Fbop Mxr Monthly Reports 2001jan-jul

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Fbop Mxr Monthly Reports 2001jan-jul

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UNITED STATES GOVERNMENT

memorandum
DATE:

REPLY TO

ATTN OF.

SUBJECT.

TO.

ATTN:

February

001

~~I~A-J~'I~~
Bilfi'1\uri1ngton,
Mid-Atlantic Regio

Mid-Aclantic Regional Office. Annapolis Junccion. MD 2070l

Counsel

January 2001 Monthly Report
Christopher Erlewine, General Counsel
Linda Dubose, Executive Assistant

ADMINISTRATIVE REMEDIBS

JAN

Received
Answered

167
144

TORT CLAIMS

JAN

FEB

MAR

APR

MAY

JON

JUL

AtJG

SEP

OCT

NOV

DEC

FEB

MAR

APR

MAY

JON

JUL

AtJG

SEP

OCT

NOV

DEC

# Pending
180
# Received
27
# Answered
66
# Pending
146
# Over Six Month
2*
*In Central Office pending settlement authority.

(

)I/PRIVACY

JAN

FEB

MAR

APR

MAY

JUN

JUL

AtJG

SEP

OCT

NOV

DBC

FEB

MAR

APR

HAY

JUN

JUL

AtJG

SBP

OCT

NOV

DEC

33
# Pending
45
# Received
48
# Answered
32
# Pending
1*
# Over 20 Working Days
*Awaiting file from archives.
LITIGATION
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)

JAN

174
13
7
3
0
3
8
0
1
$100.0

4620

Page 2
MXR Monthly Report

(

SIGNIFICANT DECISIONS OR ADVERSE DECISIONS:
FCC B~R - Tony Jones v. U.S. - On January 23 rd , the

4th Circuit ruled
that the sentencing court lacks jurisdiction to amend the language used in
the J & C regarding fine payment, once 7 days have expired from the date
the sentence was imposed. In this case, Butner staff had written the
court indicating that the court had improperly delegated responsibility to
the BOP to set the timing of the fine payment. The district court then
made the fine due immediately, so the inmate could pay the fine through
the IFRP. The 4th Circuit indicated the district court was without
jurisdiction to amend the J & C.

FMC LEXiNGTON - Rosales-Garcia v. Holland - On January 31, 2001, the 6 th

Circuit held it violates due process to hold indefinitely, a Cuban
detainee who does not have pending criminal charges. Inmate RosalesGarcia had been held at FMC Lexington since 1997, when INS decided not to
role him to the community.
FCC BUTNER - Stokely v. BOP - The court granted our motion for summary

judgment in this action where the Plaintiff claimed that the Bureau's
mandatory HIV testing program violated his civil rights. The court held
that the mandatory testing is for the health, safety and welfare of each
inmate ... which is a legitimate penological interest that outweighs the
Plaintiff's expectation of privacy.

(

SETTLEMENTS:
FCI MEMPHIS - Sammie Stroud v. Reno - In this Title VII, racial

discrimination case, t~e partie~ reached' an agree~ent~o. settle fQt'
$85, CoeVcompensatory damages, plus $15,000 in attorneysfee~Y£ This case
was handled by the Labor Law Branch, with settlement coming after an
Administrative Law Judge's finding of discrimination.
UPDATE ON CASES, TRIALS OR HEARINGS, ETC. NOTED IN PRIOR REPORTS:
FCI MANCHESTER - Tilson v. Gibson - In this Bivens suit for injunctive

relief only, Judge Coffman denied our Motion f9r Summary Judgment, finding
that medical staff may have been deliberately indifferent to inmate
Tilson'S serious medical needs (painful inguinal hernia). Since this
ruling, we had the inmate seen by an outside surgeon, and in January the
'hernia was surgically repaired. We have filed a motion asking the court
to dismiss the case as moot.
FCI BECKLEY - Eichler v. U.S. - A pretrial conference was held on

January 8, 2001. The Judge issued an order that preliminary discovery on
the issue of damages be completed by May 8, 2001, and that government
experts be identified by July 23, 2001.
FCI BECKLEY - Lee v. Olson - This is an old Ensign Amendment challenge.
It remained active after Amatel due to procedural issues. The case was
dismissed for failure to state a claim.

4621

Page 3
MXR Monthly Report

(

CRIMINAL :
FCI BECKLEY - Inmate Matthew Garvey, Reg . No. 33417 -037, was indicted in
September for Possession of Contraband (a weapon).
He pled guilty to the
charge on January 29, 2001 .
2000, during the evening count in VA Hall,
a white inmate, was allegedly assaulted
a
in a sock. _
received minor
injuries as a result of the assault but was tak~o the outside hospital
for treatment.
SIS staff initially discussed the matter with the FBI,
however, under the standing agreement with the FBI, U8AO, and the
institution, the FB! initially indicated the case ' would not be accepted
the minor nature of the assault.
Subsequently, inmate . . . . .
wrote a letter to the USAO in Richmon~
camp
assault ' was racially motivated, as all three of the
alleged assailants were members of the Nation of Is~d have expressed
at one time their hatred of the whit e man.
Inmate,....... also alleged

that it is common for black staff to call white inmates by the name of
"white boy or cracker".
SIS has subsequently been informed that USAO has
accepted the matter for investigation by the FBI and possible prosecution
as a hate crime .

SITUATIONS OF INTEREST , CONTACT WITH FEDERAL BENCH, HAZARDOUS WASTE SITES,
ETC. :

(

FMC LEXINGTON - On January 20, 2001,
, was
released from FMC Lexington, Atwood Camp, pursuant to
Clinton's
act of commuting her sentence to time served. ~ ~as the last ITS
Plaintiff incarcerated at Lexington.
FeI MEMPHIS - Dixon v. Reno - In a strange twist, EEO complainant
Cassandra Dixon, filed a criminal complaint in state court alleging that a
co-worker was guilty of misdemeanor harassment, for questioning what Ms.
Dixon was doing with Warden Joe Young's travel voucher.
Ms. Dixon
currently has an EEO suit filed against Memphis claiming racial and gender
discrimination.
The EEO suit is being handled by the Labor Law Branch .
We are preparing requests for representation on behalf of the staff member
against whom criminal charges were filed.

FCI ELKTON - Wilson v. BOP - The Union attorney has filed a request with
the court to review DOJ's decision not
rovide DOJ attorney
representation to FCI Elkton employee,
in a Bivens suit.
The
Unio n confused its ability to challenge a DOJ cert'fication that an
employee was not within the scope . of his duties under 28 USC section
2679 (d) (3), with a decision not to provide representation, which is not
judicially reviewable.

FCI PETERSBURG - Matter of Michael Litt le - Inmate Little filed a

complaint with the Virginia Department of Health Professions (Medical
Licensure) alleging Dr . Allen, Clinical Director, committed malpractice by
not properly supe~vising other medical staff.
Inmate Little al leges his
interferon pens were mixed up with another inmate's.
In a Janu ary 4,

200 1, letter the Enforcement Division of the Department of Health

4622

Page 4
MXR Monthly Report

(

Professionals informed Dr . Allen that upon review of the response filed on
Dr. Allen's behalf by the BOP, there was no apparent violation of laws or
regu l ations pertaining to the practice of medicine .

Electronic Inmate Law Library - On January 17, 2001, Butner staff hosted a
meeting regarding a pilot program where FMC Butner inmates would be given
access to an electronic law library .
Visiting staff were given a
demonstration of the hardware and software.
Warden Art Beeler has
recently sent a new pilot proposal to Margaret Hambrick, in which he
addressed many of the issues that were resolved at the Butner meeting.
Personnel Issues

Staff Leave and Travel

February, 1 3 -15 Regional Office, Clinical Directors
Training. Baltimore

February 26-29, New Attorney Training, RC/AGC Meeting
FCI CUMBERLAND-

annual leave, February 8th and 9th.

(

4623

,.,-.

_ age 5
MXR Monthly Report

Mid-Atlantic Region Litigation for the Month of January 2001
MARO Consolidated Legal Center

Butner Consolidated Legal Center

Bivens

FTCA

FC! CUM

FC! MEM

FC! MRG

MXR

Hazelton

Ohio Co.

Other

Total

Bivens

FTCA

FCC BUT

FCl PET

PET MED

FPC SEY

Winton

VA
Contracts

Other

Total

Lexington Consolidated Legal Center
Beckley Consolidated Legal Center
Bivens

FTCA

FMC LEX

FC! ASH

FC! MAN

Big
Sandy

McCreary

·2

Regional Total

Other

Total
Other

FTCA

FCl BEC

FPC ALD

USP LEE

Glenville

McDowell

Bivens

FTCA

Other

Total

...........

~I_

....

............

.....

_.~

.....

Total

Bivens

UNITED STATES GOVERNMENT

memorandum (
I-ATr.:

March 8,

2001Hid-At:lantic Regional Office, Annapolis Junction, HD 20701

ATTtI ,'IF:

Bill Burlington, Regional Counsel
Mid-Atlantic Region

r.1I~tF:r:T:

February 2001 Monthly Report

1'1.1'1."1" Ttl

TO:
ATTN:

Christopher Erlewine, General Counsel
Linda Dubose, Executive Assistant

ADIaRIS~T%VB

RBMBDIBS

Received
Answered

JAR

167
144

114
170

JAR

I'&B

lGY

JON

JUL

AUG

SEP

OCT

NOV

DBC

MaR APR lGY

JON

JUL

AUG

SEP

OCT

NOV

DBC

JOL

AUG

SBP

OCT

NOV

DBC

OCT

NOV

DBC

MaR

APR

** Received
Pending
** Answered
Pending
* Over
Six Month

180 146
27
39
41
66
146 139
2
2*
*Serious personal injury cases still under review.

