UNITED STATES GOVERNMENT

memorandum
DATE:

February 3, 1997

Mid-Atlantic Regional Office, Annapolis Junction, MD 20701

ATINOF:

Bill Burlington, Regional Counsel
Mid-Atlantic Region

SUBJECT:

QUARTERLY REPORT - October 1, 1996 thru December 31, 1996

REPLYTO

T~

Nancy Redding, Executive Assistant
Office of General Counsel

TORTS
SET

AMT

PEND

DEN

OD

A/O A/P

2

19

2303

201

110

5*

13

BIV

om ANS

PEN

CLD

73

15

66

265

NOM

PROP

PI

PPPI

WD

KED

157

112

40

3

0

124

LITIGATION
FTC

NOM

HC

224

109 27

H/T

SBT

AWD

35

2

0

0

ADMINISTRATIVE REMEDIES
NOM

DHO

SPH

MED

MIl

LEG

FD

GRT

DEN

PEN

OD

477

94

18

29

1

14

9

29

432

151

0

FOI/PRIVACY
NOM

ANS

PEN

OD

126

140

66

32

*We are in the process of obtaining settlement approval from the Central
Office for these claims.

TRIALS AND HEARINGS

FPC Alderson - Leacock y. Reno - Plaintiff is a black medical
doctor who was dismissed for poor work performance while still
a probationary employee at FPC Alderson. The court granted the
United States' Motion for Summary Judgment on the theories of
disparate impact and retaliation and denied the Motion on the
discriminatory discharge and disparate disciplinary treatment.
A settlement could not be reached and the case was argued
before a seven-person jury and lasted for six days.
An order
was entered November 7, 1996, from the U.s. District Court for
the Southern District of West Virginia at Bluefield, in favor
of plaintiff and against the u.S. in the amount of $30,000.
Subsequent to the judgment, motions for attorneys' fees and
costs totaling approximately $97,000 were filed.
Plaintiff

Page 2
MXR Quarterly Report

also seeks equitable relief by way of cancellation of the
repayment of his physicians comparability allowance and moving
expenses, which together total more than $9,000. After filing
our motion for a new trial in this case, a hearing was held in
early December, where the Judge strongly recommended that the
two sides try to settle, rather than force the court to rule
on the government's motion for a new trial, suggesting that he
would probably deny the motion and let Defendants take an
appeal. The parties submitted that for $60,000 the case could
very likely be settled. We have now made a formal $60,000
settlement offer to plaintiff's attorney.
FeI Memphis - Ashley y. BOP - On December 17, 1996, even
though this was supposed to have been a scheduling conference,
because the plaintiff had not responded to the government's'
Motion, the Judge gave him the opportunity to do so in open
court. Rather than respond to the Motion, plaintiff merely
reargued the facts of his complaint. The AUSA, Brian Quarles,
reiterated that plaintiff has failed to establish the burden
and has not demonstrated a prima facie case for negligence or
constitutional deprivation in either his complaint or his
response to the government's Motion. This case arises out of
an assault that occurred against Ashley during the riot in
October of 1995 and a disagreement over his classification.
The court did not make a ruling.
SETTLEMENTS: None

UN ITED STATES GOVERNMENl

memorandum
IMTE,

~id-Atlintic Regional Office., Annapolis Juncti on, MD 2070 1

October 15, 1 996

AnNOI':

Bill Burlington, Regional Counse l
Mid - Atlantic Region

Sl lnJ1:n':

QUARTERLY REPORT - . anuary 1, ' 1996. thru March_ 31 ... 1996

KErl.Y TO

TO:

Nancy Redding, Executive As si stant
Office of Genera l Counsel

TORTS
NUM

225

PI
47

PROP
167

PPP I
8

WD
1

MED
2

SET
5

AMT
229

PEND
2 65

DEN
82

00

2'

A/ O A/ P
1 2 99

LITIGATION
NUM

52

HC
30

FTC
7

BIV
13

OTH
2

ANS
53

PEN
291

LEG
7

FD
3

CLD
49

H/T
0

SET
1

AWD
$1,500

ADMINISTRATIVE REMEDIES
NUM

454

DHO
150

SPH
22

MED
3

MH

1

GRT
59

DEN
284

PEN
209

00

0

FOI/PRIVACY
NUM

154

ANS
140

PEN
135

00

105

TRIALS AND HEARINGS: None

SETTLEMENTS:
Francis v. U.S., 3:95CV2 67, E , D. Va., FCI Pe tersburg
This case is based on a FTCA cl a im for $200,000 that BOP negligently
placed the inmate's bunk bed too clos e to the door of the T .V. room which
allegedl y resu lted in the pla intiff fa lling and sustaining injuries.
Plain tiff also claims neglige nt f o ll ow-up ca re. Plaintiff agreed to a
settlement of $1,500 along with a stipulation that the BOP would provi d e
the inmate with a MRI and a ny appropriate follow - up care while he rema ins
in BOP custody .

