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Joyce Zoldak - jan02.rpt. wpd

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u.s. Department of J"ustice
Federal Bureau of Prisons

Dallas, Texas 75219

South Central Regional Office

February 8,2002

MEMORANDUM FOR CHRISTOPHER ERLEWINE
ASSISTANT DIRECTOR/GENERAL COUNSEL

FROM:

Michael D. Hood, Regional Counsel

SUBJECT:

Monthly Report - January 2002
,

ADMINISTRATIVE REMEDIES
FE

JA
N
RECEIVED
ANSWERED

MA
R

B

MA
Y

AP
R

JU
N

JU

L

AU
G

SE
P

OC

T

NO
V

DE
C

190
167

i

JA
N

FE
B

MA
R

AP
R

MA
Y

JU
N

JU
L

AU
G

SE
P

T

JU

JU
L

AU
G

SE
P

T

OC

NO
V

DE
C

NO
V

DE
C

261
48
93
216
0

FOIIPRIVACY
JA
N
PENDING
RECEIVED
ANSWERED
PENDING
OVER 20 DAYS

(r
I

TORT CLAIMS
PENDING
RECEIVED
ANSWERED
PENDING
OVER SIX MO

j..

FE
B

MA
R

AP
R

MA
Y

N

66
63
60
69
12

4320

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LITIGATION
JA
N

FE
B

MA
R

AP
R

MA

Y

JU
N

JU
L

AU

G

SE
P

OC
T

NO
V

DE
C

16
12
10
5

CASES RECD
CASES CLOSED
HABEAS CORPUS
BIVENS
FTCA
OTHER
LIT REPORTS
HEARINGSI
TRIALS
SETTLEMENTSI
AWARDS

1

0
17
0
1

CASES WITH HEARINGS OR TRIALS
None
CASES WITH SETTLEMENTS OR AWARDS

a.

Adverse judgments

See Free under Significant Cases.

c.

b. Tort Claim settlements

. I

None

c.