'ftlVACY

JAR

FBB

MaR

APR

lGY

JON

~ending

33 32
45 46
48 43
Pending
32 36
# Over 20 Working Days
1
2*
*These two overdue requests were mailed out of this office on 3-5-01.

**# Answered
Received
*

JAN

HUt

APR

!aY

174
Cases Pending
11
13
New Cases Received
4
7
Habeas Corpus
5
3
Bivens
o
o
FTCA
2
3
Other
Cases Closed
Cases Pending
8
9
Lit Reports Completed
o
1
Cases/Hearings or Trials
1
1
Settlements/Awards
$100.0 $22.0
$ Settlements/Awards
($ in Thousands)

4052

JON

JOL

AUG

SBP

(

Page 2
MXR Month ly Repo rt

(

SIGNIFICANT DECISIONS OR ADVERSE DECISIONS:
FCI BECKLEY - U.S. v . Br ow n - An order was issued in December by the
sentencing j udge in the District of Massachusetts directing the Bureau
to grant this inmate jail cr edit. A motion was filed challenging the
court's authorit y to enter the order. The Judge denied the motion to
reconsi der or va ca te the order. The Judge did issue an amended J&C.
The inmate's sentence was recalculated based on the amended J&C. The
Judge was still not satisfied with the manner in which the sentence
was calculated.
As a result, the inmate was granted an additional 47
days of good conduct time, in an effort to honor the court's
intentions.

MXR IMPLEMENTATION - Lopez v . Da v is - Despite a letter from the AUSA
who handles Lexington cases , the 6" Circuit has still not remanded
the FCI Ashland and FMC Lexington appeals back to the
action consistent with the Lopez de cision.

FCI BUTNER _ United States v. Russell Weston - In a thoughtfu l, 61
page opinion, Judge Emett Sullivan has ruled that the Bureau of
Prisons may involuntarily medicate Russ ell W~ston.
Russell Weston is
the individual wh o allegedly shot and killed two Capitol security
guards in the summer of 1 998 . The court found two bases for
medicating Mr. Weston -- his dangerousness , and the governmental
interest in restoring his competence so that he can stand trial on
these serious charges.
This is a major victory for the government.
Several BOP witnesses' testimony is c ited iIi the opinion, . including
Sally Johnson , M.D., and Phill Wise. The judge stayed his order unt il
March 17"' , so that an appeal can be filed.

Inma te
alleged failu re to
r.,1V
protect/deliberate indi
releasing hi m to the compound
following an as saul t.
was introduced to show a thorough
investigation was conducted and that the investigation revealed no
threat.
He was given a different job assignment to remove him from
the area of potential harm (he said he was assaulted because he would
steal food for people).
The cou rt granted summary judgment in the
BOP's favor, conclud ing that because of the investigation and job
reassignment, the BOP was not deliberately indifferent .
Interestingly, the judge concluded that just because the inmate still
felt threatened did not show the BOP was deliberately indifferent.
Also, the Court co ncluded that the i nmate failed to meet the objective
prong of t.he farmer standard, give n his de minimus injuries.
FCI CUMBERLAND -

Ke vin Taylor v . Hawk - In this Bivens/FTCA case, the
Plaintiff alleged that he wa s a ss aulted because the unit officer
stayed Outside o f the unit afte r a co ntrolled move.
Evidence was
introdu c ed to demonstrate t hat the inmate was assaulted after the
compou n d Was closed f o r the e vening and that the officer was actuall y
in the u ni t, and that the inmate owed a gambling debt t o the
assa ilant .
It wa s also poin ted o ut that the inmate had changed his
factual account o n more than one occasio n.
The j udge granted summary
J ud gment , finding the evidence submitted by defendants was
FCI CUMBERLAND -

(
\

4053

Page 3

MXR Monthl y Report

(

overwhelming and that the evidence produced by the Plaintiff was
insufficient to over come BOP's evidence.
FCI MQRGANTOWN - Medley v. Hawk Sawyer , et al.
- Employee attempted
to bring a Bivens action pursuant to 42 U.S.C. §1985 Subpart (3) and
42 U.S.C . §1986. The Court found where there is a comprehensive
scheme for employee grievances, they may not ci rcumvent that process
by seeking damages in a Bivens action .
SETTLEMENTS :
FCI MEMPHIS - Vargas v . Reno - MXR staff are wo rking with NERO staff
to see that this EEO complainant recei v es the restored annual le ave
that we agreed to give him when we settled this case. Unfortunately ,
t h e signed settlement agreement did not get to the HRM staff at
Al lenwood , and the employee has in the meantime transferred to
Brooklyn.
NERO staff have been very helpful in correcting our
ove rsight .

MXRO - Billie Nidiffer, represented by counsel, filed an
administrative tort claim with a sum certain of S750,000 alleging
neglect during his withdrawal from drugs and alcohol while housed at
FDC Milan.
Inmate Nidiffer was never seen by a physician during his
serious withdrawal, suffering cardiac arrest, septic pneumonia,
gangrene and other conditions. He was transferred to a local hospital
after suffering cardiac arrest.
A review of the claim both by the
Bureau and by AFIP was unfa v orable.
Since the time of filing, the
claimant died of unrelated causes. We have offered S5000 to the
personal representative to settle the c laim . Attorney Kevin
Walasinski is a~aiting further communication from the attorney.
FCI MEM - Castillo v . Bureau .of Prisons - Michael Pybas worked with
Labor Law Attorney Elizabeth Long to prepare and advise our negotiator
(Se ni or Deputy Regional Director Bill Kelle r ) for the mediation, which
was conducted by Mediators for the EEOC. As a result of t h is
alternate dispute resolution process, they were able to settle this
case in its entiret for S20,000

UPDATE ON CASES , TR.IALS OR HEARINGS , ETC . NOTED IN PRIOR REPORTS:
FMC LEXINGTON - Ashkot Khacha t oorian v . US - On February 22, 2001 ,
Magistrate Todd g ran ted Judgment for the Defendant United States in
this FTCA action . Plaintiff. a former FMC Lexington inmate,

4054

(

Page 4

MXR Monthly Report
~epresented by tw~ attorneys, alleged he stepped in a hole in a rate
~n a courtyard of a housing unit, permanently injuring his le
gJ d

(

~Od~ reasone~ that regardless of whether Plaintiff was consid~~ed ~nge
~nv~tee or l~censee under Kentucky law, the hole in the grate was so

obv~ous that there ~as.no duty on behalf of the United States to warn

of the defect.
Pla~nt~ff damaged his own case by testifying at t ' I
that the ~ole wa~ so obvious that he could see it from fifty feetr~=ay
and that ~t was ~n an area which he frequented all the time.

New ~NO ,Flesh" Menu Option - We have received a number of BP-10 r s from

Musl~m ~nmates who were recently removed from the Common Fare.
In
part~cular, we have a number of SP-Iors from Nation of Islam inmates
compl~in~ng that they, require a common fare diet.
Unfortunately, we

are f~nd~ng that the ~nmate interviews frequently do not contain
enough infor~ation to adequately respond to these complaints.
ClUMJ:NAL:

FCI BECKLEY former Chaplain, was indicted on January
31, 2001, for Possession with Intent to Distribute Heroin. Trial is
set to begin April 17, 2001.

tMM
.

Inmate
and Inmate
were previous y indicted for Assault (18 U.S.C. §
11(a) (1) and 111(h». The charges stem from the disturbance at FC!
Beckley in December 1999.
Discovery continues as we prepare for
trial.
Trial is scheduled for March 27, 2001.

FCI BECKLEY - Inmate
was indicted in
September for Possession of Contraband (a weapon).
He pled guilty.to
the charge in January 2001.
He is scheduled to be sentenced April 9,
2001.
MXRO - u.s. Attorney's Office, E.O. Virginia: (18 USC 3624(c»
- We
continue to receive 'letters (rom criminal AUSA's in the E.D. of
Virginia requesting that we limit halfway house time of short term,
white collar offenders, to IO~ of the sentence imposed.
We are
trying to track these requests from our regional office, but it
becomes very problematic, as many of these inmates are designated to
institutions outside MXR.
FCC BOTNER - U.S. v. Praileau - a jury returned. a verdict of not
guilty on all charges in this inmate on staff assault case.

SITUATIONS OF INTEREST, CONTACT WiTH FEDERAL BENCH, HAZARDOUS
SITES, ETC.:

~TE

FMC LEXINGTON- On February 6, an order was issued for inmate
to be writted back to his sentencing court, the
District of South Carolina, for a hearing on the downward departure of
his sentence for medical reasons. Burgess, a $1.6M tax evader, is
apparently an influential member of the local community.
The judge,
Ross Anderson, never ruled on defendant's motion before sentencing and
is claiming jurisdiction of this issue accordingly.
Instead, he
sentenced Burgess to eighteen months for fraud and ordered him to FMC
Lexington for a "30 day study" to include inspection of the FMC by

4055

Page 5
MXR Monthly

Report

Burgess' personal physician and a report to the court of the
suitability of the FMC to care for Burgess ' diabetes.
Months later ,
after learning the BOP would not comply with the inspection
recommendation , Burgess was writted back to South Carolina to be
examined by his personal physician who will testify as the court's
expert on our care of his diabetes.
FMC Lexington wi 1 1 have their
Clinical Director testify over the phone as to Burgess' lack of
compliance with diet , c onsistent throughout his medical history . Joe
Tang obtained and sent the AUSA and defense attorney Burgess ' complete
commissary records which show he enjoyed eating candy, sweet' buns, ice
cream, chips, other high sugar or sodium products , and smoking
Marlboros.

(

Electronic Inmate Law Library - We have submitted updated
cost i nformation on the Butner request for a pilot project using an
.
electronic law library for the FMC inmate population .
The Warden and
the Regiona l Director both support this p r oposa l , par t icularly i n view
of the limited Education Department staff at FMC Butner .
FMC BUTNER -

Personnel Issues

-------- ...

