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

DATE:

REPLBill Burlington, Regional Counsel
ATTNMid-Atlantic Region
SUBJanuary 1998 Monthly Report
TOWallace H. Cheney, General Counsel
ATTN:

Nancy Redding, Executive Assistant

ADMINISTRATIVE REMEDIBS

JAN

Received
Answered

135
143

TORT CLAIMS

JAN

#
#
#
#
#

Pending
Received
Answered
Pending
Over Six Month

FOI/PRIVACY
# Pending

'eived
.wered
# Pending
# Over 20 Working Days
f

~.

APR

MAY

JON

JUL

AUG

SEP

OCT

NOV

DE

FEB

MAR

APR

MAY

JON

JOL

AUG

SEP

OCT

NOV

DE

FEB . MAR

APR

MAY

JON

JOL

AUG

SEP

OCT

NOV

DE

FEB

APR

MAY

JON

JOL

AUG

SEP

OCT

NOV

DB

0

JAN
13
43
34
23
1

JAN

Cases Pendin~
New Cases Received
Habeas Corpus
Bivens

338

FTCA

MAR

230
68
91
195

LITIGATION

Other
Cases Closed
Cases Pending
Lit Reports Completed
Cases/Hearings or Trials
Settlements/Awards
$ Settlements/Awards
($ in Thousands)

FEB

7
4
1
1
1
14
331
15
2
1
$147.7

MAR

ITEMS OF INTEREST, PERSONAL LEAVE, BUSINESS TRIPS, MOVES, ETC.
Bill Burlington, Regional Counsel, on February 23, 1998, will
be in Manchester, Kentucky, for a trial in the Bivens case
Dunlap v. Luttrell et al.; February 27 I will be in
Washington, D.C. for training.
Randi Everett, Legal Tech, USP Terre Haute, will be in annual
training February 17-20.
Randy Smith, Paralegal, FCI Elkton, will be on annual leave
February 17-20.
Mike Robar, Paralegal, FCI Manchester, will be in training the
week of February 17-20.
SITUATION OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS
WASTE SITES, ETC.:
FCI Butner - On January 29, 1998, Michelle Fuseyamore
addressed a meeting of local state and federal law enforcement
officials regarding MOU's for Bureau emergency assistance to
non-federal correctional agencies.
FCI and LSCI Butner - This is an update on a decision by
Granville County Register of Deeds to discontinue the practice
of issuing marriage licenses to inmates unless they appear in
her office to submit an application. The FCI & LSCI Wardens
submitted a letter asking her to reconsider her decision and
offering to bring her to the complex periodically to process
the applications. Through her attorney the Registrar returned
a letter declining the offer and stated that Turner v. Safley
(recognizing an inmate's right to marriage) did not impose an
obligation upon her to come to the institution to accommodate
the inmates.
FCI Butner - Three video-conference hearings were held this
month.
FMC Lexington - On January 13, 1998, Magistrate J.B. Johnson,
E.D. Ky., and his law clerk, Ms. Kauffman, toured FMC
Lexington for approximately four hours. They appeared to
greatly enjoy the tour and asked many questions about various
aspects of the institution. After the tour was completed,
Warden Holland made the comment that he felt we had just "won
friends with the Court."
Prisoner Litigation Refor.m Act:
White v. McGinnis, 131 F.3d 593 (6th Cir. 1997): In this
Michigan case, the 6th Circuit held an inmate must exhaust
under PLRA before bringing a 1983 case. The inmate had
vaguely alleged exhaustion would be futile, but the court
refused to excuse exhaustion. The court did not address the
issue raised in Garrett v. Hawk (availability of monetary

relief)". We will be dist~ibuting to all MXR legal staff,
sample language to be used whenever they raise the defense of
exhaustion of administrative remedies. The language tries to
point out why the Garrett v. Hawk decision is wrong.
SUBSTANTIVE PLEADINGS (COMPLAINT, MOTION FOR SUMMARY JUDGMENT,
BTC.): None
SBTTLEMENTS:
FPC Alderson - Pointdexter v. u.s. - We recently sent this
case to Central Office seeking settlement authorization in the
amount of $50,000. This case involved an inmate driver
hitting a civilian. The inmate was cited. We now have an
independent medical exam which suggests plaintiff will incur
$28,000 worth of future medical expenses. We drew a proplaintiff judge. The Chief of Civil, Stephen Horn, strongly
recommends that we settle this case quickly before the judge
interjects himself into the settlement process at the final
pretrial settlement conference in March.
Guiterrez v. u.S. - We were informed on January 14, 1998, by
the AUSA in this case that the plaintiff had accepted our
Offer of Judgment for $140,000 plus costs (actual costs
$7,711.02). This is the case where the inmate while in USMS
custody in a local jail in Michigan, fell out of the top bunk
and permanently damaged his left elbow. Subsequently, he was
ret~rned to BOP custody where there was a delay in surgery and
some mix-ups during post-surgery rehab.
FCI Memphis - Martin, et ale V. Hawk, et ale - This is the
case we have been reporting where the Director is still a
Bivens defendant. The case involves the implementation of the
BOP's new bed board policy several years ago. We obtained
approval from Wally Cheney to settle this case for $12,000.
OUr settlement included the inmate plaintiffs filing
administrative tort claims. Those three tort claims have now
been received in the regional office and we determined that
settlement was appropriate in the amount of $4,000 for each
claimant. At this point, we are awaiting claimants' responses
to our settlement offer.
ADVERSB DECISIONS OR SIGNIFICANT DECISIONS:
Farmer v. Moritsuqu, et al., D.D.C. - On January 22, 1998,
Judge Kessler issued an order in this case granting summary"
judgment for the de~endants with respect to the claim that the
BOP and Dr. Moritsugu failed to promulgate a new policy for
the treatment of transsexualism. However, she denied summary
judgement on all of the other claims, which included a claim
that Dr. Moritsugu failed to enforce the existing transsexual
policy. We believe that appeal of the denial of qualified
immunity for Dr. Moritsugu should be pursued in this case,
based on the Fourth Circuit's reasoning in Rish v. Johnson, et
al., 1997 WL 776553. As in Rish , the evidence in the Parmer

case does not support this District Court's decision that Dr.
Moritsugu possessed actual knowledge of a violation of the
inmate's clearly established constitutional rights.
Accordingly, the denial of Q.I. should be appealed. We have
discussed this issue with Ruwanda Davis and Joyce Zoldak, as
they have taken the lead role in this case. We have also
discussed the issue with Stacy Ludwig, the AUSA assigned to
the case. They all seem to be in agreement that an appeal is
warranted, but we are unsure. as to the ultimate decision for
appeal.
FCI Cumberland - Van Wagner v. Bidwell. et ale - Inmate Van
Wagner filed four Bivens/FTCA cases alleging the BOP failed to
provide safe and legal medical care by employing physician
assistants who are not licensed under the State of Maryland
medical standard and licensure guidelines for medical
practitioners. The judge ruled that the medical care at FCI
CUmberland did not amount to deliberate indifference to a
serious medical need, and Maryland law specifically exempts
physician assistants working at FCI Cumberland from the state
licensure requirement. With these four 'losses, at least we
should be able under the PLRA to preclude Van Wagner from
being able.to file in forma pauperis.
FCI Memphis - Graham v. u.S. - This is an FTCA action for lost
property arising out of the disturbance on October 20, 1995.
We were granted permission to argue that in light of the
discretionary function exception to the FTCA, the Court does
not have jurisdiction to hear this case. We received an order
from the court denying our Motion to Dismiss. Because of the
similarity between this case and Johnson (another riot FTCA
discretionary function exception case where the court denied
our Motion and DOJ Appellate staff did not authorize immediate
appeal), we are not recommending appeal of this ruling. Trial
has been set for Friday, February 6th.
UPDATE ON CASES, TRIALS OR HEARINGS, ETC. NOTED IN PRIOR
REPORTS:
USP Terre Haute - Yanez v. US - This FTCA trial was held this
month. The inmate claimed that staff at USP Terre Haute lost
his hobby craft material when he was transferred. Judgment
was entered in the favor of the u.S.
FCI Manchester - Dunlap v. Luttrell and Dunlap v. USA - On
February 5,· 1998, AUSA's Dave Bunning and Wende Morris will be
in the ~nstitution for staff interviews and trial preparation.
Trial is scheduled for February 23, 1998. These consolidated
FTCA and Bivens actions allege injuries as a result of use of
excessive force. On November 4, 1997, the 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.
FCI Memphis - Johnson v. u.s. - 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 discretionary
function exception. The court denied our motion and the case
proceeded to trial on January 21, 1998, and was
continued/completed on January 30, 1998. At the close of
plaintiff's proof, the Government moved for judgment as a
matter of law arguing again that the discretionary function
exception barred recovery, or in the alternative, that
plaintiff had not made out a prima facie case of negligence.
Having drawn a blurred line between discretionary decisions
and their ministerial implementation, the court concluded that
the BOP's development of a procedure to remove inmate personal
property was protected by the discretionary function
exception, but that the ministerial implementation was subject
to negligence analysis. Throughout, plaintiff contended that
we should not have removed the property or that we should have
returned the inmates to the same cells they occupied prior to
the disturbance. At the Judge's insistence that plaintiff
could have the merits considered only if he challenged the
ministerial implementation, plaintiff included that in his
challeng~.
The Judge then ruled in favor of the Government
and dismissed the complaint, but it is unclear as to whether
that ultimate decision as based upon the discretionary
function exception or lack of negligence.
FCI Beckley - Depew v. Hawk and Olson - Last month we reported
that an attorney's right to have privileged communications
with an inmate at FCI Beckley had been restricted. Since then
the Warden has been contacted by the Massachusetts State Bar
and was informed that the law firm whose envelope was used had
notified the State Bar and was requesting an investigation.
All relevant information was provided to the State Bar. The
inmate involved has filed suite in the District Court in
MassachUsetts requesting an injunction and money damages. A
hearing was set for February 3, 1998, in Boston (the court
gave the inmate's attorney until Monday, February 9, 1998, to
show cause why venue was proper in Boston) .
FCI Beckley - Padilla v. Outlaw, et ale - Summary judgement
was entered in this Bivens action wherein an inmate alleged
his Eighth Amendment rights were violated by staffs failure to
protect him from a gang assault. The inmate also alleged
inadequate medical care. The Magistrate's R&R recommended
that our Motion for Summary Judgment be granted on the merits
of the case. However, she rejected our argument that the PLRA
precluded the action as the inmate had not exhausted his

administrative remedies. The Magistrate relied on Garrett v.
Hawk. The District'Court accepted that portion of the report
and recommendation which dismissed the case and did not adopt
the exhaustion findings of the Magistrate.
REPRESENTATION NOT RECOMMENDED FOR STAFF:
USP Terre Haute - Kennert, et ale v. U.S., et ale - This case
is filed pro se and involves very vague allegations by the
plaintiff that he was beaten. The three named defendants, two
Lieutenants and the Warden, who have not been served. Each
stated in their rep requests that they were acting within the
scope of their employment and they had never beaten the
inmate. The Department is requiring that new rep request
memos be prepared wherein the staff are required to state
specifically if they ever had physical contact with this
inmate during the time frame in question, and if so, exactly
what happened.' The Department feels that the term "beaten"
can be interpreted different ways and they want the actual
facts for the given situation. Without these specifics, the
Department will no longer be granting representation,
particularly in cases involving allegations of excessive
force.
FCI Milan - Antone v. Pontesso - This is a Bivens action filed
by an inmate at Milan alleging that a staff member made sexual
statements about him to another inmate, which caused 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 charges were sustained against one officer for
failure to follow internal BOP reporting requirements for
immediate use of force (no charges of excessive force were
sustained) .
Representation was not recommended for the staff member where
charges were sustained for disrespectful conduct and making
statements that endanger the safety of an inmate.
Representation was recommended for all other defendants,
including the defendant who was disciplined for failure to
follow BOP policy since no excessive force was found. We were
concerned that providing representation to a staff member who
was found guilty of verbally abusing an inmate might adversely
impact the AUSA's ability to represent the other defendants
who had done nothing wrong. We are awaiting the Department's
response.
SIGNIFICANT FTCA CLAIMS:
FCI Butner - The Estate of Bryant Woodruff, an inmate who
committed suicide at FC! Butner on April 25, 1997, has filed
two Tort Claims on behalf of his two children. The tort claim

Q

alleges staff were negligent in failing to prevent the
decedent from harming himself, despite having knowledge of his
suicidal tendencies. Total damages claimed are $10 million.
MEDICAL MALPRACTICE CASES UPDATE: None
SIGNIFICANT ADMINISTRATIVE REMEDIES: None
NEW RFRA CASES AND UPDATES ON PREVIOUSLY REPORTED CASES:
FCI Manchester - Yahheh v. Chandler - In this Bivens case, the
court, as part of the PLRA screening process, indicated the
inmate's RFRA claims would not be addressed, as the City of
Borne case invalidated RFRA. The AUSA and I (with
considerable help from Jeff Shorba) now have the briefs that
the Department did which argue that RFRA is still the standard
when addressing religious claims involving the federal
government.
USP Terre Haute - Inmate Cash, Willis, Reg. No. 16227-057, has
filed a BP-9 at Terre Haute alleging that being forced to
shower with other naked men violates RFRA because of his
Muslim faith.
ALTERNATIVE DISPUTE RESOLUTION EFFORTS: None
18 U.S.C.

§

3621(e) LITIGATION:

FCI Morgantown - Pelissero & Hayes v. Thompson - 4th Circuit FCI Morgantown - Pelissero & Haves v. Thompson - 4th Circuit The Government's brief was due February 2, 1998, in these
consolidated appeals. The District Court upheld the BOP's
Program Statement 5162.02, Crimes of .Violence, as applied to a
2-point sentencing enhancement and a conviction for being a
Felon in Possession of a Firearm. We expect oral argument to
be set soon.
LSCI Butner - Hambrick v. Lappin - LSCI Butner inmate
challenges his denial of one year off due to a two-point
enhancement for having firearms involved in a drug conspiracy.
FCI Milan - Keinlen v. Scibana - After further review it was
determined Keinlen is eligible for the year off as his state
conviction was for negligent homicide which is specifically
outside of the FBI definitions used in RDAP the program
statement. Arrangements were made for his immediate release
to CCC.
FCI Manchester - Pendergrass v. Chandler - This habeas
petition concerning the denial of early release eligibility
under § 3621 for 21 USC § 841(a) (1) and 18 USC § 2 conviction
was recommended for dismissal on December 22, 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 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. Subsequently this case was dismissed with
prejudice on January 26, 1998.
PCI Manchester - Moore v. Chandler - This habeas petition
concerning the denial of early release eligibility under
§ 3621 was dismissed with prejudice on January 26, 1998.
PCI Manchester - King v. Chandler - This habeas petition
concerning the denial of early release ~ligibility under
§ 3621 was dismissed with prejudice on January 5, 1998.
PCI Manchester - Wooley v. Chandler - This habeas petition
concerning the denial of early release eligibility under
§ 3621 was dismissed with prejudice on January 5, 1998.
FCI Lexington - Jones v. Beeler - We received a final
dismissal order from Judge Forester in this 922(g) case.
SIGNIFICANT NEW CRIMINAL REPERRALS SINCE LAST MONTH'S REPORT:
PCI Beckley - Inmate Roger Lee McKenzie, Reg. No. 05233-088,
was indicted on January 27, 1998 for possessing contraband
(marijuana). The inmate was observed ingesting a balloon
during a visit. The inmate's visitor, his wife, has also been
indicated. Arraignment is set for February 13, 1998.
PCI Beckley - Inmate Jeffrey Robert Levering, Reg. No. 03594028, was indicated on January 27, 1998 for possessing
contraband (a weapon). Arraignment is set for February 13,
1998 in Beckley.
UPDATE ON PREVIOUSLY REPORTED CRIMINAL MATTERS:
PCI Beckley - Inmate Jackie Cockrane, Reg. No. 06458-058,
plead guilty to escape from FPC Beckley on September 22, 1997.
He was sentenced on January 6, 1998, and received a 27-month
consecutive sentence.
FCI Beckley - Inmate Jamel Wingate, Reg. No. 53173-053, plead
guilty to possession of contraband (a weapon) on January 21,
1998. Sentencing is scheduled for April 13, 1998, in
Huntington.
PCI Beckley - Inmate Claude Shafer, Reg. No. 03736-084,
received an 18-month consecutive sentence on January 26, 1998
for his escape from FPC Beckley.
SUCCESSFUL PROSECUTIONS OR ANY ACQUITTALS SINCE LAST MONTH'S
REPORT: None

REHABILITATION ACT: None
Ensign Amendment Cases:
FCI Milan - Norman v. Pontesso - Plaintiff initially filed a
Bivens action against BOP officials based upon implementation
of both the Ensign and Zimmer Amendments. Subsequent to the
initial complaint, plaintiff filed a motion for a permanent
injunction against "any statute" that restricts from viewing
"transmitted and/or motion pictures material that is being
restricted for being sexually explicit." Plaintiff's original
complaint contends that the BOP has violated his rights under
the First, Fourth and Eighth Amendments by restricting him
from viewing movies or television programs that are rated R,
X, or NC-17. His new motion suggests that this restriction is
facially in violation of the First Amendment. The Magistrate
Judge recommended dismissal of the Bivens portion of the
complaint, as the BOP officials have qualified immunity
against plaintiff's claims for damages. The Justice
Department filed a responsive pleading to the permanent
injunction, stating that plaintiff has no'First Amendment
right, or indeed any constitutional right, to view any
transmitted. pictures or motion pictures regardless of whether
their content is sexually explicit, and therefore his request
for injunctive relief is without merit.
Dismissals Under PLRA: None

o

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UNITED STATES GOVERNMENT

memorandum
MD:

RBPLY TO
ATl'N OPt

s~cr:

TO:

ATl'N:

<Date>Mid-Atlantic Regional Office, Annapolis Junction, MD 20701
Bill Burlington, Regional Counsel
Mid-Atlantic Region
January 1998 Monthly Report
Wallace H. Cheney, General Counsel
Nancy Redding, Executive Assistant

ADMINISTRATIVE REMEDIES
NOV

JAN
DEC

Received
Answered

135
143

TORT CLAIMS
NOV

JAN
DEC

#
#
#
#
#

Pending
Received
Answered
Pending
Over Six Month

FOI/PRIVACY
NOV
#
#
#
#
#

Pending
Received
Answered
Pending
Over 20 Working Days

APR

MAY

JON

JUL

AUG

SEP

OCT

FEB

MAR

APR

MAY

JON

JUL

AUG

SEP

OCT

FEB

MAR

APR

MAY

JON

JUL

AUG

SBP

OCT

FEB

MAR

APR

MAY

JON

JUL

AUG

SBP

OCT

68

91
195

o
JAN
DEC
13
43
34
23
1
JAN
DBC

Cases Pending
New Cases. Received
Habeas Corpus
Bivens

338

FTCA

MAR

230

LITIGATION
NOV

Other
Cases Closed
Cases Pending
Lit Reports Completed

FEB

7
4
1
1

1
14
331
15

Cases/Hearings or Trials
Settlements/Awards
$ Settlements/Awards
($ in Thousands)

2
1

$147.7

o

ITEMS OF INTEREST, PERSONAL LEAVE, BUSINESS TRIPS, MOVES, ETC.
Bill Burlington, Regional Counsel, on February 23, 1998, will be
in Manchester, Kentucky, for a trial in the Bivens case Dunlao v.
Luttrell et al.; February 27 I will be in Washington, D.C. for
training.
Randi Everett, Legal Tech, USP Terre Haute, will be in annual
training February 17-20.
Randy Smith, Para~egal, FCI Elkton, will be on annual leave
February 17-20.
Mike Robar, Paralegal, FCI Manchester, will be in training the
week of February 17-20.
SITUATION OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS WASTE
SITES, ETC.:
FCI Butner - On January 29, 1998, Michelle Fuseyamore addressed a
meeting of local state and federal law enforcement officials
regarding MOU's for Bureau emergency assistance to non-federal
correctional agencies.
FeI and LSCI Butner - This is an update on a decision by Granville
County Register of Deeds to discontinue the practice of issuing
marriage licenses to inmates unless they appear in her office to
submit an application. The FCI & LSCI Wardens submitted a letter
asking her to reconsider her decision and offering to bring her to
the complex periodically to process the applications. Through her
attorney the Registrar returned a letter declining the offer and
stated that Turner v. Safley (recognizing an inmate's right to
marriage) did not impose an obligation upon her to come to the
institution to accommodate the inmates.
FCI Butner - Three video-conference hearings were held this month.
FMC Lexington - On January 13, 1998, Magistrate J.B. Johnson, E.D.
Ky., and his law clerk, Ms. Kauffman, toured FMC Lexington for
approximately four hours. They appeared to greatly enjoy the tour
and asked many questions about various aspects of the institution.
After the tour was completed, Warden Holland made the comment that
he felt we had just won friends with the Court.
Prisoner Litigation Refor.m Act:
White v. McGinnis, 131 F.3d 593 (6th Cir. 1997): In this Michigan
case, the 6th Circuit held an inmate must exhaust under PLRA
before bringing a 1983 case. The inmate had vaguely alleged
exhaustion would be futile, but the court refused to excuse
exhaustion. The court did not address the issue raised in Garrett
v. Hawk (availability of monetary relief). We will be
distributing to all ~ legal staff, sample language to be used
whenever they raise the defense of exhaustion of administrative

o

remedies. The language tries to point out why the Garrett v. Hawk
decision is wrong.
SUBSTANTZVB

PLEADINGS (COMPLAINT, MOTION FOR SUMMARY JUDGMENT,

BTC.): None
SBTTLBMENTS:

FPC Alderson - Pointdexter v. u.s. - We recently sent this case to
Central Office seeking settlement authorization in the amount of
$~O,OOO.
This case involved an inmate driver hitting a civilian.
The inmate was'cited. We now have an independent medical exam
which suggests plaintiff will incur $28,000 worth of future
medical expenses. We drew a pro-plaintiff judge.

