UNITED STATE
Mid-Atlantic Regional Office, Annapolis Ju

DATE:
REPLY TO Bill Burlington, Regional Counsel
AnN OF: Mid-Atlantic Region
SUBJECT: January 1997 Monthly Report
TO:
AnN:

Wallace H. Cheney, General Counsel
Nancy Redding, Executive Assistant

ADMINISTRATIVE REMEDIES

JAN

Received
Answered

140
178

TORT CLAIMS

JAN

# Pending
# Received
# Answered
# Pending
# Over Six Month

213
37

FOI/PRIVACY

JAN

# Pending
# Received
# Answered
# Pending
# Over 30 Days

66
36
62
43
23

LITIGATION

JAN

FEB

MAR APR MAY JUN

JUL

AUG SEP

OCT

FEB

MAR APR MAY JUN

JUL

AUG SEP

OCT

FEB

MAR APR MAY JUN

JUL

AUG SEP

OCT

FEB

MAR APR MAY JUN

JUL

AUG SEP

OCT

64
180
4*

Cases Pending
265
New Cases Received
25
Habeas Corpus
16
Bivens
5
FTCA
2
Other
2
Cases Closed
11
Cases Pending
251
Lit Reports Completed
19
Cases/Hearings or Trials
1
Settlements/Awards
3
$ Settlements/Awards
$95
($ in Thousands)
*We are in the process of obtaining settlement approval from the Central Office for two of these claims. The remaini
claims are awaiting signed settlement agreements after proceeding to court.

ITEMS OF INTEREST, PERSONAL LEAVE, BUSINESS TRIPS, MOVES, ETC.
Bill Burlington, Regional Counsel, will be in the Regional
Office February 3-5, 1997. He will be on annual leave
February 6-26.
We are delighted to announce the selection of Kathleen White.
FCI Otisville, as the new Paralegal Trainee in the MidAtlantic Regional Office. Kathleen is currently the Secretary
for the Associate Warden. We expect Kathleen to report for
work in MARO in April.
We also want to congratulate Rick Schott, Attorney Advisor, on
his well-deserved promotion to GS-14, Senior Attorney at Terre
Haute. Rick has done a tremendous job overseeing a very
capable. efficient legal office in a difficult institution.
We congratulate Mike Bredenberg on his temporary appointment
as a Special Assistant U.S. Attorney for mental health
commitments at FCI Butner. These hearings are conducted via
videoconference linkage between a conference room at FCI
Butner and the court room in Raleigh. Three hearings were
held during the month of January.
Michelle Fuseyamore, Attorney, FCI Butner, will be the acting
Executive Assistant at the FCI from January 27 through
February 5, 1997.
Mike Bredenberg, Attorney, LSCI Butner, will be the
Institution Duty Officer February 11-18, 1997.
Rick Schott, Attorney, USP Terre Haute, will be on annual
leave February 24-18, 1997.
Debbie Munson, Attorney, FCI Beckley. will be in annual
training February 4-7, 1997.
Mike Robar, Paralegal, FCI Manchester, will serve as a member
of the Operational Review Team for HRM, Employee Development
and Affirmative Action the week 0 February 3, 1997.

SITUATION OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS
WASTE SITES, ETC.:
Ensign Amendment: We have now responded to our TRO request out
of Cumberland seeking to block the Bureau's implementation of
the Ensign Amendment. Per instructions from the Legislative
and Correctional Issues Branch, we took the position that this
is what Congress said and this is what we are doing to
implement the will of Congress. We did not go into an
extensive defense of the bill. The AUSA assigned to this case
was very troubled by our approach and wanted to vigorously
defend Congress. Given these discussions and his threat to go
to the Department, I suggested to Joyce Zoldak that we make
sure the Department is in agreement with the approach we are

taking. I note that a New York District Court has struck down
on First Amendment grounds a similar law which affected the
military.

Butner Hospital Update: We learned in January that the
activation date for the new Butner Complex Hospital has been
pushed back to 1999. Construction delays were cited as the
reason.
Litigation by Freemen/Militia Inmates: We have our first
lawsuit by "Freeman" inmate Darvin Lawson (FPC Seymour
Johnson). The complaint is a request for a writ of mandamus
and is filed in the Supreme Court of Ohio. In essence, it is
a petition asserting that the sentencing court had no
jurisdiction over Mr. Lawson. It has been filed against the
sentencing judge, prosecuting Assistant U.S. Attorneys, and
former Seymour Warden, John LaManna. The court sua sponte
dismissed the case by order dated January 13, 1997.
Coincidentally, Kevin Walasinski informed me that "Freemen"
inmates at Milan have started filing liens in Washtenaw
County.
FCI Milan - Kevin Walasinski has been invited by the U.S.
District Court, E.D.Mich., to make a presentation on the PLRA.
This presentation is scheduled for April 11, 1997. and
attendees will include District Court Judges, their staff
attorneys, and representatives from the U.S. Attorney's
Office.

FCI Morgantown - McNeal v. Barrett. et al. - we are in the
process of discussing with the AUSA assigned to this FlCA case
the feasability of raising the discretionary function
excemption. The inmate alleges he contracted TB while at
Morgantown, that BOP's testing procedures are erratic and
Morgantown failed to isolate inmates with TB. Although the
inmate had a positive PPD, on x-ray he was found not to
actually have TB. There have not been any cases of TB at
Morgantown. Based on the facts of the case and the strong
defense the government has available, in that the inmate does
not have TB, we may not need to raise the discretionary
function exemption. We are aware that Department approval is
required for making this argument.
SUBSTANTIVE PLEADINGS (COMPLAINT, MOTION FOR SUMMARY JUDGMENT,
ETC.): None
SETTLEMENTS:
Leacock v. Reno (EEO suit - FPC Alderson): We were successful
in settling this EEO suit (African American physician
discharged from Alderson claims race was the motive) for
$65.000. This case was tried by a jury in November, with the
jury awarding the phYSician $30.000. The judge indicated he
felt the jury verdict was against the weight of the evidence,
but then hesitated to grant our motion for a new trial. He

urged settlement at a figure one half the amount we would have
been forced to pay, considering attorney's fees and costs. We
were able to include a provision that there was no admission
of discrimination in this settlement.
Fitzpatrick & Oliver v. USA (FPC Millington): We were
successful in reaching an agreement to settle these inmate
driver auto accident cases for $16,987 and $12,773
respectively. We are presently waiting for the signed
settlement agreements. This case invovled an inmate driver who
while speeding, rear-ended another vehicle. The inmate was
cited by the police for following too closely. The court
(Judge McCalla) made it extremely clear that he felt the
government was at fault and should settle these cases. We
were able to reach what we think were very reasonable
settlement figures with both plaintiffs.

ADVERSE DECISIONS OR SIGNIFICANT DECISIONS:
FCI Memphis - Rowland v. US, 96-2009 - On December 31,1996,
the District Court entered an Order requiring the Bureau of
Prisons to recalculate petitioner's sentence in a manner
consistent with the Order (the Court's intent was to release
petitioner immediately). Our concern is that the Court
arrived at this conclusion by focusing on the inmate's
proposed release date, rather than his offense date, to
determine whether old law or new law applied and whether
petitioner should be subject to supervision by the Parole
Commission.
FCI Milan - Lindow v. US, 95-CV-76175-DT - the Judge denied
the government's motion to dismiss for lack of jurisdiction
based on failure to file within six months of the final
determination letter. The Court interpreted the Houston v.
Lack "mail box" rule as applying to FTCA. This is an FTCA
case involving an alleged failure to protect an inmate who was
assaulted by other inmates.

Fel Ashland - Alpert v. BOP. et al. - We received an adverse
decision in this 2241 petition. The petition sought jail time
credit for 75 days. The facts are extensive regarding his
sentence computation, but the heart of the decision involved
the administrative remedy program. In 1992 while confined at
FCI Texarkana, Alpert filed an appeal regarding the 75 days at
issue in this case. The remedy was denied at both the
institution and regional level, but was granted at the BP-11
level awarding Alpert the 75 days. The institution disagreed
and according to a memorandum in the file the Central Office
agreed to amend their decision denying the grant of the 75
days. However, an amended decision was never issued, and
Alpert was released in 1993. In 1995 Alpert violated and was
confined at FCI Ashland. He then learned that the 75 days
previously credited to his sentence had been removed. Judge
Wilhoit ruled that the crucial fact in this case was the fact
that no amended decision was issued and that BOP staff failed

to pursue one. Consequently, the Court held that the Central
Office decision in 1993 bound us. The Court stated to hold
otherwise would render the administrative appeal process
meaningless.

FCI petersburg - Fuller v. Moore, Jude Mergihe, in an order
filed January 7, 1997, granted inmate Fuller's petition under
3621 (e) in part. Section 9 of BOP's Program Statement which
categorically excludes from consideration for sentence
reduction those inmates who received a base offense-level
enhancement under U.S.S.G. 20.1 (b) was declared void and the
inmate was declared eligible for early release. The court
adopted the reasoning in the 9th Cir. Downey decision. The
Court remanded the case back to the BOP to make any further
discretionary decision consistent with the reasoning of its
decision. The AUSA has recommended appeal. We will be
forwarding a recommendation against appeal based on
information that the new Program Statement will cure the
conduct versus conviction issue raised by Down. Fuller's
offense is drug conspiracy under section 846. He is currently
at Butner with a projected release date of November 25, 1998.
FCI Ashland - Michelle Murray v. BOP. et al. - On January 28,
1997, the Sixth Circuit affirmed the decision in this case.
Inmate Murray is a transsexual who alleged staff sexually
abused and assaulted him. One defendant was tried on the
sexual assault charge before a jury, which found him not
guilty. Inmate Murray is no longer incarcerated and we do not
anticipate a petition for certiorari being filed.

UPDATE ON CASES, TRIALS OR HEARINGS, ETC. NOTED IN PRIOR
REPORTS:
FCI Memphis - Temple v. USA, 95-2707 -GN - A hearing was held
on Friday, January 31,1997, because the Judge had some
questions regarding the facts of the case. This case involves
a habeas petition regarding sentence computation. In addition
to answering the Judge's questions, the government was also
permitted to argue the merits of the case (failure to exhaust
and no credit against federal sentence for credit already
granted against a state sentence). However, there is a catch
in this case. In response to a state court order which
instructed that Temple be delivered to the custody of the
federal government, Temple was delivered to CCA Mason,
Tennessee (a private prison). This transfer did not involve
the U.S. Marshals Service.
REPRESENTATION NOT RECOMMENDED FOR STAFF: None
SICNIFICANT FTC A CLAIMS:
FPC Millington - Inmate Okie Littrell, Reg. No. 13227-075, is
represented by counsel and has filed an administrative claim
seeking $300,000. Our response is due March 4, 1996. Mr.
Littrell states he began to complain of throat pain to staff

at FCI Oakdale in March of 1991, and his condition continued
to deteriorate. He states he was transferred to USP Marion
and his throat pain still went untreated. He claims that he
was finally diagnosed with throat cancer while housed at FPC
Millington in September of 1994. The claim was reviewed by
the Clinical Director at FMC Ft. Worth. The conclusion at
this point is that the throat condition was misdiagnosed as an
infection, and treated with antibiotics and antifungals,
without further inspection, over a long period of time. At
present, the medical record has been submitted for Central
Office medical review. We await their evaluation of our
liability in this matter.

MEDICAL MALPRACTICE CASES UPDATE: None
SICNIFICANT ADMINISTRATIVE REMEDIES: None
NEW RFRA CASES AND UPDATES ON PREVIOUSLY REPORTED CASES:
FMC Lexington -Inmate Murphy, Reg. No. 04794-027, filed a BP9 challenging the Warden and RFRA committee's decision to deny
him permission to have tarot cards in his personal property.
We have offered to purchase the cards and have religious
services hold the cards and make them available when Murphy
practices his Wicca religious rituals. BOP policy clearly
gives the Warden discretion to decide which religious items
are allowed in an inmate's personal property. There is a
likelihood this tarot card issue will go to litigation.
ALTERNATIVE DISPUTE RESOLUTION EFFORTS: None
18 U.S.C. § 3621(e) LlTICATION:
FMC Lexington - We received a favorable R&R by Magistrate
Judge Peggy Patterson in Davis v. Beeler, 96-42. Davis has a
current offense of Felon in Possession of a Firearm, in
violation of 18 U.S.C. § 922(g). Davis claims the BOP's
interpretation of 922(g) is an unlawful interpretation of
3621 (e) and the BOP did not promulgate its policy in
accordance with the APA. Magistrate Patterson recommends
dismissal of this petition based upon her analysis of whether
the BOP's interpretation of the term "nonviolent offense"
contravenes well-settled case law. Patterson noted the Sixth
Circuit does not yet have binding precedent on this issue.
Further, Patterson distinguished interpretations of crimes of
violence in the sentencing context with the BOP's situation in
its Congressionally-mandated deCision-making for determining
early release eligibility. Our other 3621 (e) cases have been
transferred from other Magistrates to Peggy Patterson.
FCI Ashland - Childs v. FBOP. et al. - On January 31,1997,
Judge Wilhoit signed an order dismissing this habeas petition
because the petitioner had not exhausted his administrative
remedies. However, in this eight page order Judge Wilhoit did
decline to agree that the PLRA applied to habeas petitions;

and he did indicate that he might be inclined to follow
Downey.

FPC Alderson - Thompson v. Edwards - We received the
Magistrate's Findings and Recommendations in this 3621(e}
habeas petition . The F&R recommends that an order similar to
the order entered in the Wiggins case be entered for this
case. The F&R went further and stated that it had been three
months since Wiggins and the Bureau had not yet promulgated a
new program statement and, therefore, the Court should set a
deadline for the Bureau. Objections will be filed .

FPC Alderson - Armour v. Edwards, this habeas petition was
filed relating to early release under 3621 (e). A motion for
summary judgment has been filed .
FCI Milan - Alston v. Pontes so - challenges BOP designation of
~ possession

of firearm by a prohibited person" as a crime of
violence for purposes of eligibility for drug program.
Government re sponse filed January 16, 1997.

FCI Milan - Rasn ake v. Pontesso - Inmate challenges BOP
determination that hi s two point enhancement for possession of
a weapon makes his instant offense a crime of violence and
ineligible for the year off provisions of the DAP.
FCI Morgantown - On January 24,1997 , the United States
District Court for the Northern District of West Virginia
(Kidd, J.), issued a Memorandum Opinion and Order in Pelissero
v. Thompson (1 :96-CV-57), a habeas corpus case in which the
petitioner sought a sentence reduction pursuant to 18 U.S.C. §
petitioner sought a sentence reduction pursuant to 18 U.S.C. §
3621 (e)(2)(B) , but was denied due to the fact that he was
convicted for, inter alia, violation of21 U.S.C. § 841 (a)(1)
-- a "crime of violence" within the meaning of Program
Statement 5162 .02, Definition ofTerm:Crimes of Violence," §
9. Finding "the BOP's interpretation [of § 3621 (e)(2)(B)] to
be a 'permissible construction of the statute,'" the Court
rejected the inmate's argument that the BOP could only look at
the statutory elements of the crime for which he was
convicted, and not delve into other factors underlying the
crime.
Significantly, the Court also rejected inmate Pelissero's
argument based upon Wiggins v. Wise , and rejected the inmate's
argument that the notification requirement of 18 U.S.C. §
4042(b} was improper. Finally, the Court rejected the inmate's
argument that a denial of a sentence reduction pursuant to §
3621 (e)(2)(B) constituted a denial of a liberty interest.
On January 29,1997, the United States District Court for the
Northern District of West Virginia (Kidd, J.), issued a
Memorandum Opinion and Order in the case of Fonner v. Thompson
(1 :96-CV-57) . Fonner was a habeas corpus case in which the
petitioner sought a sentence reduction pursuant to 18 U.S.C. §

3621 (e)(2)(B), but was denied due to the fact that he was
convicted for violation of 18 U.S.C. § 922(g)(1) - a "crime
of violence" in all cases within the meaning of Program
Statement 5162.02, Definition of Term."Crimes ofViolence,n §
7. Judge Kidd's Fonner opinion mirrored the language,
reasoning, and holding of Pelissero.

SICNIFICANT NEW CRIMINAL REFERRALS SINCE LAST MONTH'S REPORT:
Fel Memphis - The following two referrals were made regarding
escapes from FCI Memphis' satellite camp: David Thompson, Reg.
No. 07302-041, date of escape: 12-26-96; and Ledarius Patrick,
Reg. No. 04279-028, date of escape: 01-31-97.
FMC Lexington - On January 26,1997, on the in-patient mental
health unit, inmate Baltarrica, Reg. No. 33328-019, a Mariel
Cuban detainee, was found in his room with injuries after an
apparent fight with inmate Cummmings, Reg. No. 09304-021, an
eighteen year old competency to stand trial study case. There
is no evidence weapons were involved in this altercation.
Baltarrica's pulse and blood pressure were weak when he was
found by staff, and he had no pulse as he was taken to the
clinic. CPR was administered, however, he was pronounced dead
on arrival at the University of Kentucky Medical Center. An
autopsy was ordered by the Warden and the matter has been
referred to the FBI. Baltarrica has no known next of kin, so
there is little chance any civil actions will arise out of his
death.
UPDATE ON PREVIOUSLY REPORTED CRIMINAL MATTERS:
FCI Milan - The trial scheduled for January 14, 1997, for
inmate Christopher Snow has been delayed until March 1997 at
defense counsel's request. This is a criminal trial for
possession of contraband in prison and assault of a federal
employee.
FCI Milan - The trial for inmate Morrison has been delayed
until March of 1997 at defense counsel's request. This
criminal trial had been scheduled for January 18, for two
counts of attempted murder, two counts of aggravated assault,
and one count of witness tampering.
FCI petersburg - Inmate Poteet, Reg. No. 23675-083, one of the
inmates previously reported as indicted for Introduction and
Conspiracy to Possess and Possession of a Controlled Substance
with Intent to Distribute; and Bribery of Public Official, has
pled guilty to one count of Introduction of Drugs. Trial for
the other defendants (including a correctional officer) is
still scheduled for March 3,1997.

FCI petersburg - Inmate Raney's sentencing hearing is
scheduled for February 18, 1997, regarding his escape from the
Petersburg camp.

SUCCESSFUL PROSECUTIONS OR ANY ACOUITTALS SINCE LAST MONTH'S
REPORT:
FCI Beckley - us v. Hudgins - The trial of Inmate Hudgins for
possessing contraband (marijuana) was held January 7, 1997.
The trial lasted approximately four hours. The jury
deliberated for a few hours and asked to be released for the
night. The next day the jury deliberated for a few more hours
and then announced it could not reach an unanimous verdict.
The judge sent the jury back to discuss it more. Finally, the
jury came back with a verdict of guilty. However, during the
polling of the jury, one member said that the verdict of
guilty was not her verdict. The judge sent the jury away
again and was trying to figure out what to do when the jury
member knocked on the jury room door and apologized, claiming
she did not understand the question and that she in fact
agreed with the guilty verdict. This was Beckley's first
prosecution.

REHABILITATION ACT: None

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*Represents both the FCI and LSCI

•

UNITED STATES GOVERNMENT

memorandum
DATE:

<Date>Mid-Atlantic Regional Office. Annapolis Junction, MD 20701

REPLY TO

Bill Burlington, Regional Counsel
Mid-Atlantic Region

AnN OF:
SUBJECT:

TO:

AnN:

".

february

1997 Monthly Report ~

Wallace H. Cheney, General Counsel
Nancy Redding, Executive Assistant

ADMINISTRATIVE REMEDIES
NOV

JAN FEB MAR APR MAY JUN JUL AUG SEP OCT
DEC

Received
Answered

140
178

TORT CLAIMS
NOV

JAN FEB MAR APR MAY JUN JUL AUG SEP OCT
DEC

# Pending
# Received
# Answered
# Pending
# Over Six Month

213 180
37
51
64
39
180
179
4*
2*

FOI/PRIVACY
NOV

JAN FEB MAR APR MAY JUN JUL AUG SEP OCT
DEC

#
#
#
#
#

66
36
62
43
23

Pending
Received
Answered
Pending
Over 30 Days

146
130

43
33
39
42
21

LITIGATION
NOV

JAN FEB MAR APR MAY JUN JUL AUG SEP OCT
DEC

Cases Pending
New Cases Received
Habeas Corpus
Bivens
FTCA
Other
Cases Closed
Cases Pending
Lit Reports Completed

265 353a
25 17
16
6
5 6
2 3
2 2
11 18
251 352
19 21

Cases/Hearings or Trials
1
0
Settlements/Awards
3
0
$ Settlements/Awards
$95
0
($ in Thousands)
*We.are in the process of obtaining settlement approval from the Central Office for these claims or a
check from Treasury.
alncorrect figure for last month.

ITEMS OF INTEREST, PERSONAL LEAVE, BUSINESS TRIPS, MOVES, ETC.

Bill Burlington, Regional Counsel, will be attending the General Counsel's Meeting March
10-13.
Kevin Walasinski, Attorney, FCI Milan, will be attending DHO training March 3-7 and
institutional familiarization training March 10-14.
Randy Smith, Paralegal, FCI Ashland, will be at DHO training from March 3-12, and on
annual leave from March 13-14,1997.
Bob Blackburn, Legal Tech, USP Terre Haute, will be in annual training March 3-7; and
Teresa Marvel, Paralegal, will be in annual training March 17-21.
Michelle Fuseyamore, Attorney, FCI Butner, will be the Acting Executive Assistant from
March 3-31, 1997.
Mike Bredenberg, Attorney, LSCI Butner, will be attending the Sentencing for Attorney's
Seminar in Denver from March 23-27, 1997.
Mike Robar, Paralegal, FCI Manchester, is institution duty officer from February 25-March
4,1997.
Matthew Mellady will be in annual refresher training
March 3-7,1997.
Darrel Waugh, Honors Attorney, Mid-Atlantic Regional Office, will be in Denver for DHO
training March 3-7; and will attend Glynco's Introduction to Correctional Techniques March
17-April3, 1997.
Milt Williams, Paralegal, FCI Petersburg, attended a town hall meeting on current
developments in labor management relations in Virginia Beach, on February 4,1997. The
town hall meeting was sponsored by the Federal Labor Relations Authority, Washington
Regional Office.
SITUATION OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS
WASTE SITES, ETC.:
Prison Litigation Reform Act:
FCI Butner - Rish v Johnson - We have just learned that we are authorized to appeal a
denial of our motion for summary judgment in this case. This is a ~ case where
former inmate orderlies at Butner claim they were exposed to HIV and Hepatitis B, as a
result of not being provided with gloves and other protective gear when they were
cleaning up human waste in the seclusion unit.

Aside from a rather routine qualified immunity question, this case involves the ability to
retroactively apply Section 803 of the PLRA, which states there can-be no cause of action
for emotional harm without a prior showing of physical harm. The Department initially
opposed us making the argument that section 803 could be applied to cases that were
pending before the passage of the PLRA. A recent case, Kehner v Trigg, 1997 WL
16504, S.D.lnd., January 15,1997, allowed such retroactive application of section 803.
Unfortunately, the case has virtually no rationale for allowing such application of section
803 to pending cases. I understand from the AUSA that the Department will be writing the

appeal brief in this case. Ed Cohen from DOJ has refused to allow us to raise the PLRA
argument on appeal. Apparently, he believes the PLRA doesnQt apply to federal
prisoners.
Fel Butner - Staff conducted four mental health commitment hearings via video
conference during February.
SUBSTANTIVE PLEADINGS (COMPLAINT, MOTION FOR SUMMARY JUDGMENT,
ETC.): None
SETTLEMENTS:
FMC Lexington - Venus Michels v. US - We are receiving intense pressure from the U.S.
Attorney's Office in Lexington, Kentucky, to settle this case, which is the last of three
cases where a former correctional officer (Eddie Smith) forced several female inmates to
have sex with him. The prior two cases we settled for $150,000 a piece, as each was a
horrible fact situation where Eddie Smith forcibly raped an inmate who was in the mental
health unit. We believe this case is substantially different, as we believe Venus Michels
was never raped, plus we feel we have evidence she was at least initially a willing
partiCipant in these sexual liaisons.

Venus Michels has finished her sentence and has been deported to England. INS will not
allow her to return to the U.S. even for her trial. I want to take the position with the U.S.
Attorney's Office that we should at least have Wanda Hunt and the AUSA depose Venus
Michels, even if it means going to England, and bring out the consensual nature of her
activities. We then have witnesses who can give live testimony at trial that Venus was
perhaps involved in voluntary sex with Eddie Smith. Since Venus Michels cannot be at
trial, there will be no live testimony to rebut our witnesses.
The U.S. Attorney's Office wants us to authorize a settlement offer of $150,000, since this
is what we paid in the other cases. We have talked with Margaret Hambrick
(coincidentally, she was Warden at Lexington at the time) and she has suggested that we
personally meet with the U.S. Attorney's Office in Lexington, and that if we still feel the
settlement figure the U.S. Attorney's office wants is unreasonable, that she will support
Wanda Hunt being allowed to travel to England to participate in the deposition. In one of
the earlier cases, Wanda's work at the deposition brought the settlement figure down from
$175,000 to $150,000 after only one days work.
I want to at least alert you to the fact that we have a unique case where we may be asking
for your support with the Director that Wanda be allowed to engage in travel outside the
United States.
ADVERSE DECISIONS OR SIGNIFICANT DECISIONS:
USP Terre Haute - Bagola v. Kindt - This ~ action was against various UNICOR

defendants based on an incident where Bagola's hand was amputated while working in
UNICOR. We argued that the Bivens claims was precluded by 18 USC §4216 and that
Bagola failed to state an Eighth Amendment cause of action. The District Court would not
enter summary judgment based on the claim preclusion argument due to a previous
appellate decision in the Bagola case. This 7th Circuit decision included the view that
4126 does not preclude Bivens in the dicta of its decision to remand the case back to the
District Court after in forma pauperis had not been granted. The issue before the 7th
Circuit was not the 4126 issue, and therefore, we didn't have the opportunity to brief the
issue. On remand the District Court did grant summary judgment based on the fact the

defendants were not deliberately indifferent to Bagola's safety. Obviously this was a very
good decision for us. but we had hoped that the District Court would deal with the claim
preclusion issue because we thought a very good argument was presented. The court did
indicate that good questions were raised. but were not willing to go against the Court of
Appeals. We recently learned that inmate Bagola has filed a Notice of Appeal.
FCI Petersburg - Platshorn v. Hahn - Judge Meghie filed a memorandum order on

February 3. 1997. referring this sentence computation case to the magistrate judge for a
hearing. Platshorn was serving an aggregated parolable and non-parolable sentence of
64+ years. He was paroled on the parolable portion to the non-parolable sentence. The
Court. in conducting its own computation. concluded the BOP's computation is incorrect
and declined to follow BOP P.S. 5880.30 on which the calculation is based. The court's
calculation differs by about four months and the court cites to §4161's requirement to
aggregate consecutive sentences and states the BOP failed to follow the statute. The
court would apply to Platshorn's current non-parolable sentence the 10 days per month
SGT and then 1/3 of the time he spent serving the parolable sentence.
A motion to reconsider the court's referral was submitted on February 18. 1997. asking
the court to find the BOP's computation correct. or alternatively referred to the magistrate
only with the instruction for a clarification of the BOP's computation and whether this
method comports with applicable law.
UPDATE ON CASES, TRIALS OR HEARINGS, ETC. NOTED IN PRIOR REPORTS:
FCI Memphis - United States v. Walters - this is one of the riot prosecution cases. On

February 26. 1997. a hearing was held in this case because Walters' attorney. Robert
Brooks. directly contacted one of the co-defendants. who was also represented by
counsel. The end result was the Judge removed Mr. Brooks from tl1e case. Currently a
report date has been set for March 28. 1997. at which time the parties will inform the
Judge whether they are ready to proceed to trial. If they are. the trial will begin April 7.
1997.
REPRESENTATION NOT RECOMMENDED FOR STAFF: None
SIGNIFICANT FTCA CLAIMS:
MEDICAL MALPRACTICE CASES UPDATE:

This month Bill Burlington will participate with Dr. Duggirala and several other physicians
in the new review process for medical cases in litigation where we believe we may have
care that is below the appropriate standard.
SIGNIFICANT ADMINISTRATIVE REMEDIES: None
NEW RFRA CASES AND UPDATES ON PREVIOUSLY REPORTED CASES:
USP Terre Haute - McNair-Bey v J J Clark - We just received a favorable RFRA
decision where the court upheld Terre Haute's Institution Supplement which allows
inmates to only wear religious pens on the inside of their clothing. The decision mentions
that we did not argue that the policy did not substantially burden the inmate's right to
practice his religion. Nonetheless. the court found our policy furthered a compelling
interest in prison security by not having inmates become offended by other inmate's
phYSical displays of their faith.