-- -... ~~::.. ..: - .. --:.-. ---

::-"'

,
staff Leave and Travel

March 12" - and 13' '' , 2001

Regional Office

March 19 - 23, annual leave
, Regiona l Office, March 12 - 13, 200 1

4056

(

Page ·6
Monthly Riport

MX~

: -, !.-

:..:.,' : - J~

>:__ 0.

i.,-.

• L

:. .1,-:

... ,;'".

... "r,·-

_.''":"\....

-..

.. --.-

-',.' '."

.... -r'"

-.......
i

;

: I

..".--

... ' ..... .:::·'.c-L ... ,

')1

'_ • • _ 1 ' . . .

~J• • • :

-. -. ~ ..- .. "

... ~.

-.' .---'." "--" '

'.,
"

(:--'.

'--

Page 7
MXR Monthly Report
Mid-Atlantic Region Litigation for the Month of ~ch 2001
i:lutner Consol i·jated
MARO Cons(.Ilidate·j Ll!!olill Center
Biver.
HC
FTCA
Other
Totdl
He
Bivens
FCI Cm-1
fCI MD-t

0
0
0

FCI MRG

MXR

0
0

C
C

Hazelto
n
Ohio
Co.

1
i

L~u~l

Other

Total

('l

2
1

LEX
fCI ASH
FCI MAN
Big ~and~'
M.:Creary
FMC

1
1
()

()

,
...

Winton

0
0
0
0

f'X El'T

Fe rET

rET MED

Frc

SE~'

'l','td.i

C
0

Cnntrac!:~

Biven
s

Consolidated Legaj, Center
Other
He
FTCA

0
0

\l
0

0
0

2
O

!·kl),·\otqi;

Ii':""

Ott.er

Total

C'
0

f'CI BE·:-

FPC ALr.
I.:~~r LEE
lilenviL

('I

Otl,(!:

Cc:.1 q:

FTCA

Cen~t::'

FTCA

e~~y.ley

Lp.:·:ington Gonsol i·jate·.l
H~:
Biven

L~ga!

0
0
(\

Total

Ra910D&1 'J!oul

(

'" .••..•••- -•..••~ ...1

4058

Page 8

MXR Monthly Report
__--------~~----~~~~~--~~----------~--'d_,-AtlantiC Region Litigation Year To Data

(

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:",

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ii"

Re9ioD;&J. Tobl

(" ..

r·.··:

~.;

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':~II;~

:·1.!

:.'~tl.11

~
j

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0

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3

':"r,t t~ r

!i"

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t 11 :".,... !'

Tl'laJ

:')

4
0
0
0

()
I~

to'"

i~,'!,·.:l~·r I', :.~~t

FMC' LEX

;'1-",'

5
~.,

kiv"!u

::E:

Total

I,
I,

.. .I'

2
0

....

Ohiu

: j:

:",'.

f't;l MR';
MXR

:./!.~.a 1 :':~ntf!r
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i
,

4059

UNITED STATES GOVERNMENT

memorandum(
flAir.:

April 6, 2 aaIHid-Atlantic

ATTN OF:

Bill Burlington, Regional Counsel
Mid-Atlantic Region

s~~cr:

March 2001 Monthly Report

REPLY TO

TO:

ATTN:

Regional Office, Annapolis Junction, HD 20701

.Christopher Erlewine, General Counsel
Linda Dubose, Executive Assistant

ADMINISTRATIVE RBMImIBS

JAN

FBB

MAR

Received
Answered

167
144

114
170

138
115

TORT CLAIMS

JAN

FBS

MAR

APR

laY

JON

JUL

AUG

SBP

OCT

NOV

DBC

APR

laY

.roN

JUL

AUG

SBP

OCT

NOV

DBC

JOL

AUG

SSP

OCT

NOV

DBC

JUL

AUG

SBP

OCT

NOV

DBC

180 146 139
# Pending
27
39
36
# Received
66
41
35
# Answered
146 139 171
# Pending
2*
2
2
Month
Over
Six
#
*Serious personal injury cases still under review.
I't"- 'PRIVACY

JAN

33
&lding
#
45
# Received
48
# Answered
32
# Pending
1
# Over 20 Working Days
*Awaiting files from archives
LITIGATION

JAN

FBS

MAR

APR

laY

JON

32
36
46
39
40
43
33
36
3*
2
on all three requests
FBB

lGR

APR

laY

174
Cases Pending
11
8
13
New Cases Received
7
3
4
Habeas Corpus
3
5
3
Bivens
0
0
0
FTCA
2
2
3
Other
Cases Closed
79
Cases Pending
13
9
8
Lit Reports Completed
0
1
a
Cases/Hearings or Trials
1
1
1
Settlements/Awards
$375.
$22.
$100.
$ Settlements/Awards
($ in Thousands)

4072

JON

(

Page 2
MXR Monthly Report
SIGNIFICANT DECISIONS OR ADVERSE DECISIONS :

called him a snitch · n
on
inmate King was assaulted by inmates.
calling inmate King a snitch, another emplo
Office of Internal Affairs that he overheard
snitch , but wasn't sure if any inmates over

King a

MARO - United States v. Tony Jones, 238 F.3d 271 (4'·· Cir. 2001) - We
have sent out guidance to each MXR Warden regarding how to implement
this recent decision , which changes our practice of writing the court
with a request that the Court amend a Judgment and Commitment Order to ·
make a fine or restitution order payable immediately. A copy of our
guidance has been sent to Harrell Watts.
FCC Butner - Jean Brown v. U.S. - In this FTCA/B ivens case alleging
sexual assault of an inmate,

we receved an Order denying our Motion

for Reconsideration.
Judge Boyle ruled that the Plaintiff could file
her FTCA action one day after the six month statute of limitations had
run, based on the theory o f "equitable tolling." He also dismissed
the Regional Director, and now the Director is the sole remaining
Bivens defendant in the case . The Assistant U.S. Attorney has
submitted a recommendation for interlocut ory appeal to the Civil
Appellate Division.
We also submitted a recommendation which has been
reviewed by Joyce Zoldak and forwarded to the Civil Appellate
Division. The Court has given us until May 7·' to file an Answer.
SETTLEMENTS :
FCI BUTNER - Zachowski v. U.S . - We reported in December a tentative
settlement in this FTCA suicide case.
The case - has been settled for
$375,000.
UPDATE ON CASES, TRIALS OR HEARINGS , ETC. NOTED IN PRIOR REPORTS :
FCl Memphis - Cockerell v. U.S. - The Cockerell FTCA case will be
tried before District Judge Gibbons beginning April 30'· in Memphis.
Cockerell is a medically retired Memphis police officer who fel l 20
feet off the "tough one" during SORT training on the FCI Memphis SORT
course.
Pre-trial is set for April 20 " . AUSA Harriet Halmon will
try the case and Michael Pybas will assist.
FCl BECKLEY- Debbie Stevens will be in Richmond, Virginia on AprilS,
2001 for the Fou rth Circuit argument for Cunningham v. Scibana, Case
No . 1 :00 -0223 (FPC Alderson).
This inmate filed a habeas action
wherein she disputed th e determination that her tampering with a
consumer product conviction precluded her eligibility for early
release.
The magistrate judge had entered findings that recommended
she be declare'd eligible for early release. Objectio ns were filed.
The District Court Judge declined to adopt the magistrate judge's
recommendation and upheld our determination that sh e was inelig ib le
for early release.
The inmate, through the Federal Public Defenders
Offic e, appealed the case to the Fourth Circ u it.

4073

Page 3

MXR Monthly Report

(

CRIMINAL :
- Joe Tang assisted Criminal AUSA Dave Marye,

E.D. Ky.,

arlslng out of -the
uCloE:oning death of inmate Tracy Hearlson,
663-086, at FMC
Lexington.
Joe assisted with locating staff and inmates, obtaining
criminal discovery materials and releasability issues.
Trial is
tentatively set for April 23, 2001.
was indicted in
FCI BECKLEY He pled guilty to
September for Possession of Contraband (a weapon).
the charge in January 2001. He is scheduled to be sentenced April 9,
2001.

FCI BECKLEY -

------- -

~were prevl0usly lndlcted for Assault (18 U.S.C. §
111 (a) (1) and 111 (b» .
The charges stem from the disturbance' at FCI
Beckley in December 1999.
Discovery continues as we prepare for
trial.
Trial is scheduled for April 10-11.

former Chaplin, was indicted on January
FCI BECKLEY Intent to Distribute Heroin. Trial is
31 , 2001, for
ses on
set -to begin April 17, 2001.

SITUATIONS OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS WASTE
SITES, ETC.:

(
\.

