;3RM;J1~R£ !I . . ¥MA,:;Qi!<:;.Q.. M. .w.v. , .., kJiQ.dSA$6AQQJ.&. !! :;x:;q h H (" 1>:').w;::;w.W:;::;::::;;;:1I::::;;:::::;::;:::;;",~ .......".~":I..:::a;::.· Page 3 MXR Monthly Report the fact the medical summary did not specify which doctors reviewed x-rays and other test results. Judge Forester concluded the letter stating if we do not have the proper staffing to conduct these §3552 evaluations in the future, he will no longer refer them to Lexington. The summary prepared by staff was a standard summary which Judges have never complained about in the past. Typically, Judges want a short summary written for non-medical persons. In response, Joe Tang, Attorney, FMC Lexington, assisted in preparing a letter to Judge Forester informing him that P.A.'s are qualified to do routine physical exams and prepare evaluation summaries, but his concerns were noted, and in the future Lexington would have physicians review the findings and prepare the summaries. We also provided Judge Forester with the more detailed information he was seeking. Joe personally delivered the letter to the Judge's law clerk. The law clerk, who leaves this month, is apparently the one who has been "pushing" the medical cases filed against the staff at FMC Lexington, as well as the Dumphord case. FOIA Appeal Decision - An inmate at Terre Haute filed a FOIA request in early 1996 seeking a copy of his complete psychology file. Everything was released to him but what was considered MMPI raw test data. He appealed that decision to the regional office and we supported the withholding .. The inmate appealed to alP. alP has been struggling with this issue since October of 1996 mostly due to staff turnover. We have had discussions with alP staff on numerous occasions and have provided them information from our Psychology Administrator regarding Psychologist's Code of Ethics. This month we received a copy of alP's letter to the former inmate which released the grid where the inmate filled in a circle to represent his response to a question, but supported our withholding of the actual MMPI raw test data. We are not sure if it made a differ~nce in this case, but the inmate had been provided with a written summary of the test results. We were pleased to receive this favorable decision. Prisoner Litigation Reform Act: FMC Le~ington - Jones v. Holland - We have just received a copy of the memo from the Civil Division, recommending against an appeal in this case. We still feel this case should be appealed, as the procedure followed by the court in this case represents the typical, current practice in the Eastern District of Kentucky--a practice that is at odds with the clear mandate of the PLRA. The u.s. Attorney and the Civil Division concede the errors by the court, but recommend against appeal based on the nominal award of attorneys fees. We still feel this is an excellent opportunity to receive a published appellate court opinion in a BOP case requiring exhaustion in a Bivens act~on under PLRA . .6XFJ.$.... ".. t..t ) & . $.i.iM&t&3.MWWMt.tJ... t i .t( d&t..d.mX@.M.i!i)!;:.:;:.:;:.::;:.a . . Page 4 MXR Monthly Report SUBSTANTIVE PLEADINGS (COMPLAINT, MOTION FOR SUMMARY JUDGMENT, ETC.): None SETTLEMENTS: None ADVERSE DECISIONS OR SIGNIFICANT DECISIONS: FCI Memphis - Rowland v. US - After Rowland violated the terms of his supervised release, the sentencing court imposed second term of imprisonment. Upon completion of the second term, the u.s. Parole Commission claimed that it also had jurisdiction over Rowland and ordered him to serve yet another term of imprisonment for the same violations. As a result, Rowland brought a habeas corpus petition seeking his release. The District Court granted the petition and the Government appealed. On July 17, 1998, the Sixth Circuit affirmed the District Court's decision in favor of Rowland. a UPDATE ON CASES, TRIALS OR HEARINGS, ETC. NOTED IN PRIOR REPORTS: FCI Petersburg - Bergquist v. US, et al. - In a court order filed July 17, 1998, the government's Motion to Dismiss on procedural grounds' (lack of formal service upon the U. S ., and statute of limitations for filing the complaint) was denied. The court noted the pro se inmate complaint was received by the court prior to the SOL, although not stamped as officially filed until after the SOL. The court also noted because the court was responsible for service, the lack of service argument fails. Bergquist is now represented by counsel. The case involves allegations that medical staff's delay in diagnosing plaintiff's colon cancer resulted