u

Ci

;

..:l 1

POl

A!vl

UNITED STATES GOVERNMENT

memorandum
ounsel, NER, BOP
Quarterly Report TO.

, 1993 through June 30, 1993

Wallace·H. Cheney, General Counsel & Asst. Director, BOP

Attached are the statistics requested for the quarterly report
tor the third quarter of FY 1993. I am also enclosing a diskette
with a copy of this report.
Following is a synopsis of the significant cases in litigation
during the quarter:
SIGMXlXCAHT DECISIONS. HIARINGS OR TRIALS
1.

Bourgeois y. United states, 3:CV-91-197 (M.D.Pa.)

Inmate Louis Bourgeois, 39165-066, at USP Lewisburg brought this
Federal Tort Claim Act complaint requesting damages for a slip
and fall down steps in September 1990. Inmate alleged that he
slipped on apple scraps and banana peels left 'on an outside
stairway at USP Lewisburq.. Trial was held from April 14-20, 1993
before U.S. Maqistrate Judge Blewitt. USP Lewisburg Attorney
Hope Moro assisted AUSA at trial. The court has not issued a
u~~l~lon following the trial.
2. Worthington y, iureau of prisons, Civil No. 89-7048 (S.D.N.Y.)
This case was discussed in our last two quarterly reports. FTCA
case for medical malpractice brought by former inmate Robert
Worthington, Register No. 12930-054, alleging improper treatment
at FeI otisville. Worthington was received at FeI otisville on
January 8, 1987 with advancea glaucoma in his left eye. He
eventually lost the vision in his eye sometime between July 1987
(according to Worthington) .a.nd December 1987 (according- to BOP
medical records). Our medical expert does not think that the
blindness in the eye was caused by his medical treatment in the
BOP. However, our expert feels that Worthington had less than
optimal follow up by. an ophthalmologist during his incarceration.
our main defenses at trial are expected to be lack of causation:
that the blindness was to occur in any event and' was not the
result of BOP negligence, and contributory negliqence: inmate did
not follow prescribed treatment prior to incarceration and during
incarceration. Four settlement conferences were held and Hank
Sadowski was present in the last three (January 21, May 26, &
June 2, 1993). No settlement was reached and the case is
O"'ONAL FOAM NO. 10

(Rav.I"')

au .... MA (.. CFR) 10'.".'
1010.".

P02

-2-

3. United states v, Salameh, 53 93 CR 0180 (S.D.N.Y. June 10,
1993) .
~

Three of the pretrial detainees indicted for the bombing of the
World Trade Center in New York tiled motions before the criminal
trial judge (Judge Duffy) challenging aspects of pretrial custody
at MCC New York. The detainees challengQd their continued
placement in administrative detention, and the followin9
conditions of confinement: exercise, clothing, bedding, social
phone calls, access to-counsel, and inability to worship with
fellow Moslems. In a x9 page ruling, Judge Duffy denied the
motion, finding reasonable the Warden's security concern of
potential retaliation from other inmates. The court also
rejected allegations c~ncerning the conditions of confinement.

..
~

SETTLEMENTS OR AWARDS

l.

.il:

Cardiff Circle Ass'n v, United states, 92 CV 4323 CD.N.J.)

This Federal Tort Claims Act complaint was filed as a result of
the accidental fire damage to property by FCI Fairton SORT team.
On April lS, 1992, the'FCI Fairton SORT team were conducting
tactical exercises on Pc~aintiff's property without his
permission. Plaintiff bad given permission to local police to
'U6~ his P:rOPC=Lty £UL- t.'c.a.l.ning exercises.
The local police told
the FCI Fairton SORT team they could use the property. The SORT
team tossed two smoke grenades into a building. These grenades
caused the entire building to catch fire. The fire was
extinguished, but the ouilding was destroyed. A warning on the
smoke grenades stated that the device was for outdoor use only
and that it can cause fires. Plainti.!f did not accept a
$10,000.00 settlement offer of his administrative tort claim.
We had admitted liability in the litigation. The only remaining
issue was the amount of damages. Plaintiff had sought
$63,500.00. Case settled for $25,000.00.
2.

Sheptin v. United States. et al., 93-CV-34 (W.D.Pa)

Inmate Louis Sheptin, Register No. 90355-024, presently housed at
USP Leavenworth, filed a combined Bivens and FTCA action alleging
medical malpractice and deliberative indifference to medical
needs at FCI McKean from February 19, 1992 through February 23,
·l992.

Ub.

U<:::.

