UNITED STATES GOVERNMENT

memorandum
Date: April 16, 1997
Reply to David R. Essig, Regional Counsel, Northeast Region
Attn of: Federal Bureau of Prisons, Philadelphia, Pa. 19106
Subject: Quarterly Report - January I,
To:

1997 through March 31, 1997

Wallace H. Cheney, General Counsel and
Assistant Director, Federal Bureau of Prisons
Washington, D.C.
20534

Attached are the statistics requested for the quarterly report
for the second quarter of FY 1997.
The following is a synopsis of the significant cases in
litigation during the quarter:
SIGNIFICANT DECISIONS, HEARINGS OR TRIALS

1.

Benjamin Mackey v, Bureau of Prisons, Civil No. 96-5286
)

(E. D. ~a.

This is an update of this case discussed in last quarter's
report.
Inmate Benjamin Mackey, 09717-054, at FCI Schuylkill,
filed a habeas corpus action challenging a DHO finding that he
possessed marijuana and the calculation of prior custody credit.
Judge Shapiro held a hearing on the petition for Thursday,
October 17, 1996. The court focused on two issues: whether the
Bureau properly calculated the inmate's parole violation term and
whether the DHO forfeited more statutory good time than was
available at the time of the infraction. The court requested an
additional declaration detailing these issues. Hank Sadowski
assisted the AUSA at the hearing. On February 13, 1997, the
court ruled for the Bureau on all issues except· one. The court
ordered that the inmate receive 6 days of statutory good time.
The court noted that the Bureau had forfeited 166 days of
statutory good time whereas the DHO summary stated the inmate is
to forfeit 160 days of SGT. We complied with the order.
2. United States v, Gonzales, 117 S.Ct. 1032 (1997)
This case was also discussed in last quarter's report. On
March 3, 1997, the Supreme Court held that a federal sentence
imposed under 18 U.S.C. § 924(c), which prohibits concurrent

2

service "with any other term of imprisonment," may not be ordered
to run concurrently with an existing state sentence. Hank
Sadowski assisted the Solicitor General's office at the December
11, 1996 argument. The decision noted, in dicta, that the Bureau
of Prisons is responsible for aggregation of sentence under 18
U.S.C. § 3584.
3.

Fisher v. Goord, et al., 96-CV-0486 (W.D.N.Y.)

This case was also discussed in last quarter's report. New York
State inmate Amy Fisher alleged that a number of New York state
institution staff have had sex with her, some with her consent,
some without.
She filed a civil rights action against numerous
state officials. As part of her relief, she has moved the court
to order her transferred to the Federal BOP. The United States
is not a party to the action. We filed an Amicus brief asserting
that the court had no jurisdiction to order the United States t6
take a state prisoner. We focused the court on 18 U.S.C. § 3626
as the proper standard for assessing the injunctive request. The
court requested the parties to respond to our brief.
Plaintiff
submitted a response asserting that § 3626 is unconstitutional.
The court has certified the issue to the Attorney General under
28 U.S.C. § 2403(a).
Federal Programs was advised and they
requested the AUSA to file a brief upholding the
constitutionality. We expect to file a brief by May 1, 1997.
4.

United States v. Price, Crim. No. 96-145-01 (E.D.Pa.)

Pretrial releasee Kenneth Price had a sentencing hearing before
Judge Rendell on February 7, 1997. The defendant argued that his
advanced liver condition was an extraordinary circumstance
'justifying downward departure from the sentencing guidelines of
21-27 months. Defendant's medical expert testified that
defendant has cirrhosis of the liver and had a 50% chance of
catastrophic internal bleeding within the next two years.
The
AUSA's medical expert testified that the medical condition was
not as severe as presented by defendant. The AUSA requested the
Bureau's assistance to address the ability of the Bureau to care
for the defendant. Medical records were reviewed by Health
Services Division. Hank Sadowski testified at the hearing
concerning the probable designation to a medical facility and the
medical services available for federal prisoners. The court
found defendant's medical condition to be "an extraordinary
physical impairment" under Sentencing Guideline § 5H1.4 and
sentenced him to probation with 12 months home detention.
5. Palmer v. United States, CV-95-383 (M.D.Pa.)
This Federal Tort Claims Act case was filed by Inmate Lovell
Palmer, 23307-083, who alleged that he slipped and fell ·in

3

January 1994 at USP Lewisburg. His administrative tort claim was
for $1000.
In his complaint, he requested damages in excess of
$25,000. We·moved to limit the inmate to the $1000. On pressure
from the court (and to save expense of trial), we offered
settlement to the inmate in the amount of $1000 which the inmate
refused. We moved for partial summary judgment against the
United States in the amount of $1000. Judge Kosik granted our
request for a bifurcated trial limited to the issue of whether
the inmate can claim damages above that requested in his
administrative claim. This part of the trial was held on
January 15, 1997. The court heard testimony from Dr. Keiper
(retired) formerly at USP Lewisburg and Dr. Klinkerfuss (now at
FMC Springfield). The Springfield doctor testified via video
teleconference. Before ruling on our motion, Judge Kosik
requested an exam of the inmate by a non-BOP doctor. Attorney
Mike Sullivan assisted at the trial. No decision has yet been
rendered.
6.

United States v. Medina, 97- CR-

(S.D.N.Y.)

Pretrial detainee Jose Medina, 43311-054, has been charged with
the attempted extortion of Bill Cosby. On January 24, 1997, the
legal office at MCC NY was advised by the AUSA that, at a bail
hearing earlier that day, inmate Medina alleged that he had not
been allowed to see a Rabbi and that he had not eaten since he
arrived at MCC on January 18, 1997. The inmate requested an
order directing the Warden to provide him Kosher food and to
'permit him to meet with a Rabbi. A hearing on these issues was
scheduled for 2:30 p.m. that day.
The Warden immediately decided to place the inmate on common
fare.
The Chaplain later concurred with this decision.
Arrangements were made for the inmate to see the Rabbi. Attorney
Alma G. Lopez attended the hearing.
Prior to the hearing, Ms. Lopez explained the MCC's position to
the AUSA and defense counsel. MCC records showed that inmate
Medina had received all his meals, except for one refusal, since
his arrival at the MCC. Defense counsel understood the Mee's
position and only requested documentation showing that the common
fare meals are kosher so that his client could be appeased.
During the hearing, defense counsel indicated that although his
client had received all his meals, he was flushing down the foods
that he was prohibited from eating by his religion.
Magistrate
Judge Peck agreed with the MCC's solution.

4

7.

Li v. Canarozzi. et al., 95 Civ. 0706 (S.D.N.Y.)

Jury trial commenced on February 3, 1997 in this Bivens complaint
brought by former pretrial detainee Jian An Li, 44661-053, who
alleged that six officers at MCC NY assaulted him on an elevator
on November la, 1994. Staff were responding to a disturbance
involving a fight among many inmates. Plaintiff sustained
injuries that day, the most serious was a broken arm.
Plaintiff
alleged that staff caused the injuries. Our version was that the
injuries were sustained during the fight among the inmates.
Dominique Raia and Alma Lopez assisted the AUSAs.
Trial was completed on February 14, 1997. The jury returned a
verdict late that day in favor of all defendants. The jury found
that the injuries sustained by the Plaintiff occurred during the
disturbance on the unit, not in the elevator.

8.

United States v. Coleman, Criminal No. ----

(E.D.N.Y.)

Pretrial detainee Leonard Coleman, 47321-019, requested an
emergency hearing before the criminal trial judge to address
alleged lack of medical care at MDC Brooklyn.
In addition the
attorney complained that her client was being held in
administrative detention (pending investigation of a threat
against the detainee). A hearing was held on March 5, 1997.
Azzmeiah Vazquez attended the hearing. On the administrative
detention issue, Judge Platt found that he did not have
jurisdiction since the detainee did not pursue administrative
remedies. On the medical issue, the defense attorney advised the
court she was not ready to proceed. The MDC Clinical Director
was prepared to testify. This was unnecessary since the AUSA was
not opposed to release under strict conditions. The court
ordered the AUSA to draft a proposed order of release.

9.

Leonard Falzone v. Federal Bureau of Prisons. et al.,
Civil Action No. 97-574 (E.D.Pa.) (formerly Case No. 96-215
(E.D.Ky.)

Inmate Leonard Falzone, 83361-02.0, filed a petition for habeas
corpus in' E.D. Ky. challenging the disallowance of 14 days good
conduct time for -an infraction committed at Lewisburg Camp. The
DHO hearing summary erroneously did not specify the loss of GCT.
An amended DHO summary was later prepared.
The inmate challenged
the authority of the DHO to amend the summary.
The MARO and
Ashland had responsibility for this litigation and a response was
duly filed in E.D. Ky. After the inmate was transferred to Fcr
Schuylkill, the case was transferred to E.D.Pa. On February 26,
1997, a hearing was held before u.S. Magistrate Judge Rueter on
the petition. Our offer of assistance was accepted by MARO.
Joyce Horikawa assisted at the hearing. DHO Zimany testified

5

that his notes and contemporaneous records showed that he had
disallowed the good conduct time for the inmate. The only
document which did not reflect the disallowance was the DHO
summary. The error was cured when the DHO issued an amended DHO
summary and the inmate was afforded the right to appeal. On
February 27, 1997, the Magistrate Judge recommended that the
petition be denied. On March 17, 1997, Judge Katz adopted the
Report and Recommendation, dismissing the petition.
10. Linn v, Wigen, Civ 96-3147 (E.D.Pa.)
Former inmate Michael Linn, 81843-054, brought a Bivens action
against staff at FCI Schuylkill, Regional Counsel, and Central
Office Appeals Administrator Ed Crosley alleging primarily that
(1) he was denied CCC placement because he was Jewish; and (2) he
was denied surgery for a shoulder injury and was given work
assignment contrary to his medical problem. He asserted that one
similarly situated non-Jewish prisoner was given a CCC placement.
He also alleged that the shoulder surgery was recommended by a
contract specialist and the defendant denied it anyway. A nonjury trial was held before Judge Dalzell on March 13, 1997.
Joyce Horikawa assisted the AUSA at the trial. At the close of
evidence, the Judge ruled from the bench and entered a judgement
for all defendants. The Judge held that the plaintiff failed to
present evidence that the CCC decision was based on his· religion
and had failed to show that medical staff was deliberately
indifferent to his medical needs.
11. United States v. Hammer, 4:CR-96-239 (M.D.Pa.)
Inmate David Hammer, 24507-077, has been charged with the April
1996 murder of an inmate at USP Allenwood. On March 7, 1997, the
United States Attorney, seeking the death penalty, had a hearing
before the DOJ panel. No decision has been made.
In this same case, Judge Muir held a hearing on March 10, 1997 on
defense attorneys's motions pertaining to telephone access and
special mail.
Inmate Hammer is under phone and correspondence
restrictions for disciplinary reasons. Defense attorneys asked
the court to order USP Allenwood to permit Hammer to make
unmonitored calls to defense experts. They also requested the
court to order USP Allenwood to permit Hammer to make monitored
calls to any defense witness (including another inmate now in a
state system). Defense attorneys are also asserting the Clerk of
Court mail should be automatically included in Special Mail.
Hope Moro attended the hearing and testified concerning some of
these issues. On March 31, 1997, the court denied all the
motions except the court held that clerk of court mail should be
treated as Special Mail. We are preparing a motion for
reconsideration.

6

12.

Curran v. United States, 3:93CV1749 (D.Conn.)

Former inmate Kimberly Curran, 07921-026, filed this Federal Tort
Claims Action complaint alleging that a staff member at FCI
Danbury had sexually harassed and assaulted her. On March 18,
1997, Judge Thompson granted our motion to dismiss. The court
held: (1) any alleged actions by the staff member were outside the
scope of his employment; and (2) decisions concerning staff
discipline and inmate transfers and furloughs fall within the
discretionary function exception to the FTCA.
13. Dobson V. Bureau of Prisons, CV-96-01767 (D.D.C.)
Inmate Sherman Dobson, 00003-099, filed "an action under the
Freedom of Information Act challenging the denial of memoranda
and staff statements which were generated after the disturbance
at USP Lewisburg in October 1995. With one exception, Judge
Sporkin upheld that denial and excisions in the FOIA processing.
The court found that the inmate was also requesting statements of
witnesses relating to an inmate discipline hearing. The court
found no exemption applied to these statements since they had
been provided to the inmate at the DHO hearing. The original
FOIA request we processed did not request these statements. We
complied with the court order and sent the inmate the additional
statements.
14. United States v. Marino,

Crim. No. ----- (S.D.N.Y.)

Inmate Daniel Marino, 99111-012, arrived at MCC NY on
February 12, 1997 to face prosecution of criminal charges. He
was moved from FCI Ashland pursuant to a writ ad prosequendum.
On March 27, 1997, the AUSA contacted the MCC NY and advised that
Judge Sterling Johnson scheduled a hearing for March 28, 1997 to
address allegations by the defendant concerning medical care at
MCC NY. The Judge required the warden to appear at the hearing.
Attorney Alma Lopez accompanied the Warden. The defendant
alleged that he had blood in his stool and he had not been
examined since he was at MCC. BOP records show that he was
examined by the Staff Physician on March 17, 1997 and was
scheduled for a colonoscopy. The Judge stated" he did not want to
get involved in the details of the defendant's medical care. He
suggested a meeting to resolve the dispute. A meeting was held
following the hearing and defense counsel requested that a
private doctor examine the inmate. The defense counsel were
requested to send their request with supporting documents in
writing. The inmate received his scheduled colonoscopy on
April 2, 1997. The Warden will decide whe~her to grant the
request after the results of the tests are received.

7

SETTLEMENTS AND AWARDS
1. Matos v. United States, CV-94-8977 (S.D.N.Y.)
Civilian filed a Federal Tort Claims Act complaint alleging
negligence of MCC NY caused her to slip and fallon stairs in the
institution. She had sought $1 million. There was an injury
from the fall; but there was little evidence of negligence. The
~USA settled this case for $6000.
2.

Rivera-Torres v. United States, CV-95-233

(M.D.Pa.)

Inmate Carlos Rivera-Torres, 33217-054, brought a Federal Tort
Claims Act complaint alleging that he slipped and fell on ice at
LSCI Allenwood in March 1994. The case was scheduled for trial
on March 27, 1997. The inmate sustained a fracture to his right
ankle, which required a cast for several months.· His recovery·
was hampered by his diabetes. No specific records could be
located for snow and ice removal for the day in question.
Case
settled for $12,500.
3.

Allen v. United States, CV-96-615 (M.D.Pa.)

Inmate Royal Allen, 36863-019, filed a Federal Tort Claims Act
complaint alleging that his property was lost when he was taken
to the Special Housing Unit at LSCI Allenwood. Our investigation
revealed probable liability for the loss of the property.
Attempts to settle with the inmate proved fruitless.
We filed a
motion for summary judgment against the United States for the
amount demanded in the administrative tort claim, which we felt
.was appropriate for the loss. On January 31, 1997, the court
granted our motion and entered summary judgment against the
United States for $174.65 and for costs of $83.22 (the filing fee
paid by the inmate) .
Attachments

8

NORTHEAST REGIONAL OFFICE
LITIGATION OUARTERLY REPORT
FROM 01/01/1997 TO 03/31/1997

LOC

NOM

HC

FTC

BIV

OTH

12

14

5

ANS

PEN

CLD

22

573

50

HIT

SET

AWD

9

2

1

MXR
NER

53

21

SER
NCR
SCR
WXR
CO
TOT

NARRATIVE ANALYSIS
DEFINITIONS;
LOC - LOCATION
NOM - NUMBER OF TOTAL LAWSUITS FILED IN QUARTER
HC - NUMBER OF HABEAS CORPUS ~CTIONS FILED
FTC - NUMBER OF FTCA ACTIONS FILED
BIV - NUMBER OF BIVENS ACTIONS FILED
OTH - OTHER ACTIONS FILED
ANS - NUMBER OF LITIGATION REPORTS COMPLETED
PEN - PENDING
CLD - NUMBER OF ACTIONS CLOSED
HIT - NUMBER OF HEARINGS OR TRIALS (INCLUDE INFO IN NARRATIVE)
SET - NUMBER OF SETTLEMENTS (INCLUDE INFO IN NARRATIVE)
AWD - NUMBER OF AWARDS (INCLUDE INFO IN NARRATIVE)
GOVERNMENT ACTION AND DATE OF ACTION - (INCLUDE IN NARRATIVE)

9

TORT CLAIMS SECOND QUARTER - FY97 (JANUARY 1,1997 - MARCH 31,1997)

Loc

Num

Mxr

0

NER

181

SER

PP

PI

PPPI

WD

Med

Set

Amt

Pen

Den

OD

AID

AlP

0

0

0

0

0

0

0

0

0

0

0

0

137

24

1

2

17

24

7947

211

114

0

0

105

1

1

0

0

0

0

0

0

0

0

0

0

0

Ncr

1

1

0

0

0

0

0

0

1

0

0

0

0

Scr

0

0

0

0

0

0

0

0

0

0

0

0

0

Wxr

0

0

0

0

0

0

o '.

0

0

0

0

0

0

C.O.