ALTERNATIVE DISPUTE RESOLUTION EFFORTS: None
18 U.S.C. § 3621 (e) LITIGATION:
FCI Milan - Alston v Pontesso - challenges BOP designation of possession of firearm by

a prohibited person as a crime of violence for purposes of eligibility for drug program.
Government response filed January 6, 1997.
FCI Milan - Rasnake v, Pontesso - challenges BOP determination that his two point
enhancement for possession of a weapon makes his instant offense a crime of violence
and thus ineligible for the year off provisions of the DAP,

FPC Alderson - Susan Hall v. Phillip Wise - On February 18, 1997, the
District Court entered an order stating Section 7 of P.S. 5162.02 is invalid
as it relates to those inmates denied eligibility for convictions under
922(g), felon in possession of a handgun. The Court did not strike down
Section 7 as a whole, as the Magistrate recommended.
FCI Beckley - Ballenger v, Olson. et al. - The Magistrate Judge has filed
Findings and Recommendation in this habeas relating to § 3621 early
release. The R&R finds that ineligibility based on a conviction under
924(c)(1), using or carrying a firearm during a drug trafficking crime, is
properly considered a crime of violence. The Federal Public Defender has
asked for an extension for filing objections to the R&R. Hopefully, the
District Court will adopt the Magistrates R&R.
FPC Alderson - Mildred Thompson v, Dan Edwards and Pamela Armour
v, Dan Edwards - The Magistrate's Findings and Recommendation
recommended that an order similar to the order entered in the Wiggins
case be entered for this case, but the R&R went further and stated that it
had been three months since Wiggins had been entered and the Bureau
had not yet promulgated a new program statement and, therefore, the
Court should set a deadline for the Bureau. Objections were filed. While
the Judge has not yet entered orders in these two cases, Judge Faber did
decline, in Ballenger v, Olson. et al. To set a time frame for promulgating a
new program
SIGNIFICANT NEW CRIMINAL REFERRALS SINCE LAST MONTH'S
REPORT:
FCI Milan - Inmate Nowyorkas, Reg. No. 19712-039, was found to be in
possession of a wooden box filled with miscellaneous hardware and
schematics. This was referred to the FBI as a possible manufacture of an
explosive device. The FBI has now referred the case to the ATF. A
decision on the referral has not been made.
UPDATE ON PREVIOUSLY REPORTED CRIMINAL MATTERS:

FCI Milan - Inmate Snow's, Reg. No. 19272-039, trial for possession of
contraband and assault of a federal employee is now sc.heduled for March
18,1997. Inmate J. Morrison's, Reg. No. 08887-026, trial has now been
postponed until May 27, 1997.
FCI Milan - Inmate W. Ray, Reg. No. 21891-039, was to stand trial on
assault of a federal employee which had occurred at the FOC while the
inmate was there for a competency hearing. The charge was dropped
when the inmate was found incompetent to stand trial on his original
charge.
FCI Petersburg - The trial set for March 3, 1997, for Correctional Officer
Smith on charges of Introduction of Drugs and Bribery, has been
rescheduled for March 24, 1997 at 10:00am in Richmond. The
continuance was requested by the defendant. The two inmates, Miles and
Poteet, have reached a plea agreement on the charges against them.
SUCCESSFUL PROSECUTIONS OR ANY ACQUITTALS SINCE LAST
MONTH'S REPORT:
FMC Lexington - Donald Streck, Reg. No. 01575-061, who collected
escape equipment and had a plan to escape with several other inmates in
1996, pled guilty to attempted escape and received a fourteen month
sentence.
USP Terre Haute - On February 27,1997, a plea bargain was agreed
upon for Jesse Buchanan's attempted receipt of heroin .. The agreement
was an 18 month consecutive sentence with three years of supervised
release and no fine.
FCI Petersburg - Inmate Raney was convicted in December 1996 for
escape from the Petersburg Camp. The court sentenced Raney to the
maximum term permitted by law on the escape charge and committed him
to the BOP for a §3552(B) study.
FCI Beckley - Timothy Peck, an inmate from the Camp at Beckley, plead
guilty to an escape charge. He has not yet been sentenced.
REHABILITATION ACT: None
ENSIGN AMENDMENT CASES:
LSCI Butner - Patch. et al. v. Janet Reno. et al - Seven inmates at LSCI Butner filed
this suit challenging on 1st Amendment grounds, our new policy. This case is styled

•
as a Bivens action and seeks a TRO, class certification, appointment of counsel and
reimbursement for court costs. We will argue that the defendants are entitled to
qualified immunity since the law was not clearly established at the time regarding the
issues in this case. Copies of the complaint were provided to both the Central Office
and DOJ.

•

New Litigation Cases by Institution and Type
Received During the Month of February 1997
ALD

ASH

BEC

BUT

CUM

LEX

MAN

MRG

MIL

MEM

BIV

0

0

0

3

0

0

0

0

0

0

FTCA

0

0

0

0

0

0

0

1

1

1

HC

0

0

0

0

1

0

0

2

2

0

OTH

0

0

0

1

1

0

0

0

0

0

TOT

0

0

0

4

2

0

0

3

3

1

New Litigation Cases by Institution and Type
Received Calendar Year to Date

ALD

ASH

BEC

BUT

CUM

LEX

MAN

MRG

MIL

MEM

BIV

0

0

0

5

0

2

0

0

0

0

FTCA

0

0

0

1

0

0

0

1

1

1

HC

3

0

3

1

1

1

0

8

2

1

OTH

0

0

0

1

3

0

0

0

0

0

TOT

3

0

3

8

4

3

0

9

3

2

BUT represents both the FCI and the LSCI

UNITED STATES GOVERNMENT

mem orandum
<Date>Mid-Atlantic Regional Office, Annapolis Junction, MD 20701

DATE:

REPLY TO

ATIN OF:

Bill Burlington , Regional Counsel
t Mid-Atlantic Region

SUBJECT:

m Wallace H. Cheney, General Counsel
ATIN,

Nancy Redding, Executive Assistant

ADMINISTRA TIVE REMEDIES
NOV

JAN
DEC

FEB

MAR APR

Received
Answered

140
178

146
130

201
135

TORT CLAIMS
NOV

JAN
DEC

FEB

MAR APR

#
#
#
#
#

213
37
64
180
4'

180
179
66
51
65
39
179 183
2'
3'

FOI/PRIVACY
NOV

JAN
DEC

FEB

# Pending
# Received
# Answered
# Pending
# Over 30 Days

66
36
62
43
23

43
33
39
42
21

LITIGATION
NOV

JAN
DEC

FEB

MAR APR

Cases Pending
New Cases Received
Habeas Corpus
Bivens
FTCA
Other
Cases Closed
Cases Pending
Lit Reports Completed
Cases/Hearings or Trials

265
25
16
5
2
2
11
251
19
1

3530
17

352
19
12

Pending
Received
Answered
Pending
Over Six Month

6
6
3
2
18
352
21
0

MAR APR

MAY JUN

JUL

AUG

SEP

OCT

MAY JUN

JUL

AUG

SEP

OCT

MAY JUN

JUL

AUG

SEP

OCT

MAY JUN

JUL

AUG

SEP

OCT

42
51
45
50
18

6
1
0
4
353
17
0

o 2
Settlements/Awards
3
o $3.007
$ Settlements/Awards
$95
($ in Thousands)
·We are in the process of obtaining settlement approval from the Central Office for two of these claims or
a check from Treasury.
alncorrect figure for last month.

ITEMS OF INTEREST, PERSONAL LEAVE, BUSINESS TRIPS, MOVES, ETC.
Bill Burlington, Regional Counsel, will be on annual leave March 31-Apri14, 1997; April
10-11, 1997 will attend a Regional Office Strategic Planning Meeting; April 15-17, 1997,
will be in San Diego doing a presentation at a Health Services Meeting; and April 21-22,
1997, will be in Lexington meeting with the AUSA regarding settlement negotiations in the
Venus Michels v. USA case and participating in Mental Health Training at FMC Lexington.
We are celebrating Wanda Hunt's selection as the new Equal Opportunity Officer for the
Bureau. We have enjoyed having Wanda with us for the past two and a half years, and
only regret that her time with us was so short. We know she will do an outstanding job in
her new role. We wish her the best of luck in this challenging assignment.
We look forward to the arrival of Kathleen White, Paralegal Trainee, on April 14, 1997.
Kathleen comes- to us from FCI Otisville where she was Secretary to two Associate
Wardens. Kathleen will be a welcome addition to the MARa staff.
During the week of April2B-May 2, 1997, the attorneys and paralegals throughout the
Region will be attending the Joint MXR/NCR Legal Training in Durham, North Carolina.
Randy Smith, Paralegal, FCI Ashland, will travel to FCI Butner the week of April 14':'18,
1997, to conduct an EEO investigation.
Michelle Fusseyamore, Attorney, FCI Butner, will be Acting Executive Assistant from April
1-4, and April 21-25, 1997.
Randi Everett, Legal Tech, USP Terre Haute, will be on annual leave April 7-11.
SITUATION OF INTEREST, CONTACT WITH FEDERAL BENCH. HAZARDOUS
WASTE SITES, ETC.:
FCI and LSCI Butner - Both institutions have ben issued notice of violations (NOV) under
the Clear Air Act, by the State of North Carolina. The primary reason for the violations
was the failure to obtain proper air quality permits on several boilers. The State was
asked by Butner facilities staff to do a survey and they ended up issuing the NOV's. The
State has also indicated that they will try to fine the government. We intend to oppose any
attempt to levy fines under the Clean Air Act.
Prison Litigation Reform Act:
Fel Butner - Rjsh V. Johnson - Last month we reported that the Department had
authorized us to argue in the Fourth Circuit that the provision of the PLRA which requires
a showing of physical harm before a cause of action can lie for emotional harm (Section
803) can be applied retroactively to lawsuits filed before the passage of the Act. We have
now been informed that we will not be allowed to make this argumetlt, and will only be
appealing the denial of qualified immunity. As you may recall, this is a Bivens case where
former inmate orderlies at Butner claim they were exposed to HIV and Hepatitis B, as a
result of not being provided with gloves and other protective gear when they were
cleaning up human waste in the seclusion unit. The qualified immunity question will
involve what was the clearly established Bth Amendment law regarding exposure to
infectious diseases in 1992-1-993.
FCI Milan - Kevin Walasinski, Attorney, is scheduled to speak to the judges and
employees of the U.S. District Court, Eastern District of Michigan, on April 10, 1997,

regarding the PLRA.
FCI Cumberland - The institution continues to receive orders from the district court for
collection of filing fees from inmates who have applied to proceed in forma pauperis. To
manage these procedures more efficiently, the paralegal has incorporated a new section
on Court Filing Fees into the Institution Supplement on Inmate Legal Activities. This
section outlines the responsibilities of the inmate and staff and, more importantly, includes
a Filing Fee Agreement form whereby the inmate agrees to the established procedures
and consents to the withdrawal of fees from his trust fund account.
FCI Elkton - In December 1996 FCI Elkton was notified by the City of Salem that
employees would be subject to a 1% municipal income tax. Pursuant to this ordinance
each employer who employees one or more employees within the city limits is required to
withhold 1% of all employees' gross wages. The ordinance was reviewed by this office.
We determined that the FCI Elkton warehouse, which is physically within the city limits,
was rented as temporary warehouse space. Our review of the ordinance indicates that
warehouses are specifically exempt from this tax. A letter was prepared for the city of
Salem Income Tax Department outlining our position of the imposition of this tax.
Specifically, we stated that we believed employees working out of the warehouse were
exempt, we further asserted that FCI Elkton is not a business as it does not operate for
profit and that the official duty station of all FCI Elkton employees is Elkton, Ohio as
opposed to Salem, Ohio. To date we have not had a response from the Income Tax
Department.
SUBSTANTIVE PLEADINGS (COMPLAINT, MOTION FOR SUMMARY JUDGMENT,
ETC.): None

SETTLEMENTS:
USP Terre Haute - Mitch'ell v USA - This case has a lengthy history and was originally
filed as a ~ action against numerous defendants in May of 1994. The plaintiff
alleged that staff had conspired to steal his property and embezzle his funds. Eventually,
all the individual defendants were dismissed and only a FTCA action remained. A check
issued from plaintiffs commissary account for $7.00 was cashed after a stop payment
order was issued. Plaintiff was offered $7.00 settlement at the administrative claim stage
but refused the offer. Case was settled for $7.00.
FPC Alderson - Barrios v US, Elder v US" Wilson V U,S - These three FTCA cases
alleged negligence based on an outbreak of salmonella poisoning at FPC Alderson. Each ,
plaintiff requested relief in the amount of $3,000. A settlement was reached with each
plaintiff in the amount of $1,000.
FMC Lexington - Venus Michels y USA - We reported last month that we are receiving
intense pressure from the U.S. Attorney's Office in Lexington, Kentucky, to settle this
case. (This is the last of three cases where a former correctional officer, Eddie Smith,
forced several female inmates to have sex with him. The prior two cases we settled for
$150,000 apiece, as each was a horrible fact situation where Eddie Smith forcibly raped
an inmate who was in the mental health unit.) Because we feel this·case involves a willing
inmate participant, we believe the damages should be less than the $350,000 that is being
demanded by counsel for Ms. Michels.

ADVERSE DECISIONS OR SIGNIFICANT DECISIONS:
FCI Manchester - Sisk V BOP - The Magistrates R&R dated February 14, 1997, denied
both the defendant's and plaintiffs motions for summary judgment. At the point, only the
Privacy Act claims for money damages remain. As the R&R states the facts in dispute
are: whether a violation of the duty to maintain accurate records even occurred; how the
documents were secured and used; the extent to which any violative actions were willful
or in blatant disregard, and the extent to which any inaccuracy had any adverse effect on
plaintiff. The plaintiff alleges that he was misclassified based on his central file not being
maintained accurately (he alleges a letter which would influence his classification in a
positive manner was not in his central file at the time of classification) and that he lives in
fear because he is uncertain if staff have or will let that letter regarding his cooperation be
known to the inmate population. A discovery schedule has not yet been received.
FCI Ashland - Armando Montavo V Tom Cordle is a common law tort action alleging a
correctional counselor caused an inmate at Ashland emotional distress when he
committed the torts of libel and slander. The case was originally filed in state court. A
Motion to Remove the case to Federal court was filed and the state court's file was
removed to the Federal court. However, the Magistrate Judge in the Federal court ruled
that the E.D. Ky. did not have SUbject matter jurisdiction over the case because the torts
of libel and slander were not cognizable under 28 U.S.C. §2680(h) .. Consequently, the
Magistrate Judge remanded the case back to the State for lack of subject matter
jurisdiction. A Motion for Reconsideration and a Motion to Substitute the Untied States as
the sole defendant were filed with the Federal Court. These motions are presently

pending.
FCI Memphis - Coley v. Burkhart -In this case inmate Coley filed suit alleging that former
Warden Burkhart (FPC Millington) racially discriminated against him by denying the
inmate's furlough request. The government's dispositive motion asserted qualified
immunity (no clearly established right to a furlough). The district court ruled that a
genuine issue of material fact existed as to Burkhart's motive which precluded summary
judgment. On March 6,1997, we received word from the U.S. Attorney that the Office of
the Solicitor General had decided not to appeal the District Court's denial of qualified
immunity, even though the U.S. Attorney's Office and the BOP recommended appeal, the
Civil Division recommended to the Solicitor General that no appeal be taken. This
recommendation was based on the District Court's conclusion that there was a genuine
issue of fact concerning the Warden's motive in denying the plaintiffs furlough request
and the Supreme Court's opinion in Johnson v. Jones, 115 S.Ct. 2151 (1995) which held
that where a district court denies summary judgment to a defendant raising the qualified
immunity defense on the ground that the pretrial record presents a genuine issue of fact,
interlocutory review of the evidence sufficiency issue is not available.
The Civil Division recognized the Sixth Circuit's heightened pleading standard requiring
specific, non-conclusory allegations of facts that, if proven, would overcome the qualified
immunity defense. The Civil Division further noted that Coley, who is white, alleged that
similarly situated black inmates were given preferential treatment. Although Coley did not
plead specific facts demonstrating that the black inmates were similarly situated, the Civil
Division believed it would be difficult to argue that the heightened pleading standard
places the burden on the plaintiff in advance of discovery.
Finally, the Civil Division noted that the District Court's order does not preclude filing a
renewed motion for summary judgment if discovery yields no evidence that similarly
situated white and black inmates were treated differently. Therefore, the Civil Division
prefers that strategy to an appeal of the District Court's order denying the government's
motion for summary judgment.
UPDATE ON CASES, TRIALS OR HEARINGS, ETC. NOTED IN PRIOR REPORTS:
FCI Beckley - Keats v Olson - The Magistrate Judge has set oral arguments on the
merits for April 10, 1997. Additionally, the Magistrate Judge ordered the government to
respond to petitioners Motion for Release pending the determination in this case.
Objections to this release were filed. This case is a Habeas regarding jail time credit. The
State of New York had primary jurisdiction over the inmate but both "the State and the
BOP overlooked this fact and he remained in federal custody for years before it was
noticed that NY had primary jurisdiction. He was returned to NY to complete the time
remaining on his state sentence. Inmate Keats complains he should receive credit toward
both his federal and state sentences, rather than just his state sentence, since his state
sentence ran concurrent to the federal sentence and he spent years in federal custody.
(The sentences are in fact consecutive sentences.)
FCI Petersburg - platshorn V Hahn - A hearing has been scheduled for April 17, 1997,
for this habeas sentence computation case that we reported last month. This involves a
dispute over the calculation of 64+ year parolable/non-parolable sentences. The BOP
initially aggregated the sentences, but upon parole from the 31 year parolable sentence to
the consecutive non-parolable sentence, the sentences were de-aggregated according to
policy. The hearing is to clarify the BOP's computation and/or determine the proper
computation of petitioners sentences under applicable law. The AUSA will meet with
John White, RISA, the day before the hearing to prepare for his testimony at the hearing

regarding how the BOP calculated the sentences. An attorney has been appointed to
represent Platshorn.
REPRESENTATION NOT RECOMMENDED FOR STAFF: None
SIGNIFICANT FTCA CLAIMS: None
MEDICAL MALPRACTICE CASES UPDATE: None
SIGNIFICANT ADMINISTRATIVE REMEDIES:
FMC Lexington - The guardian of inmate Darrell Kurtz, Reg. No. 15197-018, has
appealed the institution level denial of compassionate release for Kurtz. Central Office
has directed us to accept this as a remedy appeal. Kurtz attempted suicide at FCI
Sheridan, leaving himself with significant brain damage. Although he has limited mental
capacity, he has largely recovered physically, and he has serious criminal past history,
including attempted murder.
NEW RFRA CASES AND UPDATES ON PREVIOUSLY REPORTED CASES:
FCI Milan - Idema v pontesso - In this habeas petition the inmate alleges he was placed
in detention for refusing to follow an order which violates his religious beliefs. The inmate
is a Theravada Buddhist and claims that as a warrior he cannot be a servant (inmate was
assigned to food service). Inmate seeks various injunctive relief orders from the court. A
copy of the petition has been forwarded to the Central Office.
ALTERNATIVE DISPUTE RESOLUTION EFFORTS: None
18 U.S.C. § 3621(e) LITIGATION:
FCI Beckley -Inscore v Federal BOP - A Notice of Appeal has been filed in the Fourth
Circuit, challenging the District Courfs refusal to order the BOP to develop a new Crimes
of Violence policy within the Southern District of W. Va .. (Alderson and Beckley~ The
District Court has declared Sections 7 & 9 void, but has refused to follow the Downey v.
Crabtree approach of declaring the inmates eligible for release. I am very hopeful that we
can moot this case on appeal by developing a new Crimes of Violence program statement
before the Fourth Circuit decides this case.
FCI Beckley - Ballenger y. Olson - The District Court Judge adopted the Magistrate
Judge's Findings and Recommendation in this Habeas relating to §3621 early release.
The Court held that ineligibility based on a conviction under 924(c)(1), using or carrying a
firearm during a drug trafficking crime, is properly considered a crime of violence.
FCI Manchester - Boone y Chandler - New habeas petition received at Manchester
challenging Crime of Violence classification of section 924(c) crime.
FCI Milan -McCall v Pontesso -Inmate challenges denial of one year off eligibility for
offense of unlawful transfer of a firearm. Government response was filed March 25, 1997.
USP Terre Haute - Caputo y. Clark - We recently received a favorable decision in this
case challenging a denial of early release under 3621 (e) after completion of a 500 hour
drug treatment program based on past violence (aggravated assault) classified as a
misdemeanor. The court found that the BOP had not acted illegally under 3621 (e) even
though Caputo had completed the drug program. The court found the pivotal point to the

•
be the language of the statute itself which states may be reduced.
USP Terre Haute - Johnson v Clark - This habeas petition challenges the denial of early
release under 3621(e). Petitioner successfully completed the DAP program and then was
released via GCT. Shortly after that he violated his supervised release and is now back at
Terre Haute. Petitioner raises two arguments. One, since his projected release date is
7-15-97 he argues that he should not have to exhaust his administrative remedies; and
secondly, he challenges the BOP's denial of eligibility for early release based on his failure
to demonstrate positive behavior after completion of the DAP program (supervis:.:e:.:d~_ _ _ _ _ _
release violated).
- .
.
SIGNIFICANT NEW CRIMINAL REFERRALS SINCE LAST MONTH'S REPORT:
FCI Milan - Declined Referral-Inmate Nowyorkas, Reg . No. 19712-039, was found to
be in possession of a wooden box filled with miscellaneous hardware and schematics.
This was referred to the FBI as possible manufacture of an explosive device. The FBI
referred the case to the ATF who declined prosecution as there was no accelerant.
Administrative disciplinary action was taken and a close supervision transfer has been
approved.
FCI Ashland - Inmate Stevey Gibson, Reg. No. 05360-032, escaped from the camp at
Ashland on March 23,1997, and was apprehended on March 26,1997. This case has
been referred for prosecution.
UPDATE ON PREVIOUSLY REPORTED CRIMINAL MATTERS:
FCI Memphis - United States V Walters et al - these riot prosecutions are set for trial to
begin on April 29, 1997.
FCI Beckley - Timothy Peck, an inmate from the Federal Prison Camp at Beckley , plead
guilty to an escape charge during February . Peck was sentenced this month to a
consecutive 18 month term.
FCI Beckley - The guilty verdict against inmate Adrian Hudgins for possessing
contraband (marijuana) was previously reported in January. Hudgins was sentenced in
March to a 21 month consecutive term and a $500 fine .
FCI M"an - Inmate's Snow's prosecution for possession of contraband and assault of a
federal employee has been indefinitely postponed . Inmate Snow physically assaulted his
federal public defender who has now withdrawn from the case.
FCI Petersburg - The two day jury_
on March 25-26,1997, and resulted in
the acquittal of Correctional Officer
of charges of conspiracy to possess and
distribute marijuana, possession an dlstn utlon of marijuana, aiding and abetting, and
(' J
bribery. The Court, after the prosecution rested its case, granted defendant's Rule 29
/\V
motion on the bribery charge. •
·Ury, after approximately an hour and ten minutes
deliberation, acquitted.
r
n the drug charges. The case involved the
'J
pro~ecution of Officer
fo
egedly providing inmates Poteet and Clarke with
manJuana In 1995 and
at FCI Petersburg. Poteet and Clarke
into a plea
agreement with the government and testified for the prosecution
Sentencing
an Clarke is still pending. The inmates testifie;o
they had
and
drug
took place and how they paid
to a pool hall in Newport
n,." .,o,i;~.;n-talso introduced evidence of

'\n \

telephone conversations of inmates allegedly
~ansactions. Evidence was
to. . at tt1e pool hall and other
also introduced of numerous telephone calls
locations; and of a $5!1ne y gram sent to
friend but was returned because of
an incorrect address.
testified that he
in the pool h l l h friends but
f' .
didn't talk to anyone else (t e friends testified supporting his story).
testified he had·
1\ U
a pock.anner that had his friend's address in it and he lost it in one 0 the housing
\" \
.
units.
testified he travels to the Tidewater area weekly on his days off to visit and
V
care for IS sick mother. The government felt they had a solid case. However, it seemed
to boil down to the issue of the credibility between t!y!ates and the officer.
Administrative action is still pending against Officer _
.
FCI Petersburg - United States v Carlos Mason - This previously reported case for
Introduction of Marijuana was set for trail on April 9, 1997. Word was received that the
trial has been delayed as Mason has indicated he may enter a plea on the charge. This
case stems from an officer searching Mason after a visit on August 18, 1996. Six
balloons were found and confiscated. When the Lt. was walking out of the visiting room
with the balloons, Mason grabbed the balloons and ran onto the compound and attempted
to dispose of the balloons in a storm drain. Mason was restrained and the balloons were
retrieved and tested positive for marijuana.
SUCCESSFUL PROSECUTIONS OR ANY ACQUITIALS SINCE LAST MONTH'S
REPORT:
FCI Beckley - On March 3, inmate Alter Pena plead guilty to possessing contraband
(marijuana). On March 31,1997, he received the maximum sentence under his guideline
range. He was sentenced to six months consecutive, with two years supervised release
to run concurrent to his seven years of supervised release for his instant offense. All fines
were waived due to his inability to pay, but he does have topay the $100 assessment fee.
REHABILITATION ACT: None
ENSIGN AMENDMENT CASES:
Fel Cumberland - Maydak et al V Bidwell et al - This Bivens action and request for injunctive relief
challenged Warden Bidwell's implementation of the Ensign Amendment. Plaintiffs' requests for
injunctive relief were denied and our Motion for Summary Judgment was granted. Maydak filed a
Motion for Reconsideration asking the Court to make a determination that the requirement for
administrative exhaustion be waived in his case. Judge Messitte denied Maydak's Motion for
Reconsideration stating he and all prisoner plaintiffs seeking to file this type of lawsuit must complete
administrative exhaustion through the Federal Bureau of Prisons review process before this Court can
undertake substantive review of such claims.

New Litigation Cases by Institution and Type
Received During the Month of March 1997
ALD

ASH

BEC

BUT

CUM

LEX

MAN

MRG

MIL

MEM

BIV

0

0

2

1

0

0

1

0

0

0

FTCA

0

0

0

0

0

0

0

0

0

1

HC

4

0

0

2

0

0

1

1

1

0

OTH

0

0

0

0

0

0

0

0

0

0

TOT

4

0

2

3

0

0

2

1

1

1

New Litigation Cases by Institution and Type
Received Calendar Year to Date

ALD

ASH

BEC

BUT

CUM

LEX

MAN

MRG

MIL

MEM

BIV

0

0

2

6

0

2

1

0

0

0

FTCA

0

0

0

1

0

0

0

1

1

2

HC

7

0

3

3

1

1

1

9

3

1

OTH

0

0

0

1

3

0

0

0

0

0

TOT

7

0

5

11

4

3

2

10

4

3

BUT represents both the FCI and the LSCI

-

UNITED STATE
DATE:

Mid-Atlantic Regional Office, Annapolis Ju

REPLY TO Bill Burlington, Regional Counsel
ATINOF: Mid-Atlantic Region
SUBJECT: April 1997 Monthly Report
TO:

Wallace H. Cheney, General Counsel

ATTN:

,

Nancy Redding, Executive Assistant

ADMINISTRATIVE REMEDIES

JAN

FEB

MAR APR MAY JUN

Received
Answered

140
178

146
130

201
135

TORT CLAIMS

JAN

FEB

MAR APR MAY JUN

# Pending
# Received
# Answered
# Pending
# Over Six Month

213
37
180
4*

180
51
39
179
2*

179
66
65
183
3*

FOI/PRIVACY

JAN

FEB

MAR APR MAY JUN

# Pending
# Received
# Answered
# Pending
# Over 30 Days

66
36
62
43
23

43
33
39
42
21

LITIGATION

JAN

FEB

64

42
51
45
50
18

JUL

AUG SEP

OCT

JUL

AUG SEP

OCT

JUL

AUG SEP

OCT

JUL

AUG SEP

OCT

133
193

183
41
43
181
4*

50
43
24
65
29

MAR APR MAY JUN

Cases Pending
265
353
3530 352
New Cases Received
25
13
17
19
6
Habeas Corpus
16
6
12
6
6
Bivens
5
6
1
FTCA
2
3
1
Other
2
0
2
0
Cases Closed
11 18
4
31
Cases Pending
353
339
251
352
18
Lit Reports Completed
19
21
17
1
Cases/Hearings or Trials
1
0
0
Settlements/Awards
3
2
0
40
$ Settlements/Awards
$95
o $3.007 $180
($ in Thousands)
*We are in the process of obtaining settlement approval from the Central Office for two of these claims or a check fr
Treasury.
olncorrect figure corrected.