:I":;

U

b

.,:; 1

P03

A 1,,1

-3-

Sheptin Case (Cont.)
On February 19, 1992, Sheptin was returned to FCI McKean after
being removed on a writ ad test. HSA Heath performed the medical
screening on Sheptin, but failed to fill out the required
screening form. Heath said he gave his notes to Physician's
Assistant Calvo. Sheptin alleged he told Heath, Calvo, and other
medical staff on rounds in the Special Housing Unit repeatedly
that he was on medication (Dilantin) for a seizure disorder and
that he needed his medication. (Medical records support his need
for this medication.) Calvo confirmed that Sheptin requested his
medication but Calvo said he could not find the medical file.
The medical rile for Sheptin was in the "writ hold" section of
the medical records area. On February 23, 1992, Sheptin had a
grand mal seizure and was taken to an outside hospital. Sheptin
alleged that as a result of this seizure, he fell and injured his
head and shoulder. Later examinations (including x-rays) showed
no evidence of permanent injury. Internal investigation
concluded that medical staff Were negligent in not obtaining the
medical file and in not providing Sheptin his medication.
Sheptin agreed to accept $3500.00 in full settlement of this
litigation (FTCA and Biyens). A special assessment of $500 will
be offset from this amount.
3.

Smith y. Lam, 92 eiv. 1876 (S.O.N.Y.)

John Smith, a Witsec inmate a~ Fel o~isville, riled this Biyens
action alleging staff member Lam was deliberately indifferent to
his safety at work. On January 11, 1991, Inmate Smith sewed
through his finger while working at a sewing machine in the
UNICOR Glove factory in the witsec Unit. Smith alleged that the
sewing machine did not have a safety guard around the needle. At
the time or the injury, Lam was the UNICOR foreman responsible
for the sewing machines. Smith alleged that Lam knew that the
sewing machine Smith was using should have had a safety guard but
did not. Smith alleged that, prior to the injury, he asked Lam
for a safety guard for his sewing machine and Lam told him guards
were not needed. The major constitutional claim was that Lam was
deliberately indifferent to Smith's safety needs.
Lam executed a June 9, 1992 declaration, in which he claimed that
when the new sewing machines arrived at FeI otisville, he
personally placed the safety guards on the machines. Lam implied
that the inmates removed the safety guards to speed performance

u

c

•

..;, J.

P04

.J-I\..J.VJ.

-4-

Lam Case (Cont.)
on the machines. Lam said he was not aware that the safety
guards were not on the machine Smith was working on. Lam denied
that smith asked him for a safety guard prior to the accident.
Lam also responded to a host of other allegations made by smith
in the complaint. When the AUSA requested a meeting· with Lam to
go over the case, Lam admitted to the paralegal at FeI otisville
that he lied in his declaration.
The key material misstatements were the following: (1) Lam
admitted that he knew that the safety guards were not installed
upon the machine Smith was working on, and (2) he also admitted
that he did not install safety guards on the machines when
received at FCI otisville. He further admitted a variety of
minor details were false.
The united States continued to represent Lam because important
interests had to be protected in this litigation. Information
concerning the Witsec inmate had to be kept secure and there was
potential for bad precedent on work related issues. Lam was
advised that representation would continue but that settlement
would be explored. After the AUSA deposed the inmate, the inmate
agreed to settle the case for $100.00. Lam was advised that if
he agreed to the settlement that the money would be his personal
obligation. Lam was also advised that he could request
indemnification, but there was no assurance that it would be
approved. Lam agreed to the settlement and the oase was
dismissed on .June 29, 1993.
4.

Salami v. Brennan, Civil No. 93-0459 (M.D.PA.)

Federal Tort Claims Act case filed by inmate Oscar A. Salami,
Register No. 36430-053, for lost property. Salami alleged that
his pair of sneakers were stolen in March 1992 at USP Lewisburg.
He later found the sneakers in possession of another inmate and
got into an argument. staff intervened and the sneakers were
confiscated as possible contraband. The other inmate could not
. verify ownership and staff were prepared to give Salami the
sneakers. The sneakers could not be located. Case settled for
one pair of sneakers.

POS

-5-

PENpING PROBLEMATIC LITIGATION
1.

U.S. V. Hillstrom, No. 92-7237 (3d Cir. March 12, 1993).

The Third Circuit remanded this sentencing guideline case for
additional information concerninq the nature of Federal Prisons
Camp - Allenwood. At issue is which sentencing guideline should
apply to an escape from FPC Allenwood: the quideline applicable
to walkaways from a community corrections center or the guideline
applicable to escape from a secure facility. The Third Circuit
instructed the district court to consider whether FPC Allenwood
is sufficiently similar to a CCC in its purpose and in its
security and safety considerations. The resentencing hearing in
this case has been postponed. A separate Allenwood escape case
resulted in a sentencing hearinq on April 29, 1993 before Judge
Muir in Middle District of Pennsylvania. Executive Assistant
Peter Weld testified concerning the distinctions between FPC
Allenwood and CCCs. Judge Muir issued an opinion in United
States v. Petro, 4:CR-92-242 (M.D. Pa. May 10, 1993), which found
that FPC Allenwood was not a facility similar to a CCC. The
Defense Attorney is taking an aggressive approach in the
Hillstrom resentencing. I expect CCM Ed Hughes (to testify about
CeCs) and Peter Weld (to testify about FPC Allenwood) will be
called as witnesses in the rescheduled Hillstrom resentencinq
before Judge McClure.
Enclosures:

statistical Reports

u o.

u.::::..