*We are in the proce ss of obtaining se ttl e me nt a pproval from the Central
Off i ce for these two claims.

'-

UNITED STATES GOVERNMENT

DATE:

memorandum

July 12, 1996

Mid-Atlantic Regional Office, Annapolis Junction, MD 20701

Ail'NOF:

Bill Burlington, Regional Counsel
Mid-Atlantic Region

SUBSECT:

QUARTERLY REPORT - April 1, 1996 thru June 30, 1996

REPLY TO

TO;

Nancy Redding, Executive Assistant
Office of General Counsel

TORTS
NOM

PROP

PI

190

142

46

PPPI

WI)

DD

SBT

AKT

PEND

DEN

OD

A/O A/P

217

257

129

8*

10

1

0

1

13

BIV

om

ANS

PEN

CLD

B/T

2

56

311

22

3

113

LITIGATION

(.

NOM

BC

PTC

54

26

7

19

SBT
5

AWD
$500,680

ADMINISTRATIVE REMEDIBS
NOM

DBO

SPR

MED

MIl

LBG

PD

GRT

DEN

PEN

OD

479

138

24

32

2

12

5

60

387

243

22

POI/PRIVACY
NOM

ANS

. PEN

OD

190

228

94

63

*We are in the process of obtaining settlement approval from ·the Central
Office for three claims and one is an employee disturbance claim awaiting
Central Office decision.

TRIALS AND BEARINGS:
Mary Lobbins v. Phillip Wise, 1-96-0065, S.D. W.Va., FPC
Alderson

(

On April 10, 1996, Magistrate Mary Feinberg, heard oral
argument in these VCCLEA-early release cases.
I argued that
18 U.S.C. Section 3625 is a substantial limitation on any
federal court/~ subject matter jurisdiction to review agency
action under Section 3621. On June 25, 1996, we filed
exceptions to the 70-page adverse Report and Recommendation of
2884

(

Magistrate Mary Feinberg. Judge Feinberg had ruled the
Bureau's Program Statement Definition of Term Crime of
Violence was ultra vires on a couple of grounds. First, she
ruled it was a "legislative rule" which must undergo APA
notice and comment. Second, she ruled we exceeded our
authority by considering conduct underlying the conviction, as
she feels section 3621 only allows us to look at the
conviction in determining if the inmate is a "nonviolent"
offender. We expect a hearing before Judge Faber in the near
future.
On May 15, 1996, two Alderson cases regarding Fcr Dublin's
non-residential drug treatment program were heard. The cases
involved the argument that the Bureau of Prisons should be
estopped from asserting that the Fcr Dublin program was not a
residential program due to the inmates signing an agreement to
participate in a residential trea~~ent program.
There have been 16 VCCLEA cases filed out of Alderson.
Although 'we originally report the Lobbins case, the Magistrate
changed plaintiffs on us and'actually heard the case of
Wiggans y. Wise. All other cases, including the challenge to
Fcr Dublin's non-residential drug treatment program, are being
held in abeyance until a decision is reached in Wiggans.
Carswell-Alderson - Anne Hammand y. Hawk

l

"

\

".

On May 22, 1996 we attended a Temporary Restraining Order
hearing in Elkins, West Virginia. This was a case in which
former Carswell inmate Anne Hammond claimed she was being
discriminated against, due to her mental condition. The court
had specifically asked us whether the Americans With
Disabilities Act (ADA) applied to the Bureau of Prisons. On
June 10, 1996 we received a favorable ruling giving us
permission to transfer inmate Anne Hammond from the Greenbriar
Birthing Center to FPC Alderson. The court rejected both the
ADA and Rehabilitation Act claims of inmate Hammond.
SETTLEMENTS:
FCI Morgantown - Horbachevsky,y. united States
Plaintiff accepted our settlement offer of $500,000. This
involved a diabetic whose untreated eye condition
resulted in blindness.

c~se

Sterling v. Keohane, Case Nos. TH 93-101-C-T/H,
TH 94-01-C-T/H, TH 94-047-C-T/H, S.D •. lnd. (U.S.P. Terre
Haute)

(

On April 12, inmate Sterling agreed to accept $150 as a
settl~ment in full of his FTCA/Bivens RFRA action.
This is .
the case that we argued for private counsel for Warden Keohane
2885

Page 3
MXR Quarterly Report

(

and another Bivens defendant, so defenses could have been
raised the Department of Justice did not want to raise.
One
aspect of the FTCA claim was an allegation that we failed to
follow a physician's order that inmate Sterling receive daily
hot showers to reduce his stiffness and limited range of
motion in his shoulder. We failed to follow this order while
inmate Sterling was in administrative detention for an
extended period. AUSA Tom Kieper was able to get Sterling to
settle the Bivens/RFRA claim along with the tort claim for
$150 -- a very good deal!
I notified Richard Montague, .
Attorney, Torts Branch, of this settlement.
Roger Hampel v. United States of America,
Mich., FCI Milan

96-40045-FL~

E.D.