,

ITEMS OF INTEREST, PERSONAL LEAVE, BUSINESS TRIPS, MOVES, ETC.
Bill Burlington, Regional Co unsel, will be on annual leave
August 14 and 15th; August 25-27 he will be ·in the Regional
Office for LMR training.
This month we welcome David Recker, Honors Attorney to the
Regional Office.
David c omes to us from the state of
Minnesota, where he attended William Mitchell Law School. We
also want to thank Michelle Fuseyamore for her assistance in
our office the week of August 4th .

Bob Blackburn, Legal Tech, USP Terre Haute, will be on annual
leave August 4-8; and Rick Schott, Attorney, USP Terre Haute,
will be on annual leave August 11-15.
Kathy Harris, Paralegal, MXR, will be on annual leave
August 11-12 and August 21.
Joe Tang, Attorney, FMC Lexington, will be on annual leave
September 2-5.

Kathy Smallwood, Paralegal, Fcr Me mphis, will be on annual
leave August 7-8. Matthew Mellady, Attorney, Fcr Memphis,
will be TDY to the Central Office the week of August 11.
SITUATION OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS
WASTE SITES, ETC.:
FeI Elkton - City Tax of Bureau Employees - Last month we
reported that we are currently appealing an attempt by the
City of Salem, to impose a 1% city work tax on employees from
Fer Elkton, who were temporarily stationed at a warehouse
within the City of Salem. We recently received word that the
City has denied our appeal, and we now have the option of
asking for a hearing before
No date has
been set for this hearing .

Fer Milan - U . S. v. Patriarca - The sentencing court ordered
Fer Milan to respond to their recommendation the inmate be
transferred to Rochester and the reason he was not
transferred. The reply was forwarded to the court and AUSA on
July 21, 1997.

FCI Milan C U.S. v. Dusenberry - This case involved a criminal
forfeiture appeal proceeding.
Telephone depositions of Milan
staff were held on July 23, 1997, regarding procedures for
handling inmate certified mail .

FCI Milan - Warden Scibana and Kevin Walasinski, Attorney, met
with the U.S. Attorney, Eastern District of Michigan, and
criminal and civil chiefs on July 24, 1997. This was an
introductory meeting for the Warden. That same day they also
met with the U.S. District Court Judges in the Eastern
District of Michigan for a brown bag luncheon welcoming Warden
Scibana to Milan.
FCI Butner - Three mental health teleconference hearings were
held this month.
Prisoner Litigation Refor.m Act
FC! Cumberland - Exhaustion of Administrative Remedies Willet v. Bidwell (Fourth Circuit) - We currently have this
Bivens case in the Fourth Circuit wherein the District Court
dismissed the action for failure to exhaust administrative
remedies, citing the PLRA . The inmate appealed the case to
the Fourth Circuit. The inmate has raised in the Fourth
Circuit that at the time his cause of action arose (he claims
inadequate medical care) he was not required to exhaust, per
McCarthy v. Madiqan.
Then, when Congress passed the PLRA in
April of 1996, he could not exhaust because he was beyond the
BOP's 20 day time limit to file an
claims he is caught in a "Catch 22."

FCI Cumberland - Carolyn Lanphear, Paralegal, met with
Cumberland Unit Teams and staff from the Business Office on
August 1 to reinforce the provisions of the PLRA with regard
to in forma pauperis filings.
She reiterated the importance
of complying with the process in a timely manner to avoid
contempt charges.
SUBSTANTIVE PLEADINGS (COMPLAINT, MOTION FOR SUMMARY JUDGMENT,
ETC . ) :
Fe! Lexington - Velda Reed and Sharon McGuire v . Reno - We
have prepared and will soon be filing our Sixth Circuit brief
in these consolidated age discrimination cases which challenge
the Bureau's determination that all institution positions are
subject to the 36 year old maximum age requirement . The
plaintiffs' brief argues in essence, that the Bureau went
through a "sham" review of positions in 1988 when the FERS
statutue changed the definition of "'law enforcement officer,"
as we had already determined that our recommendation would be
to include all institution positions within the definition.
I
would expect the Sixth Circuit to grant oral argument on these
cases.

SETTLEMENTS: None

ADVERSE DECISIONS OR SIGNIFICANT DECISIONS:
FMC Lexington - Nidia Collazos-Cruz v. U.S. - The Sixth
Circuit reversed Judge Wilhoit's Order granting summary
judgment for the U.S. in this slip and fall case. The U.S.
successfully argued at the district court level that plaintiff
was at work at the time of her fall and plaintiff's
declaration to the contrary executed in Columbia was not a
proper declaration pursuant to 28 U.S.C. § 1746. The Sixth
Circuit held plaintiff's declaration in Spanish complies with
the statutory provision because part of it mirrors the
statutory language. Since this declaration is valid, it
raises a genuine issue of fact regarding whether plaintiff was
at work at the time of her fall. This ruling raises
interesting and unique legal issues for the district court,
because plaintiff has long ago been deported to columbia and
the U.S. and Columbia have no treaties providing for out-ofperson discovery in civil matters, i.e., telephonic
depositions.
UPDATE ON CASES, TRIALS OR HEARINGS, ETC. NOTED IN PRIOR
REPORTS:
FCI Ashland - Rudd v. Dove - In this Bivens case the Court
ordered the plaintiff to pay the filing fee under the PLRAi
however, the inmate refused to sign the form 24. The inmate
then filed a motion arguing that staff were acting
unconstitutionally and that the required filing fee was
unconstitutional. Randy Smith, Paralegal, then contacted Jane
Graham, Chief, Civil Division, and she agreed that her office
needed to get involved and would either write a letter to the
Court or make a limited appearance, without waiving a
defendant's rights, to inform the Court of the inmate's
action. Presently, summons have not issued to any defendant
in this case.
FCI Manchester - Young v. Chandler - This Bivens case involves
allegations of improper use of force in closing the food slot
on an inmate in SHU. Because the Civil Rights Division was
investigating this case, our staff were approved for private
counsel in the individual capacity claims. The AUSA defended
the official capacity claims. The plaintiff has not
communicated with the court or defense counsels since he filed
a change of address prior to his release in July 1996.
Plaintiff failed to file a response to defendnats' motion to
dismiss the official capacity claims. After two deadlines and
warnings were issued by the magistrate judge, on July 22,
1997, the magistrate judge recommended, without discussion,
granting the government's motion and recommended sua sponte
dismissal of all claims against the defendants in both their
official and individual capacities for failure to comply with
the court's orders and lack of prosecution.
FCI Petersburg - Platshorn v. Hahn - As reported last month,

1997, ordered the BOP to provide the court with a copy of the
former P.S. 5880.20 regarding de-aggregation of sentences. A
copy was provided, along with an excellent declaration by Don
Anderson, Central Office ISM, explaining de-aggregation of
parolable/nonparolable sentences. Petitioner's attorney filed
a motion to strike the declaration as an attempt by the
government to get in "expert" testimony without an opportunity
for petitioner to question. The AUSA filed a response
asserting the declaration is simply an explanation of the
portions of the Program Statement applicable to the court's
inquiry and authentication of the document. We are hopeful
the declaration will not be struck.
FCI Petersburg - Campbell v. Kesler - As reported last month a
hearing is set at FCI Petersburg on September 15 regarding
this Bivens case alleging that Officer Kesler took plaintiff
into the bathroom and assaulted him. The pro se inmate has
filed multiple motions with the court which the court has
ruled on without input from the government. The Judge has
agreed that plaintiff can consult with inmates at Petersburg
during the hearing for legal advice although they may not
participate directly in the hearing. The court denied
plaintiff's motion to compel former Wardens Hahn and Moore as
witnesses, but granted a motion to call various other BOP
staff from Petersburg. The court denied plaintiff's motion to
compel the dismissed defendants to answer interrogatories, but
granted an order directing production of documents to Kathy
Hawk and Margaret Hambrick. Various other motions were
denied.
FCI Memphis - Baker v. U.S. - This FTCA case is set for trial
August 28, 1997. The inmate alleges that we failed to protect
him from the unprovoked attack of another inmate. This newest
district court judge has not been convinced by our cited
authority. However, she has also denied the inmate's request
for witnesses, counsel (or courtroom assistance from another
inmate), and documents. Still, the judge wants a trial,
despite all the documents we've already submitted and her
unwillingness to have other inmates brought to Memphis on
writ.
REPRESENTATION NOT RECOMMENDED FOR STAFF: None
SIGNIFICANT FTCA CLAIMS:
FCI Beckley - We have received claims from an auto accident
occurring nearly two years ago in Kentucky. A vehicle from
FCI Beckley was involved in an auto accident with a civilian
vehicle. All seven occupants of the civilian vehicle,
including a child, were injured. We have received claims from
each, along with subrogation claims from their insurance
companies. The claims total in the millions, and injuries are
apparently severe. The police report, however, indicates the
driver of the civilian vehicle was at fault; our driver was

not cited. We expect to deny these claims, although
litigation is expected.
FCI Memphis - We have received communication from the attorney
representing Barbara Danner, a former contract employee. Ms.
Danner claims her contract was terminated in retaliation for
her attempt to file a sexual harassment claim against a
correctional employee. Ms. Danner's husband, still employed
as an officer at Memphis, also claims harassment on the job as
a result of his wife's situation. The attorney has attempted
to file a tort claim, which has been rejected for as legally
insufficient, and has filed a FOIA request.
FCI Memphis - A medical malpractice claim filed by an attorney
for former inmate Okie Littrell, has been denied. While it is
likely that some medical malpractice liability is extant, the
attorney failed to respond to two separate requests for
authority to represent, and for additional medical data. The
formal denial of the claim for technical reasons, rather than
getting to the merits, will foreshorten the opportunity for
litigation.
FCI Ashland - A medical malpractice claim by former inmate
Dickie Pulliam, is currently under negotiation. Pulliam's
attorney has been informed that while a claim in the amount of
the expected surgery may be considered, no claim for lost
wages will be considered without the provision of considerable
justification in the way of tax returns for the 10 year period
prior to incarceration, and additional confirmation of
employment records, nature of prior employment, etc. The
claim has been transferred to OGe for settlement. This claim
involves unexplained delay in terms of treatment for a knee
injury sustained in a sports accident at the institution.
Subash Duggirala has confirmed that the care inmate Pulliam
received was substandard.
FCI Butner - An administrative claim has been filed by a
paraplegic inmate who was severely burned on his legs. The
hot and cold water taps were reversed in the shower. Due to
his medical condition, the inmate could not feel the hot water
scalding his legs. We have confirmed that the water
temperature was higher than it should have been and that the
hot and cold water taps were improperly reversed.
MEDICAL MALPRACTICE CASES UPDATE:
FCI Morgantown - Guiterrez v. u.s. - This FTCA case arose out
of a fall from a top bunk which resulted in major damage to
the elbow of an inmate who was out on writ housed in a local
jail in Michigan. The primary negligence appears to rest with
the u.s. Marshal's, although they are not actively involved
with the defense of the case. This leaves the BOP making all
settlement decisions. Your office has approved settlement
authority up to $60,000 since this case does involve major

damage to the former inmate's arm. We are working closely
with the AUSA and trial is set for October.
SIGNIFICANT ADMINISTRATIVE REMEDIES:
FCI Ashland - An inmate recently filed a remedy complaining he
was ordered to clean up a blood spill without proper training.
The investigation revealed that the inmate did clean up the
blood spill and was provided the necessary equipment and
supplies for his safety. The Correctional Office disputed the
inmate's version stating the inmate volunteered for the job.
The institution does have inmates trained to clean up blood
spills, but there are no procedures in place on how to utilize
these inmates.
The inmate's request for relief was granted in
that the institution is looking at developing local procedures
that the institution is looking at developing Ideal procedures
to utilize trained inmates to clean up all blood spills.
NEW RFRA CASES AND UPDATES ON PREVIOUSLY REPORTED CASES:
OUr preliminary review indicates we do not have any pending
cases whe're we will need to inform the court of the
Department's position that RFRA is still the applicable
standard in cases involving BOP inmates. Jeff Shorba has been
helping to locate a brief which may have been filed making
this argument, which I plan to share with any AUSA who faces
the issue.
ALTERNATIVE DISPUTE RESOLUTION EFFORTS: None
18 U. S.C.

§

3621(e) LITIGATION :

FPC Alderson - Mildred Thompson v . Hemingway - On July 22,
1997, Magistrate Mary Fienberg held a hearing to determine why
the Bureau of Prisons had not yet published a new policy to
replace the "Crimes of Violence Program Statement which was
declared void in Wiggins v. Wise. At the conclusion of the
'strate called both sides into her chambers
ll

RDAP and requests his immediate release. The inmate alleges
the actions were arbitrary and in violation of his due process
rights. He also alleges that staff falsified memos and
documents, and that expulsion was a breach of contract.
FCI Manchester - Moore v. Chandler - This habeas petition, due
for response on August. 20, 1997, is an 841(A) two point
enhancement case.
FCI Butner - Garvin v. Lappin - This habeas is a two-point
enhancement case. Our motion to dismiss was filed July 22,
1997.
SIGNIFICANT NEW CRIMINAL REFERRALS SINCE LAST MONTH'S REPORT:
UPDATE ON PREVIOUSLY REPORTED CRIMINAL MATTERS:
FCI Petersburg - US v. Ruffo (Jenks request for telephone
tapes) - With the help of Libby Edson and Doug Curless, we
appear to have reached a compromise in this case, wherein
Judge Williams had ordered the government to review for Jenks,
Giglio and Brady material, some 1300 phone tapes of a
cooperating witness who is a pretrial inmate at Petersburg.
This week, defense counsel and an FBI agent will be allowed to
review tapes in the Warden's conference room. The FBI also
requested last week to be able to obtain for their own use,
other tapes of the cooperating witness, but stated they did
not want to give us an administrative subpoena. Given Judge
Williams' court order which clearly prohibits either the BOP
or FBI from sharing any of the tapes with the AUSA, I informed
Petersburg staff to insist that the FBI provide us at a
minimum, with an administrative subpoena.
FCI Ashland - Inmate Steve Gibson, who was charged with escape
and pled guilty, is scheduled for sentencing August 19. The
AUSA notified us that at least one staff member may have to
attend the sentencing hearing and testify that at the time
Gibson was apprehended he was not heading back to the camp,
but walking away from the camp. Judge Wilhoit is the
presiding Judge.
FCI Beckley - Inmate Claude Shafer was recently indicted for
escape from an institution for walking away from the camp at
Beckley.
SUCCESSFUL PROSECUTIONS OR ANY ACQUITTALS SINCE LAST MONTH'S
REPORT: None
REHABILITATION ACT: None
ENSIGN AMENDMENT CASES: None
DISMISSALS UNDER PLRA: None

'.
UNITED STATE
DATE:

Mid-Atlantic Regional Office. Annapolis Ju

REPLY TO Bill Burlington. Regional Counsel
ATTN OF: 'Mi(t::Atlantrc~RegiOQ)
SUBJECT:

;!May.ir199!lI1Moi1thly.;a~pprt

TO:
ATTN:

Wallace H. Cheney. General Counsel
Nancy Redding. Executive Assistant

ADMINISTRATIVE REMEDIES

JAN

FEB

MAR APR MAY JUN

Received
Answered

140
178

146
130

201
135

TORT CLAIMS

JAN

FEB

MAR APR MAY JUN

# Pending
# Received
# Answered
# Pending
# Over Six Month

213
37
180
4*

180
51
39
179
2*

179
66
65
183
3*

FOI/PRIV~CY

JAN

FEB

MAR APR MAY JUN

# Pending
# Received
# Answered
# Pending
# Over 30 Days

66
36
62
43
23

43
33
39
42
21

LITIGATION

JAN

FEB

64

42
51
45
50
18

133
193

183
41
43
181
4*

50
43
24
65
29

JUL

AUG SEP

OCT

JUL

AUG SEP

OCT

JUL

AUG SEP

OCT

JUL

AUG SEP

OCT

142
202

181
70
52
196
4*

65
40
46
51
28

MAR APR MAY JUN

353(1- 352
265
353
Cases Pending
339
17
25
19
13
16
New Cases Received
6
16
12
Habeas Corpus
6
7
5
6
Bivens
6
6
6
2
3
1
FTCA
1
1
2
2
Other
0
0
2
11 18
4
31
12
Cases Closed
251
352
Cases Pending
353
339
343
Lit Reports Completed
19
21
17
18
17
1
CaseslHearings or Trials
0
0
1
1
4(t
3
0
Settlements/Awards
2
0
$95
$ Settlements/Awards
o $3.007 $180
0
($ in Thousands)
*We are in the process of obtaining settlement approval from the Central Office for two of these claims or a check fr
Treasury.
(tlncorrect figure corrected.

ITEMS OF INTEREST, PERSONAL LEAVE, BUSINESS TRIPS, MOVES, ETC.
This month we say farewell to Darrel Waugh, Attorney Advisor,
who will be heading to USP Beaumont, beginning June 23rd.
Darrel has done a tremendous job for us, and will truly be
missed. Our loss, is Paul Layer and Mike Hood's gain, as we
know they will soon learn to appreciate Darrel's many talents.
We all wish Darrel the very best of luck in Texas.
Marian Callahan, Assistant Regional Counsel, will be on annual
leave June 26-July 11, 1997.
Kathy Harris, Paralegal Specialsit, will be on annual leave
June 30-July 4,1997.
Randy Smith, Paralegal, FCI Ashland, will attend Introduction
to Correctional Supervision June 8-10; will be on annual leave
June 23-27; and will hold DHO hearings for Chuck Kilgore on
June 30-July 1.
Matthew Mellady, Attorney, FCI MemphiS, will be in Denver for
Sentencing Issues training June 2-4 and on annual leave
June 5-6, and June 23-27.
Bob Blackburn, Legal Tech, USP Terre Haute, will be on annual
leave June 23-27; and Rick Schott USP Terre Haute Attorney,
will be on annual leave June 30, 1997.
Donald K. Hawkins, Paralegal Trainee, will be at FCI
Petersburg from June 2-13, as part of his institutional
paralegal training.

SITUATION OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS
WASTE SITES, ETC.:
FPC seymour Johnson - We have just learned from the Air Force
that the land on which our prison camp is located, may contain
some hazardous waste. In 1989 when we took over our current
property, we were assured that there were no environmental
issues concerning the land. We will await further information
from the Air Force. On a related note, we are still trying to
negotiate an interagency support agreement, as we have been
without a written agreement for almost two years now. .
USP Terre Haute - Terre Haute has recently instituted a
consistent policy of not allowing contact attorney visits for
inmates in the special housing units. This action was
prompted in part by an influx of Black Gangster Disciple gang
members out of Chicago. So far we have not received any
challenge from the attorneys.
FCI Milan - U.S. District Court Judge Carr, Southern District
of Ohio, requested his office staff tour FCI Milan. The tour
was conducted by Kevin Walasinski and Lynn Bouchillon.

FCI Milan - On June 3, 1997, Kevin Walasinski participated in
a deposition of ISM Stowell regarding an inmate's malpractice
case against his original attorney. This is a state
proceeding and the attorney has complied with all CFR
regulations and permission has been granted by the U.S.
Attorney for Mrs. Stowell to participate.
SUBSTANTIVE PLEADINCS (COMPLAINT, MOTION FOR SUMMARY JUDCMENT,
ETC.):
FCI Manchester· Dunlap v. Fields. et al. - We were informed
that this Bivens suit alleging use of excessive force by staff
is scheduled for a pretrial conference June 10, 1997, with a
jury trial probably later this summer. However, in view of
the Supreme Court's recent decision in Lewis v. Balisok, we
are filing a motion to dismiss arguing that unless and until
inmate Dunlap successfully challenges a DHO finding that he
assaulted staff, he cannot proceed with either a Bivens or
FTCA suit claiming staff assaulted him.
FPC Alderson - Poindexter v. US - Civilian volunteer at FPC
Alderson and an inmate driver were involved in a vehicle
accident in the vicinity of the institution. The inmate
driver, driving a van on a town trip transporting inmates,
attempted to pull into a fast food restaurant. The van hit
the front end of the plaintiffs car. The inmate was cited
for an improper lane change. Attempts at settlement during
the administrative claim stage were not successful. An
attorney is involved and we are still attempting to settle
this case. Liability is clear. A BOP phYSician who maintains
a practice in the community has seen the plaintiff and states,
contrary to much evidence, that her injuries were caused by
our inmate driver. A separate subrogation claim by the
insurance company has been settled.
SETTLEMENTS: None
ADVERSE DECISIONS OR SICNIFICANT DECISIONS:
USP Terre Haute - Bagola v. Kindt - We just learned that the
Department of Justice (Stephen W. Preston, Deputy Assistant
Attorney General) has recommended to the Solicitor General,
that the government argue on appeal in the 7th Circuit, that
the Inmate Accident Compensation Act precludes a remedy under
Bivens. I am particularly hopeful that we can prevail on this
issue in light of the recent Supreme Court opinion in Edwards
v. 8alisok. 1997 WL 155341 (1997). and recent good 7th Circuit
case law. If the Solicitor General agrees, the Department of
Justice will handle the appeal.

FMC Lexington - Velda Reed and Sharon McGuire v. Reno - An
appeal has been taken on these age discrimination cases to the
6th Circuit. As we reported previously, on April 10th. Judge
Karl Forrester rendered a favorable ruling. granting the
government's motion for summary judgment in these consolidated

age discrimination cases. These were significant cases for
the Bureau, as the plaintiffs challenged the Bureau's blanket
policy that all institution positions meet the new FERS
definition of "law enforcement officer."

FCI Ashland - Regis Linn v. USA - This FTC A action arose when
a screw on an overhead fan broke and a small piece of the fan
allegedly struck the visitor's arm causing him to lurch in his
chair and strain his spine and shoulder. We argued, and the
court agreed, that under Kentucky law, the visitor is a
licensee and as such the government would have had no duty to
warn the visitor of the fan's condition, unless we were
already aware of the problem prior to the incident. The court
went on to say that even if the visitor were an invitee, it
would not change the end result. We are asking the United
States Attorney's Office to get this opinion published .
UPDATE ON CASES, TRIALS OR HEARINCS, ETC. NOTED IN PRIOR
REPORTS:
FCI Milan - Idema v. Pontesso - Judge Cohn has ordered a
hearing on June 6 in this habeas case. This is one of two
habeas cases filed by inmate Idema . The case involves Idema's
denial of CCC placement by the CCM's Office based on Idema's
outstanding warrant in the contempt of court order issued by a
county judge in Fishkill, NY. Idema, subsequent to the filing
of the suit, hired an attorney and had the contempt case
dismissed. Unfortunately for Idema he received a series of
incident reports based on his behavior which, at times is very
outrageous . Idema is receiving some media coverage in the
Detroit area based on his assertions that he was a
military/CIA operative, special forces trained and well versed
in counter-terrorism. His J&C fails to confirm any of these
assertions.

USP Terre Haute - Locascio v. Clark - A hearing was held on
May 12, 1997, before Judge McKinney. Locascio filed a TRO,
preliminary injunction, and permanent injunction based on the
fact that he was placed in administrative detention after a
Prime Time live interview with Sammy "The BuW Gravano
indicated that Locascio had conspired to kill John Gotti. In
his complaint, Locascio alleged that he was being denied
access to the court and his counsel since he was in AD and
wanted to be released to the general population . Locascio was
released to general population on Monday morning . This action
was dismissed.

FPC seymour Johnson - Milton v. Flowers, et al. - This is a
Bivens case filed in 1993 with a long procedural history. The
Judge has granted our motion for summary judgment against all
the defendants except Randy Meeks, and the only remaining
issue is whether Randy was deliberately indifferent to
Milton's medical condition when making his job assignment.
The Judge has ordered that Randy Meeks and Warden Flowers be
present at a contempt hearing in Raleigh on June 20, 1997.

The Judge has made it clear that the hearing is limited to the
narrow issue of what did Randy Meeks and Arnett Flowers
actually know regarding Milton's medical condition when they
signed their first declarations in this case . When the
government filed their second summary judgment motion Randy
Meeks filed a second declaration that modified his first
declaration . Bill Burlington, Kathy Harris, and Melvin Lee
(former litigation coordinator from Seymour) will be attending
the hearing.

FCI Petersburg - As previously reported, Frank Karam, Captain,
was subpoenaed and approved to testify in the case of
Commonwealth of VA v. Gerald Timothy Daniel, on May 14, 1997,
in Hanover, Virginia . Correctional Officer Daniel was found
guilty of the traffic offense of "possession of a blue light"
and "possession of a radar detector" and was fined $150. He
was also found guilty of the Class 1 misdemeanor of
"impersonating a police officer by use of a blue light." On
this conviction he wa s sentenced to one month imprisonment,
suspended. Th e charges stemmed from the officer's use of a
personal blue light, en route home, while off duty. Captain
Karam was accompanied to court by Milt Williams , Paralegal.
Administrative action is pending .
REPRESENTATION NOT RECOMMENDED FOR STAFF: None
SIGNIFICANT FTC A CLAIMS:
FCI Butner - On May 6, 1997, we denied an administrative FTCA
claim contending that Bureau of Prisons staff were negligent
in improperly diagnosing and treating former inmate Fernando
Zapata, thereby causing the medical condition which led to his
death on November 4, 1994. The claim sought $1 .5 million in
damages for the wrongful death of inmate Zapata . The
investigation revealed that the inmate was incarcerated at FCI
Altenwood when he began to show signs of what appeared to
staff to be a psychiatric disorder. The inmate was then
transferred to Fel Butner where he died upon his arrival at

that facility. The autopsy revealed that Zapata died of a
rapidly spreading brain cancer. We anticipate a lawsuit with
regard to this incident.

MEDICAL MALPRACTICE CASES UPDATE: None
SIGNIFICANT ADMINISTRATIVE REMEDIES: None
NEW RFRA CASES AND UPDATES ON PREVIOUSL V REPORTED CASES: None
ALTERNATIVE DISPUTE RESOLUTION EFFORTS: None
18 U.S.C. § 3621(e) LITIGATION:
FCI Manchester - Wooley v. Chandler - New habeas petition
received challenging "crime of violence" classification of
section 924 crime .

FCI Morgantown - Pelissero v. Thompson - This case is
currently on appeal to the Fourth Circuit. At the District
Court level Judge Kidd upheld P.S. 5162.02, § g's definition
of "crime of violence, " and thereby denied the inmate's
request for a sentence reduction under §3621 (e)(2)(B) .
In April (after the filing of the appeal and our brief
response) the Wa shington & Lee University Legal Assistance
Program filed an amicus brief on behalf of inmates at FPC
Alderson. Since Judge Kidd 's opinion in this case expressly
rejected the reasoning of Wggins and thereby created a split
between the Northern and Southern Districts of West Virginia,
the Fourth Circuit allowed the amicus brief to be filed . Our
response to that brief is due on June 13. The U.S. Attorney
does not expect the case to be heard until later thi s summer.
We are hoping that the Bureau's imminent publication of the
amendments to 28 C.F.R. Parts 524 and 550 will moot the case.

FCI Milan - Taylor v. Pontesso - In this habeas petition the
inmate alleges he is improperly being denied the benefits of
the RDAP based on his 18 USC 922(g) conviction .