~..:;

U

b

:

..j

1

POS

Alvl

HOBTIIBAST RiGIOHAL OFFICE
LITlGATIOH OUAR'mU,Y RlPORT

PROK 04'01/93 TO 06/30/93

LOC

HUH

He

FTC

BlV

OTH

ANS

PEN

CLD

H/'l'

Sft

AWD

59

15

7

30

7

57

267

46

3

4

0

KXR
!fER

SD

NCR
SCR

WXR.

co
TOT·

NARRATIVE AHALYSrS
DEFINITIONS;
!DC IfO]i( -

He

-

fTC -

BIV OTR -

LOCATIOIf
NUHB!'Jt OF TOTAL LAWSUITS PILED III QUARTER
JlUHBBR OF HABEAS CORPUS ACTIONS PILED
1fDJIBBR OP PTCA ACTIONS FILED .
IlUllBER 0, BIVENS ACTIOHS PILED
Ol'HER ACl'IOM·S FlLBD

ANS - ·NUMBBR OF LITIGATION REPORTS COMPLETED
PD· - PENDING
CLD -. JrtJIIBBR OF ACTIOlrS CLOSlm·
HIT - IMCBBR OF HEARINGS OR TRIALS (IlfCLUDB INFO IJf HARRATlVE)
SBT - IlUKBBR OP SJWl'LEIlENTS (IIICLDDB IUO· III HARRATIVB)
AIm - JIUlCBBR or AWARDS (IMCLUDB IlCPO IX NARRATIVE)
GOVBRNMBNT ACTIOIf AJfD DATE· OF ACTIO..' - (INCLUDE III IfARRATIW)

·

OS.

02.

93

OS: 3 1

POS

AI,.!

NORTHEAST REGIONAL OrFICE
ReMEDIES QUARTERLY REPOST

b~HINISTRATlym

FROM 04-01-1993

TO

06-30-1~93

LOC
HXR

NUH

DHO

SPH

HED

HH

LEG

FD

GRT

DEN

PEN

00

NER

292

107

10

19

0

15

6

21

217

57

o

SER
NCR

seR
WXR
TOT
NARRATIVE ANALYSIS
PEFINITIONS
LOC
NUH
DHO
spa

-

HEP -

MH
LEG
FO
GET
DEN
fEN
00

-

LOCATION
NUHBIB or TOTAL AD REMEDIES FILED
NYMBER or PHO REMEDIES FILED
NUMBER or SPECIAL HOUSING UNIT REMEDIES FILEP
NUMBER or MEDICAL REMEDIES FILED
NUMBER OF MENTAL HEALTH REMEDIES FILED
NUMBER OF LEGAL REMEDIES FILED
HUMBER or FOOP REMEDIES FILED
TOTAL OF NUMBER OF REMEDIES GBAHTED
TOTAL NUMBER or REMEDIES DENIED
TOTAL NUMBER OF REMEDIES PENDING
TOTAL NUMBER or REMEPIES OVERDUE

.06.
\

..

..

02.

06 : 3

93

1

P09

A:t..!

Tort Claims Third Quarter - FY93 (April 01, 1993 - June 30, 1993)
Loc

NER

pp

Num
154

123

PI
24

PPPI
4

Mad

WD

0

3

set
27

AlIlnt
5469

variable Definition
Num

PP

- Number of claims filed •.....••. 04/01/93
04/01/93
04/01/93
04/01/93
04/01/93
04/01/93
04/01/93

- Personal Property claims .•.•.•.
PI
- Personal ~njury claims ......•.•
PPPI - Both PP , PI claims •.....••••••
WD
- Wrongful Death claims •.•.•...••
Mad - Medical claims ••••••••••••••..•
set - Settled/approved claims ...••••.

Amnt - Amount paid •••••••••••••••••••• 04/01/93

Pen
Den

- Pending/open claims •.•....•.•.•
••
- Number of~cla1ms Denied •••••.•• 04/01/93

••
- Number of: claims OVerDue .•.•.••
- Avg number of days Overdue .•••• 04/01/93
A/P - Avq number of days to Process •• 04/01/93
• Med - PIM+ WOM~ PPPIM+ PPWDM
OD
A/O

..

• Press any key to continue
:~

.~'.

Pen

Den

222

40

00
O·

A/O

A/P

0

94

Time Period.
<= 06/30/93
06/30/93
=< D_Accept <= 06/30/93
=< D_Accept <= 06/30/93
=< D_Accept <= 06/30/93
=< D_Accept <= 06/30/93
=< O_Closed <= 06/30/93
=< D_Closed <= 06/30/93
Entire Database
=< D_Closed <= 06/30/93
Entire Database
=< D_Closed <- 06/30/93
-< D_Closed <= 06/30/93
• WD = WD+ PPWD

=<

D~ccept

a< D_Accept

<~