MAR-03-1995

14:48

FROM

TO

BOP MARO

9-2023072995

p.e1

~

UNITED STATES GOVERNMENT

•

memorandum

~

D....Tt:

li.=?LYTO
....TTSOj::

March 3 I

1995

?\·fid-Arlantic Regional Office, Annapolis Junctioll. MD 20101

~~rlingto~.

Regional
Mid-Atlantic Region
Feb=uary 1995 Monthly

TO:

.~rr~:

Nancy Redding, Executive

JAN FEB

Received
Answered

106

91

106

as

TORT CLAIMS

JAN

FEB

# Pending
1/ Received

'61
72

178

Qswered

54

178

200
1

JAN

FEB

63
36
40
60
36

60
53
44
72
34

LITIGATION

JAN

FEB

Case Pending
New Cased Received
Habeas Corpus I
Bivens

293
8

291
12
3

FOI/PRIV ACY

#I Pending
11 Received
it Answered
# Pending
# Over 30 Days

FTCA
Other
Cases Closed
Cases Pending
Lit Reports Completed
Cases/Hearing or Trials

:JmentsiAwardS
laments/Awards
'. \ In Tnousands)

1
4

1
2

MAR

Ass~stant

APR

MAY JUN

JUL

AUG

SEP

OCT

NOV

DEC

DEC

MAR APR

MAY

jUN

JUL

AUG

SEP

OCT

NOV

MAR APR

MAY JUN

JUL

AUG

SEP

OCT

NOV DEC

MAR

MAY JUN

JUL

AUG

SEP

OCT

NOV DEC

._.

------

73
47

4

nding
ver Six Month

.

Repcr~

Wallace H. Cheney, G:neral Ccunsel

ADMINISTRATIVE REMEDIES

(,

Cc~nsel

APR

8
1

0

12

28

291
14
3
0
SO

282
15

-_.--'--

1
1

$55

OPTION."L FORM ~ (740)

FAX

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MAR-03-199S

14:48

FROM

TO

BOP MRRO

9-2023072995

P.02

Page 2
MXA MonthlY Report

ITEMS OF INTEREST, PERSONAL LEAVE, BUSINESS TRIPS, MOVES, ETC.
Bu~li~gton, Regional Counsel, ~Ji~~ travel to t~e Regional
office to plan the Natio~al Legal Mee~ing with Sherree Sturgis

3ill

on !1arcn 23 - 24 .
Wa~da Hunt, Ceputy Regicnal Cou~se~, will be in Morgantown on
March 7 attending oral arguments on a Motion for Surernary
Judg~ent in ~he Jones ".l. iJS~. case o~= of FeI l'-lorganto~Yn.
This
case is a FTC'.A a.ction i~ \"hicr. t:he i nrr.ate alleges that he was
.chvsicall'l. assaulted by a st.aff member.
~

Cheryl BehY'1r.er I Honors Attorn~y, 'oAI'ill be attending a LEI class
on Introduction to FOIA O~ March 8.
en the afternoon of
March 9 an~ all day March 10, Cheryl will be attending a
mandat.ory p:-ofessionalisrr: co\~rsF.: fer the virginia Bar.
Marian Callahan, Assista~t Regional C:':l.J.Ilsel, 'Aiill be on annual
leave March 27-31.
Rick Shott, Attorney

officer March

Adv~50r,

USp

Ter~e

Haute, will be duty

1~-20.

Teresa Marvel, Paralegal Specialist, VSP, Terre
in annual training March 7-10.

Haut~,

will be

SITUATION OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS
WASTE SITES, ETC.:
FMC Lexington and FCl Ashland - Visitors - Jane Graham, Chief
Civil ~ivis~on, 3astern Cist=~cc of Ken~uckYI and newly
assigned ~.USA Shelley Cha-:field were provided a cour of
Lexington by .:roe: Tang J P.-= torney, on ?ebruary 28, and a tour of
Ashland by Randy Smith, ?aralegal Specialist on March 1. Also
joining them for the tours was Mr. Satoh, a prosecucor from
Japan who is spending four weeks in the u.s. Attorney's

Office.
FPC "Alderson - Salmonella Outbreak Report - The West Virginia
Bureau for Public Heal~h's final report of the September 1994
salmonella outbreak at FPC )..lderson !lC:lS been completed.
The
report identified seven co~fi~med a~d 31 probable cases of

salnonella.

The report could not

iden~ify

the cause of the

initial infection, but noted egg pocl~ng and inadequate
dishwasher temperature as violations.
The report included lS

recommendations and focused on the
staff about preventive measures.

ne~d

to educate inmaces and

SUBSTANTIVE PLEADINGS (COMPLAINT, MOTION FOR SUMMARY JUDGMENT,
ETC.): None
SETTLEMENTS:

~one

3094

MAR-12I3-1995

14;49 - FROM

BOP MARO

IU

Page :;

MXR

Monthj~1

Report

ADVERSE DECISIONS OR SIGNIFICANT DECISIONS:
Casto~

v. 3.5.,

94-74-C

~S.D.

I~ci.)

USP Terre Haute

In an excellent decision, Judge r-!cKinney ruled that the
discretionary function exemption to the FTCA precludes i~nates
from challenging the wayan institution manages asbestos.
This ce=ision should help us successfully conclude a ser~es of
20 or ~ore cases that had alleged inmates were intentionally
and negligently exposed to friable asbes~os at Terre Haute.·
The bread reasoning ef this qpinion would also apply to t~e
way our institutions manage any major hazard, such as toxic
wastes, salmonella, HIV etc. We have asked to have the
opinion p~blished.