0

0

0

0

0

0

0

0

0

0

0

0

0

Sum

183

139

24

1

2

17

24

7947

212

114

0

****

105

11

NORTHEAST REGIONAL OFFICE
ADMINISTRATIVE REMEDIES OUARTERLY REPORT
TO

FROM 01-01-97

LOC

NUM

DHO

SPH

MED

373

142

13

24

MH

03-31-97

LEG

FD

GRT

DEN

PEN

OD

7

3

25

257

87

0

MXR
NER

0

SER
NCR
SCR
WXR
TOT
NARRATIVE ANALYSIS

DEFINITIONS
LOC
NOM
DHO
SPH
MED
MH
LEG
FD
GRT
DEN
PEN
OD

-

LOCATION
NUMBER OF TOTAL AD REMEDIES FILED
NUMBER OF DHO REMEDIES FILED
NUMBER OF SPECIAL HOUSING UNIT REMEDIES FILED
NUMBER OF MEDICAL REMEDIES FILED
NUMBER OF MENTAL HEALTH REMEDIES FILED
NUMBER OF LEGAL REMEDIES FILED
NUMBER OF FOOD REMEDIES FILED
TOTAL OF NUMBER OF REMEDIES GRANTED
TOTAL NUMBER OF REMEDIES DENIED
TOTAL NUMBER OF REMEDIES PENDING
TOTAL NUMBER OF REMEDIES OVERDUE

. UNITED STATES GOVERNMENT

memorandum
Date: April 16,

1997

David R. Essig, Regional Counsel, Northeast Region
Philadelphia, Pa. 19106

Reply to

Attn of: Federal Bureau of Prisons,

Subj ect: Quarterly Report - January 1, 1997 through March 31, 1997
To:

Wallace H. Cheney, General Counsel and

Assistant Director, Federal Bureau of Prisons
Washington, D.C.
20534

Attached are the statistics requested for the quarterly report for the second
quarter of FY 1997.
The following is a synopsis of the significant cases in litigation during the quarter:

SIGNIFICANT DECISIONS, HEARINGS OR TRIALS
1. Benjamin Mackey v. Bureau of Prisons, Civil No. 96-5286 (E.D.Pa )
This is an update of this case discussed in last quarter's report. Inmate
Benjamin Mackey, 09717-054, at FCI Schuylkill, filed a habeas corpus action
challenging a DHO finding that he possessed marijuana and the calculation of
prior custody credit. Judge Shapiro held a hearing on the petition for Thursday.
October 17, 1996. The court focused on two issues: whether the Bureau
properly calculated the inmate's parole violation term and whether the DHO
forfeited more statutory good time than was available at the time of the Infraction
The court requested an additional declaration detailing these issues. Hank
Sadowski assisted the AUSA at the hearing. On February 13, 1997, the court

ruled for the Bureau on all issues except one. The court ordered that the inmate
receive 6 days of statutory good time. The court noted that the Bureau had
forfeited 166 days of statutory good time whereas the DHO summary stated the
inmate is to forfeit 160 days of SGT. We complied with the order.

2. united States v. Gonzales, 117 S.Ct. 1032 (1997)
This case was also discussed in last quarter's report. On
March 3, 1997, the Supreme Court held that a federal
sentence imposed under 18 U.S.C. § 924{c), which prohibits
concurrent service "with any other term of imprisonment,"
may not be ordered to run concurrently with an existing
state sentence. Hank Sadowski assisted the Solicitor
General's office at the December 11, 1996 argument. The
decision noted, in dicta, that the Bureau of Prisons is
responsible for aggregation of sentence under 18 U.S.C. §
3584.
3. Fisher v. Goord, et aI., 96-CV-0486 (W.D.N.Y.)
This case was also discussed in last quarter's report. New York State inmate
Amy Fisher alleged that a number of New York state institution staff have had
sex with her, some with her consent, some without. She filed a civil rights action
against numerous state officials. As part of her relief, she has moved the court
to order her transferred to the Federal BOP. The United States is not a party to
the action. We filed an Amicus brief asserting that the court had no jurisdiction
to order the United States to take a state prisoner. We focused the court on 18
U.S.C. § 3626 as the proper standard for assessing the injunctive request. The
court requested the parties to respond to our brief. Plaintiff submitted a
response asserting that § 3626 is unconstitutional. The court has certified the
issue to the Attorney General under 28 U.S.C. § 2403(a). Federal Programs was
advised and they requested the AUSA to file a brief upholding the
constitutionality. We expect to file a brief by May 1, 1997.

4.

United States v. Price, Crim. No. 96-145-01 (E.D.Pa.)

Pretrial releasee Kenneth Price had a sentencing hearing
before Judge Rendell on February 7, 1997. The defendant
argued that his advanced liver condition was an
extraordinary circumstance justifying downward departure
from the sentencing guidelines of 21-27 months.
Defendant's
medi~alexpert testified that defendant has cirrhosis of the

liver and had a 50% chance of catastrophic internal bleeding
within the next two years. The AUSA's medical expert
testified that the medical condition was not as severe as
presented by defendant. The AUSA requested the Bureau's
assistance to address the ability of the Bureau to care for
the defendant. Medical records were reviewed by Health
Services Division. Hank Sadowski testified at the hearing
concerning the probable designation to a medical facility
and the medical services available for federal prisoners.
The court found defendant's medical condition to be "an"
extraordinary physical impairment" under Sentencing
Guideline § 5H1.4 and sentenced "him to probation with 12
months home detention.
5. Palmer v. United States, CV-95-383

(M.D.Pa.)

This Federal Tort Claims Act case was filed by Inmate Lovell
Palmer, 23307-083, who alleged that he slipped and fell in
January 1994 at USP Lewisburg. His administrative tort
claim was for $1000.
In his complaint, he requested damages
in excess of $25,000. We moved to limit the inmate to the
$1000. On pressure from the court (and to save expense of
trial), we offered settlement to the inmate in the amount of
$1000 which the inmate refused. We moved for partial
summary judgment against the United States in the amount of
$1000.
Judge Kosik granted our request for a bifurcated
trial limited to the issue of whether the inmate can claim
damages above that requested in his administrative claim.
This part of the trial was held on
January 15, 1997. The court heard testimony from Dr. Keiper
(retired) formerly at USP Lewisburg and Dr. Klinkerfuss (now
at FMC Springfield). The Springfield doctor testified via
video
teleconference. Before ruling on our motion, Judge Kosik
requested an exam of the inmate by a non-BOP doctor.
Attorney Mike Sullivan assisted at the trial.
No decision
has yet been rendered.
6.

United States v. Medina, 97- CR-

(S.D.N.Y.)

Pretrial detainee Jose Medina, 43311-054, has been charged
with the attempted extortion of Bill Cosby.
On January 24,
1997, the legal office at MCC NY was advised by the AUSA
that, at a bail hearing earlier that day, inmate Medina

alleged that he had not been allowed to see a Rabbi and that
he had not eaten since he arrived at MCC on January 18,
1997. The inmate requested an order directing the Warden to
provide him Kosher food and to permit him to meet with a
Rabbi. A hearing on these issues was scheduled for 2:30
p.m. that day.
The Warden immediately decided to place the inmate on common
fare.
The Chaplain later concurred with this decision.
Arrangements were made for the inmate to see the Rabbi.
Attorney Alma G. Lopez attended the hearing.
Prior to the hearing, Ms. Lopez explained the MCC's position
to the AUSA and defense counsel. MCC records showed that
inmate Medina had received all his meals, except for one
refusal, since his arrival at the MCC. Defense counsel
understood the MCC's position and only requested
documentation showing that the common fare meals are kosher
so that his client could be appeased.
During the hearing, defense counsel indicated that although
his client had received all his meals, he was flushing down
the foods that he was prohibited from eating by his
religion. Magistrate Judge Peck agreed with the MCC's
solution.
7.

Li v. Canarozzi. et al., 95 Civ. 0706 (S.D.N.Y.)

Jury trial commenced on February 3, 1997 in this Bivens
complaint
brought by former pretrial detainee Jian An Li, 44661-053,
who alleged that six officers at MCC NY assaulted him on an
elevator on November 10, 1994. Staff were responding to a
disturbance involving a fight among many inmates.
Plaintiff
sustained injuries that day, the most serious was a broken
arm.
Plaintiff
alleged that staff caused the injuries. Our version was
that the injuries were sustained during the fight among the
inmates. Dominique Raia and Alma Lopez assisted the AUSAs.
Trial was completed
a verdict late that
jury found that the
occurred during the

on February 14, 1997. The jury returned
day in favor of all defendants. The
injuries sustained by the Plaintiff
disturbance on the unit, not in the

elevator.

8. United States v. Coleman, Criminal No. ---- (E.D.N.Y.)
Pretrial detainee Leonard Coleman, 47321-019, requested an emergency
hearing before the criminal trial judge to address alleged lack of medical care at
MDC Brooklyn. In addition the attorney complained that her client was being
held in administrative detention (pending investigation of a threat against the
detainee). A hearing was held on March 5,1997. Azzmeiah Vazquez attended
the hearing. On the admini"strative detention issue, Judge Platt found that he did
not have jurisdiction since the detainee did not pursue administrative remedies.
On the medical issue, the defense attorney advised the court she was not ready
to proceed. The MDC Clinical Director
was prepared to testify. This was unnecessary since the AUSA was not opposed
to release under strict conditions. The court ordered the AU.SA to draft a
proposed order of release.
9.

Leonard Falzone v. Federal Bureau of Prisons, et al.,
Civil Action No. 97-574 (E.D.Pa.) (formerly Case No. 96-215 (E.D.Ky.)

Inmate Leonard Falzone, 83361-020, filed a petition for habeas corpus in E.D.
Ky. challenging the disallowance of 14 days good conduct time for an infraction
committed at Lewisburg Camp. The DHO hearing summary erroneously did not
specify the loss of GCT. An amended DHO summary was later prepared. The
inmate challenged the authority of the DHO to amend the summary. The MARO
and Ashland had responsibility for this litigation and a response was duly filed in
E.D. Ky. After the inmate was transferred to FCI Schuylkill, the case was
transferred to E.D.Pa. On February 26,1997, a hearing was held before U.S.
Magistrate Judge Rueter on the petition. Our offer of assistance was accepted
by MARO. Joyce Horikawa assisted at the hearing. DHO Zimany testified that
his notes and contemporaneous records showed that he had disallowed the
good conduct time for the inmate. The only document which did not reflect the
disallowance was the DHO summary. The error was cured when the DHO
issued an amended DHO summary and the inmate was afforded the right to
appeal. On February 27, 1997, the Magistrate Judge recommended that the
petition be denied. On March 17, 1997, Judge Katz adopted the Report and
Recommendation, dismissing the petition.
10. Linn v. Wigen, Civ 96-3147 (E.D.Pa.)
Former inmate Michael Linn, 81843-054, brought a Bivens action against staff at
FCI Schuylkill, Regional Counsel, and Central Office Appeals Administrator Ed
Crosley alleging primarily that (1) he was denied CCC placement because he
was Jewish; and (2) he was denied surgery for a shoulder injury and was given
work assignment contrary to his medical problem. He asserted that one
similarly situated non-Jewish prisoner was given a CCC placement. He also

alleged that the shoulder surgery was recommended by a
contract specialist and the defendant denied it anyway. A non-jury trial was held
before Judge Dalzell on March 13, 1997. Joyce Horikawa assisted the AUSA at
the trial. At the close of evidence, the Judge ruled from the
bench and entered a judgement for all defendants. The Judge
held that the plaintiff failed to present evidence that the
CCC decision was based on his religion and had failed to
show that medical staff was deliberately indifferent to his
medical needs.
11. United States v. Hammer, 4:CR-96-239 (M.D.Pa.)
Inmate David Hammer, 24507-077, has been charged with the April 1996 murder
of an inmate at USP Allenwood. On March 7, 1997, the United States Attorney,
seeking the death penalty, had a hearing before the DOJ panel. No decision has
been made.
In this same case, Judge Muir held a hearing on March 10, 1997 on defense
attorneys's motions pertaining to telephone access and special mail. Inmate
Hammer is under phone and correspondence restrictions for disciplinary .
reasons. Defense attorneys asked the court to order USP Allenwood to permit
Hammer to make unmonitored calls to defense experts. They also requested the
court to order USP Allenwood to permit Hammer to make monitored calls to any
defense witness (including another inmate now in a state system). Defense
attorneys are also asserting the Clerk of Court mail should be automatically
included in Special Mail. Hope Mora attended the hearing and testified
concerning some of these issues. On March 31, 1997, the court denied all the
motions except the court held that clerk of court mail should be treated as
Special Mail. We are preparing a motion for reconsideration.
12.

Curran v. United States, 3:93CV1749 (D.Conn.)

Former inmate Kimberly Curran, 07921-026, filed this Federal
Tort Claims Action complaint alleging that a staff member at
FCI Danbury had sexually harassed and assaulted her.
On
March 18, 1997, Judge Thompson granted our motion to
dismiss. The court held: (1) any alleged actions by the
staff member were outside the scope of his employment; and
(2) decisions concerning staff discipline and inmate
transfers and furloughs fall within the discretionary
function exception to the FTCA.
13. Dobson v. Bureau of Prisons, CV-96-01767

(D.D.C.)

Inmate Sherman Dobson, 00003-099, filed an action under the

Freedom of Information Act challenging the denial of
memoranda
and staff statements which were generated after the
disturbance
at USP Lewisburg in October 1995. With one exception, Judge Sporkin upheld
that denial and excisions in the FOIA processing. The court found that the
inmate was also requesting statements of witnesses relating to an inmate
discipline hearing. The court found no exemption applied to these statements
since they had been provided to the inmate at the DHO hearing. The original
FOIA request we processed did not request these statements. We complied with
the court order and sent the inmate the additional statements.

14. United States v. Marino, Crim. No. ----- (S.D.N.Y.)
Inmate Daniel Marino, 99111-012, arrived at MCC NY on
February ·12, 1997 to face prosecution of criminal charges. He was moved from
FCI Ashland pursuant to a writ ad prosequendum. On March 27, 1997, the
AUSA contacted the MCC NY and advised that Judge SterliAg Johnson
scheduled a hearing for March 28, 1997 to address allegations by the defendant
concerning medical care at MCC NY. The Judge required the Warden to appear
at the hearing. Attorney Alma Lopez accompanied the Warden. The defendant
alleged that he had blood in his stool and he had not been examined since he
was at MCC. BOP records show that he was examined by the Staff Physician on
March 17, 1997 and was scheduled for a colonoscopy. The Judge stated he did
not want to get involved in the details of the defendant's medical care. He
suggested a meeting to resolve the dispute. A meeting was held following the
hearing and defense counsel requested that a private doctor examine the
inmate. The defense counsel were requested to send their request with
supporting documents in writing. The inmate received his scheduled
colonoscopy on
April 2, 1997. The Warden will decide whether to grant the request after the
results of the tests are received.

SETTLEMENTS AND AWARDS
1. Matosv. United States, CV-94-8977 (S.D.N.Y.)
Civilian filed a Federal Tort Claims Act complaint alleging
negligence of MCC NY caused her to slip. and fallon stairs
in the institution. She had sought $1 million. There was
an injury from the fall; but there was little evidence of
negligence. The AUSA settled this case for $6000.

2.

Rivera-Torres v. United States, CV-95-233

(M.D.Pa.)

Inmate Carlos Rivera-Torres, 33217-054, brought a Federal
Tort Claims Act complaint alleging that he slipped and fell
on ice at LSCI Allenwood in March 1994. The case was
scheduled for trial on March 27, 1997. The inmate sustained
a fracture to his right ankle, which required a cast for
several months. His recovery was hampered by his diabetes.
No specific records could be located for snow and ice
removal for the day in question. Case settled for $12,500.

3.

Allen v, United States, CV-96-615 (M.D.Pa.)

Inmate Royal Allen, 36863-019, filed a Federal Tort Claims
Act complaint alleging that his property was lost when he
was taken to the Special Housing Unit at LSCI Allenwood.
Our investigation revealed probable liability for the loss
of the property. Attempts to settle with the inmate proved
fruitless.
We filed a motion for summary judgment against
the United States for the amount demanded in the
administrative tort claim, which we felt was appropriate for
the loss. On January 31, 1997, the court granted our motion
and entered summary judgment against the United States for
$174.65 and for costs of $83.22 (the filing fee paid by the
inmate) .

Attachments

NORTHEAST REGIONAL OFFICE
LITIGATION QUARTERLY REPORT
FROM 01/01/1997 TO 03/31/1997

LOC NUM
MXR
NER 53
SER
NCR
SCR
WXR
CO
TOT

HC

FTC

BIV

21

12

14

OTH

5

ANS

PEN

CLD

HIT

22

573

50

9

SET

2

AWD

1

NARRATIVE ANALYSIS

DEFINITIONS:
LOC - LOCATION
NUM - NUMBER OF TOTAL LAWSUITS FILED IN QUARTER
HC - NUMBER OF HABEAS CORPUS ACTIONS FILED
FTC - NUMBER OF FTCA ACTIONS FILED
BIV - NUMBER OF BIVENS ACTIONS FILED
OTH - OTHER ACTIONS FILED
ANS - NUMBER OF LITIGATION REPORTS COMPLETED
PEN - PENDING
CLD - NUMBER OF ACTIONS CLOSED
HIT - NUMBER OF HEARINGS OR TRIALS (INCLUDE .INFO IN NARRATIVE)
SET - NUMBER OF SETTLEMENTS (INCLUDE INFO IN NARRATIVE)
AWD - NUMBER OF AWARDS (INCLUDE INFO IN NARRATIVE)
GOVERNMENT ACTION AND DATE OF ACTION - (INCLUDE IN NARRATIVE)

TORT CLAIMS SECOND QUARTER - FY97 (JANUARY 1, 1997 - MARCH 3l.
1997)

Loc
Mxr
NER
SER
'Ncr
Scr
Wxr
C.O,
Sum

PPPI

Num

PP

PI

0
181
I
1
0
0
0
183

0
137
I
1
0

0
24
0
0

0

0
0

0

0
0
24

0
0
I

0
139

0
I
0

WD
0
2
0
0
0
0
0

2

Med

Set

Amt

Pen

Den

OD

0
17
0
0

0
24
0
0
0
0
0
24

0
7947
0

0
211
0
1

0
114
0

0

0

0
0
0

7947

212

0
0
0
17

0
0
0

0

0
0
'0

A/O
0
0
0
0

0
0
0
114

0

0

0
0
0

0
0

****

AlP
0
105
0
0
0
0
0
105

NORTHEAST REGIONAL OFFICE
ADMINISTRATIVE REMEDIES QUARTERLY REPORT
FROM 01-01-97

LOC
MXR
NER
SER
NCR
SCR
WXR
TOT

TO

03-31-97

NUM

DHO

SPH

MED

MH

LEG

373

142

13

24

0

7

FD

GRT

DEN

PEN

OD

3

25

257

87

0

..