in his having to undergo extensive and painful chemotherapy. The AUSA will be at Petersburg on August 12, 1998, to review the medical operation and speak to medical staff prior to obtaining an expert witness. She will interview the former medical officer on August 13. FCI Petersburg - Platshorn v. Hahn - The saga continues with this sentence computation case involving the issue of aggregation of parolable and non-parolable sentences. After both the appellant and appellee filed long informal briefs with the Fourth Circuit, Platshorn's attorney filed a reply brief, which is not permitted under the informal briefing rules of the Fourth Circuit, along with a motion to supplement the record. The AUSA filed a motion in opposition explaining that documents filed by Platshorn's attorney were incomplete and inaccurate. .. .. . WX/..i.h.J..bk.«.bh.. m .. &.J,J.QiQ .. ?>&»<,,1 . .. .. . .w.t.t.b h. 'Q1Q.lX'!'Xw.3'i;<3:;,).Q.w.«(0.h:.43.'M.Uit..PP::;:':"::q:;u~;:s,;aw:::::::::;:.+.!,~, .. Page 5 MXR Monthly Report FCZ Manchester - Shehee v. Robertson - As previously reported, a Notice of Appeal was filed April 28, in this Bivens case as a protective measure. The AUSA has now received a decision from the Office of the Solicitor General approving the appeal for all but one defendant. USP Terre Haute - The U.S. District Court for the District of Utah issued a TRO on July 10, 1998, prohibiting the BOP from transferring William Thurmond from the District or the State of Utah. A hearing was held on July 28, 1998, on the TRO in which Judge Jenkins ordered the BOP to prepare a declaration from Warden Clark basically stating that the Warden had reviewed the transfer documents, was willing to accept the inmate, and believed the inmate would be safe at USP Terre Haute. Inmate Thurmond was being housed in the Utah Department of Corrections because he had previously cooperated with authorities concerning a homicide at USP Terre Haute in 1983. Warden Clark reviewed the transfer packet and did not agree with the inmate being designated to USP Terre Haute. Legal staff at Terre Haute advised legal staff in the Western Regional Office and that office stated they would redesignate the inmate to another institution. REPRESENTATION NOT RECOMMENDED FOR STAFF: None SIGNIFICANT FTCA CLAIMS: None MEDICAL MALPRACTICE CASES UPDATE: FMC Lexington - Walls v. Holland, et ale - Judge Forester denied plaintiff's Motion for a TRO to prevent his transfer back to his parent institution. Plaintiff alleges deliberate indifference to his medical needs, i.e., treatment of his hand which was damaged in an UNICOR accident at FCI Allenwood. This ruling is significant because Judge Forester gave us only two days to respond and a hearing was anticipated by the U.S. Attorney's Office. SIGNIFICANT ADMINISTRATIVE REMEDIES: None NEW RFRA CASES AND UPDATES ON PREVIOUSLY REPORTED CASES: FCI Beckley - Perkins v. Barnard, et al. - This was a Bivens suit alleging a pat search by a female officer violated a male inmate's constitutional rights. The inmate did not allege a violation of RFRA. The case has been dismissed for Failure to State a Claim. ALTERNATIVE DISPUTE RESOLUTZON EFFORTS: None 18 U.S.C. § 3621(e) LITIGATION: .. 66.6.. ..a.:.s.a. ,WMl.s&WZI&.J,Z$"Q,,,.£.. . . . $.v. 3Ht. tut. ..L.6.Q1dUAtW..,( ..!P&4!C..h&%Mwa.m"MtM::..tQ 3 f'!S?i#J1#I.~A. . . .t.w:t,M.. - Pa~6 MXR Monthly Report FCI Morgantown - Kirby v. Bledsoe - This case represents our first challenge to the new Program Statement 5162.04, Categorization of Offenses. Kirby was initially found ineligible under P.S. 5162.02 (922(g) conviction), and declined participation in RDAP since he was ineligible for the year off. Kirby exhausted his administrative remedies under the old program statement. Subsequently, Kirby was told he is not eligible under P.S. 5162.02 based on the Director's discretion. Kirby is challenging the new program statement on the basis that it is unlawful and is an attempt by the BOP to circumvent the will of Congress. SIGNIFICANT NEW CRIMINAL REFERRALS SINCE LAST.MONTH'S REPORT:· FCI Beckley - Fred Brunet, Reg. No. 18375-018, was scheduled to be sentenced for Possession of Contraband (Marijuana, Heroin, Pills) on July 24, 1998. The sentencing has been rescheduled for August 27. The female visitor who brought the drugs into the facility was sentenced in July to 15 months imprisonment. FMC Lexington - On July 2, 1998, William Davis, Reg. No. 11187-058, and James Thornton, Reg. No. 04919-028, were indicted by a Lexington grand jury for Possession of Narcotics. A