UNITED STATES GOVERNMENT

memorandum
December 3, 1996Mid-Atlantic Regional Office, Annapolis Junction, MD 20701

DATE:

Bill Burlington, Regional Counsel
Region

REPLY TO

~id-Atlantic

ATTN OF:

SUBJECT:

TO:

ATTN:

,.·9,ecember 1996 Monthly Report

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

ADMINISTRATIVE REMEDIES
NOV

JAN FEB MAR APR MAY JUN JUL
DEC

Received
129
Answered
142

144
166
103
141

TORT CLAIMS

JAN FEB MAR APR MAY JUN JUL
DEC

NOV
# Pending

AUG SEP OCT

153

157

157

116

207

151

160

124

183

114

127

135

133

153

191

143

149

176

AUG SEp· OCT

217

246

263

285

278

250

215

218

231

94

72

84

65

64

61

49

63

72

72
62
63
217 246
213
2*
4
5*

37

56

57

88

88

40

55

69

263

285

278

250

215

218

231

216

3*

4*

5*

3*

4*

4*

199
224
84

216
# Received
63
# Answered
45
# Pending
224
# Over Six Month
4*

FOI/PRIVACY
NOV

JAN FEB MAR APR MAY JUN JUL
DEC

AUG SEP OCT

# Pending

125
57
45
56
48
49
126
66
87
32

57
# Received
31
# Answered
29
# Pending
57
# Over 30 Days
34

54

2*

5*

126

124

135

104

91

94

96

88

82

58

48

65

67

58

51

26

49

38

61

27

87

68

78

49

40

50

61

124 135

104

91

94

96

88

82

57

62

50

63

63

67

49

39

76

105

LITIGATION
NOV

JAN FEB MAR APR MAY JUN JUL AUG
DEC

Cases Pending
285
New Cases Received
17
Habeas Corpus
10
Bivens
2
FlCA
3
Other
2
Cases Closed
6
Cases Pending
278
Lit Reports Completed
23
Cases/Hearings or Trials

277
278
8
23
3
11
4
10
1
2
0
0
4

279

296

291

301

311

322

32

12

26

12

17

22

5

13

5

4

5

11

4

2

2

279
265
16
26
0
1

1

SEP

OCT

314

310

297

18

13

13

34

8

12

2

5

13

3

6

4

4

6

13

1

4

2

0

4

1

3

0

1

'0

1

2

3

.1

5

19

26

9

8

11

4

10

11

296

291

301

311

. 5
18
322

314

310

297

285

22

15

21

18

17

20

13

13

17

0

0

1

2

0

0

0

0

0

Settlements/Awards
2
1
1
0
0
2
1
0
0
0
0
0
$ Settlements/Awards
$1.5
0$500.15 $ .53 $.15
0
$150
0
0
0
0
0
($ in Thousands)
*We are in the process of obtaining settlement approval from the Central Office for these
claims.

ITEMS OF INTEREST, PERSONAL LEAVE, BUSINESS TRIPS, MOVES, ETC.
Bill Burlington. Regional Counsel. will be on annual leave January 27-31.1997. '
We say goodby this month to Carolyn Lanphear. Carolyn will be going to FCI
Cumberland. January 19. 1997. We wish her the very best of luck in her new assignment.
Bob Blackburn . Legal Tech . USP Terre Haute. will be on annual leave December 30 thru
January 10. and in annual training January 27-31.1997.
Mike Robar. Paralegal, FCI Manchester. will be institution duty officer January 14-21,

1997.
Mike Bredenberg and Michelle Fuseyamore. Attorneys, FCC Butner. will be co-instructing
annual refreshe r training in the areas of Ethics/Standards of Conduct and Use of Deadly
Force.
FCI Memphis is beginning Annual Refresher Training this week. Matthew Mellady,
Attorney, will be instructing the session on legal issues, and Kathy Smallwood, Paralegal.
will be involved in the HNT class instru ction.
SITUATION OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS
WASTE SITES, ETC .:
FCC Butner - The institution conducted four mental health commi tment hearings via video
teleconference during December.
USP Terre Haute - several staff members will be traveling to Wisconsin for the Farmer v
Brennan trial on January 21, 1997.
Ensign Amendment - While I have not actually seen the suit, I heard on the news that
either Penthouse or Hustler has challenged the military's refusal to carry sexually explicit
.
magaz ines in the Commissary.
FCI Milan - The U.S. District Court for the Eastern District of Michigan forwarded newly
adopted rules for PLRA as a result of a from a meeting between Kevin Walasinski,
Attorney, FCI Milan, and district court staff.
FMC Lexington - On December 9. 1996, a hearing was held pursuant to 18 U.S.C. §
4246 in U S v. Cosey . Magistrate James Todd subsequently entered an Order
committing inmate Cosey to the custody of the Attorney General for continued
hospitalization and treatment until the State of Georgia assumes responsibility for him or
until such time his release would not pose or create substantial risk of damage to persons
or property . Cosey believes certain individuals in Athens, Georgia. are killing members of
his family through their control of biological/chemical machinery and these persons are in
custody at the student activities center on the University of Georgia campus.
SUBSTANTIVE PLEADINGS (COMPLAINT, MOTION FOR SUMMARY JUDGMENT,
ETC.) : None
SETTLEMENTS:
FCI Butner - Peaslee v. Reno - In December. we received a final agency decision finding
sexual harassment on the part of a former FCI Butner supervisor, Dr. Chris Norris. The

