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UNITED STATES GOVERNMENT

memorandum
DATE:

REPLY TO

October 20, 1993

Bi1~i~~e~al

ATTN OF:

Mid-Atlantic Region

SUBJECT:

September 1993(MOnthly

Mid-Atlantic Regional Office, Annapolis Junction, MD 20701

Counsel

Re~

M:

Wallace H. Cheney, General Counsel

ATTN:

Nancy Redding, Executive Assistant
SUBSTANTIVE PLEADINGS (COMPLAINT, MOTION FOR SUMMARY JUDGMENT,
ETC.) :

Long v. Gable, 2:92CVll13, Norfolk Division, FCI Petersburg
"

'-'.

Supplemental litigation report transmitted to AUSA outlining.
current medical status and treatment plan of plaintiff, along
with a recommendation for a Motion for Summary Judgment. This
Bivens case results from inmate Long's complaint that he is
not receiving adequate medical care for his back problem.
In
his J&C the court issued an order directly that Long's back
problem be diagnosed and treated. Additionally, the
sentencing court (E.D. Va.) is also interested in the medical
condition of the inmate. There is a great deal of interest in
this case by the courts. Mr. Long has persistently indicated
that he needs back surgery. He has submitted two reports from
outside doctors - one recommending surgery and one
recommending more conservative treatment. Long was sent to
USMCFP and was evaluated by both a board certified
neurosurgical specialist (who specializes in surgery with low
back pathology) and a board certified neurology specialist who
diagnosed him as having osteoarthritis and degenerative disc
disease, prominent at the LS - Sl level. He has a narrowing
of the LS - Sl interspace and a slight degree of central disc
bulging at this level. Recommended treatment is physical
therapy, non-steroidal anti-inflammatory medication, regular
ambulation, and low back muscle strengthening. Records
indicate that Long is not compliant with the recommended
treatment and insists that he needs surgery. A hearing in the
case has tentatively been set for November.
SETTLEMENTS:

None.

ADVERSE DECISIONS OR SIGNIFICANT DECISIONS:

Conchita Washington v. Reno et al.,
Lexington)

(E.D. Kentucky- FCI
j~

~ 0

After an all day hearing, Judge Wilhoit has indicated that he

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MXR Monthly Report
will preliminarily en]01n the Bureau of Prisons from
implementing the ITS system unless collect calls are also
available in each housing unit. The government is now
considering whether this order is appealable and whether a
stay of this order can be obtained.
UPDATE ON CASES, TRIALS OR HEARINGS, ETC. NOTED IN PRIOR
REPORTS:

Robert Dickey v. Warden Story et al., CA No. 92-237, E.D. Ky.
Inmate Bivens and injunctive relief action where inmate (a)
seeks damages for having white supremacist publications
rejected; and (2) seeks injunctive relief to be allowed to
review such literature within confines of chapel, as related
to white supremacist religion.
Inmate was released from
custody on July 9, 1993. Proceedings were at a standstill
while service of process was effectuated on Warden Story and
Defendant Stone and a response filed on their behalf. Service
has now been accomplished, and the AUSA handling the case is
awaiting scheduling by the court.
Osborn v. United States, C.A. No. 3:92CV702, Richmond
Division, FCI Petersburg
An evidentiary hearing is set for October 21,

1993, in this
habeas action. Former federal inmate on federal parole in
state custody, alleges that federal authorities waived
jurisdiction over him when they allowed the state to prosecute
and incarcerate him. He seeks total release from his federal
sentence obligation. Supplemental memorandum filed in this
case on July 28, 1993, asserting no waiver of jurisdiction
citing applicable case law and Fourth Circuit law on the
operation of § 3568. Court has also been advised in
memorandum that inmate's federal sentence has been computed as
starting on date of federal sentencing and he has received
jail time credit since the date of his initial arrest.
In
other words, the inmate has received all possible credit under
§ 3568, notwithstanding that he was in state custody for a
period of time. The record also shows that the Marshals had a
detainer on file with the state and the inmate has never been
"released" from custody. The court nevertheless has set this
action for a hearing.
Miguel Angel Batista Collazo. et ale v. United States, CA No.
92-0017-C{S), N.D. W. Va.
This FTCA complaint is seeking $2.5 million to recover money
damages for alleged acts and omissions of FCI Morgantown
employees which allegedly caused the suicide death of inmate
Hector Alfredo Batista-Hernandez on February 23, 1988. A
recent decision in the Fourth Circuit enables us to argue that
an action for wrongful death under the FTCA would be barred in
West Virginia, and therefore, a motion to dismiss should

