UNITED STATES GOVERNMENT

memorandum

(
DATE:

REPLY TO

February 6,

~

~

i7~£~~~~n~i

f

Mid-Atlantic Regional Office, Annapolis Junction, MD 20701

Counsel

ATTN OF:

Mid-Atlantic Region

SUBJECT:

January 2002 Monthly Report

M:

Mm:

Christopher Erlewine, General Counsel
Linda DuBose, Executive Assistant

ADMINISTRATIVE REMEDIES

JAN

Received
Answered

116
116

TORT CLAIMS

JAN

FEB

MAR

APR

MAY

JON

JUL

AUG

SEP

OCT

NOV

DEC

FEB

MAR.

APR

MAY

JON

JUL

AUG

SEP

OCT

NOV

DEC

110
# Pending
46
# Received
62
# Answered
101
# Pending
2*
# Over Six Month
*Serious personal injury and complex false imprisonment claims still under review.

(

' ..

/PRIVACY

# Pending

#
#
#
#

Received
Answered
Pending
Over 20 Working Days

JAN

FEB

MAR.

APR

MAY

JON

JUL

AUG

SEP

OCT

NOV

DEC

FEB

MAR.

APR

MAY

JON

JUL

AUG

SEP

OCT

NOV

DEC

22
47
30

40
4*

LITIGATION

JAN

Cases Pending
New Cases Received
Habeas Corpus
Bivens
FTCA
Other
Cases Closed
Cases Pending
Lit Reports Completed
Cases/Hearings or Trials
Settlements/Awards
$ Settlements/Awards
($ in Thousands)

75

16
6
3

2
5
9

82
8

0
0
0

4611

Page 2
MXR Monthly Report

(

SIGNIFI~T

DECISIONS OR ADVERSE DECISIONS:

MXR CLC - FCI Memphis and Petersburg -' Tyrone Lee v. Joe Young,
(discipline/good conduct time) - The case was dismissed by the court
without requiring a response from the government. Petitioner challenges
the loss of good conduct time resulting from discipline proceedings at FCI
Petersburg prior to his transfer to FCI Memphis. He specifically contends
that staff violated his due process rights during the discipline process
(no incident report within 24 hours and no UDC hearing within three days) .
In conducting an extensive Sandin analysis, the court determined that to
the extent Petitioner has been disallowed good conduct time, "any effect
on the total period of time he will serve in prison is too uncertain and
attenuated to constitute a deprivation of a liberty interest." The court
then determined that he was not entitled to any procedural protections
delineated by Wolff or its progeny. The inmate appealed and we drafted a
reply brief, arguing that the inmate has a protected liberty interest in
revoked good conduct time, and that Wolff did apply. We then noted that
he did. not point to a Wolff violation, that we afforded him all process
that was due, and that the district court's dismissal should be upheld.

(

LEXINGTON CLC - FMC Lexington filed a motion with the
N.D. Ill. for a downward departure of his sen ence due to his medical
condition. ~ is scheduled to be resentenced on Feb. 14. ~ ~'1~
theory is FMC Lexington was slow to respond to a bowel obstruction, so
~
therefore he is in danger if he has a cardiac episode because Lexington
will similarly respond slowly. Joe Tang did a lengthy declaration for Dr.
Growse, Clinical Director, completely refuting this theory. On Feb. 1,
filed another lengthy motion further claiming poor medical care.
Contrary to these allegations, the medical records indicate ........
received excellent, timely care.
SETTLEMENTS:
MXR CLC - Salvateria v. U.S. - In an effort to move this Cumberland,
medical malpractice case to
working with Dr. Kendig to
set up an i
of former inmate
~
Salvateria.
~~
~

LEXINGTON CLC - FMC Lexington 06451 - This claim asserts that
a piece of
the ceiling in his cell fell on him while he was asleep in his bed.
Investigation reveals water pipe problems and liability vests against the
U.S. Dr. Ramirez is reviewing the inmate's allegations of insomnia and
headaches and we will approach the inmate's counsel with a settlement
offer.

t)~~

BECKLEY CLC - FCI Beckley Administrative Tort Claim - The
inmate seeks $2.5 million for
adaches and damage to his left eye which
occurred when a contract pharmacist gave him the wrong prescription eye
drops. The inmate appears to have suffered little if any physical injury.
We are currently awaiting approval from Central Office for settlement
authority.