Guiterrez v. u.s. - We were informed on January 14, 1998, by the
AUSA in this case that the plaintiff had accepted our Offer of
Judgment for $140,000 plus costs (actual costs $7,711.02). This
is the case where the inmate while in USMS custody in a local jail
in Michigan, fell out of the top bunk and permanently da~ged his
left elbow. Subsequently, he was returned to BOP custody where,
there was a delay in surgery and some mix-ups during post-surgery
rehab.
FCI Memphis - Martin, et ale V. Hawk, et ale - This is the case we
have been reporting where the Director is still a Bivens
defendant. The case involves the implementation of the BOP's new
bed board policy several years ago. We obtained approval from
Wally Cheney to settle this case for $12,000. OUr settlement
included the inmate plaintiffs filing administrative tort claims.
Those three tort claims have now been received in the regional
office and we determined that settlement was appropriate in the
amount of $4,000 for each claimant. At this point, we are
awaiting claimants' responses to our settlement offer.
ADVERSE DECISIONS OR SIGNIFICANT DECISIONS:
Farmer v. Moritsuqu. et al., D.D.C. - On January 22, 1998, Judge
Kessler issued an order in this case granting summary judgment for
the defendants with respect to the claim that the BOP and Dr.
Moritsugu failed to promulgate a new policy for the treatment of
transsexualism. However, she denied summary judgement on all of
the other claims, which included a claim that Dr. Morit8ugu failed
to enforce the existing transsexual policy.

o

FCI Cumberland - Van Wagner v. Bidwell. et ale - Inmate Van Wagner
filed four Bivens/FTCA cases alleging the BOP failed to provide
safe and legal medical care by employing physician assistants who
are not licensed under the State of Maryland medical standard and
licensure guidelines for medical practitioners. The judge ruled
that the medical care at FeI CUmberland did not amount to
deliberate indifference to a serious medical need, and Maryland
law specifically exempts physician assistants working at FCI
Cumberland from the state licensure requirement. With these four
losses, at least we should be able under the PLRA to preclude Van
Wagner from being able to file in forma pauperis.
FCI Memphis - Graham v. u.S. - This is an FTCA action for lost
property arising out of the disturbance on October 20, 19.95. We
were granted permission to argue that in light of the
discretionary function exception to the FTCA, the Court does not
have jurisdiction to hear this case. We received an order from
the court denying our Motion to Dismiss. Because of the
similarity between this case and Johnson (another riot FTCA
discretionary function exception case where the court denied our
Motion and DOJ Appellate staff did not authorize immediate'
appeal), we are not recommending appeal of this ruling. Trial has
been set for Friday, February 6th.
UPDATE ON CASES, TRIALS OR HEARINGS, ETC. NOTBD IN PRIOR REPORTS:
USP Terre Haute - Yanez v. US - This FTCA trial was held this
month. The inmate claimed that staff at USP Terre Haute los~ his
hobby craft mat.erial when he was transferred. Judgment was
entered in the favor of the u.S.
FCI Manchester - Dunlap v. Luttrell and Dunlap v. USA - On
February 5, 1998, AUSA's Dave Bunning and Wende Morris will be in
the institution for staff interviews and trial preparation. Trial
is scheduled for February 23, 1998. These consolidated PTCA

'and Bivens actions, allege injuries as a result of use
of excessive force. On November 4, 1997, the Court
denied our motion to dismiss.
In its order, the Court
refused to extend the reasoning in Edwards v. 8alisQk
and Heck v. Humphrey to either the' FTCA or Eighth
Amendment claims. The Court found the inmate'. failure
to file his administrative remedies on the OHO 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.
FCI Memphis - Johnson v. U.S. - 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 discretionary function
exception. The court denied our motion and the case proceeded to
trial on January 21, 1998, and was continued/completed on January
30, 1998. At the close of plaintiff's proof, the Government moved
for judgment as a matter of law arguing again that the
discretionary function exception barred recovery, or in the
alternative, that plaintiff had·not made out a prima facie case of
negligence. Having drawn a blurred line between discretionary
decisions and their ministerial implementation, the court
concluded that the BOP's development of a procedure to remove
inmate personal property was protected by the discretionary
function exqeption, but that the ministerial implementation was
subject to negligence analysis. Throughout, plaintiff contended
that we should not have removed the property or that we should
have returned the inmates to the same cells they occupied prior to
the disturbance. At the Judge's insistence that plaintiff could
have the merits considered only if he challenged the ministerial
"implementation, plaintiff included that in his challenge. The
Judge then ruled in favor of the Government and dismissed the
complaint, but it is unclear as to whether that ultimate decision
as based upon the discretionary function exception or lack of
negligence.
FCI Beckley - Depew v. Hawk and Olson - Last month we reported
that an attorney's right to have privileged communications with an
inmate at FC! Beckley had been restricted. Since then the Warden
has been contacted by the Massachusetts State Bar and was informed
that the law firm whose envelope was used had notified the State
Bar and was requesting an investigation. All relevant information
was provided to the State Bar. The inmate involved has filed
suite in the District Court in Massachusetts requesting an
injunction and money damages. A hearing was set for February 3,
1998, in Boston (the court gave the inmate'S attorney until
Monday, February 9, 1998, to show cause why venue was proper in
Boston) .
FCI Beckley - Padilla v. Outlaw. et al. - Summary judgement was
entered in this Bivens action wherein an inmate alleged his Eighth
Amendment rights were violated by staffs failure to protect him
from a gang assault. The inmate also alleged inadequate medical
care. The Magistrate's R&R recommended that our Motion for
Summary Judgment be granted on the merits of the case. However,
she rejected our argument that the PLRA precluded the action as
the inmate had not exhausted his administrative remedies. The
Magistrate relied on Garrett v. Hawk. The District Court accepted
that portion of the report and recommendation which dismissed the

•

case and did not adopt the exhaustion findings of the Magistrate.
REPRESENTATION NOT RECOMMENDED FOR STAFF:
USP Terre Haute - Kennert. et al. v. U.S., et al . - This case is

filed pro se and involves very vague allegations by the plaintiff
that he was beaten·. The three named defendants, two Lieutenants
and the Warden, who have not been served.
Each stated in their
rep requests that they were acting within the scope of their
employment and they had never beaten the inmate. The Department
is requiring that new rep request memos be prepared wherein the
staff are required to state specifically if they ever had physical
contact with this inmate during the time frame in question, and if
so, exactly what happened. The Department feels that the term
beaten can be interpreted different ways and they want the actual
facts for the given situation.
Without these specifics, the
Department will no longer be ~ranting representation, particularly
in cases involving allegations of excessive force.

This is a Bivens action
filed by an inmate at Milan alleging that a staff
member made sexual statements about him to another
inmate, which caused 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 charges were
sustained against one officer for failure to follow
internal BOP reporting requirements for immediate use
of force (no charges of excessive force were
sustained) .
FCI Milan - Antone v. Pontesso -

Representation was not recommended for the staff member
where charges were sustained for disrespectful conduct
and making statements that endanger the safety of an
inmate.
Representation was recommended for all other
defendants, including the defendant who was disciplined
for failure to follow BOP
since no excessive
force was found.

SIGNIFICANT FTCA CLAIMS:
FeI Butner - The Estate of Bryant WoodrUff, an inmate who
committed suicide at Fe! Butner on April 25, 1997, has filed two
Tort Claims on behalf of his two children.
The tort claim alleges

staff were negligent in failing to prevent the decedent from
harming himself, despite having knowledge of his suicidal
tendencies. Total damages claimed are $10 million.
MEDICAL MALPRACTICE CASES UPDATE: None
SIGNIFICANT ADMINISTRATIVE REMEDIES: None
NEW RFRA CASES AND UPDATES ON PREVIOUSLY REPORTED CASES:
FCI Manchester - Yahheh v. Chandler - In this Bivens case, the
court, as part of the PLRA screening process, indicated the
inmate's RFRA claims would not be addressed, as the City of Borne
case invalidated RFRA. The AUSA and I (with considerable help
from Jeff Shorba) now have the briefs that the Department did
which argue that RFRA is still the standard when addressing
religious claims involving the federal government.
USP Terre Haute - Inmate Cash, Willis, Reg. No. 16227-057, has
filed a BP-9 at Terre Haute alleging that being forced to shower
with other naked men violates RFRA because of his Muslim faith.
ALTERNATIVE DISPUTE RESOLUTION EFFORTS: None
18 U.S.C.

§

3621(e) LITIGATION:

FCI Morgantown - Pelissero & Hayes v. Thompson - 4th Circuit - The
Government's brief was due February 2, 1998, in these consolidated
appeals. The District Court upheld the BOP's Program Statement
5162.02, Crimes of Violence, as applied to a 2-point sentencing
enhancement and a conviction for being a Felon in Possession of a
Firearm. We expect oral argument to be set soon.
LSCI Butner - Hambrick v. Lappin - LSCI Butner inmate challenges
his denial of one year off due to a two-point enhancement for
having firearms involved in a drug conspiracy.
FCI Milan - Keinlen v. Scibana - After further review it was
determined Keinlen is eligible for the year off as his state
conviction was for negligent homicide which is specifically
outside of the FBI definitions used in RDAP the program statement.
Arrangements were made for his immediate release to CCC.
FCI Manchester - Pendergrass v. Chandler - This habeas petition
concerning the denial of early release eligibility under § 3621
for 21 USC § 841(a) (1) and 18 USC § 2 conviction was recommended
for dismissal on December 22, 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 or
equal protection violation present and no binding case law
prohibiting use of a ~entencing enhancement in early release
cases. The limited judicial review authority notwithst'anding, the

Magistrate noted the policy was a permissible construction of the
statute. Subsequently this case was dismissed with prejudice on
January 26, 1998.
FCI Manchester - Moore v. Chandler - This habeas petition
concerning the denial of early release eligibility under
§ 3621 was dismissed with prejudice on January 26, 1998.
FCI Manchester - King v. Chandler - This habeas petition
concerning the denial of early ·release eligibility under
§ .3621 was dismissed with prejudice on January 5, 1998.
FCI Manchester - Wooley v. Chandler - This habeas petition
concerning the denial of early release eligibility under
§ 3621 was dismissed with prejudice on January 5, 1998.
FCI Lexington - Jones v. Beeler - We received a final dismissal
order from Judge Forester in this 922(g) case.
SIGNIFICANT NEW CRIMINAL REFERRALS SINCE LAST MONTH'S REPORT:
FCI Beckley - Inmate Roger Lee McKenzie, Reg. No. 05233-088, was
indicted on January 27, 1998 for possessing contraband
.
(marijuana). The inmate was observed ingesting a balloon during a
visit. The inmate's visitor, his wife, has also been indicated.
Arraignment is set for February 13, 1998.
FCI Beckley - Inmate Jeffrey Robert Levering, Reg. No. 03594-028,
was indicated on January 27, 1998 for possessing contraband (a
weapon). Arraignment is set for February 13, 1998 in Beckley.
UPDATE ON PREVIOUSLY REPORTED CRIMINAL MATTERS:
FCI Beckley - Inmate Jackie Cockrane, Reg. No. 06458-058, plead
guilty to escape from FPC Beckley on September 22, 1997. He was
sentenced on January 6, 1998, and received a 27-month consecutive
sentence.
FCI Beckley - Inmate Jamel Wingate, Reg. No. 53173-053, plead
guilty to possession of contraband (a weapon). on January 21, 1998.
Sentencing is scheduled for April 13, 1998, in Huntington.
FCI Beckley - Inmate Claude Shafer, Reg. No. 03736-084, received
an 18-month consecutive sentence on January 26, 1998 for his
escape from FPC Beckley.
SUCCESSFUL PROSECUTIONS OR ANY ACQUITTALS SINCE LAST MONTH'S
REPORT: None
REHABILITATION ACT: None
Ensign Amendment Cases:
FCI Milan - Norman v. Pontesso·- Plaintiff initially filed a

Bivens action against BOP officials based upon implementation of
both the Ensign and Zimmer Amendments. Subsequent to the initial
complaint, plaintiff filed a motion for a permanent injunction
against any statute that restricts from viewing transmitted
and/or motion pictures material that is being restricted for being
se~ally explicit.
Plaintiff's original complaint contends that
the BOP has violated his rights under the First, Fourth and Eighth
Amendments by restricting him from viewing movies or television
programs that are rated R, X, or NC-17. His new motion suggests
that this restriction is facially in violation of the First
Amendment. The Magistrate Judge recommended dismissal of the
Bivens portion of the complaint, as the BOP officials have
qualified immunity against plaintiff's claims for damages. The
Justice Department filed a responsive pleading to the permanent
injunction, stating that plaintiff has no First Amendment right,
or indeed any constitutional right, to view any transmitted
pictures or motion pictures regardless of whether their content is
sexually explicit, and therefore his request for injunctive relief
is'without merit.
Dismissals Under PLRA: None

New Litigation Cases by Institution and Type
Received During the Month of January 1998
ALD

ASH

BEC

BUT *

CUM

LEX

MAN

MEM

MIL

MRG

BIV

0

0

0

0

0

0

0

0

0

1

FTCA

0

0

0

0

1

0

0

0

0

0

HC

0

0

0

1

1

0

0

0

1

0

OTH

0

0

1

0

0

0

0

0

0

0

TOT

0

0

1

1

·2

0

0

0

1

1

*Represents both the FCI and LSCI

UNITED STATES GOVERNMENT

memorandum
DATE:

March 6, 1998Mid-Atlantic Regional Office, Annapolis Junction, MD 20701

AnN OF:

Bill Burlington, Regional Counsel
Mid-Atlantic Region

SUBJECT:

February 1998 Monthly Report

REPLYTO

TO:

Wallace H. Cheney, General Counsel

AnN:

Nancy Redding , Executive Assistant

ADMINISTRATIVE REMEDIES
NOV

JAN
DEC

FEB

Received
Answered

135
143

187
181

TORT CLAIMS
NOV

JAN
DEC

FEB

230
68
91
195
0

195
54
71
179
0

JAN
DEC

FEB

#
#
#
#
#

Pending
Received
Answered
Pending
Over Six Month

FOI/PRIVACY
NOV

# Pending
13
# Received
43
# Answered
34
# Pending
23
# Over 20 Working Days
1
*·File has been requested from archives.

23
24
34
12
2*

LITIGATION
NOV

JAN
DEC

FEB

Cases Pending
New Cases Received
Habeas Corpus
Bivens
FTCA
Other
Cases Closed
Cases Pending

338
7
4
1
1
1
14
331

331
17
7
6
2
2
·19
329

MAR APR

MAY JUN

JUL

AUG

SEP

OCT

MAR APR

MAY JUN

JUL

AUG

SEP

OCT

MAR APR

MAY JUN

JUL

AUG

SEP

OCT

MAR APR

MAY JUN

JUL

AUG

SEP

OCT

Lit Reports Completed
Cases/Hearings or Trials
SettlementslAwards
$ SettlementslAwards
($ in Thousands)

15
12
2
2
1
2
$147.7 $52.0

ITEMS OF INTEREST, PERSONAL LEAVE, BUSINESS TRIPS,
MOVES, ETC.
Bill Burlington, Regional Counsel, will be on annual
leave March 9-13; and in ART March 30-April 3.
We would like to congratulate Mike Robar on his recent
marriage. We wish Mike and his new bride a lifetime of
happiness together.
Carolyn Lanphear, Paralegal, FCI Cumberland, will be in
ART March 16-20. Carolyn will make a presentation at
the next staff recall on March 11, on the new P.S.
1380.06 "Disclosing Potential Impeachment Information
Regarding Employees."
Michelle Fuseyamore, Attorney, FCI Butner, will be the
complex Duty Officer March 17-24; and Mike Bredenberg,
Attorney, LSCI Butner, will be the complex Duty Officer
March 24-31.
Teresa Marvel, Paralegal, USP Terre Haute, will be in
ART March 2-6, 1998.
Joe Tang, Attorney, FMC Lexington, will be in ART the
week of March 16-20, 1998.
Matthew Mellady, Attorney, FCI Memphis, is in ART this
week.
SITUATION OF INTEREST, CONTACT WITH FEDERAL BENCH,
HAZARDOUS WASTE SITES, ETC.:
Annexation of FCI Morgantown - We have recently been
approached by the Mayor of Morgantown, Charlene
Marshall, with another proposal to annex FeI Morgantown
into the city. Margaret Hambrick is scheduled to meet
with Mayor Marshall on March 3, 1998. Apparently, the
mayor has enlisted support for the annexation from the
West Virginia Congress~onal delegation.

u.s.

Attorney Office Orientation - FCI Elkton - We are
planning an orientation session at FCI Elkton on
Wednesday, April 29, 1998. Representatives from the
Cleveland, u.s. Attorney's Office have been invited to
attend. We are off to a rather "shaky" start dealing
with this office, as they tend ,to go to the Department,
rather than to us, when faced with a new prisoner
lawsuit.
FCZ Butner - Three mental health commitment hearings
were held during the month.

FCI Butner - Medical staff at FCI Butner have
discontinued HIV medication for inmate Dee Farmer due
to his refusal to allow proper blood tests to be
conducted to determine the impact these medications are
having on his system as part of his treatment. A
treatment refusal form was prepared which the inmate
refused to sign. We anticipate that Mr. Farmer will
file an action in the D.C. District Court.
FCI Manchester - On referral from the institution's
Supervisory Contract Specialist, Mike Robar, Paralegal,
contacted Jane Crowell, Commercial Law Branch,
concerning an issue related to the original mine
reclamation bond for the Manchester property. There is
approximately $10,000 remaining on the bond and the BOP
has a boulder requiring removal. The state mine
reclamation office issued a contract for the boulder'S
removal and with Ms. Crowell's assistance, we were able
to issue a permit for the work. At issue was the
authority 'for the contractor to enter institution
grounds, potential government liability, possible
mineral rights, and scope of the bond. Work began on
this project on March 2, 1998 .
.Prisoner Litigation Reform Act: None
SUBSTANTIVE· PLEADINGS (COMPLAINT, MOTION FOR SUMMARY
JUDGMENT, ETC.): None
SETTLEMENTS:
FPC Alderson - Poindexter v. US - This old FTCA case
arose 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 was the extent of physical damages to the driver
of the other car. The case has been settled for
$40,000.
FCI Memphis - Martin, et ale v Hawk, et ale - The three
plaintiffs in this case have accepted the $4,000 each
settlement offer under FTCA. This is the Bivens case
where the Director' was still a defendant regarding the
implementation of the BOP's change in our bed board
policy.
ADVERSE DECISIONS OR SIGNIFICANT DECISIONS:
FCI Manchester - Dunlap v. Luttrell, et ale - On
February 23-25, this Bivens excessive force case was
tried to a jury. After two full days of testimony the

jury deliberated less than one hour, concluding that
the four defendants did not use excessive force in
subduing an unruly inmate. This case also involved an
FTCA claim for failure to train and supervise the
officers, and failure to provide proper medical care to
the inmate after the use of force incident. The Judge
was visibly angry at the government for canceling an
outside medical exam, and ordered that such an exam
take place before she decides the FTCA claim.
FMC Lexington - Dumphord v. Reno. et ale - Judge Karl
Forester allowed plaintiff to pursue the §2255 portion
of his lawsuit, which alleges cruel and unusual
punishment under the Eighth Amendment in the alleged
denial of treatment of plaintiff's facial keloids.
Judge Forester ruled the Court was aware at the time of
sentencing of the facial keloid condition and based its
sentence on the belief the BOP would follow the Court's
recommendation and accommodate plaintiff's serious
medical condition. Accordingly, the Court opined
plaintiff may pursue his §2255 claim because the Eighth
Amendment violation allegation is linked to the
execution of plaintiff's sentence.
FCI Beckley - Temple v. Olson - In this habeas case, a
state had primary jurisdiction, sentenced the inmate to
a sentence to be served concurrent with his federal
sentence already imposed, and ordered the inmate be
transferred to the U.S. Marshals. The Marshals took
custody of the inmate and placed him in a private
correctional facility. The inmate was subsequently
prosecuted and sentenced on a second federal charge.
When the inmate was transferred to a Bureau facility,
ISM realized the state had primary jurisdiction over
the inmate and returned him to the state. When the
inmate completed his state sentence and was returned to
federal custody, he argued he should receive credit
toward his federal sentence for the time spent in state
custody since his federal sentence commenced when the
state initially transferred him to the Marshals. He
also argued the denial of credit violated the rule that
an inmate can't be forced to serve his sentence in
installments. The Magistrate has recommended relief be
granted which would mean the inmate has been held
beyond his release date. Objections will be filed.
UPDATE ON CASES, TRIALS OR HEARINGS, ETC. NOTED IN
PRIOR REPORTS:
FMC Lexington - Reed v. Reno - This age discrimination
case challenges the BOP's 36 year old limit for entry
into a primary law enforcement position. This case has
been set for oral argument in the 6th Circuit on

Tuesday, April 21st.

Fel Beckley - Depew v. Hawk and Olson - This inmate
filed suit in Massachusetts because his right to have
unprivileged communications with his attorney had been
restricted for one year. He requested an injunction
and money damages. A hearing was held in Boston
February 3, 1998. A Motion to Dismiss for Lack of
Venue and Motion in Opposition to the Preliminary
Injunction were filed, as the only tie to Massachusetts
was that the inmate's attorney was located there. At
the hearing the Judge noted his discontent that an
attorney's privileged correspondence rights had been
curtailed and indicated he was inclined to issue a
preliminary injunction. However, he allowed the
attorney time to respond to the Bureau's Motion to
Dismiss. The attorney attempted to cure the venue
problems by adding himself as a named plaintiff. A
response has been filed.
FCl Petersburg - Patsel v. US - This tort action
involves Patsel's allegation of improper medical
treatment for a stroke on July 5, 1994. He complained
to staff at approximately 8:00 a.m. and· was
subsequently taken to the outside hospital at
approximately 1:00 a.m. the next morning, where he was
diagnosed with a stroke. Trial had been set in the
matter for March. The physicians assistants rendering
medical care and Patsel were deposed by the AUSA.
Patsel's attorneys at the time indicated they were
having problems obtaining an expert witness willing to
state that but for the action of FCI Petersburg medical
staff, the outcome of Patsel's medical condition would
be different.
In a Rule 41 stipulation, the action was
dismissed with prejudice on February 5, 1998.

FCl Petersburg - Platshorn v. Hahn - This previously
reported sentence computation case regarding
de-aggregation of parolable and non-parolable sentences
was appealed by Platshorn on December 22, 1997. The
Fourth Circuit docketed the case on January 26, 1998,
and directed that pursuant to Local Rule 34(b) the case
be submitted on informal briefs. Platshorn's informal
brief is due on March 16, 1998, and the government's
informal response due 14 days after service of
appellant's brief.
FCl Petersburg - Vinson v. Dewalt - Inmate Vinson filed
his petition in December 1996, seeking jail time credit
under 3585{b) for time served on a state sentence, and
for time spent under restrictive conditions of bail,
along with GCT fo~ the time periods. The November 19,
1997, MRR recommended denial of his petition . . Vinson

then filed a notice of appeal with the Fourth Circuit
on December 5, 1997. Judge Jackson, denied the
petition in a final order on December 8, 1997, and
declined to issue a certificate of appealability, and'
noted the premature appeal. On January 7, 1998, Vinson
filed a Motion wi·th the Fourth Circuit seeking
immediate release. The AUSA filed a response with the
Circuit on January 13, 1998, opposing the motion for
immediate release and con~esting the court's
jurisdiction to hear the appeal. The District Court
issued an order on February 18, 1998, denying Vinson's
Motion to Proceed In Forma Pauperis on appeal finding
the appeal frivolous. Action is awaited from the
Fourth Circuit.
REPRESENTATION NOT RECOMMENDED FOR STAFF:
FCI Milan - Antone v. Pontesso, et ale - We are still
awaiting a decision by the Department regarding
granting of representation in this case which involves
allegations of use of excessive force and fear for his
(the inmate's) safety after a staff member made sexual
statements about him.
In our letter to the Department
we recommended that representation be granted to all
the defendants except one officer. Representation was
not recommended for the staff member where charges were
sustained for disrespectful conduct and making
statements that endanger the safety of an inmate.
SIGNIFICANT FTCA CLAIMS: None
MEDICAL MALPRACTICE CASES UPDATE: None
SIGNIFICANT ADMINISTRATIVE REMEDIES: None
NEW RFRA CASES AND UPDATES ON PREVIOUSLY REPORTED
CASES:
FCI Butner - An inmate filed an administrative remedy
when the institution denied his proposal to establish a
"Gay Men's Christian Collation" (sic) at FCI Butner.
The stated goal of the proposed group was to allow gay
inmates to fellowship, and dispel the myths and
stereotypes surrounding gays through spiritual
awareness.
The request was denied on the ground that
there were ample opportunities available to all inmates
of the Christian faith for fellowship, and that these
meetings were available to 'all inmates without regard
to sexual orientation. Further, if the inmate was
interested in having a particular person from the
community come in and minister to him individually, a
visit could be arranged fO.r this purpose.