MXR - We have three serious medical malpractice FTCA cases at the
administrative stage.
Nideffer alleged neglect while an inmate at
FDC, Milan during his with-drawal from drugs and alcohol.
After
cardiac arrest he was transferred to a local hospital.
AFIP and BOP
review indicate serious lapses in care.
Claimant has since died of
unrelated causes. The sum certain is $750,000.
We offered $5000 in
settlement . The estate's attorney is currently requesting $150,000.
We are in the process of obtaining information on what the claim may
be worth, and we will be attempting to settle.
Salvatierra suffered a
heart attack and heart damage at FCI, Cumberland.
AFIP and BOP review
mant's attorney asserts
in Maryland does not apply.
We are doing further research on this
issue. Dalton complains of misdiagnosis primarily at FCI, Cumberland.
We are researching statute of limitations issues.
Inmate claims
current paralytic condition is the result of neglect, delay in
treatment, etc.
We have requested review by Dr. Kendig and we are
awaiting his response.
Demand is SlO million.
FMC LEXINGTON - Judge Forester, E.D. Ky. called an emergency hearing
in Antonio Pagan v. Thoms, a nd gave Defendant two days to file a
response in this official capacity Bivens case.
Pagan claims to be in
extr eme pain and in need of bladder obstruction surgery.
Examination
of his records showed his clai ms were meritless.
The hearing was
canceled after our medical argument and exhaustion argument were
filed.
Judge forester has given Plaintiff a chance to file remedies,

4074

(

Page 4
MXR Monthly Report
but dismissal is likely in the near future.
FMC LEXINGTON- Joe Tang and FMC Lexington Clinical Director Michael
Growse, M.D., prepared a detailed response to the medical report of
inmate
I, prepared by Burgess' personal
physician in South Carolina and court-appointed "expert." Dr. Weber,
an endocrinologist, was critical of our care of Burgess' brittle
diabetes. Weber praised Burgess' eating of vast quantities of junk
food as a good way of preventing low blood sugar.
Burgess is on writ
to South Carolina, where the court is considering a motion for his
home confinement due to his medical condition. Our detailed response
pointed out Burgess received,all his needs for his insulin pump,
specialty consultation, permission to eat in the diet kitchen,
counseling by our registered dietician, but refused to cooperate with
managing his diabetes and continued to smoke and eat junk food, which
has been a consistent pattern with Burgess even before incarceration.
A hearinq will be held in the future to address this issue.

FMC LEXZNGTON - Inmate
from Los Angeles,
filed a motion and declarations from outside medical personnel
'{)-1(j
alleging he is not receiving proper medical-care for his heart
problems.
He sought a downward departure from his sentence before
sentencing, and has continued to pursue this issue even after
sentencing.
Judge Takasugi, C.D. Ca.,
initially called a hearing on
this matter, but canceled the hearing after we prepared a written
response to the inmate's allegations.
Judge Takasugi now only
requests a written follow-up response to Tobeler's claim that he needs
External Enhancement Counter Pulsation, an experimental treatment for
cardiovascular problems.
~O

- Pub1ic Works Projects - Marian Callahan prepared a memo, which
Margaret Hambrick sent to each MXR Warden, informing them of the new
Program Statement, #5250.02, Public Works and Community Service
Projects.
Marian's memo lists all the public works projects in MXR,
and suggests how Wardens can get more inmates involved in these
projects.
Personne1 Zssues

FMC LEXINGTON -

FMC BUTNER will be hosting the Medical/Legal Issues Training at the
complex from April 23-26.
FCZ CUMBERLAND -

4075

Page 6

MXR Monthly Report

\.........

'-''':.
:: .

".'

··-f,"
"~

.';,-:

r , ".

. :t'

J ;.. ",

.,,-'

,:'

. !-

.. ,,

-.,.."--._------I

. l ..

... :.,ii,

. ~! : J •

c.
::'4076

Page 7
HXR Monthly Report

(

Mid-Atlantic Reg'ion Litigation for the Month of Mazcb 2001
t-'.ARO Corls~\!i·jat c·j !.."=!~;.1 Centp.c
f;i Jtrl~r l"ons"J ~·1.:ttf>.f
Other
aivens
HC'
T'.'tdl
:r'~A

FeI eUN
FeI MD-t

(;

FeI

HXR

rrc SEY

Hazelto
n

Wintcn

Ohio

;--·::r e"""

r£'!'

~'£'l'

Ml::r·

('l

("not ract ~

Co.

Le:-:i ngt em ConsoJ i·j~tp.·l i..C!CJa! en:.~
W'
FTCA
Hi veri

Other

TaU!

FeI ASH
FeI MAN
~anojy

M,:'r.rea r)'

B:':"
FI':' ALr.
p~:r I.E::

('I

":'

Tnt .. 1

s
f'('J

BiQ

E!fo,'I:le", ConsoliliilteoJ L~aa~ CentfH
Othru
Biven
He
FlC".A

"!:

s
FMC LE>:

Ot lit!:

,.....

,
F'"

MRG

F'TCA

('.

tiiqr,,·ii.

1·"'1-"10(";.
3

Hi ,-.:Jr.:-:

r
n

2
C
0

,,.

Total

1'eg1onal Total

.. .._ .. .•..1

4077

UNITED STATES GOVERNMENT

memorandum
DATE;

May 7,

200lM:.o

ATTN OP;

Bill Burlington, Regional Counsel
Mid-Atlantic Region

SUBJECT.

April 2001 Monthly Report

REPLY TO

TO.

ATTN.

At::t:-:t:.c Reglonal Offlce. Annapolls Junctlon. MD 20701

Christopher Erlewine, General Counsel
Linda DuBose, Executive Assistant

ADM:IN:ISTRAT:IVE REMEDIES

JAN

FEB

MAR

APR

Received
Answered

167
144

114
170

138
115

122
103

TORT CLAIMS

JAN

FEB

MAR

APR

MAY

JON

JUL

AUG

SEP

OCT

NOV

DEC

MAY

JON

JUL

AUG

SEP

OCT

NOV

DEC

JON

JUL

AUG

SEP

OCT

NOV

DEC

180 146 139 128
# Pending
Received
36
34
27
39
#
41
35
39
66
# Answered
146 139 128 113
# Pending
2*
3*
2
2
# Over Six Month
*Serious personal injury cases still under review.
"

(.....

IPRIVACY

JAN

33
# Pending
45
# Received
48
# Answered
32
# Pending
1
# Over 20 Working Days
*Awaiting files from archives
waiting on contract review.

LITIGATION

JAN

FEB

MAR

APR

MAY

33
63
S4
4S
33
2
4*
3
on three requests; 1 request MXR portion completed,

32
46
43
36

36
39
40

FEB

MAR

APR

Cases Pending
174
79
New Cases Received
13
11
8
9
Habeas Corpus
7
3
4
5
Bivens
3
2
3
5
FTCA
0
0
1
a
Other
2
1
3
2
Cases Closed
7
Cases Pending
79 81
Lit Reports Completed
8
9
13 11
Cases/Hearings or Trials
0
1
0
0
Settlements/Awards
1
1
1 0
$ Settlements/Awards
$100. $22. $375. 0
($ in Thousands)

4099

MAY

JON

JUL

AUG

SEP

OCT

NOV

DEC

BEARINGS/TRIALS:

1) United States v. Hector Ayala, (EOPA) On March 5, 2001, the Court
held a resentencing on a case involving a joint state federal plea
3

agreement which did not properly take into account state law.
This
office has been working with the u.s. Attorney's office over the past
three years in an effort to best accommodate the Federal Court's
intent. Ron Booher, Regional ISM and Michael Tafelski assisted at the
hearing.
2) United States v. Bin Laden, 98 Cr. 1023 (SONY) - The trial judge
held two hearings involving MCC NY in the Embassy Bombing case. On
March 27, 2001, Judge Sand held a hearing regarding the conditions of
confinement for inmate Mohammed Adam, 45047-054. The attorney
complained about restrictions. The court told the defense attorney
she needed to abide by MCC's policies .
.

On March 29, 2001, Judge Sand held a hearing concerning voluminous
subpoenas served by the attorney for inmate Mohammed Al-Owhali, 42371054, on the media, numerous government agencies (including MCC New
(
York), ,and current and former government employees. Judge Sand was
'"
extremely skeptical about the attorney's justification for the
subpoenas and held them to be over broad. Judge Sand instructed the
attorney to revise the subpoenas to government entities and resubmit
them for review.
3)U.S. v. Mercardo, - (SONY) On April 3, 2001, a sentencing hearing
was held before Judge Marrero regarding MCC New York inmate Damaso
Mercardo, 12353-054. The hearing was expedited as concerns for the
medical care of the inmate needed to be addressed.
Dr. Glover and
Andrea Girolamo, Attorney assisted at the hearing by explaining the
inmate's medical condition and the care the Bureau can provide. The
judge sentenced the inmate to the balance of his supervised release
time (7 months), committed him to the custody of the Bureau and asked
that he be placed at a facility where he can receive adequate medical
care.
D. RELIGIOUS CASES:
1) Toulouse, et. ale v. United States, et. al., 00-4840 (DN~)
Three FCI Fort Dix inmates allege that the institution has not
provided them proper materials to perform the required sweat lodge
ceremonies. In addition, one inmate alleges that he was injured
trying to split firewood. The representation requests of the

4100

Page 2

MXR Monthly Report
SIGNIFICANT DECISIONS OR ADVERSE DECISIONS:

(

FCI BECKLEY - Paul King v. United States, et al. - We learned that the
Department of Justice has approved our recommendation for private
counsel representati on of the Beckley defendants in this Bivens suit.
Beckley inmate Paul King alleges defendant Taylor called him a snitch
in front of other inmates.
Some time later, inmate King was assaulted
by inmates.
While defendant Taylor denies ever calling inmate King a
another employee-defendant told the Office of Internal Affairs
overheard defendant Taylor cal
but
sure
es overheard the remark .

FCI MEMPHIS - Demetrius Hutcherson (Inmate Death)- Michael Pybas has
utilized the attorney work-product privilege to order an investigation
into the death of FCI Memphis inmate, Demetrius Hutcherson.
Inmate
Hutcherson committed suicide by hanging himself with his belt, on
.April 21, 2001.
The FBI is a lso investigating this incident.
FCI MANCHESTER - Kenneth Allen (Victim of beating by escaped inmate)
Civilian Kenneth Allen has filed a request for reconsideration of his
$100,084 . 00 administrative claim, which was filed after he was beaten
by an escapee from Manchester Camp.
Mr. Allen has also sent copies of
his request to Kentucky Senator Mitch McConnel and Congressman Hal

... .. .

Rogers.