\,r1(j

False Imprisonment Tort Claims - As a result of two claims where inmates
were erroneously kept in custody beyond their release dates we have
circulated a memo, prepared by Larry Collins, to ISM and Community
Corrections, suggesting with short term sentences, we need a more detailed
analysis of possible jail credit before we designate the inmate. In each
of our two cases, the CCM staff did not appreciate the extent of jail
credit owed the inmate, which in turn helped account for the inmate being

4612

Page 3

MXR Monthly Report

(

designated to an institution, when the term had already expired, or was
about to expire.
LEXINGTON CLC - FCI Manchester TRT-MXR-2001- rt f'\
04493, is one of the tort claims for a late release mentioned above.
~I~
Settlement negotiations continue with the receipt of a $100,000 counter
offer by the inmate's lawyer. We will be presenting a counter offer of
approximately $15,000.
UPDATE ON CASES, TRIALS OR HEARINGS, ETC. NOTED IN PRIOR REPORTS:
LEXINGTON CLC - FCI Ashland - Rogerick Vanzant v. USA. et ale - Plaintiff
alleges his First Amendment rights, RFRA rights and equal protection
rights under the Equal Protection Clause were violated by his unit
counselor and manager. Vanzant received incident reports for poor
sanitation, and was also sanctioned for leaving his unit to watch Muslim
ta s in the chapel, even though he was on unit restrictions.

~

CRIMINAL:
BECKLEY CLC - Dennis Thomas, former Chaplain, FCI Beckley, was sentenced
January 28, 2002, in Huntington, West Virginia, by Judge Chambers, to a
41-month sentence for Possession with Intent to Distribute Heroin, in
violation of 21 USC §841(a) (1). The Court found Thomas was responsible
for 14 grams of heroin. Under the guidelines the base offense level was
16. In accordance with 2D1.1(b) (2), the base offense level was increased
by two points because the object o£ the offense was the distribution of a
controlled substance in a correctional facility. The level was also
increased by two points pursuant to 381.3, as Thomas abused a position of
pubic trust in a manner that significantly facilitated the commission of
the offense. With an overall offense level of 20 and no criminal history
points, the guideline range was 33 - 41 months. The Judge sentenced
Thomas to the maximum penalty allowed under the guidelines.
and-.
cted or Assault (18 U.S.C.
The charges stem from the disturbance at Fcr
Beckley in December 1999. A new trial date has not been set.
BECKLEY CLC - FPC Alderson former Correctional Officer,
has been indicted for Abusive Sexual Contact, in violation of 18 U.S.C.
§ 2244.
Trial has ,been postponed. A new trial date has not been set.
MXR CLC - FCI Morgantown - U.S.A. v. Coger - This case has been set for
trial to begin February 11, 2002. It involves a former FCr Morgantown
staff member who has been charged with extortion pursuant to 18 U.S.C.
§ 872(f), Extortion by Officers or Employees of the U.S.
The defendant
was allegedly extorting money and favors from inmates at the institution.
SITUATIONS OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS WASTE SITES,
ETC. :
District of Columbia Prisoners in Virginia Facilities - We have had

several habeas petitions filed in the E.D. Virginia, where the inmate
names as custodian the Virginia Warden, even though the underlying issue
involves a BOP sentence computation or a decision by the U.S. Parole
Commission. Judge Ellis has asked the U.S. Attorney's Office to brief the
issue of who is the proper respondent in such cases. This issue is of
some importance, as some in the U.S. Attorney's Office initially felt

4613

Page 4
MXR Monthly Report
these petitions should be filed in the Dist rict of Columbia , not the E.D.
Virginia.
After much discussion, they will now concede the petitions are
properly filed against the Virginia warden in the E.D. Virginia, but that
given the federal interests , the u.s. Attorney's Office should be
permitted to respond on behalf of the BOP or U.S . Parole Commission .