NARRATIVE ANALYSIS
DEFINITIONS
LOC - LOCATION
NUM - NUMBER OF TOTAL AD REMEDIES FILED
DHO - NUMBER OF DHO REMEDIES FILED
SPH - NUMBER OF SPECIAL HOUSING UNIT REMEDIES FILED
MED - NUMBER OF MEDICAL REMEDIES FILED
MH - NUMBER OF MENTAL HEALTH REMEDIES FILED
LEG - NUMBER OF LEGAL REMEDIES FILED
FD - NUMBER OF FOOD REMEDIES FILED
GRT - TOTAL OF NUMBER OF REMEDIES GRANTED
DEN - TOTAL NUMBER OF REMEDIES DENIED
PEN - TOTAL NUMBER OF REMEDIES PENDING
OD - TOTAL NUMBER OF REMEDIES OVERDUE

UNITED STATES GOVERNMENT

memorandum
Date: July 17,

1997

Henry J. Sadowski, Regional Counsel, 'Northeast'"Region
Attn of: Federal Bureau of Prisons, Philadelphia, Pa. 19106

Reply to

Subject: Quarterly Report - April
To:

1, 1997 through June 30, 1997

Wallace H. Cheney, General Counsel and

Assistant Director, Federal Bureau of Prisons
Washington, D.C.
20534

Attached are the statistics requested for the quarterly report for the third quarter
of FY 1997.
The following is a synopsis of the significant cases in litigation during the quarter:

A. SETTLEMENTS AND AWARDS
1. Hammed v. United States, CV-95-10306 (S.D.N.Y.)- In this Federal Tort
Claims Act complaint, former inmate Ali Hammed, 03822-070, alleged that FCI
Otisville lost his property on an institution transfer. Inmate requested $180 in
damages. The major issue was the evaluation of the property. Case settled for
$120.
2. Dennie v. Teague, Civ. No. 96-CV-634 (N.D. N.Y.) - Inmate Akali Dennie.
11762-014, filed Bivens case alleging failure to protect him from assault by
another inmate while at FCI Ray Brook. Our records show placement of Dennie
into SHU cell with inmate who assaulted him the night before. Due to pOSSible
exposure, we agreed to convert into FTCA case and settle for $5000.00
3. Mulligan v. United States, Civ. No. 96-7796 (E.D.Pa.) - Inmate FranCIs
Mulligan, Reg. No. 31580-066. filed FTCA case alleging that while at Fel
Schuylkill, he slipped and fell on three separate occasions due to staff
negligence in maintaining a

-2-

clear sidewalk. He further alleges that as a result of the falls, one of his
pacemaker wire leads was torn from his heart, which required surgical repair.
Our medical expert confirmed that the fall may have caused the wire to separate.
As a result of a number of factors, it was agreed to settle the case for $4,000.00.
4. Curtis v. United States, 96-4240 (E.D.PA .. )- FTCA case regarding delay in
medical treatment which occurred as a result of the institution transfer of the
inmate Plaintiff, Glenn Curtis, Reg. No. 44293-066. The case settled for
$45,000.00.
B. SIGNIFICANT DECISIONS, HEARINGS OR TRIALS
1. Colon v. Menifee, Appeal No. 96-7588 (3d Cir.) - Oral argument was heard
before the Third Circuit on May 9, 1997 in our appeal from the grant of a habeas
corpus petition by Judge Muir in 4:CV-96-0807 (M. D. Pa. June 28, 1996).
Petitioner Jimmy Colon, 19968-038, challenged the Bureau's decision that his
.conviction for felon in possession of a firearm under 18 U.S.C. § 922(g) was a
crime of violence precluding him from early reduction consideration under 18
U.S.C. § 3621 (e). Judge Muir held that the Bureau was not entitled to conclude
that the possession of a firearm by a felon is a crime of violence for purposes of
18 U.S.C. § 3621 (e) eligibility. The Third Circuit focused on the nature of
deference the court should accord the interpretation of the Bureau. Hank
Sadowski assisted the AUSA. To date, no decision has been issued.
2. Roussos v. Menifee, No. 97-7011 (3d Cir.) - On July 8, 1997, the Third Circuit
heard oral argument in another 3621 (e) case. Inmate Victor Roussos, Reg. No.
30950-054, filed a petition for writ of habeas corpus challenging his ineligibility for
early release under 18 U.S.C. § 3621 (e). He was found so because of a two
point enhancement for a firearm in connection with a drug offense. On
November 27, 1996. Judge McClure denied the petition and upheld the BOP
interpretation. (Judge McClure later overruled himself in another petition on the
same issue.) The inmate appealed to the Third Circuit. This case was argued
by the same AUSA who argued the above Colon case. Hank Sadowski assisted
the AUSA. The oral argument was not as focused as the Colon argument The
court asked a number of questions concerning the Downey decision from the 9th
Circuit. The court also asked questions about Third Circuit law which found mere
possession of a firearm is not a crime of violence. The court reserved ruling
-3-

3. Pollard v. Secor. et. ai, 95 Civ. 5599 (E.D.Pa.) - Jury trial held on June 23
and 24, 1997 in the above Bivens case. Inmate Rodney Pollard, Reg: No

14640-050, alleged that while he was at FCI Schuylkill he was improperly placed
in administrative detention and then transferred as a result of the practice of his
religion. Defendants' Motion for Summary Judgement was denied. At beginning
of trial, Judge Ludwig granted a renewed motion to dismiss administrative
detention claim on basis of Sandin and a recent Third Circuit case. After one
hour deliberations, the jury returned a verdict in favor of all defendants. Jay
Furtick assisted the AUSA.
4. Gibbons v. United States, CV-95-4654 (S.D.N.Y.) - This FTCA case went to
trial on April 8, 1997. Inmate Gary Gibbons, 34115-054, alleged that he injured
his hand as a result of using defective and dangerous weight lifting equipment at
MCC NY. The inmate claimed that he was using a piece of equipment when it
disengaged, striking him. After the trial, the court requested additional briefing
on the duty of the United States to instruct the inmates on the operation of the
equipment. Plaintiff sought $300,000 in damages. The court recently ruled in
favor of the United States.
5. United States v. Marino, Crim. No. ---- (S.D.N.Y.) - Inmate Daniel Marino,
99111-012, arrived at MCC NY on February 12, 1997 to face prosecution of
federal criminal charges. He was moved from FCI Ashland pursuant to a writ ad
prosequendum. On
March 27, 1997, the AUSA contacted the MCC NY and advised that Judge
Sterling Johnson scheduled a hearing for March 28, 1997 to address allegations
by the defendant concerning medical care at MCC NY. The Judge required the
Warden to appear at the hearing. Attorney Alma Lopez accompanied the
Warden. After review of some information, the Judge stated he did not want to
get involved in the details of the defendant's medical care. Based upon the
court's suggestion, the parties held a meeting to resolve the dispute.
6. United States v. Papagni, 95-CR-31 (E.D.N.Y.) - On April 8, 1997. Judge
Frederic Block issued an order to show cause to determine whether the United
States Attorney's office must obtain all phone tapes made by a Witsec Inmate.
who is a scheduled witness in this case. The court entered an order requIring
the

-4-

Bureau to preserve all phone tapes pending a hearing. On April 17. 1997. a
hearing was held in which Hank Sadowski and Craig Trout assisted the AUSA
The AUSA submitted a motion to vacate the preservation order supported by an
excellent brief (with exhibits) which focused the court on whether BOP phone
tapes can be deemed to be in the possession of the prosecution. The court
allowed briefs to be submitted. The court .held a second hearing on May 1. 1997.

and modified his preservation order to require the institution to preserve
recordings for certain numbers. No conclusive ruling has yet resulted.
7. United States v. Felipe, 94 CR 395 (S.D.N.Y.) - On April 16, 1997, Judge
Martin held a hearing addressing whether restrictions on confinement he
imposed on a sentence for Luis Felipe, 14067-074, were within his authority.
The AUSA argued that, under the facts of this case, the court had the authority to
impose restrictions under 18 U.S.C. § 3582(d). Felipe is the leader of the Latin
Kings and the evidence before the court showed that Felipe had ordered
murders while in pretrial detention. Defense counsel stressed the
unprecedented nature of the restrictions. On April 29, 1997, the court issued an
opinion upholding the restrictions under § 3582(d). In dicta the court also opined
that it had the inherent authority to order such restrictions. The order is now on
appeal.
"
8. United States v. Rosario, Crim. No. ----- (S.D.N.Y.) - Inmate David Rosario.
39665-054, arrived at MCC NY on January 23, 1997 to face prosecution of
federal racketeering charges. Rosario arrived from New York state custody,
where he was serving a forty year plus life sentence. He was placed in
administrative detention as MCC NY deemed him to be a high security risk and
pending classification. The inmate had separatees and MCC had heard (without
documentary confirmation) that the inmate had an
extensive disciplinary record in the state. Judge Keenan (the criminal 'trial judge)
held a hearing on April 7, 1997 to address complaints fr~m defense counsel
concerning this placement. Alma Lopez represented the Bureau. Judge Keenan
expressed concern that the inmate had been in AD since January 1997 and the
MCC still had not receive documentation from the state concerning his
disciplinary problems. The court asked the AUSA to submit a
report by April 19, 1997 setting forth whether the MCC will continue to house the
inmate in AD. The inmate was removed from AD on April 12, 1997.

-5-

9. United'States v. Shapiro. Crim. No. 96-1019 (E.D.N.Y.) - On April 1. 1997.
Judge Block held a hearing addressing complaints made by inmate Robert
Shapiro (a.k.a. Robert Weldon), 43063-053, regarding access to a law library
The inmate is serving a federal sentence and was brought back via Writ to face
federal charges of attempting escape and forging a Judgment & Commitment
order. Azzmeiah Vazquez represented the Bureau at the hearing, The Inmate
demanded more access to law library, access to a fax machine. and access to a
copy machine. Azzmeiah was able to show that'the inmate requested access to
the law library only three times in the last three months. She also went over the
inmate's commissary account to show he was able to afford copies The court
advis~d the inmate of the difficulties of appearing pro se. The court stated that It

was not going to ask the MDC to change policy solely because the inmate
refused appointed counsel.
10. United States v. Coffey, Cr. 94-282 (D.Nevada) - On April 8, 1997, U.S.
District Judge Pro held a hearing via telephone concerning the 18 month federal
sentence he imposed on inmate John Alexander Coffey, 30281-048 on July 28,
1995. The issue was whether the federal sentence was to run concurrently with
a state term. The inmate had been in the primary custodial jurisdiction of
Arizona state authorities. The inmate was taken to federal court via writ and
received the 18 month federal sentence prior to the imposition of the state·
sentence. The Judgement and Commitment Order did not reference the state
sentence. The inmate was returned to stat~ custody and was sentenced to a
term of about 2% years. He completed service of this state sentence on or about
December 9, 1996. The inmate was designated to FCI Fort Dix. The federal
sentence was computed to be consecutive to the state since the Federal
Judgement and Commitment Order was silent concerning the federal judge's
intention. In the hearing, Judge Pro stated for the record that his intention was
that his federal sentence was to be served concurrently. Since the court's
intention was now clear, the judge was advised that we would recompute his
federal sentence to run concurrently with the state. On the telephone for this
hearing, at the Judge's request, were Warden Hurley, FCI Fort Dix, Harlan Penn,
WRO, Hank Sadowski, NER, and the inmate.
11. United States v. M.S., Cr. No. --- (E.D.N.Y.) - On April 24, 1997, we learned
that the court was presented with a proposed order to direct MDC Brooklyn to
accept 17 year old juvenile, M.S. Azzmeiah Vazquez tracked down the AUSA,
who advised the court
-6-

that the Bureau of Prisons needed to be heard before the order was signed. At
about 6:00 pm, the court had an emergency hearing at which the AUSA advised
the court of the statute requiring segregation of juveniles and the practical
problems for housing him at the MDC. The court decided not to sign the order
placing the juvenile in MDC.
12. United States v. Simone,Cr.No.92-35-01 (E.D.Pa.) - On June 9, 1997. a
hearing was held concerning the status of inmate Robert F. Simone. Reg No.
33980-066. Inmate Simone, a former attorney from Philadelphia, was moved
from a halfway house, as a program failure, to FCI Fairton and was ~r.hprttllp.rl to
be returned to FPC Nellis (later changed to FPC Schuylkill). His attorney filed a
motion to preclude his transfer, which motion was granted by Judge Dalzell. the
sentencing judge. The inmate, who formerly represented some organized crime
members now housed at FCI Fairton, was placed into administrative detention.
His attorney alleged retaliation (as well as failure to give medications) At the

hearing, the Judge gave both sides an opportunity to reach an agreement and it
was decided that the Plaintiff would be transferred to FPC Schuylkill the next
day, via one day furlough. Hank Sadowski represented the Bureau.
13. United States v. Zachariades, E.D.N.Y. - On June 17,1997, a hearing was
held before U.S. District Judge Dearie regarding a subpoena issued by defense
counsel concerning the production, the next day, of 75 telephone tapes of calls
placed by inmate Constantine Zachariades, Reg. No. 45658-053. As the case
was currently in trial, and the judge requested an expedited resolution, a
schedule agreeable to all parties was reached. MDC Brooklyn attorney
Azzemiah Vazquez assisted at the hearing.
14. United States v. Wells, Cr. No. ---- (S.D.N.Y.) - On June 4, 1997, a hearing
was held before Magistrate Judge Grubin concerning the medical care being
provided to inmate Priscilla Wells, Reg. No. 40358-054. After hearing from MCC
NY attorney Dominique Raia, the Court stated that the medical treatment the
inmate was receiving was adequate.
15. United States v. Pappas, CR-95-0368 (S.D.N.Y.) - On June 5,1997, MCC
NY physician Dr. Glover was subpoenaed to testify concerning the current
medical status of inmate Dennis Pappas, Reg. No. 45783-053. Dr. Glover stated
that the inmate was ill but was capable to stand trial. Dominique Raia assisted.
-7-

16. U.S. v. Barrios, 95 CR 524 (S.D.N.Y.) - On May 1,1997, inmate Joe Barrios,
37320-054, appeared before Judge Stanton for sentencing under the influence of
heroin and cocaine. Sentencing was canceled and the Judge requested an
explanation as to how this could occur since the defendant was in the custody of
BOP. MCC NY Attorney Dominique Raia attended a hearing that day. The
warden submitted a letter responding to the Court's concerns. On May 23. 1997.
Judge Stanton sent a letter to the Warden thanking him for the thoughtful and
thorough letter.
17. U.S. v. Salvatore Brunetti, (D.N.J.) - On May 8, 1997, FCI Fairton attorney
Bobbie Truman and Chief Psychologist attended sentencing for pretrial detainee
Salvatore Brunetti, Reg. No. 07781-062. Brunetti was requesting a downward
departure from sentencing guidelines based on mental instability. Psychologist
was subpoenaed by defense attorney because of a report he prepared over a
year ago questioning Brunetti's stability. Psychologist testified that he feels
Brunetti duped him in the past and that Brunetti is stable. Defendant was
sentenced to forty years.
18. People of State of New York v. David Watson, - On May 13, 1997.
Azzmeiah Vazquez. Attorney Advisor at MDC Brooklyn, along with an AUSA for

the EDNY appeared before a state court judge who threatened to hold a MDC
Brooklyn staff member in contempt of court for not producing an inmate (David
Watson, Reg. No. 26104-053) pursuant to a state writ requested by the Brooklyn
District Attorney's office. During the hearing, the court was advised that the MDC
did not oppose the production of the inmate but the DA's office did not complete
the necessary paperwork (requested by the MDC prior to the hearing) to enable
the Warden to authorize the release of the inmate to state agents. The Judge
did not hold staff in contempt and admonished the DA's office for not following
through with the necessary information.
19. Longoria v. BOP, et al., 1:CV-97-0332 (M.D.Pa.) - Inmate

Gonzales-Longoria, Reg. No. 59761-079 filed a complaint alleging that his
telephone calls were being improperly blocked by USP Lewisburg. A telephone
conference was held on June 17, 1997, to discuss case. The magistrate judge,
the inmate, the AUSA, and USP Lewisburg attorney Michae.l Sullivan
participated. Magistrate Judge ordered each side to brief issue as to whether the
case should proceed as a..... Bivens case .
-8-

20. Wang v. Department of Justice, Civil No. 97-2462 (E.D.Pa.)Attorney Helen Wang filed this complaint requesting a temporary restraining
order and injunctive relief. On February 27, 1997, Attorney Wang was found in
possession of ammunition when trying to see some inmates at USP Lewisburg.
The case was referred to the FBI for criminal investigation. Her visits at USP
Lewisburg were suspended. Counsel for Attorney Wang argued that her visits to
all federal institutions have been suspended because of the investigation. The
complaint requested the court to order the Bureau to permit her access to federal
institutions. On
Aprii 25, 1997. Judge Brody held a status conference in chambers. Attorney
Wang was represented by two attorneys; the Deputy Chief of the Civil Division
and Hank Sadowski represented the Bureau. The Judge recognized that the
investigation must be given sufficient time and denied the TRO. The court
scheduled a pretrial conference for September 3, 1997.
21. Starzecpyzel v. U.S., 97 Civ 1349(S.D.N.Y.} - Attorney Stephen Roen filed
this complaint challenging the decision by the Warden at FCI Danbury to restnct
the attorney's visiting privileges for 30 days. Trying to graft this complaint to a
pending 2255 motion. Roen requested a temporary restraining order and bail for
the inmate Eileen Strazecpyzel. Reg. No. 34792-054. The attorney alleged thiS
decision interfered with the ability to represent the inmate in the 2255 motion to
vacate her sentence. On May 22. 1997. Judge McKenna held a hearing Mike
Tafelski assisted the AUSA. The court ruled there was no jurisdiction to hear his
complaint concerning Fel Danbury. The Attorney then filed an administrative

appeal with the Regional Director concerning the suspension. Although
suspension was upheld, time period was reduced by seven days with the
attorney visits limited to the general visiting area to enhance staff supervision.
(Attorney was seen by staff massaging the inmate's shoulders, etc.). Attorney
has renewed the same complaint in the District of Connecticut. The Magistrate
Judge recommended the requests for TRO be denied, request for preliminary
injunction be denied, and requested defendants show cause why Plaintiffs
request to visit in "chapel room" rather than main visiting room should not be
granted. A response is expected to be filed before July 23, 1997.