We denied the clai m based on the Discretionary Function

FCI CUMBERLAND - Facundo v. United States - The District Court granted
Summary Judgment in favor of the Government in this FTCA case
involving negligent classification , medical care, dental care, and
concerns with placement in IFRP refuse status .
In a comprehensive

decision by District Judge Andre Davis of the District of Maryland, it
was determined that the discretionary function exception shielded the
Bureau from FTCA liabilit y arising from classification of .inmates .
. ' Regarding medical and dental care, "The evidence in this case
indicates a level of concern for.

and prompt responses to Facundo's

needs; he does not raise the faintest hint of medical malpractice."
Concerning IFRP the Court noted that inmates are not required to
participate in IFRP; however, "they are not free to stop the payments
and continue to receive the benefits afforded those who live up to
their voluntarily accepted obligations . "
SETTLEMENTS:
FCI MILAN - Billie Nediffer IFTCA Administrative Claim) - We have
offered $20,000 to plaintiff's attorney in this failure to treat case
out of FDC Milan .
Inmate Nediffer suffered damages when he was not
treated for drug withdrawal.
Pla intiff's last demand was $150, 000.
This medical malprac tice case has been approved for settlement
negotiations by Dr. Ke nd ig.
UPDATE ON CASES, TRIALS OR HEARINGS, ETC. NOTED IN PRIOR REPORTS:

4101

Page 3

MXR Monthly Report
FCI MEMPHIS - Cockerell, et ux . v. United States - At the pre-tri a l
conference the court referred the matter to a Magistrate for
settlement conference scheduled for May 21.
The trial will be held
approximately 30 days thereafter i f a settlement cannot be reached. A
memo is being forwarded to the Litigation Branch seeking settlement
authority in this claim brought by a Memphis Police Officer who broke
his back after falling off a rope on the SORT training course at FCI
Memphis .

FCI MANCHESTER - Palasty v . Hawk - (Ensign Amendment Case) - DOJ has
filed a response to appellant's brief in the 6'" Circuit . DOJ is
concerned that the 6'" Circuit has decided to hear this case .
Given
that concern, DOJ has argued that appellants did not file a timely
appeal of the District Court's decision to uphold the Ensign
Amendment, but only properl y appealed the decisions on class
certification and exhaustion o f administrative remedies.

FPC CUMBERLAND - Alicia Daniels-L·e wis , attorney, Mid-Atlantic Regional
Office, attended a deposition in the case of FPC Cumberland employee
Kathy Reed v . Ecolab, Inc. While the BOP is not a party to this law
suit, Ms. Reed alleges she sustained injuries while combining bleach
in the laundry . Basically Ms. Reed's cause of action is based on
strict liability, however, the BOP is concerned that Ecolab may
attempt to bring us in as a third party defendant on the basis that
the bleach was tampered with or stored improperly.
FCI CUMBERLAND - Lugo v . Gunja - This habeas case brough t by a D.C.
Code inmate directly involves educational good time credits for D.C.
inmates.

The case also involves complex questions about t he

applicability of industrial goo d time and meritorious good time under
18 U.S.C . § 4162 and D . C. Code provisions. We are working closely
with ISM at the institutional, regional, and central office levels,
and with Legislative and Correctional Issues Branch to be sure about
the inmate's sentence computation and the Bureau's response (due on May

9, 2001) in the District of Maryland.
CRIMINAL:
FCI BECKLEY - Matthew Garvey, Reg . No. 33417-037, was indicted in
September for Possession of Contraband (a weapon).
He pled guilty to
the charge in January 2001 . He was sentenced April 9, 2001 to 27
months consecutive.

111 (a ) ( 1 ) and
c harges stem from the disturbance at Fer
Bec k le y in December 199 9 . Discovery c o ntinues as we prepare for
trial . Trial is scheduled for May 30-31.
FCI BECKLEY 31, 2001, for Possess on
set t o begin May 22, 2 00 1 .

f o rmer Chaplin, was indicted on January
In t ent t o Distribute Heroin . Trial is

Fcr BE CKLEY - Abu Shakur , Re g . No. 16 3 91-016, was indicted Ap r i l 4,
200 0 , for assaulting a staff member . He was sentenced to 10 years

4102

(
.

Page 4
MXR Monthl y

Report

consecut. i ve on September 13, 2000.
In Apri l , inmate Shakur's sentence
was affirmed by the Fourth Circuit.
FMC LEXINGTON - Former FMC Lexington female camp inmates Lisa
Contreras, 05982-030, and Chris tine Mahoney, 07661-040, were sentenced
to eight. months each for their escape from Atwood Camp on October 7,
2000.
They will serve their sentences consecutive to their current
sentences.

FMC LEXINGTON - On April 16, 2001, Dominic Palazzola, 53757 - 097, pled
guilty t.o second degree murder for the death of inmate Tracy Hearlson
at FMC Lexington in September 1998.
i ve a sentence
in the range of 262 to 327 months.
has not
yet agreed to plead, and his trial ha
the summer
or next fall.

SITUATIONS OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS WASTE
SITES, ETC.:
FMC LEXINGTON - Joe Tang assi sted AU SA John Barton in the District of
the resolution of a home detention issue regarding

inmate
community

a locally-prominent businessman who had the local
essuring the sentencing judge for release.
AUSA John

Barton recognized Judge Ross Anderson wanted a resolution involving

(

home detention or confinement, so an agreed order between the ' AUSA and

defense counsel was entered wh ich indicated~received proper

care for his brittle diabetes at FMC Lexington, but given his unique
medical condition , his sentence is reduced to time served and he is

ordered to serve home detention . This case was highly unusual because
the sentencing judge claimed to preserve jurisdiction after sentencing
because he did not rule on a medical downward departure motion, and
the judge had appointed inmate
personal physician and friend
as court expert t o "inspect" FMC Lexington for
(request
denied).
However, after significant efforts of FMC LeXing.,tiioiin• •iiina
assisting the AUSA to uphold our reputation in caring for _
and
the interests
the AUSA and defense couns
~

FCI PETERSBURG - Inmate
filed an
administrative remedy claiming he is illiterate,
telephone limit is not enough to maintain family ties since
cannot
read or write.
His remedy was denied based upon the rationale
provided by the Central Office.
It was also noted that he has been
enrolled in the GED program which will improve his literacy (it' s
debatable whether he is actually il literate ).
It was also noted that
from April 1" through 18", he made a total of 42 telephone calls.
Personnel Issues:

---

4103

_nC

. - - -..

-.-------------~

Page 7
MXR Monthly Report

e::I

(

4104

Page 8
MXR Monthly Report

(

Mid-Atlantic Region Litigat;on for the Month of April 2001
MARO Consolidated Legal Center
Bivens
HC
FTCA
Other
FCr CUM
FCr MEM
FCr MRG
MXR
Hazelto
n
Ohio

3
1

0
0

0
0
0

•

Lexington Consolidated Legal Center
HC
FTCA
Biven
s
0
0
1
FMC LEX
0
0
FCr ASH
0
0
0
0
FCr MAN
0
0
BiCI Sandy
0
0
0
McCreary
0
0

Bivens

aag:Lcmal Total

F::: BUT
FC! PET
?::"'T' MED
FFC SE'r

Co.

(IL.·

0
0
0

-:-o~a:

0
0

:
1

1
1

0
II

0
0

Total

...

W~nton

;;,

'JA

Beckley Consolidated Legal Center
FTCA
Other
Biven
HC
s
FCI BEC
FPC ALD
;;S? LEE
\:::'envill

:'or.:rac:s

O:hel'

,..

Butner Consolidated Legal Center
Biven
HC
F'I'CA
Other
s

7o:a:

Total
1

0
0

0
0
0
0

1
0
0
0

0
0
0
Ii

0
0
0

0
0

J
0

0
Q

o?
~:;).:>well

HC
5

FTCA

Other

Total

_---------------i

(

4105

Page 9
MXR Monthly Report

(

Mid-Atlantic Region Litigation Year To Date
MARO Consolidated Legal Center
Other
FTCA
HC
Bivens
FCI CUM
FCI MEM

5
2

0
2

FCI MRG
MXR
Hazelto
n
Ohio
Co,

0
0
0

Total
5

0
2
0

0
0
0

0
2
0

Lexington Consolidated
Biven HC
s
FMC LEX
2
2
FCI ASH
1
3
0
FCI MAN
2
Big Sandy 0
0
McCreary
0
0
5

llegicm&l 'rotal

L~ al

Center
Other
FTCA
1
0
0
0
0

0
0
0
0
0
0

Butner Consolidated Legal Center
nCA
Other
HC
Bivens

Total
5
<&

FCC aUT
FCI PET
PET MED
FPC SEY
Winton
VA Contracts

0
0
0
\I

0
0
0

0
0
0
0

0
3

-l

0
0
0

0
0
0
0
4

0
2

1
0
0
0
0
1

Total
7

0
0
0

0
0

Bivens

FTCA

:;tn.::.I.'

Total

4106

0
0
0

0
0

Beckley Consolidated ~egal Center
Bivens
HC
FTCA
Other
FCI BEC
FPC ALD
USP LEE
Glenville
McDowell

Total

UNITED STATES GOVERNMENT

memorandum
j·A.F.:

~~uru

June 7, 200 IMid-Atlantic

ATTN OF:

Bill Burlington, Regional Counsel
Mid-Atlantic Region

SUBJECT:

May 2001 Monthly Report

~"
AnN:

Regional Office, Annapolis Junction, HD ~0701

Christopher Erlewine, General Counsel
Linda DuBose, Executive Assistant

ADMINISTRATIVE RBMBDIBS

JAN

FEB

MJUl

APR

MAY

Received
Answered

167
144

114
170

138
115

122
103

149
180

TORT CLAIMS

JAN

FEB

MU.

APR

MAY

JON

JtJL

AUG

SliP

OCT

NOV

DBC

JON

JtJL

AUG

SliP

OCT

NOV

DBC

180 146 139 128 113
Pending
27
39
36
34
33
Received
#
33
66
41
35
39
Answered
tt
146 139 128 113 120
Pending
3*
2
3
2
2
# Over Six Month
*Three are Serious personal injury cases still under review.