ALTERNATIVE DISPUTE RESOLUTION EFFORTS: None
18 U.S.C.

§

3621(e) LITIGATION:

FCI Morgantown - Pelissero & Hayes v. Thompson (4th
Circuit) - This two point enhancement and Felon in
Possession of a Firearm appeal has been scheduled for
oral argument before the Fourth Circuit on Friday,
April 10.
FCI Elkton - Boucher v. LaManna - Petitioner challenges
the denial of early release consideration. The inmate
received a two-point enhan~~ment for possession of a
weapon during a drug offense. Response is due March
14, 1998, and we plan to file a Motion to Dismiss for
failure to exhaust, as the early release determination
was made under the new policy.
FCI Elkton - Dipolito v. LaManna - Petitioner
challenges the denial of early release consideration.
Response is due
March 2, 1998. The inmate received a two-point
enhancement for possession of a weapon during ~ drug
offense.
FCI Milan - Scott v. Pontesso - Inmate alleges BOP
inclusion of previous convictions as a basis for
non-eligibility for the one-year off provisions of RDAP
is not a permissible interpretation of the statute.
In
a January 28, 1998, R&R the Magistrate recommends the
action be dismissed as the BOP's determination that
prior convictions make an inmate ineligible is a
discretionary decision vested with the BOP.
FCI Petersburg - Goddard v. Dewalt - When the BOP
originally responded to this petition we argued it
should be dismissed for failure to exhaust and/or
petitioner is not entitled to the requested relief, and
.the Fifth Circuit's decision in Venegas should be
followed.
The court was informed that the Eastern
District of Virginia's decision in Fuller,along with
Pelissero (out of Morgantown), are on appeal to the
Fourth Circuit. Subsequent to our, filing, the Fourth
Circuit issued a per curiam opinion affirming the
Fuller decision. On February 12, 1998, in a filing to
the district court we advised them of this decision by
the Fourth Circuit and that Pelissero is still pending.
SIGNIFICANT NEW CRIMINAL REFERRALS SINCE LAST MONTH'S
REPORT: None

UPDATE ON PREVIOUSLY REPORTED CRIMINAL MATTERS:
FCI Elkton - Inmate Lesley Dumersier, Reg. No.
63154-061, was indicted by a federal grand jury for
biting the Food Service Administrator during an attempt
to gain control of Dumersier and place him in
restraints. On February 25, 1998, Dumersier appeared
before the Magistrate Judge for arraignment. Dumersier
was appointed an attorney from the Federal Public
Defenders Office and pled not guilty.
FMC Lexington - Inmate Mic~ael Kite, Reg. No.
04697-028, was sentenced in the Eastern District of
Kentucky on February 10, 1998, to 51 months for
Possession of a Weapon (shank).
SUCCESSFUL PROSECUTIONS OR ANY ACQUITTALS SINCE LAST
MONTH'S REPORT: None
REHABILITATION ACT: None
Ensign Amendment Cases: None
Dismissals Under PLRA: None

New Litigation Cases by Institution and Type
Received During the Month of February 1998

ALD

ASH

BEC

BUT

CUM

ELK

LEX

MAN

MEM

MIL

0
0

0
0
1

0
0

2
3

0
0

1
0
0
0
1

0
0
1
0
1

1
1
1
0
3

MR

*

BIV
FTCA
HC
OTH
TOT

0
0
0
0
0

0
0

0
0

0
0

0
0

0

0

0
0
1

0
0

0
1

0

0

2
0

0
0

2

* Represents both the FCI and LSCI
New Litigation Cases by Institution and Type
Received Calendar Year to Date
ALD

ASH

BEC

BUT

CUM

ELK

LEX

*
BIV
FTCA
HC
OTH
TOT

0

0
0
0
0

0
0

0
0

0
0

0
0

0

2

1
1

0

0

2

0
1
1

0
2

0

0
1
2
3

0
0
0

0
0

*BUT represents both the FCI and the LSCI

MAN
1
0
0
0
1

MEM

MIL

0

1
1
2
0
4

0
1
0
1

M

.

UNITED STATES GOVERNMENT

memorandum
DATE:

April 6,

1998Mid-Atlantic Regional Office, Annapolis Junction, MD

ATTN OF:

Bill Burlington, Regional Counsel
Mid-Atlantic Region

SUBJECf:

March

REPLY TO

1998

Monthly Report

TO:

Wallace H. Cheney, General Counsel

ATTN:

Nancy Redding, Executive Assistant

ADMINISTRATIVE REMEDIES
NOV

JAN FEB
DEC

Received
Answered

135
143

TORT CLAIMS
NOV

JAN FEB
DEC

#
#
#
#
#

Pending
Received
Answered
Pending
Over Six Month

FOI/PRIVACY
NOV

20701

230
68
91
195
0

187
181

195
54
71
179
0

JAN FEB
DEC

13
# Pending
43
# Received
34
# Answered
23
# Pending
1
# Over 20 Working Days
*File has been requested from archives.

23
24
34
12
2*

LITIGATION
NOV

JAN FEB
DEC

Cases Pending
New Cases Received
Habeas Corpus
Bivens
FTCA
Other
Cases Closed
Cases Pending

338
7
4
1
1
1
14
331

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

229
178

MAR APR
179
75
58
190
0

MAR APR
12
54
41
23
0

MAR APR

331
329
17
6
7
5
6
1
2
0
2
0
19
21
329 314

..
Lit Reports Completed
Cases/Hearings or Trials
Settlements/Awards
$ Settlements/Awards
($ in Thousands)

15
12
14
221
1

2

$147.7 $52.0

0

0

Q

ITEMS OF INTEREST, PERSONAL LEAVE, BUSINESS TRIPS,
MOVES, ETC.
Bill Burlington, Regional Counsel, has the following
travel planned during the month: April 9-10, Richmond,
Virginia, for 4th Circuit Appeal in Peliserro and
Hayes; April 20-21, Cincinnati, Ohio, for 6th Circuit
Appeal in the Velda Reed case; and April 28-29, Elkton,
Ohio, for orientation for the U.S. Attorney's Office.
We would like to congratulate Rick and Terri Schott on
the birth of their second daughter, Caroline Franceis.
We also learned that former MARO attorney Darrel Waugh
and his wife, Melanie, are the proud parents of a new
baby girl, Jordan. Congratulations to Kathleen White
for completing the Paralegal Training Program.
Congratulations to Marian Callahan, Attorney, MARO, for
being selected as Employee of the Quarter for the
Regional Office.
Congratulations to Joe Tang, Attorney, FMC Lexington,
for being recognized with a time-off award for making
it to work all three days while FMC Lexington was on
crisis status due to the heavy snowfall and staff
having difficulty in getting to work.
Mike Robar, Paralegal FCl Manchester, is the
institution duty officer April 7-14.
Teresa Marvel, Paralegal, USP Terre Haute, is the
institution duty officer, and Kathy Harris, Paralegal,
Mid-Atlantic Regional Office, is regional office duty
officer March 31-April 6.
Matthew Mellady, Attorney, FCl Memphis, will be away
from the institution April 22-23, for a department
head/executive staff retreat. He is heading the
committee responsible for planning the first day of the
retreat. Several sessions have been planned to include
topics on leadership, communication, teamwork,
professionalism, and appropriate staff/inmate
interaction.
Randy Smith, Paralegal, FCl Elkton, will be the
institution duty officer April 7-14.
Dawn Tanner, Legal Assistant, FCl Petersburg, will be
on annual leave April 12-18, 1998.
SITUATION OF INTEREST, CONTACT WITH FEDERAL BENCH,
HAZARDOUS WASTE SITES, ETC.:

..
FCl Morgantown - I am talking with the City Attorney
about possible costs associated with the City of
Morgantown annexing the institution into the city.
Margaret Hambrick met with Mayor Marshall on March 3,
1998. The meeting appears to have made Margaret feel
more supportive of annexation, as she feels we have a
common interest with the city in controlling the type
of growth that occurs adjacent to the institution.
Very soon, I expect we will be asking for the position
of Central Office (Wally indicated the Director will
want to be briefed) on this proposal. Margaret
indicated the City has the support of the West Virginia
Congressional delegation, and that the City will likely
ask those officials to intervene on its behalf with the
Director.
FCl Elkton - We are planning an orientation session at
FCI Elkton on Wednesday, April 29, 1998'.
Representatives from the Cleveland u.s. Attorney's
Office will attend for the training and a tour of the
institution.
Medical Care Recovery Act, 42 U.S.C. § 2651 (FCI
Petersburg and FCI Ashland) - We now have two
institutions that are seeking to recover the cost of
medical care which was incurred to treat injuries
caused by a third party. We note that BOP still does
not have written procedures to guide staff through this
process.
In the case at Ashland, Randy Smith has
received assistance from the Air Force, as they do have
regulations which address issues such as how to
compensate a private attorney who obtains the
settlement from which the government is paid.
FCl Butner - After Action Report - The After Action
review of the March 11, 1998, hostage taking incident
at FCI Butner revealed that the mature, calm response
of several key staff, resulted in this incident being
resolved in less than one hour. Staff had spent a
great deal of time in the months before this incident
on Crisis Management Training. That training was
instrumental in bringing this incident to a quick,
successful resolution.
FCl Manchester - As reported in February, the State
Mine Reclamation Office issued a contract for removal
of a boulder which would be financed by an already
existing bond, for which the BOP issued a work permit.
This project has been completed. The assistance of the
Commercial Law Branch in obtaining the permit was
greatly appreciated.

..
FCI Butner - One video conference mental health hearing
was held during the month.
FCI Memphis - On April 17, the Chief Judge of the
District Court will be at FCI Memphis for a tour.
FCI Memphis - A letter was recently forwarded to the
Attorney's Office in the Western District of
Tennessee asking that steps be taken to have the recent
favorable discretionary function exception ruling
published. The u.s. Attorney has agreed and a letter
will be sent to the Court. This case arose out of the
October 20, 1995, disturbance at Memphis.

u.s.

Prisoner Litigation Refor.m Act:
FMC Lexington - Dumphord v. Reno, et al. - In a 64
page, scathing Preliminary Injunction/Denial of
Qualified Immunity Order, Judge Karl Forester ruled
that exhaustion was not required under the PLRA, as it
was futile.
The court held there were several reasons
exhaustion was futile, one of which was the lack of
monetary relief. The order did not cite Garret v.
Hawk, nor did it cite White v. McGinnis, 131 F.3d. 593
(6th Cir. 1997), a Michigan case which requires
exhaustion under PLRA when attempting to bring a
section 1983 case. As relief, the court ordered that
we allow a private physician to treat the inmate, "in
his sole discretion." We are attempting to appeal the
order, while at the same time seeking to reach a
settlement which will include vacating this order.
SUBSTANTIVE PLEADINGS (COMPLAINT, MOTION FOR SUMMARY
JUDGMENT, ETC.): None
SETTLEMENTS:
FCI Memphis - Martin, et al. V. Hawk, et al. - Although
claimants signed the vouchers accepting our offer of
settlement ($4,000 each for the three plaintiffs),
claimant's attorney now contends that we orally agreed
to a transfer of one of the claimants as part of our
negotiated settlement.
In response to this contention,
Matthew Mellady, Attorney, FCI Memphis, drafted a
letter specifically refuting that such an agreement was
reached at the settlement conference or at any time
thereafter. This letter reiterated our position that
the Bureau of Prisons will not compromise the security
of its institutions or the integrity of its
classification system by agreeing
to a transfer as part
.
.

.
of a settlement. Finally, we informed claimant's
attorney that claimant is free at any time to make an
administrative request for a transfer and that staff at
his institution would make an appropriate
administrative determination independent of the law
suit or any tort claim.
ADVERSE DECISIONS OR SIGNIFICANT DECISIONS:
FCI Manchester - Dunlap v. Luttrell - As we reported
last month, this FTCA case, alleging failure to train
and supervise the officers, and failure to provide
proper medical care to the inmate after a use of force
incident, has not yet been concluded, as the Judge
ordered that the inmate be. examined by an independent
physician. The government was allowed to select an
outside physician to perform one exam, and the
plaintiff was allowed to select one physician. Both
exams have now been completed and neither indicates any
injuries that could be attributed to the use of force
incident.
FCI Cumberland - Weeks v. Bidwell - On March 10, 1998,
Judge Nickerson entered an order following Roussos,
Downey, and the unpublished opinion in Fuller, voiding
Section 9 of P.S. 5162.02 (2-point firearm enhancement
disqualifies an inmate from early release).
The Court
ordered the BOP to redetermine the eligibility of
inmate Weeks within 45 days without considering the
2-point firearm enhancement. We attempted to get the
Court to hold off on a decision until after the oral
argument in Pelissero before the Fourth Circuit. We
are going to wait until the Pelissero oral argument on
April 10th to decide the full extent of the
applicability of the Weeks decision or proceed with an
appeal of that decision.
FCI Memphis - US v. William Taylor - Inmate William
Taylor, with the assistance of another inmate, Alfred
Mauldin, recently filed a petition for writ of habeas
corpus in the Western ·District of Tennessee.
In
dismissing the case during the screening process, the
Court issued an injunction berating inmate Mauldin for
filing frivolous petitions on his own behalf and on the
behalf of other inmates. The Court voiced their
concern that the advice Maudlin would provide other
inmates would be "hopelessly inadequate and could
result in another inmate having sanctions imposed
against him." The Court ordered that Mauldin is
restrained and enjoined from conducting any further
legal or quasi-legal activities in the Western District
of Tennessee on behalf of any person other than

..
himself. He is also enjoined from conducting any legal
research or assisting in the preparation of legal
documents for other inmates. The Court concluded by
saying "this injunction is necessary to protect other,
less-knowledgeable inmates from misleading and
erroneous advice, and the Court from the necessity of
spending valuable judicial time and resources on the
results of this frivolous advice ... "
FMC Lexington - Shelton v. St. Clair, et al. - This
Bivens action alleges racial and religious
discrimination through verbal comments of a UNICOR
supervisor.
In his order dated March 13, 1998, Judge
Wilhoit stated: "The Court· reiterates the Magistrate
Judge's comments that if they occurred, the comments of
Ms. St. Clair were disgusting and vulgar. This does
not change the fact that said conduct would not violate
clearly established constitutional rights of Mr.
Shelton as abusive language or other verbal harassment
by prison officials does not necessarily state·a
constitutional violation."
UPDATE ON CASES, TRIALS OR HEARINGS, ETC. NOTED IN
PRIOR REPORTS:
FMC Lexington - Velda Reed v. Reno - This age
discrimination case challenges the BOP's 36 year old
limit for entry into a primary law enforcement
position. This case has been set for oral argument in
the 6th Circuit on Tuesday, April 21st.
I will attend
with AUSA Lee Gentry. We have been in the 6th Circuit
on this case before, but this time we go before the
court having won at the District Court level. This
case has broad potential impact on BOP personnel and
retirement practices.
FCI Beckley - Depew v. Hawk and Olson - This inmate
filed suit in Massachusetts because his right to have
privileged communications with his attorney had been
restricted for one year. He requested an injunction
and money damages. A hearing was held in Boston on
February 3, 1998. A Motion to Dismiss for Lack of
Venue and Opposition to the Preliminary Injunction was
filed, as the only tie to Massachusetts was that the
inmate's attorney was located there. The attorney
attempted to cure the venue problem by adding himself
as a named plaintiff. A response was filed.
A second
hearing was held in Boston on March 16. FCI Beckley's
Attorney Advisor, Inmate Systems Manager, and Deputy
Regional Counsel were present at the hearing. On March
25, 1998, the Judge dismissed FCI Beckley's Warden as a
defendant, denied the plaintiff's motion to amend the
complaint (and add the attorney as a plaintiff),

o

transferred the case to the Southern District of West
Virginia and denied plaintiff's motion for a
preliminary injunction. We were pleased with the
support provided by the two Assistants in the District
of Massachusetts that were assigned to this case. They
did an outstanding job.
USP Terre Haute - Cosmo-Cosby v. Brandenburg, et al. This case is set for trial on April 13, 1998. The
plaintiff alleges that staff assaulted him following a
routine search of his cellon September 23, 1996, in
SHU. Additional defendants have been dismissed from
the suit. A correctional officer and a Lieutenant
remain as Bivens defendants.
REPRESENTATION NOT RECOMMENDED FOR STAFF:
FCI Milan - Antone v. Pontesso, et al. - We finally
received the response from the Department regarding
representation in this case. This is the case that we
recommended representation not be granted to
correctional office Duby where charges were sustained
for disrespectful conduct and making statements that
endanger the safety of an inmate. The Department
granted representation to all the defendants, except
Officer Duby.
It is interesting to note that the
representation letter was signed by Donald M. Remy,
Deputy Assistant Attorney General, instead of Helene
Goldberg. As soon as we received telephonic notice,
Kevin Walasinski, Attorney, FCI Milan, called Mr. Duby
into his office and informed him of the Department's
decision and provided him with a memo explaining that
representation had not been granted and that he would
be responsible for providing his own attorney. Officer
Duby expressed his deep disappoint with the BOP and DOJ
stating that inmate Antone had succeeded in his goal of
dividing staff. He was visibly shaken, angered and
distressed. His anger was directed to the BOP and DOJ
and not the local legal department.
Kevin was later
contacted by a member of the Union's E-board to confirm
representation was denied. The Union representative
was also not happy with the agency's' position, and
indicated the Union may pay the representation costs.
SIGNIFICANT FTCA CLAIMS:
FMC Lexington - The conservator for Kenneth Dixon, a
forensic study case at FMC Lexington, filed an
administrative tort claim for $500,000. The claim
alleges negligence on behalf of FMC Lexington staff in
delaying administration of psychotropic medications.
The claim further alleges staff negligently failed to
prevent Dixon from grotesquely gouging out his right

eye with his thumb.
FCI Butner - Former inmate Jean Stafford, through her
attorney, has filed a tort claim with a sum certain of
$3 million dollars alleging that she was sexually
assaulted by three staff members during her
incarceration. Ms. Stafford was interviewed in 1996
when another inmate made allegations of sexual assault.
At that time she denied that she had been sexually
assaulted. After her release, she was again
interviewed by. BOP OIA staff at her residence and again
denied ever being sexually assaulted. These new
allegations have been referred to the FBI.
FCI Memphis - We recently denied a tort claim filed on
behalf of Barbara Danner, a former contract employee.
Ms. Danner claimed compensatory damages in the amount.
of $300,000 as the result of alleged discrimination and
retaliatory acts, as well as contractual damages in the
amount of $164,840 resulting from the alleged arbitrary
termination of her contract with the BOP. Ms. Danner
was employed as a Medical Lab Tech at FCI Memphis from
October 1994 to September 1996. She makes several
claims, including being subjected to sexual harassment
by a former HSA and intimidation via threats of
criminal indictment for fraud by a Special Agent of the
DOJ's Office of the Inspector General.
MEDICAL MALPRACTICE CASES UPDATE: None
SIGNIFICANT ADMINISTRATIVE REMEDIES: None
NEW RFRA CASES AND UPDATES ON PREVIOUSLY REPORTED
CASES:
FCI Petersburg - Norton and Goodwin v. US, et al. This is a Bivens case filed by two inmates at FPC
Petersburg alleging violation of their rights to
practice the Asatru Free Assembly religion because the
BOP deliberately delayed the approval for the group
meeting at the camp. An answer was previously filed.
The inmates have submitted several requests for
discovery, and the AUSA has objected to their requests
with the exception of those items being submitted with
our Motion for Summary Judgment, which was filed on
March 27. We argued that the issue is moot as the
Asatru Free Assembly is being provided space and time
for group meetings at the camp, and requested
essentials of their faith have been ordered and
provided to the group, with the exception of tapes
which are being reviewed for security and good order
concerns. We also raised qualified immunity and

o

failure to exhaust. Norton and Goodwin have attempted
to assert that the exhaustion by a former inmate
satisfies their exhaustion requirement.
ALTERNATIVE DISPUTE RESOLUTION EFFORTS: None
18 U.S.C.

