Usdoj Fbop Memo Re South Central Regional Monthly Litigation Rep June 1998
Download original document:
Document text
Document text
This text is machine-read, and may contain errors. Check the original document to verify accuracy.
o U.S. Department of Justice Federal Bureau of Prisons Dallas. Texas 75219 South Central Regional Office July 1, 1998 MEMORANDUM FOR WALLACE H. CHENEY ASSISTANT DIRECTOR/GENERAL COUNSEL FROM: Michael D. Hood, Regional Counsel SUBJECT: Monthly Report - June 1998 ADMINISTRATIVE REMEDIES RECEIVED ANSWERED JAN 160 90 FEB 180 108 APR 163 85 MAR 189 141 MAY JUN 197 158 190 138 JUL AUG SEP OCT NOV DBC TORT CLAIMS PENDING . RECEIVED ANSWERED PENDING OVER SIX MO JUL AUG SEP OCT NOV DEC JU JU L AU G SE P OC T NO V DE C 21 45 41 21 N 21 42 39 24 9 9 JAN 133 56 33 156 0 FEB 156 67 36 187 1 MAR APR 201 48 45 205 1 MAY JUN 195 52 46 201 1 193 45 53 185 1 193 47 61 179 1 JA N 56 28 28 56 22 FE B 56 30 22 54 45 MA AP R 54 43 82 15 R 15 88 70 33 10 MA Y FOI/PRIVACY PENDING RECEIVED ANSWERED PENDING OVER 20 DAYS I LITIGATION 13 . JA N FE B MA AP JU R MA Y JU R N L CASES RECD CASES CLOSED HABEAS CORPUS B:IVENS FTCA 17 4 13 4 0 15 9 9 3 2 19 34 11 1 14 35 8 3 1 10 29 3 4 1 11 28 7 2 2 OTHER L:IT REPORTS HEAR:INGS/ TR:IALS SETTLEMENTS/ AWARDS 0 12 0 1 17 2 2 15 2 2 14 1 2 15 2 0 8 2 0 0 0 1 0 0 6 AU G SE P OC T NO V DE C CASES WITH HEARINGS OR TRIALS Kniaht v. HeftIer. Trial held at FCI Seagoville on Monday, June 8, 1998. Chief Judge Jerry Buchmeyer presided. The case was a Bivens actions stemming from an inmate's alleged food. poisoning. None of the other inmates who testified suffered any illness after eating the allegedly tainted shrimp. In less than two hours, Judge Buchmeyer granted the government's Motion to Dismiss. Plunkett v. Gunja. Telephone conference scheduled. Judge issued no orders or rulings as a result of hearing. FCI Three Rivers inmate contends that he was transferred to the Southern District of Texas in retaliation for litigation filed against the BOP and its employees. The plaintiff also avers that BOP staff negligently forced him to cell with an inmate who threatened to sexually assault plaintiff. CASES WITH SETTLEMENTS OR AWARDS a. Adverse judgments b. Tort Cla~ settlements Norma Carter - FPC Bryan medical malpractice claim was approved by DOJ for settlement in the amount of $150,000. Final paperwork is being currently prepared. c. Other settlements FPC Bryan reports that a settlement agreement has been signed in Ahr v. Reno, H-96-3641 (SD/TX). In exchange for $11,250.00, Ms. Ahr will withdraw above captioned matter and a pending EEO complaint raising retaliation issues. SIGNIFICANT CASES Stephen Casey Blalock v. United States of America,1:98-CV-120-C (ND/TX). On June 3, 1998, Blalock, an FCI Big Spring inmate, filed a civil action challenging the inclusion of his instant offense as a crime of violence in all cases. Blalock was convicted of being in possession of a firearm during and in relation to a drug trafficking crime. Blalock challenges the 5th Circuit interpretation of Venegas. He cites other circuits have followed Downey v. Crabtree and that the 5th circuit interpretation of 3621{e) denies him the opportunity to benefit from an early release following the completion of his SOO-hour drug treatment program. The record reflects that before Blalock entered the SOO-hour program he had been placed on notice that he would not be eligible for early release due to his instant offense. Yuk Runq Tsang v. Bureau of Prisons Office of General Counsel, 1:98-CV-114-C, (ND/TX). FCI Big Spring reports that Tsang has filed this civil action claiming he completed the SOO-hour drug treatment program in 1994. The Bureau was aware Tsang had a detainer lodged against him for deportation before he began the program. The record reflects Tsang entered the program immediately after the designated Residential Treatment Unit was burned during an institution riot. Tsang and other inmates were placed in other units at FCI Phoenix and allowed to complete the program as if they had been assigned to a dedicated drug treatment unit. Approximately two years after completing the SOO-hour program, Tsang was notified his early release to his detaining authority had been revoked. The record reflects this early release was revoked due to Tsang's failure to reside in a dedicated drug treatment unit. Tsang argues this was not his fault. He states he completed the program in good faith. We have found no record Tsang was ever offered the opportunity to return to a Residential Drug Treatment Unit to complete the mandatory stay of 180-days. We are waiting on a decision from the Central Office as to Tsang's eligibility to benefit for this early rele?se. . Len Davis v. BOP. et al., PB-C-97-494 (ED/AR). The Community Corrections Center in New Orleans reports that a death row inmate housed in a state facility refiled a previously dismissed Personal liability claim against a BOP employee. A Motion to Dismiss the new suit on res judicata grounds has already been filed. Reed v. Stone, A-97-CA-899-JN, WDTX. Bivens action against the HSA at FCI Bastrop alleges deliberate indifference in failing to obtain treatment for keloid formations on plaintiff's ear. Defendant's Motion for Summary Judgment granted by court. Jeff H. King Sr. v. Janet Reno, LR-C-98-258/Civil No. 3-94-33. In this FCI Forrest City case, inmate King was convicted of Felon in Possession of a Firearm, Title 18 U.S.C. section 922 (g). The inmate was denied the year off