SIGNIFICANT NEW CRIMINAL REFERRALS SINCE LAST MONTH'S REPORT:
UPDATE ON PREVIOUSLY REPORTED CRIMINAL MATTERS:
FCI Memphis - U.S. v. Waiters, Torres, Negron and Green - On
Wednesday, May 14, 1997, a jury returned verdicts of guilty
against all four defendants charged with rioting (18 USC §
1792) and destruction of government property (18 USC § 1361)
during the October 20, 1995, disturbance at FCI Memphis.
Sentencing is set for August 25,1997.
SUCCESSFUL PROSECUTIONS OR ANY ACQUITTALS SINCE LAST MONTH'S
REPORT:
FCI Milan - US v. Morrison - This criminal trial is scheduled
for June 9,1997. The case involves an allegation of rape,
sexual assault, and attempted murder by inmate Morrison .
Morrison engaged in this forceful activity with two inmates.
One of the inmates is now HIV positive. The case has been
scheduled and delayed several times in the past year. The
AUSA is seeking two counts on each of the above charges.
There is a Michigan State law making it a felony with a five
year prison term for an HIV positive person to engage in
sexual activity without disclosing the HIV status to the
partner. There are two counts in the case on this charge.
REHABILITATION ACT: None
ENSIGN AMENDMENT CASES:
FCI Milan - Norman v. Pontes so - This is a Bivens and
declaratory suit challenging the provisions of the 1997
Omnibus Budget Act for fiscal year 1997. It specially

challenges the BOP's implementation of the Ensign Amendment.
Copies of the complaint have been forwarded to the Central

Office and DOJ.

LSCI Butner - Patch, et al. v. Reno. et al. - This Bivens
case, also with claims for injunctive and declaratory relief,
involved allegations from inmates at LSCI Butner claiming
First Amendment violations due to statutory restrictions
placed on the inmates' receipt of sexually explicit
publications (Ensign Amendment). All of the plaintiffs,
except Patch , were dismissed for failure to exhaust under the
PLRA. Claims for monetary damages against the defendants in
their official capacity were dismissed under the doctrine of
sovereign immunity. The claims against the defendants in

their individual capacity were dismissed based on qualified
immunity. The claims for injunctive and declaratory relief
were dismissed for failure to prove "injury in fact."

Dismissals Under PLRA: None

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UNITED STATE
Mid-Atlantic Regional Office, Annapolis Ju

DATE:
REPLY TO Bill Burlington, Regional Counsel
ATINOF: Mid-Atlantic Region
SUBJECT: June 1997 Monthly Report
TO:
ATIN:

Wallace H. Cheney, General Counsel
Nancy Redding, Executive Assistant

ADMINISTRATIVE REMEDIES

JAN

FEB

MAR APR MAY JUN

Received
Answered

140
178

146
130

201
135

TORT CLAIMS

JAN

FEB

MAR APR MAY JUN

# Pending
# Received
# Answered
# Pending
# Over Six Month

213
37
64
180
4*

180
51
39
179
2*

179
66
65
183
3*

FOI/PRIVACY

JAN

FEB

MAR APR MAY JUN

#
#
#
#
#

66
36
62
43
23

43
33
39
42
21

JAN

FEB

Pending
Received
Answered
Pending
Over 30 Days

LITIGATION

42
51
45
50
18

133
193

183
41
43
181
4*

50
43
24
65
29

142
202

181
70
52
196
4*

65
40
46
51
28

JUL

AUG SEP

OCT

JUL

AUG SEP

OCT

JUL

AUG SEP

OCT

JUL

AUG SEP

OCT

172
164

196
69
60
203
4*

51
46
53
52
21

MAR APR MAY JUN

Cases Pending
265
353Q 352
353
339
343
New Cases Received
25
17
19
13
16
16
Habeas Corpus
16
6
6
12
7
9
Bivens
5
6
6
6
6
4
FTCA
2
1
3
1
1
2
Other
2
0
0
1
2
2
Cases Closed
11 18
4
31
12
20
Cases Pending
251
352
353
339
343
339
Lit Reports Completed
19
21
17
18
17
12
Cases/Hearings or Trials
1
0
1
1
0
3
4(t
Settlements/Awards
3
0
2
0
0
$ Settlements/Awards
$95
o $3.007 $180
0
0
($ in Thousands)
*We are in the process of obtaining settlement approval from the Central Office for three of these claims or a check
Treasury; one claim was just recently transferred from another Region.
(tlncorrect figure corrected.

ITEMS OF INTEREST, PERSONAL LEAVE, BUSINESS TRIPS, MOVES, ETC.
Bill Burlington, Regional Counsel, will be in the Regional
Office July 15-17, 1997.
This month we welcome Michael Pybas and Joan Brooks to the
Regional Office. Joan comes to us from Central Office, where
she worked in the FOIA section. Michael Pybas rejoins the
Regional Office (having left for a four year tour at FDC
Miami), this time in the role of Deputy Regional Counsel. We
are delighted to have Michael and Joan with us. We would also
like to thank Mike Bredenberg and Rick De Aguiar for the
assistance they provided to our office during our time of staf
shortage.
We would like to congratulate Randy Smith on his selection as
the paralegal at FCI Elkton. In this role, he will be dOing
shared services whereby he will service both Elkton and
Ashland.
Milt Williams, Paralegal, FCI Petersburg, will be on annual
leave July 13-26, 1997.
Debbie Munson, Attorney, FCI Beckley, will be on annual leave
July 18-25, 1997.
Mike Robar, Paralegal, FCI Manchester, is the Acting Executive
Assistant at the institution from June 30-July 7.
Randy Smith, Paralegal, FCI Ashland, will be on a house
hunting trip to Elkton August 3-12.
Jeanette Hafer, a paralegal intern, will be training in the
legal office at USP Terre Haute July 7-23.
The following staff at USP Terre Haute will be on leave as
indicated: Rick Schott, Attorney, July 1-3; Teresa Marvel,
Paralegal, July 7-11; and Randi Everett, Legal Tech, July 2125.

SITUATION OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS
WASTE SITES, ETC.:
FCI Petersburg - We have been contacted by Techlaw, a private
environmental firm who has been hired by the Army, regarding
the landfill at FCI Petersburg. Techlaw has filed two FOIA
requests, and is asking to speak with Petersburg staff who
have information about a landfill which the Army and FCI
Petersburg use. We believe the purpose of these contacts is
to try and hold the Bureau partially responsible for the
cleanup of the landfill. At the time we created the landfill,
we issued a permit to the Army, wherein they agreed to assume
full responsibility for the landfill. We will be asking for
Marianne Cantwell's assistance at a meeting we hope to set up
with the Army in the near future.

USP Terre Haute· Non Contact Attorney Visits· We reported
last month that T e rre Haute recently instituted a consistent

policy of not allowing contact attorney visits for inmates in
the special housing units. This action was prompted in part
by an influx of Black Gangster Discipte gang members out of
Chicago. We recently learned that attorneys for the inmates
have filed motions in Chicago challenging this action . Warden
Clark recently modified the visiting arrangements to allow
limited contact vi sits with attorneys .

FCI Elkton· City Tax of Bureau Employees - We are currently
appealing an atlempt by the City of Salem, to impose a 1% city
work tax on employees from FCI Elkton , who were temporarily
stationed at a warehouse within the City of Salem. We are not
confident that we will prevail before the City, and will
probably elect not to pursue the matler for fear of straining
our new relationship with local leaders.

Prisoner Litigation Reform Act· Filing Fees· McGore v
wrigglesworth, 1997 WL 309600 (6th Cir. 1997). In this
deciSion, the 6th Circuit holds the duty to cal culate the
initial filing fee , the duty to calculate sub sequent
deductions, and the duty to forward fees to the District Court
all rest with the custodian . This decision has been called to
the atlention of legal staff in the 6th Circuit, with
directions to en sure that their staff are aware that we must
comply with court orders to deduct fees from an inmate's
account.

FCI Memphis - At the request of the U.S. Probation Office, a
Confirmation of Loss and Declaration of Victim Losses on

behalf of Warden Luttrell was submitted in the cases of U.S.

v. Walters Green, Torres and Negron, the riot prosection
cases. This information was provided pursuant to the
Mandatory Victims Restitution Act of 1996 which provides for
restitution to victims directly and proximately harmed as a
result of the commission of a criminal offense .

SUBSTANTIVE PLEADINGS (COMPLAINT, MOTION FOR SUMMARY JUDGMENT,
ETC.):
FCI Milan· craig Oliver v Palmitier and Eleanor Brown - In
this habeas petition, we had an inmate seek to apply the
recent decision in Young v Harper, 117 S.C!. 1148 (1997) to a
work-release program run from a contract jail. We argued that

the facts in

Young limited the holding to persons who had been

released from confinement and who were on a program that was

functionally equivalent to parole .

FCI Manchester· Dunlap v Fields, et al. . We were informed
that this Bivens jury trial has been pushed back and will
probably go to trial in September. This suit alleges use of
excessive force by staff. In view of the Supreme Court's
recent decision in Lewis v Balisok, we hope to file a motion
to dismiss arguing that unless and until inmate Dunlap

successfully challenges a DHO finding that he assaulted staff,
he cannot proceed with either a Bivens or FTCA suit claiming
staff assaulted him.

SETTLEMENTS: None
ADVERSE DECISIONS OR SICNIFICANT DECISIONS:
FCI Beckley - Keats v. Olson - Objections were filed to the
Magistrate's R&R in this habeas case. The Magistrate
concluded that the inmate's sentence commenced when the BOP
accepted him into custody to serve his federal sentence, even
though the state had primary jurisdiction and the federal
sentence was to run consecutive to the state sentence. The
BOP's mistake (in accepting him in custody instead of sending
him to the state) effectively turned the consecutive sentence
into a concurrent sentence. The Magistrate also found that
there had been a due process violation, which could possibly
lead to Bivens liability for those who computed the sentence.

UPDATE ON CASES, TRIALS OR HEARINCS, ETC. NOTED IN PRIOR
REPORTS:
FPC seymour Johnson - Milton v. Flowers. et al. - This is a
Bivens case that was originally filed in 1993. The Judge
ordered a contempt hearing on plaintiffs request for
sanctions. The hearing was held on Friday, June 20,1997, at
10:00 a.m. in Raleigh with Warden Flowers, Randy Meeks,
Charlie Hamilton (retired AUSA previously involved in the
case), Kathy Harris and Bill Burlington in attendance. When
the pro se plaintiff had not appeared by 10:30, the Judge
stated that he would not rule on the motion. The Judge agreed
to consider a motion for attorney's fees and costs (totaling
$6,500), and to order the plaintiff to show cause in ten days
why the remaining issue should not be dismissed. The AUSA
filed the motion on June 24, 1997. If the Judge awards
attorney's fees and costs against the plaintiff, it is
unlikely he will pursue the remaining issue.
FC. petersburg - Campbell v. Kesler. et a!. - This Bivens case
involves an alleged assault on inmate Campbell by Officer
Kesler in February 1996. In an order filed May 30, 1997, the
court granted all defendants' motion to dismiss/motion for
summary judgment except the claim of excessive force against
Kesler. The court cited a material issue of fact as to
whether the alleged assault occurred and whether Kesler was
involved. The court also noted that while the injuries to
Campbell (hematoma to both arms) was not serious, the court
could not say at the time they were de minimis as a latter of
law. The court referred the matter to the Magistrate Judge
for an R&R. At the Court's suggestion and with the approval
of the Warden, Magistrate Judge William Prince has set the
matter for a hearing on Monday, September 15,1997, at FCI
Petersburg. Anita Henry, AUSA, tentatively plans to come to

the institution on September 4 and 5 for trial and witness
preparations.

FCI Petersburg - Platshorn v. Hahn - An evidentiary hearing
was held on June 4, regarding the aggregation of a parolable
sentence with a non-parolable sentence. Platshorn who was
released on parole from the parolable portion of the sentence,
seeks to have SGT earned on the parolable sentence applied to
the consecutive non-parolable sentence . John White, RISA,
testified at the hearing and presented an excellent
explanation of the computation by BOP. The AUSA and Milt
Williams, Paralegal, FCI Petersburg, got the impression that
regardless of § 4161 maximum rate of SGT, Magistrate Judge
Lowe intends to somehow hold that Plats horn is entitled to
additional SGT. On June 30 , 1997, Magistrate Judge Lowe
ordered the BOP to provide the court by July 11 a copy of the
P.S . in existence prior to 5880.30.
FCI Milan - Idema v. Pontesso - A hearing was held on June 9,
1997, regarding this habeas petiti on . The Judge acknowledged
that referral and CCC placement decisions were at the BOP's
discretion. BOP staff advised the Judge that CCC referral for
Idema would be completed pending disposition of the incident
reports the inmate had received .

REPRESENTATION NOT RECOMMENDED FOR STAFF: None
SIGNIFICANT FlCA CLAIMS: None
MEDICAL MALPRACTICE CASES UPDATE: None
SIGNIFICANT ADMINISTRATIVE REMEDIES:
FCI Manchester - There have been five administrative remedies
filed at Manchester resulting from a training incident on
June 3, 1997, in which inmates were exposed to gas. The
exposure was caused by a sudden change in the wind direction
and an After Action Team has completed its report.
NEW RFRA CASES AND UPDATES ON PREVIOUSLY REPORTED CASES: None
ALTERNATIVE DISPUTE RESOLUTION EFFORTS: None
18 U.S.C. § 3621(el LITIGATION:
FPC Alderson - Gary v. Hemingway - This is a new 3621 case .
The petition asks the Court to declare the inmate eligible for
early release under the authority granted to the Court in 5
U.S.C. § 706(1), due to the Bureau of Prisons unreasonable
delay in promulgating a new program statement.
FCI Milan - Alston v. Pontesso - This habeas petition
challenges the denial of a year-off under the provisions of
3621 since petitioner had been convicted of a firearms

offense. The court dismissed the case for failure to exhaust
administrative remedies.

FCI Beckley - A hearing has been set for July 16th in the
early release cases involving Beckley inmates regarding the
length of time it is taking the new rule to be adopted in
determining eligibility for the year off. Debbie Munson,
Attorney, FCI Beckley, is working with Roy Nanovic from your
office on a declaration giving a status report on the
rulemaking procedure.
SICNIFICANT NEW CRIMINAL REFERRALS SINCE LAST MONTH'S REPORT:
UPDATE ON PREVIOUSLY REPORTED CRIMINAL MATTERS:
FCI petersburg - Jenks Request for Telephone Tapes - As part
of a Jenks Act request, a judge in the Eastern District of
Virginia has held that an inmate witness' telephone tapes are
in the possession of the prosecuting AUSA, and consequently,
FCI Petersburg must copy and produce the tapes for defense
counsel. The inmate witness was a pre-trial inmate. Because
he did not work, he was able to make 1300 calls during a six
month period. We are asking the AUSA to file a motion to
reconsider asking to limit the number of calls we must
produce.

SUCCESSFUL PROSECUTIONS OR ANY ACOUITTALS SINCE LAST MONTH'S
REPORT: .
FCI Milan - As previously reported inmate Morrison was
criminally charged with two counts of attempted murder, two
counts of aggravated assault, and one count of witness
tampering. Trial was held the first week of June and the
inmate pled to one count of witness tampering after the Judge
separated the trial based on the two separate victims and the
inmate had been found not guilty on one count of attempted
murder and aggravated assault.
USP Terre Haute -Inmate Howard Kelly, Reg. NO. 00525-032,
plea bargained for 57 months consecutive, no fine, and three
years supervised release for Mailing Threatening
Communications.

FMC Lexington - us v. Alvarez - Defendant Alvarez, Reg. No.
37691-004, was tried for allegedly stabbing inmate Joffre,
Reg. No. 33902-004, in Bluegrass Housing Unit in January 1997,
apparently in a dispute over usage of a microwave oven.
Despite being prepared by the AUSA, when inmate Joffre took
the stand for direct questioning, Joffre answered each
question by loudly stating that the defendant had stabbed him.
A mistrial was declared after all but one juror voted to
acquit Alvarez. Another trial has tentatively been docketed
for August 1997.
.

REHABILITATION ACT: None
ENSIGN AMENDMENT CASES: None
DISMISSALS UNDER PLRA:
FCI Memphis - Harrison v. USA - Inmate's request to the Sixth
Circuit to voluntarily dismiss this case was granted on June
19, 1997. The inmate's reason for seeking dismissal was the
fact that he could not pay the filing fee now or within 30
days.

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•
'1

UNITED STATES GOVERNM
memo ran
Mid-Atlantic Regional Office, Annapolis Junction, MD 20

DATE:

REPLBill Burlington, Regional Counsel

ATT~id-Atlantic Region (NlA/(q)
r
SUBJuly 1997 Monthly Report

TOWallace H. Cheney, General Counsel
ATTN:

Nancy Redding, Executive Assistant

ADMINISTRATIVE REMEDIES

JAN

FEB

MAR

APR

MAY

JUN

JUL

Received

Answered

140
178

146
130

201
135

133
193

142
202

172
164

154
158

TORT CLAIMS

JAN

FEB

MAR

APR

MAY

JUN

JUL

#
#
#
#
#

Pending
Received

Answered
Pending
Over Six Month

FOI / PRIVACY

JAN

FEB

MAR

43
33
39
42
21

42
51
45
50
18

APR

MAY

JUN

JUL

50
43
24
65
29

65
40
46
51
28

51
46
53
52
21

52
69
50
77
32

APR

MAY

JUN

JUL

66
36
62
43
23

LITIGATION

JAN

Cases Pending

265
353 0 352
353
339
25 17
19
16
13
16
6
12
7
6
5
6
6
6
2
1
1
2
0
2
0
'12
11
If
4
251 352
353
339
343
19
21
17
18
17
0
0
3
0
$95
0 $3. ($'l80

Habeas Corpus

Bivens
FTCA
Other
Cases Closed
Cases Pending

SEP

OCT

NOV

DE

AUG

SEP

OCT

NOV

DE

AUG

SEP

OCT

NOV

DE

AUG

SEP

OCT

NOV

DE

213
180
1 79
183
18 1
203
196
37
51
66
41
70
69
56
64
39
65
43
52
60
63
180
1 79 183
181
196
203
1 97
4'
3'
4'
4*
4*
3*

# Pending
# Received

New Cases Received

AUG

FEB

MAR

343 339
23
16
11
5
4
3
14
20
339 348
1 :'
15

Lit Reports Completed
Cases/Hearings or Trials
1
0
Settlements/Awards
$ Settlements/Awards
0
($ in Thousands)
*We are in t h e process of obtaining se t tlement approval from the Centra l Offi ce for on
Qlncorrect figure corrected.

UNITED STATES GOVERNM
memo ran
Mid-Atiantic Regional Office, Annapolis Junction, MD 2~:

DATE:

REPLBill Burlington, Regional Counsel
ATTNMid-Atlantic Region
SUBAtigust 1997 Monthly Report

\~(IJ.Af.J))

TOWallace H. Cheney, General Counsel
ATTN:

Nancy Redding, Executive Assistant

ADMINISTRATIVE REMEDIES

JAN

FEB

MAR

APR

MAY

JON

JUL

AUG

Received
Answered

140
178

146
130

201
135

133
193

142
202

172
164

154
158

184
189

TORT CLAIMS

JAN

FEB

MAR

APR

MAY

JON

JUL

AUG

#
#
#
#
#

Pending
Received
Answered
Pending
Over Six Month

SEP

OCT

NOV

DE

SEP

OCT

NOV

DE

SEP

OCT

NOV

DE

SEP

OCT

NOV

DE

213
180
179
183
181 196
203
197
37
51
66
41
70
69
56
91
64
39
65
43
52
60
63
52
180
179 183
181 196
203
197 210
4·
3·
4*
4·
3·
1*
4*

FOI/PRIVACY

JAN

Pending
Received
d

66
36
62
43
23

LITIGATION

JAN

Cases Pending
New Cases Received
Habeas Corpus
Bivens

265
353¢- 352
353
339
343 339
348
25 17
19
13
16
16
23
6
6
12
16
6
7
11
4
5
6
665
o
2
1
1
4
1
2
o
023
·12
11
1£
4
20
14
19
251 352
353
339
343
335
339 348
19
21
17
18
17
1!
23
o
0
1

FTCA

FEB

MAR

43
33
39
42
21

FEB

42
51
45
50
18

MAR

APR

MAY

JON

JUL

50
43
24
65
29

65
40
46
51
28

51
46
53
52
21

52
69
50
77
32

APR

MAY

JON

JUL

AUG
77
27
72
63
37

AUG

Other
Cases Closed
Cases Pending
Lit Reports Completed
Cases/Hearings or Trials
Settlements/Awards
3
o
o
1
$ Settlements/Awards
$95
o $3. ($·180
$0.2
($ in Thousands)
*We are in the process of obtaining settlement approval from the Central Office for th
~Incorrect figure corrected.

ITEMS OF INTEREST, PERSONAL LEAVE, BUSINESS TRIPS, MOVES, ETC.

Bill Burlington, Regional Counsel: I will be in the Regional
Office/Regents University, September 8-9. September 10-14 I
will attend ADR Training at Duke University. I will be
participating in a Legal Management Review at FCI Sheridan
September 22-26.
Michael Pybas, Deputy Regional Counsel, will travel to
Lexington, Kentucky, September 15-16, to meet with the Civil
Division in the U.S. Attorney's Office, and to conduct staff
assists at FMC Lexington and FCI Manchester. On September 8
he will conduct a training session for CMC's from around the
Region about the current eligibility determinations for time
off in conjunction with DAP.
September 15th we welcome David Recker, Honors Attorney, to
the Regional Office. David comes to us from the state of
Minnesota where he attended William Mitchell Law School. We
will sadly say goodby to Rochelle Gross who has accepted a
position (and a nice promotion) with the FBI. Rochelle has
been given a reporting date of September 15th. A big thank
you to Saku Papino for her assistance in the Regional
Counsel's Office.
On August 27th the Chief of Civil and her staff in the Eastern
District of Kentucky took Randy Smith, Paralegal, FCI Ashland,
to lunch and presented him with a letter and certificate of
appreciation for all the litigation support he has provided
the office during his time at Ashland. Randy will now be
located at FCI Elkton, but will handle Ashland and Elkton.
Matthew Mellady, Attorney, FCI Memphis, will be attending the
Tennessee state-wide conference on the PLRA sponsored by the
U.S. District Court for the Western District of Tennessee on
September 12, 1997. Earlier this month, the legal office at
Memphis coordinated a survey of 110 inmates conducted by
representatives of the Bureau of Census.
Carolyn Lanphear, Paralegal, FCI Cumberland, will be on annual
l·eave September 8 -12 .
Bob Blackburn, Legal Tech, USP Terre Haute, will be on annual
leave September 22-16; and Teresa Marvel, Paralegal, will be
on annual leave September 19-24.
Mike Robar, Paralegal, FCI Manchester, attended his first
meeting as a member of the Risk Management Committee for
medical treatment. These meetings are held once each quarter.
Mike will be on a recruiting trip to Ft. Knox on September 1819.
SITUATION OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS
WASTE SITES, ETC.:

FCl Butner - Two video conference mental health hearings were
held at Butner in August.
Butner Complex - The North Carolina Department of Environment,
Health and Natural Resources issued a notice of violation of
various provisions of the Clean Air Act related to
installation of certain generators, boilers, etc., at the
Complex, without obtaining appropriate permits, and has
assessed a fine in the amount of $3,563. This matter is being
handled by Marianne Cantwell, OGC, who has drafted a response
advising the state that the complex is not subject to civil
penalties because the federal government has not waived
sovereign immunity under the Act.
FCl Milan - On August 15 a status conference was held with
Judge Cohn regarding Idema v. Pontesso (three separate
actions). The Judge indicated one of the three cases has been
dismissed, but no written order has been received. The judge
inquired into the status of the CCC referral for inmate Idema.
The judge was advised the referral was withdrawn by the Warden
based on Idema's continued institutional misconduct. The
Judge requested additional information on exhaustion of
administrative remedies regarding CCC placement and the RDAP
program.
Prisoner Litigation Refor.m Act
Filing Fees - Eastern District of Kentucky - As a result of
language from McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th
Cir. 1997) that by filing a civil action or appeal, " ... the
prisoner waives any objection to the withdrawal of funds from
the trust account by prison officials to pay the prisoner's
court fees and costs ... ", one Magistrate Judge has indicated
he expects the Bureau to withdraw funds even if the inmate has
not signed a consent form authorizing such withdrawal. I am
working with the Chief of Civil, Jane Graham, to try and
convince the Magistrate and Clerk that the PLRA did not repeal
the statute which created our inmate deposit fund, and thus,
we cannot withdraw funds from such accounts without a prior
consent from the inmate.
SUBSTANTIVE PLEADINGS (COMPLAINT, MOTION FOR SUMMARY JUDGMENT,
ETC.) :
FCI Lexington - Velda Reed and Sharon McGuire v. Reno - We
have now fully. briefed this case and are waiting for the Sixth
Circuit to set a date for oral argument. This is an age
discrimination case which challenges the Bureau's
determination that all institution positions are subject to
the 36 year old maximum age requirement.
SETTLEMENTS:
LSCl Butner - Funderburk v. USA - Parties filed a stipulation

Funderburk $183.35 for the loss of his personal property. We
felt we would not be able to prevail on the issue of liability
were this case to proceed to trial.
ADVERSE DECISIONS OR SIGNIFICANT DECISIONS:
FCI Manchester - Kevin Shehee v. Michael Robertson. et al.,
No. 96-173. This is a Bivens retaliation case in which the
inmate claims that he was fired from his commissary job and
prevented from ordering hobby craft materials in retaliation
for filing an administrative remedy request. The Magistrate
Judge's R&R of August 21, 1997 recommended denial of motions
to dismiss filed on behalf of staff at Manchester, the
Regional Director and Senior Deputy Regional Director, and the
National Appeals Administrator. Objections were filed to the
recommendations, particularly on the issues of long arm
jurisdiction, respondeat superior and qualified immunity.
Three of the administrators were left in the lawsuit simply
because they signed administrative remedy responses, and the
former Warden and the Regional Director were kept in the
Bivens action because they delegated authority to sign the
responses for them to others.
FCI Ashland - Jack J. Pearson v. Dan Dove, No. 97-75. On
August 19th the Magistrate Judge entered an R&R recommending
that an order be entered compelling the Bureau of Prisons to
transfer this inmate from FCI-Ashland to FCI-Coleman, to
facilitate his need to be closer to his attorney in Tampa
during the pendency of his appeal. The Court placed great
reliance on the population figures from "Monday Morning
Highlights" submitted by the inmate, reasoning that since
Ashland was more overcrowded than Coleman there was no good
reason why he should not be moved. Objections were filed
based on the lack of authority and jurisdiction of the courts
to designate the place of an inmate's confinement, and failure
to meet mandamus requirements. Also objections were lodged
based on 18 USC §3625 forbidding judicial review of certain
Bureau functions relating to inmates, and failure to make
findings required by 18 USC §3626(a) of the Prison Litigation
Reform Act prior to the entry of any prospective relief in a
prison case (specifically the identification of a violation of
the federal right of a prisoner). The week before the entry
of the R&R, the inmate's Unit Team approved his transfer
request, which was subsequently approved by the Warden and
Region. He is scheduled to be transferred in early September
to FCI-Coleman.
FMC Lexington - Magistrate Peggy Patterson made a significant
ruling in a Bivens case arising out of FMC Lexington. Relying
on Street v. Bradford, 886 F.2d 1472 (6th Cir. 1989), a nonBivens securities case, Magistrate Patterson ordered that the
Defendants' Motion to Dismiss, or in the alternative, for
Summary Judgment, be construed only as a Motion to Dismiss,
and the declarations supporting summary judgment shall be

party may move for summary judgment asserting the opposing
party will not be able to produce sufficient evidence at trial
only after the parties have been afforded sufficient time for
discovery. The Chief of Civil received confirmation from the
office of the Magistrate that in the future Bivens cases
should only be addressed with a Motion to Dismiss. OUr·
position is that Patterson's ruling based on Street is
distinguishable from our Bivens cases, where defendants are
shielded by qualified immunity. Legal staff in the Eastern
District of Kentucky will argue no violation of any clearly
established right and that the defendants acted reasonably
within the scope of their duties, along with other 12(b) and
PLRA defenses.
UPDATE ON CASES, TRIALS OR HEARINGS, ETC. NOTED IN PRIOR
REPORTS:
FCI Petersburg - Campbell v. BOP - This Bivens case alleging
assault by staff was set for hearing on September 15, 1997.
Campbell had been granted permission by the court to permit
two inmates to assist him at the hearing although they could
not actually participate in the hearing. Campbell never named
the two inmates he wished to assist him. Campbell then filed
a motion for appointment of counsel which the court denied.
After talking to the Clerk of the Court and being advised of
the effects of filing a motion to dismiss the case, Campbell
decided to dismiss the suit. The Judge issued an order
dismissing the case with prejudice on September 3, 1997.
FCI Memphis - Coval Baker v. USA - This is an alleged failure
to protect FTCA case arising out of the unprovoked attack by
inmate Paulino on inmate Baker. Trial was to begin Friday
morning but had to be delayed until 1:00 p.m. because the
Judge failed to writ out the inmate. USMS and R&D staff
worked quickly to get the inmate to court by 1:00 p.m. The
pro se inmate was permitted to call one inmate and one staff
member as witnesses. At the conclusion of the plaintiff's
case, AUSA Quarles moved for a judgment as a matter of law as
the plaintiff had failed to establish a prima facie case of
negligence. After a few moments of consideration, the Judge
granted the motion and ruled in favor of the government.
It
is interesting to note that plaintiff did not present any new
evidence that had not already been rebutted in prior
pleadings. Nothing new was revealed that made the trial any
more detailed than the pleadings already before the court.
REPRESENTATION NOT RECOMMENDED FOR STAFF: None
SIGNIFICANT FTCA CLAIMS:
FCI Memphis - Leonard Bourque, #T-MXR-97-0S6. This claim
stems from the expungement of an incident report and lost
UNICOR wages.
Inmate Bourque had a positive UA and originally
health services staff indicated he was not on any medication

hearing the DHO again c ontac t e d Hea lth Services since the
inmate ' s defens e wa s h e wa s on med ica ti on c a using t he p o sitive
result. This time health services did report he was in fact
on medi ca tion which c ould c au se po sitive test results.
The
incident report was e x punged. The inma t e filed the tort claim
s tating t hat due to st a ff negli gence in not reporting the
medication, the governme nt is li able for his lost wages.
Me mphis' denial of the c laim wa s bas ed on the fact the inmat e
has neither a liberty no r prope rty int e rest in either a prison
j o b or the wages to be ea rned fr om that job. Memphis did not
want to set a precede nt wherein inmates whose incident reports
were expunged based on some i mproper part of the staff's
investigation could receive back pay for the time they were
away from their job.