(

Josep h Washington - The State of Ohio and the u.S. Attorney's Office for
the Southern District of Ohio have written the Attorney Gene ral and
Director Hawk Sawyer, complaining that the BOP refused to follow a state
court order that called for conse c utive servi ce of inmate Washington's
state and federal sentences. We origi nally refused to take this inmate,
citing the federal court J & C which called for concurrent service of the
two sentences.
However, after being approached by the U.S. Attorney ' s
Office,

the court has now issued a new order which indicates the court

would support the BOP assuming primary custody, which in effect means the
two sentences will be consecutive. Since Ohio is now in NERO, we are
working with
for the
of primary custody
to the BOP.
tJ~
LEXINGTON CLC - FMC Lexington - Joe Tang worked with the Clinical Director
Michael Growse, Dr. Mike Nelson, HSD, Labor Law Deputy Tamara Chrisler,
and the HRM at Victorville, on a disability issue regarding a job
applicant for Victorville, CA, whose physical was done by Dr. Growse

locally as a courtesy .
with MS,

the

The candidate reported he was recent l y diagnosed

th oug h he is in good condition now and can

·cal

and do all

irements of being a CO .

(

'.

LEXINGTON CLC - FMC Lexington - In the Spring of 2001 a folder containing
sensit i ve staff information was inadvertently left unattended for l ess
than two hours on a desk in UNICOR where inmates have access.
The Union

brought thi s to the attention of the Warden, who was already aware of the
incident and had taken steps to address the issue .
After several
unsuccessful attempts with the Union, the Warden issued a memorandum to

all staff concerning the event and pr.ocedures to follow if they felt
private information had been compromised.

which proceeded to arbitration.

The Union filed a grievance

The ALJ decided that the Warden needed to

provide staff with another notice.
The Union obtained no more relief than
was previously provided by the Warden in her first memorandum.
After
notice was provided, a class action form was circulated by a local law

firm by staff at FMC Lexington . For a fee of $25.00 and 40% contingency
fee the firm will file an action based on violation of the Privacy Act.
Legal staff were informed that the suit may be filed as early as this
week , and have alerted the U.S . Attorney's Offic e .
Per sonne l I ssues :

4614

Joyce Zoldak - Jan02

Page 1

UNITED STATES GOVERNMENT

memorandum
:;;'7£

February 6, 2002

;..;::: :,"

Bill Burlington, Regional Counsel
Mid-Atlantic Region

"-".:...

January 2002 Monthly Report

P.Ei'::,· :-:

Mld·Atlantl~ R~9:.onal Ofhce. Annapolis Junction. MD 20701

Christopher Erlewine, General Counsel
"-:--=::.

Linda DuBose, Executive Assistant

ADMINISTRATIVE REMEDIES

JAN

Received
Answered

116
116

TORT CLAIMS

JAN

PEB

MAR

APR

KAY

JllN

JUL

AUG

SBP

OCT

NOV

DBC

FEB

MAR

APR

KAY

JllN

JUL

AUG

SBP

OCT

NOV

DBC

Pending
110
46
Received
62
Answered
101
Pending
2·
OVer Six Month
·Serious personal injury and complex false 2mprlsonment claims still under review.

#
#
#
#
#

(~-

FOI/PRIVACY

#
#
#
#
#

Pending
Received
Answered
Pending
Over 20 Working Days

JAN

PBB

MAR

APR

KAY

JllN

JUL

AUG

SBP

OCT

NOV

DBC

PEB

MAR

APR

KAY

Jt1N

JlJL

AUG

SBP

OCT

NOV

DEC

22
47
30
40
4·

LITIGATION

JAN

Cases Pending
New Cases Received
Habeas Corpus
Bivens
FTCA
Other
Cases Closed
Cases Pending
Lit Reports Completed
Cases/Hearings or Trials
Settlements/Awards
$ Settlements/Awards
($ in Thousands)