because the offense was determined to be a crime of violence. The inmate challenges this determination. Dr. Omar Tusshani v. USA, is a suit filed by plaintiff against the U.S. Marshals Service and FMC Fort Worth. Plaintiff received significant injuries while housed in a contract detention facility in Wyoming under a USMS contract. He was transferred to. FMC Fort Worth to receive physical th~rapy. This suit alleges plaintiff received inadequate medical care and treatment and, as a result, sustained permanent damage and significantly reduced life expectancy. The administrative claim was in the amount of $15,000,000 and was denied. Brian Maurice Fuller v. USA. This civil action out of FCI'La Tuna alleges plaintiff suffered severe physical injury at FCI Three Rivers to his knee, hip, and back, due to the negligent and wrongful acts of BOP employees. Plaintiff further alleges he was subjected to a delay in surgery and that the rehabilitation following surgery was below the standard of care, causing further damage and resulting in a second surgery. Further, plaintiff alleges he was prescribed a harmful medication. The claim is unclear as to where these allegations took place, but it appears he questions the care he received at FCI Three Rivers, FCI Bastrop, and FMC Fort Worth. He is seeking $3,241,000 in damages. FCI La Tuna reports Westray Daves v. Slade, EP-98-CA-218-H (WO/TX). Inmate Daves challenges the early release policy barring his eligibility because the policy was promulgated after he was sentenced. FTC Oklahoma reports that Steven Sherrod v. Bob Guzik, CIV-97-1530-L. By judgment entered May 28, 1998, the petition for Habeas Corpus was granted, and the matter was remanded to the Bureau of Prisons for further proceedings consistent with the Report and Recommendation and Fristoe v. Thompson F.3d (10 th Circuit, April 28, 1998.) Unit Management is currently-processing the referral for CCC placement. James Burdette Newton v. Federal Bureau of Prisons, 5:98cv194 (ED/TX) - Petitioner contends that he is being wrongfully denied early release from FCI Texarkana because of prior guilty pleas he allegedly made without the benefit of counsel. SIGNIFICANT TORT CLAIMS Anthony Austin (aka Wa'il M. Muhannad) contends staff at .. USP Beaumont failed to provide adequate surveillance equipment in common areas which would protect inmates from physical attacks. He also contends that specific staff failed to supervise the common areas. Mr. Austin contends that a staff member observed the attack, but failed to intervene in a timely manner. Mr. Austin contends that another inmate intervened and stopped the attack, but not until he experienced convulsions and severe lacerations below his chin. He states that he now is suffering nerve damage on the left side of his face and body. The sum certain requested is $25,000.00. (T-SCR-98-099) Ronald Fishman, an inmate incarcerated at FMC Fort Worth, claims liability in the amount of $1,500,000 (T-SCR-98-240). Fishman alleges he was denied access to needed medical care (500-hour Drug Abuse Program), which has caused mental anguish and emotional distress, resulting in depression and inability to sleep. The family of Julian Yarbrough, who died while incarcerated at FMC Fort Worth, claims liability in the amount of $2,800,000. They allege the BOP failed to timely diagnosis squamous cell carcinoma in the neck, which ultimately resulted in Mr. Yarbrough's death. (T-SCR-98 -260) An FPC EI Paso staff member filed tort claim T-SCR-98-239, in which she seeks $250,000.00 for personal injury. She alleges that a staff chaplain fondled her at FCI La Tuna. We understand that she and a female staff chaplain, who alleges being assaulted in a similar manner by the same staff member, have filed EEO claims. Her administrative tort claim was filed by an attorney acting on her behalf. Tomas Zambrano, an inmate housed at FOC Oakdale, alleges that he was injured while playing softball. He contends that a specific Physician's Assistant initially refused to examine him and instructed him (Mr. zambrano) to report to sick calIon the following Monday, May 12, 1997. On May 12, 1997, x-rays were taken and it was determined that the fibula at his right ankle was fractured. Surgery was ultimately performed and $100,000.00 sum certain is noted as damages for the misdiagnosis and malpractice of a displaced fracture of the fibula. (T-SCR-98-148) Inmate Liasse Bazelias contends that staff at FOC Oakdale examined him upon his arrival on November 6, 1996, and determined that he was in "satisfactory medical condition." He alleges that during January 1997, he was treated for a cold and staff inappropriately prescribed a 800 mg. of ibuprofen three times per day, which has resulted in the destruction of his kidneys. He seeks $6,912,000.00 in damages and future medical care. (T-SCR-98-224) Inmate Alfred Green seeks $3,000,000.00 as compensation for deliberate indifference to his medical needs by the medical .. .d epartment and UNICOR staff members at FeI Three Rivers. Inmate alleges he was ordered to push a fork lift up a ramp in UNICOR during 1994, which resulted in right knee, hip, and back injuries. Inmate further alleges there was a long delay in detecting the injuries; medical staff refused to follow recommended treatment; and medical staff refused to provide effective pain medication to relieve his pain. Inmate had two back surgeries and one knee surgery prior to his federal incarceration. He was seen at least 68 times by various