-9-

C. SIGNIFICANT PENDING CASES
1. Fisher v. Goord. et aI., 96-CV-0486 (W.D.N.Y.) - This case was also'
discussed in last quarter's report. New York State inmate Amy Fisher alleged
that a number of New York state instit.ution staff have had sex with her, some
with her consent, some without. She filed a civil rights action against state
officials. As part of her relief, she has moved the court to order her transferred to
the Federal BOP. The United States is not a party to the action. We filed an
Amicus brief asserting that the court had no jurisdiction to order the United
States to take a state prisoner. We focused the court on 18 U.S.C. § 3626 as
the proper standard for assessing the injunctive request. On July 16. 1997. the
court dismissed the complaint in an opinion of over 100 pages.
2. Palmer v. United States, CV-95-383 (M.D.Pa.) - This case was discussed in
last quarter's report. This Federal ~ort Claims Act case was filed by Inmate
Lovell Palmer. 23307-083. who alleged that he slipped and fell in January 1994
at USP Lewisburg. His administrative tort claim was for $1000. In his complaint.
he requested damages in excess of $25,000. We moved to limit the inm~tp to
the $1000. On pressure from the court (and to save expense of trial). we offered
settlement to the inmate in the amount of $1000 which the inmate refused We
moved for partial summary judgment against the United States in the amount of
$1000. Judge Kosik granted our request for a bifurcated trial limited to the Issue
of whether the inmate can claim damages above that requested in hiS
administrative claim. This part of the trial was held on January 15. 1997 Mike
Sullivan assisted the AUSA. Before ruling on our motion, Judge Kosik requested
additional information. No decision has yet been rendered.
3. United States v. Hammer, 4:CR-96-239 (M.D.Pa.) - Inmate David Hammer.
24507-077, has been charged with the April 1996 murder of an inmate at USP

Allenwood. The Attorney General approved seeking the death penalty should
the inmate be found guilty.
Judge Muir held a hearing on March 10, 1997 on defense attorneys's motions
pertaining to telephone access and special mail. Inmate Hammer is under
phone and correspondence restrictions for disciplinary reasons. Defense
attorneys asked the court to order USP Allenwood to permit Hammer to make
unmonitored calls to defense experts. They also requested the
-10-

court to order USP Allenwood to permit Hammer to make monitored calls to any
defense witness (including another inmate'now in a state system). Defense
attorneys are also asserting the Clerk of Court mail should be automatically
included in Special Mail. Hope Moro attended the hearing and testified
concerning some of these issues. On March 31, 1997, the court denied all
motions except the court held that clerk of court mail should be treated as
Special Mail. A motion or reconsideration was filed on May 5,
1997 and was denied on June 3, 1997.
4. Ferguson v. U.S. B.O.P., 96 Civ 6163 (S.D.N.Y.) - Inmate Sylbourne
Ferguson, 06026-067, alleges he was physically assaulted by a staff member at
FCI Otisville. Case is significant because of DOJ's decision NOT to grant
representation to one of four BOP defendants. Although that particular
defendant's version of facts differed from the other three defendants. we
recommended private counsel be approved since, under either version. the use
of force still did not rise to level of constitutional violation (bump with chest),
Defendant had been disciplined (5 day suspension). Dispositive motions have
recently been filed for defendants represented by AUSA.

cc: Regional Director
Senior'Deputy Regional Director
Deputy General Counsel
All Associate General Counsel

NORTHEAST REGIONAL OFFICE
LITIGATION QUARTERLY REPORT
FROM 04/01/1997 TO 06/30/1997

LOC
MXR
NER
SER
NCR
SCR
WXR
CO
TOT

NUM

HC

FTC

BIV

OTH

ANS

PEN

CLD

HIT

SET

AWD

63

22

11

19

10

27.

600

36

15

4

0

NARRATIVE ANALYSIS

DEFINITIONS:
LOC - LOCATION
NUM - NUMBER OF TOTAL LAWSUITS FILED IN QUARTER
HC - NUMBER OF HABEAS CORPUS ACTIONS FILED
FTC - NUMBER OF FTCA ACTIONS FILED
BIV - NUMBER OF BIVENS ACTIONS FILED
OTH - OTHER ACTIONS FILED
ANS - NUMBER OF LITIGATION REPORTS COMPLETED
PEN - PENDING
CLD - NUMBER OF ACTIONS CLOSED
.
HIT - NUMBER OF HEARINGS OR TRIALS (INCLUDE INFO IN NARRATIVE)
SET - NUMBER OF SETILEMENTS (INCLUDE INFO IN NARRATIVE)
AWD - NUMBER OF AWARDS (INCLUDE INFO IN NARRATIVE)
GOVERNMENT ACTION AND DATE OF ACTION - (INCLUDE IN NARRATIVE)

NORTHEAST REGIONAL OFFICE
TORT CLAIM QUARTERLY REPORT
FROM 04/01/1997 TO 06/30/1997

Loc
Mxr
NER
SER
Ncr
Scr
Wxr

Num
0

176
4

2
1

C.O.

0
0

Sum

183

PP

PI

0

0

124
3
1

39
0

0
0
0

128

I
0
0
0
40

PPPI
0
8
0

0
0

0
0

8

WD
0
1
0
0
0
0

0
1

Med
0
4
0
0

Set
0
9
0

0

0
0
0
0

4

9

0

0

Amt
0

675
0
0
0

0
0

675

Pen
0
237
0
1
0
0
0
205

Den
0

98
0
0
0

00
0
0
0

A/O
0
0

0

0
0

0

0
0

0

0

99

0

0

0

AlP
0

114
3
28
13
77

0

••••

0
62

NORTHEAST REGIONAL OFFICE
NORTHEAST REGIONAL OFFICE
ADMINISTRATIVE REMEDIES QUARTERLY REPORT
FROM 4/1/97 TO 6/30/97

LOC NUM DHO SPH MED MH
MXR
29
2
NER 507 182 15
SER
NCR
SCR

LEG

FD

GRT DEN

33

11

29

405

WXR

TOT
NARRATIVE ANALYSIS
DEFINITIONS
LOC - LOCATION
NUM - NUMBER OF TOTAL AD REMEDIES FILED
DHO - NUMBER OF DHO REMEDIES FILED
SPH - NUMBER OF SPECIAL HOUSING UNIT REMEDIES FILED
MED - NUMBER OF MEDICAL REMEDIES FILED
MH - NUMBER OF MENTAL HEALTH REMEDIES FILED
LEG - NUMBER OF LEGAL REMEDIES FILED
FD - NUMBER OF FOOD REMEDIES FILED
GRT - TOTAL OF NUMBER OF REMEDIES GRANTED
DEN - TOTAL NUMBER OF REMEDIES DENIED
PEN - TOTAL NUMBER OF REMEDIES PENDING
00 - TOTAL NUMBER OF REMEDIES OVERDUE

PEN

00

159

0

UNITED STATES GOVERNMENT

memorandum
Date:

July 17, 1997

Reply to Henry J. Sadowski, Regional Counsel, Northeast Region
Attn of: Federal Bureau of Prisons, Philadelphia, Pa. 19106
Subject:
To:

Quarterly Report - April 1, 1997 through June 30, 1997

Wallace H. Cheney, General Counsel and
Assistant Director, Federal Bureau of Prisons
Washington, D.C. 20534

Attached are the statistics requested for the quarterly report
for the third quarter of FY 1997.
The 'following is a synopsis of the significant cases in
litigation during the quarter:

A. SETTLEMENTS AND AWARDS
1. Hammed v. United States, CV-95-10306 (S.D.N.Y.)- In this
Federal Tort Claims Act complaint, former inmate Ali Hammed,
03822-070, alleged that FCI Otisville lost his property on an
institution transfer.
Inmate requested $180 in damages.
The
major issue was the evaluation of the property.
Case settled for
'$120.
2. Dennie v. Teague, Civ. No. 96-CV-634 (N.D.N.Y.) - Inmate Akali
Dennie, 11762-014, filed Biyens case alleging failure to protect
him from assault by another inmate while at FCI Ray Brook. Our
records show placement of Dennie into SHU cell with inmate who
assaulted him the night before. Due to possible exposure, we
agreed to convert into FTCA case and settle for $5000.00.
3. Mulligan v. United States, Civ. No. 96-7796 (E.D.Pa.) - Inmate
Francis Mulligan, Reg. No. 31580-066, filed FTCA case alleging
that while at FeI Schuylkill, he slipped and fell on three
separate occasions due to staff negligence in maintaining a
clear sidewalk. He further alleges that as a result of the
falls, one of his pacemaker wire leads was torn from his heart,
which required surgical repair. Our medical expert confirmed
that the fall may have caused the wire to separate. As a result
of a number of factors, it was agreed to settle the case for
$4,000.00.

-2-

4. Curtis v. United States. 96-4240 (E.D.PA .. )- FTCA case
regarding delay in medical treatment which occurred as a result
of the institution transfer of the inmate Plaintiff, Glenn
Curtis, Reg. No. 44293-066. The case settled for $45,000.00.
B. SIGNIFICANT DECISIONS. HEARINGS OR TRIALS

1. Colon v, Menifee, Appeal No. 96-7588 (3d Cir.) - Oral argument
was heard before the Third Circuit on May 9, 1997 in our appeal
from the grant of a habeas corpus petition by Judge Muir in 4:CV96-0807 (M.D.Pa. June 28, 1996). Petitioner Jimmy Colon, 19968038, challenged the Bureau's decision that his conviction for
felon in possession of a firearm under 18 U.S.C. § 922(g) was a
crime of violence precluding him from early reduction
consideration under 18 U.S.C. § 3621(e). Judge Muir held that
the Bureau was not entitled to conclude that the possession of a
firearm by a felon is a crime of violence for purposes of 18
U.S.C. § 3621{e) eligibility. The Third Circuit focused on the
nature of deference the court should accord the interpretation of
the Bureau. Hank Sadowski assisted the AUSA. To date, no .
decision has been issued.
2. Roussos v. Menifee, No. 97-7011 (3d Cir.) - On July 8, 1997,
the Third Circuit heard oral argument in another 3621{e) case.
Inmate Victor Roussos, Reg. No. 30950-054, filed a petition for
. writ of habeas corpus challenging his ineligibility for early
release under 18 U.S.C. § 3621(e). He was found so because of a
two point enhancement for a firearm in connection with a drug
offense. On November 27, 1996, Judge McClure denied the petition
and upheld the BOP interpretation.
(Judge McClure later
overruled himself in another petition on the same issue.)
The
inmate appealed to the Third Circuit. This case was argued by
the same AUSA who argued the above Colon case. Hank Sadowski
assisted the AUSA. The oral argument was not as focused as the
Colon argument. The court asked a number of questions concerning
the Downey decision from the 9th Circuit. The court also asked
questions about Third Circuit law which found mere possession of
a firearm is not a crime of violence. The court reserved ruling.
3.
Pollard v. Secor, et. al, 95 Civ. 5599 (E.D.Pa.) - Jury
trial held on June 23 and 24, 1997 in the above Bivens case.
Inmate Rodney Pollard, Reg. No. 14640-050, alleged that while he
was at FC! Schuylkill he was improperly placed in administrative
detention and then transferred as a result of the practice of his
religion. Defendants' Motion for Summary Judgement was denied.
At beginning of trial, Judge Ludwig granted a renewed motion to
dismiss administrative detention claim on basis of Sandin and a
recent Third Circuit case. After one hour deliberations, the

-3-

jury returned a verdict in favor of all defendants.
assisted the AUSA.

Jay Furtick

4. Gibbons v, United States, CV-95-4654 (S.D.N.Y.) - This FTCA
case went to trial on April 8, 1997.
Inmate Gary Gibbons, 34115054, alleged that he injured his hand as a result of using
defective and dangerous weight lifting equipment at MCC NY. The
inmate claimed that he was using a piece of equipment when it
disengaged, striking him. After the trial, the court requested
additional briefing on the duty of the United States to instruct
the inmates on the operation of the equipment.
Plaintiff sought
$300,000 in damages. The court recently ruled in favor of the
United States.
5. United States v, Marino,
Crim. No. ---- (S.D.N.Y.) - Inmate
Daniel Marino, 99111-012, arrived at MCC NY on February 12, 1997
to face prosecution of federal criminal charges. He was moved
from FCI Ashland pursuant to a writ ad prosequendum. On
March 27, 1997, the AUSA contacted the MCC NY and advised that
Judge Sterling Johnson scheduled a hearing for March 28, 1997 to
address allegations by the defendant concerning medical care at
MCC NY. The Judge required the Warden to appear at the hearing.
Attorney Alma Lopez accompanied the Warden. After review of some
information, the Judge stated he did not want to get involved in
the details of the defendant's medical care. Based upon the
court's suggestion, the parties held a meeting to resolve the
dispute.
6. united States v, Papagni, 95-CR-31 (E.D.N.Y.) - On April 8,
1997, Judge Frederic Block issued an order to show cause to
determine whether the United States Attorney's office must obtain
all phone tapes made by a Witsec inmate, who is a scheduled
witness in this case. The court entered an order requiring the
Bureau to p~eserve all phone tapes pending a hearing.
On April
17, 1997, a hearing was held in which Hank Sadowski and Craig
Trout assisted the AUSA. The AUSA submitted a motion to vacate
the preservation order supported by an excellent brief (with
exhibits) which focused the court on whether BOP phone tapes can
be deemed to be in the possession of the prosecution. The court
allowed briefs to be submitted. The court held a second hearing
on May 1, 1997, and modified his preservation order to require
the institution to preserve recordings for certain numbers.
No
conclusive ruling has yet resulted.

-4-

7. United States v, Felipe, 94 CR 395 (S.D.N.Y.) - On April 16,
1997, Judge Martin held a hearing addressing whether restrictions
on confinement he imposed on a sentence for Luis Felipe, 14067074, were within his authority. The AUSA argued that, under the
facts of this case, the court had the authority to impose
restrictions under 18 U.S.C. § 3582(d). Felipe is the leader of
the Latin Kings and the evidence before the court showed that
Felipe had ordered murders while in pretrial detention. Defense
counsel stressed the unprecedented nature of the restrictions.
On April 29, 1997, the court issued an opinion upholding the
restrictions under § 3582(d).
In dicta the court also opined
that it had the inherent authority to order such restrictions.
The order is now on appeal.
8. United States v, Rosario, Crim. No. ----- (S.D.N.Y.) - Inmate
David Rosario, 39665-054, arrived at MCC NY on January 23, 1997
to face prosecution ,of federal racketeering charges. Rosario
arrived from New York state custody, where he was serving a forty
year plus life sentence. He was placed in administrative
detention as MCC NY deemed him to be a high security risk and
pending classification. The inmate had separatees and MCC had
heard (without documentary confirmation) that the inmate had an
extensive disciplinary record in the state. Judge Keenan (the
criminal trial judge)' held a hearing on April 7, 1997 to address
complaints from defense counsel concerning this placement. Alma
Lopez represented the Bureau. Judge Keenan expressed concern
that the inmate had been in AD since January 1997 and the MCC
still had not receive documentation from the state concerning his
disciplinary problems. The court asked the AUSA to submit a
report by April 19, 1997 setting forth whether the MCC will
continue to house the inmate in AD. The inmate was removed from
AD on April 12, 1997.
9. United States v, Shapiro, Crim. No. 96-1019 (E.D.N.Y.) - On
April 1, 1997, Judge Block held a hearing addressing complaints
made by inmate Robert Shapiro (a.k.a. Robert Weldon), 43063-053,
regarding access to a law library. The inmate is serving a
federal sentence and was brought back via writ to face federal
charges of attempting escape and forging a Judgment & Commitment
order. Azzmeiah Vazquez represented the Bureau at the hearing.
The inmate demanded more access to law library, access to a fax
machine, and access to a copy machine. Azzmeiah was able to show
that the inmate requested access to the law library only three
times in the last three months. She also went over the inmate's
commissary account to show he was able to afford copies. The
court advised the inmate of the difficulties of appearing pro see
The court stated that it was not going to ask the MDC to change
policy solely because the inmate refused appointed counsel.