75
16
6
3
2
5
9

82

e
0
0
0

(
"

4329

Page 2

Joyce Zoldak - Jan02

- - - - - - - - - - - - - - - --- --

c

Page 2
MXR Monthly Report
SIGNIFICANT DECISIONS OR ADVERSE DECISIONS,
MXR CLC - FeI Memphis and Petersburg -

Tvrone Lee v. Joe Young.
(discipline/good conduct time ) - The case was dismissed by the court
wit.hout requir ing a response from the gc-,'ernmen:.
Petitioner challenges

the loss of good conduct time resulting from discipline proceedings at Fer
Petersburg prior to his transfer to Fe: Mer..pr. :s . He specifically contends
that staff violated his due process r igr.:s dur:r.g the discipline process
(no incident report within 2~ hcurs a~c ~: ~~: ~earing within three days)
In conducting an extensive Sandi n ana: ys : s. :r:.e court determined that to
the extent Petitioner has been disal!c~e~ aCQ~ conduct time. "any effect
on the total period of time he . . 'i::!. seI"':e :,. ;:::":..son is tOO uncertain and
attenuated to constitute a dep:-~~a:!=~ :~ ~ ::..be~:; interest." The court
then determined that he was not e~::..::~~ :~ 5~~' p:,,~cedural protections
delineated by Wolff or its pr0gen~·. ;:-:~ :":-.rr,a: e appealed and we drafted a
reply brief, arguing that the !~t;';c.::.e ::5~ :. ;:-:.-::e::ed liberty interest in
revoked good conduct time, and :hat !::.:::::: old apply. We th en noted that
he did not point to a Wolff ·.riola : :c:"":, :ha: '~:e af f orded him all process
that was due, and that the dlstr:..c: =c~~:'s d:..s~:..ssal should be upheld.
LEXINGTON CLC - FMC Lexington - Rcbe!"':. ~::-ill=:--. ::'led a motion with the
N.D. Ill. for a downward departure of his sen:ence due to his medical
condition. Krilich is scheduled tc be :-ese~:e~ced on Feb. 14. Krilich's
theory is FMC Lexington was slo...., ':.0 respond tc a bowel obstruction. so
therefore he is in danger if he has a cardiac episode because Lexington
will similarly respond slowly. Joe Tang die a le:1gthy declaration for Or.
Growse, Clinical Director, completely refut: ing this theory. On Feb. 1.
Krilich filed another lengthy mc::..or. furthe:- claiming poor medica l care.
Contrary to these allegations, the medical records indicate Krilich
received excellent, timely care.

(

SETTLEMENTS:
- In an effort :0 move this Cumberland,
working with Or. Kendig to

LEXINGTON CLC - FMC Lexington - r-~ -.;:-;~ :: , ,;1 f. rec= ( 58668 - 004)
This claH: 5SSe-:"'::.S ::-.;": : i~e inmate was injured when
a piece of the ceiling in his CE:l~ ~el l on ~i::-. ....·r.ile he was asleep in his
bed.
Investigation reveals ~ate~ ~:pe p~cb:~:ns and . liability vests
against the U.S. Dr. Ramire~ is !·e·:ie·..;ir.g :he; :nmate's al legations of
insomnia and headaches and we ",'il: approacr. :he inmate's counsel wit h a
settlement offer.

TRT-MXR-2001-06451 -

BECKLEY CLC - FeI Beckley - Frank Sanchez, Administrative Tort Claim - The
inmat e seeks $2.5 million for headaches and damage to his left eye which
occurred when a contract pharmacist gave him the wrong prescription eye
drops. The inmate appears t o have suffered little if any physical injury.
We are cu!rently awaiting approval from Central Office for settlement
authority.
False Imprisonment Tort Claims . As a result c: two claims where inmates
were erroneously kept in custody beyond the ir release dates we have
circulated a memo, prepared by Lar:-y Collins, to ISM and Commu nit y
Corrections, suggesting with short term sentences, we need a more detailed
analysis of possible jail credit before we designate the inmate.
In each
of our two cases, the CCM staff did not appreciate the extent of jail
credit owed the inmate, which lr. : ~:- ~ helped account for the inmate being

-- - --- - - - - - - - - - - - - '
4330

Joyce Zoldak - Jan02

(

Page:=

Page 3
MXR Monthly Report

".

designated to an institution. when the term had already expired. or was
about to expire.
LEXINGTON CLC - FeI Manchester TRT-MXR-200l-04493. is one of the tort c
above. Settlement negotiations continue with
counter offer by the inmate's lawyer. We
offer of approximately $15,000.
.

