BUREAU OF PRISONS - SOUTH CENTRAL REGION
UNITED STATESOOYE51NM~T
DATil::

memorandum

JanuaR 10, 1996{)

REPL.Y TO
ATTN 0 ..:

~a~~D~~qiOnal

SU~EC~

Quarterly Report for October 1, 1995 - December 31, 1995

TO:

Counsel

Wallace H. Cheney, Assistant Director/General Counsel
Central Office
Attention:

Hs. Nancy Redding, Executive Assistant

Attached is our quarterly report for the above-noted months.
Attachments

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2889

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LITIGATION NARRATIVES
OCTOBER 1, 1995 - DECEMBER 31, 1995

Jackson. et ale v. Bush. et al.; Cause No. 9503273; District of
Travis County, Texas - Case filed in state court by Texas state
inmates, alleging that TDCJ new non-smoking policy violates 8th
Amendment. Plaintiffs attempted to bring the Attorney General
and DOJ into the case by alleging that they failed in their
oversight duties as allegedly imposed by the decrees in Ruiz v.
Estelle. Case was dismissed by state court as to all defendants.
Tran v. Hawk - Appeal No. 94-10742 (5'th Cir.); This Bivens case
was dismissed by Judge McBryde, after the court-appointed "expert
witness" concluded (in a report we were not allowed to see) that
there was no evidence to support the claim. The plaintiff
appealed to the Fifth Circuit, and the ,appeal has been dismissed.
Arturo Gardea v. United states - 95-50310 (5th Cir.) (Appeal from
WD/TX, EP-93-CV-320) - Plainitff/Appellant was injured while
working on remodeling of FPC, El Paso, and filed this tort
action. District Court granted our motion for summary judgment
because plaintiff was not an employee of the government, but
rather was an employee of Rudy G. Construction Co., with whom the
government had contract~d to the job. The 5th Circuit affirmed
the decision, holding the government was not liable because of
the independent contractor exception to the FTCA.
McAlpine v. Thompson - 94-1406-L (WD/OK) - This is the case in
which a Native American inmate seeks access to peyote for use in
his religious observances. The Magistrate Judge originally
issued a Report and Recommendation in late 1994, recommending
that the case be dismissed. The District Judge declined to enter
judgment, referring the case back to the Magistrate for further
factual development. The Magistrate Judge has now issued a
lengthy Report and Recommendation, recommending that summary
judgment be entered in our favor on the ground that there" is no
lesser restrictive alternative than a complete ban on peyote in
the correctional setting. We are still awaiting the Judge's
ruling.
Rounsavall v. USA - B-95-163 (SD/TX) - In this new FTCA case,
former inmate Mary Rounsavall has filed suit based on alleged
rape by a former correctional officer at FPC Bryan. We denied
the administrative claim based on scope of employment
90nsiderations, and will raise the same defense in the
litigation. The former correctional officer had pled guilty to a
lesser charge in connection with this assault.

2890

2

CASES WITH HEARINGS OR TRIALS
V. L. Underhill v. USA; 1:95-CV-160 (ND/TX)i Inmate filed Request
for TRo/writ of Mandamus to keep staff from reading typewriter
ribbons from typewriters in law library. Staff read ribbons in
an isolated situation while investigating a written threat to
staff that was successfully found on a law library typewriter
ribbon. The inmate who made the threat (not plaintiff Underhill)
was successfully traced through the typewriter and ribbon used to
make the threat. It is not the practice of the institution to
systematically read typewriter ribbons. In this case where
security of the institution was an issue, the ribbons were read
according to rules/regulations of the BOP. The TRO hearing was
held on October 5, 1995, and the TRO was denied.
Anthony Elizondo v. U.s., 5:95CV07 (ED/TX) - Mediation conducted
December 19, 1995 in Texarkana. Inmate did not show. At the
mediation, we informed the Judge of our intention to file a
Motion to dismiss this FTCA case based on Demko.
Ayala v. Reeves County. et a1., P-95-CA-29 (WD/TX) - Trial of
this matter was held the week of December 11, 1995, in Pecos,
Texas. The case involved allegations by inmates at the Reeves
county Law Enforcement center (a contract facility) that they
were assaulted by staff at the Reeves County Jail, when they were
transferred to the Jail in 1993 after a disturbance at the Law
Enforcement center. The suit sought damages from Reeves County,
a number of Reeves county employees (in their individual
capacities), the U.s. (under an FTCA theory), and Charles Turnbo
(under a Bivens theory). The case as to Mr. Turnbo.was dismissed
at the close of the plaintiffs' case. The FTCA claim against the
U.s. was also resolved in favor of the U.s. In addition, the
jury found that no assaults occurred, and ruled in favor of the
County defendants as well.
Peck v. Fernandez. et al., 1:93-CV-152-C (ND/TX) - An
evidentiary hearing was held on December 21, in the Abilene
Division. The case involved Bivens allegations against three
employees. The inmate (now released) complained that he had been
improperly placed in Administrative Detention •. A number of
defendants had previously been dismissed on various grounds, and
although we argued Sandin v. conner, the Judge refused to dismiss
as to the remaining three defendants. The plaintiff failed to
appear for the hearing, and the Court has entered an Order of
Dismissal.