-5-

10. United States v. Coffey, Cr. 94-282 (D.Nevada) - On April 8,
1997, U.S. District Judge Pro held a hearing via telephone
concerning the 18 month federal sentence he imposed on inmate
John Alexander Coffey, 30281-048 on July 28, 1995. The issue was
whether the federal sentence was to run concurrently with a state
term. The inmate had been in the primary custodial jurisdiction
of Arizona state authorities. The inmate was taken to federal
court via writ and received the 18 month federal sentence prior
to the imposition of the state sentence. The Judgement and
Commitment Order did not reference the state sentence. The
inmate was returned to state custody and was sentenced to a term
of about 2~ years. He completed service of this state sentence
on or about December 9, 1996. The inmate was designated to FCI
Fort Dix. The federal sentence was computed to be consecutive to
the state since the Federal Judgement and Commitment Order was
silent concerning the federal judge's intention.
In the hearing,
Judge Pro stated for the record that his intention was that his
federal sentence was to be served concurrently. Since the
court's intention was now clear, the judge was advised that we
would recompute his federal sentence to run concurrently with the
state. On the telephone for this hearing, at the Judge's
request, were Warden Hurley, FCI Fort Dix, Harlan Penn, WRO, Hank
Sadowski, NER, and the inmate.
11. Unlted States v. M.S., Cr. No. --- (E.D.N.Y.) - On April 24,
1997, we learned that the court was presented with a proposed
order to direct MDC Brooklyn to accept 17 year old juvenile, M.S.
Azzmeiah Vazquez tracked down the AUSA, who advised the court
that the Bureau of Prisons needed to be heard before the order
was signed. At about 6:00 pm, the court had an emergency hearing
at which the AUSA advised the court of the statute requiring
segregation of juveniles and the practical problems for housing
him at the MDC. The court decided not to sign the order placing
the juvenile in MDC.
12. United States y. Simone,Cr.No.92-35-01 (E.D.Pa.) - On June 9,
1997, a hearing was held concerning the status'of inmate Robert
F. Simone, Reg. No. 33980-066.
Inmate Simone, a former attorney
from Philadelphia, was moved from a halfway house, as a program
failure, to FCI Fairton and was scheduled to be returned to FPC
Nellis (later changed to FPC Schuylkill). His attorney filed a
motion to preclude his transfer, which motion was granted by
Judge Dalzell, the sentencing judge. The inmate, who formerly
represented some organized crime members now housed at Fcr
Fairton, was placed into administrative detention. His attorney
alleged retaliation (as well as failure to give medications). At
the hearing, the Judge gave both sides an opportunity to reach an

-6-

agreement and it was decided that the Plaintiff would be
transferred to FPC Schuylkill the next day, via one day furlough.
Hank Sadowski represented the Bureau.
13. United States v. Zachariades, E.D.N.Y. - On June 17, 1997, a
hearing was held before U.S. District Judge Dearie regarding a
subpoena issued by defense counsel concerning the production, the
next day, of 75 telephone tapes of calls placed by inmate
Constantine Zachariades, 'Reg. No. 45658-053. As the case was
currently in trial, and the judge requested an expedited
resolution, a schedule agreeable to all parties was reached. MDC
Brooklyn attorney Azzemiah Vazquez assisted at the hearing.
14. United States v. Wells, Cr. No. ---- (S.D.N.Y.) - On June 4,
1997, a hearing was held before Magistrate Judge'Grubin
concerning the medical care being provided to inmate Priscilla
Wells, Reg. No. 40358-054. After hearing from MCC NY attorney
Dominique Raia, the Court stated that the medical treatment the
inmate was receiving was adequate.
15. United States v. Pappas, CR-95-0368 (S.D.N.Y.) - On June 5,
1997, MCC NY physician Dr. Glover was .subpoenaed to testify
concerning the current medical status of inmate Dennis Pappas,
Reg. No. 45783-053. Dr. Glover stated that the inmate was ill
but was capable to stand trial. Dominique Raia assisted.
16. U.S. v. Barrios, 95 CR 524 (S.D.N.Y.) - On May 1, 1997,
inmate Joe Barrios, 37320-054, appeared before Judge Stanton for
sentencing under the influence of heroin and cocaine. Sentencing
was canceled and the Judge requested an explanation as to how
this could occur since the defendant was in the custody of BOP.
MCC NY Attorney Dominique Raia attended a hearing that day.
The
warden submitted a letter responding to the Court's concerns. On
May 23, 1997, Judge Stanton sent a letter to the Warden thanking
him for the thoughtful and thorough letter.
17. U.S. V. Salvatore Brunetti, (D.N.J.) - On May 8, 1997, FC!
Fairton attorney Bobbie Truman and Chief Psychologist attended
sentencing for pretrial detainee Salvatore Brunetti, Reg. No.
07781-062. Brunetti was requesting a downward departure from
sentencing guidelines based on mental instability.
Psychologist
was subpoenaed by defense attorney because of a report he
prepared over a year ago questioning Brunetti's stability_
Psychologist testified that he feels Brunetti duped him in the
past and that Brunetti is stable. Defendant was sentenced to
forty years.

-7-

18.' People of State of New York v. David Watson, - On May 13,
1997, Azzmeiah Vazquez, Attorney Advisor at MOC Brooklyn, along
with an AUSA for the EDNY appeared before a state court judge who
threatened to hold a MDC Brooklyn staff member in contempt of
court for not producing an inmate (David Watson, Reg. No. 26104053) pursuant to a state writ requested by the Brooklyn District
Attorney's office. During the hearing, the court was advised
that the MDC did not oppose the production of the inmate but the
DA's office did not complete the necessary paperwork (requested
by the MDC prior to the hearing) to enable the Warden to
authorize the release of the inmate to state agents. The Judge
did not hold staff in contempt and admonished the DA's office for
not following through with the necessary information.
19. Longoria v. BOP, et al., 1:CV-97-0332 (M.D.Pa.) - Inmate
Gonzales-Longoria, Reg. No. 59761-079 filed a complaint alleging
that his telephone calls were being improperly blocked by USP
,Lewisburg. A telephone conference was held on June 17, 1997, to
discuss case. The magistrate judge, the inmate, the AUSA, and
USP Lewisburg attorney Michael Sullivan participated. Magistrate
Judge ordered each side to brief issue as to whether the case
should proceed as a Bivens case.
20. Wang v. Department of Justice, Civil No. 97-2462 (E.D.Pa.) Attorney Helen Wang filed this complaint requesting a temporary
restraining order and injunctive relief. On February 27, 1997,
'Attorney Wang was found in possession of ammunition when trying
to see some inmates at USP Lewisburg. The case was referred to
the FBI for criminal investigation. Her visits at USP Lewisburg
were suspended.
Counsel for Attorney Wang argued that her visits
to all federal institutions have been suspended because of the
investigation. The complaint requested the court to order the
Bureau to permit her access to federal institutions. On
April 25, 1997, Judge Brody held a status conference in chambers.
Attorney Wang was represented by two attorneys; the Deputy Chief
of the civil Division and Hank Sadowski represented the Bureau.
The Judge recognized that the investigation must be given
sufficient time and denied the TRO. The court scheduled a
pretrial conference for September 3, 1997.
21. Starzecpyzel V, U.S., 97 Civ 1349(S.D.N.Y.) - Attorney
Stephen Roen filed this complaint challenging the decision by the
Warden at FCI Danbury to restrict the attorney's visiting
privileges for 30 days. Trying to graft this complaint to a
pending 2255 motion, Roen requested a temporary restraining order
and bail for the inmate Eileen Strazecpyzel, Reg. No. 34792-054.
The attorney alleged this decision interfered with the ability to
represent the inmate in the 2255 motion to vacate her sentence.
On May 22, 1997, Judge McKenna held ,a hearing. Mike Tafelski

-8-

assisted the AUSA. The court ruled there was no jurisdiction to
hear his complaint concerning FCI Danbury. The Attorney then
filed an administrative appeal with the Regional Director
concerning the suspension. Although suspension was upheld, time
period was reduced by seven days with the attorney visits limited
to the general visiting area to enhance staff supervision.
(Attorney was seen by staff massaging the inmate's shoulders,
etc.). Attorney has renewed the same complaint in the District
of Connecticut. The Magistrate Judge recommended the requests
for TRO be denied, request for preliminary injunction be denied,
and requested defendants show cause why Plaintiff's request to
visit in "chapel room" rather than main visiting room should not
be granted. A response is expected to be filed before July 23,
1997.
C. SIGNIFICANT PENDING CASES

1. Fisher v. Goord. et al., 96-CV-0486 (W.D.N.Y.) - This case
was also discussed in last quarter's report. New York State
inmate Amy Fisher alleged that a number of New York state
institution staff have had sex with her, some with her consent,
some without.
She filed a civil rights action against state
officials. As part of her relief, she has moved the court to
order her transferred to the Federal BOP. The United St'ates is
not a party to the action. We filed an Amicus brief asserting
that the court had no jurisdiction to order the United States to
take a state prisoner. We focused the court on 18 U.S.C. § 3626
as the proper standard for assessing the injunctive request. On
July 16, 1997, the court dismissed the complaint in an opinion of
over 100 pages.
2. Palmer v. United States, CV-95-383 (M.D.Pa.) - This case was
discussed in last quarter's report. This Federal Tort Claims Act
case was filed by Inmate Lovell Palmer, 23307-083, who alleged
that he slipped and fell in January 1994 at USP Lewisburg.
His
administrative tort claim was for $1000.
In his complaint, he
requested damages in excess of $25,000. We moved to limit the
inmate to the $1000. On pressure from the court (and to save
expense of trial), we offered settlement to the inmate in the
amount of $1000 which the inmate refused. We moved for partial
summary judgment against the United States in the amount of
$1000. Judge Kosik granted our request for a bifurcated trial
limited to the issue of whether the inmate ~an claim damages
above that requested in his administrative claim. This part of
the trial was held on January 15, 1997 . . Mike Sullivan assisted
the AUSA. Before ruling on our motion, Judge Kosik requested
additional information. No decision has yet been rendered.

-9-

3. United States v. Hammer, 4:CR-96-239 (M.D.Pa.) - Inmate David
Hammer, 24507-077, has been charged with the April 1996 murder of
an inmate at USP Allenwood. The Attorney General approved
seeking the death penalty should the inmate be found guilty.
Judge Muir held a hearing on March 10, 1997 on defense
attorneys's motions pertaining to telephone access and special
mail.
Inmate Hammer is under phone and correspondence
restrictions for disciplinary reasons. Defense attorneys asked
the court to order USP Allenwood to permit Hammer to make
unmonitored calls to defense experts. They also requested the
court to order USP Allenwood to permit Hammer to make monitored
calls to any defense witness (including another inmate now in a
state system). Defense attorneys are also asserting the Clerk of
Court mail should be automatically included in Special Mail.
Hope Moro attended the hearing and testified concerning some of
these issues. On March 31, 1997, the court denied all motions
except the court held that clerk of court mail should be treated
as Special Mail. A motion or reconsideration was filed on May 5,
1997 and was denied on June 3, 1997.
4. Ferguson v. U.S. B.Q.P., 96 Civ 6163 (S.D.N.Y.) - Inmate
Sylbourne .Ferguson, 06026-067, alleges he was physically
assaulted by a staff member at FC! Otisville. Case is
significant because of DOJ's decision NOT to grant representation
to one of four BOP defendants. Although that particular
defendant's version of facts differed from the other three
defendants, we recommended private counsel be approved since,
under either version, the use of force still did not rise to
level of constitutional violation (bump with chest).
Defendant
had been disciplined (5 day suspension). Dispositive motions
have recently been filed for defendants represented by AUSA.
cc: Regional Director
Senior Deputy Regional Director
Deputy General Counsel
All Associate General Counsel

NORTHEAST REGIONAL OFFICE
LITIGATION OUARTERLY REPORT
FROM 04/01/1997 TO 06/30/1997

LOC

NOM

HC

FTC

BIV

OTH

ANS

PEN

CLD

HIT

11

19

10

27

600

36

15

SET

AWD

4

0

MXR
HER

63

22

SER
NCR
SCR
WXR
CO
TOT

NARRATIVE ANALYSIS
DEFINITIONS;
LOC - LOCATION
NOM - NUMBER OF TOTAL LAWSUITS FILED IN QUARTER
HC - NUMBER OF HABEAS CORPUS ACTIONS FILED
FTC - NUMBER OF FTCA ACTIONS FILED
BIV - NUMBER OF BIVENS ACTIONS FILED
OTH - OTHER ACTIONS FILED
ANS - NUMBER OF LITIGATION REPORTS COMPLETED
PEN - PENDING
CLD - NUMBER OF ACTIONS CLOSED
HIT - NUMBER OF HEARINGS OR TRIALS (INCLUDE INFO IN NARRATIVE)
SET - NUMBER OF SETTLEMENTS (INCLUDE INFO IN NARRATIVE)
AWD - NUMBER OF AWARDS (INCLUDE INFO IN NARRATIVE)
GOVERNMENT ACTION AND DATE OF ACTION - (INCLUDE IN NARRATIVE)

NORTHEAST REGIONAL OFFICE
TORT CLAIM OUARTERLY REPORT
FROM 04/01/1997 TO 06/30/1997

Loc

Num

PP

PI

PPPI

WD

Med

Set

Amt

Pen

Den

OD

AlO

AlP

Mxr

0

0

0

0

0

0

0

0

0

0

0

0

0

NER

176

124

39

8

1

4

9

675

237

98

0

0

114

SER

4

3

0

0

0

0

0

0

0

0

0

0

3

Ncr

2

1

1

0

0

0

0

0

1

0

0

0

28

Scr

1

0

0

0

0

0

0

0

0

0

0

0

13

Wxr

0

0

0

0

0

0

0

0

0

0

0

0

77

C.O.

0

0

0

0

0

0

0

0

0

0

0

0

0

Sum

183

128

40

8

1

4

9

205

99

0

••••

675

.

62

NORTHEAST REGIONAL OFFICE
NORTHEAST REGIONAL OFFICE
ADMINISTRATIVE REMEDIES OUARTERLY REPORT
FROM 4/1/97 TO 6/30/97

LOC

NUM

DHO

SPH

MED

507

182

15

29

MH

LEG

2

33

FD

GRT

DEN

PEN

OD

29

405

159

0

MXR
NER

11

SER
NCR
..

SCR
WXR
TOT
NARRATIVE ANALYSIS
DEFINITIONS
LOC
NOM
DHO
SPH
MED
MH
LEG
FD
GRT
DEN
PEN
OD

-

LOCATION
NUMBER OF TOTAL AD REMEDIES FILED
NUMBER OF DHO REMEDIES FILED
NUMBER OF SPECIAL HOUSING UNIT REMEDIES FILED
NUMBER OF MEDICAL REMEDIES FILED
NUMBER OF MENTAL HEALTH REMEDIES FILED
NUMBER OF LEGAL REMEDIES FILED
NUMBER OF FOOD REMEDIES FILED
TOTAL OF NUMBER OF REMEDIES GRANTED
TOTAL NUMBER OF REMEDIES DENIED
TOTAL NUMBER OF REMEDIES PENDING
TOTAL NUMBER OF REMEDIES OVERDUE

UNITED STATES GOVERNMENT

memorandum
Date:
Reply to
Attn of:
Subject:
To:

October 16, 1997
Henry J. Sadowski, Regional Counsel, Northeast Region
Federal Bureau of Prisons, Philadelphia, Pa. 19106
Quarterly Report - July 1, 1997 through September 30, 1997

Wallace H. Cheney, General Counsel and
Assistant Director, Federal Bureau of Prisons
Washington, D.C.
20534

Attached are the statistics requested for the quarterly report
for the fourth quarter of FY 1997.
The following is a synopsis of the significant cases in
litigation during the quarter:
A. SETTLEMENTS AND AWARDS
l)Oriahki v. U.S., 3:CV-95-2114 (M.D.Pa) - Inmate Felix Oriahki,
51338-079, filed FTCA case involving allegations of loss of
property which was mailed overseas. BOP had no evidence staff
actually mailed it. u.s. Magistrate Judge recommended our motion
for summary judgement be denied. Case settled for $176.50.
2) Administrator of Estate of Harris v. U.S.,96-6549{E.D.Pa} FTCA case involved allegations of medical malpractice (delay in
receiving appropriate eye care) filed by former inmate William
Harris, Reg. No. 44917-066. Government's expert indicated
potential liability. Death of inmate unrelated to issues in
case. Case settled for $1,500.00.
3) Tulloch et. ale v. U.S., 92-4866 (SDNY) - FTCA case filed in
June 1992 filed by six inmates who alleged that while on the
elevator at MCC New York en route to the roof area the elevator
suddenly plunged to the basement. On the eve of trial, and
facing potential liability as a result of overcrowding on the
elevator and evidence of injuries, a settlement was reached.
The
amounts varied by inmate with a total of nearly $90,000.00.

-2-

B. SIGNIFICANT DECISIONS, HEARINGS OR TRIALS

1) Roussos v. Menifee, No. 97-7011, 1997 WESTLAW 401319 (3d Cir.)
On July 18, 1997, ten days after oral argument, the Third
Circuit, following the 9th Circuit decision in Downey, held that
the BOP could not use the two point firearm enhancement to find a
"crime of violence" for purposes of denying 3621(e) eligibility.
As small consolation, the Court of Appeals did agree with our
position that the appropriate remedy was to remand the case for
the Bureau to reconsider Inmate Victor Roussos, 30950-054,
eligibility consistent with the court decision (not to order
immediate release) .
2) M.B. v. Reish, No. 96-2347 (2d Cir. July 30, 1997)
After a July 18, 1997 oral argument, the Court of Appeals
affirmed the decision of the district court in favor of the
Bivens defendant in this case. WITSEC inmate M.B. appealed the
grant of summary judgement to 9 MCC NY staff members in a Bivens
action in which he alleges that adjudication of disciplinary
charges violated his constitutional rights.
Plaintiff contended
that the district court did not notify him of the consequences of
defaulting on defendants' summary judgment motion, even though he
had submitted a voluminous response.
3) McCarthy v. United States, No. 96-7701 (3d Cir) .
On July 21, 1997, the Court of Appeals heard oral argument in
this appeal of a habeas corpus denial.
Inmate Arthur McCarthy,
49352-080, filed the petition challenging the recalculation of
his federal sentence days before his "parole eligibility" date
(after it was determined that the sentence had been improperly
computed). This calculation changed the inmate's parole
eligibility date from February 9, 1996 to September 20, 1998.
Petitioner alleged, inter alia, that the BOP was estopped from
performing the recalculation since the Petitioner had relied on
it. He also alleged the recalculation was in retaliation for the
Plaintiff'receiving a settlement in an FTCA action he brought
alleging negligent medical care. On October 29, 1996, the
District Court denied the petition stating that the sentence
computation was a proper exercise of BOP's discretion. Mike
Tafelski assisted the AUSA at the argument. The Court of Appeals
affirmed the District Court's order.

-3-

4) Michael Lloyd y. Ronald Levine. eta al., No. 96- ,

(3d Cir)

On July 21, 1997, the Court of Appeals also heard oral argument
concerning the dismissal of a Bivens complaint relating to CCC
denial.
In July 1996, inmate Michael Lloyd, 44935-066, filed,
through counsel, a request for preliminary injunction and a
Bivens complaint alleging that the decision of the Warden at FCI
Ft. Dix to deny him CCC placement was based upon the improper
influence and retaliatory motives of the prosecuting AUSA and
$entencing Judge. On November 4, 1996, the district court
granted Defendants' Motion for Summary Judgement stating that
"decision to deny plaintiff CCC placement is not judicially
reviewable absent a constitutional violation" and no reasonable
fact finder would find one in this case. The district court also
held it did not have personal jurisdiction over AUSA and FBI
agent and that AUSA and Judge have absolute immunity. The Court
of Appeals focused on the absolute immunity question. The Court
of Appeals affirmed the District Court's order.
5) Moore V. Agusto. 93 Civ. 4835 (MGC)

(S.D.N.Y.)