medical personnel and evaluated by six specialists. Inmate was also evaluated by USMCFP Springfield. There is no evidence to support inmate's allegation of deliberate indifference. Inmate David Gibson seeks $10,000.00 as compensation for deliberate indifference to his medical needs by the medical department at FCI Three Rivers. Inmate alleges he was sprayed with pepper spray in 1994 while being transported to FCI Three Rivers, and that he did not receive any medical treatment for 72 days. He claims his sight has diminished, he has to wear glasses, and he suffers from dizziness, headaches, and nausea. Investigation revealed a canister of pepper spray accidentally ruptured on an inmate transportation bus while in route to FCI Three Rivers. Inmate was treated upon his arrival at this institution. He was evaluated at least 21 times by various medical department staff and six times by an Optometrist. There is no evidence to indicate medical staff were deliberately indifferent to inmate's medical needs. It is the belief of the medical department that inmate's eye difficulties are a result of his chronic conjunctivitis and not his exposure to pepper spray. SIGNIFICANT ADMINISTRATIVE REMEDIES USP Beaumont reports Remedy No. 161938-F1 in which USP inmate Talbott (fiance of Attorney Helen Wang) challenges the May 15, 1998 rejection of an incoming publication, The FBI Laboratory: An Investigation into Laboratory Practices and Alleged Misconduct in Explosives-Related and Other Cases. The publication was rejected due to its detailed discussions of the ingredients, operation, and construction of explosives. Inmate Talbott alleges the publication is necessary for appeal of his criminal convictions. Inmate John Binar from FCI Big Spring is challenging the Bureau of Prisons' system of determining the rated capacity of an inmate room, in respect to double bunking inmate beds. UPCOMING TRIALS OR HEARINGS None MEDICAL MALPRACTICE - ... it! 15ttiWl i6.5t.h A .Jit.i5.tt.AJ .• !"""",,1l t.tMtt.5$ew.. (UWN#. .1. ,. '." ,iRiP.· . LITIGATION None See significant tort claims - Yarbrough administrative claim. TORT CLAIMS FMC CARSWELL Inmate Norma Nelson - T-SCR-98-261, alleges medical negligence in regard to her partial breast reconstruction surgery having to be reopened to obtain the full margins of the biopsy, resulting in a radical mastectomy. She claims liability in the amount of $6.5 million. ENSIGN AMENDMENT LITIGATION None TORT CLAIM None RELIGIOUS FREEDOM RESTORATION ACT LITIGATION None TORT CLAIM None PRISON LITIGATION REFORM ACT ORDERS None SITUATIONS OF INTEREST FCC Beaumont LOW - On June 9, 1998, following an investigation by Legal Department staff, Attorney Helen Wang was restricted from Complex-wide visitation (legal and social), confidential written correspondence with inmates (special mail), and unmonitored legal telephone calls with inmates. These restrictions were based on Attorney Wang's history of violating Bureau of Prisons rules, most recently of which included paying an inmate at the LOW to solicit inmate clients for her. A complete packet documenting the investigation was forwarded to the Regional Counsel and Central Office, Office of General Counsel. June 23, 1998 - Paul Layer and Darrel Waugh attended the Beaumont City Council meeting to consider the proposed contract for fire protection at the Complex. The contract was approved by a vote of 5-1, and will provide first response fire protection to the Complex until June 30, 2000, at a price of $3000.00 per year. FMC CARSWELL On June 24, 1998, Dr. Kenneth Moritsugu awarded Pins and Boards to PHS officers for their promotions. Wallace Cheney, General Counsel, toured FMC Carswell and FMC Fort Worth on June 30, 1998. FTC OKLAHOMA CITY DOJ attorneys conducted Trentadue plaintiffs' depositions' June 15-19. FCI OAKDALE Inmate Detusch has been deported and is now in the custody of Canadian authorities. CRIMINAL MATTERS AND PROSECUTIONS FCI BASTROP In response to the Warden's concern that the FBI was not helping the BOP in the prosecution of three crimes, the staff attorney spoke to Richard Pittman, the Assistant Civil Chief of the U. S. Attorney's Office in Austin, who pledged to do something about it. The next day the local FBI agent called the SIS Lieutenant, and it now appears that these cases will go forward: Gadusek: Inmate was observed swallowing balloons in the Visiting Room. He was placed in a dry cell, where he passed the balloons, whose content tested positive for heroin. He will probably plead guilty. Ramirez: Inmate threw urine and feces on officer in SHU. Staff witnesses are available to testify, if needed. He will probably plead guilty~ Zuidema: An incoming piece of correspondence was found to contain . LSD. This is the weakest of the three, since it is difficult to prove that the inmate knew the LSD was coming in. FCC BEAUMONT Camp - On June 25, 1998, federal inmate Samuel Flores was sentenced following his plea of guilty to escape from the FCC Beaumont Camp on January 11, 1998. Inmate Flores received an 18 month consecutive federal term of imprisonment, three years supervised release, and a $100.00 special assessment (no criminal fine). Inmate Flores was sentenced by Chief Judge Richard Schell, Eastern District of Texas, Beaumont. Inmate Ruiz, Jose is tentatively scheduled for sentencing on the same charge July 25, 1998. Low - On June 1, 1998, Warden Tombone and Paul Layer met with Mike Bradford, U.S. Attorney, Eastern District of Texas, Michelle Englade, AUSA, and