~ .

complainant, Dr. Donna Peaslee, claimed Dr. Norris made advances at her, and when
she refused them, began a course of sexual harassment. In finding discrimination, the
Complaint Adjudication Officer found FCI Butner was responsible for Dr. Norris' actions,
despite the fact when we first learned of such behavior, we proposed that Dr. Norris be
terminated (he eventually resigned) . We have now been asked to attempt settlement with
the complainant.

ADVERSE DECISIONS OR SIGNIFICANT DECISIONS:
FPC Alderson - Leacock v Reno - After filing our motion for a new trial in this case, a
hearing was held in early December, where the Judge strongly recommended that the two
sides try to settle, rather than force the court to rule on the government's motion for a new
trial, suggesting that he would probably deny the motion and let Defendants take an
appeal. This case stems from an adverse jury verdict, finding racial discrimination in the
Bureau's firing of an African American physician at Alderson . The jury awarded $30, 000
and the plaintiffs attorneys have reque sted $97,000 in attorney fees. The parties
submitted that for $60,000 the case could very likely be settled. We have now made a
formal $60,000 settlement offer to plaintiffs attorney.
FCI Butner - Rish v. Johnson - We recently received a denial of our second Motion for
Summary Judgment in this case . Inmate Rish, along with two other former Butner
inmates, allege they were exposed to HIV and Hepatitis B, when Butner staff faiiedto
provide them with appropriate protective gear in connection with their work as inmate
orderlies in the hospita l unit. As part of our motion we raised Qualified Immunity, and
Section 803 of the PLRA, which requires proof of physical injury before you have a
remedy for emotional damages. The Department has indicated that they are not inclined
to recommend appeal on these issues. We are now requesting that if the Department
does not allow an appeal. that private counsel be appointed for the three remaining
individual defendants.

UPDATE ON CASES, TRIALS OR HEARINGS, ETC. NOTED IN PRIOR REPORTS:
FCI Memphis - Ashley v. BOP - On December 17,1996, even though this was supposed
to have been a scheduling conference, because the plaintiff had not responded to the
government's Motion, the Judge gave him the opportunity to do so in open court. Rather
than respond to the Motion, plaintiff merely reargued the facts of his complaint. The
AUSA, Brian Quarles, reiterated that plaintiff has failed to establish the burden and has
not demonstrated a prima facie case for negligence or constitutional deprivation in either
his complaint or his response to the government's ·Motion. This case arises out·of an
assault that occurred against Ashley during the riot in October of 1995 and a
disagreement over his classification. The court did not make a ruling .
REPRESENTATION NOT RECOMMENDED FOR STAFF: None
SIGNIFICANT FTC A CLAIMS : None
MEDICAL MALPRACTICE CASES UPDATE: None
SIGNIFICANT ADMINISTRATIVE REMEDIES: None
NEW RFRA CASES AND UPDATES ON PREVIOUSLY REPORTED CASES:
USP Terre Haute - Abdu l-Shaheed v Kimibler et al , TH 96-266-C-R/H
This is a Bivens action filed against correctional officers at USP Terre Haute. The main
thrust of the case consists of allegations of excessive force. However, the inmate does
raise a First Amendment issue regarding destruction of religious material during the
shakedown.
ALTERNA TIVE DISPUTE RESOLUTION EFFORTS: None
18 U.S.C. § 3621(e) LITIGATION:
FPC Alderson - Hall Y Wise - in a companion case to Wiggins Y Wise (previously
reported) the court has ruled that a conviction for being a felon in possession of a firearm
is not a violent offense, and that the Bureau's Program Statement, Crimes of Violence is
ultra vires, to the extent that it does not follow the 4th Circuit caselaw of 16 U.S.C. §
924(c). We are getting tremendous pressure from the Federal Public Defender to
reclassify the inmates who have won their cases. ·Our position has been that the court
invited the Bureau to develop a new Program Statement, and that is what we are doing.
Once a new Program Statement is developed, we will implement it at Alderson . Until
then, the women will not be classified for early release.
FCI Milan - Als ton v Pontesso, challenges BOP's designation of possession of firearm
by a prohibited person as a crime of violence for purposes of eligibility for early release.
Rasnake v pontesso - inmate challenges BOP's determination that his two point
enhancement for possession of a weapon makes his instant offense a crime of violence
and makes him ineligible for the year-off provisions of VCCLEA.
FCI Ashland - Childs v USBOP - in addition to VCCLEA claims, this habeas petition
raises due process and equal protection claims. The Magistrate Judge issued a R&R
recommending that the exhaustion requirement be waived in light of the inmate's release
date. Objections were filed with the Court seeking dismissal for failure to exhaust as