§

3621(e) LITIGATION:

FCI Morgantown - Pelisser6 & Hayes v. Thompson - 4th
Circuit - This two point enhancement and Felon in
Possession of a Firearm appeal has been scheduled for
oral argument before the Fourth Circuit on Friday,
April 10th.
FCI Manchester - Moore v. Chandler - This § 3621 case
was dismissed with prejudice on January 26, 1998, for
petitioner's failure to provide a change of address to
the Court when released on writ. However, Judge
Coffman has apparently re-opened this case, as FCI
Manchester received a February 23 order allowing
petitioner to reply to the government's prior response.
FCI Cumberland - Frank v. Henry - Petitioner challenges
the denial of early release consideration. The inmate
received a two-point enhancement for possession of a
weapon during a drug offense.
FCI Cumberland - McPeek v. Henry - In this habeas
petition the inmate alleges he is improperly being
denied the benefits of the RDAP based on his 18 U.S.C.
§ 922(g) conviction.
SIGNIFICANT NEW CRIMINAL REFERRALS SINCE LAST MONTH'S
REPORT:
FCI Butner - Inmate Earl Price, Reg. No. 18599-032, was
referred for criminal prosecution for the recent
hostage situation.
FCI Petersburg - On January 21, 1998, Thomas Gibson,
Reg. No. 32341-037, was referred for prosecution. On
January 16, 1998, the SIS office received a telephone
call from a female civilian. The civilian indicated
inmate Gibson was somehow involved in having the tires
on her car slashed/flattened. SIS staff reviewed
inmate Gibson's telephone calls, which revealed inmate
Gibson ordering a male on the street to puncture and
flatten all of the tires on the civilian's vehicle.
The following morning when the civilian attempted to
leave for work, her tires. were flat.
Inmate Gibson was

•

placed in administrative detention pending an SIS
investigation and his involvement into the incident.
This case was referred to the FBI.
FPC Petersburg - On February 15, 1998, at approximately
1:20 a.m., after completing two separate counts, it was
determined that inmate Calvin Smith, Reg. No.
27531-083, was missing; inmate Smith was placed on
escape status. The FBI/USM were notified and the case
was referred to USM for prosecution (pending). On
February 16, 1998, at approximately 5:45 a.m. inmate
Smith returned to the institution and was placed in SHU
pending further investigation.
UPDATE ON PREVIOUSLY REPORTED CRIMINAL MATTERS:
FCI Beckley - Jamel Wingate, Reg. No. 53173-053 pled
guilty to Possession of Contraband (a weapon) .
Sentencing is scheduled for May 11, 1998.
FCI Beckley - Roger McKenzie, Reg. No. 05233-088, was
indicted for Possession of Contraband (Marijuana).
Trial is set for April 14. We expect him to plead
guilty to the charge.
FCI Beckley - Jeffrey Levering, Reg. No. 03594-028,
signed a plea agreement for Possession of Contraband (a
weapon). A plea hearing is scheduled for April 20,
1998.
SUCCESSFUL PROSECUTIONS OR ANY ACQUITTALS SINCE LAST
MONTH'S REPORT: None
REHABILITATION ACT: None
Ensign Amendment Cases:
FCI Beckley - Maydak v. Bidwell. et al. - Inmate Maydak
originally challenged the Ensign Amendment.
Subsequently, in an amended complaint, he also alleged
Bivens liability when what he identifies as commercial
'photographs were rejected by staff at FCI Beckley as
personal photographs. The Court had previously stayed
the Ensign Amendment portion of the suit pending the
outcome of the Amatel case. The Judge also granted the
Defendants an additional 60 days to respond to the
Bivens portion of the lawsuit once the individual
defendants were served. To date, there has been no
service.
In December 1997, inmate Maydak motioned the
court to reconsider his request for an injunction that
had been previously denied. On March 18, 1998, the
Judge remanded the inmate's request for an injunction

to the magistrate for reconsideration. On
March 19, 1998, the Magistrate requested a status
report indicating the location of each plaintiff. A
response was subsequently filed.
To date, the
Magistrate has not requested a response be filed
outlining the Bureau's position to the inmate's motion
for reconsideration. A motion in opposition to the
request for an injunction will be filed shortly based
on mootness.
Dismissals Under PLRA: None

.
New Litigation Cases by Institution and Type
Received During the Month of March 1 998

BIV
FTCA
HC
OTH
TOT

ALD

ASH

BEC

BUT
*

CUM

ELK

LEX

MAN

MEM

MIL

0
0
0
0
0

0
0
0
0
0

0
0
0
0
0

0
0
0
0
0

0
0
0
0
0

0
0

0
0
0
0
0

0
0

0
0

0
0

1

1

1

0

0

0

1

1

1

2

0
2

MR
1
0
0
0
1

* Represents both the FCI and LSCI

New Litigation Cases by Institution and Type
Received Calendar Year to Date
ALD
BIV
FTCA
HC
OTH
TOT

0
0
0
0
0

ASH

0
0
0
0
0

BEC

0
0
0
1
1

BUT

*
0
0
2
0
2

CUM

0
1
1

0
2

*BUT represents both the FCI and the LSCI
counted in both Jan. and Feb.

ELK

0
0
3
2
5

LEX

0
0
0
0
0

MAN
1

0
1

0
2

MEM

MIL

0
0
2
0
2

1
1

.Corrected figure - one case

3
0
5

MR

o

UNITED STATES GOVERNMENT

memorandum
DATE:

May 7, 1998Mid-Atlantic Regional Office, Annapolis Junction, MD 20701

ATTN OF:

Bill Burlington, Regional Counsel
Mid-Atlantic Region

SlIBJECT:

April 1998 Monthly Report

REPLY TO

TO:

Wallace H. Cheney, General Counsel

ATTN:

Nancy Redding, Executive Assistant

ADMINISTRATIVE REMEDIES
NOV

JAN
DEC

FEB

MAR APR

Received
Answered

135
143

187
181

229
178

TORT CLAIMS
NOV

JAN
DEC

FEB

MAR APR

230
68
91
195
0

195
54
71
179
0

179
75
58
190
0

JAN
DEC

FEB

MAR APR

#
#
#
#
#

Pending
Received
Answered
Pending
Over Six Month

FOI/PRIVACY
NOV

# Pending
13
# Received
43
. # Answered
34
# Pending
23
# Over 20 Working Days
1
*File has been requested from archives.

23
24
34
12
2*

12
54
41
23
0

LITIGATION
NOV

JAN
DEC

FEB

Cases Pending
New Cases Received
Habeas Corpus
Bivens
FTCA
Other
Cases Closed
Cases Pending

338
7
4
1
1
1
14
331

331
329
16*
4*
7
4
50*
2
0
2
0
19
21
329 314

MAY JUN

JUL

AUG

SEP

OCT

MAY JUN

JUL

AUG

SEP

OCT

MAY JUN

JUL

AUG

SEP

OCT

MAY JUN

JUL

AUG

SEP

OCT

160
201

190
62
60
191
0

23
54
53
24
0

MAR APR

314
11
3
6
1
1
62
273

o

Lit Reports Completed
Cases/Hearings or Trials
Settlements/Awards
$ Settlements/Awards
($ in Thousands)
*Corrected figures

15

12

14

8

2

2

1

4

1
2
$147.7 $52.0

o

o

1
$30.0

ITEMS OF INTEREST, PERSONAL LEAVE, BUSINESS TRIPS,
MOVES, ETC.
Bill Burlington, Regional Counsel, will be in the
Regional Office May 11-13.
We would like to congratulate vicki Petricka, Unit
Secretary, FC! Phoenix, on her selection as Paralegal
Trainee, MARO. Vicki is scheduled to join us sometime
during the week of June 15th. We say farewell to Kathy
White, wishing her the very best of luck in her new
assignment as Paralegal Specialist, FO!A Unit, Central
Office. Kathy's last day with us is
June 5, 1998.
SITUATION OF INTEREST, CONTACT WITH FEDERAL BENCH,
HAZARDOUS WASTE SITES, ETC.:
Annexation of FCI Morgantown - Margaret Hambrick has
written the Director in an attempt to spell out ,the
pros and cons of the city's annexation proposal. Ms.
Hambrick believes there are good reasons to consider
the city's proposal, and she wanted to involve the
Director before she is contacted by the West Virginia
congressional delegation.
U.S. Attorney Orientation--FCI Elkton - On April 29th,
FC! Elkton hosted 21 people from the Cleveland and
Akron U.S. Attorney Offices. Warden LaManna, Randy
Smith, Michael Pybas and Bill Burlington presented a
short orientation/training program, then hosted a lunch
and tour of the facility.
FCI Elkton - Randy Smith, Paralegal, FC! Elkton, has
been invited 'to be the guest speaker by Kent State
University and the Ohio Paralegal Association at the
Paralegal Association Spring Dinner May 8, 1998.
FC~

Ashland - Randy Smith, Paralegal, FC! Elkton, will
travel to FC! Ashland May 19-20 to attend a deposition.
'A former employee, Jack Rohr, was injured when he fell
off a North American Van Lines truck and suffered a
significant head injury. The employee sued North
American for damages on grounds of negligence.
North
American Van Lines has requested to take the deposition
of another BOP employee who was present when the
accident occurred and the employee agreed to the
deposition. We are still waiting on the attorney to
satisfy the procedures in 28 C.F.R. § 16.22 et seq. In
order to obtain approval for the employee to give the
deposition.

FCI Elkton - On April 30, 1998, Randy Smith, Paralegal,
contacted Judge Ashley Pike, Probate Judge, ~egarding
the issue of inmate marriages and the state's
requirement that individuals personally appear before
him or a clerk to obtain a marriage license. Judge
Pike confirmed that there are no waivers or exceptions
to the state's law, however, he did clarify that it was
not necessary for both individuals to appear at the
same time. The Captain and Randy then visited the
Columbiana County Court House regarding potential
security concerns. Since the Captain did not hav~ any
security concerns, Randy is recommending to the Warden
that the institution use escorted trip procedures to
transport inmates to the Court House when necessary.
FCI Petersburg - Recovery under the Medical Care
Recovery Act, 42 U.S.C. § 2651, et. seq. - In November
1996 inmate Gregory Demonsones, Reg. No. 18969-016,
sustained a broken wrist when the government ve~icle he
was driving was struck by a POV driven by a State Farm
insuree. The BOP spent $14,839.03 in medical bills for
Demonsones' treatment. After submitting a demand for
reimbursement, State Farm Insurance remitted a check
for the full amount which was deposited into the u.S .
.Treasury.
Prisoner Litigation Refor.m Act: None
SUBSTANTIVE PLEADINGS (COMPLAINT, MOTION FOR SUMMARY
JUDGMENT, ETC.): None
SETTLEMENTS:
FMC Lexington - Dumphord v. Reno - In our last report
we notified you that we received an adverse Preliminary
Injunction in this case, which involves an extremely
severe case of facial keloids. After much work by Joe
Tang and the staff at Lexington, the Preliminary
Injunction order has now been vacated as part of a
settlement agreement. Aside from agreeing to allow
inmate Dumphord to be seen by his private plastic
surgeon, the Bureau agreed to pay approximately $30,000
in attorney fees. When apprised of the settlement,
Judge Karl Forester seemed pleased that the matter was
resolved and that Dr. Dowden would be allowed to
continue treating inmate Dumphord.
FCI Memphis - Martin, et ale V. Hawk. et ale - As
previously reported we were able to convert this Bivens
suit to a FTCA claim and settle it administratively for
$12,000 ($4,000 to each of the three claimants). On

April 13, 1998, the Judge signed the Order of Dismissal
(with prejudice) and on
April 17, 1998, the Judgment was entered on the docket
sheet. On May 1, 1998, we received a copy of
plaintiffs' Motion to Set Aside Judgment.
Plaintiffs
argued that at the time of settlement, their request
for attorney fees arising from a discovery dispute was
still pending. They asked the Court to set aside the
Judgment and affirm the Magistrate's Order for attorney
fees prior to entry of any final judgment.
FCI Petersburg - Jenkins v. u.s. - This is the FTCA
action brought by the estate of a deceased former FCI
Petersburg inmate who was scalded and stabbed by a
former Correctional Officer at that facility (who was
then convicted of assault). This action was brought in
the District of Columbia and the central issue is which
state law would be applied with respect to scope of
employment. Based on a careful analysis, a settlement
offer of $7,500, an amount which plaintiff's counsel
stated they would accept, was made last week. We are
awaiting word back from the AUSA.
ADVERSE DECISIONS OR SIGNIFICANT DECISIONS:
USP Terre Haute - McGhee v. Clark - On April 7, 1998,
Judge Larry McKinney entered an order upholding our
Inmate Financial Responsibility Program.
Inmate McGhee
had claimed the IFRP was unconstitutional, as it
amounts to an improper delegation by a court to the
Bureau to set the timing of when a fine will be paid.
Judge McKinney rejected this claim, holding that in
this case, the sentencing court properly set the amount
of the fine, and made the fine payable immediately.
The Bureau, through the IFRP, then properly set about
to collect what the court said was due. The Court
distinguished u.s. v. Mortimer and u.s. v. Johnson, as
cases where the court actually delegated to the BOP or
Probation, the authority to establish when the fine was
payable, whereas in this case, the J&C said the fine
was payable immediately. We will seek to have this
case published.
.
FPC Seymour Johnson - On April 20, 1998, Chief Judge
Graham Mullen, W.D. North Carolina, entered an order
that inmate Aubrey Hilliard be released to a CCC in the
Charlotte area for the last six months of his one year
and one day sentence. Apparently, Judge Mullen does
not like the sentencing guidelines and wanted to put
this inmate on home confinement, but the guidelines
prohibit it. His April 20th order was an attempt to do
what the guidelines forbid, and came after a letter

from Maryellen Thoms, Warden, FPC Seymour Johnson, that
we would consider Hilliard for a 60 day CCC placement,
beginning October 6, 1998. The AUSA, Tax Division, BOP
and Roy McLeese, Solicitor General's Office, all
recommend that an immediate appeal or Petition for Writ
of Mandamus be filed.
FCI Manchester - Shehee v. Robertson. et ale - By order
filed March 30, 1998, the court denied our objections
to the Magistrate Judge's R&R. This included issues of
respondeat superior, in personam jurisdiction, and
qualified immunity for several of the defendants. The
u.S. Attorney's Office agreed with our determination
this matter should be appealed and have contacted the
Department in this regard.
In the interim, a
protective order of appeal was suggested. Notice of
Appeal was filed April 28.
UPDATE ON CASES, TRIALS OR HEARINGS, ETC. NOTED IN
PRIOR REPORTS:
FMC Lexington - Velda Reed v. Reno - This age
discrimination case was argued before the 6th Circuit
on Tuesday, April 21st. The panel of Judges, Ryan, Lay
and Daughtery, did not give any indication of how they
felt about the government's position that persons over
36 cannot be hired into a primary law enforcement
position in an institution.
It will probably be
several months before we receive a decision.
In Re Lincoln - FMC Lexington - On April 29, 1998, an
emergency hearing was held to hear inmate Lincoln's
claim that he was illegally being held beyond his
release date.
In fact, inmate Lincoln was not released
the week of April 20th, as he refused to sign the
installment schedule for payment of his fine, as
required by 18 U.S.C. 3624{e). This hearing was
complicated by the U.S. Attorney's Office and
Probation, concluding that our form (from the IFRP
Program Statement) constitutes an impermissible
delegation of a court function to the Probation
Officer. While I believe their position is incorrect, I
have written Jeff Shorba with some language that we
could use to modify the form, thus eliminating any
confusion about the fact that the installment agreement
relates only to collection of a fine, where a court has
previously determined both the amount of, and timing
for payment of the fine. After the hearing, inmate
Lincoln signed a revised form and was released.
FCI Beckley - Temple v. Olson - In this habeas case, a
state had primary.jurisdiction, sentenced the inmate to

a sentence to be served concurrent with his already
imposed federal sentence, and ordered the inmate
transferred to the U.S.M.S. The Marshals took custody
of the inmate and placed him in a private facility.
The inmate was subsequently prosecuted and sentenced on
a second federal charge and transferred to a BOP
facility.
BOP ISM staff realized the state had primary
jurisdiction and returned the inmate to state custody.
The inmate argued his federal sentence commenced when
the Marshals took custody of him. The Magistrate
recommended granting the petition. The District Court
Judge, in a scathing opinion, declined to adopt the
Magistrate's recommendations, holding that under the
plain meaning of § 3585(a), a federal sentence does not
commence until he is both in custody and awaiting
transportation to a correctional facility designated by
the BOP and subject to the authority of the BOP.
In
evaluating the inmate's argument that he was forced to
serve his sentence in a piecemeal fashion, violating
the common law prohibition against installment
sentenced, the Judge noted that this prohibition may
have been effectively banished in light of the
Sentencing Reform Act of 1987. He also noted th~t
while the argument is often raised by prisoners, he
could not find one case in which a prisoner emerged
victorious.
FMC Lexington
Kevin Jones v. J.T. Holland. et al. - A
TRO hearing was held on April 10, 1998, in this Bivens
case pertaining to plaintiff's allegations he was
denied pain medication and treatment for his kidney
stones and back pain. Medical staff and legal staff
preparing for this hearing firmly believe plaintiff has
been afforded proper medical care. Plaintiff has been
prescribed a large variety of psychotropic and
non-narcotic painkillers, but has continued to insist
he needs Percocet, a narcotic painkiller. He has been
tested for kidney stones, which were ruled out. Tests
for a slipped disk have been inconclusive. He has
never manifested pain symptoms justifying narcotic
relief, and plaintiff has a long documented history of
drug abuse and manipulation.
Judge Wilhoit deferred ruling on the TRO and continued
the hearing pending test results regarding the alleged
blood in plaintiff's urine. Judge Wilhoit also
strongly suggested FMC staff counsel plaintiff and get
him to do a cystogram procedure with analgesics he can
bear. Jones has twice previously refused the exam.
Wilhoit also expressed his disagreement with our
discontinuation of Jones' narcotics, since they had
previously been prescribed elsewhere. Judge Wilhoit
then. held up a copy of th~ 64 page Dumphord opinion by

Judge Forester and said "with the ink hardly dry on
this opinion, I find it hard to believe you all could
let this happen again." Subsequent to the hearing
Jones did have a cystoscopy and the findings were
normal. The tests ordered by Judge Wilhoit have been
filed as a status report and we do not anticipate Judge
Wilhoit will grant any injunction requiring us to give
Jones narcotics.
USP Terre Haute - Shaheed v. Officer Timothy Kimbler This Bivens case is scheduled for trial on May 18,
1998. This case involves allegations of improper use
of force while escorting the inmate from SHU to the
Lt.'s Office.
USP Terre Haute - Cosby v. Martin, et ale - Trial had
been scheduled for April 13, 1998, in this Bivens case.
However, after the defendant was brought from Florence
to USP Terre Haute for the trial, he filed a motion for
voluntary dismissal of the case. The case was
dismissed without prejudice.

FCICumberland - The Warden at CUmberland received a
letter from Brett Kimberlin asserting judgment had been
issued in his favor and against the government
regarding the Zimmer Amendment.
Inmate Kimberiin
requested immediate return of all electric musical
instruments, R-NC and x-rated movies, and repair of all
weight lifting equipment. He attached to his letter
two "Default" notices, signed by the Deputy Clerk of
the u.S. District Court for the District of Columbia,
declaring the BOP and DOJ were in default. Research
into this issue revealed that Central Office had
provided a litigation report to the AUSA, but the AUSA
failed to fil,e a timely response. A response was being
filed by the AUSA last week to reopen the matter.
FCI Cumberland - Horton v. Henry - This habeas petition
alleged the petitioner's due process rights were
vioalted when he was moved from state custody to
federal custody through a writ ad prosequendum,
'returned to state custody, and then transferred back to
federal custody without the issuance of a second writ,
and that he was detained without the issuance of a
commitment order. Petitioner had previously litigated
the exact same issues in 1995, when he appealed his
conviction to the Fourth Circuit.
In an order dated
April 25, 1998, Judge Motz dismissed the petition based
6n the government's argument that the petition was a
clear abuse of the writ.
REPRESENTATION NOT RECOMMENDED FOR STAFF: None

SIGNIFICANT FTCA CLAIMS:
FCI Manchester - Rose v. BOP. et ale - This wrongful
death claim was brought under the FTCA by the widow of
inmate Robert Rose, Reg. No. 04192-032, who died in our
custody on
October 11, 1996. The immediate cause of death was
atherosclerotic cardiovascular disease, resulting from
probably acute myocardial infarction. The multi-layer
mortality chart review contains the conclusion that an
appropriate standard of care was provided. However,
the plaintiff alleges the Health Services Manual and
community standards were not met.
MEDICAL MALPRACTICE CASES UPDATE:
FCI Elkton - Westfall v. Dr. Mupanduki. et ale - This
is a Bivens action alleging the defendants were'
deliberately indifferent to his serious medical need of
bladder cancer by failing to provide routine medical
procedures every three months. The information
contained in the defendant's request for government
representation shows that inmate Westfall was provided
with a cystoscopy within four months from the date of
the last prQcedure. Although some delay did occur,
it
is due to inmate Westfall's conduct while at the
community hospital which resulted in hospital staff
refusing to provide the cystoscopy. However, the
cystoscopy was subsequently rescheduled and performed
with negative results.
SIGNIFICANT ADMINISTRATIVE REMEDIES:
FCI Manchester - Daniels, Willie - With the help of
Wendy Roal and Warden Chandler, we resolved this
difficult Rehabilitation Act issue, by agreeing that
inmate Daniel's decision to quit smoking, had mooted
his claim. Daniels originally claimed by placing him
in a wheelchair-accessible-cell in a non-smoking unit,
we treated him differently than non-disabled inmates.
FCI Manchester also agreed to convert cells in a
current smoking unit to handicap accessible, in case
future disabled inmates desire to be in a smoking unit.
FDC Milan - The legal office at Milan just received
their first two administrative remedies arising from
the pilot common fare program.
It is interesting to
note that both remedies were filed out of the FDe.
NEW RFRA CASES AND UPDATES ON PREVIOUSLY REPORTED
CASES: None

•

ALTERNATIVE DISPUTE RESOLUTION EFFORTS: None
18 U.S.C. § 3621(e) LITIGATION:
FCI Morgantown (4th Circuit) - Pelissero and Haves v.
Thompson On April 10th, this 2-point enhancement/Felon
in Possession, early release case was argued to the 4th
Circuit. The panel was prepared to rule that the new
rule mooted these cases. We pointed out that' the new
rule did not apply, as both appellants entered a drug
treatment program prior to October 199 7 . When this was
pointed out, Judge Billy Wilkens r esponded "y ou realize
that admission hurts your case." By this com
I
believe Judge Wilkens may have been suggest i
_ the
panel was prepared to strike down the Progrc
Statement, Definition of the Term. Crimes 0
~ nce,
and had hoped to avoid that result by upho '
he new
rule, a la Bush v . pitzer.
FCI Memphis - Lanxter v. Luttrell - This habeas
petition arises from our denial of plaintiff's request
for early release under §3621(e). This denial was
based on plaintiff's sentence enhancement for his
possession of a firearm during a drug trafficking
offense. The Court analyzed plaintiff's request under
the new regulation and denied plaintiff. The Court
concluded that given the placement of
sentence-reduction authority in a wholly discretionary
statute focused on prison management, and given the
plainly precatory and non-mandatory language of the
authority to reduce a sentence, it seems clear that §
3621(e) (2) (B) does not create any cognizable and
enforceable right to a sentence reduction. This
section of the statute clearly insulates the BOP's
regulatory enactments from judicial review under the
APA. The Court specifically criticized the reasoning
of both the Third and Ninth Circuits (Roussos and
Downey) and their analysis of the BOP ' s categorization
of offenses. On April 1, 1998, a letter was sent to
the U . S. Attorney's Office requesting they seek
pUblication of the decision.
FPC Alderson - Debbie Munson, Attorney, was recently
informed that lawsuits will soon be served challenging
the Bureau's new rule.
FCI Cumberland - Weeks v. Bidwell - This is the adverse
decision previously noted where a Judge voided Section
9 of P.S. 5162.02 (2-point enhancement disqualifies an
inmate from early release eligibility). We had until
April 25 to reevaluate Weeks' eligibility for early
release without consideration of the 2-point firearm

enhancement. As a result of that redetermination,
Weeks' transfer packet has been prepared and forwarded
to the CCC, and it is expected he will be released to
the halfway house on May 5, 1998, for completion of the
community transitional services phase of the drug
program.
FCI Cumberland - Frank v. Henry - This is another
habeas previously reported wherein the inmate
challenges his denial of early release based on a
2-point firearm enhancement. In light of the fact that
this case presents the same facts and is before the
same Judge who rendered the adverse decision in Weeks,
we have decided to follow the Weeks decision and
reevaluate Frank's eligibility for early release absent
the 2-point firearm enhancement. As a result of our
redetermination, Frank is now eligible for immediate
transfer to a halfway house, and the appropriate
contacts and paperwork have been prepared. The AUSA
will be filing documentation with the court stating our
concession.
SIGNIFICANT NEW CRIMINAL REFERRALS SINCE LAST MONTH'S
REPORT:
FCI Beckley - Aubrey Frett, Reg. No. 02463-094 and
James Howard, Reg. No. 40763-066 were involved in an
assault on another inmate. Both inmates had weapons in
their possession. The cases are expected to be
presented to the grand jury soon.
FCI Beckley - Anthony Suber, Reg. No. 64119-061 was
caught on tape receiving marijuana from a female
visitor. The inmate was dry-celled and three balloons
of marijuana were recovered. The female visitor used
another woman's identification to gain access to the
institution. Both cases are expected to be presented
to the grand jury soon.
FCI Elkton - Wilfredo Oyola-Diaz, Reg. No. 20734-050,
has been referred to the FBI and u.S. Attorney's Office
Criminal Division for possession of marijuana.
Institutional staff received a tip that inmate Diaz was
bringing in drugs after visits. A subsequent search of
his locker revealed two balloons containing marijuana.
Inmate Diaz was visiting at the time of the search and
was placed in a dry cell after the visit. The
following day inmate Diaz excreted four balloons
containing marijuana. The FBI has indicated that the
u.S. Attorney's Office may decline prosecution.
If
this occurs, Warden LaManna and Randy Smith, Paralegal,
are planning to call the Chief of the Criminal Division

to encourage prosecution.
UPDATE ON PREVIOUSLY REPORTED CRIMINAL MATTERS:
FCI Beckley - Roger McKenzie, Reg. No. 05233-088, pled
guilty to the charge of Possession of Contraband
(marijuana) on
April 11, 1998.
FCI Beckley - Jeffrey Levering, Reg. No. 03594-028,
pied guilty to the charge of Possession of Contraband
(a weapon) on April 20, 1998.
FCI Beckley - Brian Clarke, Reg. No. 12541-014 is
charged with Possession of Contraband (weapon). Trial
is scheduled to start May 12, 1998. He has indicated
that he will plead guilty.
FCI Beckley - Fred Brunet, Reg. No. 18375-018 is
charged with Possession of Contraband (marijuana,
heroin, pills). Trial is scheduled to start May 27,
1998. He has indicated that he will plead guilty.
FCI Manchester - Inmate Gammon, Reg. No. 03600-028,
entered a guilty plea under 18 USC § 1791 for
attempting to obtain a prohibited object (marijuana) into
FCI Manchester in violation of 21 USC § 802.
In
October 1997, inmate Gammon received an express mail
package marked "legal mail" containing the marijuana.
Staff discovered the attempted introduction through
phone monitoring procedures. Sentencing is scheduled
for July.
FCI Manchester - USA v. Clark - In this case involving
an inmate-on-inmate assault, the defendant alleges
racial discrimination in the manner such cases are
referred for prosecution. Accordingly, the defendant
sought discovery of incident reports, DHO decisions,
supporting memoranda, and policy regarding criminal
referrals. Responsive documents were provided to the
AUSA on April 30. Certain documents were sanitized and
a protective order will be sought to prevent the inmate
from possessing these documents in the institution.
FCI Elkton - The case of U.S. v. Dumersia is presently
scheduled for May 26, 1998. This is the case where an
inmate bit a staff member during efforts to restrain
the inmate and place him in cuffs.
SUCCESSFUL PROSECUTIONS OR ANY ACQUITTALS SINCE LAST
MONTH'S REPORT: None

REHABILITATION ACT: None
Ensign Amendment Cases: None
Dismissals Under PLRA:
USP Terre Haute - Shabazz v. Clark. et ale - This
Bivens action alleging mistreatment in violation of
plaintiff's federally protected rights was dismissed
without prejudice on March 26, 1998, for failure to
exhaust administrative remedies under 42 U.S.C. §
1997e(a) .