Bob Fortune, Special Agent, FBI, regarding criminal prosecution of Luis Carmona-De La Torre. for assaulting a correctional officer at the LOW. The U. S. Attorney supports seeking criminal prosecution through criminal information, as opposed to a grand jury indictment. USP - On June 15, 1998, former Correctional Officer Jessica Sills pleaded guilty to Providing or Possessing Contraband in Prison (18 U.S.C. § 1791), in connection with an incident where she was paid to supply inmates' in the USP with marijuana. FCI EL RENO June 10, 1998, Assault on Inmate - Staff observed Filiberto Flores and Leonardo Hernandez-Garcia fighting in Unit 4. Prosecution declined due to no serious injury. Warden concurs. FCI FORREST CITY On May 23, 1998, Amador-Rodriguez assaulted the Cook Supervisor by throwing an apple striking the staff member on the right biceps and right eye. While being escorted into the SHU, the inmate began pulling away from the escorting officer. The staff member then regained control and the inmate was placed into a holding cell. The inmate was examined by medical staff and placed into Administrative Detention without further incident. Both staff and the inmate received injury assessments by medical staff with no injuries noted. The FBI was notified and the investigation continues. On May 24, 1998, a unit officer requested medical assistance when she observed inmate Rodriguez-Cortez sitting in the TV room wiping blood from his facial area. A visual search was conducted on all inmates in the unit at which time inmate Earl Marcenus was discovered by staff to have multiple abrasions to the neck and chest area. Both inmates were placed in Administrative Detention without further incident. Both inmates received medical .. assessments by medical staff with injuries noted. notified and an investigation continues. The FBI was On May 26, 1998, the Control Center Officer announced a call for assistance in a housing unit. staff observed inmate Eddie Rhyan staggering toward the officer's station bleeding from his left eye. Inmate Stephen Mitchell was observed yelling to inmate Rhyan that he was going to hurt him (Rhyan). Staff restrained both inmates and escorted them to the institution hospital and then to the SHU. The FBI was notified and the investigation continues. On June 9, 1998, the Community Confinement Center in Houston, TX. Notified FCI Forrest City that inmate soto-Gonzalez failed to report to his scheduled CCC in Houston. The inmate was scheduled to arrive at 8:30 a.m. on June 9, 1998. The inmate was placed on escape status at 4:17 p.m. The U. S. Marshals Service and the FBI were notified. On June 14, 1998, a Food Services staff member observed inmate Javier Ramos lying on the floor of Food Services. Staff further observed inmate Guillen standing over inmate Ramos with a broom handle placed against Ramos' neck applying pressure. Additionally, staff observed inmate Mungia with both his hands placed on inmate Guillen's left and right shoulder. Food Service staff ordered all three inmates to stop and they complied. The three were escorted to Health Services and examined by medical personnel. They sustained minor injuries. After the examination, the inmates were placed in SHU. The FBI was notified and an investigation continues. On June 22, 1998, inmate Arvayo-Castillo entered the Lieutenant's Office and admitted he had been in a physical altercation with an unknown inmate. According to the inmate, he was sleeping and another inmate entered his cubicle and struck him in his head with a foreign object. The inmate was treated by medical staff. He sustained two lacerations to the back of his head and two small abrasions to his back area. The inmate was placed in SHU and the FBI was notified. FTC OKLAHOMA CITY An inmate on staff assault occurred on June 1, 1998, when inmate Bronco, Lucio, while being escorted from R&D to the Special Housing Unit, became verbally abusive and confrontational. Inmate Bronco attempted to pull away from escorting staff and then head butt an officer. Both the officer and inmate Bronco fell to the floor. Accompanying staff gained control of the inmate, and he was escorted to his cell without further incident. Neither staff nor inmate Bronco sustained any injury. The FBI was notified; however, they declined referral for prosecution . .. t. ( 44 i1.£ t tnt..M, .¥.t.3.s.Q:.c.~"i( .....Ml.i.i&UW-*. },t.Q.3.&.tMUJ.t.6,J. . .. ..t.ht.t.i$". 1. A;.. WJ.IJ.JiJ.U.h.IJ.. .ID. ,i .&.C.. " h , k&.wd co The Warden concurs. On June 23, 1998, while being escorted from a housing unit to R&D, inmate Joel Moreno-Olives attempted to strike an escorting officer in the facial area with his elbow. The inmate was taken to the floor, restrained, and then moved on to R&D without further incident. No injuries were sustained by either staff or the inmate. The FBI was notified, but declined referring for prosecution. The Warden concurs. FCI TEXARKANA Staff member pled guilty to the charge of having sex with an inmate and received one year probation. FCI THREE RIVERS The U. S. Attorney's Office will prosecute inmate James Esmedina for possession of marijuana. During a pat search leaving UNICOR, 26.7 grams of marijuana were located in the inmate's possession, The U.S. Attorney's Office will prosecute inmate San Martin Zuniga for possession of narcotics. During a cell search, and subsequent pat search, inmate was found to be in possession of 10 cut up pieces of potato chip bags containing a brown substance. The