(

r·/PRIVACY

JAN

33
# Pending
45
# Received
48
# Answered
32
# Pending
1
# Over 20 Working Days
*Awaiting files from archives
. LITIGATION

JAN

I'BB

MU.

JON

JOL

AUG

SSP

OCT

HOV

DBC

JON

JOL

AUG

SliP

0C'l

NOV

DIIC

MJ\Y

45
33
32
36
56
63
39
46
61
54
40
43
45
38
33
36
2*
4
3
2
on both requests
FEB

!GUt

APR

79
174
Cases Pending
9
8
11
13
New Cases Received
5
7
3
4
Habeas Corpus
2
3
5
3
Bivens
1
0
0
0
FTCA
1
2
2
3
Other
7
Cases Closed
79 81
Cases Pending
13 11
8
9
Lit Reports Completed
0 0
1
0
Cases/Hearings or Trials
1 0
1
1
Settlements/Awards
$100. $22. $375. 0
$ Settlements/Awards
($ in Thousands)

4115

MAY
81
4
3
1
0
0
10
75
13
1

1
$50.0

Page 2
MXR Monthly Report
SIGNIFX~T

DECISIONS OR ADVERSE DECISIONS:

FMC LEXXNGTON - Berry v. Thoms - Judge Wilhoit dismissed an Eighth
Amendmen1: failure to protect Bivens lawsuit against a correctional
officer and counselor for Plaintiff's failure to exhaust
administrative remedies.
Plaintiff was assaulted in his , housing unit
by anothe r inmate and did not file sui t until near 1 y a year a fter the
assault.
He did not file any administrative remedies but merely sent
a cop-out to Attorney !oe, Tang. Plaintiff argued this constituted"
substantial comp11ance w1th the remedy system, espec1ally S1nce he
could not receive money through the remedy system.
SETTLEMENTS:
MXR CLC -

Cockerell v. U.S. - At the May 21" settlement conference,
we settled this personal injury case for $50', 000.
We had been
authorized to go as high as $60,000, given the significant injuries
suffered by plaintiff. This case involved a Memphis police officer
who was severely injured while training on the FCI Memphis SORT
course .
As a result of this case, each MXR CLC supervisor has been
asked to review the agreements which institutions have drafted
regarding use of their facilities
FCI MILAN - We continue to make good progress in our
efforts to sett
this FTCA~e claim, wherein the estate
of former FOC Milan inmate ~sues for personal injury
suffered when medical
nize the eff
f

UPDATE ON CASES, TRIALS OR HEARINGS, ETC. NOTED IN PRIOR REPORTS:
MXR CLC -

copy of a
a pretrial inmate
monthly phone limit as it
applies to attorneys placed on the inmate's telephone list.
The
motion alleged that Wilson had exhausted his 300 minutes by May 18,
2001, that staff informed him he would not be allowed to use the
telephone (including calls to his attorneys), until June 2001.
Wilson
sought "unrestricted telephone calls to counsel rather than including
legal calls in his monthly allotment."

Before the government could respond, , the Judge ruled (May 29, 2001) in
favor of Wilson, granted his motion and ordered FCI, Memphis to "not
include any of Bryant Wilson's telephone calls to counsel representing
him within the 300 minutes of telephone use per month he is allowed."
On
May 31, 2001, the MXR CLC sent a letter with attachments to the AUSA
outlining the three methods of communication with attorneys (including
two types of phone calls).
We demonstrated that Wilson had been
informed about placing properly requested legal calls on unmonitored
phones and that he in fact had requested at least one.
We explained
that if he chose to put his at torneys on his phone list, then he was
agreeing that calls made to them o n inmate phones would be monitored
and would count again s t his 300 minutes, but that doing so would not

4116

(

Page 3
MXR Monthly Report
prohibit him from making requests for unmonitored legal calls that
would not count against his minutes and that he could make such calls
to the extent staff resources would allow.
We also pointed out that
none of the 300 minutes of telephone calls made during the month were
to the numbers listed for his attorneys.
This letter was attached as
an exhibit to the government's mot ion for reconsideration or
clarification.
CRIMINAL:
BECKLEY CLC -

~ were previously indicted for Assault

(18 U.S.C.
111(a) (1) and 11l(b)). The charges stern from the disturbance at FCI
Beckley in December 1999. Discovery continues as we prepare for
trial.
The trial, scheduled for May 30-31, has been postponed.

former Chaplin, was indicted on January
FCI BECKLEY with
Intent to Distribute Heroin. Trial, set
2001,
for
31,
for
May 22, 2001, has been rescheduled for July 17, . 2001.

---.-----

(

FMC LEXINGTON has agreed to plead guilty
to Voluntary Manslaughter resulting in the death of inmate Tracy
Hearlson at FMC Lexington in September 1998. This will result in a
senterice in the range of seven to eight years.
This plea would bring
closure to the Hearlson homicide case and the FTCA civil case arising
out of Hearlson's murder will be reopened.
SITUATIONS OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS WASTE
SITES, ETC.:
FCI MANCHESTER - Civi lian ~as been offered $279.10, for
his role in help i ng to appreherid an escapee from Manchester Camp. At
the same time, we have denied
tort claim, wherein ~e seeks
over S100,OOO for
he
fe

RALEIGH CCM OFFICE - Inmate
is being retained at
the halfway house in Charleston,
est Virginia, as a result of an
inquiry to the Director by his sentencing judge, Joseph Goodwin.
After initiall y designating
to a halfway house for service of
his 15 month sentence, we rece~ved a request from the Tax Division,
citing the 10~ limitation in 18 U.S.C. §3624(c), asking BOP to place
in a BOP facility.
When the Judge learned of our plans to move
. . to the Beckley Camp, he wrote the Director obj ecting to the
re-designation, quoting BOP staff who told him we make direct court
commitments to halfway houses when the sentence is 18 months or less.
We are working with Paul Layer o n a response to J udge Goodwin.

(

FMC LEXINGTON - Atwood Camp inmates are filing motions with their

4117

~~C-

"'.

Page 5
MXR Monthly Repprt

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Page 6

MXR Monthly Report
(.

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Mid-Atlantic ~icn Litigation for the Month of May 2001
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page 7
MXR Monthly Report
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4120

UNITED STATES GOVERNMENT

memorandum(
DATE.

July 6, 200 lMld-Atlantic

Ami OF,

Bill Burlington, Regional Counsel
Mid-Atlantic Region

SUBJECT.

June 2001 Monthly Report

REPLY TO

TO.

ATm.

Reglonal Office. Annapolis Junctlon.

2070~

Christopher Erlewine, General Counsel
Linda DuBose, Executive Assistant

ADMINISTRATIVE RBMBDIBS

JAN

PEB

MAR

APR

MAY

JON

Received
Answered

167
144

114
170

138
115

122
103

149
180

131
113

TORT CLAIMS

JAN

PEB

MAR

APR

MAY

JON

Jt1L

AUG

SEP

OCT

NOV

DEC

JUL

AUG

SEP

OCT

NOV

DEC

# Pending
180 146 139 128 113 113
# Received
27
39
36
34
33
34
# Answered
66
41
35
39
33
25
# Pending
146 139 128 113 120 124
# Over Six Month
2
2
2
3
3
4*
*Three are Serious personal injury cases still under review.
/PRIVACY

JAN

PEB

MAR

APR

MAY

JON

# Pending
33
# Received
45
# Answered
48
# Pending
32
# .Over 20 Working Days
1
*Awaiting files from archives

32
36
33
45
46
39
63
56
43
40
54
61
36
33
45
38
2
3
4
2
on one requests

38
49
46
37*
3*

LITIGATION

FEB

MAY

JON

81
4

75
13

JAN

MAR

APR

Cases Pending
174
79
New Cases Received
13
11
8
9
Habeas Corpus
7
4
3
5
Bivens
3
5
3
2
FTCA
o
0
o
1
Other
3
2
2
1
Cases Closed
7
Cases Pending
79 81
Lit Reports Completed
13 11
8
9
Cases/Hearings or Trials
o
1
o 0
Settlements/Awards
1 0
1
1
$ Settlements/Awards
$100. $22. $375. 0
($ in Thousands)

1
2

1
1

0
0

$50.0

4140

JUL

AUG

SEP

OCT

NOV

DEC

Jt1L

AUG

SEP

OCT

NOV

DEC

(

Page 2

MXR Monthly Report

(

SIGNIFI CANT DECISIONS OR ADVERSE DECI SIONS:
FCI MANCHESTER - Palasty v. Hawk (Ensign Amendment Suit) - The Sixth
Circuit has affirmed the dismissal of this attempted class action
challenge to the Ensign Amendment's limitation on receiving sexually
explicit publications . The Court dismissed the case, finding that an
inmate could not adequately represent the class of 60 inmates, and
that the one plaintiff who exhausted administrative remedies, did not
file a timely challenge to the lower court's finding that the Ensign
Amendment did not violate the inmate's First Amendment rights.
FCI CUMBERLAND - Burrell v. Gunja - We received a very favorable
ruling supporting our reduction of the rate of good time given to an
inmate who refused to attend a mandatory literacy program, under 18
U.S.C . § 3624 (f).
In essence, the court held that Sandin stands for
the proposition that earned good time cannot be taken without
procedural due process protections, but there is no "liberty interest"
involved in the mere opportunity to earn good time . Given the impact
of this decision, especially with District of Columbia inmates, we
have asked that this opinion be published.
FCI LEXI NGTON - McGee v. Thoms - Judge Forester dismissed this 3621(e)
habeas petition based upon mootness because McGee had been expelled
f r om the RDAP.
However, the dicta from the opinion indicates the
Court does not believe the BOP has the authority to categorically deny
inmates early release based upon pre-conviction behavior prior to

sed in

(

FCI CUMBERLAND - Lugo v. Gunja - Petitioner is a D.C. inmate currently
incarcerated at FCI, Cumberland.
He filed a petition seeking the
award of meritorious goad time credits and educational good time

credits earned while in BOP custody . We argued that the meritorious
good time credits sec tion of the D.C . Code (and by analogy 1 8 U. S.C . §
4162) is wholly discretionary and theref or e does not create protected
liberty interest in receiving such credits. The court dismissed this
issue with prejudice holding that petitioner "plainly has no statutory
or constitutional right to receive them,

as their award is utterly

discretionary by statute . " Although we conceded that Petitioner was
probably entitled to receive educational good time credits, we
indicated that we were in the process of implementing our program and .
that Petitioner's courses taken while in BOP custody would be reviewed
to see what, if any, credits he would be entitled. The court
dismissed this portion as not ripe stating that the credit involved
would have no effect at present except to advance his parole
eligibilit y date, but because no decision had yet been made to
withhold such credits he is not y et being confined in v iolation of the
constitution or any laws.