MEDICAL MALPRACTICE CASES UPDATE: None
SIGNIFICANT ADMINISTRATIVE REMEDIES: Non e
NEW RFRA CASES AND UPDATES ON PREVIOUSLY REPORTED CASES: None
FCI Beckley - Cl arence Pe rk i n s v. Lt . Ba rna rd. et al. - Thi s
Bi ve ns a ction all e ges that t h e i n mate's rights under the
Eighth and Fourte e nth Ame ndme nts h ave been violat e d because
the inmate (a Sunni Mu s lim) had to s ubmit to a pat search by a
One c o ncern we h ave in re s p o nding to the
f e male o fficer.
claim, is that the inmate doe s not raise RFRA as the standard
which g ove rns this religi ous i ssue. We will be s eeking
guidance as to whether we mu s t raise RFRA to the court where
the inmate fails to mention it.

ALTERNATIVE DISPUTE RESOLUTION EFFORTS: None
18 U.S.C. § - 3621(e} LITIGATION:
FCI Milan - Scott v. Pontesso - Received this habeas petition
this month wherein the inmate all e ges BOP's inclusion of
previous convictions as a basis for non-eligibility for the
one year off provisions of VCCLEA is not a permissible
interpretation of the statute.

SIGNIFICANT NEW CRIMINAL REFERRALS SINCE LAST MONTH'S REPORT:
UPDATE ON PREVIOUSLY REPORTED CRIMINAL MATTERS:

FCI Petersburg - United States v. Ruffo - (Jenks request for
telephone tapes) - FCI Petersburg continues to assist defense
counsel in listening to some 1300 phone calls that were made
by a pretrial inmate (Reiners) who is listed as a cooperating
witness. The defense has refused to tell us from which master
tapes they taped calls, which then requires us to preserve
each master tape. With Doug CUrless' help, we have asked the
AUSA to argue that defense counsel must either tell us when
they record a call from a master tape (so we will know whether
to preserve it) or start providing us with new blank tapes so
our supply is not depleted.
FCI Cumberland - On August 29, 1997, Warden Bidwell and I met
FCI Cumberland - On August 29, 1997, Warden Bidwell and I met
with officials from the Baltimore FBI and U.S. Attorney's
office regarding what they perceive as an increase in the
number of requests for criminal prosecution that have been
coming out of FCI Cumberland. Initially, the U.S. Attorney's
office had suggested that they do not have the manpower to
take all the cases we want prosecuted, and that they wanted us
to refer some of the cases to the local county prosecutor.
Warden Bidwell very effectively argued that he opposed that
position and that he felt it would be extremely unfair to
place that federal prosecutorial burden on the state. We also
presented proposed prosecution guidelines that would clarify
what cases should be prosecuted, as the U.S. Attorney's office
recently indicated they would not prosecute an escape from the
camp. They agreed to reconsider that case.
FCI Memphis - United States v. Corteous Boslev - In this case,
the inmate walked away from the satellite camp and was gone
for three days. He was subsequently arrested when the car he
was riding in was stopped for a' routine traffic stop. The
driver of the vehicle was cited for two traffic offenses, two
other passengers were arrested for possession of marijuana,
and inmate Bosley was discovered to have an outstanding
warrant for escape. Local law enforcement turned him over to
the U.S. Marshals. The U.S. Attorney's office agreed to
prosecute.
SUCCESSFUL PROSECUTIONS OR ANY ACQUITTALS SINCE LAST MONTH'S
REPORT: None
REHABILITATION ACT:
USP Terre Haute - Furino v. FBOP, et al. - In this Bivens
action alleging that the BOP is forcing him to work in job
assignments that exacerbate his AIDS condition, the inmate
raises jurisdiction under the Rehabilitation Act.
ENSIGN AMENDMENT CASES: None
FCI Beckley - Maydak v. Bidwell - Filed by two inmates just
before the Act was found to be unconstitutional, this habeas

into FeI Beckley. The case has been referred to DOJ, and a
response is due in October.
DISMISSALS UNDER PLRA: None

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...

UNITED STATES GOVERNMENT

memorandum
DATE:

October 7, 1997Mid-Atlantic Regional Office, Annapolis Junction, MD 20701

Bill Burlington, Regional Counsel

REPLY TO

. - ,-/

ATTN OF:

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TO:

Wallace H. Cheney, General Counsel

ATTN:

Nancy Redding, Executive Assistant

ADMINISTRATIVE REMEDIES
NOV

JAN FEB
DEC

MAR APR MAY JUN JUL

Received
Answered

140
178

201
135

TORT CLAIMS
NOV

JAN FEB
DEC

MAR APR MAY JUN JUL

213 180
37
51
64
39
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3*
1*
1*

JAN FEB
DEC

MAR APR MAY JUN JUL

#
#
#
#
#

Pending
Received
Answered
Pending
Over Six Month

FOI/PRIVACY
NOV
#
#
#
#
#

Pending
Received
Answered
Pending
Over 30 Days,

66
36
62
43
23

146
130

43
33
39
42
21

42
51
45
50
18

LITIGATION
NOV

JAN FEB
DEC

Cases Pending
New Cases Received
Habeas Corpus
Bivens
FTCA
Other
Cases Closed
-Cases Pending
Lit Reports Completed

265 353<t 352
25 17
19
16
6
12
6
5
6
3
2
1
0
2
2
11 18
4
251 352 353
19 21
17

133
193

50
43
24
65
29

142
202

65
40
46
51
28

172
164

51
46
53
52
21

154
158

52
69
50
77
32

MAR APR MAY JUN JUL
353 339
13
16
6
7
6
6
1
1
0
2
31 12
339 343
18
17

AUG SEP
184
189

157
169

AUG SEP

AUG SEP
77
27
72
63
37

OCT

OCT

OCT

63
56
68
39
15

AUG SEP

343 339 348 335
16 23
6
13
9 11
4
8
4
5
0
1
2
4
1
3
1
3
1
1
20
14
19 17
339 348 335 331
12
15
23 10

OCT

1
1
1
1
o
0
1
3
o
Cases/Hearings or Trials
o
o
o
1
o
o
4<t
2
3
Settlements/Awards
o
o
o $0.2
o
$95
o $3.007 $180
$ Settlements/Awards
($ in Thousands)
*We are in the process of obtaining settlement approval from the Central Office for this claim.
<tlncorrect figure corrected.

ITEMS OF INTEREST, PERSONAL LEAVE, BUSINESS TRIPS,
MOVES, ETC.
Bill Burlington, Regional Counsel: I will attend New
Attorney Training October 20-2 5 in Washington, D.C.;
October 27th I will be in Morgantown; and I will be in
Elkton October 29.
In October we will welcome Diane Gossman and Clarrisa
Green, our new Legal Instrument Examiners to the
Regional Office. Diane comes to us from USP Terre
Haute, and Clarrisa from the Central Office. We
welcome both Diane and Clarrisa to the Mid-Atlantic
Region.
Mike Robar, Paralegal, FCI Manchester, will be a member
of the Health Services Operational Review Team October
6-9, 1997, and he will be on annual leave October
13-17, 1997.
At USP Terre Haute: Rick Schott, Attorney and Teresa
Marvel, Paralegal, will be attending LMR training;
Randi Everett, Legal Tech, will be on annual leave
October 3-17; and Teresa Marvel, Paralegal, will be on
annual leave October 14-17.
Debbie Munson, Attorney, FCI Beckley, will be on annual
leave October 9-14 .
Randy Smith, Paralegal, FCI Elkton, will be the
Institution Duty Officer October 7-14 and will be on
annual leave
October 15-17.
Joe Tang, Attorney, FMC Lexington, will be the
institution duty officer September 3D-October 7.
Milt Williams, Paralegal, FCI Petersburg, will
participate in the New Attorney Training in Washington,
D.C., October 20-24.
Michelle Fuseyamore, Attorney, FCI Butner, Mike
Bredenberg, Attorney, LSCI Butner, along with Bill
Burlington, provided DOJ honors program recruitment
sessions at the following law schools: Regents
University, University of North Carolina, Campbell
University, North Carolina Central University and Duke
University.
SITUATION OF INTEREST, CONTACT WITH FEDERAL BENCH,
HAZARDOUS WASTE SITES, ETC.:
FCI Elkton - The City of Salem, Ohio, has pursued

·.

enforcing a 1% employee income tax on FCI Elkton
employees. For a short period of time during the
start-up phase, FCI Elton employees were assigned to a
rented warehouse within the city confines. The City of
Salem has requested the BOP to withhold the tax from
income. We have argued that no agreement between the
City of Salem and the Secretary of the Treasury has
been signed, and accordingly the BOP is not authorized
to withhold such funds. The City has countered that
the income tax can be charged by the city against each
employee. To date, Regional Counsel has argued that
employees may not be taxed absent the agreement. The
City of Salem has scheduled a City Tax Board of Review
Hearing for October 29, 1997, in Salem. We plan to
represent the interests of the BOP in this matter.
FCl Milan - On September 22, 1997, the Warden and Kevin
Walasinski, institution attorney, met with the FBI and
Chief of the Criminal Division for the u.S. Attorney's
Office to discuss criminal referral procedures.
FCl Milan - On September 29, 1997, a draft response to
an EPA request regarding FCI Milan's participation in
hazardous waste which was stored at a hazardous waste
facility in Ohio was forwarded to the OGC's office.
FCl Elkton - On October 20, 1997, Randy Smith,
Paralegal, will attend the Cleveland u.S. Attorney's
quarterly meeting. After the meeting he will meet with
the Chief of the Civil Division to discuss FCI Elkton's
litigation, docket assignments, meet the AUSA assigned
to handle FCI Elkton, etc. Randy has been asked to
share a brief summary of the institution legal staff's
role in the institution and his role in providing
assistance to the u.S. Attorney's Office.
FCX Ashland - Randy Smith, Paralegal, has been asked to
meet with the Assistant u.S. Attorney who has been
assigned to handle criminal matters at FCI Ashland.
Randy has requested that the SIS attend this meeting
also. Last month Randy met with the SIS to discuss
criminal referrals. He also met with the local FBI
Agent and the SIS to discuss criminal referrals and
prosecutions.
FCl Butner - Two mental health videoconference hearings
were held this month.
Prisoner Litigation Refor.m Act
FCl Memphis - On September 12, 1997, the District Court
sponsored a one-day training seminar on the PLRA.

·.

Representatives from the State of Tennessee, Tennessee
Department of Corrections, and three Federal District
Courts, Corrections Corporation of America, and FCI
Memphis attended.. Significant items discussed included
IFP status, collection of filing fees, judicial
screening, three strikes provisions, administrative
remedies and access to courts issues. The most
significant aspect of this meeting is that the Court
will now be using a form that requires an inmate to
authorize staff to withdraw filing fees as a condition
of filing a complaint and seeking IFP status. We are
waiting express authorization from the District Courts
to remove all prior IFP forms, which do not include
this authorization, from the inmate law library.
SUBSTANTIVE PLEADINGS (COMPLAINT, MOTION FOR SUMMARY
JUDGMENT, ETC.):
FCI Butner - Reish v. Johnson - On October 2, 1997, the
Fourth Circuit heard oral arguments in this Bivens
suit, with the issue being whether three Butner staff
were entitled to Qualified Immunity. We contended that
in the specific factual context of this case, the law
was. not clearly established that plaintiff's
allegations state a violation of the 8th Amendment.
Plaintiffs have alleged that Butner staff failed to
provide them with adequate protective equipment when
they cleaned environmental surfaces that were
contaminated with blood and other body fluids.
Plaintiffs contend that they were exposed to HIV and
Hepatitis B.
SETTLEMENTS:
Guitterez v. US - This is the FTCA case where the
inmate fell from a top bunk in a County Jail while in
USMS'custody permanently damaging his elbow. He
subequently returned to BOP custody for surgery and
alleges the surgery was not provided in a timely manner
and that the medical care provided was substandard.
Our original offer of $60,000 was refused by the
plaintiff. We recently were granted approval from your
office for the AUSA to have settlement authority up to
$150,000. The AUSA then offered $135,000 plus costs
(the mediation amount). The plaintiff refused the
offer and made a counteroffer of $210,000 (complaint
seeks $300,000). The AUSA then filed a Motion under
Rule 68 for an Offer of Judgement in the amount of
$140,000 plus costs. Plaintiff's counsel verbally
responded to the AUSA that his client is not willing to
accept less than $200,000. This case is on the trailer

·.

docket which begins October 7, 1997.
ADVERSE DECISIONS OR SIGNIFICANT DECISIONS:
FCI Beckley - Keats v. Olson - The District Judge
adopted the Magistrate's R&R in this habeas case on the
issue of when the inmate's sentence commenced. The
Judge concluded that the inmate's sentence commenced
when the BOP accepted him into custody to serve his
federal sentence even though the state had primary
jurisdiction and the federal sentence was to run
consecutive to the state sentence. The BOP's mistake
(in accepting him in custody instead of sending him to
the state) effectively turned the consecutive sentence
into a concurrent sentence. The Judge rejected the
Magistrate's conclusion that there had been a due
process violation, finding it unnecessary to consider
whether or not the inmate had a right to notice and a
hearing before the credit was removed from his sentence
computation.
F.MC Lexington - LaVista v. Beeler. et al. - Judge
Wilhoit adopted a favorable R&R and dismissed this
Bivens seeking both monetary and injunctive relief.
The dismissal was based on qualified immunity,
sovereign immunity and failure to exhaust. The
Recommendation is significant because Magistrate
Patterson had previously ordered our typical Motion to
Dismiss, or in the alternative, for Summary Judgment,
in Bivens cases to be construed only as a Motion to
Dismiss. The Recommendation will be used as a "guide"
for our arguments, particularly qualified immunity, in
our future Motions to Dismiss in Bivens cases.
Particularly important is Judge Wilhoit's adoption of
Magistrate Patterson's reasoning that although there is
no case law applying the PLRA to a Bivens action, the
plain language of 42 U.S.C. § 1997e(a) appears to
require exhaustion of remedies in Bivens actions
brought by prisoners, regardless of the particular
relief requested. The U.S. Attorney's Office has been
contacted to request Judge Wilhoit's approval for
publication of this Recommendation and Order.
UPDATE ON CASES, TRIALS OR HEARINGS, ETC. NOTED IN
PRIOR REPORTS:
FCI Memphis - Friday, October 3, 1997, the four inmates
involved in the 1995 disturbance at FCl Memphis were
sentenced as follows: Larry Walters - 92 months
consecutive sentence, 3 years supervised release term
$200 special assessment and $555 restitution to BOP; ,
Phillip Green - 84 months consecutive sentence, 3 years

·.
,

special release term and $50 special assessment; Brian
Torres - 48 months consecutive sentence, 3 years
supervised release term, $500 special assessment and
$111 restitution to BOP; and Santos Negron - 37 months
consecutive sentence, 3 years supervised release term;
$500 special assessment and $111 restitution to BOP.
The Judge specifically said that Walters, Torres and
Negron were sentenced at the low range of the
guidelines because they had not assaulted any staff or
inmates. The Judge stated that Green was given a
downward departure based on the testimony of a former
staff member that Green was seen pulling inmates from a
burning unit.
FCl Petersburg - Estate of Shelton Parker v. US
(D.S.C.) - This FTCA action followed the suicide of
inmate Parker at FCl Petersburg. Our response to the
case stated that under Virginia law suicide remains a
common law crime and decedent's participation in an
immoral or unlawful act bars recovery by decedent's
personal representative. Also, during discovery
plaintiff's counsel was provided copies of taped
conversations where Ms. Parker agreed to provide funds
to pay for the killing of two intended victims.
Apparently, the plaintiff's coun~el, faced with the
information provided in discovery, agreed to stipulate
to dismissal of the case without prejudice. The order
was signed on September 4, 1997. The statutes of
limitation under both the FTCA and Bivens have run.
FCl Petersburg - Kerry Lee Baker v. Stephen DeWalt - A
MRR was issued in this case on September 12, 1997,
recommending that the BOP has failed to execute Baker's
100 month federal sentence as directed by the
sentencing court. The magistrate recommended that the
BOP be ordered to turn Baker over the Commonwealth of
Virginia on October 2, 1997, to serve 36 months of his
federal sentence concurrent with state sentence.
Essentially, the case involved imposition of a 100
month federal sentence on Baker who was in primary
federal custody. The federal court ordered 36 months
of the 100 month sentence to run concurrent with an 8
year state sentence Baker was currently serving.
However, at the time of federal sentencing Baker was
not serving the state sentence. Response was filed
that because Baker was in primary federal custody and
Virginia had indicated to the BOP his state sentence
was to be served consecutive to the federal sentence,
the BOP was unable to designate a state facility for
service of 36 months of the federal sentence
concurrently with the state sentence. John White,
RISA, and Milt Williams discussed the matter with the
Virginia DOC, who agreed to accept Baker. Then the

·.

Virginia DOC institution was designated for service of
the remainder of Baker's federal sentence. Baker was
transported by USMS on October 3, 1997.
FPC Seymour Johnson - Milton v. Flowers. et al. Former Regional Director Gil Ingram was being sued in
his individual capacity in this longstanding Bivens
action in the Eastern District of North Carolina. Even
though it was not disputed that the Regional Director
was in contact with his subordinates by mail and
telephone and that he actually visited the state in
person, the Court found nothing to show that these
contacts were for any purpose other than official BOP
business. Therefore, the Court found insufficient
minimum contacts with the State of North Carolina to
establish personal jurisdiction over the Regional
Director, and dismissed him from the suit .
FCI Memphis - Martin. et al. V. Hawk. et al. - This
case involves the Bureau's policy which removed bed
boards from Bureau institutions in March of 1995. The
Director is still in this case as a Bivens defendant.
Trial has tentataively been set in Memphis in January.
We are considering trying to convert this case to a
FTCA claim so that settlement negotiations can be
undertaken.
REPRESENTATION NOT RECOMMENDED FOR STAFF: None
SIGNIFICANT FTCA CLAIMS: None
MEDICAL MALPRACTICE CASES UPDATE: None
FCI Morgantown - McNeal v. US - We recently received a
very favorable ruling, wherein an inmate had claimed
due to our negligence, he had contracted TB.
In
rejecting this claim, the court held the policy of the
BOP, regarding the testing of all new inmates, the
follow-up with all positive PPD's, and the
isolation/treatment of potentially infectious inmates
was not negligent.
Inmate McNeal was initially a PPD
negative inmate, who later had a positive PPD test, but
was never an infectious case of TB. We have requested
that this decision be published.
SIGNIFICANT ADMINISTRATIVE REMEDIES: None
NEW RFRA CASES AND UPDATES ON PREVIOUSLY REPORTED
CASES:

·.
FCI Beckley - Perkins v. Barnard, et al. - This Beckley
inmate filed a Bivens suit alleging a pat search by a
female officer violated his constitutional rights.
The
inmate did not allege a violation of RFRA. Central
Office agreed that the response would address the
constitutional issue only and that RFRA would not be
mentioned.
FCI Cumberland - Muhammad v. FBOP. et al. - This inmate
complained that the lack of hot vegetables as part of
common fare meals violated his religious beliefs.
Significantly, the District Court of Maryland (sua
sponte) held that the proper analysis for this claim
was under Turner v. Safley, specifically finding that
the Supreme Court had invalidated RFRA as
unconstitutional in the case of City of Boerne v.
Flores. Under the Turner analysis the Court held that
the inmate failed to state a cause of action and
dimissed the case.
ALTERNATIVE DISPUTE RESOLUTION EFFORTS: None
18 U.S.C.

§

3621(e) LITIGATION:

Alderson and Beckley - Given the adverse decisions from
the Southern District of West Virginia, we have begun
to process for early release, inmates who were
convicted of being a felon in possession of a firearm,
or who received a two-point sentencing enhancement. We
will also be required to treat as eligible, an inmate
at Butner Camp (Edward Fuller) who won a similar
two-point enhancement case at FCI Petersburg.
FPC Alderson - Lobbins v. Hemingway - An Order to Show
Cause was entered, requiring a response to why the BOP
had not redetermined petitioner's eligibility status in
light of Wiggins v. Wise, the controlling authority in
this district that struck down Section 9 of P . S.
5162.02. Prior to the date the response was due,
petitioner motioned the court for release pending a
decision on the habeas petition. Objections were
filed. A decision was made to redetermine the
eligibility status of those inmates in this district
affected by the Wiggins decision and who will not fall
under the new program statement when it is issued.
It
was determined that inmate Lobbins is eligible for
early release consideration and she was placed in a
halfway house. A motion to dismiss the habeas petition
has been filed.
FPC Alderson - Gary/Thompson/Griffin v. Hemingway - The

·.
Magistrate ordered the BOP to file a status report
regarding the implementation of the new program
statement on early release eligibility. A response was
filed notifying the court that the Bureau would
reevaluate the three inmates' eligibility for early
release. Motions to dismiss the habeas petitions in
Thompson and Griffin were filed since the inmates are
now deemed eligible for early release consideration.
filed.
FPC Alderson - Dukes v. Hemingway - A motion to dismiss
has been filed in this habeas petition. The inmate is
now deemed eligible for early release consideration
pursuant to Wiggins.
FCI Milan - Idema v. Pontesso - on September 5 this
habeas petition challenging improper expulsion from the
RDAP program was dismissed by the court.
FCI Cumberland - Weeks v. Bidwell - This habeas
petition challenges P.S. 5162.02 § 9's definition of
crime of violence and seeks a sentence reduction under
3621 (e) (2) (B) .
FMC Lexington - McGriff v. Beeler - Judge Forester
entered a favorable ruling that the BOPrs
interpretation of a two-point weapons enhancement for a
drug conspiracy offense, 18 U.S.C. § 841/846, as a
violent crime for early release purposes is a
permissible construction of the VCCLEA statute. This
represents the first decision on the merits in this
district pertaining to 3621(e) challenges to BOP's
interpretation of the two-point enhancement. The U.S.
Attorney's Office has been contacted to request Judge
Forester's permission to publish this opinion.
SIGNIFICANT NEW CRIMINAL REFERRALS SINCE LAST MONTH'S
REPORT:
UPDATE ON PREVIOUSLY REPORTED CRIMINAL MATTERS:
FCl Beckley - On September 8, 1997, FPC Beckley inmate
Arley Brooks plead guilty to escape from the camp. He
was sentenced to an 18 month consecutive sentence on
September 30.
FCI Beckley - On September 9, 1997, FPC Beckley inmate
Michael Lanham plead guilty to assaUlting staff.
Sentencing is scheduled for November 24, 1997.
FCI Beckley - On September 22, 1997, FPC Beckley inmate

·,

Jackie Cockrane plead guilty to escape from the camp.
Sentencing is scheduled for October 14, 1997.
FCI Petersburg - US v. Ruffo (Jenks request for
telephone tapes) - FCI Petersburg continues to assist
defense counsel in listening to some 3589 phone calls
that were made by a pretrial inmate (Reiners) who is
listed as a cooperating witness. The institution has
been informed that taping will continue until February
or March of next year. Given the length of time the
taping will require, the Warden is going to move the
defense attorney from the Warden's conference room to
another location in the institution. The new area is
not as nice as the Warden's conference room, so we
expect the defense will object to the new location.
I
shared with Doug Curless, an article in the Richmond
Times, where the defense is now trying to disqualify
the prosecuting AUSA, claiming that he will need to be
a witness in this case, as he will be required to
explain why he allegedly withheld information regarding
activities of his cooperating witness, inmate Edward
Reiners.
FCI Morgantown - On October 27, 1997, Warden Thompson
and I will meet with U.S. Attorney William Wilmoth and
officials from the FBI regarding the prosecution of
institution crimes. We recently had an introduction of
alcohol (and possibly drugs) case that they refused to
prosecute. We will try to establish prosecution
guidelines for Morgantown that are similar to those
used in other MXR institutions.
SUCCESSFUL PROSECUTIONS OR ANY ACQUITTALS SINCE LAST
MONTH'S REPORT: None
REHABILITATION ACT: None
ENSIGN AMENDMENT CASES:
FCI Beckley - Maydak v. Bidwell - This case was filed
by two inmates just before the Act was found to be
unconstitutional. This petition challenges the
prohibition on nude publications coming into FCI
Beckley. The case has been referred to DOJ for a
response. An extension of time in which to respond was
granted - response is now due in November.
DISMISSALS UNDER PLRA: None

·4

New Litigation Cases by Institution and Type
Received During the Month of September 1997

ALD
BIV
FTCA
HC
OTH
TOT

0
0
3

0
3

ASH
0
0
0
0
0

BEC
0
0
·1
1
2

BUT
0
0
0
0
0

CUM
0
0
1
0
1

ELK
0
0
0
0
0

LEX
0
0
0
0
0

MAN
0
0
0
0
0

MRG

MIL

0
0

0
0
2
0
2

00
0

M

New Litigation Cases by Institution and Type
Received Calendar Year to Date

ALD
BIV
FTC A
HC
OTH
TOT

ASH

0
1
12

3
0

0

1
9

13

5

BEC
4
0
4
2
10

BUT
7
3
9
2
21

BUT represents both the FCI and the LSCI

CUM
4
0
3
3
10

ELK
0
0
0
0

0

LEX

6
0
2
0
S

MAN
1
0
6
1
S

MRG

MIL

1
2
10

3
1
13
0
17

0
13

M

UNITED STATES GOVERNM
memo ran
Mid-Atlantic Regional Office, Annapolis Junction, MD 20

DATE:

,...