substance tested positive for amphetamine. Prosecution was declined for staff assault by inmate Gabriel Alarcon. Inmate grabbed staff member's genitalia through food slot in SHU while issuing toilet paper. No injury to staff. Warden concurs with decision. . Prosecution was declined for assault on staff with a weapon by inmate Jesus Fernandez-Delgado. While fighting with another inmate in UNICOR, inmate Fernandez picked up a long handle dust pan, swung it around, and hit another inmate and a staff member. No injuries were sustained. Warden concurs with decision. The following inmates were referred to the U. S. Marshal's Office after they walked away from the satellite camp: Jose Reyes-missing during midnight count on May 23, 1998; Juan Garcia-missing during 4:00 p.m. count on May 30, 1998; Michael Martinez-missing during midnight count on June 6, 1998; and David Cervera-missing during 4:00 p.m. count on June 11, 1998. PERSONAL ISSUES Scheduled Annual/Sick Leave: Mike Hood July 23-24 Annual Leave Lisa Sunderman July 2, 6-10 Annual Leave Marsha Foulks July 6, 10, 13 & 20 Annual Leave Linda Nutt July 6-10 Annual Leave Darrel Waugh July 1-15 Annual Leave Karen Summers July 20-24 Annual Leave Other Scheduled Absences: Julie Gerardi, FCI Three Rivers, will be attending Diversity Management Training at FMC Carswell on July 14-17, 1998. Jason Sickler, SCRO Attorney Advisor, will be located at FCC Beaumont beginning July 19, 1998. The institutions that Jason currently oversees will maintain their working relationship with Jason, to the extent possible. Jason will be greatly missed. "Mike Hood and Lisa Sunderman will be attending the Legal Conference the week of July 27, 1998. Marsha Foulks will be acting Regional Counsel during their absence . .. : \GROUPS\DRLEGAL. HONTIl. il1T 1.11 i. 4.£66 11 li6 ... t.J.tv...X,:;.&. ..iwat.t. o.. ::v.(Q.Q.w w:v:w:v::MQMXMMiM. !! .'.Q.J.&.vn h .. ."A( i.e.G . .. UNITED STATES GOVERNMENT memorandum Northeast Region, Philadelphia, PA FEDERAL BUREAU OF PRISONS July 15, 1998 MEMORANDUM FOR WALLACE H. CHENEY, GENERAL COUNSEL FROM: SUBJECT: Henry J. Sadowski, Regional Counsel Monthly Report - June 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 0 FEB 91 155 100 146 0 MAR 146 187 171 162 0 APR 162 188 183 167 0 MAY 167 187 174 180 0 JUN JUL AUG SEP OCT NOV DEC 180 172 207 145 0 B. Administrative Tort Claims - 1998 Pending on 1st Rec'd in month Recons. rec'd Ans'd in month Pending at End Over 180 days JAN FEB MAR APR MAY JUN JUL AUG SEP OCT r: 236 262 261 283 320 348 77 73 92 73 60 64 2 3 4 3 1 0 54 76 73 40 33 93 262 261 283 320 348 319 0 0 0 0 0 0 C. Tort Claim Investigation Status: pending ... ~,lEC As of June 30, 1998 ALF ALM ALP ALW BRO DAN FAI FTD LEW LOR MCK NYM OTV RBJ( Self 2 1 10 0 6 7 6 15 12 0 7 7 5 16 7 . D. FOI/Privacy Act Requests - 1998 JAN FEB MAR APR MAY JUN JUL AUG SEP OCT NOV DEC 32 32 9 15 Pending on 1st 37 13 41 31 Rec'd in month 34 28 32 38 41 59 Ans'd in month 58 35 29 21 4 32 9 15 32 Pending at End 13 1 1 0 1 0 1 Over, 30 days E. FOIA Requests for records: As of June 30, 1998 ALF ALM ALP ALW BRO DAN FAr FTD LEW LOR MCK NYM OTV RBK SCH Pending 1 0 1 3 0 4 0 2 1 0 0 2 0 0 0 Over 20 days 0 0 0 0 1 2 0 0 1* 0 0 0 0 0 0 *This file has not been received from archives. II. LITIGATION 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 13 15 21 24 19 13 7 13 13 15 6 5 4 1 2 3 1 4 4 1 3 1 3 2 1 3 1 0 2 4 2 2 0 2 9 10 9 8 10 10 5 26 7 12 5 66 ° ° B. SETTLEMENTS AND AWARDS: 1) Administrator of the Estate of Robert Bates v. United States, Civil No. 97-0048, E.D.Pa. Inmate died of a coronary at FCI Fairton. During discovery, new facts were revealed indicating that settlement was in the best interest of the Bureau of Prisons. This FTCA wrongful death originally sought $250,000.00 in damages. The case settled for $150,000.00. ~ 2) Rogers v. MCC, et al., 96 Civ. 6811 (S.D.N.Y.) ~ ,.,. .:.("'" e' ,,,,. "" ... '" , 6yit aga:y;sc three p~sician and one cook supervisor. Plaintif~Aclaims he l~Jured his eyes with a degreaser solution while cleaning the stove in fooq.~sl'lervices, as part of his job. The parties agreed to settled thi~tlaim for $2,500.00, which sum shall be in full settlement of any and all claims against the individual defendants, the United States, MCC, or any department, agency, present or :ormer agents, officer or employee of the United States. Pro ~ f~;fft:: i.~~~t~ :t1ed a~ant$ W4AiMM ... m.t . ... kQi ;; ,u .I&ii":.a .ki.i. &J';IG.~ ,UQ".. J?4EMd.z,Q'Q%'Q,JGA iM.l&.S ,:;mMt . . . (Z... .. , . .c."'.::vili::&.(.... . «iRa i . J t. (3 i HZ. . C. SIGNIFICANT CASES, TRIALS or HEARINGS: 1) Nicholas LaSorsa v. Fredrick Menifee, 97 CV 4827 (S.O.N.Y.). In an exercise of its discretion, the Bureau of Prisons denied Inmate LaSorsa early release because he received a two-level enhancement for possession of a firearm. Although Inmate LaSorsa successfully completed a drug treatment program, the Court ruled that 18 U.S.C. § 3621(e) (2) (B) and 28 C.F.R. § 550.58 do not in any way limit the BOP's discretion to deny early release to prisoners otherwise eligible for release. The Court stated the BOP's decision to deny early release was a rational exercise of that discretion. 