visitor, Antonio Ferrell, introduced narcotics to Davis in FMC Lexington's visiting room. . FCI Beckley - Brian Clarke, Reg. No. 12541-014, was sentenced on July 27, 1998 to 24 months imprisonment for Possession of Contraband (a weapon) . FCI Cumberland - On July 7, 1998, inmate Mark Bundy pled guilty to Assault with a Dangerous Weapon. The indictment was dismissed against inmate Marcel Washington. These two inmates were originally indicted for Retaliation against a Federal witness and assaulting another inmate on March 11, 1997. FMC Lexington - The u.s. Attorney's Office finally chose to decline prosecution on inmate John Werner, Reg. No. 07251-050, for assaulting an officer in November 1997, during a struggle over a syringe Werner had in his possession. Werner had been continued over a number of grand juries in 1998, before the U.S. Attorney's Office decided to decline, based on the allegedly minor nature of the assault. Werner was subsequently released from our SHU and transferred to MCFP Springfield after Joe Tang, institution attorney, discovered the assaulted officer was uncomfortable with Werner's return o Page 7 MXR Monthly Report to Lexington's open population. SUCCESSFUL PROSECUTIONS OR ANY ACQUITTALS SINCE LAST MONTH'S REPORT: None REHABILITATION ACT: None Ensign Amendment Cases: None Dismissals Under PLRA: FCI Milan - Demma v. Parker, et al - We received a favorable R&R reviewing the case under the PLRA based on the Waiver of Reply. The Court stated under the PLRA revisions to section 1915, the case should be dismissed . . toll. . itJ.£J ..&.p.t.&.C.v.6..m.mi M¥At(ii!( ,c,w:..:J,CMY&.tPJ.M. . Page 8 MXR Monthly Report New Litigation Cases by Institution and Type Received During the Month of July 1998 BIV FTCA HC OTH TOT ALD 0 1 0 0 1 ASH 0 0 1 0 1 BEC 0 0 1 0 1 BUT0 0 0 20 20 CUM 2 0 5 0 7 ELK 0 0 0 0 0 LEX 0 0 0 0 0 MAN 0 0 0 0 0 MEM 0 0 0 0 0 MIL 1 1 1 0 3 MRG 0 0 2 0 2 PET 0 0 1 0 1 SEY 0 0 0 0 0 THA 0 0 0 0 0 TOT 3 2 11 20 36 - Represents both the FCI and LSCI New Litigation Cases by Institution and Type Received Calendar Year to Date BIV FTCA HC OTH TOT ALD. 0 1 1 0 2 ASH 1 0 2 0 3 BEC. 0 0 1 1 2 BUT" 1 0 CUM 3 3 9 20 24 16 -BUT represents both 1he FCI and the LSCI ALD. 2 2 ELK. 2 0 2 2 6 LEX 6 0 0 0 6 MAN 1 2 1 1 5 MEM 1 0 3 1 5 .Corrected figure lease counted twice) MIL 3 3 7 0 13 MRG. 2 0 4 0 6 PET 2 0 3 0 5 SEY 0 0 1 0 1 THA 3 1 5 0 9 TOT 25 9 42 27 103 .Case counted for BEC should have been .. u.s. Department of Justice Federal Bureau of Prisons Dallas, Texas 75219 South Central Regional Office August 5, 1998 MEMORANDUM FOR WALLACE H. CHENEY ASSISTANT DIRECTOR/GENERAL COUNSEL FROM: Michael D. Hood, Regional Counsel SUBJECT: Monthly Report - July 1998 ADMINISTRATIVE REMEDIES RECEIVED ANSWERED JAN FEB MAR APR MAY JON JUL 160 90 180 108 189 141 163 85 197 158 190 138 186 125 AUG SEP OCT NOV DEC TORT CLAIMS FEB MAR APR MAY JON JUL 133 56 33 156 0 156 67 36 187 1 195 52 46 201 1 201 48 45 205 1 193 45 53 185 1 193 47 61 179 1 176 52 54 174 1 JA N FE B MA R AP R MA Y JU JU N L 56 28 28 56 22 56 30 22 54 45 54 43 15 88 70 33 10 21 45 41 21 9 21 42 39 24 9 24 38 46 16 8 JAN PENDING RECEIVED ANSWERED PENDING OVER SIX MO AUG SEP OCT NOV DEC AU G SE P OC T NO V DE C FOI/PRIVACY PENDING RECEIVED ANSWERED PENDING OVER 20 DAYS I LITIGATION 82 15 13 o Page 7 MXR Monthly Report to Lexington's open population. SUCCESSFUL PROSECUTIONS OR ANY ACQUITTALS SINCE LAST MONTH'S REPORT: None REHABILITATION ACT: None Ensign Amendment Cases: None Dismissals Under PLRA:. FCI Milan - Demma v. Parker. et al - We received a favorable R&R reviewing the case under the PLRA based on the Waiver of Reply. The Court stated under the PLRA revisions to section 1915, the case should be dismissed. . Page B MXR Monthly Report New litigation Cases by Institution and Type Received During the Month of July 1998 BIV FlCA HC OTH TOT ALD ASH BEC BUr- CUM ELK LEX 0 0 0 1 0 0 0 1 0 1 0 0 0 20 20 2 0 5 0 7 0 0 0 0 0 0 0 0 0 0 1 0 0 1 1 MAN 0 0 MEM 0 0 0 0 0 0 0 0 MIL 1 1 1 0 3 MRG 0 0 2 0 2 PET 0 0 1 0 1 SEY 0 0 0 0 0 THA 0 0 0 0 0 TOT 3 2 11 20 36 -Represents both the FCI and LSCI New litigation Cases by Institution and Type Received Calendar Year to Date ALD. BIV FlCA HC OTH TOT 0 1 1 0 2 ASH 1 0 2 0 3 BEC. 0 0 1 1 2 BUr1 0 3 20 24 - BUT represents both the FCI and the LSCI ALD. CUM 3 2 9 2 16 ELK. 2 lEX MAN 1 MEM 1 0 2 2 0 0 0 2 6 5 0 3 1 5 6 6 1 1 .Corrected figure (case counted twice) MIL MRG. PET SEY 3 3 2 0 4 0 2 0 3 0 5 0 0 1 0 7 0 13 6 1 THA 3 1 5 TOT 25 9 42 0 27 9 103 .Case counted for BEC should have been