On July 21, 1997, a trial commenced in this Bivens case in which
the plaintiff, inmate Christopher Moore, 39228-053, alleged
excessive use of force was used when removing him from the roof
top recreation area at MCC NY. Plaintiff testified that after he
refused to put on his orange jumpsuit, he was grabbed and dragged
into the grill area and beat up by two staff members.
Plaintiff
claimed that a third staff member grabbed his head and slammed it
against the wall.
Plaintiff claimed that when he regained
consciousness he was suspended in the air with both feet off the
ground.
Plaintiff also alleged he heard staff indicate that they
were going to throw him down the stairs. Plaintiff contended he
has permanent injury to his shoulder. During the trial, numerous
-depositions were also permitted by the Court. On July 23, 1997,
after two hours of deliberations, the jury returned a verdict in
favor of each defendant. Dominique Raia and James Vogel
assisted.
6) Drino v. Wigen. et. al .. Civil No. 96-7308 (E.D.Pa.)
On August 12, 1997, a trial was held in this Biyens case filed by
FCI Schuylkill inmate Gary Drino, 02906-015. The Plaintiff
alleged that the DHO's finding that he committed a prohibited act
("Assaulting any Person" (Code 224» was racially motivated.
The
inmate's administrative remedy appeals were denied. The bench
trial lasted one day. The Court ruled in favor of the
defendants.

-4-

7) United States v. Paraffin-Homen, Crim. No. -----

(S.D.N.Y.)

Pastor Perafan-Homen, 53476-053, (the last leader of the Cali
Cartel to be incarcerated) was placed into administrative
detention at MCC NY based upon information received that his life
may have been in danger. His attorney filed a motion with the
sentencing court to have him released into general population.
In August 1997, MCC Attorney Dominique Raia convinced the judge
that a motion before the criminal judge was not the proper
jurisdiction basis for such a challenge. His attorney then filed
a Petition for Writ of Habeas Corpus. A hearing was held on
August IS, 1997, before the Honorable Sidney H. Stein. The court
denied the writ, since the petitioner failed to demonstrate that
the Bureau of Prisons has abused the discretion to place him
protective custody.
On that same day, Paraffin-Homen's attorney filed an expedited
appeal in the Second Circuit. After appeal papers were prepared
for submission, the DEA (who provided original information)
requested that the Warden release the inmate from administrative
detention based upon a reevaluation of the threat assessment .
. Eventually, after discussions with all parties, the inmate was
released into general population and the appeal was withdrawn.
8 ) U . S. v. Ru s s 0

«

eta 1 ., 96 - CR - 696 ( S - 2) (DRH)

(S . D . N . Y .)

.

On August 12, 1997, MCC NY received a copy of a proposed order
requiring MCC to continue to house inmate Andrew Russo, 15043053, until such time as he can make bailor there is a final
disposition of the referenced case. The AUSA did not have any
. objections to the Order.
In a letter dated August 12, 1997, the
Warden expressed his objections to the order. A status
conference was held before the Magistrate Judge on August 13,
1997, but the Magistrate Judge did not rule since the district
court had not ordered him to render a decision. On September 23,
1997, Judge Hurley signed an order directing that inmate Russo
remain at MCC New York until further order of the Court.
9) U.S. V. Motto, Crim No. --- .(E.D.PA)
On August 22, 1997, Judge Shapiro held a hearing concerning the
sentence computation of inmate William Motto, 35088-066.
The
Court had ordered a sentence of 34 days for probation violation.
The inmate was released by Fcr Fairton on August 20, 1997 since
his presentence credit amounted to over 34 days.
The court's

-5-

intention was that the inmate served an additional 34 days from
date of sentence. At the hearing of August 22, 1997, the court
vacated the earlier sentence and ordered a 74 days sentence to
approximate her intended release date for the inmate. Assisting
the AUSA was Bobbie Truman, Attorney Advisor at FCI Fairton.
10) United States y. Paul Rivera, Crim.No.---(E.D.N.Y.)
On August 12, 1997, Lieutenant pitts of MDC Brooklyn testified at
the request of the AUSA concerning the institutional adjustment
and disciplinary history of the defendant, inmate Paul Rivera,
Reg. No. 46704-053. Azzmeiah Vazquez, Attorney Advisor, MDC
Brooklyn, assisted at the hearing.
11)United States v. Coleman, Crim. No. ---- E.D.PA
On September 8, 1997, an evidentiary ,hearing was held before
Judge Robert Kelly. Defendant, Arthur Coleman, 01030-158, was
charged with escape for failing to return to his community
corrections center after a weekend pass. He maintained that
technically he did not escape because at the time he failed to
return to the CCC his prior sentence had expired. The inmate
constructed an erroneous argument on the basis of old law
sentence computation. Torn Peoples, Regional Community
Corrections Inmate Systems Specialist appeared as a witness on
behalf of the United States. He testified as to the manner in
which the defendant's old law sentence was computed and that the
computation was correct. The judge ruled from the bench'that the
defendant was in lawful BOP custody at the time of his escape.
Assistant Regional Counsel Joyce Horikawa assisted the AUSA at
the hearing.
12} Wang v. Department of Justice. et. al.

E.D.PA.

On September 8, 1997, via a conference call, the Judge permitted
the Plaintiff's attorney to withdraw, without prejudice, the
pending request for injunctive relief.
Plaintiff Helen Wang is
the attorney who was stopped at USP Lewisburg in February 1997,
with six rounds of ammunition in her briefcase. As a result of
that action, and the pending criminal investigation by the u.s.
Attorney's office, Ms. Wang was prohibited from entering various
federal institutions by the respective Wardens pending completion
of the investigation. Her attorney requested injunctive relief
(lifting of an alleged nationwide ban during investigation). The
matter was held in abeyance by the Court pending the completion
of the criminal investigation. The AUSA declined prosecution.
The Plaintiff was informed by the BOP to initiate a request to
the Warden at each institution as it is within his/her discretion
to allow Ms. Wang to visit. Michael Tafelski assisted the AUSA
during the call.
-6-

13) United States v. Molinari, Criminal No. 95-672 (E.D.PA)
On September 12, 1997, a sentencing hearing was held in which the
defendant argued for a downward departure alleging that the BOP
could not house, care for and treat this defendant. Defense
counsel argued that Mr. Molinari had an extensive documented
history of agoraphobia and panic attacks and that incarceration
would result in immediate death. Dr. Gerard Bryant, Northeast
Regional Psychology Services Administrator, testified at length
concerning the BOP's ability to manage this inmate. Dr. Bryant
informed the court of numerous agoraphobics that are currently
being managed in the system. The Judge agreed the BOP could
properly house the defendant and sentenced the defendant to·a 71
month term of imprisonment.
14) Stiver v. Meko, 96-3400 (3d Cir) .
On September 23, 1997, this habeas case was argued before the
Court of Appeals.
The appellee, Fcr McKean inmate Robert C.
Stiver, 04540-068, alleged that he was unlawfully denied 3621(e)
early release eligibility because of prior convictions for
aggravated assault and armed robbery. Through his appointed
attorney, he argued that the decision to include prior violent
offenses when determining early release eligibility for
completion of the Drug Abuse Program violates the Double Jeopardy
and Ex Post Facto Clauses of the United States Constitution. Paul
Brysh, AUSA, W.D.Pa. represented the Bureau and did an
outstanding job. Joyce Horikawa sat at counsel table and
provided assistance during the argument. The focus of the
argument was whether the Bureau of Prisons use of a prior
conviction for robbery and aggravated assault to exclude an
inmate from early release eligibility was a reasonable
interpretation of 18 USC § 3621(e). The Court of Appeals took
the case under advisement.
15) United States v. Kelp,'et. al., Criminal No. 97-14

(E.D.PA)

On September 23, 1997, a sentencing hearing was held for three
individuals who were formerly correctional officers at the local
county jail. One of the issues was whether the BOP could house
these individuals safely. An affidavit was submitted by the
Regional Designator and testimony was expected to be provided by
the Assistant Correctional Programs Administrator. Joyce
Horikawa assisted the AUSA. During the hearing, the Judge did
not provide the AUSA the opportunity to present the BOP's
position.
-7-

Under the Supreme Court decision in KQQn, the court found that
the possible risk to the defendants in prison was justification
to support a downward departure from the sentencing guidelines.
The court imposed sentences on two defendants (the third was
continued) of 51 and 41 months, roughly half of the sentencing
guidelines.
16) United States v, Clements, Criminal No. 97-

(E.D.PA)

On September 30, 1997, a conference call was held concerning the
available psychological treatment for defendant, inmate Donald
Patrick Clements, 12847-056. While housed at FCI Schuylkill
serving a federal sentence, inmate Clemens assaulted a
correctional officer. After he was convicted, and prior to
sentencing, the court ordered a mental examination be performed
at FCI Butner. The study concluded that the inmate has an Axis 2
personality disorder. Defense counsel, in an effort to get a
downward departure for post-conviction rehabilitation, requested
an order to have the BOP house the defendant at FCI Butner so he
could receive "intensive therapy". During the conference call
with Judge Van Antwerpen, Michael Tafelski explained that,
according to the BOP's psychologists, the services available at
the inmate's designated institution (USP Atlanta) were
appropriate and the same as any other facility for treating this
individual. The Judge, in denying defense counsel's motion,
stated that he was deferring to the expertise and opinion of the
BOP.
C. SIGNIFICANT PENDING CASES
1) United States v. Brian Brennan. 97 Cr. 393 (SDNY)
On September 16, 1997, Raymond Voulo, M.D., MCC New York Health
Services Department met with AUSA Andrew J. Frisch regarding the
criminal case of United States v. Brian Brennan, 97 Cr. 393
(DGT).
Further, Physicians Assistant Ruben Ustarus and AUSA
Frisch had a telephone conference on September 23, 1997. Mr.
Frisch considers both Dr. Voulo and P.A. Usterus as potential
witnesses in the referenced case. Mr. Frisch seeks to have Dr.
Voulo and P.A. Ustarus establish at trial that inmate Brennan,
48126-053, was addicted to heroin upon his admission to MCC New
York. During inmate Brennan's admission to MCC New York on or
about April 2, 1997, he told the Physician's Assistant that he
used heroin six days a week and that he had last used the
narcotic two hours prior to his medical screening.
Inmate
Brennan was referred to detox. Staff Attorney Clinton Stroble
attended the meeting. Trial is scheduled for October 20 and 21,
1997.
-8-

2) Starzecpyzel v. U.S.,
Attorney Stephen Roen filed a complaint in the S.D.N.Y .
. challenging the decision by the Warden at FCI Danbury to restrict
the attorney's visiting privileges for 30 days. Trying to graft
this complaint to a pending 2255 motion, Roen requested a
temporary restraining order and bail for the inmate Eileen
Starzecpyzel, 34792-054. The attorney alleged this decision
interfered with the ability to represent the inmate in the 2255
motion to vacate her sentence. The court ruled there was no
jurisdiction to hear his complaint concerning FCI Danbury.
The
~ttorney then filed an administrative appeal with the Regional
Director concerning the suspension. Although suspension was
upheld, time period was reduced by seven days with the attorney
visits limited to the general visiting area to enhance staff
supervision.
(Attorney was seen by staff massaging the inmate's
shoulders, etc.). The Attorney then renewed the same complaint
in the District of Connecticut. The Magistrate Judge recommended
the requests for TRO be denied, request for preliminary
injunction be denied, and requested defendants show cause why
Plaintiff's request to visit in "chapel room" rather than main
visiting room should not be granted.
On September 27, 1997, another incident occurred involving this
atto+,ney when he attempted to use the "special mail" procedures
to mail newspaper articles into his client. Themail was opened
in front of the inmate and copied before being given to the
inmate. The attorney filed in the Southern District of New York
(which was dismissed) and then filed again in the District of
Connecticut. The AUSA is being assisted by Patty Gotts,
Paralegal, FCI Danbury.
3) Ansar el Muhammad a/k/al Tracy L. Munnerlyn v. George
Wigen, et,al. Civil Action No, 95-3668 (E.D.Pa)

c.

This case, which has been construed as a RFRA case, involves
allegations that staff at FC! Schuylkill illegally intercepted
the Plaintiff's religious mail sent from his wife.
In addition,
the Plaintiff, former inmate Tracy Munnerlyn, Reg. No. 06006-097,
also alleges he was placed in segregation, given an incident
report and disciplinary sanctions and transferred in retaliation
for his religious beliefs. The case was stayed pending
resolution of the Flores case by the Supreme Court.
Subsequent
to the Flores decision, Main Justice granted authorization for
private counsel for each of the named defendants (although
private counsel WILL NOT be reimbursed for any direct challenges
to the constitutionality of RFRA), The defendants have recently
agreed on a private attorney and the case is scheduled to proceed
in the near future.
cc: Regional Director
Senior Deputy Regional Director
Deputy General Counsel
All Associate General Counsel
-9":

NORTHEAST REGIONAL OFFICE
LITIGATION OUARTERLY REPORT
FROM 07/01/1997 TO 09/30/1997

LOC

NOM

HC

FTC

BIV

OTH

ANS

PEN

CLD

HIT

SET

AWD

08

20

06

33

626

47

16

3

a

MXR
NER

90

53

SER
NCR
SCR
WXR
CO
TOT

DEFINITIONS:
LOC - LOCATION
NOM - NUMBER OF TOTAL LAWSUITS FILED IN QUARTER
HC - NUMBER OF HABEAS CORPUS ACTIONS FILED
FTC - NUMBER OF FTCA ACTIONS FILED
BIV - NUMBER OF BIVENS ACTIONS FILED
OTH - OTHER ACTIONS FILED
ANS - NUMBER OF LITIGATION REPORTS COMPLETED
PEN - PENDING
CLD - NUMBER OF ACTIONS CLOSED
HIT - NUMBER OF HEARINGS OR TRIALS (INCLUDE INFO IN NARRATIVE)
SET - NUMBER OF SETTLEMENTS (INCLUDE INFO IN NARRATIVE)
AWD - NUMBER OF AWARDS (INCLUDE INFO IN NARRATIVE)
GOVERNMENT ACTION AND DATE OF ACTION - (INCLUDE IN NARRATIVE)

NORTHEAST REGIONAL OFFICE
TORT CLAIM OUARTERLY REPORT
FROM 07/01/1997 TO 09/30/1997

Set

Amt

Pen

Den

00

AIO

AlP

0

0

0

1

0

0

0

2

0

5

42

4650

167

99

0

0

105

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

1

1

0

0

0

0

0

0

0

0

0

0

0

C.O.

0

0

0

0

0

0

0

0

0

0

0

0

0

Sum

146

98

34

9

0

5

42

4650

168

99

0

••••

Loc

Num

PP

Mxr

4

3

1

0

0

NER

141

94

33

9

Ser

0

0

0

Ncr

0

0

Scr

0

Wxr

PI

PPPI

WD

Med

'.

DEFINITIONS;
LOC

NOM
PP
PI
PPPI WD
Med Set Amt Pen Den OD
A/O
A/P -

LOCATION
NUMBER FILED IN QUARTER
PERSONAL PROPERTY CLAIMS
PERSONAL INJURY CLAIMS
PERSONAL PROPERTY/PERSONAL INJURY CLAIMS
CLAIMS WITHDRAWN
CLAIMS ALLEGING MEDICAL NEGLIGENCE
CLAIMS SETTLED
AMOUNT PAID
CLAIMS PENDING
CLAIMS DENIED
CLAIMS OVERDUE
AVERAGE DAYS OVERDUE
AVERAGE DAYS TO PROCESS

54

· NORTHEAST REGIONAL OFFICE
NORTHEAST REGIONAL OFFICE
ADMINISTRATIVE REMEDIES OUARTERLY REPORT
FROM 7/1/97 TO 9/30/97

LOC

NUM

DHO

SPH

MED

403

134

22

27

MH

LEG

FD

GRT

DEN

PEN

OD

1

13

2

46

222

130

0

MXR
NER
SER
NCR
SCR
WXR
TOT

DEFINITIONS
LOC - LOCATION
NtJM - NUMBER OF TOTAL AD REMEDIES FILED

DHO - NUMBER OF DHO REMEDIES FILED
SPH -. NUMBER OF SPECIAL HOUSING UNIT REMEDiES FiLED
MED - NUMBER OF MEDiCAL REMEDIES FILED
MH
- NUMBER OF MENTAL HEALTH REMEDIES FILED
LEG - NUMBER OF LEGAL REMEDIES FILED
FD - NUMBER OF FOOD REMEDiES FiLED
GRT - TOTAL OF NUMBER OF REMEDIES GRANTED
DEN - TOTAL NUMBER OF REMEDIES DENIED
PEN - TOTAL NUMBER OF REMEDIES PENDING
OD - TOTAL NUMBER OF REMEDIES OVERDUE

UNITED STATES GOVERNMENT

memorandum
Date: October 16, 1997
Reply to Henry J. Sadowski, Regional Counsel, Northeast Region
Attn of: Federal Bureau of Prisons, Philadelphia, Pa. 19106
SUbject: Quarterly Report - July 1, 1997 through September 30,

1997
To:

Wallace H. Cheney, General Counsel and

Assistant Director, Federal Bureau of Prisons
Washington, D.C.
20534

Attached are the statistics requested for the quarterly
report for the fourth quarter of FY 1997.
The following is a synopsis of the significant cases in
litigation during the quarter:

A. SETTLEMENTS AND AWARDS
l)Oriahki v. U.S., 3:CV-95-2114 (M.D.Pa) - Inmate Felix
Oriahki, 51338-079, filed FTCA case involving allegations of
loss of property which was mailed overseas. BOP had no
evidence staff actually mailed it. u.s. Magistrate Judge
recommended our motion for summary judgement be denied. Case
settled for $176.50.
2) Administrator of Estate of Harris v. U.S.,96-6549(E.D.Pa}
- FTCA case involved allegations of medical malpractice
(delay in receiving appropriate eye care) filed by former
inmate William Harris, Reg. No. 44917-066. Government's
expert indicated potential liability. Death of inmate
unrelated to issues in case. Case settled for $1,500.00.
3) Tulloch et. ale v. U.S., 92-4866 (SDNY) - FTCA case filed
in June 1992 filed by six inmates who alleged that while on
the elevator at MCC New York en route to the roof area the
elevator suddenly plunged to the basement. On the eve of
trial, and facing potential liability as a result of
overcrowding on the elevator and evidence of injuries, a
settlement was reached. The

-3-

District court denied the petition stating that the sentence
computation was a proper exercise of BOP's discretion. Mike
Tafelski assisted the AUSA at the argument. The Court of
Appeals affirmed the District Court's order.
4) Michael Lloyd v. Ronald Levine. et. al., No. 96- ,
Cir)

(3d

On July 21, 1997, the Court of Appeals also heard oral
argument concerning the dismissal of a Bivens complaint
relating to CCC denial.
In July 1996, inmate Michael Lloyd,
44935-066, filed, through counsel, a request for preliminary
injunction and a Bivens complaint alleging that the decision
of the Warden at FCI Ft. Dix to deny him CCC placement was
based upon the improper influence and retaliatory motives of
the prosecuting AUSA and sentencing Judge. On November 4,
1996, the district court granted Defendants' Motion for
Summary Judgement stating that "decision to deny plaintiff
CCC placement is not judicially reviewable absent a
constitutional violation" and no reasonable fact finder
would find one in this case. The district court also held
it did not have personal jurisdiction over AUSA and FBI
a.gent and that AUSA and Judge have absolute immunity. The
Court of Appeals .focused on the absolute immunity question.
The Court of Appeals affirmed the District Court's order.
5) Moore v. Agusto. 93 Civ. 4835 (MGC)

(S.D.N.Y.)