This issue was dismissed without prejudice.

SETTLEMENTS :
FCI MI LAN - Billy Nidiffer - We continue our efforts to settle this
FTCA administrative claim, wherein the estate of former FDC Milan
inmate Billy Nidiffer sues for personal injury suffered when medical
staff failed to recognize the effects of drug and alcohol withdrawal.

4141

Page 3
MXR Monthly Report
We have now offered $35,000, in response to plaintiff's latest offer
of $90,000,

UPDATE ON CASES, TRIALS OR HEARINGS, ETC. NOTED IN PRIOR REPORTS:
FCI MEMPHIS - U
is a previously reported case in
which pre-tri
challenged the 300 minute limit
on monitored telephone
t ruled prior to hearing from
the government and ordered that calls to Wilson's attorneys placed on
the ITS II system not be counted against his 300 minute limit . The
court has not yet ruled on the government's motion for clarification
but did acknowledge in court that she had ruled before the government
was given a chance to respond.
Wilson has since filed a motion for a transfer from FCI/FDC Memphis
stating that his legal visits, telephone privileges and access to
legal materials are inadequate. He also alleges that staff, including
the warden, Associate Warden and Correctional Counselor have
threatened retaliation for his allegations. This is a high-profile,
capital murder case involving several armed bank robberies, the last
of which included the homicide of a 79 year-old bank customer.
The
government is contemplating seeking the death penalty and the state
has already indicated it will seek the death penalty.
A cooperating
witness is being held in the CCA facility in Mason, Tennessee, the
facility Wilson has requested to be transferred to.
The U. S.
Attorney's office took great steps to see that Wilson would be housed
at FCI/FDC Memphis and made arrangements with the USMS to place him
there and to keep him separate from the cooperating co-defendant .
Therefore, the AUSA is opposing the motion . The AUSA is also opposing
the motion as factuall y false and has indicated the government's
willingness to have a hearing on the matter .

tf"[C./

("
.

CRIMINAL:
LSCI BUTNER
Marijuana, and

Contraband, as
Butner,

pled guilty to Possession of
guilt y to Introduction of
a conspiracy to introduce drugs into LSCI

FCI BUTNER - Inmate
is charged with killing another
inmate at FCI Butner .
s currently scheduled for trial in
the Eastern District of
rolina the week of July 23, 2001.
However, according tolllllllllllcompetency evaluation, he is not
competent to stand tri~e charges. Accordingly, the U,S ,
Attorney's Office may decide to dismiss the charges.
FCI._ BECKLEY - Inmate
_
were prevl.ous
~urbance at FCI Beckley in December 1999.
Discovery
continues as we prepare for trial . The trial was postponed from May
30-31,

, former Chapla i n , was indicted on January
FCI BECKLEY th I nt ent t o Distribu te Heroin. The trial
31, 20 0 1 , for
It wi ll likely be postponed.
has been rescheduled for Jul y 1 7 , 20 01 .

4142

(

Page 4
MXR Monthly Report
FPC ALDERSON former Correctional Officer, has been
indicated for Abusive Sexual Contact in violation of 18 U.S.C. §2244.
Trial has been rescheduled for September 5, 2001.

4143

Page 5

MXR Monthly Report
ITUATIONS OF INTEREST, CONTACT WITH FEDERAL BENCH, HAZARDOUS WASTE
SITES, ETC.:
(Raleigh CCM Office) - Inmate
fway house in Charleston, West
inquiry to the Director by his sentencing judge,
After initially designating Spears to a halfway
service of his 15 month sentence, we received a request from
citing the 1 0 % lim~tation in 18 U. S . C . §3624 (c ) , t o
BOP facilit y . When the Judge learned of our plans
to
to the Beckley Camp, he wrote the Director objecting to
the re-de
ion, quoting BOP staff who told him we make direct
court commitments to halfway houses when the sentence is 18 months or
less . We are working with Paul Layer on a response to Judge Goodwin .
FPC ALDERSON - We hav e just denied the tort
claim of Alderson
who claims she was sexually
assaulted by a male staff member . In fact, the former staff member
has been indicted, and will go to trial this July . We denied the tort
claim, citing West Virginia agency law that supports our position that
the male employee was not acting within the scope of his duties when
he sexually assaulted inmate Craig .
BUTNER CLC - Involuntary Medication Hearings - Recently Butner has had
an increase in the number of involuntary medication cases where the
hearing officer determined that a pretrial inmate was not dangerous,
and the only reason to treat him was to restore his competency f o r
trial (i.e. Brandon ) . All have been referred back to the AUSA to
determine whether the court wants to hold its own involuntary
medication hearing . Currently there are three such cases outstanding,
and one has been scheduled for hearing in the S . D. N.Y. on September
9, 2001.

c.,

Personnel Issues:

bLo

Staff Leave and Travel
- July 16 & 1 7
30
J ul y 19

Beckley and Lee County
An nual Leav e

- -~ -

- Jul y 2- 3 - Annual Le ave

4144

_.. .. _".,
,

--.....

__--------_._--,---- ----_. __
.

._.

',.

_........--_.- ..

-_. ---'--'"

Page 7
MXR Monthly Report

(.,

'~"

,.~., .. ,:

_ . . - - _ _ _ _ _ _ _ ,.. _ _ _ _ _

..........--...._~

. . . . . . . _ _- - _. . . . . . . . . . . . . . . . . . . . . . . . _ _

,0 • • • ' ......

. . . . - . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , _ ... _

(~-..

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·~:4145

•• ___

, ••• _

•••••••

_ _•

. , _. . . . . . . _ ,

. - • •, -

. . . . . . . . . . . . "" . . . . , , -

... _ _ _ _ . . . . . . . . . . . . . . . . . . .

Page 8
MXR Monthly Report
Mid-Atlantic Region Litigation for the Month of JUDe 2001
MARO Consolidated Le~al Center
Other
HC
FTCA
Bivens
FCI
FCI

0
0

CUM
HEM

FCI MRG
MXR

Hazelto
n
Ohio
Co.

0
0

Contracts

McCre~ry

0
1

aqiozaa1 Total

0
0

0
0
0

.::

0
0

0
C

0
1

0
0
C

Beckley Consolidated Legal Center
Biven
Other
HC
FTCA
s

Total
FCI BEC
FPC ALD
USP LEE
Glenvill
e
McDowell

1
1
0
0
0
2

2
0

.t.

Total

0
0
0

2
2
0

0
0

0
1
0

0
2

0
1

C
0

Bivens

FTCA

Other

Total

4146

2
0
0

1
0
1
0
0
0

Lexington Consolidated Legal Center
Biven HC
Other
FTCA
s
FMC LEX
0
0
1
0
0
FCI ASH
1
0
0
FCI MAN
0
0
0
0
Big Sandy
0
0
0
0

T.:Ital

0
0
0
0
0

0
0

FCC BUT
FCI PET
PET MED
FPC SEY
Winton

0
0
0

Butner Consolidated Legal Center
Biven
Other
HC
FTCA

Total

c·

Page 9
MXR Monthly Report

(

Mid-Atlantic Region Litigation Year To Date
MARO Consolidated Legal Cent.er
Bivens
HC
FTCA
Other
FCI CUM
FCI HEM

FCI MRG
MXR

Hazelto
n
Ohio

Co.

5
2

0
0

S
4

0
0
0

0
2

0
2
0

Lexington Consolidated
Biven
HC

s
FMC LEX
FCI ASH
FCI MAN
Big Sandy
McCreary

2
2
2
0
0

3
3
0
0
0

Center
FTCA
Other

But.ner Consolidated Legal Cent.er
Blvens
HC
FTCA
Other

Total
FCC BUT
FCI PET
PET MED
FPC SEY
Wlnton
VA
Contracts

0
0
0
0
1

.egiOllal Total

FCI BEC
FPC ALe
USP LEE
GleO'ltllle
McDowell

Total
6
5
2
0

0
0
0
0

0
0
0
1

0
0

0
0
0
0
0

0
0
0

2
1
C

:
0

8
0
0
0
0
8

C
0

:.,-1"'\

Other

Total

~-.-.--.-

..-..--.

-- -_..•.

4147

Total
0

.....

U.
2

Bivens

, -.-~

H
.;
0
J
C'
1

0
0
0
0
0

13'

''- ..

Total

1
1
0
0
0

c
----.-.--.- ..--......•.---.--.--. -_..