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2891

3

MEDICAL MALPRACTICE LITIGATION
Woods v. USA, 495-CV-658-Y (ND/TX) - Claiming malpractice in
treatment of his diabetic retinopathy.
Kurland v. Gibson, et al., A-95-CA-593SS (WD/TX) - Plaintiff sues
the Warden, Health Services Administrator, and Chief Medical
Officer for willful fail~re to obtain treatment for his supposed
back and leg injuries sustained in a purported fall.
Willie Volsan v. Warden. FCI McKean, et al., 4-95-CV-8l7-Y
(ND/TX) - Alleges attempted .murder due to eating tainted soup at
McKean and inadequate medical care at FMC, Fort Worth.
Joel D. Dreer v. G. Killinger. Warden; 4:95-CV-763-E (ND/TX);
Inmate is requesting injunctive relief prohibiting BOP from
ordering medications,· procedures, examinations or consultations
without explaining to petitioner the procedures and choices prior
to ordering such.
SXGNXPXCANT TORT CLAXM

(

T-SCR-95-371i Michael James, Reg. No. 06178-059, FCI Oakdale, an
Native American Indian alleges on August 4, 1994,'staff
confiscated 2 headbands, 1 blue and 1 red. Claims the headbands
are sacred and sent in to him from home. Claims $7.00 property
damage and $7,770.00 personal injury.

2892

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ONE CASE WAS REPORTED SEVERAL TIMES IN PREVIOUS MONTHLY REPORTS
DOE TO RESCHEDULING OF THE BEARING.

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BUREAU OF PRISONS -t,:$Piirl:l:.CENTRAL,.REGION

DATE:

Janua~

10, 1996

n

AEPLY TO

Mh~~~d
M1C
aeI D. Hoo , Reg10nal Counsel

SUB.JECT:

Quarterly Report for

ATTN 0,.:

TO:

·

Q~tober

1, 1995 - December 31, 1995

Wallace H. Cheney, Assistant Director/General Counsel
central Office
Attention:

Ms. Nancy Reddinq, Executive Assistant

Attached is our quarterly report for the above-noted months.
Attachments

OPTIONAL FOAM NO. 10
GSA
(A IV. 1-84.
5010-U8

r:"

LITIGATION NARRATIVES
c
OCTOBER 1, 1995 - DECEMBER 31, 1995FISCAL YEAR 1996
CASES OF INTEREST
Arturo Gardea v. United States - 95-50310 (5th Cir.) Plainitff/Appellant, who was not a government employee, was
injured while working on remodeling of FPC, El Paso, and filed
this tort action.
District Court granted our motion for summary
judgment because plaintiff was not an employee of the government,
but rather was an employee of Rudy G. Construction Co., with whom
the government had contracted to the job. The 5th Circuit
affirmed the district court's decision, holding the government
was not liable because of the independent contractor exception to
the FTCA.
Rounsavall v. USA - B-95-163 (SD/TX) - A former inmate has filed
an FTCA suit based on alleged rape by a former correctional
officer at FPC Bryan. We denied the administrative claim based
on scope of employment considerations, and will raise the same
defense in the
litigation. The former correctional officer had pled guilty to a
lesser charge in connection with this assault.
CASES WITH HEARINGS OR TRIALS
Ayala v. Reeves County, et al., P-95-CA-29 (WD/TX) - Trial of
this matter was held the week of December 11, 1995, in Pecos,
Texas. The case involved allegations by inmates at the Reeves
County Law Enforcement Center (a contract facility) that they
were assaulted by staff at the Reeves County Jail.
The suit
sought damages from Reeves County, a number of Reeves County
employees, the U.S., and Charles Turnbo. The case as to Mr.
Turnbo was dismissed at the close of the plaintiffs' case. The
FTCA claim against the U.S. was also resolved in favor of the
U.S., and the jury also found in favor of the County defendants.

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Tort Claims First Quarter - FY96 (October 01, 1995 - December 31, 1995)

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Wrongful Death claims ••••••••••
Medical claims •••••••••••••••••
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