This FTCA property case was settled for $500.00. We felt this
case would never be dismissed on summary judgment and did not
want to go to trial based on the facts in this case.
Several
factors influenced this decision, i.e., inmates packing other
inmate's property; death of lieutenant to whom this
inappropriate activity was reported; and conflicting staff
statements.

(

FCl Beckley - Strudwick y. Beckley Federal Correctional
Institution, 5:96-~414, S.D. W. Va.
FTCA case wherein inmate alleges his personal property was
lost by Beckley staff upon his placement in administrative
detention. This case was settled for $29.35, the amount
originally offered at the administrative stage.

EEO Suit - FCl Butner: We appear to have settled one of our
major EEO complaints out of Butner, involving the former
director of the Sex Offender Treatment Program,
Dr. Chris Norris.
One of the complainants has agreed to
accept our offer of a monetary sum, a job transfer, and the
Bureau paying the moving expenses. Amy Risley, Labor Law
Branch, has been extremely helpful in supplying us with case
law and other information we used in bringing about this
settlement. We have signed a confidentiality clause and
because of that we are not putting the name of the
complaintant or the settlement amount in our report.

2886

UNITED STATES GOVERNMENT

memorandum
October 24, 1996

DATE:

REPLY TO

Mid-Atlantic Regional Office, Annapolis Junction, MD 20701

Bill Burlington, Regional Counsel
Mid-Atlantic Region

ATTNOF:
SUBJECT:

TO:

QUARTERLY REPORT - July 1, 1996 thru September 29, 1996
Nancy Redding, Executive Assistant
Office of General Counsel
TORTS
NUM PROP PI PPPI WD MED SET AMT PEND DEN OD A/O A/P
174

106

32

4

0

5

11

2713

210

140

4*

19

126

LITIGATION
NUM HC FTC BIV OTH ANS PEN CLD H/T SET AWD
44

19 5

14

6

46

297 25

0

1

$150,000

ADMINISTRATIVE REMEDIES
NUM DHO SPH MED MH LEG FD GRT DEN PEN OD
436 138 13

32

2

10

3

.

68

429 62

4

FOI/PRIVACY
NUM

ANS

PEN

OD

133

139

82

49

*We are in the process of obtaining settlement approval from the Central
Office for four claims.

TRIALS AND HEARINGS: None
SETTLEMENTS:

FMC Lexington - Michels, Rosado & West-Wenger v. United
States, E.D. Ky.
These are the civil suits following the sexual abuse
conviction of former FMC Lexington Correctional Officer
Eddie Smith. The week of July 8-12, 1996, Wanda Hunt attended
depositions of plaintiff Katherine West-Wenger and several
doctors who have treated her. As a result of the depositions
of the treating psychiatrists, plaintiff West-Wenger accepted
settlement in the amount of $150,000. The week of September 9,
1996, Wanda Hunt attended the deposition of plaintiff Rosado
in New York City. As a result of this deposition, plaintiff
2887

Rosado has agreed to a settlement in the amount of $150,000,
although we have not yet received the official settlement
documents.

2888

UNITED STATES GOVERNMENT

memorandum
October 24, 1996

DATE:

REPLY TO

Mid-Atlantic Regional Office, Annapolis Junction, MD 20701

Bill Burlington, Regional Counsel
Mid-Atlantic Region

ATTNOF:
SUBJECT:

TO:

QUARTERLY REPORT - July 1, 1996 thru September 29, 1996
Nancy Redding, Executive Assistant
Office of General Counsel
TORTS
NUM PROP PI PPPI WD MED SET AMT PEND DEN OD A/O A/P
174

106

32

4

0

5

11

2713

210

140

4*

19

126

LITIGATION
NUM HC FTC BIV OTH ANS PEN CLD H/T SET AWD
44

19 5

14

6

46

297 25

0

1

$150,000

ADMINISTRATIVE REMEDIES
NUM DHO SPH MED MH LEG FD GRT DEN PEN OD
436 138 13

32

2

10

3

.

68

429 62

4

FOI/PRIVACY
NUM

ANS

PEN

OD

133

139

82

49

*We are in the process of obtaining settlement approval from the Central
Office for four claims.

TRIALS AND HEARINGS: None
SETTLEMENTS:

FMC Lexington - Michels, Rosado & West-Wenger v. United
States, E.D. Ky.
These are the civil suits following the sexual abuse
conviction of former FMC Lexington Correctional Officer
Eddie Smith. The week of July 8-12, 1996, Wanda Hunt attended
depositions of plaintiff Katherine West-Wenger and several
doctors who have treated her. As a result of the depositions
of the treating psychiatrists, plaintiff West-Wenger accepted
settlement in the amount of $150,000. The week of September 9,
1996, Wanda Hunt attended the deposition of plaintiff Rosado
in New York City. As a result of this deposition, plaintiff
2887

Rosado has agreed to a settlement in the amount of $150,000,
although we have not yet received the official settlement
documents.

2888