2)U.S. v. Gregory Scarpa, Jr., S8 97 Cr. 786 (E.D.N.Y.) On May 28, 1998, MCC NY received a "so ordered" subpoena from the attorney for inmate Gregory Scarpa, Jr., Register Number 10099-050. The subpoena sought relevant documentation and information which would identify the cell location of Gregory Scarpa, Jr. and those inmates housed on the same tier as inmate Scarpa. The subpoena sought information implicating the WITSEC program. A status conference was held on June 9, 1998, before Judge Raggi, to discuss MCC New York's compliance with and objections to the subpoena. Clinton Stroble represented the MCC at this hearing. At the end of the hearing, Judge Raggi requested that MCC clarify several discrepancies in the responsive document sent to Scarpa's attorney and to provide additional information responsive to the subpoena. 4)U.S. v. Anthony Martinez, CR-97-725 (E.D.N.Y.) On June 5, 1998, former Unit Manager, Anthony Martinez, was convicted of three counts of Bribery, in violation 18 U.S.C. §201, and one count of Attempting to Provide Heroin to an Inmate, in violation of 18 U.S.C. §1791. Sentencing is pending. 5) Brown v. Morton, CV-95-2881 (D.N.J.) On June 5, 1998, a teleconference took place been inmate Orson Brown, AUSA Kevin Mulry and Staff Attorney Azzmeiah Vazquez. Inmate Brown filed a Bivens action in 1995 alleging failure to protect issues when he was assaulted by inmate Anthony Glass on the unit. Magistrate Judge Gold ordered Moe to provide inmate Brown with information regarding instances where various named defendants were the subject of a grievance, complaint or disciplinary action with respect to assault, failing to intercede to stop an assault; failing to properly supervise with respect to such actions; interrogatory answers from various staff with respect to what they knew about the Glass' medical care and whether or not he posed a threat to other inmates or staff; and any administrative, medical and screening information regarding inmate Glass. i ; !!l.i.itt ti.2 .. .t.dttiJl&.& iii t..mWJ.MM ..swaMP 1 $,U.uI6.&.x:£i . qu.. ,. i t , [$.Q,,(QQUI .. . ...k . .. ..... .'MAth .. ..... .. . aU,S.4h .. ... . .MV.3. iQSMlUXWMN4MW.\/: 6)United States v. Pellulo: Crim. No. ----- (E.D.Pa.) On June 17, 1998, Bobbie Truman, Attorney and Joe Guidoness, Case Manager (FCI Fairton) and Gene Dixon, Paralegal (FCI Schuylkill) attended a hearing on a motion filed by inmate Leonard Pellulo, 44140-066 challenging the use, in a criminal prosecution, calls recorded on inmate phones. Inmate Pellulo challenged whether he knew the phones were monitored and also claimed that an inmate in the Bureau of Prisons can not make unmonitored telephone calls to his attorneys. He further asserted that he would announce over the monitored lines that.the call was to his attorney and that announcement should evoke the attorney client privilege. Judge Robreno has taken this matter under advisement. 7)United States v. Hammer, Crim. ----- (M.D.Pa.) 'G . The trial of David Paul Hammer, Reg. No. 24507-077 concluded abruptlY when he plead guilty to the indictment. The death penalty phase of the prosecution began on June 30, 1998. Attorneys Tim Roberts and Nellie Torres have been assisting and attending the proceedings, when possible. UPCOMcrNG HEARINGS - None Scheduled D. RELIGIOUS CASES: - No new activity E. ENSIGN AMENDMENT CASES: No new activity F. PLRA 1915 DISMISSALS: None III. TRAVEL AND LEAVE SCHEDULE FOR JULy 1998: Hank Sadowski -Travel - July 27-31 National Legal Training Annual Leave - None Scheduled Mike Tafelski -Travel - July 27-31 National Legal Training Annual Leave - July 13-17 ... ..LXi Toni Brown - Travel - None Scheduled Annual Leave - None Scheduled Les Owen - Travel - None Scheduled Annual Leave - None Scheduled Ron Hill - Travel - None Scheduled Annual Leave - None Scheduled James Vogel - Travel - None Scheduled Annual Leave - July 30, 31, 1998 CAb. .. cu.Jt... .£,t. :; .. n=>. $.w.w.MMi4W&¥MM..tA.&..2Q&44&¥4M««. ....43", .."." ... 3 J" "'.''''".uP.¥!!'.JMMlk4.MI&@@( .M.M?i6¥ .. .. UNITED STATES GOVERNMENT memorandum Date: August 5, 1998 Attn of: Sherree L. Sturgis, Regional Counsel, Southeast Region Federal Bureau of Prisons, Atlanta, GA 30331 Subject: Monthly Report - July 1998 Reply to To: Wallace H. Cheney, General Counsel and Assistant Director, Federal Bureau of Prisons Washington, D.C. 20534 I. ADMINISTRATIVE LEGAL ACTIVITIES - SUMMARY REPORT A. Administrative Tort JAN Pending on 1st Rec's in month Recons. rec'd l\ns'd in month ndinq at end Jer 1RO days B. Tort 39 0 22 117 6 Cla~ ATL Cla~s - 1998 FEB MAR APR MAY 113 :) ~) 69 88 69 89 63 3 4 4'1 1,4 r- -) 1 1 Ii 3 107 1 1(1~ 38 " F, .1,,-- JUN 104 36 1 a 3 'In 58 1 11 101 F_ 3 :)4 88 0 c, i Investigation Status: c E E F. 0 [J G .' (; II A I. (; r. T PENDING 1f1 r • 0 1 (1 1 4 >60 DAYS 10 0 () (I n () J E S 4 1 JUL 101 74 MIM M AUG SEP NOV OCT As of July 31, 1998 MNA MON PEN TAL ,. 't'/\:: " I A I, :' DEC 88 . f) q 1 n 4 ' () (1 (1 (1 F_ " n C. FOI/Privacy Act Requests - As of July 31, 1998 'JAN on 1'" month month at end Over 30 days Pending Rec'd in Ans'.d in Pendinq FEB MAR APR MAY " 18 111 ..,,, '-, 1q 14 14 26 2' - 21 1" 41 1 ,) J f, " ,'. 1 ') 21 10 24 4 q IH ;' 1 4 ) D. FOIA Requests for records: ,WN 15 .JlJL 24 31 24 14 n 7 n 2 q AUG 27 :;EP As of July 31, 1998 t" .-: " :r .. SER Monthly Report - August, 1998 Page 2 AT COL EGL EST GUA JES MIA MIM MNA MON PEN TAL 3 0 0 0 2 2 1 0 0 0 0 0 L 0 0 0 0 0 0 0 0 1 L PENDING >30 DAYS II. 4 0 .., TDG YA Z 1 0 0 0 LITIGATION ACTIVITY - 1998 SOUTHEAST REGION A. SUMMARY REPORT Cases Open New Cases Habeas Corpus FTCA Bivens Other Bivens/FTCA Lit Report.