'o/)CJ
a ate release mentioned
receipt of a $100,000
presenting a counter

UPDATE ON CASES, TRIALS OR HEARINGS, ETC. NOTED IN PRIOR REPORTS:
LEXINGTON CLC - FCI Ashland - Rogerick Vanzant v. USA, et al. - Plaintiff
alleges his First Amendment rights, RFRA rights and equal protection
rights under the Equal Protection Clause were violated by his unit
counselor and manager. Vanzant received incident reports for poor
sanitation, and was also sanctioned for leaving his unit to watch Muslim
tapes in the chapel, even though he was on unit restrictions. We are
awaiting word from Rich Montague in Torts Branch for permission to argue
to dismiss the RFRA part of the claim.
CRIMINAL:

( ..
.... "

-

BECKLEY CLC - Dennis Thomas, former Chaplain, FCI Beckley, was sentenced
January 28, 2002, in Huntington, West Virginia, by Judge Chambers, to a
41-month sentence for Possession with Intent to Distribute Heroin, in
violation of 21 USC §841Ca) (1). The Court found Thomas was responsible
for 14 grams of heroin. Under the guidelines the base offense level was
16. In accordance with 2D1.l(b) (2), the base offense level was increased
by two points because the object of the offense was the distribution of a
controlled substance in a correctional facility. The level was also
increased by two points pursuant to 3B1.3. as Thomas abused a position of
pubic trust in a manner that significantly facilitated the commission of
the offense. With an overall offense level of 20 and no criminal history
points, the guideline range was 33 - 41 months. The Judge sentenced
Thomas to the maximum penalty allowed under the guidelines.
BECKLEY CLC
FCI Beckley - Myron Bonds, Reg. No. 12444-058, and Kelly
Baugh, Reg. No. 35370-083 were previously indicted for Assault (18 U.S.C.
§ 111(a) (1) and lllCb)).
The charges stem from the disturbance at FCI
Beckley in December 1999. A new trial date has not been set.
BECKLEY CLC - FPC Alderson -~, former Correctional Officer,\o"~
has been indicted for Abusiv~act, in violation of 18 U.S.C.
§ 2244.
Trial has been postponed. A new trial date has not been set.

MXR CLC - FCI Morgantown - U.S.A. v. Coger - This case has been set for
trial to begin February 11. 2002. It involves a former FCI Morgantown
staff member who has been charged with extortion pursuant to 18 U.S.C.
§ 872(f), Extortion by Officers or Employees of the U.S.
The defendant
was allegedly extorting money and favors from inmates at the institution.
SITUATIONS OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS WASTE SITES,
ETC. :

District of Columbia Prisoners in Virginia Facilities - We have had

several habeas petitions filed in the E.O. Virginia. where the inmate
names as custodian the Virginia Warden. even though the underlYlng issue
involves a SOP sentence computation or a declsion by the U.S. Parole
Commission. Judge Ellis has asked the U.S. Attorney's Oftice to brief the
issue of whc is the proper respondent in such cases. This issue is of
some importance. as some ir. the C.S. Attorney's Office initially felt

4331

Page 4

Joyce Zoldak - Jan02

('.
Page 4

MXR Monthly Report
these petitions should be filed in the District of columbia, not the E.O.
Virginia.