Beckley Consolidated LeQal Center
Bivens
Other
HC
FTCA

Le~al

0
0
0
0
0

UNITED STATES GOVERNMENT

memorandum

(
;·ATF.:

August 7, 200 IMid-Atlantic

ATTN (Jr.:

Bill Burlington, Regional Counsel
Mid-Atlantic Region

r-(l~,'r.I'T:

July 2001 Monthly Report

RUUro

TO:

/lTTH:

Regional Office, Annapolis Junction, HO 20701

Christopher Erlewine, General Counsel
Linda DuBose , Executive Assistant

l\DmNZSTRATXW DMBDZES

JAN

FEB

MAR APR

MAY

JON

JUL

Received
Answered

167
144

114
170

138
115

122
103

149
180

131
113

126
127

TORT CLAD(S

JAN

MAR

APR

MAY

JON

JOL

AUG

SEP

OCT

NOV

DEC

AUG

SEP

OCT

NOV

DEC

SEP

()CtI

NOV

DEC

180 146 139 128 113 113 124
# Pending
27
34
50
34
33
39
36
# Received
16
25
66
41
35
39
33
# Answered
146 139 128 113 120 124 159
# Pending
2
2
3
3
4 4*
2
# Over Six Month
*Three are serious personal i~jury cases still under review.

(

F(\T IPRXVACY

JAN

FEB

MAR

APR

MAY

JON

JOL

AUG

33
45
48
# Answered
32
# Pending
1
# Over 20 Working Days
*Awaiting files from archives
mailed.

36
32
33
45
46
39
63
56
43
40
61
54
33
38
36
45
3
2
4
2
on two requests; as

37
38
49
53
46
60
37
33
4*
3
of 8-6-01 other two have been

LITIGATION

FEB

MAY

JON

.nn. AUG

81
4
3
1
0
0
10
75
13
1

75
13
5
5
1
2
10
78
6
0

78
7
0
2
3

# t'ending'

# Received

JAN

MAR

APR

174
79
Cases Pending
11
New Cases Received
13
8
9
7
4
3
5
Habeas Corpus
5
3
3
2
Bivens
FTCA
0
0
0
1
2
3
2
1
Other
7
Cases Closed
79 81
Cases Pending
Lit Reports Completed
8
9
13 11
Cases/Hearings or Trials
0
1
0 0
Settlements/Awards
1
1
1 0
$ Settlements/Awards
$100. $22. $375. 0
($ in Thousands)

4159

$50.0

3
81
10
0
0
0

SEP

OCT

NOV

DEC

Page 2

MXR Monthly Report
SIGNIFICANT DECISIONS OR ADVERSE DECISIONS :
(

BUTNER CLC - Russell Weston v. United States - The District of
Columbia Circuit has affirmed the District Court's decision t hat the
Bureau of Prisons may involuntarily medicate Russell Weston, in order
to restore his competence to stand trial . The opinion is somewhat
confusing, but generally favorable to the Bureau.
So far, medication
has not been administered to inmate Weston, as the defense has
indicated they will immediately file an appeal to the Supreme Court.
et confirmed that a re
t for a
has been filed.

LEXINGTON CLC - Gary Lynn Wilder v. Thoms - Judge forester dismissed
the petition for writ of habeas corpus with prejudice. Wilder
challenged his ineligibility for early release and the timing of his
provisional eligibility determination .
In dicta from another case ,
McGee v. Thoms, Judge forester had indicated he believed the BOP did
not have the discretion to make eligibility determinations until after
RDAP graduation.
We filed a su pplemen tal response in Wilder after the
McGee opinion was issued, arguing Lopez allows pre program eligibility
determination . The dismissal in Wilder was based upon Wil.der ' s
alleged admission that Lopez did control after RDAP graduation, which
Judge fore

SETTLEMENTS :
FCI MILAN - Bllly Nidiffer v. united States - We are pleased to report
that we have reached a tentative settlement of this medical
malpractice case for ~50,000 .
This is the case where medical staff at
FDC Milan failed to recognize that inmate Nidiffer was having serious
due to his withdrawal from alcohol and narcotics.

bS
UPDATE ON CASES , TRIALS OR HEARINGS , ETC. NOTED IN PRIOR REPORTS :
LEXINGTON CLC - Lillian Rose, Administratrix of the Estate of Robert
Rose v. USA - The Sixth Circuit upheld the Eastern District of
Kentucky's dismissal of this FTCA action which a lleged medical
malpractice on the part of Fcr Manchester staff resulting in the death
o f inmate Rose from a heart attack.
The case was tried and the United
States moved for summary judgment, which was granted, after
Plaintiff's attorney failed to put o n any evidence to prove the
element of causa t ion.
MARO CLC - Survivors of inmate Howard Reeder, Reg. No. 12413 - 058, have
filed a wrongful death action in the District of Maryland.
Several
days after undergoing angioplasty at a Washington Hospital, inmate
Reeder was walking the track at fCI Cumberland.
He later died after
reporting to Health Services that he was not feeling well.
AFIP
review of this case is favorable .
The inmate 's minor son and wife

4160

Page 3
MXR Month l Y

Report

each f i 1 ed a tort c l a im for $ 500,000.

(

The a re represented by counse l .

CLC - Gershen v. U.S . - This is a FTCA case f i led by a BOP
employee at FCI Be ckley . The e mplo yee alleges defamation ,
embarras sment , humiliation, s land er , l o ss of self-este em, e motional
d i stress , l o ss of possible career opportunities and wor k place
v i o l ence.
This c a s e arose out of i n cident during annu al training when
a HRM e mpl oyee discu sse d this employee's discipline during the

BECKLEY

training

session .

- Fardaei v . Gunja - FCI Cumberland inmate filed a petition
for Wri t o f Habeas Corpus seeki ng rein s tatemen t into the RDAP Program ,
c r edit for time pr ev iously spent in the program, and accelerated
counseling . After initially being admitted to the RDAP Program , the
new RDAP Coordinat o r reviewed that decision and determined he did not
have an adequately documented h i s tory of drug or alco h o l abuse and
counse l ing , and removed him from the class. When recor d s of t reatment
(received from the inmate's minister) were received , we a dvise d staff
to readmit the inmat e int o the RDAP Program . Once he was r ea dmit ted ,
we then moved to have the case dismissed a s moot .
The cou rt gra nt ed
our motion, but additionally s ta ted that we had no duty to pe r mit him
to remain in the RDAP Program , that the remova l did not amount to an
atypica l and significant hardship on the inmate , t h at the decis i on to
remove him was not arbitrary and capricious, and that there was no

MARO CLC

constitutionally protected interest in remaining in the program.

CRIMINAL:

(

U.S. v. Lisa Lo c khart - The defendant in this case is the
sister of an inmate incarcerated at FCI Memphis .
On February 29 ,
2000, she introduced multiple ball oo ns filled with marijuana and
heroin int o the institution, succ essf ully passing th e m to the inmate
i n the visiting room.
Staf f had confidential information in adva nce

MARO CLC -

and detain e d the visitor until law enforcement coul d arr i ve.

Th e

inmate was placed in a dry c ell and the balloons we r e recove r ed . Th e
defendant refused to c ooperate with t he ensuing investigation a n d was
indicted.
Trial is currently schedule d for August 1 5, 2001 .
f o rmer Chaplin, was indicted o n Ja n uary
' on w' th Intent to Distribute Heroin. Trial was
a nd t hen r escheduled for July 17, 2001.
Tria l
August
21
,
2
001
.
has been scheduled f or

BECKLEY CLC 31, 2001 , for
set for May 22,

SITUATIONS OF INTEREST , CONTACT WITH FEDERAL BENCH ,
SITES , ETC . :

HAZARDOUS WASTE

~ a very unique, request f rom the Navy.
Military lnmate . . . . . . . . , has been convlcted of sex ual abuse o f
children . As he approached his release date o n his military sentence ,
he confessed t o ab using approximately 50 other c h i ldren , and indicated
he would cont inue s uc h conduct if he is r e le as e d without treatment.
In order to receive treatment, he has waived approx imat e ly 2 years of
good t i me. He is no w at But ne r for a psyc hiatric evaluat ion.
Thi s
cas e raises several difficult legal questions , su ch a s what effect
sh o uld be given to this waiver , and can the Bureau use 4246 to commit
this mi l ita ry p risoner beyond his

BUTNER CLC - We

4161

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Page 4

(

MXR Monthly Report

release date.
competency evaluation - On July 26 , FMC Butner
to Judge Marshall, in whi
sent an inte
to
report.
both on our o pinion of
addi tional time
competence , and the suggested course of treatmen

BUTNER CLC -

CONTRACT FACILITIES IN VIRGINIA - Jackson v. District of
Columbia , (2001 i'lL 765q13) On July 10 " ' , the District of Columbia
Circuit issued a decision which contains some language that may impact
on our ability to send certain types of DC offenders to our contract
facilities in the State of Virginia.
The case involves a RFRA
challenge to the Bureau's ability to place Muslim and Rastifarian
inmates from the District of Columbia into Virginia state facilities ,
where a short haircut and facial hair policy applies to all inmates.
While the court dismissed the case due to failur.e to exhaust, it did
indicate that if the inmates do exhaust, the District Court should
consider the inmate's argument that a less restrictive approach to
accommodating their religious beliefs would be for the BOP to avoid
placing Muslim and Rastafarian inmates i nt o Virginia facilities.

T-MXR-2000-01Q26 - Inmate
filed
an administrative tort claim alleging
cal malpract
le housed
at FCI Cumberland.
Inmate _
was trea ted for venous insufficiency
when in fact cervical cord compression affected his ability to walk.
He is now housed at FPC Seymour Johnson.
Inmate . . . . . . . . . claim is for
$10 million.
AFIP's review found delays in diagn~ departures
from the standard of care.
We are currently preparing a settlement
recommendation memo to OGe.

MARC CLC -

Personnel Issues:

4162

l'.·

. -.

Page 6

MXR Monthly Report

4163

Page 7
MXR Monthly Report
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Page 8
MXR Monthly Report

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