~ Cases Closed JAN FEB fvlAR APR MAY JUN JUL AUG 522 16 10 5IS 525 18 535 537 15 542 10 539 531 6 1 ,) ~- 1 15 6 5 1 () 6 1 <- 8 2 5 0 0 () 0 0 0 8 0 2 0 0 11 1 2 ') ') 0 77 9 8 5 13 0 0 1 9 ..., ..., <. <- 5 ') SEP OCT NOV DEC 11 4 0 0 5 14 B. SETTLEMENTS AND AWARDS: Pamela Ruth Chilton, et ale v. United States, 4:96-CV-2533 COP (E.O. Missouri) Trial was held in this case where the inmate committed suicide at FCI Jesup shortly after arrival and his prescription for was changed from Xanax to Lorazepam. The court found that the Government was negligent and awarded damages to the plaintiffs in the amount of $781,000. This consisted of $725,000 lost income, $50,000 intangible value and $6,000 funeral expenses. Sulayman v. U.S., FGAS, 297-118 - Settled for $55,000 dt settlement conference on 7-15. C. SIGNIFICANT CASES, TRIALS or HEARINGS: Salvador Magluta V. F. P. Sam Samples, et al., App No. 07-~417 (11'1. Cir.) The defendants reply brief was submitted to the court, cH(Juing that the district court's dismissal of the plaintiff's Rivp~~ action on the basis of the fugitive from justice doctrTru~ls permissible and should be upheld. Maria Simon, OOJ Appelldte Attorney, prepared and filed the brief for the defendant~:. We await the court's decision. . SER Monthly Report - August, 1998 Page 3 D. RELIGIOUS CASES: E. ENSIGN AMENDMENT CASES: F. PLRA 1915 DISMISSALS: NONE G. CRIMINAL CASES: No significant cases to report. III. TRAVEL AND LEAVE SCHEDULE FOR August 1998: Sherree L. Sturgis Travel None Annual Leave - None Van Vandivier Travel - None Annual Leave - August 17, 25-31 Earl Cotton Travel - August 30-Septernber 2, CSRE training Denver Annual Leave - None Jeffrey Sugg - Honors Attorney Travel - None Annual Leave - None Gere Gooden Travel - None Annual Leave - August 10 Loretta Rich-New Paralegal Trainee Travel None Annual Leave - None Beverly Snell - Legal Intern Travel - 8-20-21 Assist AUSA Porto v. US, FFLS " SER Monthly Report - August, 1998 Page 4 Annual Leave -August 14 IV. Other Matters Orientation for new wardens, 7-13 by Sturgis & Vandivier cc: Regional Director and Deputy Regional Director, SER All Regional Counsel "and Associate General Counsel o U.S. DEPARTMENT OF JUSTICE Federal Bureau of Prisons North Central Region Office ofRegional Counsel Kansas City, KS 66101 August 7, 1998 MEMORANDUM FOR WALLACE H. CHENEY, ASSISTANT DIRECTOR GENERAL COUNSEL & REVIEW FROM: JOHN R. SHAW, Regional Counsel SUBJECT: MONTHLY REPORT (July, 1998) LITIGATION. CLAIMS. AND ADMINISTRATIVE REMEDY STATISTICS LmGATION: Inst nurn hc ftc blv oth ans pen cld hit set awd NCR 47 31 4 9 3 28 429 29 22 1 0 AUG SEP NUM - Number of total lawsuits filed In the month (1) HC - Number of habeas corpus actions filed In the reporting period FTC - Number of FTCA actions filed BIY - Number of Bivens actions filed OTH - Number of other actions filed, e.g., mental health, mandamus ANS - Number of IIUgatlon reports completed PEN - Number of cases pending CLD - Number of cases closed HIT - Number of hearings or trials (Include In narrative) SET - Number of settlements (Include In narraUve) AWD - Number of Awards (Include In narraUve) *Number of open cases on LMS. ADMINISTRATIVE CLAIMS: JAN FEB MAR APR MAY JUN JUL 61 50 66 81 56 . 98 Total for Calendar Year 486 Pending 273 74 OCT NOV DEC ADMINISTRATIVE REMEDIES JAN FEB MAR APR MAY JUN JUL 184 170 210 249 202 241 198 AUG SEP OCT NOV DEC Total for Calendar Year 1454 FREEDOM OF INFORMATION ACTIPRIVACY ACT REQUESTS FOIA PRIVACY ACT ACTUAL ON-HAND 31 8 ACTUAL RECEIVE D 62 11 ACTUAL PROCESSED 66 10 4 4 ACTUAL BACKLOG Backlog represents those requests which have not been responded to within the twenty work days target set by DOl ADVERSE DECISIONS None. SEITLEMENTS OR .nJDGMENTS Sartin y. United States, Case No. 97-2780, (W.D.Tenn.) USP Marion This case was recently settled for $12,000. The case involved a visitor who sustained injuries when a chair collapsed in the FPC Marion visiting room. The AUSA did not obtain the concurrence of the BOP prior to settling this case. Lumpkin v. Knowles, Case No. 97-X-0033 (D. CoL), USP Florence District Court directed BOP to make a copy of telephone conversation on cassette tape and provide declaration as to its authenticity. Lumpkin is to provide address where tape will be sent and will pay costs of copying/mailing. BOP also directed to preserve master reel if Lumpkin pays cost of replacement (approx. $120). If Lumpkin has not paid to replace master reel by August 6, order to preserve master reel will be vacated. McCarthy y. U.S.. et al., Case No. 95-Z-320 (D. Col.), ADX Florence On July 14, 1998, a settlement was reached when the plaintiff agreed to dismiss his complaint without prejudice due to the fact that he is currently receiving assistance from KU Defender Project In exchange, BOP will provide a declaration to plaintiffs counsel as to unavailability of Florida materials in BOP facilities. . Monthly Report August 1998 Page 3 DECISIONS OF INTEREST Panops y. Pitzer, 1998 WL 416888 (7th Cir. (Wis.», FCI Oxford Seventh Circuit found that Felon in Possession of a Firearm. was a crime of violence for purposes of 18 U.S.C. 3621(e)(2)(B). Copley V. Keohane, 1998 WL 410067 (8th Cir. (Mo.», USMCFP Springfield Court held that since inmate was no longer in the custody ofthe BOP and instead under the supervision of U.S. Probation, the petitioner's habeas action was moot PENDING CASES OF INTEREST Johnson y. United States, Case No. 96-C-S708, N.D. IlL, MCC Chicago After inmate committed suicide, his estate sued claiming BOP's negligence led to death. During recent settlement conference, administrator of estate asked for $800,000. AUSA responded with an offer