On July 21, 1997, a trial commenced in this Bivens case in
which the plaintiff, inmate Christopher Moore, 39228-053,
alleged excessive use of force was used when removing him
from the roof top recreation area at MCC NY.
Plaintiff
testified that after he refused to put on his orange
jumpsuit, he was grabbed and dragged into the grill area and
beat up by two staff members. Plaintiff claimed that a
third staff member grabbed his head and slammed it against
the wall.
Plaintiff claimed that when he regained
consciousness he was suspended in the air with both feet off
the ground. Plaintiff also alleged he heard staff indicate
that they were going to throw him down the stairs.
Plaintiff contended he has permanent injury to his shoulder.
During the trial, numerous depositions were also permitted
by the Court. On July 23, 1997, after two hours of
deliberations, the jury returned a verdict in favor of each
defendant. Dominique Raia and James Vogel assisted.
-4-

6) Drino v. Wigen, et. al., Civil No. 96-7308 (E.D.Pa.)
On August 12, 1997, a trial was held in this Bivens case
filed by FCI Schuylkill inmate Gary Drino, 02906-015. The
Plaintiff alleged that the DHO's finding that he committed a
prohibited act ("Assaulting any Person" (Code 224» was
racially motivated. The inmate's administrative remedy
appeals were denied. The bench trial lasted one day. The
Court ruled in favor of the defendants.
7) United States v. Paraffin-Homen, Crim. No. ----(S.D.N.Y.)
Pastor Perafan-Homen, 53476-053, (the last leader of the
Cali Cartel to be incarcerated) was placed into
administrative detention at MCC NY based upon information
received that his life may have been in danger. His attorney
filed a motion with the sentencing court to have him
released into general population.
In August 1997, MCC Attorney Dominique Raia convinced the
"judge that a motion before the criminal judge was not the
proper jurisdiction basis for such a challenge. His
attorney then filed a Petition for Writ of Habeas Corpus. A
hearing was held on August 15, 1997, before the Honorable
Sidney H. Stein. The court denied the writ, since the
petitioner failed to demonstrate that the Bureau of Prisons
has abused the discretion to place him protective custody.
On that same day, Paraffin-Homen's attorn~y filed an
expedited appeal in the Second Circuit. After appeal papers
were prepared for submission, the DEA (who provided original
information) requested that the Warden release the inmate
from administrative detention based upon a reevaluation of
the threat assessment. Eventually, after discussions with
all parties, the inmate was released into general population
and the appeal was withdrawn.
8) U.S. v. Russo, et al., 96-CR-696 (S-2) (DRH)

(S.D.N.Y.)

On August 12, 1997, MCC NY received a copy of a proposed
order requiring MCC to continue to house inmate Andrew
RUSSO, 15043-053, until such time as he can make bailor
there is a final disposition of the referenced case. The
AUSA did not have any objections to the Order.
In a letter
dated August 12, 1997, the Warden expressed his objections
to the order. A status conference was held before the
Magistrate Judge on August 13,
-5-

1997, but the Magistrate Judge did not rule since the
district court had not ordered him to render a decision. On
September 23, 1997, Judge Hurley signed an order directing
that inmate Russo remain at MCC New York until further order
of the Court.
9) U.S. v. Motto, Crim No. --- (E.D.PA)
On August 22, 1997, Judge Shapiro held a hearing concerning
the sentence computation of inmate William Motto, 35088-066.
The Court had ordered a sentence of 34 days for probation
violation. The inmate was released by FCI Fairton on August
20, 1997 since his presentence credit amounted to over 34
days. The court's intention was that the inmate served an
additional 34 days from date of sentence. At the hearing of
August 22, 1997, the court vacated the earlier sentence and
ordered a 74 days sentence to approximate her intended
release date for the inmate. Assisting the AUSA was Bobbie
Truman, Attorney Advisor at FCI Fairton.
10) United States v. Paul Rivera, Crim.No.---(E.D.N.Y.)
On August 12, 1997, Lieutenant pitts of MOC Brooklyn
testified at the request of the AUSA concerning the
institutional adjustment and disciplinary history of the
defendant, inmate Paul Rivera, Reg. No. 46704-053. Azzmeiah
Vazquez, Attorney Advisor, MOC Brooklyn, assisted at the
hearing.
11)United States v. Coleman, Crim. No. ---- E.D.PA
On September 8, 1997, an evidentiary hearing was held before
Judge Robert Kelly. Defendant, Arthur Coleman, 01030-158,
was charged with escape for failing to return to his
community corrections center after a weekend pass. He
maintained that technically he did not escape because at the
time he failed to return to the CCC his prior sentence had
expired. The inmate constructed an erroneous argument on
the basis of old law sentence computation. Tom Peoples,
Regional Community Corrections Inmate Systems Specialist
appeared as a witness on behalf of the United States. He
testified as to the manner in which the defendant's old law
sentence was computed and that the computation was correct.
The judge ruled from the bench that the defendant was in
lawful BOP custody at the time of his escape. Assistant
Regional Counsel Joyce Horikawa assisted the AUSA at the
hearing.
.
-6-

12) Wang v. Department of Justice. et. ale

---- E.D.PA.

On September 8, 1997, via a conference call, the Judge
permitted the Plaintiff's attorney to withdraw, without
prejudice, the pending request for injunctive relief.
Plaintiff Helen Wang is the attorney who was stopped at USP
Lewisburg in February 1997, with six rounds of ammunition in
her briefcase. As a result of that action, and the pending
criminal investigation by the u.S. Attorney's office, Ms.
Wang was prohibited from entering various federal
institutions by the respective Wardens pending completion of
the investigation. Her attorney requested injunctive relief
(lifting of an alleged nationwide ban during investigation) .
The matter was held in abeyance by the Court pending the
completion of the criminal investigation. The AUSA declined
prosecution. The Plaintiff was informed by the BOP to
initiate a request to the Warden at each institution as it
is within his/her discretion to allow Ms. Wang to visit.
Michael Tafelski assisted the AUSA during the call.
13) United States v. Molinari, Criminal No. 95-672 (E.D.PA)
On September 12, 1997, a sentencing hearing was held in
which the defendant argued for a downward departure alleging
that the BOP could not house, care for and treat this
defendant. Defense counsel argued that Mr. Molinari had an
extensive documented history of agoraphobia and panic
attacks and that incarceration would result in immediate
death. Dr. Gerard Bryant, Northeast Regional Psychology
Services Administrator, testified at length concerning the
BOP's ability to manage this inmate. Dr. Bryant informed
the court of numerous agoraphobics that are currently being
managed in the system. The Judge agreed the BOP could
properly house the defendant and sentenced the defendant to
a 71 month term of imprisonment.
14) Stiver v. Meko, 96-3400 (3d Cir)
On September 23, 1997, this habeas case was argued before
the Court of Appeals. The appellee, FC! McKean inmate
Robert C. Stiver, 04540-068, alleged that he was unlawfully
denied 3621(e) early release eligibility because of prior
convictions for aggravated assault and armed robbery.
Through his appointed attorney, he argued that the decision
to include prior violent offenses when determining early
release eligibility for completion of the Drug Abuse Program
violates the Double Jeopardy
-7-

and Ex Post Facto Clauses of the United States Constitution.
Paul Brysh, AUSA, W.D.Pa. represented the Bureau and did an
out~tanding job.
Joyce Horikawa sat at counsel table and
provided assistance during the argument. The focus of the

argument was whether the Bureau of Prisons use of a prior
conviction for robbery and aggravated assault to exclude an
inmate from early release eligibility was a reasonable
interpretation of 18 USC § 3621(e). The Court of Appeals
took the case under advisement.
15) United States v. Kelp. et. al., Criminal No. 97-14
(E.D.PA)
On September 23, 1997, a sentencing hearing was held for
three individuals who were formerly correctional officers at
the local county jail. One of the issues was whether the
BOP could house these individuals safely. An affidavit was
submitted by the Regional Designator and testimony was
expected to be provided by the Assistant Correctional
Programs Administrator. Joyce Horikawa assisted the AUSA.
During the hearing, the Judge did not provide the AUSA the
opportunity to present the BOP's position.
Under the Supreme Court decision in Koon, the court found
that the possible risk to the defendants in prison was
justification to support a downward departure from the
sentencing guidelines. The court imposed sentences on two
defendants (the third was continued) of 51 and 41 months,
roughly half of the sentencing guidelines.
16) United States v. Clements, Criminal No. 97-

(E.D.PA)

On September 30, 1997, a conference call was held concerning
the available psychological treatment for defendant, inmate
Donald Patrick Clements, 12847-056. While housed at FC!
Schuylkill serving a federal sentence, inmate Clemens
assaulted a correctional officer. After he was convicted,
and prior to sentencing, the court ordered a mental
examination be performed at FCI Butner. The study concluded
that the inmate has an Axis 2 personality disorder. Defense
counsel, in an effort to get a downward departure for
post-conviction rehabilitation, requested an order to have
the BOP house the defendant at FCI Butner so he could
receive "intensive therapy". During the conference call
with Judge Van Antwerpen, Michael Tafelski explained that,
according to the BOP's psychologists, the services available
at
-8-

the inmate's designated institution (USP Atlanta) were
appropriate and the same as any other facility for treating
this individual. The Judge, in denying defense counsel's
motion, stated that he was deferring to the expertise and
opinion of the BOP.

c.

SIGNIFICANT PENDING CASES

1) United States v. Brian Brennan. 97 Cr. 393 (SDNY)
On September 16, 1997, Raymond Voulo, M.D., MCC New York
Health Services Department met with AUSA Andrew J. Frisch
regarding the criminal case of United States v. Brian
Brennan, 97 Cr. 393 (DGT). Further, Physicians Assistant
Ruben Ustarus and AUSA Frisch had a telephone conference on
September 23, 1997. Mr. Frisch considers both Dr. Voulo and
P.A. Usterus as potential witnesses in the referenced case.
Mr. Frisch seeks to have Dr. Voulo and P.A. Ustarus
establish at trial that inmate Brennan, 48126-053, was
addicted to heroin upon his admission to MCC New York.
During inmate Brennan's admission to MCC New York on or
about April 2, 1997, he told the Physician's Assistant that
he
used heroin six days a week and that he had last used the
narcotic two hours prior to his medical screening. Inmate
Brennan was referred to detox. Staff Attorney Clinton
Stroble attended the meeting. Trial is scheduled for
October 20 and 21, 1997.
2) Starzecpyzel v. U.S.,
Attorney Stephen Roen filed a complaint in the S.D.N.Y.
challenging the decision by the Warden at FCI Danbury to
restrict the attorney's visiting privileges for 30 days.
Trying to graft this complaint to a pending 2255 motion,
Roen requested a temporary restraining order and bail for
the inmate Eileen Starzecpyzel, 34792-054. The attorney
alleged this decision interfered with the ability to
represent the inmate in the 2255 motion to vacate her
sentence. The court ruled there was no jurisdiction to hear
his complaint concerning FCI Danbury. The Attorney then
filed an administrative appeal with the Regional Director
concerning the suspension. Although suspension was upheld,
time period was reduced by seven days with the attorney
visits limited to the general visiting area to enhance staff
supervision.
(Attorney was seen by staff massaging the
inmate's
-9-

shoulders, etc.). The Attorney then renewed the same
complaint in the District of Connecticut. The Magistrate
Judge recommended the requests for TRO be denied, request
for preliminary injunction be denied, and requested
defendants show cause why Plaintiff's request to visit in
"chapel room" rather than main visiting room should not be

granted.
On September 27, 1997, another incident occurred involving
u
this attorney when he attempted to use the "special mail
procedures to mail newspaper articles into his client. The
mail was opened in front of the inmate and copied before
being given to the inmate. The attorney filed in the
Southern District of New York (which was dismissed) and then
filed again in the District of Connecticut. The AUSA is
being assisted by Patty Gotts, Paralegal, FCI Danbury.
3) Ansar el Muhammad a/k/al Tracy L. Munnerlyn v. George C.
Wigen, et.al. Civil Action No. 95-3668 (E.D.Pa)
This case, which has been construed as a RFRA case, involves
allegations that staff at FCI Schuylkill illegally
intercepted the Plaintiff's religious mail sent from his
wife.
In addition, the Plaintiff, former inmate Tracy
Munnerlyn, Reg. No. 06006-097, also alleges he was placed in
segregation, given an incident report and disciplinary
sanctions and transferred in retaliation for his religious
beliefs. The case was stayed pending resolution of the
"Flores case by the Supreme Court. Subsequent to the Flores
decision, Main Justice granted authorization for private
counsel for each of the named defendants (although private
counsel WILL NOT be reimbursed for any direct challenges to
the constitutionality of RFRA). The defendants have
recently agreed on a private attorney and the case is
scheduled to proceed in the near future.
cc: Regional Director
Senior Deputy Regional Director
Deputy General Counsel
All Associate General Counsel

NORTHEAST REGIONAL OFFICE
LITIGATION QUARTERLY REPORT
FROM 07/01/1997 TO 09/30/1997

LOC
MXR
NER
SER
NCR
SCR
WXR
CO
TOT

NOM

90

HC
53

FTC

BIV

OTH

ANS

PEN

CLD

HIT

08

20

06

33

626

47

16

SET

AWD

3

0

DEFINITIONS:
LOC - LOCATION
NOM - NUMBER OF TOTAL LAWSUITS FILED IN QUARTER
HC - NUMBER OF HABEAS CORPUS ACTIONS FILED
FTC - NUMBER OF FTCA ACTIONS FILED
BIV - NUMBER OF BIVENS ACTIONS FILED
OTH - OTHER ACTIONS FILED
ANS - NUMBER OF LITIGATION REPORTS COMPLETED
PEN - PENDING
CLD - NUMBER OF ACTIONS CLOSED
HIT - NUMBER OF HEARINGS OR TRIALS (INCLUDE INFO IN
NARRATIVE)
SET - NUMBER OF SETTLEMENTS (INCLUDE INFO IN NARRATIVE)
AWD - NUMBER OF AWARDS (INCLUDE INFO IN NARRATIVE)
GOVERNMENT ACTION AND DATE OF ACTION - (INCLUDE IN
NARRATIVE)

NORTHEAST REGIONAL OFFICE
TORT CLAIM QUARTERLY REPORT
FROM 07/01/1997 TO 09/30/1997

Loc
Mxr
NER
Ser
Ncr
Scr
Wxr

C.O.
Sum

Num
4
141
0
0

PP
3
94
0

0
0
1
0
98

0

1
0
146

PI
1
33
0
0
0
0
0
34

PPPI
0
9
0
0
0

0
0
9

WD
0
0
0
0
0
0

0
0

Med
0
5
0
0
0
0
0
5

Set
0
42
0

0
0
0
0
42

0.

Amt
0
4650
0
0
0
0
0
4650

Pen
1
167
0
0
0

Den
0
99
0
0
0

0

0
0
99

0
168

00

AID

AlP

0
0
0
0
0
0
0
0

0
0
0
0
0
0
0

2
105
0
0
0
0
0
54

DEFINITIONS:
LOC
NOM
PP
PI
PPPI

-

WD

-

Med
Set
Amt
Pen
Den
OD
A/O
A/P

-

LOCATION
NUMBER FILED IN QUARTER
PERSONAL PROPERTY CLAIMS
PERSONAL INJURY CLAIMS
PERSONAL PROPERTY/PERSONAL INJURY CLAIMS
CLAIMS WITHDRAWN
CLAIMS ALLEGING MEDICAL NEGLIGENCE
CLAIMS SETTLED
AMOUNT PAID
CLAIMS PENDING
CLAIMS DENIED
CLAIMS OVERDUE
AVERAGE DAYS OVERDUE
AVERAGE DAYS TO PROCESS

••••

NORTHEAST REGIONAL OFFICE
FOI/PA REQUESTS QUARTERLY REPORTS
FROM 7/01/1997 TO 9/30/1997

LOC
MXR
NER
SER
NCR
SCR
WXR
CO
TORT

NOM

PROC

116

156

PEND
35

OD

A/OD

A/P

20

-

-

DEFiNiTiONS:
LOC
NOM
PROC
PEND
OD
A/OD
A/P
CA

-

LOCATiON
NUMBER FiLED IN QUARTER
PROCESSED
PENDING
OVERDUE
AVERAGE NUMBER OF DAYS OVERDUE
AVERAGE LENGTH OF TIME TO PROCESS
CIVIL ACTIONS FILED UNDER FOI/PA ACTS

CA
0

NORTHEAST REGIONAL OFFICE
NORTHEAST REGIONAL OFFICE
ADMiNiSTRATIVE REMEDIES QUARTERLY REPORT
FROM 7/1/97 TO 9/30/97

LOC

NOM

DHO

SPH

MED

403

134

22

27

MH

LEG

FD

GRT

DEN

PEN

OD

1

13

2

46

222

130

0

MXR

NER
SER
NCR
SCR
WXR

I

TOT

DEFiNITIONS
LOC
NUN
DBO
SPH
MEP
MH

LEG
PO
GRT
DEN
PEN
OD

-

LOCATION
NUMBER OF TOTAL AD REMEDiES FILED
NUMBER OF DHO REMEDIES FILED
NUMBER OF SPECIAL HOUSING UNIT REMEDIES FILED
NUMBER OF MEDICAL REMEDIES FILED
NUMBER OF MENTAL HEALTH REMEDIES FILED
NUMBER OF LEGAL REMEDIES FiLED
NUMBER OF FOOD REMEDIES FILED
TOTAL OF NUMBER OF REMEDIES GRANTED
TOTAL NUMBER OF REMEDIES DENiED
TOTAL NUMBER OF REMEDIES PENDiNG
TOTAL NUMBER OF REMEDIES OVERDUE

• • etf/A"

UNITED STATES GOVERNMENT

memorandum

(
...