Other settlements

None
SIGNIFICANT CASES
FCIBASTROP
Free v. Miles, A-01-CA-291-JN (WDITX). The petitioner had been borrowed from state
custody, where he was serving a prison sentence, pursuant to a federal writ. Upon his
federal sentencing, the U.S. Marshals erroneously failed to return him to the state, and the
Bureau designated him to a federal facility. Six months later, upon discovery of the
erroneous designation, the Bureau returned him to state custody, and the state credited
him throughout the time of the erroneous designation. Nevertheless, the local.court
determined that when the U.S. Marshals failed to return the petitioner to the custody of the
state, the federal sentence commenced as per the strict language of 18 U.S.C. § 3585(a).
Since the court found this statute unambiguous, it declined to take into account the
language of P.S. 5160.04, which states that an erroneous designation is to be treated as
not having happened. As a result. the six-month period of time was not approached by
the court as potential jail credit time under 18 U.S.C. §3585{b), but as time spent in
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federal custody serving a federal sentence that had already co~menced. Accordingly, the
court ordered that the Bureau credit the six months of erroneous designation against the
federal sentence. The court stopped short, however, of ordering that the Bureau credit all
of the time, without interruption, after the erroneous designation, which it could have done
consistent with its reasoning. Such an order would have resulted in over three years of
dual credit from the time of the erroneous designation to the petitioner's completion of his
state sentence and his final, correct designation to Bureau custody.
The Magistrate's Report and Recommendation, which was adopted by the court, was not
brought to our attention by the U.S. Attorney's office because of a change in personnel in
that office. When the Bureau received the Order adopting the R&R, it was too late to
object. The decision is not reported. All concerned agree not to appeal or to file a
reconsideration.
USP BEAUMONT
Joe Louis Simpkins v. U.S., 1:00CV609 (EO/TX). The inmate plaintiff in this action filed
an administrative tort claim, alleging Bureau staff failed to secure his property in a timely
manner after he was assaulted and taken to Health Services. Approximately five months
after the denial of his administrative claim. the plaintiff named several individuals in a
lawsuit, but not the United States. He did not name the United States in his action until
nearly eight months after he initiated suit. The Court concluded the plaintiff's claim
against the United States was not able to "relate back" to the date his lawsuit was
originally filed and was, therefore, barred by the statute of limitations.
FMC CARSWELL
Lily Schmidt v. Lucy Mallisham, 4:01-CV-1014-A (NDITX). Petitioner alleges that she had
been subjected to physical and sexual abuse by staff and has had personal property
stolen by staff while housed at FMC Carswell. Due to the gradual escalation of
petitioners poor judgement, which causes her to violate institution rules in an increasingly
self-destructive manner, the FMC Carswell Chief Psychiatrist is in the process of preparing
a commitment petition to submit to the court. Petitioner's sexual allegations have been
appropriately referred to alA, and petitioner was offered the full panoply of programs
provided for in the sexual assault prevention and intervention program statement. She
refused all programs and also declined a "rape kit" examination.
FCI EL RENO
Beasley v. Peterson, No. CIV-01-1001 (WOlaK). Plaintiff filed a Bivens complaint which
also sought injunctive relief. Plaintiff alleged that his release to Canadian County
(Oklahoma state authorities) on a detainer placed by the State of Kansas would cause
him to unnecessarily spend 10 days in the Canadian County Jail waiting on Kansas
authorities who would eventually drop the detainer. Plaintiff was scheduled for mandatory
release from his federal sentence on January 4, 2002. Magistrate Judge Robert
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Bacharach entered a temporary restraining order on January 3, 2002, prohibiting FCI EI
Reno from releasing Plaintiff to Canadian County on January 4, 2002.
Supplemental filings were made citing relevant case law which stated Canadian County
could lawfully accept custody of
Plaintiff as an intermediary on the Kansas detainer.
Magistrate Judge Bacharach dissolved his order of January 3, 2002, based upon his
case. Plaintiff was released to Canadian authorities on January 4,2002.
FCI FORREST CITY
Allen Ware v. BOP, No. 01-1384 (8th Cir. Jan. 8, 2002): After
immunity, the case
denying Defendants' motion for dismissal based upon qualified
Appeals. The Court of Appeals entered an
was appealed to the Eight Circuit Court of
of
opinion reversing
. the District Court's denial of qualified immunity, the basis
which was that the inmate had no constitutionally protected
liberty interest implicated
by the suspension of his
visitation privileges.
Albert J. Muick v. Unites States of America, Case No. 6:01-CV-1062-0rl-22DAB (MD/FL)
(Bivens). Plaintiff alleges that medical staff members at FCI Forrest City were negligent in
providing medical treatment to him. The plaintiff alleges that he repeatedly informed
medical staff that he needed an examination and additional medication to treat his
hemorrhoids. but medical staff continually denied him proper treatment. As a result of
inadequate treatment for this condition, the plaintiff alleges that he suffered emotional
distress, humiliation, and embarrassment.
CCMHOUSTON
Elizabeth Garza v. Correctional Systems. Inc. et aI., M-01-298 (SDITX). Plaintiff. a former
employee of a halfway house under contract with the Bureau, asserts that Community
Corrections staff violated her constitutional rights during their administrative investigation
relating to misconduct allegations. The halfway house terminated plaintiff after the CCM
instructed the halfway house that plaintiff was no longer authorized to work with federal
offenders_
FTC OKLAHOMA CITY
Lodee Perry v. United States, No. CIV-00-136 (WDIOK). T~is case was placed on the
January 22, 2002, the court granted the
December 2001, trial docket. However, on
United States' motion
to transfer the case to the District of Colorado.
FCI SEAGOVILLE
Larry Powell v. Unknown Named Warden. et aI., No. 4:02-CV-0021-A (NDITX). In a case
originally filed in state court and recently removed to N.D. Tex .• plaintiff, currently
designated at FCC Beaumont - Medium, is suing several FMC Carswell and FCI
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Seagoville staff. as well as a Magistrate Judge and the Chief District Judge of the N.D.
Tex. Plaintiff alleges that the defendants "knowingly and recklessly stepped outside of
their official capacity to cause damage to occur" to him and his wife, an inmate currently
designated at FMC Carswell. It appears that plaintiff is challenging the denial of
inmate-to-inmate correspondence privileges between him and his wife by staff at Carswell
and Seagoville when he and his wife were designated at those facilities in 1998 and 1999.
Plaintiff seeks a wide range of injunctive relief and $100,000,000 in damages.
SIGNIFICANT TORT CLAIMS
FCIOAKDALE
In the Findler and Findler claim, a law firm states it sent i
settlement
s to return the
check in the amount of $7,500.00 for endorsement. In
endorsed check to the law firm. Instead, however, the check, which had already been
endorsed by the law firm, was removed from the envelope and credited to the inmate's
commissary account without the law firms receipt of its legal fees. The law firm alleges
the check should not have been credited to the inmate's account: therefore, the Bureau is
liable for their fees of $~,500.00. (TRT-SCR-2002-07625)

SIGNIFICANT ADMINISTRATIVE REMEDIES

( ...