REPLBiIl Burlington, Regional Counsel
t o ·
Region

A~ia-Atlantic

SUBOpeOber 1997 Monthly Repo.r~.~
TOWallace H. Cheney, General Counsel
ATTN:

Nancy Redding, Executive Assistant

ADMINISTRATIVB RBIIBDIBS

JAN

PBB

MAR

APR

MAY

JON

JtJL

AUG

SBP

OCT

Received
Answered

140
"178

146
130

201
135

133
193

142
202

172
164

154
158

184
189

157
169

133
144

TORT CLUE

JAN

PBB

MAR

APR

MAY

JON

JtJL

AUG

SBP

OCT

#
#
#
#
#

180 179 183 181 196 203 197 210 217
213
71
69
91
72
41
70
56
37
51 66
74
64
52
60
63
52
64
39 65 43
226
179 183 181 196
203 197 210 217
180
4'"
3'
4'
3"
0
1*
4*
4*

Pending
Received
Answered
Pending
Over Six Month

POI/PRIVACY
# Pending
# Received
# - ~wered
ling
f
# """er 30 Days

. LITIGATION
Cases Pending
New Cases Received
Habeas Corpus
Bivens
FTCA

JAN
66
36
62
43
23

JAN

PBB
43
33
39
42
21

PBB

MAR

42
51
45
50
18
MAR

APR

MAY

JON

JtJL

50
43
24
65
29

65
40
46
51
28

51
46
53
52
21

52
69
50
77
32

APR

MAY

JON

JtJL

AUG
77
48
72
63
37

AUG

SBP

OCT

63
56
68
39
15

39
61
40
60
21

SBP

OCT

NOV

DB

NOV

DB

NOV

DB

NOV

DB

265 3530 352 353 339
343 339 348 335 331
19
16 23
25 17
13
16
9
6 13
16
12
4
6
6
7
11
4
8
- 6
5
6
6
5
3
"
2
4
1
1
0
2
0
0
2
3
2
1:"
"12
11
1£
4
20
14
17
15
251 352 353
339 343
339 348
335 331 325
1:"
2:"
19 21
17
18
1!
17
10
8
0
0
1
1
I
I
3
0
0
1
I
$95
0 $3. ($1.80
1$0.05
$0.2

Other
Cases Closed
Cases Pending
Lit Reports Completed
Cases/Hearings or Trials
Settlements/Awards
$ Settlements/Awards
($ in Thousands)
*We are in the process of obtaining settlement approval from the Central Office for th
OIncorrect figure corrected.

Q

ITEMS OP INTEREST, PBRSONAL LEAVE, BUSINESS TRIPS, MOYBS, BTC.

Bill Burlington, Regional Counsel will be at FCl Memphis,
November 12-13th.
Michelle Fuseyamore, Attorney, FCl Butner, conducted training
for department heads on Administrative Remedies and revised
the tracking system to improve timeliness of responses.
Carolyn Lanphear, Paralegal, FCl Cumberland, will be on annual
leave November 17-21.
During the month, Debbie Munson, Attorney, FCl Beckley, held a
training and question/answer session for staff regarding the
new PS 5162.04. She specifically addressed the Southern
District of West Virginia case law and its impact on inmates
both under the old and new program statements. She will hold
a similar seminar at FPC Alderson on November 6, 1997.
Teresa Marvel, Paralegal, USP Terre Haute, will be on annual
leave November 24-28; and Rick Schott, Attorney, will be on
annual leave November 28.
Joe Tang, Attorney, FMC Lexington, will be on annual leave
November 24-28.
Kathy Harris, Paralegal, Regional Office, will be on annual
leave November 24-28.
Milt Williams, Paralegal, FCl Petersburg, would like to
welcome Dawn Tanner as the new legal assistant at Petersburg.
Dawn will start on November 23. Dawn's number will be PTS
700/285-7465 or 804/733-7881, x465. Dawn is not unknown to
legal as she provided part-time clerical support to legal
during John Jackson' tenure at Petersburg.
SITUATION OP INTBREST, CONTACT WITH PBDBRAL BBNCB, SAZARDoUS
WASTB SITBS, ETC.:
PCI Blkton - City of Salem, Ohio, Wage Tax on PCI Elkton
Bmployees - On October 29th, I appeared before the city of
Salem, Tax Review Board, where I argued that the city could
not impose a
wage tax on our employees, as their official
duty station was FCl Elkton, which is not within the city
limits of Salem. The city of Salem is attempting to impose
the tax for 4 months when our employees were forced to work
out of warehouse that was within the city. We abandoned the
warehouse work site when the FCl was officially given to us.
While I argued against the tax, I feel the city has a strong
argument that they can impose the tax on our employees under
these circumstances.

l'

F.KC Lexington - Inmate Death - Sturman, Reuben #24602-048 - I
have asked Margaret Hambrick to appoint a team consisting of

litigation from inmate Sturman's f amily . Inmate Sturman was a
well-known dealer in pornography, and a good friend of Larry
Flint.
He died at FMC Lexington of natural causes,
after returning from University of Kentucky Hospital.

FCI Butner - On October 2 , 1997, eight law clerks from the
Eastern District of North Carolina toured the facility.
Butner Complex - The Granville County register of Deeds has
notified Warden Lappin that she will no longer issue marriage
licenses for inmates unless they appear in her offi~e to make
application for a license . The Wardens at the FCI and LSCI
will be sending a response asking her to reconsider her
decision, and offering to transport her to the complex
quarterly to process applications.
If the Registrar maintains
her position, this issue could potentially end up in
litigation.
FCI Butner - We are docketed to pre,s ent an oral argument in
the Fourth Circuit Court of Appeals on December 4, 1997. The
appellant Glen Sharkany, an inmate hospitalized in the mental
health division at FCI Butner , filed an appeal challenging the
district court's ruling that he is suffering from a mental
disease or defect as a result of which hie release would
present a danger to others . In accordance with our brief
filed on October 2, 1997, we will a rgue that based on the
record, the qistrict court's finding on the inmate's mental
status was not clearly arbitrary or unwarranted, and that its
finding on dangerousness was not clearly erroneous.

FeI Milan - November 20-21, Kevin Walasinski, Attorney, FeI
Milan, and two Milan staff will travel to Cleveland to testify
regarding Milan's mail procedures in an asset forfeiture
hearing.
FMC Lexington - Joe Tang , Attorney, FMC Lexington, along with
the OAP Coordinator, conducted a training session for all unit
and case managers , regarding the new PS 5162.04
"Categorization of Offenses. - Joe assisted in outlining the
new policy statement and giving examples for the unit staff to
use to apply the policy .
FMC Lexington - Joe Tang, Attorney, conducted the ' weekly A&O ,
training session at Lexington, to include information on
administrative remedies, torts, FOI , and the "legal aid

•

program. Joe also attended a compassionate release meeting
and a meeting of the research proposal committee.
Prisoner Litigation Refor.m Act
FMC Lexington - LaVista v. Beeler et ale - Judge Wilhoit
dismissed this entire Bivens action on the grounds Plaintiff
had not exhausted his administrative remedies. Judge Wilhoit
ruled the PLRA provision requiring exhaustion has broad
applicability in Bivens cases, including this action where
Plaintiff requested both monetary and injunctive relief. We
recently received a Notice of Appeal from plaintiff's
attorneys, so we anticipate the Sixth Circuit to rule on this
issue in the near future. This means that we now have cases
pending in both the 4th and 6th Circuits that raise exhaustion
under PLRA.
FClCUmberland - Gibbs v. Bureau of Prisons. et al. - In this
Bivens action, plaintiff alleged he was improperly denied
medical and mental health treatment at FCI CUmberland. The
judge granted our Motion for Summary Judgment adopting the
requirement that full exhaustion of administrative remedies by
federal prisoners is required prior to initiating a Bivens
action.
SUBSTANTIVE PLEADINGS (COMPLAINT, MOTION FOR StDOfARY JODGMBNT,
BTC.): None
SBTTLBMBNTS:
FCI Milan - Ahart v. USA - This FTCA case involving loss of
inmate property when transferred from Milan, was settled for
$50.00. The original FTCA claim was for $200.00.
Guiterrez v. US - This is the FTCA case where the inmate fell
from a top bunk in a county jail while inUSMS custody
permanently damaging his elbow. He subsequently returned to
BOP custody for surgery and alleges the surgery was not
provided in a timely manner and that the medical care provided
was substandard. This case was stricken from the October
trial docket by the Judge. The AUSA thinks it will probably
be placed on the February docket. Meanwhile, negotiations
continue. The government made a Rule 68 Offer of Judgment in
the amount of $140,000 plus costs ($6,000-$7,000). In return
plaintiff's attorney offered a structured settlement of
$150,000 payable now with three annuity payments of $15,000
each in the years 2002, 2012, and 2022 (supposedly coinciding
with the former inmate'S future surgical needs). The AUSA
asked our assistance in determining how we could make an offer
of a structured settlement that would stay within our
$140,000. We have asked the Litigation Branch's assistance
with these calculations.
PCI Memphis - Martin. et ale v. Hawk. et a1. - This is a
Bivens action stemming from the change in BOP policy in March

of 1995 regarding the removal of bed boards. The Director is
still in the case as a Bivens defendant. We recently received
a consolidated settlement offer from plaintiffs' attorney to
dismiss all claims if the government would agree to pay
$20,000 and transfer plaintiff Martin to FCI Phoenix. We made
it clear that we will not transfer an inmate as part of a
settlement agreement. We did not foreclose the possibility of
an appropriate administrative transfer if the inmate makes the
request through the appropriate procedures. The District
Court Judge has referred the case to the Magistrate Judge for
a settlement conference to take place later in November. In
preparation for the settlement conference, I will make a trip
to Memphis and Matthew Me11ady and I will meet with the AUSA
to discuss strategy and possibility of settlement. Trial is
scheduled for January 1998.
ADVERSB DBCXSXONS OR SXGNXFXCANT DBCISIONS:
FCI Butner - Luther v. Vanyur - The Magistra~e has rendered an
adverse recommendation where the Bureau denied an inmate
credit towards his federal sentence for three years spent in
federal custody. The inmate was sentenced 'on federal charges
and ordered to surrender on a later date. In the interim, the
inmate committed a new offense and received a state sentence.
Two weeks after sentencing on the state charges the inmate was
erroneously returned to federal custody. He remained in
federal custody for over three years before the error was
discovered, then he was returned to state custody. The Bureau
denied credit based on the Uno double credit n rule. The
Magistrate concluded that Congress did not intend 18 USC §
3584 to apply where a state sentence was the second sentence
to be imposed. The Magistrate further concluded that §3585
re~ires that the federal sentence begin to run when the
inmate enters federal custody and the Bureau cannot interrupt
the federal sentence by transferring the inmate to state
custody, or by claiming that the inmate was erroneously in
federal custody. The Magistrate did not think the fact that
the inmate received credit toward his state sentence for that
period of time warranted a different result. Objections will
be filed.
UPDATB ON CASBS, 'l'RXALS OR BEARINGS, ETC. NOTED IN PRXOR
REPORTS:
FCX Memphis - Graham v. Lutre11« et a1. - This is an FTCA
property claim arising out of the 10-20-95 disturbance. We
were given permission to argue the discretionary fun~tion
exception to the FTCA which precludes the court from asserting
subject matter jurisdiction over the case. We anticipate a
ruling on our Motion for Summary Judgment any day. However, a
trial date is currently set for November 24, 1997.
PC% Memphis - Adams. et a1. V. US - These are consolidated
cases arising as a spin-off from the portal-to-portal case.
In these cases staff are claiming they should be compensated

for pre-shift and post-shift time spent in key lines and
walking to and from their posts. Along with four lieutenants
and one officer, legal staff at Memphis spent three days
searching for and copying archived documents, as well as
formulating responses to other discovery requests.
FCl Petersburg - Betty Jenkins v. US - The plaintiff (estate
of Jenkins Langston, who died after release from prison from
causes unrelated to the complaint) filed this Bivens/FTCA
action. The complaint is based on an assault by former
correctional officer Almarita Scott Holliday in the SHU at
Petersburg in 1994. The Officer threw hot water on Jenkins
and stabbed him with an ink pen. Ms. Holliday was convicted
in the Eastern District of Virginia of misdemeanor assault and
was sentenced on March 11, 1996, to a 30-day jail term. A
proposed answer, administrative claim material, and venue and
lack of subject matter materials as to constitutional claims
has been provided to the AUSA. Milt Williams, Paralegal, is
currently working on summary judgment materials which will
argue that she was outside the scope of her duties as a
government employee, and thus, under the FTCA, the government
is not liable for her assault and battery. The AUSA has filed
a motion to dismiss the action for lack of subject matter
jurisdiction, improper venue (filed in D.D.C.), and failure to
state a claim. The Civil Rights Division still has this case
under investigation.
FCl Petersburg - Platshorn v. Hahn - The long awaited MRR in
this sentence computation case was issued on October 15. and
recommended that Platshorn's petition be dismissed. This case
involves Platshorn's complaint that the BOP required him to
serve his parolable sentence before commencing service of his
non-parolable sentence; and the BOP has improperly refused to
apply good time earned while serving the parolable sentence to
his non-parolable sentence. Petitioner's primary argument was
once sentences are aggregated they cannot be de-aggregated.
The magistrate recognized that the method used by the BOP to
compute Platshorn's 33 year non-parolable sentence, after
parole from the parolable sentence allows him to be released
earlier than if the sentences had remained aggregated and that
he earns the maximum of SGT allowable. The MRR still suggests
the Magistrate does not fully understand the computation or
the BOP's policy on de-aggregation. Petitioner's attorney has
filed an objection to the report and the AUSA and Milt
Williams are working on a response.
FCl Memphis - Cornett v. US - This is a hybrid Bivens and FTCA
case stemming out of an inmate-on-inmate assault, and loss of
plaintiff's property during a transfer to another BOP
facility. The Court previously dismissed all Bivens claims
and stated that the sole remaining claim is the FTCA loss of
property. A non-jury trial has been set for Friday, November
14. We had offered $200 for the property at the
administrative level. The inmate is claiming the legal
property lost is valued at $3,711.

REPRBSENTATION NOT RECOMMENDED FOR STAFF:
FCI Milan - Antone v. Pontesso, et al. - This is a Bivens
action filed by an inmate at Milan alleging that a staff
member made sexual statements about him to another inmate
causing the plaintiff to fear for his safety. The plaintiff
also alleges that staff used excessive force while returning
him to his cell in SHU. There are three OIA investigations
based on the allegations in this complaint. One allegation
regarding a statement by staff was investigated locally and
not sustained. The second complaint of sexual comments made
by staff to another inmate about the plaintiff was
investigated locally and the staff membe.r was given a letter
of reprimand from the Warden for being unprofessional. The
third investigation is being handled by OIA and is pending.
This investigation involves the issue of use of excessive
force. From the facts it appears no excessive force was used,
but staff failed to prepare the proper paperwork required by
policy when they did have to use force to return Antone to his
cell. We are in the process of preparing the requests for
representation in this case.
SIGNIFICANT FTCA CLAIMS:
FCI Memphis - Barbara Danner, former contract employee T-MXR-97-358 - This is a rather complex claim arising out of
Ms. Danner's allegation that her contract (she was a contract
medical lab tech) was arbitrarily terminated in retaliation
for her complains of sexual harassment and because of her
husband's (he is a correctional officer) administrative
complaints about allegedly unwarranted disciplinary actions
against him. Ms. Danner also claims that the investigation
concerning her alleged fraudulent completion of her time cards
is an attempt to intimidate her through threats of criminal
indictments. Finally, Ms. Danner is involved in a dispute
over a previous FOIA request ·she submitted to the Central
Office.
FCI Ashland - Administrative tort claim T-MXR-96-663, filed by
former Ashland inmate Pulliam, Dickie Lee, Reg. 04064-084 has
been settled by the Office of General Counsel in the amount of
$10,000.
Claimant was injured iri a sports accident at FCI,
Ashland in August, 1995. Claimant was x-rayed, and no action
was taken. An orthopedist in November, 1995, recommended an
MRI be performed. No MRI or further action was taken, and the
inmate was released to writ in December, 1995. He was
returned to the institution in March 1996, and an MRI was
performed. The MRI was evaluated in June 1996 and surgery was
recommended. The inmate was released via good conduct release
in July 1996. BOP Office of Quality Assurance concluded that
the standard of care was breached, and settlement was reached
in the administrative claim process.
JIBl)ICAL IlALPRACTICB CUBS UPDATB: None

SIGNXPICANT ADMXNISTRATIVB RBMBDIBS: None
NEW RPRA CASBS AND UPDATBS ON PREVIOUSLY REPORTED CASBS: None
ALTBRNATIVE DISPUTB RESOLUTION BPPORTS: None
18 U.S.C. S 3621(e) LITIGATION:
PCI Petersburg - 4th Circuit - Fuller v. Moore - On October
1st, the 4th Circuit held oral arguments in this 3621(e) case
involving a 2 point sentence enhancement. The panel indicated
from the bench that they were going to follow Downey and
ROUSSOS, but we have not yet seen any opinion.
PCI Morgantown - 4th Circuit - Hayes v. Thompson - We recently
were given notice that counsel has been appointed in this
case, and has been asked by the 4th Circuit to brief whether
the Bureau's Program Statement, "Crimes of Vio1ence u should
have been subjected to full APA notice and comment. I fear
that this question was raised in the Fuller case, but was not
really discussed by the district court. We won the Hayes case
in the District Court, with an explicit finding that the
Program Sta~ement was an "interpretive ruleR that did not
require notice and comment. The 5th Circuit decision in
Venegas v. Henman will help our position in this case.
FCI Beckley - Weaver v. Olson - This habeas petition
challenges the early release provisions of 5162.02,
"Definition of Terms, Crime of Violence. R Pursuant to the new
PS 5162.04, "Categorization of Offenses,R inmate Weaver's
instant offense is to be evaluated under old PS 5162.02, as he
entered the drug program at Beckley prior to October 9, 1997.
As case law in the Southern District of West Virginia provides
that Section 9 of 5162.02 (the 2-point enhancement provision)
is invalid, the section may not be relied upon to determine an
inmate ineligible for early release. Based on the controlling
court decision (Wiggins v. Wise), inmate Weaver was deemed
eligible for early release. A Motion to Dismiss for mootness
was filed.
FCI Manchester - Cobb v .. Chandler - This habeas petition
concerning the denial of early release eligibility under 3621
for § 842(a) (1) conviction with a two-level enhancement was
recommended for dismissal on October 14, 1997. The magistrate
determined the BOP's decision whether to grant early release
was precluded from judicial review except issues involving
cognizable constitutional claims or statutory interpretations
contrary 'to well-settled case law. Consequently, the
Magistrate found no -liberty interest R or equal protection
violation present and no binding case law prohibiting use of a
sentencing enhancement in early release cases. The limited
judicial review authority notwithstanding, the Magistrate
noted the policy was a permissible construction of the
statute. However, she also rejected our argument that the

petitioner lacked stand~ng to br~ng tn~sact~on Decause any
delay in reviewing our decision would cut into the time
remaining to serve.
FCl Manchester - King v. Chandler - This habeas petition
concerning the denial of early release eligibility under 3621
for § 841(a) (1) and § 922(g) convictions was recommended for
dismissal on October 14, 1997. Findings were along the same
lines as in £QQQ.
PCI Manchester - Boone v. Chandler - This habeas petition
regarding the denial of early release eligibility for a
§ 841(a) (1) offense during which firearms were present was
recommended for dismissal on October 14, 1997. Findings were
along the same lines as in Cobb.
FMC Lexington - Ferrell v. Beeler - Judge Forester dismissed
with prejudice this habeas petition challenging the BOP's
interpretation of § 922(g) as a crime of violence. We also
received a favorable R&R on the merits iB Fisher v. Beeler (2
point weapons enhancement) and Jones v. Beeler (922(g) case).
Accordingly, all VCCLEA cases arising out of FMC Lexington
have either been dismissed or have favorable R&R's.
SIGNIFICANT NEW CRIKlNAL REFBRRALS SINCB LAST KONTH'S REPORT:
None
UPDATB ON PREVIOUSLY REPORTBD CRr.HINAL MATTBRS:
FCI Morgantown - On October 27, 1997, Warden Thompson, Mike
Pybas, and I met with u.s. Attorney William Wilmoth regarding
the prosecution of institution crimes. The FBI was invited,
but were unable to attend. We were asking for the
establishment of prosecution guidelines. Mr. Wilmoth listened
carefully to the details of several cases that we referred,
but where prosecution was initially declined. I suspect that
part of the problem may be an FBI office that has been tasked
with many other duties, and may not feel they have the
manpower to make prosecution of institution crimes a top
priority.
PCI Beckley - On October 27, 1997, inmate Michael Hargrave,
#03816-088, was sentenced to 6 months home detention and 5
years probation for Possession of Contraband (marijuana). The
inmate had been released from federal custody prior to his
sentencing for this offense. Had he still remained
incarcerated at the time of sentencing, I have no doubt that
he would have received a term of incarceration, rather than
home confinement.
FMC Lexington - A trial is set for former FMC Lexington inmate
Jeffrey Long, #25024-008, for November 24, 1997, in the E.D.
of Kentucky. Long is charged with Attempted Escape, arising
out of the discovery of escape paraphernalia in his possession
in 1996.

SUCCBSSFDL PROSBCUTIONS OR ANY ACQUITTALS SINCB LAST MONTH'S
RBPORT:
FMC Lexington - On October 29, 1997, inmate Michael Kite,
#04697-028, was found guilty of Possession of a Weapon (shank)
found in his possession in the housing unit.
RBBABILITATION ACT: None
ENSIGN AMBNDMBNT CASES: None
DISMISSALS UNDBR PLRA:
FCI Memphis - Graves v. Luttrell. et ale - On October 2, 1997,
the District Court entered an Order to Comply with PLRA, Order
Assessing Filing Fee, and Order of Dismissal in this case.
Plaintiff attempted to sue several staff members under
theories of negligence, cruel and unusual punishment, and due
process. Plaintiff, however, failed to pay the filing fee or
properly complete and submit both an IFP affidavit and a
Prison Trust Fund Account Statement. Noting that plaintiff
failed to demonstrate he had attempted or exhausted any
administrative procedures, the Court dismissed all of his
substantive claims as frivolous. The Court also ordered him
to complete and file the IFP Affidavit and the Trust Fund
Account Statement within 30 days of the Order. The Court
further ordered him to cooperate fully with prison officials
in carrying out this Order.

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UNITED STATES GOVERNM
memoran

DATE:

Mid-Atlantic Regional Office, Annapolis Junction, MD 20

REPLBill Burlington, Regional Counsel
AT~

A '

'.

II. 9i.gp

robe

TOWallace H. Cheney, General Counsel
ATTN:

Nancy Redding, Executive Assistant

ADMINISTRATIVE REMEDIES

JAN

FEB

MAR

APR

MAY

JUN

JUL

AUG

SEP

OCT

NOV

Received
Answered

140
178

146
130

201
135

133
193

142
202

172
164

154
158

184
189

157
169

133
144

153
128

TORT CLAIMS

JAN

FEB

MAR

APR

MAY

JUN

JUL

AUG

SEP

OCT

NOV

# Pending
#f: Received
n Answered
# Pending
# Over Six Month

213
180
179
183
181 196 203
197
210
217
226
37
51
66
41
70
69
56
91
72
71
55
64
39
65 43
52
60
63
52
74
64
37
180
179 183
181 196
203
197 210
217
226
243
4'
3'
4*
4*
4'
3'
1*
1**

FOI/PRIVACY

JAN

# Pending
# Received
1wered
f
ding
# v ver 30 Days

FEB

66
36
62
43
23

MAR

43
33
39
42
21

42
51
45
50
18

LITIGATION

JAN

Cases Pe~ding
New Cases Re ceived
Habeas Corpus

265
3530 352
25 17
19
12
6
16

Bivens
FTCA
Other
Cases Closed
Cases Pending
Lit Reports Completed

FEB

2
2
11

JUN

JUL

50
43
24
65
29

65
40
46
51
28

51
46
53
52
21

52
69
50
77
32

APR

MAY

JUN

JUL

353
339
13
16
6
6

4

o
0

SEP

OCT

NOV

63
56
68
39
15

39
61
40
60
21

60
56
51
67
23

SEP

OCT

NOV

77
48
72
63
37
AUG

5

3

4
3

o

12
343
339
18
17

20
14
339 348

0

DE

DE

1:

2

3
2
4

17
15
14
335 331
325
329
2.
10
10
I'

l !

o
$3. ($180

DE

343 339
348
335
331
325
9
17
16 23
6
13
7
11
4
8
4
8
6

o

3

AUG

1
2

o
H

251 352
353
19 21
17

$95

MAY

6
1

5

Cases / Hearings or Trials

Settlements/Awards
$ Settlements/Awards
($ in Thousands)

MAR

APR

DE

1

4

o
$0.2

1

'$0.05$1. 7

*We are in the process of obtaining settlement approval from the Central Office for th
oIncorrect figure corrected.
·*Waiting for further information from institution regarding status.

•

ITBMS OF INTBREST, PBRSONAL LEAVE, BUSINESS TRIPS, MOVES, BTC.
o

Bill Burlington, Regional Counsel, will be at FCI Milan,
December 2-4 for a Leal Management Review and then at the 4th
Circuit for oral argument. December 8-10, I will be in the
Regional Office for strategic planning. I will be on annual
leave Decembe 22-30.
Joe Tang, Attorney, FMC Lexington, will be on annual leave
December 29-January 2.
Legal staff at USP Terre Haute will be on annual leave as
follows: Bob Blackburn - December 8-12; Rick Schott - December
24.
Matthew Mellady, Attorney, FCI Memphis, will be on annual
leave December 22-26.
Milt Williams, Paralegal, FCI Petersburg, will be on annual
leave December 22-24; and Dawn Tanner, Legal Assistant, will
be on annual December 29-January 2.
Kathy Harris, Paralegal, will be on annual leave December 22January 2.
Dave Recker, MARO Honors Attorney, will be in Institution
Familiarization Training at FCI Cumberland, December 8-12, and
will attend the DOJ LEI "Agency Civil Practice" Course in
Washington, D.C. on December 17-18.
Marian Callahan, MARO Attorney, will participate in the DOJ
LEI "Advanced FOI/PAn Course on December 2nd in Washington,
D.C.
Kathy White, MARO Paralegal Trainee, will be at the MSTC in
Denver December 1-12, 1997.
S:ITtJAT:ION OF :INTEREST, CONTACT W:ITH FEDERAL BENCH, HAZARDOUS
WASTE SITES, ETC.:
FCI Elkton - City of Salem, Ohio, Wage Tax on FC:I Elkton
Employees - We have reached a tentative agreement to settle a
claim by the City of Salem that we owe them money based on our
locating a warehouse within the city limits. The City had
claimed that we owed the money based on wages earned by our
employees during the four months we used the warehouse during
the activation period. When we entered the lease, we did not
realize that the warehouse was within the city limits. Both
the institution and the city are pleased that this matter has
now been concluded.
FCI Milan - Warden Scibana and Kevin Walasinski, Attorney, met
with the AUSA's from the E.D. Mich. on November 24, 1997.
Warden Scibana was the presenter for their "brown bag" I~~~~~H.