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MXR Monthly Report
succeed. Reference: Hill v. Nicodemus, 979 F. 2d 987 (4th
Cir. 1992). Therefore, the Government's position is that no
settlement negotiations will be entertained at this time.
Rodney K. Bevans v. United States, CA No. 93-0295, E.D. Pa.
A straight FTCA case with a claim of $50,000 for alleged
failure to provide medical services during pre-designation
status at Petersburg, Atlanta and Lewisburg. Arbitration
panel met on September 22, 1993, and awarded $10,000 to the
Plaintiff. Essentially, the Panel found that the Plaintiff's
statements were believable, that he complained of various
severe symptoms and that his complaints were unanswered. He
claims he was told, "when you get to your destination
institution, you will have a physical exam." In fact,
Plaintiff did receive a physical exam, once he was designated
to FCI Morgantown in April 1990. We have recommended to the
Office of General Counsel that we do not appeal this case. We
believe the violation of policy of no physical being given for
four months of incarceration is likely to come out at trial,
and risk a higher award.
Evans v. Thompson, 89-29-C, S.D. Ind., USP Terre Haute
Trial was held September 20, 1993, in this Bivens case against
a single defendant alleging 8th Amendment violation during
forced cell move to allow a search of the cell. AUSA Gerald
Coraz anticipates a favorable outcome, and we should hear
something within the next couple of weeks.
REPRESENTATION NOT RECOMMENDED FOR STAFF:

None

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

Teresa Leneave will be on scheduled annual leave October 1215, 1993.
Sherian Fabo, Paralegal, USP Terre Haute, will attend
recruitment training on October 15, 1993.
SIGNIFICANT FTCA CLAIMS:

None

SIGNIFICANT ADMINISTRATIVE REMEDIES:

Inmate at Manchester contested staff removal of $200 from his
trust fund account. Previously, inmate requested BOP to issue
two (2) $100 checks to persons in the community. After
several months going by without the checks being cashed, the
inmate had the checks cancelled and the money was returned to
his account. Subsequently, the checks were negotiated by the
Chase Manhattan Bank, who received payment from the U.S.
treasury despite the checks having been cancelled. The U.s.
Treasury took the money from BOP, who in turn took it out of
the inmate's account. The BOP's action of withdrawing the

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MXR Monthly Report
money from the inmate's account without express authorization
is prohibited by BOP policy regarding inmate trust funds.
While the u.s. Treasury mistakenly honored the checks from the
bank, it was improper to pass the loss on to the inmate.
The
money was returned to him.
.
SiTUATiON OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS
WASTE SITES, ETC.:
The City of Ashland's billing error to FCI Ashland of the
sewer backbill of $100,000 has been reduced to an acceptable
level for payment.
On Wednesday, October 13, 1993, the Supreme Court heard
arguments in Landgraf v. USI Film, 122 L. Ed. 2d 1049 (1993).
This case will review the retroactivity of provisions in the
Civil Rights Act of 1991 which afforded jury trial and
punitive damages in Title VII styled cases. The court in our
previously reported case of Moore v. United States, Civil No.
5:92-0463, S.D. W. Va., had placed any decisions on our motion
to dismiss on hold pending the Supreme Court's decision in
Landgraf.
Hopefully, staff members were able to attend the
argument in this case.