mandated under the PLRA. The petition fails to state how the inmate's due process rights
were violated . The petition claims that white inmates are routinely granted early release
consideration, but black inmates are not.
FMC Lexington - McGriff v. Beeler - petitioner challenges the BOP's interpretation of his
current offense of Felon in Possession of a Firearm, 922(g), as a crime of violence under
3621(e).
SIGNIFICANT NEW CRIMINAL REFERRALS SINCE LAST MONTH'S REPORT:
FCI Petersburg - An indictment was returned charging inmates James Poteet, Reg. No.
23675-083, Miles Clarke , Reg . No. 23674-083, and Correctional Officer Gregg Smith with
introduction and conspiracy to possess and possession of controlled substances with
intent to distribute. The inmates are also being charged with bribery of a public official;
with the officer being charged with receipt of a bribe by a public official. The indictment
charges that from January 1995 to September 1996, Officer Smith allegedly supplied the
inmates with marijuana, which they used and resold to others. Defendants were
arraigned on December 31 , 1996, and all plead not guilty. Officer Smith requested and
was appointed an attorney. Trial is scheduled for March 3, 1997.
FCI Memphis - On December 15, 1996, FCI Memphis staff observed Sandra Rojas pass
a potato chip bag to inmate Shell in the visiting room. The bag was seized and was found
to contain small bags of marijuana. FBI and local law enforcement officials were called.
Ms. Rojas was detained and ultimately arrested. Additional marijuana was found in her
motel room. The matter has been referred to the U.S. Attorney's Office for prosecution.
UPDATE ON PREVIOUSLY REPORTED CRIMINAL MAnERS:
FCI Milan - Inmate Christopher Snow has a trial date of January 14, 1997, for possession
of contraband in prison and assault of federal employee: The inmate rejected a plea
agreement to combine these charges with a pending drug charge.
FCI Milan - Inmate Morrison is scheduled for trial January 18, 1997, for two counts of
attempted murder, two counts of aggravated assault, and one count of witness tampering.
FCI 8eckely - The prosecution of inmate Hudgins for possessing contraband (marijuana)
will start January 7, 1997, and is expected to last for two days. This is Beckley's first
criminal prosecution .
SUCCESSFUL PROSECUTIONS OR ANY ACQUlnALS SINCE LAST MONTH'S
REPORT:
FCI Petersburg - U.S. V. Arlin Raney - a one day trial was held on December 5, 1996, in
this criminal trial in which Raney was charged with escape from the Petersburg Camp in
1995. After approximately 10 minutes of deliberation, the jury returned a verdict of guilty.
Sentencing is scheduled for February 17, 1997.
USP Terre Haute - On December 10, 1996, William Smith , Reg . No. 87774-012, plea
bargained for a sentence of 18 consecutive months with three years of supervised release
for an incident that occurred in the visiting room on March 5, 1994. During a visit by
Smith's wife, Bonita Smith, she provided Smith with heroin. Although Bonita Smith has
not yet been sentenced , the AU SA thinks that she will sign a plea bargain within the next
few weeks.

REHABILITATION ACT : None

New Litig ation Cases by Institution and Type
Re ceived During the Month of December 1996
ALD

ASH

BEC

BUr

CUM

LEX

MAN

MEM

MIL

MRG

BIV

0

0

0

1

1

2

1

1

1

0

FTCA

0

0

0

0

0

1

0

1

0

0

HC

0

1

0

0

0

1

0

1

3

5

OTH

0

0

0

0

0

0

0

0

0

0

TOT

0

1

0

1

1

4

1

3

4

5

New Litig ation Cases by Institution and Type
Received Calendar Year to Date

ALD

ASH

BEC

BUT*

CUM

LEX

MAN

MEM

MIL

MRG

BIV

1

2

0

2

13

8

11

2

11 **

1

FTCA

3

2

1

2

1

3

4

7

3

0

21

4

7

13

2

16

4

5

10

15

OTH

1

0

0

1

3

2

1

1

2

0

TOT

26

8

8

18

19

29

20

15

26

16

HC

• Represents the Complex
•• One case subtracted beca use it was inadvertently coun ted twice .