Date:

January 13, 1998

Reply to Henry J. Sadowski, Regional Counsel, Northeast Region
Attn of: Federal Bureau of Prisons, Philadelphia, Pa. 19106
Subject:

To:

Quarterly Report - October I, 1997 through December 31, 1997
FY-98 First Quarter Report .

Wallace H. Cheney,. General Counsel and
Assistant Director, Federal Bure"au of Prisons
Washington, D.C. 20534

Attached are the st~tistics requested for the quarterly report
for the first quarter of FY 1998.
The following is a synopsis of the significant cases in
litigation during the quarter:
A. SETTLEMENTS AND AWARDS

('

'- ...

1) Hill v. United States, Civil Action No. 97-4435 (EDPA) Former inmate Richard Hill, 36850-066, filed this FTCA action
alleging false imprisonment due to negligence.
In October .1992,
upon his discharge from USP Atlanta, the Plaintiff was improperly
subjected to a three year Special Parole Term.
On June 22, 1993,
the Plaintiff was committed for parole violations and remained in
custody until July 28, 1993, when it was determined that the SPT
was in error. The Plaintiff alleged that the negligence of
government officials (U.S. Parole Commission and Bureau of
Prisons) resulted in his improperly arrest as a Special Parole
Violator entitled him to $300,000.00 damages.
Mike Tafelski
assisted the AUSA at a mediation conference on November ~, 1997.
Based on desire to resolve matter and potential for governmental
liability, the case was settled for $5,000.
B. SXGNXFXCANT DECXSIONS. HEARINGS OR TRXALS

(

1) U.S.v. Sims, Cr. No. 97 WDPA
On October 29, 1997, former FCI McKean staff member Burn:~ Sims
pled guilty to bribery charges.
In exchange for smugglii.?
contraband into FeI McKean over a four month period, Mr. S!ms
accepted four chromium wheels. He was sentenced to 3 mci.~~S in
prison and $2,000.00 fine.
Duran Sheets, Paralegal, FC: ~=~ean,
assisted the AUSA.

2590

2) United States v. Fowler and Holiday, 96-CR-268 (MDPA)
On October 29 and 30, 1997, USP Lewisburg Paral"egal Jeff Fromm
testified, at the cri~inal trial of Corey Fowler, 08457-017 and
Jonell Holiday, 34733-004, concerning the property forms
contained in their respective central files.
On October 31,
1997, inmate Fowler was found guilty of the March 1992 murder of
inmate David Hoover, Reg. No. 28852-054. On November 3, 1997,
inmate Holiday was acquitted of all charges.
3) Craveiro v. Reno. et. ale and Nyhuis v. Reno, et. ale -- WDPA
On October 30, 1997, a conference call was held concerning the
Plaintiff's request for a TRO to prevent the November 1, 1997,
implementation of the BOP's revised Program Statement regarding
Inmate Personal Property. Taking part in the call were three
inmate/Plaintiffs (Carl Wolf, 40661-066, Joseph Craveiro, 02630070, and Douglas Nyhuis, 06548-040), Paralegal Duran Sheets,
Assistant U.S. Attorney Tina Oberdorf, DOJ Attorney (Programs
Branch) Marsha Edney, and Magistrate Judge Baxter. Although no
ruling was issued, the Magistrate stated that there did not seem
to be a~y irreparable harm occurring since the inmate's were
provided the opportunity to mail out the excess items.
4) United States v. Horace Tenny, CR- (EDPA)
Former inmate Horace Tenny, 03030-015, was charged with attempted
rape of a staff member (recreation specialist) at FCI Schuylkill
in June 1995. In October 1997, the jury returned a verdict of
not guilty.

(
"

5)U.S. v. Colon; Crim. No.97-11(03) (DNJ)
Inmate Angel Colon, 01590-049 was charged with the assault of two
correctional officers at FCI Ft. Dix in February 1997. The trial
began on October 24, 1997, was continued until November 14, 1997,
and finally concluded on December 3, 1997. The defendant was
found guilty of one count of assaulting an officer and received
two years probation (he had been released from FCI Fairton on
March 19, 1997). James Wills, Attorney Advisor, FCI Ft. Dix
assisted the AUSA.
6)Stiver v. Meko, 130 F.3d 574 (3d Cir. 1997).
On November 28, 1997, the u.s. Court of Appeals for the Third
Circuit upheld the denial of early release eligibility on the
basis of a prior violent conviction. Appellee, Robert C. Stiver,
04540-068, an inmate at FCI McKean, alleged that he was
unlawfully denied 3621(e) early release eligibility because of
pr~or convictions for aggravated assault and armed robbery.
He
argued that the decision to include prior violent offenses when
determining early release eligibility for completion of the Drug
Abuse Program was inconsistent with § 3621(e). The Court of
Appeals affirmed the District Court and held that the BOP's
interpretation of the statute, and subsequent issuance of :he
regulation, to apply to prior offenses as well as current
2
2591

offenses was a reasonable accommodation of Congress' goals.
The
Court of Appeals also rejected Appellee's arguments alleging
violations of the ex post facto clause and of the double jeopardy
clause . . Assistant Regional Counsel Joyce Horikawa assisted the
AUSA at the oral argument.
.
7) United States v. Paster, 4:CR-96-221 (MDPA)
Mitchell Paster, 08460-067, was charged with the August 1996
murder of USP Lewisburg Staff psychologist on the reservation.
In November 1997, just prior to trial, the defendant pled guilty
.to second degree murder. Presentence conference is scheduled for
February 9, 1998.
8) Zinner v. U.S., Cr. No. 95-48 (EDPA)
FCI Loretto inmate Edward Zinner, 48591-066 filed a Section 2255
motion alleging ineffective assistance of counsel. As part of
his case, the Court issued an order requiring FCI Loretto to turn
over copies of telephone conversations the inmate had placed to
his attorney on monitored phone lines. The institution complied
by providing access to, but not copies of, the tapes.
A hearing
was held on November 12, 1997 concerning, in part, whether access
to the tapes was sufficient. Joyce Horikawa assisted the AUSA.
The court felt that this access was sufficient.
9)Jolly v. State of New York. et. ale
On N"ovember 7, 1997, a telephone hearing was held concerning the
placement of New York state inmate Paul Jolly, 42073-054, who was
being held at MCC New York on a federal civil writ.
In a letter
to the judge earlier th~t day, the Warden had requested the writ
be satisfied so that the inmate, who had become very disruptive
at MCC NY, could be returned to the state. The Judge agreed and
satisfied the writ and the inmate was returned to New York DOC.
MCC NY attorney Clinton Stroble prepared the letter and assisted
during the he~ring.
10) Li v. Cannorozzi et. al., Civ. No. 97(2d Cir.)
Appellant, former inmate, Jian An Li, 44661-053, filed an appeal
of the jury verdict returned in favor of the Bivens defendants
(case involved allegations of excessive use of force at MCC NY) .
On November 17, 1997, oral argument was heard before the Court of
Appeals for the Second Circuit concerning the District Court's
decision to exclude the deposition of a witness unavailable at
the time of the trial. AUSA Jonathan Willens argued the case for
the government.
No decision has been rendered.
11) u.s. v. Mong Shean Kara Chang. Crim. Number 97-218(E.D.Pa.).
On December 1, 1997, a sentencing hearing was held in the abovecited case. The defendant, a diminutive, timid female, pled
guilty to bank fraud of about $218,000.00.
Defense counsel
argued for downward departure (guideline range of 18-24 mor.~hs)
because of the defendant's increased vulnerability to external
influences (i.e. sexual assault and predatory activity) in a
3

2592

(.
...

prison setting.
Defendant's Psychologist's report concluded that
she would be expected to experience both internal conflict and
external demands from others if sentenced to prison.
NER
Psychology Services Administrator, Gerard Bryant, Ph.D.,
testified about the Bureau's screening process and the medical,
custodial and psychological services available to inmates. The
sentencing court rejected Defendant's request and sentenced her
to a 21 month term. The court found that the BOP has recognized
the problems associated with victimization of diminutive or
vulnerable inmates and is equipped to deal with these problems.
Joyce Horikawa assisted the AUSA in this matter.
12) U.S. v. Jackie Johnson Crim. No.
(D.N.J.)
On December 9, 1997, inmate Jackie Johnson, 03800-015, was found
guilty of smuggling drugs into Fcr Fairton through the mail. He
was sentenced to a 5 month consecutive term.
FCr Fairton
Attorney Roberta Truman assisted the AUSA.

('
\

13) United States v. Gregory Scarpa. Jr. CR-94-1119 (EDNY)
On December 11, 1997, Judge Raggi held a hearing concerning a
request for reconsideration of an order concerning inmate Gregory
Scarpa, Jr., 10099-050. On December 10, 1997, Judge Raggi issued
an order that Scarpa be released from administrative detention.
The Warden advised the court though that AUSA that he could not
follow the order and requested a stay of the order and a hearing.
The court granted the Warden's request. The hearing lasted eight
hours.
Warden Hasty testified for approximately three hours.
The Warden stated that because of Scarpa's assault on an
organized crime member, while at USP Terre Haute, Scarpa was a
marked person. Warden Hasty emphasized his concerns about the
safety of Scarpa, other inmates, and staff. The Warden
. emphasized Scarpa will remain in the Special Housing Unit so long
as he is detained at MCC New York. Other MCC NY staff testified
concerning the protective custody hearing for Scarpa and tbe
medical care Scarpa was receiving. Scarpa testified concerning
conditions in the SHU, and that he was not in fear of his life.
Judge Raggi ruled that it was not her job to second guess the
Warden, but only to determine if the Warden's response was
exaggerated. The judge held that, although she might reach a
different conclusion, the Warden's response was not exaggerated.
The court noted that Scarpa has been at MCC New York for a long
time because of delays in trial (some initiated by Scarpa) and
that the best way to proceed is to start the trial before March
1998. Clinton Stroble, MCC NY Attorney, assisted the AUSh.
14) ,U.S. v. Guzman et. al., Crim. No.
(SONY)
On December 18, 1997, a pretrial conference was held regard~ng
the above-referenced case. The case involved 14 codefenda~:s
charged with participating in a drug conspiracy who are hc~sed at
MCC NY due to separation concerns.
Prior to transport tc :~urt,
five of the defendants refused to cooperated with MCC NY ~;:
staff and plastered the walls with bread and toilet paper.
MCC

(
'.

4

2593

(

NY ISM Robert Mayer ana Ass~st:anL J:\t:YJ.Ullc1J. \...uuu~c~ vv~ ........ u ............. ~ ......
attended the hearing. The Court admonished the defendants.
After Joyce and Robert left the hearing, defense counsel rais"ed a
concern regarding legal visits at MCC NY.
In response, the Court
suggested to defense counsel to submit an order for the USMs to
house these inmates at MDC Brooklyn the next time the defendants
are brought to court. The AUSA submitted a letter to the court
opposing such an order.
15) u.s. v. Robert Shapiro, Crim. No.
(E.D.N.Y.)
On December 18, 1997, Judge Block held a conference call
concerning the medication status of inmate Robert Shapiro,
43063-053. Three days before the call, the inmate had become
belligerent in open court (flipping over tables, cursing at the
Judge) and then alleged it was due to MDC Brooklyn's failure to
provide him the appropriate medication. MOC Brooklyn Attorney
Azzmeiah Vazquez and the MOC Brooklyn Clinical Director informed
the Judge the inmate received the medication and that failure to
take this medication would not result in the alleged side
effects.
Upon the request of the Court, the testimony was
repeated in "Court and placed on the record.
16) u.s. y. DeRewal, Crim. No. 88-0098 (E.D.PA)
On December 31, 1997, an emergency hearing was held to determine
whether inmate Manfred DeRewal, 40206-066, could be held beyond
his mandatory release date of January 1, 1998. The inmate, who
has an unpaid committed fine, did not have a committed fine
hearing pursuant to 18 U.S.C. § 3569. At the hearing, Emergency
Judge Padova issued an order that the committed fine hea"ring was
to be held on January 2, 1998, and the inmate would remain
committed at least until that time. On January 2, 1998, a
committed fine hearing was held before Magistrate Judge Rapoport
in Allentown, PAr Magistrate Judge Rapoport determined that
inmate DeRewal was not eligible to take the pauper's oath. Thus,
inmate DeRewal remains housed at Fcr Schuylkill. Michael
Tafelski assisted the AUSA.
cc: Regional Director
Senior Deputy Regional Director
Deputy General Counsel
All Associate General Counsel

\.

5

2594

NORTHEAST REGXONAL OFFXCE
LJ:TXGATXON QUARTERLY REPORT
FROM 10/01/1997 TO 12/31/1997

(

LOC

NOM

HC

FTC

BIV

OTB

ANS

PEN

CLD

HIT

11

12

04

32

664

36

lS

SET

AWD

1

0

MXR

NER

60

31

SER
NCR
SCR
WXR

CO
TOT

DEFXNITXONS:
LOC
NUN
HC
FTC

- LOCATION
- NUMBER OF TOTAL LAWSUITS FILED IN QUARTER
- NUMBER OF HABEAS CORPUS ACTIONS FILED
- NUMBER OF FTCA ACTIONS FILED
B~V - NUMBER OF BIVENS ACTIONS FILED
OTB - OTHER ACT~ONS FILED
ANS - NUMBER OF LIT~GATION REPORTS COMPLETED
PEN - PENDING
CLD - NUMBER OF ACTIONS CLOSED
HIT - NUMBER OF HEARINGS OR TRIALS (~NCLUDE INFO IN NARRATIVE)
SET - NUMBER OF SETTLEMENTS (INCLUDE INFO IN NARRATIVE)
AWD - NUMBER OF A~S (INCLUDE INFO IN NARRATIVE)
GOVERNMENT ACTION AND DATE OF ACTION - (INCLUDE IN NARRATIVE)

6

2595

NORTHEAST REGIONAL OFFXCE
TORT CLAIM OUARTERLY REPORT
FROM 10/01/1997 TO 12/31/1997

(
Loe

Num

Mxr

1

0

1

NER

168

131

34

Ser

3

2

Ncr

1

Ser

PP

PI

PPPI
0

WD

Med

Set

Amt

Pen

Den

00

AID

AlP

0

1

0

0

0

0

0

0

0

2

0

1

8

300

217

69

0

191

113

1

0

0

0

0

0

0

0

0

0

15

1

0

0

0

0

0

0

0

·0

0

0

1

0

0

0

0

0

0

0

0

0

0

0

0

0

Wxr

3

3

.0

0

0

0

0

0

0

0

0

0

10

C.O.

0

0

0

0

0

0

0

0

0

0

0

0

0

Sum

176

137

36

2

0

1

8

300

217

70

0

191

DEFINITiONS:
LOC
NUN
PP
PI
PPPI
WD
Med
Set
Amt
Pen
Den
OD
A/O
A/P

-

LOCATION
NUMBER FILED IN QUARTER
PERSONAL PROPERTY CLAIMS
PERSONAL INJURY CLAIMS
PERSONAL PROPERTY/PERSONAL INJURY CLAIMS
CLAIMS WITHDRAWN
CLAIMS ALLEGING MEDICAL NEGLIGENCE
CLAIMS SETTLED
AMOUNT PAID
CLAIMS .PENDING
CLAIMS DENIED
CLAIMS OVERDUE
AVERAGE DAYS OVERDUE
AVERAGE DAYS TO PROCESS

7

2596

48

NORTHEAST REGlONAL OPPlCE
NORTHEAST REGXONAL OFPICE
ADMINISTRATIVE REMEDIES OUARTERLY REPORT
FROM 10/1/97 TO 12/31/97

(
LOC

NUM

DHO

SPH

MED

376

144

11

27

LEG

MH

FD

GRT

DEN

PEN

00

6

31

233

110

0

MXR
NER

0

7

I

SER
NCR
SCR
WXR
TOT

I

I

I

DEFINITIONS

(..........

(

LOC - LOCATION
NUN - NUMBER OF TOTAL AD REMEDIES FILED
DBO ~ NUMBER OF DBO REMEDIES FILED
SPB - NUMBER OF SPECIAL HOUSING UNIT REMEDIES FILED
. MED - NUMBER OF MEDICAL REMEDIES FILED
MH - NUMBER OF MENTAL HEALTH REMEDIES FILED
LEG - NUMBER OF LEGAL REMEDIES FILED
FD - NUMBER OF FOOD. REMEDIES FILED
GRT - TOTAL OF NUMBER OF REMEDIES GRANTED
DEN - TOTAL NUMBER OF REMEDIES DENIED
PEN - TOTAL NUMBER OF REMEDIES PENDING
OD - TOTAL NUMBER OF REMEDIES· OVERDUE

9

2597