New Litigation Cases by Institution and Type
Received During the Month of April 1998

ALD

ASH

BEC

BUT

0
0
0
0
0

1
0
0
0
1

0
0
0
0
0

0
0
0
0
0

CUM

ELK

LEX

MAN

MEM

MIL

1
0
1
0
2

1
0
0
0
1

1
0
0
0
1

0
1
0
0
1

0
0
0
1
1

1
0
0
0

MR

*
BIV
FTCA
HC
OTH
TOT

1

0
0
0
0
0

* Represents both the Fel and LSCI
New Litigation Cases by Institution and Type
Received Calendar Year to Date
ALD

ASH

BEC

BUT

CUM

ELK.

LEX

*
BIV
FTCA
HC
OTH
TOT

0
0
0
0
0

1
0
0
0
1

0

0

-0
0
1
1

0
2
0
2

1
1
2
0
4

* BUT represents both the FCI and the LSCI
twice)

1
0
2
2
5

1
0
0
0
1

MAN
1
1.

1
0
3

MEM

MIL

0
0
2
1
3

2
1
3
0
6

.Corrected figure (case counted

MR

..
UNITED STATES GOVERNMENT

memorandum
DATE:

June 8, 1998Mid-Atlantic Regional Office, Annapolis Junction, MD 20701

AlTNOI':

Bill Burlington, Regional Counsel
Mid-Atlantic Region

SUBJECT:

May 1998 Monthly Report

REPLYTO

TO:

Wallace H. Cheney, General Counsel

ATfN:

Nancy Redding, Executive Assistant

ADMINISTRATIVE REMEDIES

JAN

FEB

MAR APR

MAY JUN

Received
Answered

135
143

187
181

229
178

168
174

TORT CLAIMS

JAN

FEB

MAR APR

MAY JUN

#
#
#
#
#

230
68
91
195
0

195
54
71
179
0

179
75
58
190
0

191
42
38
195
0

JAN

FEB

MAR APR

23
24
34
12
2*
* *One

24
12
23
54
54
36
41
53
42
23
24
18
0
0
4**
file requested from archives; another request archives sent wrong file.

Pending
Received
Answered
Pending
Over Six Month
~IVACY

13
Pending
43
Received
34
Answered
23
Pending
1
Over 20 Working Days
*File has been requested from archives.

#
#
#
#
#

FEB

160
201

190
62
60
191
0

MAR APR

MAY JUN

LITIGATION

JAN

MAY JUN

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)
'ected figures

338 331
329 314 273
7
11
16
16*
4*
4
7
4
3
6
1
5*
0*
6
5
1
2
0
1
2
1
2
0
1
3
14
19
21
62
28
331
329 314 273 261
15
12
14
8
13
2
2
1
4
0
1
2
0
1
2
$147.7 $52.0
o $13.9* $9.0

JUL

AUG SEP

OCT NOV DEC

JUL

AUG SEP

OCT NOV DEC

JUL

AUG SEP

OCT NOV DEC

JUL

AUG SEP

OCT NOV DEC

Page 2
MXR Monthly Report
ITEMS OF INTEREST, PERSONAL LEAVE, BUSINESS TRIPS, MOVES, ETC.
Bill Burlington, Regional Counsel, will be at the MOC LA for a
Legal Management Review June 1-4; and on annual leave
June 15-19.
Michelle Fuseyamore, Attorney, FCI Butner, will attend Public
Information Officer training at the MSTC June 1-5.
We welcome Betsy McCubrey, legal intern at FCC Butner, and
Shannon Cheek, paralegal intern at FCI Manchester. Betsy
comes to Butner from the University of North Carolina at
Chapel Hill and will be working there until August.
Shannon
is a paralegal studies major at Eastern Kentucky University
and will be with us until mid-August.
Kathy Smallwood, Paralegal, FCI Memphis and a member of the
Memphis Hostage Negotiation Team, is attending the Crisis
Management Training this week at FCI Beckley.
SITUATION OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS
WASTE SITES, ETC.:
FPC Seymour Johnson - We reported last month that we had
received an illegal court order to release this inmate to home
confinement. After BOP and the AUSA protested, the Judge
vacated the order and entered a strong recommendation for home
confinement. We will not comply with the recommendation, as
it would violate 18 USC 2634(c), which imposes a 10%
of-sentence-limit on the length of time one can spend in home
confinement.
FCI Butner - On May 12, 1998, FCI Butner received a Notice of
Violation from the North Carolina Dept. Of Health and Natural
Resources regarding alleged contamination of state waters, and
failure to obtain permits for modifications to our lift
station. Jeff Limjoco, Commercial Law Branch, worked with us
on this. The response to the Notice of Violation was
delivered on May 22, 1998.
FMC Lexington - United States v. White - On May 4, 1998, we
received an order from Judge Frederic Smalkin, District of
Maryland, that inmate White be permitted to have a word
processor while in prison. Apparently, inmate White was an
author prior to his conviction. While the order stated it was
entered with the consent of the Government, the Criminal AUSA
that prosecuted inmate White, agreed to approach Judge
Smalkin, and eventually, the order was rescinded.
However,
the Judge's order (1998 WL 246562) is extremely sarcastic,
stating that BOP "routinely ignores judicial sentencing
recommendations: and "BOP chose not only to ignore this Order,
but to contest it.
It has won. The Court gives up.- We plan
to write Judge Smalkin.

Page 3
MXR Monthly Report
FCI Petersburg - United States v. Wondree - On May 20, 1998,
Judge Merhige entered an illegal order directing BOP to place
inmate Wondree in home confinement for a period far in excess
of the 10% limit of 18 USC 3624(c). A letter has been written
to the court stating that the Order is contrary to federal
statutes, and asking that it be changed to a recommendation.
FCI Elkton - Randy Smith, Paralegal, was invited by the U.S.
Attorney's Office in Cleveland to attend a conference June 10,
1998, that the Chiefs and Deputy Chiefs of the Criminal
Division within the Sixth Circuit will be attending. He will
be discussing civil and criminal issues facing the BOP.
FCI Manchester - On May 27, 1998, Judge James P. Jones and
Magistrate Judge Pamela M. Sargent of the Western District of
Virginia, along with a member of their staff and four U.S.
Probation Officers toured the institution and had discussions
with the Warden, Executive Staff, CMC and paralegal. Both
judges are new to the bench and wanted to familiarize
themselves with the BOP and the institutions holding numerous
defendants appearing before them. They expect to handle at
least some of the case load for our new facility in Lee
County. They also plan to visit Lexington, Ashland, Beckley
and Alderson.
Pr~soner

Litigation Reform Act: None

USP Terre Haute - Bates v. Clark - On May 22, 1998, we
received an order from the Northern District of Illinois,
ordering Warden Clark to withdraw funds from Thomas Bates'
(plaintiff in the underlying suit) trust fund account, despite
his refusal to sign the withdrawal authorization. The Court
cited Newlin v. Helman, 123 F.3d 429 (7th Cir. 1997) for the
proposition that under the PLRA, an inmate impliedly consents
to a withdrawal of money to pay the full filing fee, by the
simple act of filing his complaint or appeal. The Court
rejected Warden Clark's position that as Trustee, we still
need a written consent from the inmate before we withdraw
funds.
Pursuant to the order, funds will be withdrawn from
the inmate's trust fund account.
SUBSTANTIVE PLEADINGS (COMPLAINT, MOTION FOR SUMMARY JUDGMENT,
ETC.): None
SETTLEMENTS:
FCI Milan - Miller v. U.S. - Plaintiffs Shantel Miller and
Ryanesha Swims, a minor child, filed this complaint after
denial of their administrative claim (sum certain $250,000).
It was determined to be in the best interests of the
government to settle the case for $1,500. The plaintiffs were

Page 4
MXR Monthly Report
at FDC Milan for a social visit when the seven year old
plaintiff's finger received a 3-cm laceration to her thumb,
with a large amount of bleeding, when it was caught in the
lobby door. The case was settled for several reasons: child
and parent might be considered invitees under Michigan law;
the doors involved were glass and very heavy which causes them
to swing shut quickly; the chairs are positioned in the
visiting room in such a way that the mother's view of the
child playing with the door was obscured; under Michigan law
negligence cannot be imputed to the parent; and under Michigan
law a child under the .age of seven cannot be found
contributorily negligent.
FCI Petersburg - Jenkins v. u.s. - This is the FTCA case
brought by the estate of a deceased former FCl Petersburg
inmate who was scalded and stabbed by a former correctional
officer at that facility (who was then convicted of assault) ..
The case was settled for $7,500 and the settlement release has
been written very broadly to put an end to any further
litigation over this incident.
FCI Memphis - Martin, et ale v. Hawk, et ale - As previously
reported, we were able to convert this Bivens suit to an FTCA
claim and settle administratively for $12,000($4,000 to each
of three claimants). On April 13, 1998, the Judge signed the
Order of Dismissal (with prejudice). On May 1, 1998, we
received a copy of plaintiff's Motion to Set Aside Judgment.
Plaintiffs argued that at the time of settlement their request
for attorney's fees arising from a discovery dispute was still
pending. They asked the Court to set aside the judgment and
affirm the Magistrate's Order for Attorney's' Fees prior to
entry of any final judgment. On May 11, 1998, the Court
denied plaintiffs' Motion stating the plaintiffs failed to
raise their issues during the pendency of the settlement
negotiations and in fact informed the court the case had been
settled.
ADVERSE DECISIONS OR SIGNIFICANT DECISIONS:
FMC Lexington - Kevin Jones v. J. T. Holland, et ale - Even
though Judge wilhoit dismissed the action with prejudice, the
order did state that he (Judge Wilhoit) had determined at the
April 10, 1998, preliminary injunction hearing that the
defendants were deliberately indifferent to plaintiff's
serious medical needs because the cause of the blood in
plaintiff's urine had not been discovered and properly
addressed. However, the Court dismissed the action in its
entirety, since plaintiff received the relief he requested, to
be seen by an outside urologist and obtain "some type of
relief." wilhoit made these factual findings based upon a
preliminary injunction h~aring, before the defendants could
brief the issues with a Motion to Dismiss. The Court treated
this case like a Bivens even though the plaintiff only sought

..

Page 5
MXR Monthly Report
injunctive relief.
UPDATE ON CASES, TRIALS OR HEARINGS, ETC. NOTED IN PRIOR
REPORTS:
FMC Lexington - Joe Tang, Attorney, is coordinating monthly
meetings with inmate Dumphord, former plaintiff in the Bivens
case where a settlement agreement was reached. Joe, a member
of Dumphord's unit team, a work detail supervisor, and at
least one medical administration staff member meet with
Dumphord in Health Services to briefly discuss any concerns he
might have and anything which may impact the settlement
agreement. These meetings are held to proactively discover
issues which may threaten the settlement agreement, since
Dumphord is known not to aggressively voice his complaints to
staff. During the first meeting at the end of April, Dumphord
said everything was great, his work, medical care, etc. He
did raise some vague issues at his second meeting which staff
will explore further.
REPRESENTATION NOT RECOMMENDED FOR STAFF: None
SIGNIFICANT FTCA CLAIMS: None
MEDICAL MALPRACTICE CASES UPDATE:
FMC Lexington - Turner v. Ramirez, et al. - This Bivens case
makes a number of allegations of inadequate medical care, in
particular he alleges failure to properly treat his back
condition and back pain. The response is due in June.
FMC Lexington - Gravenmier v. Holland, et al. - Bivens action
where plaintiff alleges he has been deprived of adequate pain
medication for his back condition. Although the complaint was
filed as a Motion seeking injunctive relief, Judge Forester
screened the case and let it go forth as a Bivens action
against individual defendants. The response is due in July.
SIGNIFICANT ADMINISTRATIVE REMEDIES:
FCI Butner - Inmate Anderson Terry filed an administrative
remedy claiming that his HIV status was erroneously released
to another inmate by a member of the medical staff. The
medical staff called for inmate UTerry," and another inmate
with the same last name responded. The doctor proceeded to
discuss HIV medication with this inmate and then realized it
was the wrong UTerry." The doctor attempted remedial measures
by not calling the correct Terry for another hour, and then
calling him only by his first name. The administrative remedy
was written in the format of a court complaint, and we expect
that it will be filed.

Q

Page 6
MXR Monthly Report
FCI Milan - FCI Milan received a challenge to the Common Fare
pilot program via an administrative remedy filed by inmate
Peoples at the FDC. Peoples requested Common Fare program,
but cited only health reasons for his placement into the
program. He was denied entrance to the program, and the
remedy response reflects this denial was based upon health
reasons.
NEW RFRA CASES AND UPDATES ON PREVIOUSLY REPORTED CASES: None
FCI Ashland - Zayid v. Noe - On M~y 12, 1998, we received a
favorable R&R which found that Father Noe, a Bivens defendant,
did not violate inmate Zayid's right to practice his religion
when he did not give the inmate a day off work on the October
1996, Day of Atonement. Unfortunately, Zayid had stated in
his complaint that the City of Boerne decision ruled RFRA was
unconstitutional. The court cited Boerne and held that RFRA
does not now apply in the context of actions taken by the
Federal government. We will file objections pointing out that
we believe RFRA is still the applicable standard for claims
against the Federal government. The Magistrate also .followed
the Garrett v. Hawk decision that exhaustion was not required
in a Bivens suit, as the BOP Administrative Remedy system does
not provide monetary relief. We will also object to this
portion of the rUling.
ALTERNATIVE DISPUTE RESOLUTION EFFORTS: None
18 U.S.C. § 3621(e) LITIGATION:
After review by Nimish Patel, we have circulated a sample
motion for MXR staff to use in defending suits which attack
early release decisions under the Categorization of Offenses
Program Statement. This motion was originally drafted by
Debbie Munson.
FPC Alderson - Waddell v. Hemingway - This Alderson inmate
completed a residential drug treatment program on January 20,
1995, prior to the BOP establishing any criteria to implement
the new early release provision. Under OM 017-95 a conviction
for armed bank robbery was identified as a crime of violence,
and a conviction for unarmed was identified as a offense that
may be a crime of violence, depending· on the specific offense
characteristic assigned. Based on Waddell's J&C, which at
that time indicated she was convicted of both armed and
unarmed robbery, she was declared ineligible.
In April 1996,
CN-01.toP.S. 5162.02 was issued indicating a conviction for

Page 7
MXR Monthly Report
unarmed bank robbery was to be considered a crime of violence
in all cases. Later, Waddell's J&C was amended to reflect a
conviction of unarmed bank robbery only. Upon re-evaluation
Waddell was still found ineligible based on the unarmed bank
robbery. Waddell argues that the BOP has exceeded the scope
of its authority and has retroactively applied CN-Ol to deny
her eligibility. She contends she would have been eligible in
June of 1995 but for the erroneous J&C. A motion for summary
judgment/motion to dismiss has been filed.
FCI Milan - Rhodes v. Pontesso - This habeas petition
challenged the denial of eligibility for one year off under
RDAP based on his 922(g) conviction. On May 4, 1998, we
received notice the Court had adopted the 5th Circuit's
position in Venegas v. Henman and denied the petition.
FCI Milan - Scott v. Pontesso - Inmate alleges BOP's inclusion
of previous convictions as a basis for non-eligibility for the
one year off provisions of RDAP, is not .a permissible .
interpretation of the statute. On May 4, 1998, we received
notice the Court adopted the R&R and denied/dismissed the
petition.
FCI Milan - Kienlen v. Scibana - Inmate alleges denial of one
year of"f under RDAP improper based on previous state .
misdemeanor conviction for negligent homicide. BOP revisited
their decision and granted inmate eligibility for one year
off. We received notice on May 4, 1998, that the Court had
dismissed the action as moot.
FCI Cumberland - Jones v. Henry, et al - Petitioner challenges
the denial of early release under §3261(e). This denial was
based on the inmate's current conviction of 18 U.S.C. §
924(c), Use of a Firearm During a Drug Trafficking Crime.
SIGNIFICANT NEW CRIMINAL REFERRALS SINCE LAST MONTH'S REPORT:
FCI Elkton - On May 21, 1998, inmate Ernest Gaines, Reg. No.
36363-060, stole a 1997 Ford F-150 government vehicle and left
prison property. Inmate Gaines was assigned to the Camp and
worked on the landscape detail. The USMS apprehended Gaines
at his wife's house in Akron, Ohio, approximately 60 miles
from FCI Elkton. The government vehicle was found nearby in a
garage. The USMS and FBI are cohducting a joint
investigation. The U.S. Attorney's Office plans to present
the case to the Grand Jury in late June.
UPDATE ON PREVIOUSLY REPORTED CRIMINAL MATTERS:
FPC Lexington - Inmate Kimberly Lynn Osborne, pled guilty to
fraudulent use of a social security number. Osborne was
attempting to obtain financial aid money from the University

.

.
Page 8
MXR Monthly Report
of Kentucky using a false social
scheduled to be sentenced before
1998. Lexington staff screening
scam" and referred the matte.r to

security number. She is
Judge Wilhoit on August 7,
Osborne's mail discovered her"
law enforcement authorities.

FCI Elkton - u.S. v. Dumersia has been rescheduled for
August 24, 1998. This is the case where the inmate bit a staff
member during efforts to restrain the inmate.
FCI Elkton ~ Last month we reported that inmate Wilfredo
Oyola-Diaz had been referred to the FBI and u.S. Attorney's
Office for possession of marijuana.
Inmate Oyola-Diaz was
caught bringing in drugs through the visiting room. The FBI
had indicated that the u.S. Attorney's Office may decline
prosecution. However, when Elkton staff suggested they would
contact the u.S. Attorney's Office to encourage prosecution,
the FBI stated they would do a follow-up by having an agent
contact the spouse in New Jersey and question her regarding
her involvement (she was the only visitor he had prior to
being placed in dry cell status). We are monitoring this
case.
FCI Beckley - The following inmates are scheduled for
sentencing as indicated: Jeffrey Levering, June 15, 1998,
Possession of Contraband (a weapon); Roger McKenzie, June 29,
1998, Possession of Contraband (marijuana); Fred Brunet,
July 24, 1998, Possession of Contraband (marijuana, heroin,
pills); and Brian Clarke, August 10, 1998, Possession of
Contraband (a weapon) .
FCI Beckley - Jamel Wingate was sentenced in May to 24 months
consecutive for Possession of Contraband (a weapon) .
FCI Beckley - Anthony Suber was indicted on May 28, 1998. He
was caught on tape receiving marijuana from a female visitor.
The inmate was dry-celled and three balloons of marijuana were
recovered.
SUCCESSFUL PROSECUTIONS OR ANY ACQUITTALS SINCE LAST MONTH'S
REPORT: None
REHABILITATION ACT: None
Ensign Amendment Cases: None
Dismissals Under PLRA:
FCI Memphis - Thomas v. Luttrell - Plaintiff sued Warden

Page 9
MXR Monthly Report
Luttrell and Officer Roby under Bivens alleging that among
other issues, the officer verbally threatened to sexually
abuse the inmate.
Inmate exhausted his administrative
remedies with regard to some, but not all, of the claims.
However, the court found that verbal harassment and verbal
abuse alone do not support liability under Bivens and
therefore dismissed the associated claims as frivolous.
The
other claims were dismissed for failure to exhaust.
Interestingly, the court screened the claims altho~gh it found
that plaintiff had not paid any filing fees and that he failed
to submit an in forma,pauperis affidavit or a trust fund
account statement.
In addition to its order of dismissal, the
court also ordered plaintiff to submit the forms and to pay
the filing fees.

..

Page 10

MXR Monthly Report
New Litigation Cases by Institution and Type
Received During the Month of May 1998

ALD

ASH

BEC

0
0
0
0
0

0
0

0
0

BIV
FTCA
HC
OTH
TOT

BUT*
1

CUM
1

1

1

0

0

0
0
0

1

1

1

0

ELK
1

LEX

MAN

2
0
0
0
2

0
0
0

0
0
0

0
2
3

1

MEM
1

MIL

MRG

PET

SEY

THA

TOT

0

0
0
2

0
2

0
0
0
0
0

0
0
0
0
0

0
0
0
0
0

5
2

1

1
1

0
0
2
0
2

1
1

6

3
16

*Represents both the FCI and LSCI

New Litigation Cases by Institution and Type
Received Calendar Year to Date
ALD
BIV.
FTCA
HC
OTH
TOT

0
0
0
0
0

ASH

BEC

1

0
0

0
1

0
2

1
1

2

BUT
*
1

CUM

ELK.