FCI Beckley - Debbie Munson, Attorney, held a training and
question/answer session for the staff at FPC Alderson
regarding the new P.S. 5162.04. Specifically, she addressed
the S.D. W.Va. Case law and its impact on inmates under both
the old and new program statements.
FCI Memphis - Matthew Mellady, Attorney, attended a CLE
Seminar on Selected Ethical Issues sponsored by the u.S.
Attorney's Office for the Western District of Tennessee, on
November 24, 1997.
FCI Manchester - Mason Kessinger, AUSA, E.D. Ky., visited the
institution on November 7, 1997, for a tour and staff
interviews. AUSA Linda Wawzenski, N.D. Ill., was in the
institution on November 12, 1997, conducting a deposition of
an inmate witness for the plaintiffs in a wrongful death FTCA
action arising out of MCC Chicago.
FCI Manchester - Mike Robar, Paralegal, was Day Watch
Operations Lieutenant on November 20, 1997, while the
institution lieutenants were participating in a department
planning retreat. Mike will be the Acting Executive Assistant
December 1~4. On November 25, 1997, he attended a special
Health Services' Risk Management Committee Meeting for
organization and planning purposes. Mike recently assisted
the Health Services Department by researching state law and
state regulations because the institution was having
difficulty obtaining copies of autopsy reports from the Clay
County Coroner. The situation has been resolved and "the "
Coroner advises he will provide preliminary reports in three
to six days and final reports shortly after their completion.
FCI Butner - Two mental health videoconference hearings were
held during the month.
FCI Butner - Tours were held for the following groups:
Magistrates and Clerks for the Eastern District of Tennessee
on November 10, 1997; Wataru Kitamura, Assistant Judge,
District Court, Japan on Novembe 12, 1997; and North Carolina
Department of Corrtions and Assistant Attorney Generals on
November 21, 1997.
Prisoner Litigation Refor.m Act
FCI Cumberland - Willet v. Bidwell - We received a favorable
unpublished decision from the Fourth Circuit which affirmed
the district court's dismissal of this case for failure to
exhaust administrative remedies under the PLRA.
Unfortunately, the opinion simply affirmed without discussion
the decision of the district court. We are preparing a memo
which can be used by our staff to distinguish the Garrett
decision.
SUBSTANTIVB PLBAD:INGS (COMPLAINT, MOTION FOR "SllMMARY JUDGMENT,

En":

SETTLEMENTS:
FCI Memphis - Martin, et ale V. Hawk, et ale - This is the
Bivens case arising out of implementation in 1995 of the new
bed board policy and the Director is still a defendant. On
Wednesday, November 26, 1997, the AUSA, Bill Burlington, and
Matthew Mellady attended a settlement conference before
Magistrate Judge Allen. Plaintiffs' counsel indicated that
the current figure ($20,000 proposed by plaintiffs) was based
on plaintiffs' desire for $5,000 each and $5,000 in legal'
fees. The government stated its position up front: the case
must be converted from Bivens to FTCA, and the BOP would not
consider transfer of an inmate as part of a negotiated
settlement. Plaintiffs' counsel did state uoff the cuff" that
one of the plaintiffs would "probably be satisfied with a
letter of apology from the Bureau of Prisons." We interpreted
all this information to mean that at least two of the
plaintiffs were not necessarily concerned with receiving cash
settlement. We made a counter-offer of $9,000. They rejected
that offer, but counsel stated that he believed the third
plaintiff would be willing to accept $4,000. Although we were
not convinced the other two plaintiffs were also demanding the
same amount, we did consider it a count-offer of $12,000.
Still focusing on plaintiffs' counsel's statements, we offered
$10,500, and told counsel we were not concerned with how it
was divided. Plaintiffs' counsel contacted the attorney of
the third plaintiff with our initial offer. He wanted to
again contact him and let him visit the plaintiff at FMC Fort
Worth to inform him of our latest offer. That meeting is
scheduled for December 2, 1997. We have been authorized by
the Central Office to go as high as $12,000, with the
understanding that would be our final offer.
ADVERSB DBCISIONS OR SIGNIFICANT DECISIONS:
FCI Memphis - Cornett v. us - This FTCA case involved a cell
fire after the inmate was taken to SHU in preparation for
transfer. Staff did not properly secure his personal property
prior to the cell fire. The inmate had been assaulted by
other inmates. We offered the inmate $200 at the
administrative stage for the lost property. He declined the
offer and filed a Bivens/FTCA cause of action. All Bivens
claims were dismissed, as well as all personal injury claims.
A hearing was held November 14, 1997, to determine the extent
of the damages (lost property only). Plaintiff had
uconservatively" valued his property at $3,711 (plaintiff
stated that the ·probative" value of such property, which he
anticipated would secure his release, was $3 million) .
Plaintiff, the only witness to take the stand, was questioned
for an hour by the Judge and cross-examined by the AUSA. The
Court ~cknowledged that much of plaintiff's personal property
was not new and was in fact used, that plaintiff did receive
some of his legal materials (plaintiff has alleged all his
legal property had been destroyed), and that plaintiff could

make new copies of much of his legal materials for 10 cents a

copy. An order has been received and based on those three
factors the Court sUbstantially reduced plaintiff's damages to
an award of $1,665.23.
FCi Manchester - Dunlap v. Luttrell and Dunlap v. USA - These
consolidated FTCA and Bivens actions allege injuries as a
result of use of excessive force. On November 4, 1997, he
Court denied our motion to dismiss. In its order, the Court
refused to extend the reasoning.in Edwards v. Balisok and Heck
v. Humphrey to either the FTCA or Eighth Amendment claims.
The Court found the inmate's failure to file his
administrative remedies on the DHO hearing in a timely manner
resulting in the Central Office rejecting his appeal did not
bar his complaint, since the Bureau's actions did not allow
him to exhaust his administrative remedies. The Court also
found that since the length of the inmate's sentence was not
affected by the underlying discipline action because no good
time was taken, there is no relief relating to the fact or
duration of his confinement to be obtained under a writ of
habeas corpus. This case is now scheduled fr a jury trial in
February 1998.
UPDATE ON CASES, TRIALS OR HEARINGS, ETC. NOTED IN PRIOR
REPORTS:
FMC Lexington - Dumphord v. Reno, et ale - On Wednesday,
November 26th, we had a temporary restraining
order/preliminary injunction hearing regarding the care this
inmate is receiving at FMC Lexington for his facial keloids.
This was a case where the Judge (Karl Forrester) recommended
at sentencing that this inmate be treated by his personal
physician while he was at Lexington. Unfortunately, Lexington
did not respond to this recommendation and did not allow the
inmate to see the physician who had extensively treated him in
the Lexington community prior to incarceration. The Judge
noted during the first five minutes of Wednesday's hearing
that the inmate's facial condition had deteriorated. The rest
of the hearing did not dispel the Judge's opinion that we were
not providing appropriate care. We expect an adverse order
from the Judge soon.
FCI Memphis - Coley v. Burkhart - This case involves an
inmate's allegation that former FPC Millington Warden Ron
Burkhart discriminated against the inmate in denying him an
escorted trip to his father's funeral. After our initial
motion for Summary Judgment asserting Qualified Immunity, the
Court determined there were too many material fact i~sues to
grant our motion prior to discovery. After discovery, we
filed a renewed Motion for Summary Judgment. On November 17,
1997, the Court granted our motion and dismissed the case.
The two summary judgment motions contained much the same
information. However, between the time the newest district
court judge ruled on the first motion.to the time she ruled on
our last motion, two new law clerks began working for her and,
we believe, worked on this case. Additionally, during the

interim we had a trial before this same Judge. The shared
sentiment (BOP and AUSA) is that the court came to realize
that prisoner lawsuits and their allegations require more
scrutiny.
FCI Memphis - Graham v. Luttrell - The trial in this case
scheduled for November 24, 1997, was continued to February
1998. This is an FTCA property claim arising out of the
October 1995 disturbance. Because we argued the Discretionary
Function Exemption precludes the Court from asserting
jurisdiction, it appears the court has continued the matter to
adequately consider our motion to dismiss.
REPRESENTATION NOT RECOMMENDED FOR STAFF:
FCI Milan - Antone v. Pontesso, et al. - This is a Bivens
action filed by an inmate at Milan alleging that a staff
member made sexual statements about him to another inmate
causing the plaintiff to fear for his safety. The plaintiff
also alleges that staff used excessive force while returning
him to his cell in SHU. Of the two complaints investigated
locally, one was not sustained and one was sustained with the
staff member receiving a letter of reprimand. The O.I ..
investigation into the allegations regarding use of excessive
force has been completed and is being reviewed by the Chief of
O.I. prior to forwarding to you for approval. Once the
institution receives the report, we will complete our
recommendation regarding representation in this case and
forward it to the Department. The legal staff at Milan-are
keeping the AUSA informed of the progress of these requests.
FTCA CLAIMS:
FCI Beckley - Eichler v. US - This FTCA case was filed in the
W.D. Ky. It arises from an accident involving FCI Beckley's
bus in July 1995. Eleven separate administrative tort claims
were filed and subsequently denied. The claim is for more
than $1 million. The police report completed by the Kentucky
police on the day of the accident indicates that the plaintiff
was traveling at an unsafe speed and improperly tried to pass
the bus. The report indicates no detected contributing
factors on the part of the Bureau's bus.
FPC Alderson - Pointdexter v. US - Depositions of the
plaintiff and her physician are scheduled for December 3,
1997. This is an old FTCA case arising from an accident
involving an Alderson vehicle and an inmate driver. The
vehicle struck another car, injuring its driver and damaging
the vehicle. The only issue is the extent of physical damages
to the driver of the other car. A medical examination by the
government's retained expert will be conducted in early
December. Trial is set in this case for March of 1998.
MEDICAL MALPRACTICB CASBS UPDATB: None

SIGNIFICANT ADMINISTRATIVE " REMEDIES: None
NEW RFRA CASES AND UPDATES ON PREVIOUSLY REPORTED CASES:

FCI Beckley - Perkins v " Ba rnard, et al. - This Bivens suit
alleges a pat search by a female officer violated

FCI Ashland - Zayid v. FBOP - The plaintiff in this case was
permitted to voluntarily dismi s s his previously filed habeas
petition and file an amended complaint as a Bivens action . At
this time no defe ndant has been served . In March 1997, the
magistrate judge recommended ~ sponte dismissal for failure
to state a claim . In October 1997, Judge Wilhoit in an order
withdrew his refe rence to the magistrate judge's report, and
issued a ,separate memorandum order and opinion.
Judge Wilhoit
dismissed all defendants except Father John Noe, Chief
Chaplain at Ashland. Since the inmate specifically mentioned
RFRA, our Motion to Dismiss will analyze the case under both
RFRA and the First Amendment and show that his claim fails to
meet either standard as the inmate was given the option to
take the day off (the day of atonement in October 1996) .
FCI Petersburg - Norton, et al . v. US, et al. - Inmates
Richard Norton, Reg. No. 18441-083, and Michael Goodwin, Reg .
No. 27766-004, filed this complaint naming several staff in
their official capacity only and Chaplain Blankenship in his
official and individual capacity_ The inmates complain that
their constitutional right to practice their religion, Asatru
Free Assembly. has been denied.
Basically, the inmates are
complaining that Father Blankenship delayed their application
to have their religion recognized at FPC Petersburg. Although
neither inmate has exhausted, they cite to a released inmate's
exhaustion on this issue as satisfying the exhaustion
requirement . Plaintiffs request that the court establish the
Asatru Free Assembly at FPC Petersburg, provide meeting space,
materials, etc.
ALTERNATIVE DISPUTE RESOLUTION EFFORTS: None
18 U. S.C, 5 3621(8; LITIGATION:
FCI Petersburg - Fuller v. Moore - On October 1st the Fourth
Circuit held oral argument in this 3621(e) case involving a
two point sentencing enhancement . The panel indicated from
the bench that they were going to follow Do wney and Roussos,
but we have not received a decision.
We recently filed a
supplemental pleading bringing the Venegas v. Henman opinion
to the court's attention, and asked the court not rule until
two other cases before the Fourth Circuit" (Hayes and
Pelissarol can " be fully briefed and argued. We are hoping
that a different panel has drawn the Hayes and Pelissaro

•

cases, and that we can convince this latter panel that Venegas
has persuasively distinguished Downey and Roussos. We are
also planning to fila a motion urging the court to place
inmate Fuller on bail pending the decision by the 4th Circuit.

PCI Beckley - Weaver v. Olson - This 2241 habeas petition
challenges the early release provisions of P.S. 5162.02.
Pursuant to the new PS. ,5162.04, inmate Weaver's instant
offense is to be evaluated under old P.S. 5162.02, as he had
entered the drug program prior to October 9, 1997. However,
based on Wiggins v. Wise which is controlling at FCI Beckley,
inmate Weaver was deemed eligible for early release. a Motion
to Dismiss was filed in October. In November, the Magistrate
entered an R&R dismissing the action with prejudice'since no
case or controversy exists.
PCI Beckley - Dukes v. Heminqwav - A Motion to Dismiss for
mootness was previously filed in this habeas petition, since
the inmate is now deemed eligible for early release
consideration pursuant to Wiggins. A Judgement, Order has now
been entered dismissing the action with prejudice.
PCI Manchester - Cobb v. Chandler - This habeas petition
challenges the BOP's denial of early release eligibility under
§ 3621 for § 841(a) (1) conviction with a two-level
enhancement. The Court Order dated October 30, 1997,
dismissed the case with prejudice.
PCI Manchester - Boone v. Chandler - This habeas petition
concerning denial of early release for a §841(a) (2) offense
during which firearms were present was dismissed with
prejudice by order dated November 7, 1997.
PCI Petersburg - Goddard v. Dewalt - New habeas petition
challenging denial of early release based on two point
enhancement. This inmate transferred to Petersburg from
Butner in March 1997, after completing the 500 hour
residential drug program in July 1996. He was classified as
ineligible for early release because of a two point
enhancement for possession of a firearm. His sentence was
drug conspiracy. He requests the court grant him a one year
reduction to his sentence, citing'to Downey. The inmate
exhausted remedies through the BP-10 level with responses
indicating that the two point enhancement was still valid at
Butner. He 'did not appeal to the Central Office. Petersburg
has the Fuller decision which has declared Section 9, of P.S.
516202 uVoid. n Response is due January 1, 1998.
SIGNIPlCANT NEW CRIMINAL REFERRALS SINCE LAST MONTH'S REPORT:
None
UPDATE ON PREVIOUSLY REPORTED CRIMINAL MATTERS:

FCI Butner - On December 3, 1997, Correctional Officer
Delwynne Lennon was sentenced in u.s. District Court to 14
months incarceration, one year supervised release, and fined
$8,059.28 after pleading guilty to a charge of sexual abuse of
a ward (the correctional officer was alleged to have had sex
with a female camp inmate on four different occasions). Mr.
Lennon was arrested at FCI Butner on June 10, 1997, by the
FBI, and had been on home duty status for approximately 14
months prior to his arrest.
FMC Lexington - The trial set for November 24, 1997, for
former FMC Lexington inmate Jeffrey Long has been continued
until March 1998.
FCI Beckley - On November 14, 1997, inmate Jamel Wingate, Reg.
No. 53173-053, was arraigned for Possession of Contraband (a
shank). A pretrial hearing has been scheduled for
January 5, 1998, and trial has been scheduled for January 21,
1998. Inmate Michael Lanham, Reg. No. 16120-016, was
scheduled to be sentenced on November 24 for Assault of an
Officer. The sentencing was rescheduled for December 8, 1997.
Inmates Jackie Cockrane, Reg. No. 06458-058, and Claude
Shafer, Reg. No. 03736-084, are scheduled to be sentenced on
December 5, 1997, for Escape from FPC Beckley.
LSCI Butner - The institution received a court order from a
magistrate judge in Tampa, Florida, directing the Warden to
provide specific telephone tapes to the court for use by the
defense in a criminal action. The judge found that the
defense showed the requisite materiality as required by Fed.
R. Crim. "Pro. 17 and as such ruled that the request was not a
~fishing expedition." .Of significance, the court ruled that
the tapes were not in the possession of the prosecution team
in this case, and thus did not require a Brady, Giglio, or
Jenks determination. The court also ordered costs be borne by
the defense.
SUCCESSFUL PROSECUTIONS OR ANY ACQUITTALS SINCB LAST MONTH'S
RBPORT: None
RBHABILITATION ACT: None
ENSIGN AMENDMENT CASES:
FCI Cumberland - Maydak v. Bidwell - This Ensign Amendment
case is being handled in part by Marsha Edne, Department of
Justice. Inmate Maydak recently amended his complaint to add
an allegation that his first amendment rights were violated
because staff rejected ·personal photographs" which he
obtained from a ·commercial source." This issue has now come
up at Beckley and Butner as inmates are apparently responding
to adve"rtisements to order from ~fly by night" businesses,
personal photographs. It is very difficult to distinguish
these photos from true personal photos of wives/girlfriends,
as the photos are printed on normal film paper and do not look

II

like the professional photos that appear in magazines such as
Playboy. We are taking the position that the inmate can have
the photos under our correspondence policy, provided we can
verify he obtained them from a commercial source.
DJ:SMl:SSALS UNDER PLRA: None

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UNITED STATES GOVERNM

memo ran
DATE:

Mid-Atlantic Regional Office, Annapolis Junction, MD 20

REPLBill Burlington, Regional Counsel
AT~~- eman~~·~~~~

TOWallace H. Cheney, General Counsel
ATTN:

Nancy Redding,

Executive Assistant

ADMINISTRATIVE REMEDIES

JAN

FEB

MAR

APR

MAY

JUN

JUL

AUG

SEP

OCT

NOV

DE

Received
Answered

140
1 78

146
130

201
135

133
193

142
202

172
164

154
158

184
189

157
169

133
14 4

153
128

15

TORT CLAIMS

JAN

FEB

MAR

APR

MAY

JUN

JUL

AUG

SEP

OCT

NOV

DE

n Pending
n Received
n Answered
n Pending
n Over Six

213
179
183 181 196 203
180
197 210
217
226
24
37
51
66
41
70
69
56
91
72
71
55
64
39
65 43
52
60
63
52
74
64
37
180
179 183
181 196
2 17
203
197 210
226
24:23
44334*
4*
1*
1 **

Month

FOI / PRIVACY
n Pending
# Re ce ived
n Answered
n iing
n
: 30 Days

JAN
66
36
62
43
23

FEB
43

MAR

42
51
45
50
18

33

39
42
21

APR
50
43
24
65
29

MAY
65
40
46
51
28

JUN

JUL

51
46
53
52
21

52
69
50
77
32

AUG SEP
77
63
48
56
72
68
63 39
37 15

OCT
39
61
40
60
21

11

NOV
60
56
51
67
23

DE
67
27
82
13

***'l'hi s figure represents those requests in t h e office over 20 days; of these 3 we are

LITIGATION

JAN

Cases Pending
New Cases Received

265
353(1 352
25 17
19
16
6
12

Habeas Corpus

Bivens
FTCA
Other
Cases Closed
Cases Pending
Li t Repor ts Completed

FEB

5
2
2
11

6
6

o
l{

4

o
$95

0

AUG

JUL

$3 _($180

SEP

OCT

NOV

DE

343 339
348
335
33 1
325
32
16
23
6
13
9
17
7
6
1
2

4

11

8

5
4
3

2

20
14
339 348
1:

4
3

o

8
3
2
4

1:
17
15
14
335 331
325
329
3
2_
10
10

1~

1

0

o
o

JUN

12
343
339
18
17

251 352
353
17
1 9 21
3

MAY

353
339
13
16
6
1

Cases/ Hearings or Trials

Settlements/Awards
$ Settlements /Awards
($ in Thousands)

APR

MAR

o
$0.2

*We a re in the process of obtaining settlement approva l from the Central
oIncorrec t figure correc ted .
**Waiting f o r further information from institution regarding s tatus .

'$0.05$1. 7
Office for th

•

XTBMS OP XNTBRBST, PERSONAL LEAVE, BUSXNBSS TRXPS, MOVES, ETC.
This month we would like to recognize Dave Recker, Attorney
Advisor, for having passed all components of the Minnesota
Bar. Congratulations Dave!
We enjoyed having Donald Hawkins, Paralegal Trainee, Central
Office, working in the regional office part of the month, and
appreciated his assistance.
Bob Blackburn, Legal Tech, USP Terre Haute, will be in annual
training January 12-16, 1998.
Joe Tang, Attorney, FMC Lexington, will be teaching Ethics
during FMC Lexington's annual refresher training at various
times from January through April 1998.
Randy Smith, Paralegal, FC! Elkton, will be in annual training
January 5-9, 1998. Randy conducted training for case managers
on two separate occasions and subsequently to Unit Staff at
FC! Elkton regarding VCCLEA issues and categorization of
offenses. He also attended a Lieutenant's retreat and
provided tr~ining in inmate discipline, administrative
remedies, and investigation of FTCA claims.
Mike Robar, Paralegal, FC! Manchester, will be in annual
training January 26-30, 1998.
Debbie Munson, Attorney, FC! Beckley, along with the DHO, held
a joint training session for staff regarding the changes to
the PS on Inmate Discipline. Debbie will be teaching
Ethics/Standards of Conduct class during annual refresher
training. Beginning in January, Debbie will also be teaching
an incident report writing class to new employees during IF.
SXTUATXON OP XNTEREST, CONTACT WITH FEDERAL BBNCH, HAZARDOUS
WASTE SXTES, ETC.:
FCI Beckley - An attorney's right to have privileged
communications with an inmate at FCI Beckley has been limited
to non-privileged correspondence only for one year. An
envelope addressed to an inmate was not marked with the
attorney's name or an indication 'that the person was an
attorney. The envelope was opened and read: "Later this week
I am sending you some more magazines; please drop me a note to
let me know'that you received them. They are coming in a
return e~velope from another Boston 'law firm so that if they
are intercepted it won't be traceable to me. That way,
letters to and from me won't enjoy any special scrutiny.n The
referenced envelope was later intercepted by Beckley's mail
room staff. Once again, since an individual attorney's name
was not specified, it was treated as general correspondence.
The envelope contained bondage magazines, which were
subsequently rejected in accordance with poliey. The
information was forwarded to your office for referral to Main

Justice requesting they refer the attorney to his state
licensing board. The attorney has filed an appeal with the
Regional Director.
Prisoner Litigation Refor.m Act: None
SUBSTANTIVE PLEADINGS (COMPLAINT, MOTION FOR SUMMARY JUDGMENT,
BTC.): None
SBTTLEMENTS:
FCI Memphis - Martin. et al. v. Hawk. et ale - This is the
Bivens case arising out of FCI Memphis' implementation in 1995
of the new bed board policy and the Director is still a
defendant. Last month we reported that we had been authorized
to settle this case for as much as $12,000, but had offered
Plaintiffs $10,500 at a settlement conference. Plaintiffs
rejected that offer and counter-offered $12,000. Plaintiffs
have agreed to convert the case from Bivens to FTCA for
settlement purposes. In that regard, plaintiffs have stated
their intent to file administrative tort claims with the BOP.
Once received, the administrative claims will be appropriately
investigated and processed. Carolyn Sabol has delegated to
the Region authority to settle these tort claims, even though
they will be for $4,000 each. This was done to expedite
settlement and due to the fact Wally had already agreed to a
total settlement of $12,000.
ADVERSE DBCISIONS OR SiGNIFICANT DBCiSIONS:
FCI Butner - Rish v. Johnson - (4th Circuit) On December 18th,
the Fourth Circuit granted our appeal in which we sought
qualified immunity for three Butner staff. This case is six
years old, and involved allegations that our staff violated
the 8th Amendment by exposing inmate orderlies to HIV and
Hepatitis by failing to provide adequate protective equipment.
The 4th Circuit (1997 WL 776553) held there was no clearly
established constitutional right in 1988-1992 to be provided
with enough protective equipment so that one could practice
Universal Precautions. There was one dissenting vote on the
panel.
FCI Petersburg - Fuller v. Moore - (4th Circuit) On December
29th, the Fourth Circuit followed Downey and Roussos and held
we could not consider a 2-point enhancement when determining
whether an inmate was Qconvicted of a nonviolent offense. n
The decision was a per curiam, unpublished decision which has
little value as precedent. We have brought this decision to
the attention of Central Office staff. We have not advised
staff within the 4th Circuit to do anything different, and we
continue to work on a brief in another case (Pelissero) that
raises the same issue. In anticipation of this ruling, inmate
Fuller was placed on Supervised Release a week before the
decision was issued.

FCl Memphis - Ashley v. US - This is an FTCA action for lost
property arising out of the disturbance on October 20, 1995.
We were granted permission to, and did argue that in light of
the discretionary function exception to the FTCA, the Court
does not have jurisdiction to hear this case. Although we
have not yet received a copy, contact with the U.S. Attorney's
Office reveals that the docket sheet shows that the Court
granted our Motion to Dismiss/Motion for Summary Judgment
based on the discretionary function exception.
FCl Milan - Norman v. Pontesso - The Magistrate's R&R dated
December 23, 1997, dismissed all Bivens defendants claims and
damages, but sue sponte amends the inmate complaint to include
a motion for injunctive relief enjoining BOP from enforcing
the Ensign Amendment. BOP has been ordered to respond to
injunctive relief issue by January 21, 1998.
FCl Petersburg - Platshorn v. Hahn - In an order filed
December 1, 1997, Judge Merhige adopted the MRR and dismissed
this sentence computation case regarding deaggregation of
parolable and non-parolable sentences upon parole from the
parolable portion. The court dismissed the action stating
that the BOP's deaggregation policy inures to the benefit of
Platshorn. The court still has a problem with the use of the
term "de-aggregation" in BOP policy, citing that under 18
U.S.C. §1461 once sentences become aggregated they remain so.
A call was received from AUSA Prillaman indicating the
Magistrate clerk wanted our input on whether or not the
decision should be published. It was recommended that the
decision not be published. Although we won the case, it is
not very good law; the court simply refuses to understand that
the word aggregation in this statute pertains to sentences of
imp~isonment and not sentences being served on parole, and
that once released on parole, it is the application of the
parole law which results in the non-parolable consecutive
sentence being computed as standing alone. Platshorn filed a
notice of appeal on December 22, 1997.
UPDATE ON CASES, TRIALS OR HEARINGS, ETC. NOTED IN PRIOR
REPORTS:
FCI Memphis - Johnson v. US - This is a FTCA claim for lost
property arising out of the October 20, 1995, disturbance. In
this case we were also permitted to argue the discretionary
function exception. The Court has not yet ruled on our motion
and a trial date of January 20, 1998, has been set. Because
the Court has not yet ruled, it is highly unlikely that this
case will go to trial on that date.
FCI Memphis - Martin v. Hawk - This case is currently set for
a jury trial on January 26, 1998. However, as stated under
the section on Settlements, we are currently involved in
settlement negotiations. In addition, because of those
negotiations we have filed a joint motion for continuance

seeking·45 additional days· to try to settle this case prior to
trial.
USP Terre Haute - Yanez v. USA - This FTCA case is scheduled
for trial in Indianapolis on January 8, 1998. The case
involves the alleged loss of $1,800 worth of hobby craft
material when the inmate transferred from USP Terre Haute to
FCI Pekin.
REPRESBNTATXON NOT RECOMMENDED FOR STAFF:
FCX Milan - Antone v. Pontesso. et ale - This is a Bivens
action filed by an inmate at Milan alleging that a staff
member made sexual statements about him .to another inmate
causing the plaintiff to fear for his safety. The plaintiff
also alleges that staff used excessive force while returning
him to his cell in SHU. Of the two complaints investigated
locally, one was not sustained and one was sustained with the
staff member receiving a letter of reprimand. The 0.1.
investigation into the allegations regarding use of excessive
force has been completed and is being reviewed by the Chief of
0.1. prior to forwarding to you for approval. We received word
that the report had been signed and issued to the institution,
but it has not been received yet by the institution. Once the
institution receives the report, we will complete our
recommendation regarding representation in this case and
forward it to the Department. The legal staff at Milan are
keeping the AUSA informed of the progress of these requests.
FTCA CLAXMS:
FCX Butner - Inmate McPhaul, a paraplegic inmate, filed a tort
claim after being severely burned on his legs. The hot and
cold water taps, which had been installed by an inmate worker,
were reversed in the shower. Due to his medical condition,
the inmate could not feel the hot water scalding his legs.
The severe burns to his legs were properly treated by medical
staff. The claim was settled for $1,000.
MEDXCAL MALPRACTXCE CASES UPDATE:
FCX Petersburg - Patsel v. US - This FTCA suit was brought by
a former inmate alleging that failure to provide adequate
medical treatment at Petersburg in July of 1992, resulted in a
cerebral stroke. The trial has been calendared on the docket
for March 24, 1998. On December 15, 1997, AUSA Kelley visited
FeI Petersburg and spoke with medical staff who provided
treatment to Patsel. According to the government's expert,
the preliminary assessment of treatment is that there is no
evidence that the outcome would have been different had Patsel
been taken to a hospital sooner. Under Virginia law Patsel
must present an expert to state the standard of care, there
was a breach of that care, and a sooner diagnose of the stroke
would have resulted in A better outcome .. According to the
AUSA, the deadline for naming of expert by plaintiff's counsel

is rapidly approaching and the deadline for discovery is
almost over and no discovery has been requested. If
plaintiff's counsel fails to come forth with an expert, then
the case can be dismissed without going to trial.
SIGNIFICANT ADMINISTRATIVE REMEDIES: None
NEW RFRA CASES AND UPDATES ON PREVIOUSLY REPORTED CASES:
FCI Manchester - Yahheh v. Chandler. et al. - This Bivens
action concerning the alleged denial of access to facilities
and services to practice a prison-based religion.
The Court
is allowing this case to proceed on the following
constitutional claims only: denial of the right to practice
one's religion of choice, and equal protection and racial
discrimination claims concerning the denial of plaintiff's
request to practice his religion. In a footnote, the Court
expressly declined to review this claim under RFRA based on
the Supreme Court's decision in City of Boerne. Kathy Hawk
and the Bureau's Chief Chaplain Van Baaten are also named as
defendants in this action.
ALTERNATIVE DISPUTE RESOLUTION EFFORTS: None
18 U.S.C.