Goggin v. U.S., 91-273S-r·1I/J:.,

(i'l.D. Tenn.), FCll'1emphis

On Febr~ary 14, 1995, the court sranted_~he inmate plain~iff
S55,000 in this FTCA medical malpractice case.
The plain~iff

()

had a pre-existing serious injury to his right ankle wherein a
pin was surgically placed in the bone p=icr to entering the
BOP. At FC! Memphis he twisted the same ankle playing
softball on October 22, 1989. He first sougbt medical
treatment on October 24, 19~9, W}lere he-was diagnosed wit~ a
sprained a~Kle and- told to return on October 27. Plainti=f
returned to HSU on October 26 complaining of pain, mo~e
swelli~g, fever and sweats.
The PA examining the plainti:f
refused to allow him to see a physician and sent him back to
his housing uriit.
On October 29, 2S89, the plaintiff was
transfer~ed to a community hospital with a high-fever and he
was delirious due co osteomyelitis. The community hospital
staff =ecommended amputation of the foot, but plaintiff
refused. ?laintiff remained in the community hospital fo~
approximately two monchs.
During the trial plaintiff
presented evidence that the government medical records had
been altered. Based on. this, the government had to concede a
breach in the standard of care. However, the government
medical experts testified the plaintiff would be in the same
physical conditi~n today regardless of the treatment received
at FeI Memphis due to the gravity of the ini~ial injury.
The
C9urt chose to give more \'ieight to the plaintiff s experts and
inmate witnesses than to staff testimony. The plaintiff
demanded $1 million for loss of f~ture earnings as an
aerobatic pilot and for pain and suffering. The AUSA involved
in the case and the FC! staff attorney Tern Read, felt before
the judgment that $40,000 to $50,000 award would be a victory.
The recommendacion not to appeal should be considered as the
altered medical records were not mentioned in the opinion, and
one wi~ness for the defense has been killed since the trial.
Office 0: Internal Affairs was nccified as soon as the altered
medica: records were i~~rod~ced a: erial a~d the invesciga~ion
is ongoing.
I

3095

r:'\AR-03-1995

14:51

H~UM

1:i\';~ I'IH~U

Page 4
MXR Monthly Report

(At
"

UPDATE ON CASES, TRIALS OR HEARINGS, ETC. NOTED IN PRIOR
REPORTS:
~~~~~~u~.~s~
..

95-~4

(E.D. Ky,) Fe! Ashland

action that was taken

_ nst inmate Davido~'J by FPC Eglin. Inmate Davido\\T a
Lubavitch Je\~ refused to woz·k for seven days following the
death last June of Rabbi Schneerson (liThe Rebbe U ) . The inmate
I

I

was given an incident report for refusing to "'ork.
He was
found to have com~it~ed the prohibited act, and was
transferred to Ash:and. .~ attorney has filed suit claiming
tha~ our disciplinary action violates his right to practice
his religion unoer RF~.. He have been in contact with Central
Office Chaplaincy Services, as they were invol,\Ted with this

matter when it first arose.
was justified by

We will contend that

o~r

action

leg~~iffiate

security concerns, that our action
did not significantly burden his exercise of his religion, and
that there was no least restrictive m~ans to achiev: our gcal.

Wood v. Hahn, et al., 3:9S-CV-133, E.D. Va., Fe! Petersburg

c')

Plaintiff, seeking TRO to reinstate telephone privileges,
alleges that his telephone privileges were restricted for
unauthorized use cf ~he telephone (in conducting a business)
by the UDC without due process. He asserts this sanction
violates his rights ~c protect his property and unlawfully
curtailed his access to his attorneys; and that his attorney's
request for telep~one calls were denied by unit staff.
Plaintiff is represented by attorney from the local law firm
of El-Amin & Crawfcrd and an Ohio attorney. On Thursday,
February 23, a heari:lg was held en the 'fRO before Judge
Spenser in Richmond.
Plaintiff was represented at the hearing
by EI-Arnin.
The Uni tad StateS \-las represented by Bob JasPen,
AUSA. The AUSA did ar. outstanding job arguing that
essentially plaintiff seeks to challenge a. ODe action without
fir-st ,-?-sing administrative remedies available within the BOP;

the UDC was a minor disciplinary action; and if the court was

to rule on it, the standard enumerated in Hill of some fact
was the standard. AUSJa. Jaspen clearly distinguished to the
court that plaintiff's telephone restrictions were social

telephone calls only and did not restrict privileged
attorney/client calls, which are not made through the ITS, but
by the inmate requesting such a call through staff.
He
pointed out that p:aintiff had not made such a request to
staff, and that plaintiff had alternative means of
communicating with his attorney through correspondenCe and
visiting.
The Judge, after hearing the arguments, denied the
request for the TRO a~d indicated he would issue a written
opinion in the future. Milt Williams, Paralegal, and James
Bridgeforth, Cor=ect~onal Counselor, atten~ed the hearing a~d
briefed the J._USA !=-r:'c= to t:hs hearing.
REPRESENTATION NOT RECOMME~6FOR STAFF:

None

MAR-03-1995

14:52

FROM

BOP MARO

IU

Page 5
MXR Monthly Report

SIGNIFICANT FTCA CLAIMS:

None

SIGNIFICANT ADMINISTRATIVE REMEDIES:

3097

None

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a.

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