LEX

MAN

MEM

MIL

MRG.

PET

SEY

THA

TOT

1

2
2
2

2
0
2
2

1
1
1
1

0
3

1
1

17
6

1

1

4
0

24

5

0
3

0

4

2
0
2
0
4

0
0

6

2
2
4
0
8

2
0

7

3
0
0
0
3

1

0
2
0
3

1

6

54

*BUT represents both the FCI and the LSCI

1

.Corrected figure (case counted twice)

7

I
I

j

..
UNITED STATES GOVERNMENT

memorandum
DATE:

July 13, 1998Mid-Atlantic Regional Office, Annapolis Junction, MD 20701

ATTN OF:

Bill Burlington, Regional Counsel
Mid-Atlantic Region

SUBJECT:

June 1998 Monthly Report

REPLY TO

TO:

ATTN:

Wallace H. Cheney, General Counsel
Amy Whalen Risley, Executive Assistant

ADMINISTRATIVE REMEDIES

JAN

FEB

MAR APR

MAY JUN

Received
Answered

135
143

187
181

229
178

168
174

TORT CLAIMS

JAN

FEB

MAR APR

MAY JUN

230
68
91
195
0

195
54
71
179
0

179
75
58
190
0

191
42
38
195
0

JAN

FEB

MAR APR

#
#
#
#
#

..

Pending
Received
Answered
Pending
Over Six Month

"'RIVACY

13
# rending
43
# Received
34
# Answered
23
# Pending
1
# Over 20 Working Days
*File has been requested from archives.

23
24
34
12
2*
* *One

FEB

160
201

190
62
60
191
0

LITIGATION

JAN

MAR APR

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

329 314 273
338 331
11
7
16*
4*
16
4
4
7
3
6
1
5*
0*
6
5
1
1
2
2
0
1
1
2
3
0
14
19
21
62
28
329 314 273 261
331
15
12
14
13
8
2
2
4
0
1
2
1
2
0
$147.7 $52.0
o $13.9* $9.0

AUG SEP

OCT NOV DEC

JUL

AUG SEP

OCT NOV DEC

JUL

AUG SEP

OCT NOV DEC

200
194

195
49
83
154
1

MAY JUN

12
24
23
54
54
36
41
42
53
23
24
18
0
0
4* *
file requested from

JUL

18
47
32
35
2*
archives; another request archives sent wrong file.

MAY JUN
261
13
7
5
1
0
12
261
21
0
0
0

JUL

AUG SEP

OCT NOV DEC

Page 2
MXR Monthly Report
ITEMS OF INTEREST, PERSONAL LEAVE, BUSINESS TRIPS, MOVES, ETC.
Bill Burlington, Regional Counsel, was in the Regional Office
June 30-July 2, 1998, and will be attending the National Legal
Meeting July 26-July 31.
This month we welcome Vickie Petricka, Paralegal Trainee, to
the Regional Office. Vickie comes to us from FCI Phoenix,
where she was the Unit Secretary in the WITSEC Unit. We also
learned this month that Diane Gossman, Legal Instruments
Examiner (LIE), has been selected as LIE at USP Terre Haute.
Diane should report to Terre Haute on August 30th. We will
all miss Diane, as she has done an outstanding job for us.
We bid a fond farewell to Lynn Bouchillon, Paralegal, FCI
Milan. After over seven years of service at Milan, Lynn will
be reporting to FLETC as an Attorney-Advisor. Best of luck to
Lynn and his family.
Congratulations to Milt Williams, Paralegal, FCI Petersburg,
for his selection as Employee of the Year at that institution.
Milt will be on annual leave July 12-18, 1998.
Joe Tang, Attorney, FMC Lexington, acted as host for the guest
speaker for the Asian-Pacific Heritage Month celebration. The
guest speaker was Frank Woo, Lexington-area Chinese-American
businessman who recently made national headlines after being
refused entry into China because of his dissident activities.
Mr. Woo's presentation on the differences between the
governments and penal systems in the U.s. and China was well
received.
Debbie Munson, Attorney, FCI Beckley, will be on annual leave
July 20-24. On June 16, 1998, Debbie delivered a presentation
to the Community Relations Board regarding the role of an
institution attorney· and the types of legal issues that relate
to the management of a correctional facility.
Teresa Marvel, Paralegal, USP Terre Haute, will be on annual
leave July 12-18, 1998.
SITUATION OF INTEREST, CONTACT' WITH FEDERAL BENCH, HAZARDOUS
WASTE SITES, ETC.:
Judge Payne: E.D. Va. - In a criminal case, Richmond AUSA Joan
Evans stated that she was before Judge Payne on a sentencing
matter. The inmate to be sentenced had a drug problem, and
Judge Payne stated in open court that his experience was the
BOP rarely followed his recommendations. He then asked for a
copy of the BOP's report to Congress on 18 USC § 3621, which
we provided. Apparently, Judge Payne wants to see what
resources we have before he enters a recommendation. This is
the fourth Judge (others include Judge Forrester, Lexington;

..
Page 3
MXR Monthly Report
Judge Smalkin, Baltimore; Judge Mullin, Charlotte) to recently
express their opinion that the BOP regularly disregards their
recommendations at the time of sentencing.
FCl Cumberland - Bill Burlington and Carolyn Lanphear,
Paralegal, Fcr Cumberland, attended an exploratory meeting
between the u.s. Attorney's office for the District of
Maryland, and various federal agencies on July 1, 1998.
.
Various issues were discussed on how to improve the efficiency
of handling cases and the relationship between the u.s.
Attorney's Office and other agencies. Another meeting is
tentatively scheduled for September.
FCl Butner - On June 11, 1998, FCr Butner received a Notice
of Violation from the North Carolina Department of Health and
Natural Resources regarding late filing of quarterly reports
for our air permit.
(The permit was issued in September of
1997; we have had two quarterly reports become due, which were
filed late.)
The notice requested an explanation as to how we
would prevent late filings in the future.
The institution
responded that the due dates for the report would be loaded
into our time management system to ensure timely reporting in
the future.
Last month we reported a NOV from the same state agency on the
lift station and alleged contamination of the wetland. We
have not yet received any comment or decision on the response
which we submitted to the state agency. However, we have
received an evaluation of the lift station containment area
from an engineering firm.
The evaluation concluded the
containment area was sufficiently above bedrock, but that the
soil needs to be compacted to be in compliance with state
regulations.
FCl Beckley - Law Clerks from the Southern District of W.Va.
toured the facility on June 25, 1998. After a four-hour
comprehensive tour, the Law Clerks departed the facility with
a very different picture of the institution than that painted
by inmates. An invitation has been extended to the Judges to
also tour the facility.
FCl Memphis - With the assistance of the Cecil C. Humphreys
School of Law at the University of Memphis, the Legal Office
has arranged an institution tour for participants of the
Tennessee Prelaw Fellowship Program. This program was
designed to attract African-American, Tennessee resident
college students to consider applying for admission to the two
state law schools.

Page 4
MXR Monthly Report
Prisoner Litigation Refor.m Act:
FMC Lexington - Jones v. Holland - We have forwarded an appeal
recommendation in this case, where during a Preliminary
Injunction hearing, Judge Wilhoit found we violated the 8th
Amendment by refusing to adequately investigate an inmate's
complaint that he had blood in his urine. Aside from
contesting this factual finding, we are recommending that we
appeal the court's failure to require exhaustion of
administrative remedies in this Bivens case. The Sixth
Circuit now has two published decision requiring inmates to
exhaust in 1983 cases, Brown v. Toombs, 1998 WL 136185 (6th
Cir. 1998) and White v. McGinnis, 131 F.3d 583 (6th Cir.
'1997). Unfortunately, neither decision addresses the claim
that monetary relief was not available in the state system.
SUBSTANTIVE PLEADINGS (COMPLAINT, MOTION FOR SUMMARY JUDGMENT,
ETC.): None
SETTLEMENTS: None
ADVERSE DECISIONS OR SIGNIFICANT DECISIONS:
FMC Lexington - Reed v. Reno - On June 8th, the Sixth Circuit
ruled that the Bureau's mandatory age requirement for primary
law enforcement positions did not violate the Age
Discrimination in Employment Act, 29 U.S.C. 633a, or the
Veterans Preference Act. This opinion is the first published
opinion which approves of the Bureau's policy since the
initiation of FERS in 1986. This is a major victory for the
BOP. We do not expect it to be appealed.
LSCI Butner - Hamrick v. Lappin - In an unpublished decision,
the District Court held that the Bureau of Prisons may not use
a two point enhancement to make the inmate ineligible for
early release. The court dismissed the complaint, but
remanded it to the Bureau to redetermine the inmate's
eligibility without taking the two point enhancement into
account.
(Note: the inmate is scheduled to be released in the
year 2004.)
FCI Petersburg - Goodard v. Dewalt - On June 11, 1998, Judge
Leonie M. Brinkema issued an order granting this habeas
petition on the issue of using a 2-point enhancement for
determining early release under § 3621(e). The government had
requested that the court delay their ruling on the issue
pending a decision by the Fourth Circuit in the Pelissero
case. However, the court ruled that the issue of a 2-point
enhancement for a firearm has been resolved in this circuit in
the case of Fuller v. Moore, 97-6390, 1997 WL 791681 (4th Cir.
December 29, 1997). The court went on to grant Goddard's
petition remanding the case to the BOP to review his

.

.
. Page 5
MXR Monthly Report
eligibility pursuant to the opinion. The court declined to
order his release noting it was left to the discretion of the
BOP. Goddard has an INS detainer, but qualified for the
exception to policy and was subsequently granted an early
release to the INS detainer after review by the Central
Office.
UPDATE ON CASES, TRIAL.S OR HEARINGS, ETC. NOTED IN PRIOR
REPORTS:

FCI Morgantown - Rosenbaum v. Sihar et al - This is a mixed
Bivens/FTCA case with 'several issues, but primarily involving
medical care at FCI Morgantown. A status conference was held
by the Judge on Thursday, July 2, 1998, via te~ephone. During
this conference, the Judge informed the plaintiff that the
Director is an improper defendant in an FTCA claim.
She
advised plaintiff's counsel to file an amended complaint
against the U.S. Regarding the Bivens claim, the Judge
e~ressed concern over whether the plaintiff had a meritorious
claim. The judge was of the opinion that the plaintiff's
Bivens claims lacked specificity and appeared quite weak.
Once the amended complaint is filed and properly served, we
will have thirty days in which to respond. We are working
with the Litigat,ion Branch on the issue of service regarding
Director Hawk Sawyer since it appears she was only named as a
defendant in the FTCA portion of the case.
FCI Petersburg - U.S. v. Wondree - On June 8, 1998, Judge
Merhige issued an order vacating his illegal order of May 20,
1998, which directed the BOP to place inmate Wondree on home
confinement for the remainder of his sentence. He changed the
order to make it a recommendation.

FCI Petersburg - Platshorn v. Hahn - This government filed its
appellee's brief in the Fourth Circuit in this sentence
computation case on June 19, 1998. Platshorn is now
represented pro bono by the law firm Morgan, Lewis and Bockius
LLP, who were the attorneys in the Chatman-Bey case.
Essentially, Platshorn seeks to have the order of his sentence
reversed so that he may serve the non-parolable sentence
first.
They essentially argue that under the aggregation
principles of 18 U.S.C. § 4161, once aggregated, sentences may
not become deaggregated for any reason. They suggest that if
computed with the non-parolable sentence first, then Platshorn
would be eligible for release on the consecutive parolable
sentence after he reached the mandatory release date on the
non-parolable sentence. They seek to have time served on a
non-parolable sentence count toward parole eligibility on a
consecutive parolable sentence. The government argued that

.

Page 6
MXR Monthly Report
Platshorn is not entitled to the requested relief as the
method computed by BOP with parolable sentence first, he has
received the earliest possible parole of 10 years; and he is
only serving the 33 non-parolable sentence and is earning the
maximum rate of SGT permitted by law on this sentence. The
government also argued that oral argument should not be
necessary in this case.
REPRESENTATION NOT RECOMMENDED FOR STAFF:
We had an interesting representation issue, where an
institution staff psychologist had been reported to a state
licensing agency by another staff member. We called Paul
Brown, as the employee asked that he be represented before the
board by a government attorney, since the complaint arose from
his activities as a BOP employee.
Paul Brown stated that the
employee could request representation, and that it seems
likely he would be represented by a DOJ attorney.
It would
seem this same rationale should apply to cases where an inmate
files a complaint with a state licensing agency, an
unfortunate, but rather common occurrence.
SIGNIFICANT FTCA CLAIMS:
FCI Cumberland - T-BOP-98-044 - This claim for $1 million was
filed for former inmate James Habron, Reg. No. 18656-083, by
his attorney.
The claim alleges the BOP's failure to properly
diagnose and treatment claimant's eye infection lead to "
effecti ve loss of vision in his right eye.
The medical
records show that claimant was seen numerous times by
Cumberland medical staff beginning December 9, 1996. A
consultant ophthalmologist was contacted via telephone for
advice and the inmate was ultimately referred to the
ophthalmologist who saw claimant on January 6, 1997.
The
claimant was followed by the outside ophthalmologist until his
transfer from Cumberland to a halfway house on June 10, 1997.
Claimant was instructed by the outside ophthalmologist that he
should follow-up with his own ophthalmologist upon release.
Since claimant's release he has only sought care from an
optometrist not an ophthalmologist. We have forwarded the
case to Dr. Duggirala for review. Dr. Duggirala has agreed to
have the case reviewed by a ophthalmologist who teaches at
Temple Medical School, has his own private practice, and would
be willing to testify as an expert witness.
This will be more
economical than utilizing AFIP and will also provide us an
expert witness if needed.
II

MEDICAL MALPRACTICE CASES UPDATE:
FMC Lexington - Qureshi v. BOP, et al. - This Bivens case was
filed against several Lexington medical staff alleging 8th
Amendment violations regarding being denied necessary
consultations, treatment and drugs (Percocet) for his

Page 7
MXR Monthly Report
neurological condition. The case was dismissed by order of
Judge Wilhoit dated June 5, 1998.
FMC Lexington - Turner v. Ramirez. et al. - This Bivens case
raised numerous allegations of inadequate medical care by
defendants at Fcr Greenville, FMC Fort Worth and FMC
Lexington. Our response is due in July.
FMC Lexington - Walls v. Holland. et al. - This Bivens action
alleges general improper treatment and conditions for his
medical care and confiscation of his seizure medications in
violation of his rights under the 8th Amendment. The response
is due in August.
SIGNIFICANT ADMINISTRATIVE REMEDIES:
FCI Milan - A BP-9 was filed by inmate Chase on June 15, 1998,
challenging his removal from the common fare pilot program.
The institution has proposed a response that the inmate was
removed because they feel his request for common fare is based
more on a dietary concern than a religious one.
The draft
response is currently being reviewed by the Regional Counsel's
office.
NEW RFRA CASES AND UPDATES ON PREVIOUSLY REPORTED CASES:
FCI Beckley - Perkins v. Barnard - This is a Bivens suit
alleging a pat search by a female officer violated the
inmate's constitutional rights. The inmate did not allege a
violation of RFRA. A Motion to Dismiss was filed in November
and the Magistrate has recommended our Motion be granted.
FCI Petersburg - Norton. et al. V. USA. et al. - This
previously reported Bivens/Civil rights case complaining about
exercise of their religion to practice the Asatru religion at
FPC Petersburg was dismissed without prejudice under Rule
41(a) (1), F.R.Civ.P. on May 13, 1998, although a fax copy of
the dismissal was not received until June 18, 1998. The
inmate had complained that the government, and the Chaplain in
particular, purposely delayed approving the practice of the
Asatru .religion at the camp. The religion was subsequently
approved for group practice at the camp and religious
materials were purchased for the group. The inmate plaintiffs
subsequently filed a motion requesting that the action be
dismissed, although stating they still believed their
constitutional rights had been violated. As a result of this
case the Warden established a local religious issues committee
at Petersburg consisting of the AW(P); Captain, Chaplains, and
Paralegal.
ALTERNATIVE DISPUTE RESOLUTION EFFORTS: None

It

Page 8
MXR Monthly Report
18 U.S.C. § 3621(e) LITIGATION:
LSCI Butner - Hamrick v. Lappin - and FCI Petersburg Goddard v. Dewalt - refer to write-up under section entitled
Adverse Decisions or Significant Decisions."

II

FCI Cumberland - Snyder v. Henry, et al. - Petitioner
challenges the denial of early release under § 3621(e},
pursuant to P.S. 5162.02., § 9. The inmate received a
two-point enhancement for possession of weapons during a drug
offense.
FCI Cumberland - Wooding v. Henry, et al. - Petitioner
challenges the denial of early release under 3621(e}, pursuant
to P.S. 5162.02, § 9. The inmate received a two-point.
enhancement for possession of a firearm during a drug offense.
FCI Cumberland - Davis v. Henry, et al. - Petitioner
challenges the denial of early release under § 3621(e},
pursuant to P.S. 5162.02, § 9. The inmate received a
two-point enhancement for possession of a firearm during a
drug offense.
.
All three of these inmates are using the Fuller v. Moore
(unpublished decision out of FCI Petersburg) and Weeks v.
Bidwell (District Court decision from Maryland) as support for
their petitions.
SIGNIFICANT NEW CRIMINAL REFERRALS SINCE LAST MONTH'S REPORT:
FCI Beckley - Roger McKenzie, Reg. No. 05233-088, was
sentenced on June 29, 1998, .for Possessing Contraband
(Marijuana) to a 9-month consecutive term of imprisonment.
FCI Beckley - Jeffrey Levering, Reg. No. 03594-028, was
sentenced on June 30, 1998, to a 30-month consecutive term of
imprisonment for Possession of Contraband (a weapon). The
Judge applauded the Government and the BOP for their efforts
to keep control over the facility by bringing such charges and
prosecuting these types of cases. The inmate responded to the
Judge-by stating that the fact .that he was convicted for
having a weapon has had a deep impact at the institution.
FCI Memphis - Legal staff at the institution have been advised
by the Criminal Division, Western District of Tennessee, that
they will take a satellite camp escape case to the Grand Jury
in July.
Inmate Borteous Bosley, Reg. No. 15182-076, escaped

Page 9
MXR Monthly Report
from the camp on August 1, 1997, and has been housed in SHU
since his return to custody on August 5, 1997.
SUCCESSFUL PROSECUTIONS OR ANY ACQUITTALS SINCE LAST MONTH'S
REPORT: None
REHABILITATION ACT: None
Ensign Amendment Cases: None
Dismissals Under PLRA:
FCI Milan - Harris, et al. v. Pontesso - we received a
favorable R&R in this Bivens case recommending dismissing this
action based on failure to exhaust pursuant to the PLRA.
FCI Milan - Bonner v. Pontesso - We received an order dated
June 5, 1998, dismissing defendants Elliott and Burget under
PLRA pursuant to the Court's review of our Waiver of Reply.
An R&R dated June 16, 1998, recommends dismissal of defendants
Grayer, Leonard, Lawless, Pontesso, Serrano, Brown and Zych,
pursuant to 42 U.S.C. 1997(e) (g), based on the Waiver of Reply
filed.
Only two defendants remain, if the Court adopts this
R&R.

..

Page 10

MXR Monthly Report
New Litigation Cases by Institution and Type
Received During the Month of June 1998

BIV
FTCA
HC'
OTH
TOT

ALD
0
0
0
0
0

ASH
0
0
0
0
0

BEC
0
0
0
0
0

BUT*
0
0
1
0
1

CUM
0
0

2
0
2

ELK
0
0
0
0
0

LEX
3
0
0
0
3

MAN
0
1
0
0
1

MEM
0
0
0
0
0

MIL
0
0

2
0
2

MRG
0
0
0
0
0

PET
0
0
1
0
1

SEY
0
0
0
0
0

THA

TOT

2
0
1
0
3

5
1
7
0
13

*Represents both the FCI and LSCI
New Litigation Cases by Institution and Type
Received Calendar Year to Date

BIV
FTCA
HC
OTH
TOT

ALD+
0
0
1
0
1

ASH
1
0
1
0

2

BEC.
0
0
0
1
1

BUP
1
0
3
0
4

*BUT represents both the FCI and the LSCI
ALD.

CUM
1

2
4
2
9

ELK.
2
0
2
2
6

LEX

6
0
0
0
6

MAN
1

2
1
1
5

MEM
1
0
3
1
5

.Corrected figure (case counted twice)

MIL

MRG •.

PET

2
2
6
0
10

2
0
2
0
4

2
0
2
0
4

SEY
0
0
1
0
1

THA
3
1
5
0
9

TOT

22
7
31
7
67

+Case counted for BEC should have been

.
UNITED STATES GOVERNMENT

memorandum
DATE:

August 7, 1998Mid-Atlantic Regional Office, Annapolis Junction, MD 20701

ATINOF:

Bill Burlington, Regional Counsel
Mid-Atlantic Region

·SIIRJECT:

July 1998 Monthly Report

REPLY TO

TO:

ATIN:

Wallace H. Cheney, General Counsel
Amy Whalen Risley, Executive Assistant

ADMINISTRATIVE REMEDIES

JAN

FEB

MAR APR

MAY JUN

JUL

Received
Answered

135
143

187
181

229
178

168
174

200
194

214
156

TORT CLAIMS

JAN

FEB

MAR APR

MAY JUN

JUL

230
68
91
195
0

195
54
71
179
0

179
75
58
190
0

191
42
38
195
0

195
49
83
154
1

154
45
67
138
0

JAN

FEB

MAR APR

MAY JUN

JUL

#
#
#
#
#

Pending
Received
Answered
Pending
Over Six Month
~IVACY

13
# Pending
43
# Received
34
# Answered
23
# Pending
1
# Over 20 Working Days
*File has been requested from archives.
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)
*,.. -rected figures

338
7
4
1
1

23
24
34
12
2*
* *One
FEB

160
201

190
62
60
191
0

24
12
23
54
54
36
41
42
53
18
23
24
4**
0
0
file requested from
MAR APR

SEP

OCT

NOV

DEC

AUG

SEP

OCT

NOV

DEC

AUG

SEP

OCT

NOV

DEC

18
35
47
52
32
57
35
30
2*
3*
archives; another request archives sent wrong file.