None
UPCOMING TRIALS OR HEARINGS
FCI SEAGOVILLE
Jones v. Sales, No. 3:99-CV-1237-M (NDITX). Trial is
currently scheduled for February 11, 2002. As previously reported, plaintiff alleges that
defendant, an FCI Seagoville Correctional Officer, had him moved to a less favorable work
assignment and ultimately transferred to another institution in retaliation for plaintiff
seeking informal resolution of a dispute over the scheduling of plaintiff's vacation time.
MEDICAL MALPRACTICE
LITIGATION
See Muick above.
TORT CLAIMS
None
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ENSIGN AMENDMENT

None
LITIGATION

None
TORT CLAIMS
None
RELIGIOUS FREEDOM RESTORATION ACT
LITIGATION

None
TORT CLAIMS

(

None

,

PRISON LITIGATION REFORM ACT ORDERS

i
I

:

None
SITUATIONS OF INTEREST
FD C HOUSTON
On January 9. 2002. an attorney representing a former inmate deposed Jason Terris .

Health Services Ad ministrator. in regard to a matter pe nding in a state court in Michigan.
The former inmate sued several private health care providers who treated him while he
was designated to halfway house in Michigan City. Indiana . One or more remaining
defendants are asserting the Bureau delayed the inmate 's transfer to a hospital facility
that was able to correctly diagnosis his brain abscess condition (the first hospital had
incorrectly diagnosed him as havi ng an inoperable brain tumor). As the Assistant Health
Services Administrator in the Mid-Atla ntic
Mr. Te rris assisted in the

Michael Shelby. United States Attorney for the Southern District of Texas. visited the
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institution on January 17. 2002.
Mr. Shelby's comments indicated that he is very supportive of the Bureau of Prisons,
particularty with regard to the prosecution of inmates who engage in assaultive behavior
against staff.
USP POLLOCK
On December 30, 2001. staff observed inmate Jack Ashworth in respiratory arrest in the
inmate dining hall during the evening meal. Health Services staff responded and
attempted to assist inmate Ashworth. An ambulance was called, wherein he was taken to
a local hospital. Inmate Ashworth was pronounced dead at
11 :15 p.m due to Cardiopulmonary Arrest. secondary to Respiratory Arrest caused by a
foreign body obstruction. Inmate Ashworth had a large piece of meat lodged in his airway
that could not be dislodged by medical personnel. An investigation is pending.
CRIMINAL MATTERS AND PROSECUTIONS
USP BEAUMONT
On January 17. 2002, inmate Van Dugay was sentenced to 9 months imprisonment to be
followed by a three-year term of supervised release by the United States District Court for
the Eastern District of Texas. Inmate Dugay previously pled guilty to Possession of
Contraband (Marijuana) in Prison, in violation of
18 USC 1791 (a)(2).

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On January 23, 2002, inmate James Brocklehurst was sentenced to
8 months imprisonment to be followed by a three-year term of supervised release by the
United States District Court for the Eastern District of Texas. Inmate Brocklehurst
previously pled guilty to Possession of Contraband (Marijuana) in Prison, in violation of 18
U.S.C. 1791 (a)(2).
On January 19. 2002. inmates Armando Canales and Manuel Flores were indicted in the
United States District Court for the Eastern District of Texas. Each inmate is charged with
one count each of violating 18 U.S.C. 113, Assault with a Dangerous Weapon: and
18 U.S.C. 1791, Possession of a Prohibited Object While in a United States Penitentiary.
On January 16, 2002. inmate Michael Wair was indicted in the United States District Court
for the Eastern District of Texas. Inmate Wair was charged with one count of violating 18
U.S.C. 111, Assault of a Correctional Officer While in a United States Penitentiary.
On January 16. 2002. inmate Kevin Dooley was indicted in the United States District Court
for the Eastern District of Texas. Inmate Dooley was charged with one count which
alleges that he violated 18 U.S.C. 1791, Possession of Illegal Contraband (Marijuana) in
Prison.
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On January 16, 2002, inmate Richard Delano was indicted in the United States District
Court for the Eastern District of Texas. Inmate Delano was charged with one count which
alleges that he violated 18 U.S. C. 1791, Possession of IIIega I Contraband (Marijuana) in
Prison.
On January 16, 2002. inmate Anthony Patrick was indicted in the United States District
Court for the Eastern District of Texas. Inmate Patrick was charged with a two count
indictment which alleges that he violated 18 U.S.C. 1791, Possession of a Prohibited
Object While in a United States Penitentiary; and 18 U.S.C. 111, Assault of a Correctional
Officer. Inmate Patrick is currently housed at USP Lompoc.
On January 9. 2002, inmate Edmond Wright was sentenced to one year of probation with
a $100 special assessment in the Eastern District of Texas. Inmate Wright previously
pled guilty on August 28.2001. to Providing a Prohibited Object to an Inmate in violation
of 18 U.S.C. 1791. In a second count, inmate Wright was found guilty of violating 21
U.S.C. 846, Conspiracy to Possess with Intent to Distribute Marijuana. He was sentenced
to 37 months of imprisonment to be followed by a two-year supervised