After much discussion, they will now concede the petitions are

properly filed against the Vi rginia warden in the E.D. Virginia. but that
given the federal interests, the u.s. Attorney' 5 Office should be
permitted to respond on behalf of the BOP or U.S. Parole Commission.
Jos eph Washington - The State of Ohio and the u.s. Attorney's Office for
the Southern District of Ohio have written the Attorney General and
Director Hawk Sawyer. complaining that the BOP refused to follow a state
court order that called for consecutive service cf inmate Washington's

state and federal sentences. We originally refused to take this inmate ,
citing the federa l court J & C which called fo~ concurrent service of the
two sentences. Howe ver. after be~ng approached by the U. S . Attorney's
Office. the court. has no ...· issued a new creer ...·:-:.!ch indicat.es the court.
would support the BOP assuming prima!'"y custoo;· ...... hich in effect means the
two sentences will be consecut.ive . Since Ohio 1S now in NERO. we are
working with Hank Sadowski to arrange for the ~ransfer of prima r y custody
to the BOP.
We fully expect. to litigat.e this mat.ter.
LEXINGTON CLC - FMC Le xing ton - Joe Tang worked wit.h the Clinical Director
Michael Growse. Dr. Mike Nelson. HSD. Labor -Law Deputy Tamara Chrisler.
and t he HRM at Victorville. on a disability issue regarding a job
applicant. for Victorville, CA. whose physical was done by Dr . Growse
locally as a court.esy. The candidate reported he was recent ly diagnosed
with MS. though he is in good condition
ss
t.he
cal
irements of
a CO .

('

LEXINGTON CLC - FMC Lexington - In t.he Spring of 2001 a folder containing
sensitive staff information .....as inaove.r t.ently left unat.t.ended for less
t.han two hours on a desk in UNICOR ...'here inmates have access. The Union
brought this to the at.tent.ion of the warden. \,'ho was already aware of t.he
incident and had taken st.eps to address the issue. After several
unsuccessful attempt.s with the Union, the Warden issued a me~orandum to
all staff concerning the event and procedures to follow if they fe lt
private information had been compromised. The Union filed a grievance
which proceeded to arbitration. The ALJ decided that the Warden needed to
provide staff wi t h another notice. The Union obtained no more relief than
was pre v iousl y provided by the Warde;. in her first memorandum. After
notice was provided, a class action form was circulated by a local law
firm by staff at FMC Lexington . For a fee of 525.00 and 40% contingency
fee the firm will file an action based on violat.ion of the Privacy Act.
Legal staff were informed that t he suit may be filed as early as this
~e ek, and have alerted the U.S. Attorney's Office.
Personnel Issues:

(

4332

Joyce Zoldak - Jan02

Page 6

Page 6

(

MXR Monthly Report
Mid-Atlantic Region Litigation for the Month of January 2002
FC! CUM
FCI MEM
FCI MRG
MXP.
Hazelton
OhlO Co,

MARO Consolidated Legal Center
Blvens
HC
FTCA
Other
~

0

1
0

0
0

3
1

0
1
0
0
2

0
0

0
0
0
0
0

0

0
0
0
0
0

2

(I

0

1

Lexington Consolidated Legal Center
Bivens HC
:rCA
FMC LEX
0
1
1
FCI ASH
1
0
0
0
FCI MAN
1
0
Big Sandy
0
0
0
McCreary
0
0
0
1

2

B:.vens

:)

Total

2

4
1

2

1

FCC BUT
FCI PET
PET MEO
FPC SEY
W:.nton
VA Contracts

FCI BEC
FPC ALO
US? 1.E£
Glem'llle
McDowell

0
0
6

He

:'.-",

RegionDl TotDl

4333

1

0
0
0
0
0
0
0

0
5

Other
0
0
0
0

Butner Consolidated Legal Center
Blvens
Other
HC
FTCA

Total

0
0
0
0
0
0
0

1
0
0
0
0
2

Beckley Consolidated Legal Center
Blvens
Other
HC
FTCA
0
0
0
0

0
0

0
0
0
0
0
0

0
0
0
0
0
0

Total

3
0
0
0
0
0
3

0
0
0
0
0
0

1
0
0
0
0
5

Tctal
0
0
0
0
0
0

Other

Total

5

16