MAY JUN

331
329 314 273
11
16
16*
4*
4
7
3
6
5* 0*
6
5
2
2
0
2
0
1
3
14
19
21
62
28
331
329 314 273 261
15
12
14
13
8
2
2
4
0
1
2
1
0
2
$147.7 $52.0
o $13.9* $9.0

AUG

261
13
7
5
1
0
12
261
21
0
0
0

JUL
261
36
11
3
2
20
25
272
7
0
0
0

AUG

SEP

OCT

NOV

DEC

Page 2
MXR Monthly Report
ITEMS OF INTEREST, PERSONAL ,LEAVE, BUSINESS TRIPS, MOVES, ETC.
Bill Burlington, Regional Counsel, August 31-Sept. 2, 1998
will be at the MSTC Denver for Sentencing Training.
This month we welcome Alicia Daniels-Lewis to the Regional
Office, as our new Honors Attorney.
Alicia comes to us from
North Carolina Central University, in Durham.
Alicia, is
married and has a 12 year old son.
We look forward to Alicia
starting work with us on August 31, 1998.
We also bid a fond
adieu to Dave Recker, who will be moving in early September to
FCC Florence, Colorado.
Dave has done a great job during his
year with us, and will be missed by everyone. We wish Dave
the best of luck in his new challenging assignment.
Milt Williams, Paralegal, FC! Petersburg, and Randy Smith,
Paralegal, FC! Elkton, will attend the Sentence Computation
Training in Aurora August 31-September 2.
As of August 5, 1998, we bid farewell to Shannon Cheek, the
summer intern at FC! Manchester from Eastern Kentucky
University. We thank her for the excellent assistance she
provided.
SITUATION OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS
WASTE SITES, ETC.:
FCI Petersburg - Judge Robert Merhige, Federal District Judge,
Eastern District of Virginia, retired in June.
Robert Jaspen,
Chief of Civil for the E.D. of Virginia resigned from the U.S.
Attorney's Office to take a job in the Staff Attorney's Office
of the Fourth Circuit. During his approximately 23 years in
the U.S. Attorney's Office, Bob has handled numerous Fcr
Petersburg cases.
FMC Lexington - Joe Tang, Attorney, assisted with coordinating
a visit from the Chief of the Civil Division, E.D. Kentucky,
and two civil AUSAs. This visit was arranged to educate the
U. S. Attorney's staff about Lexington's medical services and
improving interoffice relations. Medical staff gave a
presentation on various aspects of the medical care provided
at Lexington. The visitors were also given a tour, along with
a question and answer session. The feedback from the visitors
was very positive, and both parties feel a similar tour can be
done in the future for pro se clerks, other u.S. Attorney's
office staff, etc.
FMC Lexington - On July 10, 1998, Judge Forester wrote a
letter to Warden Holland criticizing our use of a P.A. to
perform a routine physical on a pre-sentenced 18 U.S.C. § 3552
inmate Forester referred to Lexington for a medical and
psychological evaluation. Judge Forester was also critical of

..

Page 3
MXR Monthly Report
the fact the medical summary did not specify which doctors
reviewed x-rays and other test results. Judge Forester
concluded the letter stating if we do not have the proper
staffing to conduct these §3552 evaluations in the future, he
will no longer refer them to Lexington. The summary prepared
by staff was a standard summary which Judges have never
complained about in the past. Typically, Judges want a short
summary written for non-medical persons.
In response, Joe
Tang, Attorney, FMC Lexington, assisted in preparing a letter
to Judge Forester informing him that P.A.'s are qualified to
do routine physical exams and prepare evaluation summaries,
but his concerns were noted, and in the future Lexington would
have physicians review the findings and prepare the summaries.
We also provided Judge Forester with the more detailed
information he was seeking. Joe personally delivered the
letter to the Judge's law clerk. The law clerk, who leaves
this month, is apparently the one who has been "pushing" the
medical cases filed against the staff at FMC Lexington, as
well as the Dumphord case.
FOIA Appeal Decision - An inmate at Terre Haute filed a FOIA
request in early 1996 seeking a copy of his complete
psychology file.
Everything was released to him but what was
considered MMPI raw test data. He appealed that decision to
the regional office and we supported the withholding .. The
inmate appealed to OIP. OIP has been struggling with this
issue since October of 1996 mostly due to staff turnover. We
have had discussions with OIP staff on numerous occasions and
have provided them information from our Psychology
Administrator regarding Psychologist's Code of Ethics. This
month we received a copy of OIP's letter to the former inmate
which released the grid where the inmate filled in a circle to
represent his response to a question, but supported our
withholding of the actual MMPI raw test data. We are not sure
if it made a differ~nce in this case, but the inmate had been
provided with a written summary of the test results. We were
pleased to receive this favorable decision.
Prisoner Litigation Refor.m Act:
FMC Le~ington - Jones v. Holland - We have just received a
copy of the memo from the Civil Division, recommending
against an appeal in this case.
We still feel this case
should be appealed, as the procedure followed by the court in
this case represents the typical, current. practice in the
Eastern District of Kentucky--a practice that is at odds with
the clear mandate of the PLRA.
The U.S. Attorney and the
Civil Division concede the errors by the court, but recommend
against appeal based on the nominal award of attorneys fees.
We still feel this is an excellent opportunity to receive a
published. appellate court opinion in a BOP case requiring
exhaustion in a Bivens action under PLRA.

.

Page 4
MXR Monthly Report
SUBSTANTIVE PLEADINGS (COMPLAINT, MOTION FOR SUMMARY JUDGMENT,
ETC.): None
SETTLEMENTS: None
ADVERSE DECISIONS OR SIGNIFICANT DECISIONS:
FCI Memphis - Rowland v. US - After Rowland violated the terms
of his supervised release, the sentencing court imposed
second term of imprisonment. Upon completion of the second
term, the U.S. Parole Commission ~laimed that it also had
jurisdiction over Rowland and ordered him to serve yet another
term of imprisonment for the same violations. As a result,
Rowland brought a habeas corpus petition seeking his release.
The District Court granted the petition and the Government
appealed. On July 17, 1998, the Sixth Circuit affirmed the
District Court's decision in favor of Rowland.

a

UPDATE ON CASES, TRIALS OR HEARINGS, ETC. NOTED IN PRIOR
REPORTS:
FCI Petersburg - Bergquist v. US, et al. - In a court order
filed July 17, 1998, the government's Motion to Dismiss on
procedural grounds· (lack of formal service upon the U.S., and
statute of limitations for filing the complaint) was denied.
The court noted the pro se inmate complaint was received by
the court prior to the SOL, although not stamped as officially
filed until after the SOL. The court also noted because the
court was responsible for service, the lack of service
argument fails.
Bergquist is now represented by counsel. The
case involves allegations that medical staff's delay in
diagnosing plaintiff's colon cancer resulted in his having to
undergo extensive and painful chemotherapy. The AUSA will be
at Petersburg on August 12, 1998, to review the medical
operation and speak to medical staff prior to obtaining an
expert witness.
She will interview the former medical officer
on August 13.
FCI Petersburg - Platshorn v. Hahn - The saga continues with
this sentence computation case involving the issue of
aggregation of parolable and non-parolable sentences. After
both the appellant and appellee filed long informal briefs
with the Fourth Circuit, Platshorn's attorney filed a reply
brief, which is not permitted under the informal briefing
rules of the Fourth Circuit, along with a motion to supplement
the record. The AUSA filed a motion in opposition explaining
that documents filed by Platshorn's attorney were incomplete
and inaccurate.

Page 5
MXR Monthly Report
FCI Manchester - Shehee v. Robertson - As previously reported,
a Notice of Appeal was filed April 28, in this Bivens case as
a protective measure. The AUSA has now received a decision
from the Office of the Solicitor General approving the appeal
for all but one defendant.
USP Terre Haute - The u.S. District Court for the District of
Utah issued a TRO on July 10, 1998, prohibiting the BOP from
transferring William Thurmond from the District or the State
of Utah. A hearing was held on July 28, 1998, on the TRO in
which Judge Jenkins ordered the BOP to prepare a declaration
from Warden Clark basically stating that the Warden had
reviewed the transfer documents, was willing to accept the
inmate, and believed the inmate would be safe at USP Terre
Haute.
Inmate Thurmond was being housed in the Utah
Department of Corrections because he had previously cooperated
with authorities concerning a homicide at USP Terre Haute in
1983. Warden Clark reviewed the transfer packet and did not
agree with the inmate being designated to USP Terre Haute.
Legal staff at Terre Haute advised legal staff in the Western
Regional Office and that office stated they would redesignate
the inmate to another institution.
REPRESENTATION NOT RECOMMENDED FOR STAFF: None
SIGNIFICANT FTCA CLAIMS: None
MEDICAL MALPRACTICE CASES UPDATE:
FMC Lexington - Walls v. Holland, et al. - Judge Forester
denied plaintiff's Motion for a TRO to prevent his transfer
back to his parent institution. Plaintiff alleges deliberate
indifference to his medical needs, i.e., treatment of his hand
which was damaged in an UNICOR accident at FCI Allenwood.
This ruling is significant because Judge Forester gave us only
two days to respond and a hearing was anticipated by the U.S.
Attorney's Office.
SIGNIFICANT ADMINISTRATIVE REMEDIES: None
NEW RFRA CASES AND UPDATES ON PREVIOUSLY REPORTED CASES:
FCI Beckley - Perkins v. Barnard, et al. - This was a Bivens
suit alleging a pat search by a female officer violated a male
inmate's constitutional rights. The inmate did not allege a
violation of RFRA. The case has been dismissed for Failure to
State a Claim.
ALTERNATIVE DISPUTE RESOLUTION EFFORTS: None
18 U.S.C. § 3621(e) LITIGATION:

6
MXR Monthly Report

.P~e

FCI Morgantown - Kirby v. Bledsoe - This case represents our
first challenge to the new Program Statement 5162.04,
Categorization of Offenses. Kirby was initially found
ineligible under P.S. 5162.02 (922(g) conviction), and
declined participation in RDAP since he was ineligible for the
year off.
Kirby exhausted his administrative remedies under
the old program statement. Subsequently, Kirby was told he is
not eligible under P.S. 5162.02 based on the Director's
discretion. Kirby is challenging the new program statement on
the basis that it is unlawful and is an attempt by the BOP to
circumvent the will of Congress.
SIGNIFICANT NEW CRIMINAL REFERRALS SINCE LAST.MONTH'S REPORT:·
FCI Beckley - Fred Brunet, Reg. No. 18375-018, was scheduled
to be sentenced for Possession of Contraband (Marijuana,
Heroin, pills) on July 24, 1998. The sentencing has been
rescheduled for August 27. The female visitor who brought the
drugs into the facility was sentenced in July ·to 15 months
imprisonment.
FMC Lexington - On July 2, 1998, William Davis, Reg. No.
11187-058, and James Thornton, Reg. No. 04919-028, were
indicted by a Lexington grand jury for Possession of
Narcotics. A visitor, Antonio Ferrell, introduced narcotics
to Davis in FMC Lexington's visiting room.
FCI Beckley - Brian Clarke, Reg. No. 12541-014, was sentenced
on July 27, 1998 to 24 months imprisonment for Possession of
Contraband (a weapon) .
FCI Cumberland - On July 7, 1998, inmate Mark Bundy pled
guilty to Assault with a Dangerous Weapon. The indictment was
dismissed against inmate Marcel Washington. These two inmates
were originally indicted for Retaliation against a Federal
witness and assaulting another inmate on March 11, 1997.
FMC Lexington - The u.S. Attorney's Office finally chose to
decline prosecution on inmate John Werner, Reg. No. 07251-050,
for assaulting an officer in November 1997, during a struggle
over a syringe Werner had in his possession. Werner had been
continued over a number of grand juries in 1998, before the
u.S. Attorney's Office decided to decline, based on the
allegedly minor nature of the assault. Werner was
subsequently released from our SHU and transferred to MCFP
Springfield after Joe Tang, institution attorney, discovered
the assaulted officer was uncomfortable with Werner's return

Page 7
MXR Monthly Report
to Lexington's open population.
SUCCESSFUL PROSECUTIONS OR ANY ACQUITTALS SINCE LAST MONTH'S
REPORT: None
REHABILITATION ACT: None
Ensign Amendment Cases: None
Dismissals Under PLRA:
FCI Milan - Demma v. Parker, et al - We received a favorable
R&R reviewing the case under the PLRA based on the Waiver of
Reply.
The Court stated under the PLRA revisions to section
1915, the case should be dismissed.

o

Page 8
MXR Monthly Report
New Litigation Cases by Institution and Type
Received During the Month of July 1998

BIV
FTCA
HC
OTH
TOT

ALD
0
1
0
0
1

ASH
0
0
1
0
1

BEC
0
0
1
0
1

BUT*
0
0
0
20
20

CUM
2
0
5
0
7

ELK
0
0
0
0
0

LEX
0
0
0
0
0

MAN
0
0
0
0
0

MEM
0
0
0
0
0

MIL
1
1
1
0
3

MRG
0
0
2
0
2

PET
0
0
1
0
1

SEY
0
0
0
0
0

THA
0
0
0
0
0

TOT
3
2
11
20
36

*Represents both the FCI and LSCI
New Litigation Cases by Institution and Type
Received Calendar Year to Date

BIV
FTCA
HC
OTH
TOT

ALD+
0
1
1
0
2

ASH
1
0
2
0
3

BEC+
'0
0
1
1
2

BUT*
1
0
3
20
24

*BUT represents both the FCI and the LSCI
ALD.

CUM
3
2
9
2
16

ELK.
2
0
2
2
6

LEX
6
0
0
0
6

MAN
1
2
1
1
5

MEM
1
0
3
1
5

.Corrected figure (case counted twice)

MIL
3
3
7
0
13

MRG.
2
0
4
0
6

PET
2
0
3
0
5

SEY
0
0
1
0
1

THA
3
1
5
0
9

TOT
25
9
42
27
103

+Case counted for BEC should have been

.
UNITED STATES GOVERNMENT

memorandum
DATI::

September

9,

1998Mid-Atlantic Regional Office. Annapolis Junction. MD

A'ITN OF:

Bill Burlington, Regional Counsel
Mid-Atlantic Region

SIIIIJEIT:

August

RE!'I.\" TO

TO:

ATrN:

1998

Monthly Report

Wallace H. Cheney, General Counsel
Amy Whalen Risley, Executive Assistant

ADMINISTRATIVE REMEDIES

JAN

FEB

MAR APR

MAY JUN' JUL

AUG SEP

Received
Answered

135
143

187
181

229
178

168
174

TORT CLAIMS

JAN

FEB

Pending
Received
Answered
Pending
Over Six Month

230
68
91
195
0

t:tIVACY

JAN

#
#
#
#
#

20701

13
# Pending
43
# Received
34
# Answered
23
# Pending
1
# Over 20 Working Days
*File has been requested from archives.

160
201

200
194

214
156

225
195

MAR APR

MAY JUN

JUL

AUG SEP

195
54
71
179
0

179
75
58
190
0

191
42
38
195
0

195
49
83
154
1

154
45
67
138
0

138
47
30
149
1

FEB

MAR APR

MAY JUN

JUL

AUG SEP

23
24
34
12
2*
* *One

12
23
24
54
54
36
41
42
53
18
24
23
0
0
4**
file requested from

FEB

190
62
60
191
0

MAR APR

AUG SEP

261
13
7
5
1
0
12
261
21
0
0
0

261
36
11
3
2
20
25
272
7
0
0
0

272
17
5
5
'3
4
10
281
8

Cases Pending
New Cases Received
Habeas Corpus
Bivens
FICA
Other
Cases Closed
Cases Pending
Lit Reports Completed
Cases/Hearings or Trials
Settlements/Awards
$ Settlements/Awards
($ in Thousands)
*,.. -rected figures

329 314 273
338 331
11
16
16*
4*
7
4
7
4
3
6
1
6
5
5* 0*
1
2
1
2
0
1
3
1
2
0
14
19
21
62
28
331
329 314 273 261
13
15
12
14
8
1
4
2
2
0
1
1
2
0
2
$147.7 $52.0
o $13.9* $9.0

OCT NOV DEC

35
30
52
52
57
56
3~
35
30
26
1*
2*
3*
archives; another request archives sent wrong file.

JUL

JAN

OCT NOV DEC

18
47

MAY JUN

LITIGATION

OCT NOV DEC

1

0
0

OCT NOV DEC

Page 2
MXR Monthly Report
ITEMS OF INTEREST, PERSONAL LEAVE, BUSINESS TRIPS, MOVES, ETC.
Bill Burlington, Regional Counsel, will be in Sentencing
Training September 2 and September 9-11, he will be at
Morgantown and the Regional Office.
Matthew Mellady, Attorney, FCr Memphis, has been assigned the
collateral duty of being Acting Executive Assistant, at least
through the end of the fiscal year.
Debbie Stevens, Attorney, FC! Beckley, held a training session
for Drug Treatment staff and Case Managers on September 1
regarding early release considerations. During August Debbie
attended the "Winner's Edge" seminar held at Beckley for
Department Heads.
SITUATION OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS
WASTE SITES, ETC.:
FMC Lexington - On August 7, 1998, staff learned that
Gilberto-Pulido-Vega, Reg. No. 34955-004, who was hospitalized
at the University of Kentucky Medical Center, was refusing
important diagnostic testing to determine the extent of his
internal gastrointestinal bleeding. UK staff were reluctant
to proceed further, even though the condition was potentially
life-threatening. Accordingly, a court order was obtained
from Magistrate Todd, mandating all necessary treatment.
The
order was obtained on a Friday evening within two hours of
initiating the process through the U.S. Attorney's Office.
FMC Lexington - On August 10, 1998, Charles' Sparger, Reg. No.
05477-000, a recent arrival from Lorton, decompensated
mentally and refused to take his insulin, eat, wear clothes,
use the toilet, etc.
Pursuant to the Health Services Manual
governing medical emergencies and advice from legal, staff
forced Sparger to submit to diagnostic tests, including blood
draws, for the treatment of his diabetes.
The medical staff
believed there was enough of an immediate threat to Sparger's
life that forced treatment was necessary. After Sparger
continued to refuse his diagnostic testing and insulin, a
medical due process hearing patterned after Washington v'.
Harper was held. A petition has been filed to commit Sparger
for psychiatric care and treatment pursuant to 18 U.S.C. 4245,
since this statute was amended to include D.C. Code offenders.
FMC Lexington - On August 28, inmate Howard Daves, Reg. No.
41436-019, was granted compassionate release.
Judge William
Kelley, Senior U.S. District Court Judge, Northern District of
Georgia, reduced Daves' sentence to time already served. At
the Judge's request, consideration of this matter was
expedited and through go~d team work, our Regional Office was
able to incorporate its input and recommendation to aGC on the
same day the packet arrived from the institution.

.

Page 3
MXR Monthly Report

Fer Manchester - A request for easement for natural gas

transmission lines across Federal property by Delta Natural
Gas Co., Inc., was received August 24, 1998. Although this is
being handled by Facilities, Mike Robar, Paralegal, will
coordinate with the Commercial Law Branch to ensure any
concerns, including work permits are addressed.
contact~d by a private individual
who wants to purchase land across from the new Medical Center,
on which he would operate a gas station and market.
He has
approached Warden Lappin, asking our permission to use the
same sewage lift station that the Complex uses.
Warden
Lappin will be forwarding the request to Jim Jones,
Administration Division, with a copy to Liz Nagy.

Fer Butner - We have been

Inmate Avery has filed litigation challenging
the Bureau's denial of 385 days of credit, which he claims was
mandated by his plea agreement.
Unbeknownst to the BOP,
there was a plea agreement in 1982, which required the
government to run Avery's federal sentence concurrent with any
time which he might spend in a state institution, even if it
occurred after his federal release on parole.
In fact, after
being paroled by the USPC, he was picked up by the state of
Kentucky, where he spent 385 days in custody.
When the USPC
revoked his federal parole, they granted no credit f or street
time.
Fer Ashland -

When FCI Ashland computed his sentence, we followed the
decision of the USPC and gave him no credit for the ti m" he
spent with the state, even though by then, we knew of t ti C' plea
agreement.
Further, the Sixth Circuit ruled that th e Bured u
and USPC were contractually bound to follow the term s l J t the

Prisoner Litigation Reform Act:
Fer Elkton - Three Strikes Provision of 28 use §191S (9) - w.·
h a ve 0 U r fir 5 t (: (j S f-.? W her ewe h a ve ask edt he U. S. At t ( ) : : ,' . .'' :
Office to bal ! l Jl t he r in formd pauperis filings of elf: . :.:' , :~ " ,

based on thret:' u: flis previous cases being dismisseJ ol,
f r i vol 0 US, 0 r t {' : 1 oj i 1 u ret () s t d tea cIa i m .
De s pit e . ' J :.

; . ; oJ

l ', '

Page 4
MXR Monthly Report
in the statute allowing us to count dismissal of an "action"
or "appeal" we have found a case, Adepegba v. Hammons, 103
F.3d 383 (5th Cir. 1996), which only allows you to count an
action, where the action has been affirmed on appeal, or the
inmate chooses not to appeal. We may argue that this case is
wrongly decided.
SUBSTANTIVE PLEADINGS (COMPLAINT, MOTION FOR SUMMARY JUDGMENT,
ETC.): None
SETTLEMENTS: None
ADVERSE DECISIONS OR SIGNIFICANT DECISIONS:
FMC Lexington - Walls v. Holland, et al. - On July 29, Judge
Forester denied Defendants' Motion to Stay Discovery in. this
medical deliberate indifference Bivens case.
Plaintiff sent a
non-Defendant physician a set of written questions "RE:
Depositions," before the Defendants filed a response to the
complaint. Judge Forester cited the local rules which exempt
pro se litigants from Fed.R.Civ.P. 26(d) and (f). Judge
Forester also found "insufficient basis for delaying
discovery, which may even provide necessary information on the
issue of qualified immunity." Judge Forester's reasoning is
particularly curious since in response to a TRO request, the
Defendants thoroughly fleshed out the factual issues by
producing extensive medical records of mUltiple consultations
with specialists, all of whom agreed nothing further should be
done to treat plaintiff's hand which was damaged in UNICOR at
FCl Allenwood. Judge Forester denied the TRO request, stating
there was little likelihood of plaintiff prevailing on the
merits in this complaint.
FMC Lexington - Gravenmier v. Holland, et al - Judge Forester
denied plaintiff's Motion to Amend Complaint, in this medical
Bivens case, citing among other reasons, the failure to
exhaust: administrative remedies, which "Courts have long
required prior to hauling federal defendants into a Bivens
lawsuit." Judge Forester cited the favorable PLRA
individual-capacity exhaustion case from the Sixth CilTuit,
Brown v. Toombs, 139 F.3d 1102 (6th Cir. 1988). Judge
Forester's position on exhaustion in the Bivens context has
been unpredictable in medical cases like Dumphord and
subsequent cases, where he has ruled both ways in these cases.
UPDATE ON CASES, TRIALS OR HEARINGS, ETC. NOTED IN PRIOR
REPORTS:

.