§

3621(e) LITIGATION:

USP Terre Haute ~ Caputo v. Clark - (7th Circuit) In an
unpublished opinion, the 7th Circuit upheld our policy on past
convictions (here a misdemeanor aggravated assault conviction)
making an inmate a violent offender who is not eligible for
early release.
FCI Milan - Kienlen v. Scibana - In this habeas petition the
inmate alleges the denial of one year off under §3621 is
improper because it is based on a previous state misdemeanor
conviction for negligent homicide. Petitioner argues BOP is
using prior convictions outside of statute and that this
misdemeanor offense does not meet BOP's definition of "crime
of violence."
FCI Milan - Taylor v. Pontesso - Inmate alleged BOP improperly
denied benefits under RDAP based on his 18 U.S.C. 922(g)
conviction. The December 16, 1997, R&R recommends dismissal
stating BOP's decision is within discretion granted by
Congress to the BOP in implementing this program. The R&R
specifically addresses the Davis, Hines, and Roussos cases and
declines to follow them.
FeI Petersburg - Fuller v. Moore - see write-up under section
entitled "Adverse Decisions or Significant Decisions.SIGNIFICANT NEW CRIMINAL REFERRALS SINCE LAST MONTH'S RBPORT:
FCI Blkton - On November 30, 1997, inmate Mark Tillman walked

by the USMS. The u.s. Attorney's Office has agreed to
prosecute. We are waiting for the grand jury to meet so the
case can be presented for indictment.
FCI Blkton - On November 15, 1997, inmate Leslie Dumersier
became disorderly when ordered to submit to restraints and be
escorted to SHU. Apparently, inmate Dumersier took a swing at
a staff member and staff wrestled him to the ground. While
attempting to place handcuffs on inmate Dumersier, he bit a
staff member on the right hand. The FBI has referred the case
to the u.s. Attorney's Office for review. The U.S. Attorney's
Office has not agreed to prosecute the case, but has requested·
some documentation be corrected. The FBI feels that once the
documentation is corrected, the case will be prosecuted.
FCI Blkton - On August 1 and 4, 1997, approximately 12-16
ounces of marijuana were discovered in FCI Ashland's power
house. Presently, the FCI, in conjunction with the u.s.
Attorney's Office, is investigating the case .. This case may
lead to the indictment of both inmates and staff.
UPDATB ON PREVIOUSLY RBPORTBD CRIMINAL MATTERS:
FCI Petersburg - (U.S. v. Ruffo) Inmate Witness Edwards
Renier. We were advised in December that the defense has
finished listening to the phone tapes involving inmate Edward
Renier. In all, Renier made 3,700 phone calls, and the
defense spent several months at the institution listening to
those tapes. We still need to see about obtaining permission
to reuse some of the tapes, as Petersburg's tape library is
very low. Doug Curless was working on this with us before the
holidays.
FCI Cumberland - us v. Kenneth Creslaw and Robert Davis Trial was scheduled for January 5, 1998, in this case but both
defendants have signed a plea agreement. Defendant Creslaw
pled guilty to 18 USC § 113(a) (5) Assault and 18 USC § 2
Aiding and Abetting. Defendant Creslaw pled guilty to 18 USC
§ 930(a) Possessing a Dangerous Weapon in a FC!.
FCI Beckley - On December 8, 1997, inmate Michael Lanham, Reg.
No. 16120-016, received an eight month consecutive sentence
for Assault on an Officer.
FCI Beckley - Inmates Jackie Cockrane, Reg. No. 06458-058, and
Claude Shafer, Reg. No. 03736-084, were scheduled to be
sentenced in December for Escape from FPC Beckley. The
sentencings were delayed and have not yet been rescheduled.
SUCCBSSFUL PROSBCUTIONS OR ANY ACQUITTALS SINCB LAST MONTH'S
RBPORT: None
RBHABILITATION ACT: None

BNSl:GN AMENDMENT CASES:

H11an - Norman v. Pontesso - see write-up under section
entitled "Adverse Decisions or Significant Decisions."
Fel:

.Dl:SMl:SSALS UNDER

PLRA: None

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UNITED STATES GOVERNMENT

memorandum
DATE:

Mid-Atlantic Regional Office, Annapolis Junction, MD 20701

April 11, 1997

AlTNOF:

Bill Burlington, Regional Counsel
Mid-Atlantic Region

SUBJECT:

QUARTERLY REPORT - January 1, 1997 thru March 31, 1997

REPLY TO

T~

Nancy Redding, Executive Assistant
Office of General Counsel

TORTS
NOM

PROP

PI

133

109

19

PEND

DEN

OD

A/O A/P

178

117

3

15

SET

AMT

2

14

$1157

OTH

ANS

PEN

CLD

H/T

SET

4

57

353

33

1

7

PPPI

WD

MED

3

0

BIV

123

LITIGATION
NOM

HC

FTC

61

34

6

17

AWD
$97,767

ADMINISTRATIVE REMEDIES
NOM

DHO

SPH

491

126

15

MED

MH

LEG

FD

GRT

DEN

PEN

OD

32

0

17

3

42

402

175

0

FOI/PRIVACY
NOM

ANS

PEN

OD

126

147

50

18

TRIALS AND HEARINGS:

FCI Memphis - Temple v. USA, 95-2707-G/V - A hearing was held
on Friday, January 31, 1997, because the Judge had some
questions regarding the facts of the case. This'case involves
a habeas petition regarding sentence computation. In addition
to answering the Judge's questions, the government was also
permitted to argue the merits of the case (failure to exhaust
and no credit against federal sentence for credit already
granted against a state sentence). However, there is a catch
in this case.
In response to a state court order which
instructed that Temple be delivered to the custody of the
federal government, Temple was delivered to CCA Mason,
Tennessee (a private prison). This transfer did not involve
the U.S. Marshals Service.

SETTLEMENTS:

Fitzpatrick & Oliver v. USA (FPC Millington): We were
successful in reaching an agreement to settle these inmate
driver auto accident cases for $16,987 and $12,773
respectively. This case invovled an inmate driver who while
speeding, rear-ended another vehicle. The inmate was cited by
the police for following too closely. The court (Judge
McCalla) made it extremely clear that he felt the government
was at fault and should settle these cases. We were able to
reach what we think were very reasonable settlement figures
with both plaintiffs.
Leacock v. Reno (EEO suit - FPC Alderson): We were successful
in settling this EEO suit (African American physician
discharged from Alderson claims race was the motive) for
$65,000. This case was tried by a jury in November, with the
jury awarding the physician $30,000. The judge indicated he
felt the jury verdict was against the weight of the evidence,
but then hesitated to grant our motion for a new trial. He
urged settlement at a figure one half the amount we would have
been forced to pay, considering attorney's fees and costs. We
were able to include a provision that there was no admission
of discrimination in this settlement.
USP Terre Haute - Mitchell v. USA - This case has a lengthy
history and was originally filed as a Bivens action against
numerous defendants in May of 1994. The plaintiff alleged
that staff had conspired to steal his property and embezzle
his funds.
Eventually, all the individual defendants were
dismissed and only a FTCA action remained. A check issued
from plaintiff's commissary account for $7.00 was cashed after
a stop payment order was issued. Plaintiff was offered $7.00
settlement at the administrative claim stage but refused the
offer.
Case was settled for $7.00.
FPC Alderson - Barrios v. U.S., Elder v. U.S., Wilsoo y. U.S.
- These three FTCA cases alleged negligence based on an
outbreak of salmonella poisoning at FPC Alderson.
Each
plaintiff requested relief in the amount of $3,000. A
settleme~t was reached with each plaintiff in the amount of
$1,000.

UNITED STATES GOVERNMENT

memorandum
DATE:

July 14, 1997

Mid-Atlantic Regional Office, Annapolis Junction, MD 20701

ATJ'NOF:

Bill Burlington, Regional Counsel
Mid-Atlantic Region

SUBJECT:

QUARTERLY REPORT - April 1, 1997 thru June 30, 1997

REPLY TO

TO:

Nancy Redding, Executive Assistant
Office of General Counsel
TORTS
NOM

PROP

PI

165

118

43

WD

PPPI

MED

SBT

AMT

2

0

2

11 $3608

BIV

OTH

ANS

PEN

CLD

3

47

339

LEG
11

PEND

DEN

OD

A/O Alp

205

97

4*

28

103

LITIGATION
NOM

HC

FTC

45

22

4

16

HIT

SET

AWD

63

5

2

FD

GRT

DEN

PEN

OD

14

62

497

60

0

$180,000

ADMINISTRATIVE REMEDIES
NOM

DHO

SPH

MED

453

172

22

29

MH

2

FOI/PRIVACY

127

ANS

PEN

OD

119

53

21

*We are in the process of obtaining settlement approval from
the Central Office for three of these claims or a check from
Treasury; one claim was just recently transferred from another
Region.
TRIALS AND HEARINGS:

FeI Beckley - Keats v. Olson - oral arguments were held on
April 10, 1997, regarding this habeas concerning jail credit.
The Magistrate issued a~R&R in this habeas case, to which the
BOP filed objections. The Magistrate concluded that the
inmate's sentence commenced when the BOP accepted him into
custody to serve his federal sentence, even though the state
had primary jurisdiction and the federal sentence was to run
consecutive to the state sentence. The BOP's mistake (in
accepting him in custody instead of sending him to the state)
effectively turned the consecutive sentence into a concurrent
sentence. The Magistrate also found that there had been a due

-2-

process violation, which could possibly lead to Bivens
liability for those who computed the sentence.
USP Terre Haute - Locascio v. Clark - A hearing was held on
May 12, 1997, before Judge McKinney. Locascio filed a TRO,
preliminary injunction, and permanent injunction based on the
fact that he was placed in administrative detention after a
Prime Time Live interview with Sammy "The Bull" Gravano
indicated that Locascio had conspired to kill John Gotti.
In
his complaint, Locascio alleged that he was being denied
access to the court and his counsel since he was in AD and
wanted to be released to the general population. Locascio was
released to general population on Monday morning. This action
was dismissed.
FCI Petersburg - Platshorn v. Hahn - An evidentiary hearing
was held on June 4, regarding the aggregation of a parolable
sentence with a non-parolable sentence. Platshorn who was
released on parole from the parolable portion of the sentence,
seeks to have SGT earned on the parolable sentence applied to
the consecutive non-parolable sentence. John White, RISA,
testified at the hearing and presented an excellent
explanation of the computation by BOP. The AUSA and Milt
Williams, Paralegal, FCI Petersburg, got the impression that
regardless of § 4161 maximum rate of SGT, Magistrate Judge
Lowe intends to somehow hold that Platshorn is entitled to
add~tional SGT.
On June 30, 1997, Magistrate Judge Lowe
ordered the BOP to provide the court by July 11 a copy of the
P.S. in existence prior to 5880.30.
FCI Milan - Idema v. Pontesso - A hearing was held on June 9,
1997, regarding this habeas petition. The Judge acknowledged
that referral and CCC placement decisions were at the BOP's
discretion. BOP staff advised the Judge that CCC referral for
Idema would be completed pending disposition of the incident
reports the inmate had received.
FPC Seymour Johnson - Milton v. Flowers, et al, - This is a
Bivens case that was originally filed in 1993. The Judge
ordered a contempt hearing on plaintiff's request for
sanctions. The hearing was held on Friday, June 20, 1997, at
10:00 a.m. in Raleigh with Warden Flowers, Randy Meeks,
Charlie Hamilton (retired AUSA previously involved in the
case), Kathy Harris and Bill Burlington in attendance. When
the pro se plaintiff had not appeared by 10:30, the Judge
stated that he would not rule on the motion. The Judge agreed
to consider a motion for attorney's fees and costs (totaling
$6,500), and to order the plaintiff to show cause in ten days

-3-

why the remaining issue should not be dismissed.
The AUSA
filed the motion on June 24, 1997.
If the Judge awards
attorney's fees and costs against the plaintiff, it is
unlikely he will pursue the remaining issue.
SETTLEMENTS:

F.MC Lexington - Venus Michels v. USA - Plaintiff, who alleged
she was coerced into sexual contact with ex-correctional
officer Eddie Smith, accepted a final settlement of $150,000.
This is the final civil case arising out of the actions of
Eddie Smith.
F.MC Lexington - Lydia K. Porter y. USA - Plaintiff, who
alleged negligent care by BOP staff after she ·had a tooth
extraction and developed a serious infection, accepted a final
settlement offer of $30,000.

UNITED STATE
Mid-Atlantic Regional Office, Annapolis Ju

DATE:
REPLY TO Bill Burlington, Regional Counsel
ATTN OF: Mid-Atlantic Region

SUBJECT: QUARTERLY REPORT - April 1, 1997 thru June 30, 1997
TO:

Nancy Redding, Executive Assistant
Office of General Counsel

TORTS
NUM PROP PI
165

118

43

PPPI

WD MED SET

2

0

2

PEND DEN 00 AlO AlP

AMT

11 $3608

97

205

4*

LITIGATION
NUM HC

FTC

BIV

45

4

16

22

OTH ANS PEN CLD
47

3

339

63

HIT

SET

AWD

5

2

$180,000

ADMINISTRATIVE REMEDIES
NUM DHO SPH
453

172

22

MED MH LEG
29

2

11

FD

GRT DEN PEN 00

14

62

497

60

FOI/PRIVACY
NUM

ANS

PEN

00

127

119

53

21

*We are in the process of obtaining settlement approval from
the Central Office for three of these claims or a check from
Treasury; one claim was just recently transferred from another
Region.

TRIALS AND HEARINGS:
FCI Beckley - Keats v. Olson - oral arguments were held on
April 10, 1997, regarding this habeas concerning jail credit.
The Magistrate issued a R&R in this habeas case, to which the
BOP filed objections. The Magistrate concluded that the
inmate's sentence commenced when the BOP accepted him into
custody to serve his federal sentence, even though the state
had primary jurisdiction and the federal sentence was to run
consecutive to the state sentence. The BOP's mistake (in
accepting him in custody instead of sending him to the state)
effectively turned the consecutive sentence into a concurrent
sentence. The Magistrate also found that there had been a due
process violation, which could possibly lead to Bivens
liability for those who computed the sentence.

0

28

103

USP Terre Haute - Locascio v. Clark - A hearing was held on
May 12, 1997, before Judge McKinney. Locascio filed a TRO,
preliminary injunction, and permanent injunction based on the
fact that he was placed in administrative detention after a
Prime Time Live interview with Sammy "The Bull" Gravano
indicated that Locascio had conspired to kill John Gotti. In
his complaint, Locascio alleged that he was being denied
access to the court and his counsel since he was in AD and
wanted to be released to the general population. Locascio was
released to general population on Monday morning. This action
was dismissed.

FC. petersburg - Platshorn v. Hahn - An evidentiary hearing
was held on June 4, regarding the aggregation of a parolable
sentence with a non-parolable sentence. Platshorn who was
released on parole from the parolable portion of the sentence,
seeks to have SGT earned on the parolable sentence applied to
the consecutive non-parolable sentence. John White, RISA,
testified at the hearing and presented an excellent
explanation of the computation by BOP. The AUSA and Milt
Williams, Paralegal, FCI Petersburg, got the impression that
regardless of § 4161 maximum rate of SGT, Magistrate Judge
Lowe intends to somehow hold that Platshorn is entitled to
additional SGT. On June 30,1997, Magistrate Judge Lowe
ordered the BOP to provide the court by July 11 a copy of the
P.S. in existence prior to 5880.30.
FC. Milan - Idema v. Pontes so - A hearing was held on June 9,
1997, regarding this habeas petition. The Judge acknowledged
that referral and CCC placement decisions were at the BOP's
discretion. BOP staff advised the Judge that CCC referral for
Idema would be completed pending disposition of the incident
reports the inmate had received.

FPC Seymour Johnson - Milton v. Flowers. et al. - This is a
Bivens case that was originally filed in 1993. The Judge
ordered a contempt hearing on plaintiffs request for
sanctions. The hearing was held on Friday, June 20, 1997, at
10:00 a.m. in Raleigh with Warden Flowers, Randy Meeks,
Charlie Hamilton (retired AUSA previously involved in the
case), Kathy Harris and Bill Burlington in attendance. When
the pro se plaintiff had not appeared by 10:30, the Judge
stated that he would not rule on the motion. The Judge agreed
to consider a motion for attorney's fees and costs (totaling
$6,500). and to order the plaintiff to show cause in ten days
why the remaining issue should not be dismissed. The AUSA
filed the motion on June 24, 1997. If the Judge awards
attorney's fees and costs against the plaintiff. it is
unlikely he will pursue the remaining issue.

SETTLEMENTS:
FMC Lexington - Venus Michels v. USA - Plaintiff, who alleged
she was coerced Into sexual contact with ex-correctional
officer Eddie Smith, accepted a final settlement of $150,000.
This is the final civil case arising out of the actions of
Eddie Smith.

FMC Lexington - Lydia K. Porter v. USA - Plaintiff, who
alleged negligent care by BOP staff after she had a tooth
extraction and developed a serious infection, accepted a final
settlement offer of $30,000.

UNITED STATES GOVERNMENT

memorandum
DATE:

October 9, 1997

Mid-Atlantic Regional Office, Annapolis Junction, MD 20701

ATTN OF:

Bill Burlington, Regional Counsel
Mid-Atlantic Region

SUBJECT:

QUARTERLY REPORT - July 1, 1997 thru September 30, 1997

REPLY TO

ro:

Nancy Redding, Executive Assistant
Office of General Counsel

TORTS
NOM

PROP

PI

PPPI

WD

MED

SET

210

123

65

15

0

7

21

BIV

OTH

ANS

PEN

CLD

7

4

48

331

50

2

AMT

PEND

DEN

OD

A/O A/P

220

141

1*

58

5019

99

LITIGATION
NOM

HC

FTC

42

23

8

H/T

SET

AWD

1

$183.55

ADMINISTRATIVE REMEDIES
NOM

DHO

SPH

MED

MH

LEG

FD

GRT

DEN

PEN

OD

499

157

11

45

2

25

2

47

468

58

0

FOI/PRIVACY
NOM

ANS

PEN

OD

176

197

39

15 (over 30 days)
29 (over 10 days)

*We are in the process of obtaining settlement approval from
the Central Office for this claim.
TRIALS AND HEARINGS:
FPC Alderson - Mildred Thompson v. Hemingway - On July :2,
1997, Magistrate Mary Fienberg held a hearing to determine why
the Bureau of Prisons had not yet published a new policy to
replace the "Crimes of Violence" Program Statement whic~ was
declared void in Wiggins v. Wise. At the conclusion 0: the
hearing, the Magistrate called both sides into her cha~bers
and suggested that the Bureau should seriously consider
"settling these cases," as she indicated the current Bureau
position is. causing a "public relations problem" for the
Bureau with the Court.

It is clear from the hearing that BOP stands very little
chance of prevailing with Magistrate Fienberg, if we take the
position that we can consider conduct that was not the subject
of a formal conviction when we make early release
determinations.
I tried to stress to Magistrate Fienberg that
the Bureau feels strongly that Congress certainly didn't
intend BOP to release early from prison, inmates whose crimes
involved in any form, weapons. She did not seem to be
persuaded. Ms. Thompson and all the other inmates at Alderson
who prevailed on these suits against the Bureau have now been
reclassified by staff as "eligible" for early release.

FCI Memphis - Coval Baker v. USA - This is an alleged failure
to protect FTCA case arising out of the unprovoked attack by
inmate Paulino on inmate Baker. Trial was to begin Friday
morning but had to be delayed until 1:00 p.m. because the
Judge failed to writ out th~ inmate. USMS ~nd R&D staff
worked quickly to get the in~ate to court by 1:00 p.m.
The
pro se inmate was permitted to call one inmate and one staff
member as witnesses. At the conclusion of the plaintiff's
case, AUSA Quarles moved for a judgment as a matter of law as
the plaintiff had failed to establish a prima facie case of
negligence. After a few moments of consideration, the Judge
granted the motion and ruled in favor of the government.
It
is interesting to note that plaintiff did not present any new
evidence that had not already been rebutted in prior
pleadings.
Nothing new was revealed that made the trial any
more detailed than the pleadings already before the court.
SETTLEMENTS:
LSCI Butner - Funderburk v. USA - Parties riled a stipulation
of dismissal in this action.
The Bureau agreed to pay inmate
Funderburk $183.35 for the 19S5 of_his personal property. We
felt we would not be able to~ prevail on the·~.issue of liabilj.ty
were this case to proceed to trial.

UNITED STATES GOVERNM
memo ran
Mid-Atlantic Regional Office, Annapolis Junction, MD 20

DATE:

REPLBill Burlington, Regional Counsel
ATTNMid-Atlantic Region
SUBQUARTERLY REPORT - July 1, 1997 thru September 30, 1997
TONancy Redding, Executive Assistant
Office of General Counsel

TORTS
PBND

DBN

OD

A/O A/P

220

141

1*

58

HUM

PROP

Pi

PPPI

WD

MED

SBT

210

123

65

15

0

7

21

BIV

OTH

ANS

PBN

CLD

H/T

7

4

48

331

50

2

AMT

5019

99

LITIGATION
HUM

HC

FTC

42

23

8

SBT

AWD

1

$183.55

ADJaNISTRAT:IVE RBMBDIBS
HUM

DHO

SPH

MED

MH

LEG

FD

GRT

DEN

PBN

00

499

157

11

45

2

25

2

47

468

58

0

FOI/PRIVACY
HUM

ANS

PEN

OD

176

197

39

15 (over 30 days)
29 (over 10 days)

*We are in the process of obtaining settlement approval from
the Central Office for this claim.
TRiALS AND HEARiNGS:
FPC Alderson - Mildred Thompson v. Hemingway - On July 22,
1997, Magistrate Mary Fienberg held a hearing to determine why
the Bureau of Prisons had not yet published a new policy to
replace the ~Crimes of Violence" Program Statement which was
declared void in Wiggins v. Wise. At the conclusion of the
hearing, the Magistrate called both sides into her chambers
and suggested that the Bureau should seriously consider
"settling these cases," as she indicated the current Bureau
position is causing a ~public relations problem" for the

Bureau with the Court.
It is clear from the hearing that BOP stands very little
chance of prevailing with Magistrate Fienberg, if we take the
position that we can consider conduct that was not the subject

of a formal conviction when we make early release
determinations.
I tried to stress to Magistrate Fienberg that
the Bureau feels strongly that Congress certainly didn't
intend BOP to release early from prison, inmates whose crimes
involved in any form, weapons. She did not seem to be
persuaded. Ms . Thompson and all the other inmates at Alderson
who prevailed on these suits against the Bureau have now been
reclassified by staff as "eligible" for early release.

Fcr Memphis - Coval Baker v. USA - This is an alleged failure
to protect FTCA case arising out of the unprovoked attack by
inmate Paulino on inmate Baker. Trial was to begin Friday
morning but had to be delayed until 1 : 00 p.m . because the
Judge failed to writ out the inmate. USMS and R&D staff
worked quickly to get the inmate to court by 1:00 p.m . The
pro se inmate was permitted to call one inmate and one staff
member as witnesses. At the conclusion of the plaintiff's
case, AUSA Quarles moved for a judgment as a matter of law as
the plaintiff had failed to establish a prima facie case of
negligence . After a few moments of ·consideration, the Judge
granted the motion and ruled in favor of the government.
It
is interesting to note that plaintiff did not present any new
evidence that had not already been rebutted in prior
pleadings . Nothing new was revealed that made the trial any
more detailed than the pleadings already before the court.
SETTLEMENTS:
LSCI Butner - Funderburk v . USA - Parties filed a stipulation
of · dismissal in this action. The Bureau agreed to pay inmate
Funderburk $183 . 35 for the loss of his personal property .

UNITED STATES GOVERNMENT

memorandum
DATE:

REPLYTO
ATl'NOF:

SUBJECT:

TO:

January 16, 1998

Mid-Atlantic Regional Office, Annapolis Junction, MD 20701

Bill Burlington, Regional Counsel
Mid-Atlantic Region
QUARTERLY REPORT - October 1, 1997 thru December 31, 1997
FY-98 FIRST QUARTER
Nancy Redding, Executive Assistant
Office of General Counsel

TORTS
NOM

154

PROP
137

Pi
16

PPPI
1

WD

0

SET AMT
PEND
12 14,645 229

MED
0

DEN
96

00
0

Alo

Alp
23 97

LITIGATION

(',
' ....

'

NOM

BC

PTC

46

24

5

BiV

10

OTH

7

HIT

SET

40

3

2

ANS

PEN

CLD

29

338

AWD

$1,715.23

ADMINISTRATIVE REMEDIES
NOM

DBO

SPB

443

131

7

MBD

MIl

LEG

I'D

GRT

DEN

PEN

OD

48

1

30

4

27

364

131

2

FOI/PRIVACY
NOM

ANS

PEN

OD

144

169

13

5*

*Of the five in the office more than 20 days, we are awaiting files from
archives on three of them.

TRIALS AND HEARINGS
FMC Lexington - Dumphord y. Reno, et al, - On Wednesday,
November 26th, we had a temporary restraining
order/preliminary injunction hearing regarding the care this
inmate is receiving at FMC Lexington for his facial keloids.
This was a case where the Judge (Karl Forrester) recommended
at sentencing that this inmate be treated by his personal
physician while he was at Lexington. Unfortunately, Lexington
did not respond to this recommendation and did not allow the
inmate to see the physician who had extensively treated him in
the Lexington community prior to incarceration.
The Judge
2678

(

noted during the first five minutes of Wednesday's hearing
that the inmate's facial condition had deteriorated.
The rest
of the hearing did not dispel the Judge's opinion that we were
not providing appropriate care. We expect an adverse order
from the Judge soon.
FCl Memphis - Cornett v. US - see Settlements below.
FCl Petersburg - Fuller y. Moore - On October 1st the Fourth
Circuit held oral argument in this 3621(e) case involving a
two point sentencing enhancement. The panel indicated from
the bench that they were going to follow powney and Roussos.
On December 29th, the Fourth Circuit followed Powney and
Roussos and held we could not consider a 2-point enhancement
when determining whether an inmate was "convicted of a
nonviolent offense. JI The decision was a per curiam,
unpublished decision which has little value as precedent. We
have brought this decision to the.attention of Central O~fice
staff. We have not advised staff within the 4th Circuit to do
anything different, and we continue to work on a brief in
another case (Pelissero) that raises the same issue.
In
anticipation of this ruling, inmate Fuller was placed on
Supervised Release a week before the decision was issued.
SETTLEMENTS:
FCI Memphis - Cornett v. US - This FTCA case involved a cell
fire after the inmate was taken to SHU in preparation' for
transfer.
Staff did not properly secure his personal property
prior to the cell fire.
The inmate had been assaulted by
other inmates. We offered the inmate $200 at the
administrative stage for the lost property.
He declined the
offer and filed a Bivens/FTCA cause of action. All Biyens
claims were dismissed, as well as all personal injury claims.
A hearing was held November 14, 1997, to determine the extent
of the damages (lost property only).
Plaintiff had
"conservatively" valued his property at $3,711 (plaintiff
stated that the "probative" value of such property, which he
anticipated would secure his release, was $3 million) .
Plaintiff, the only witness to take the stand, was questioned
for an hour by the Judge and cross-examined by the AUSA.
The
Court acknowledged that much of plaintiff's personal property
was not new and was in fact used, that plaintiff did receive
some o~ his legal materials (plaintiff has alleged all his
legal property had been destroyed), and that plaintiff could
make new copies of much of his legal materials for 10 cents a
copy. An order has been received and based on those three
factors the Court substantially reduced plaintiff's damages to
an award of $1,665.23.
FCI Milan - Ahart v. USA - This FTCA case involving loss of
inmate property when transferred from Milan, was sett!ed for
$50.00. The original FTCA claim was for $200.

(,

2

2679