c. .

release term on this charge, which shall be served consecutive to his current sentence of
imprisonment. The above charges stem from inmate Wright's attempt to introduce drugs
into USP Beaumont.
FCI BEAUMONT (LOW)
On January 7, 2002, inmate Artemio Hernandez pled guilty in the Eastern District of Texas
to five counts of violating 18 U.S.C. 111, Assaulting, Resisting or Impeding Federal
Correctional Officers.
FPC BRYAN
Former correctional officer Stephen Gormly was sentenced to a
36-month term of probation and fined $2.500 in the United States District Court for the
Southern District of Texas. As previously reported. this former staff member was
convicted of Sexual Abuse of a Ward in violation of 18 U.S.C. 2243(b).
FCI SEAGOVILLE
While housed in the FCI Seagoville detention center pending sentencing for threatening
the President. inmate Archie Glass attempted to mail another threatening letter to
President Bush. One of the officers reviewing outgoing mail discovered the letter. which
was simply a piece of paper on which the inmate had written, "Dear Mr. President, this is
Antrax [sic]. You're dead. Archie Glass." The envelope contained granules of salt. The
Secret Service was contacted. as they were the agency dealing with the inmate's existing
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case . They picked the letter up as evidence and used it in the sentencing phase of inmate
Glass ' current case . The inmate rece ived a 37 month sentence in that case in the
Northern District of Texas .
FCI THREE RIVERS
Three inmates were recently sentenced in United States District Court for the Southern
District of Texas for the assault of another inmate in connection with the disturbance on
the recreation yard on February 6. 2001 . All three inmates previously pled guilty of
assault resulting in serious bodily injury in violation of 18 U.S.C. 113(6). On January 9,
2002, Pedro Garcia-Becerra received a 63-month sentence of imprisonment, to be served
consecutively to his current sentence, to be followed by three years of supervised release ,
restitution of $9 ,718, and a $100 special assessment. On January 11, 2002, Lauro
Fonseca received a 22-month sentence of imprisonment, to be served consecutively to his
current sentence , to be followed by three years of supervised release, restitution of
$9,718, and a $100 special assessment. On January 18, 2002, Luciano ResendezMendez received at 96-month sentence of imprisonment, to be served consecutively to his
current sentence , to be followed by three years of supervised release, restitution of
$9,718, and a $100 special assessment.
FCI FORREST CITY
On December 31 , 2001 , Inmate
was observed standing over Inmate
_striking him with a closed fist to
and body. In addition , he was kicking
and head butting Inmate_. Marianna B Unit Officer also observed a sharpened,
metal, instrument approximately six inches long laying next to Inmate_. The
weapon was recovered from the floor and turned over to the SIS' evidence locker. Both
inmates complied with staff orders to cease fighting and hand restraints were applied
without resistance . Inmate_ was treated for a laceration to the back of the head,
swollen left eye, and a small laceration to the left ring finger. Inmate
was treated
for multiple bite marks to the face and one puncture wound to the left upper rear shoulder.
Both inmates were then escorted to the Special Housing Unit pending disciplinary action .

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PERSONAL ISSUES

Scheduled Annual/Sick Leave
- February 14-15 - Annual Leave
February 21-22 - Annual Leave
February 28 - Annual Leave
March 6

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