Page 5
MXR Monthly Report
FCI Manchester - u.s. v. Clark - This case is scheduled for
trial on September 4 in London, Kentucky. The case involves
an assault by Clark on another inmate over a pornographic
magazine. The victim is adamant about testifying against
Clark. The defense Clark is presenting is selective
prosecution. He claims FCI Manchester only refers black
assailants. We have done extensive discovery on this and may
be required to provide testimony as to why those documents
were not releasable in their original form.
USP Terre Haute - Shaheed v. Kimbler - This Bivens case is
scheduled for trial October 13-15, 1998. The case alleges
improper use of force by the defendant in SHU while escorting
the inmate to the Lieutenant's Office.
FCI Milan - Beckley v. Scibana - The inmate filed an
injunction and TRO requesting immediate·medical care for a
prothesis of his left shoulder and the resulting pain. The
hearing took place on August 24, 1998, in front of a new
Federal judge. The Judge heard testimony from Dr. Parker,
Chief Medical Officer, and testimony from Beckley. The Court
requested that Beckley continue to work with medical staff and
that upon his placement into a CCC he could seek medical
surgery at his own cost. The Court did not grant Beckley's
request for an Order for Tylenol #3 and immediate surgical
intervention. The Judge deferred to Dr. Parker's jud~ent.
REPRESENTATION

NOT·RECO~NDED

FOR STAFF: None

SIGNIFICANT FTCA CLAIMS:
FCI Butner - A former female camp inmate has filed a tort
claim (represented by an attorney) alleging that she was
forced to have sexual relations with an officer. She alleges
both physical injury and emotional trauma arising from the
incident.
In December 1997 the staff member pled guilty to
several counts and was sentenced to 14 months incarceration
and one year of supervised release. The sum certain on the
claim is $500,000. We plan to argue that staff were no~
acting within the scope of their official duties when they
engaged in these prohibited sexual acts.
MEDICAL MALPRACTICE CASES UPDATE: None
SIGNIFICANT ADMINISTRATIVE REMED.IES: None
NEW RFRA CASES AND UPDATES ON PREVIOUSLY REPORTED CASES: None
ALTERNATIVE DISPUTE RESOLUTION EFFORTS: None
18 U.S.C. § 3621(e) LITIGATION:

Page 6
MXR Monthly Report
FCI Cumberland - James v. Henry - Petitioner challenges the
denial of early release under 3621(e) pursuant to P.S.
5162.02, § 9. The inmate received a two-point enhancement for
possession of a firearm during a drug offense.
FCI Cumberland - Terrell Coleman v. Henry - In this petition,
inmate Coleman seeks early release despite his conviction for
26 U.S.C. §5861(d).
Our Categorization of Offenses Program
Statement considers this conviction "violent" under section 6.
There is also a vacated Bailey conviction, so we will presume
a 2 point enhancement for possession of the firearm, which in
turn makes inmate Coleman ineligible under section 7.
This
is only our second challenge to the new program statement.
FCI Cumberland - Davis v. Henry; Wooding v. Henry; McPeek v.
Henry:
In each of the above three cases, Judges from the
District of Maryland have followed Fuller v. Moore, and Downey
v. Crabtree, in finding our old Program Statement, Definition
of the Term, Crimes of Violence invalid.
In McPeek, in dicta,
the court stated it would also invalidate the new
Categorization of Offenses Program Statement as well, as
Fourth Circuit law finds the crime of possession of a firearm
not to be violent. We are asking the court to modify this
latter portion of its opinion, as the new program statement
was not before the court. We now have four separate opinions
from. the District of Maryland which are adverse to the Bureau.
FCI Milan - Taylor v. Pontesso -The government filed a brief
in response to Taylor's appeal to the Sixth Circuit of his
denial of 3621(e) eligibility based on a conviction of
fugitive in possession of a firearm and fugitive in possession
of ammunition. This case is governed by the P.S. "Crimes of
Violence.
SIGNIFICANT NEW CRIMINAL REFERRALS SINCE LAST MONTH'S REPORT:
FCI Memphis - A referral has been made on Adrian Rodgers, Reg.
No. 13979-076, who escaped from the Memphis satellite camp on
August 28, 1998, and was subsequently arrested by the Memphis
Police Department for DUI on August 30, 1998.
FCI Butner - Staff members John Powe and Willie Stewart were
referred for prosecution for Sexual Abuse of a Ward. The
cases were accepted and both staff members have resigned.
FCI Beckley - Anthony Suber, Reg. No. 64119-061, pled guilty
to Possession of Contraband on August 4,.1998. This inmate
was caught on tape receiving marijuana from a female visitor.
The inmate was dry-celled and three balloons of marijuana were
recovered. The female visitor used another woman's

Page 7
MXR Monthly Report
identification to gain access to the institution.
being prosecuted.

She is also

SUCCESSFUL PROSECUTIONS OR ANY ACQUITTALS SINCE LAST MONTH'S
REPORT: None
REHABILITATION ACT: None
Ensign Amendment Cases: None
Dismissals Under PLRA:
FCI Manchester - Foster v. Chandler, et al. - This case was
dismissed for failure to exhaust administrative remedies which
was made mandatory by the PLRA.

Page 8
MXR Monthly Report

New Litigation Cases by Institution and Type
Received During the Month of August 1998

BIV
FTCA
HC
OTH
TOT

ALD
0
0
0
0
0

ASH
0
0
0
0
0

BEC
0
0
0
1
1

BUT"
1
1
0
2
4

CUM
1
0
1
0
2

ELK
2
0
0
0
2

LEX
0
0
0
0
0

MAN
0
0
0
0
0

MEM
0
0
2
0
2

MIL
0
0
1
1
2

MRG
0
0
0
0
0

PET
0
0
0
0
0

SEY
0
0
0
0
0

THA
1
2
1
0
4

TOT
5
3
5
4
17

. * Represents both the FCI and LSCI
New Litigation Cases by Institution and Type
Received Calendar Year to Date

BIV
FTCA
HC
OTH
TOT

ALD+
0
1
1
0
2

ASH
1
0
2
0
3

BEC+
0
0
1
2
3

BUT*
2
1
3
22
28

*BUT represents both the FCI and the LSCI
ALD.

CUM
4
2
10
2
18

ELK.
4
0
2
2
8

LEX

6
0
0
0
6

MAN
1
2
1
1
5

MEM
1
0
5
1
7

.Corrected figure (case counted twice)

MIL
3
3
8
1
15

MRG.
2
0
4
0

6

PET
2
0
3
0
5

SEY
0
0
1
0
1

THA
4

3
6
0
13

TOT
30
12
47
31
120

+Case counted for BEC should have been

UNITED STATES GOVERNMENT

memorandum
IJATL

October 6,

1998Mid-Atlantic Regional Office, Annapolis Junction, MD 20701

An'N 01,:

B i l l Burlington, Regional Counsel
Mid-Atlantic Region

SI'IIJITT:

September 1998 Monthly Report

REPLY TO

TO:

A'ITN:

Wallace

H.

Cheney,

General Counsel

Amy Whalen Risley,

Executive Assistant

ADMINISTRATIVE REMEDIES

JAN

FEB

MAR APR

MAY JUN

JUL

AUG SEP

Received
Answered

135
143

187
181

229
178

168
174

200
194

214
156

225
195

TORT CLAIMS

JAN

FEB

MAR APR

MAY JUN

JUL

AUG SEP

Pending
Received
Answered
Pending
Over Six Month

230
68
91
195
0

195
54
71
179
0

179
75
58
190
0

191
42
38
195
0

195
49
83
154

154
45
67
138
0

138
47
30
149

RIVACY

JAN

FEB

MAR APR

MAY JUN

JUL

AUG SEP

#
#
#
#
#

13
# Pending
43
# Received
34
# Answered
23
# Pending
1
# Over 20 Working Days
*File has been requested from archives,

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)
-rected figures

338
7
4

23
24
34
12
2*
* *One

FEB

160
201

190
62
60
191
0

12
24
23
54
54
36
41
42
53
23
24
18
0
0
4**
file requested from

MAR APR

NOV DEC

OCT

NOV DEC

OCT

NOV DEC

191
254

149
59
40
166

18
35
30
26
47
52
52
54
57
32
56
43
35
30
26
37
2*
3*
1*
2
archives; another request archives sent wrong file,

MAY JUN

331
329 314 273
11
16*
4*
16
7
4
3
6
5*
0*
6
5
2
0
2
2
0
1
3
14
19
21
62
28
331
329 314 273 261
15
12
14
8
13
2
2
1
4
0
1
2
1
2
0
$147,7 $52,0
o $13.9* $9.0

OCT

261
13
7
5
1
0
12
261
21
0
0
0

JUL

AUG SEP

261
36
11
3
2
20
25
272

272
17
5
5
3
4
10
281
8
1
0
0

7.
0
0
0

281
17
8
3
1
5
15
284
12
0
0
0

OCT

NOV DEC

Page 2
MXR Monthly Report

ITEMS OF INTEREST, PERSONAL LEAVE, BUSINESS TRIPS, MOVES, ETC.
Bill Burlington, Regional Counsel, will be in the Regional
Office October 13-16, 1998.
This month we say goodbye to Carolyn Lanphear, who will be
leaving Cumberland for SERO.
Carolyn has done an outstanding
job at Cumberland, handling one of the most difficult
litigation loads in the region.
We will truly miss Carolyn.
We wish her the very best of luck in Atlanta.
On October
13 ft " we will welcome Denise Sparks into the Regional Office,
as our new Legal Instruments Examiner.
Denise comes to us
from Beckley's ISM department.
She will initially be assigned
primary responsibility for the region's Administrative Remedy
Program.
Please welcome Denise to MXR!
We are also pleased
to welcome Francis Dent, Paralegal Specialist, to MXR, as our
new Paralegal at FCI Ashland.
Francis recently graduated
from the paralegal program, and will be reporting to A~hland
in November.
Francis began her BOP career as a Correctional
Officer at San Diego, and later, USP Atlanta.
Welcome
Francis!
Joe Tang, Attorney, FMC Lexington, will be the 100
October 13-20, 1998.
SITUATION OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS
~TE SITES, ETC.:
FPC Seymour Johnson - We recently received a court ord~>r on
inmate James Thompson, where Chief Judge Graham Mu 11 E':!, W. [).
North Carolina, ordered that inmate Thompson serve 8 m,'r;~ h!" 01
a 16 month term in home deten t ion.
Judge Mull en srt·,·:: :. ',d 1 Y
states this is an order, not a recommendation.
We l.d ..··'
received similar orders from Judge Mullen in the Pd:-C;~ •
':'11('
most recent such order was entered wi th inmate Aubl"')'
Hilliard.
In Hilliard, the Department of Justic(' v;,,:
prepared to take Judge Mullen to the Fourth Cireui t •
Fortunately, Judge Mu lIen vacated the order.
We htl':- ,,;:: l t • ':,
Judge Mullen asking that he vacate the Thompson ord.,:.
: t !i.,
refuses, we may be asking for assistance to cha llell Itype of order in the Fourth Circuit.
FMC Lexington - The U.S. Attorney's Office for the ro:: 1: ,Distr,ict of Florida formulated a list of questions:. :: - :, :.:
compassionate release candidate Daryl Kurtz' preser.· :'
I •
and cognitive abilities, and his propensity for vic,-:
the future, especia 11 y against chi ldren.
The U. S. 1·,"
:: -'/:'
Office also requested Kurtz be further evaluated by,,:
independent examiner in order to determine Kurtz' l(:, :-'prognosis.
FMC Le:dn<1ton has scheduled Kurt::: t
b,e , ' , '
I: 1::,
(l

Page 3
MXR Monthly Report

by Cardinal Hill Rehabilitation Center, and responses to the
questions will be drafted.
FCI Petersburg - Larry L. Gregg, AUSA, Alexandria has been

named the new Chief of Civil. Mr. Gregg replaces Bob Jaspen,
who is now a staff attorney with the Fourth Circuit.
MXR - Our office was contacted by the New York City FBI office
(through the Northeast Regional Counsel's office) for
assistance regarding former inmate Paul Kurtz, who was alleged
to have passed himself off as an attorney in as many as 100
criminal matters in New York and Maryland and who had obtained
legal visits with federal inmates in Otisville from January
through May of 1998 under false pretenses. An FBI search of a
Maryland residence had turned up two letters purporting to be
from the Mid-Atlantic Regional Office, indicating Kurtz had
been awarded half-way house contracts in Alexandria, Virginia
and in Washington, D.C. Upon review by our Community
Corrections office, it was determined that both letters were
forgeries.
The FBI will be following up with staff concerning
this matter.
Prisoner Litigation Reform Act: None
SUBSTANTIVE PLEADINGS (COMPLAINT, MOTION FOR SUMMARY JUDGMENT,
ETC.): None
SETTLEMENTS: None
ADVERSE DECISIONS OR SIGNIFICANT DECISIONS:
FCI Manchester - J. W.

Dunlap v . United States - We 1 ('c', 'fl ~,l Y
received a favorable decision in the medical malpract it'"
portion of this case.
We had earlier won the Biven~, I;~~,' of
force portion of the case when a jury found our four
defendants used appropr ia te force in subdui ng i nma t e [',;;,: If'.
In the medical portion of the case, the court tound U.,,: 'wE"
had provided substandard care, when we failed to carr~';: d
physician's order to have Dunlap seen by an out :-;ide
specialist. However, the court found that inmate !JUfi. ,: ·...·d~
not harmed by the delay, as he suffered no in luries t:. ' . . ··Le
attributable to the use of force incident.
FMC Lexington - Walls v. Holland, et al - In this me·!: "
deliberate indifference Bivens case, Judge F()lr:stpr '1::: . . j
our motion to d i smi ss, cit ing among other red ~()ns, trl'
exclusive relicf Plaintiff had under Inm~te Accident
Compensation, which barred any recovery for alleq~cl ~;::: . !::"flt
negligent or deliberate indifference treatment uf th,
injuries.
Plaint i f t lost part of his hand if, "HI UNI", :'

Page 4
MXR Monthly Report

accident at Allenwood . We will seek publicati on of this case ,
wh i ch was ruled upon unusually quickly , and perhaps indicates
we have gained back some credibility with Judge Forester , the
Judge in the Dumphord case .
FCI Milan - Antone v . Pontesso , et al . - This was a Bivens

case alleging excessive use of force and harassment in which
there were several 0.1 . investigations related to the same
incidents . This is the case where one staff member was denied
representati on by DOJ . We received the R&R whi ch recommends
dismissing all defendants , including the staff memb er not
represented by the government .
UPDATE ON CASES, TRIALS OR HEARINGS, ETC. NOTED IN PRIOR
REPORTS:
USP Terre Haute - Shaheed v . Kimb l er - This Bivens excessive

use of fo r ce case is scheduled fo r tr i a l October 13 - 15 , 1998 .
FCI Memphis - Sheets v . DOJ - This Ti tle VII case , alleging

retaliation , sexual harassment , sexual discriminati o n and
constructive discharge , is currently scheduled for trial on
October 26 , 1998 . However , given extensions in disc o ve ry
deadlines , it is unlikely that this case will go t o trial on
that date .
FCI Memphis - Littrell v . USA - This medical malpra c ti ce c ase

involves an allegation that the BOP failed t o timely diaun o se
Plaintiff 's throat cancer . Plaintiff 's administrativ e L' j difT'
with a sum certain of $300 , 000 , was denied , and th is , ',:!""
f i led . The AU SA han d 1 i n g the cas ere fer red PIa i n t iff ' :~
medical records t o an e xpert witness (a former VA phy ~ ,
who opined that t he BOP 's medi cal treatment f e l l bE:.'J " y; ': ,'
standard of medi c al. ca r e . Based on the expert 's strlt c.'fl,"!.'
review of state case law , it appears that Plain tift h ::' : d: ed
a prima fa cie cas e o f negligence . Theref ore , i t i s ]: .:- "
that we wil l seek authority to settle this c()s e . Ci\" "
several mitig ating circ um stances , any settleme nt WI::
:' li , ! ';
be significan tly less than the amount origin a lly S( l lJ : :.
REPRESENTATION NOT RECOMMENDED FOR STAFF:
SIGNIFICANT FTCA CLAIMS: None
MEDICAL MALPRACTICE CASES UPDATE:

No ne

Page 5
MXR Monthly Report
FMC Lexington - Hyman Maltz and Thalia Maltz v. USA - This

FTCA case is filed in the District of New Jersey.
Plaintiff,
represented by counsel, alleges negligence by FMC Lexington
medical staff for allegedly failing to diagnose Plaintiff's
lung cancer, which was apparently discovered after plaintiff's
release from custody. Our response is due in November.
FMC Lexington - O'Brien v. USA - Magistrate Wehrman's September
11, 1998, R&R re~ommends the granting of summary judgment for
the defendant because of plaintiff's failure to provide a
medical expert to refute the United States' position, and the
lack of any significant and probative evidence to prove his
claim. Plaintiff claims we failed to adequately diagnose and
treat his back condition or provide him with proper
mattresses.
FCI Beckley - Hames v. BOP, et al. - This Bivens complaint

alleges deliberate indifference to the inmate's medical
condition (keloids).
SIGNIFICANT ADMINISTRATIVE REMEDIES: None

NEW RFRA CASES AND UPDATES ON PREVIOUSLY REPORTED CASES: None
ALTERNATIVE DISPUTE RESOLUTION EFFORTS: None
18 U.S.C. § 3621(e) LITIGATION:

Ci r,'~,Ji t
struck down the Burea us' new rule on early release, f i n.-i i nq
that a 922 (g) conviction could not be, termed "violent."
III
so holding, the Court incorrectly assumed that the nev,; !~; : ••
applied to inma te Orr, as he completed a RDAP in Sept, 'r.i,·! ,
1994.
Without briefing by the government, the court
misconstrued the new rule, believing that the BOP WUl~ ~ : "'!f11
his 922(g) conviction "violent." In fact, if the ne ..·; ! ; , ' ,jid
apply, inma te Ur r's convict ion would not be termed vi' .' ':,' ,
yet he would not be released under the Director's di:-; ':, . , ':,.
We believe a Petition for Rehearing should be fil~d.
__ _
date for filing any such Petition is October 23, l(t('".
Orr v. Hawk (6 th Circuit) - On September 9", the 6'

Pelissero v. Thompson (4 th Circuit) - In a 2-1 deci:-;: :,

panel uphe ld t h .. , Btl rea us' old and new rules on ea r 1 y :' _...
While the pan""l held bpen told the new rule did llot ,q: , ,
the s e i nma t e ~ , tll'e. co u r t non e the I e s s f 0 u n d t hat t h c,' :,' "
was applicabl f : , dnd that it was a reasonable interpr" "
the statute for th~ Bureau to deny early releas~ L<
individuals wh, ,~., ,'('nviction or conduct, included PI: '
or use of a t i !'.".: ~,. Wc' e;·:pect a Peti tion for Rehb.:
Banc to be fij'''i, d:~ this panel opinion is in confli"
earlier, unpul< :;-'~:t'd pallel decision in Fuller v. Moore.

Page 6
MXR Monthly Report

FCI Cumberland - There were a number of early release cases

involving firearm possession that were pending or had recently
been decided against the Bureau by several judges in the
District of Maryland.
Immediately following the Fourth
Circuit's ruling in Pelissero v. Thompson upholding the
Director's authority to deny eligibility for early release to
inmates possessing firearms, motions to alter or amend
judgment were filed in two such cases (decided within 10 days
of the Pelissero ruling). On September 18, 1998, Judge Motz
granted our motion, vacated the previous order granting habeas
relief, and instead denied the petition for writ of habeas
corpus in Wooding v. Henry.
Similarly, on September 22, 1998,
Judge Garbis did the same in the other case, Davis v. Henry.
These were both cases under Program Statement 5162.02 ("old
rule").
In addition, on September 23, 1998, Judge Messitte in
Snyder v. Henry, an "old rule" case which was pending, denied
habeas relief based on Pelissero. What is significant is that
these judges in the District of Maryland have agreed with our
view that Pelissero upholds not only the "new rule", Program
Statement 5162.04, but the "old rule" as well.
FCI Beckley - Mangum v. Olson - This Habeas challenaes the

bank robbery provisions of P.S. 5162.02. A Motion t ( l
Dismiss/Motion for Summary Judgment was filed in Sep:t~mber.
Pontesso - This case was an (1; C: :.:~.
RDAP case which the BOP won at the District Court 1.,':· : l : l ~ L·,
issue of conviction of Fugitive in Possession of a : ' ; ! " l!';r: dLT
Fugitive in Possession of Ammunition.
In light of \ ' ! ! , • he
inmate appealed and'the District Court has required, ! .•. : .nCl
by October 15, 1998. Additionally, the Court want~·
:,' j!
briefing on the separate issue of the inmate's re~ll"
bond.
We are working with the Central Office and :'
defend the case in light of Orr.

FCI Milan - Taylor v.

SIGNIFlCANT NEW CRIMINAL REFERRALS SINCE LAST MONTH'S REPORT:
FMC Lexington - The FBI is investigating the der'ltr.

Tracy Hearlson, #246630-086, who was foun,d dedd or.
of September 14, in a common area of the out-pati\';,' ",
health clinic.
Part of his head was caved-in, ap~,,:~·
crushed with a fire extinguisher.
Three inmate S~.':·
the unit have been placed in administrative deten:. '
investigation.

..

;,

I.

•

IP

••

Page 7
MXR Monthly Report

FCI Beckley - On September 27, an employee from FCI Beckley's
Chaplaincy Department was arrested by the FBI prior to
reporting to work.
The arrest arose from an ongoing
investigation initiated by the institution.
A criminal
Complaint for Possession with Intent to Distribute Heroin was
filed against the employee on September 28.
The employee was
officially terminated on September 29, 1998.
A preliminary
hearing is scheduled for October 9, 1998.
FCI Manchester - u.s. v. Clark - A pre-trial hearing was held
in this case in London, Kentucky, on September 14, before
Magistrate Judge Johnson.
This hearing concerned a Defense
motion to dismiss for selective prosecution.
The motion was
denied.
SUCCESSFUL PROSECUTIONS OR ANY ACQUITTALS SINCE LAST MONTH'S
REPORT: None
REHABILITATION ACT: None
Ensign Amendment Cases: None
Dismissals Under PLRA: None

Page 8
MXR Monthly Report
New Litigation Cases by Institution and Type
Received During the Month of September 1998

BIV
FTCA
HC
OTH
TOT

ALD

ASH

0
0
0
0
0

0
0
0
0
0

BEC
1

BUT·
2

0
0

0
1
2
5

1
2

CUM

ELK

LEX

MAN

MEM

MIL

MRG

PET

SEY

THA

0
0

0
0
0
0
0

0

0
0
0
0
0

0
0
0
0
0

0
0
0
0
0

0
0

0
0

0
0
0
0
0

0
0
0

5

0
5

1

0
1
2

1

1

0

0

1

1

1
1

TOT
3
1
8
5
17

*Represents both the FCI and LSCI
New Litigation Cases by Institution and Type
Received Calendar Year to Date
ALD+
BIV
FTCA
HC
OTH
TOT

ASH
1

BEC+
1

1
1

0

0

2

0

0

2

3

1
3
5

0

BUT·
4
1
4
24
33

*BUT represents both the FCI and the LSCI
ALD.

CUM
4
2
15
2
23

ELK.
4

0
2
2
8

LEX
6
1

0
1
8

MAN
1
2
1
1
5

MEM
1

0
5
1
7

.Corrected figure (case counted twice)

MIL
3
3
8
1
15

MRG.
2

PET
2

SEY

0
0

0

0

5

4

1

0

0

0

7

6

1

THA
4
3
6
1
14

TOT
33
13
55
36
137

+Case counted for BEC should have been

I