of $1 0,000 in nuisance value. Massey and Otten v. David Helman. et al., Case No. 97-1401, C.D. IL, Fel Pekin Pursuant to Rule 23, Fed. R. Civ. P., Plaintiffs brought a Motion for Class Certification. Plaintiff Massey alleged that because it is institutional policy to deny necessary medical care to inmates, he was denied the prescribed medical treatment for an existing hernia, a violation of his Eighth Amendment right to be free from cruel and unusual punishment. In addition to his individual claim, PlaintiffMassey sought class certification on behalf of other inmates who were denied medical treatment. Plaintiff Otten was a fonner staff physician at FCI Pekin prior to his tennination during March 1998. Plaintiff Otten alleged that he was terminated for insisting that his patients receive necessary medical care as required by the Eighth Amendment and because he spoke freely with the inmates about the necessary medical care being denied to them. In addition to Plaintiff Otten's individual claim, he brought action on behalf of his former FCI Pekin imnate patients. In an Order dated July 7, 1998, the Court denied the Motion because Plaintiffs failed to meet the first of four pre-requisites to certify the class; numerosity. Gonzalez y. Cambiazo. Dert aDd Kuzinld, Case No. 97-8-2639, D.Cot, FCI Florence Inmate alleges he was assaulted by these three defendants on 12/1/97. The inmate specifically alleges that staff removed his wheelchair and walker from his cell, resulting in inability to ambulate around the cell. The inmate alleges that the officers then kicked plaintiff, injuring his legs and shoulder. He is seeking $1 million in damages and a transfer to a "hospital." BQyce y. Hershberger, Case No. 983238-GTRV, D.Kan., NCRO Convicted spy Christopher Boyce has filed suit in the District of Kansas alleging that his constitutional rights were violated when he was transferred from a state facility in Minnesota to ADX Florence. Boyce is represented by counsel in this matter and claims that he was transferred solely because of articles he wrote that were critical of the BOP and members of the Aryan Brotherhood. A current BOP staff member testified on behalf of Boyce during his last parole hearing and assessed that Boyce was best suited for confinement in an FCI, not a maximum security prison. NCRO legal staffwill be providing the U.S. Attorney's Office with assistance. . Monthly Report August 1998 Page 4 RELIGIOUS FREEDOM RESTORATION ACT CASES Houston y. Brooks, Civil No. 97-2081, D. Minn., FCI Sandstone Private counsel is in the process of interviewing various staff members regarding their actions in this case. The defendant claims his rights under RFRA were violated when he was placed in administrative detention for making inflammatory remarks about Caucasians. The U.S. Attorney's Office filed a motion to dismiss on behalf ofthe defendants in their official capacities. HEARINGS AND TRIALS None. upCOMING BEARINGS OR TRI~S Bernal y. Black & Lewis, Case No. 96-1209, CD Ill., FCI Pekin Plaintiff alleges two staff initiated disciplinary action him in retaliation for complaining about conditions at the commissary. Trial scheduled to begin Monday, August 31 , 1998 in Peoria Locascio y. Keohane, WD MO, MCFP Springfield Plaintiff, an organized crime figure, filed for a temporary restraining order requesting release from Administrative Detention. The inmate was placed in SHU after information was received that a contract bad been placed on his life. Judge Clark has scheduled a hearing regarding this matter for August 19, 1998. CRIMINAL MATTERS USA y. JOHNSON, Case No. 96-CR-379, N.D.In., MCC Chicago On July 27, 1998 Johnson was formally sentenced to two concurrent death sentences. The judge requested that Johnson be allowed to stay at the MCC for 14 days so he could have the opportunity to visit with family members. USA y. Leo ALVAREZ D.Col., USP Florence Inmate pleaded guilty to introduction of contraband (heroin) and was sentenced to 27 months consecutive to his current term of imprisonment. USA v. Jack COOK, D.Col., FCI Florence Inmate charged with one count ofassault on staff (Correctional Counselor) and pleaded guilty. The inmate was immediately sentenced to one year, consecutive, during proceedings before Magistrate Borchers in ADX Courtroom on July 14, 1998. USA y. Jimmy COUCH, D. Col., USP Florence Inmate charged with possession of contraband (drugs). The inmate pled guilty at proceedings on July 24 before Magistrate Borchers in ADX Courtroom and was immediately sentenced to six months each on two counts, consecutive to each other and to all other sentences. .. ,. . Monthly Report . August 1998 PageS USA y. RIDDLE and BLACK, D. Col., USP Florence Giglio information turned over to USAO. It appears inmate will plea to second degree murder in order to avoid being tried for capital murder. PERS~LISSUES Vince Shaw will be starting at the Attorney-Advisor at FCI Oxford this month. Tracy Knutson, Honors Attorney, assumes duties at the NCRO August 17, 1998. Legal Intern Lisa McKnight returns to UMKC School ofLaw and will begin working part-time. STAFF TRAVEL AND LEAVE John August 21-28 AIL Daryl August 24-25 FPC yankton Dan August 26-27 August 28 CMC Training AIL Gwen August 7 August 30 - September 2 AIL Denver - Sentencing Tng Vince August 28 Last Day at NCRO Tracy None Scheduled LeeAnn None Scheduled Janet None Scheduled Lisa None Scheduled Beth None Scheduled Tort dBASE Files sent via e-mail to Delores Johnson, OGC, on 07/31/98.