u.s. Department of Justice
Federal Bureau of Prisons

Dublin, California 94568

February 5, 2002
MEMORANDtJH FOR CBlUSTOPBER ERLEWD1E, ASSISTANT DIRECTOR/
GENERAL COUNSEL, GENERAL COUNSEL , REVl:EW

FROM:

Harlan W. Penn, Regional Counsel

SUBJECT:

Monthly Report for January 2002
LITIGATION

NEW CASES

Collier v. LeBlanc (SDC) Petition for Writ of Habeas Corpus
claiming unlawful detention on account of allegedly improperly
executed arrest warrant by u.s. Parole Commission. Also seeks
order preventing transfer out of district during pendency of
petition.
Foster v. Hood (SHE) Petition for Writ of Habeas Corpus
contesting discipline sanctions.
Hunter v. Herrera (LOM) Petition for Writ of Habeas Corpus
contesting DHO matter.
Jiminez v. United States (LOM) FTCA/Bivens complaint alleging
dental malpractice.
McDavid v. Hood (SHE) Petition for Writ of Habeas Corpus
contesting computation of good conduct time.
Rhonemus v. Warden (LOM) Petition for Writ of Habeas Corpus
contesting Inmate Financial Responsibility Program.
Smith v. Jusino (SET) Petition for Writ of Habeas Corpus seeking
credit for time spent during court order drug rehabilitation and
CCC.
Woods v. United States (LOM) FTCA complaint alleging medical
malpractice resulting in loss of eyesight.

4412

Sl:GNIFl:CANT DEVELOPMBNTS/APPEALS

\..

Boehner v. Hood RDAP cases reported dismissed in December 2001
report have been appealed to the Ninth Circuit. Motion to
consolidate has been granted and case is captioned Boehner v.
Hood, 02-35025, (lead case). Court imposed expedited briefing
schedule with oral argument slated for April 8, 2002, in San
Francisco.
Carter v. United States (TRM) FTCA complaint alleging medical
malpractice at FCI Terminal Island and MCC Chicago dismissed with
prejudice for failure to file administrative claim within two
years of alleged event. Plaintiff has filed notice of appeal.
Castillo v. United States (SDC) Settlement conference held in
medical malpractice case. Plaintiff insisted on sentence
reduction as part of agreement. Court clearly stated that was
not an option.
Felix-Perez v. Acosta, et ale (SDC) Court dismissed former Warden
Lathers with prejudice as part of her immunity motion. As a
result, plaintiff's counsel decided against pursing any claim
against current warden in Bivens case alleging sexual assault and
battery.
Flowers v. United States and Flowers v. Finnerty, et ale (LOM)
FTCA and Bivens complaints alleging assault, battery and
constitutional violations. Settlement reached and filed.
Dismissals of both actions filed January 23, 2002.
Friedman v. U.S. Bureau of Prisons (PHX) District Court approved
$500 settlement of Privacy Act lawsuit.
Jones-Heim v. Reese (DUB) District judge found in favor of
defendants in Bivens complaint regarding DHO matter and summary
judgement was issued in their favor.
Lopez v. United States (LOS) FTCA complaint involving inmate. on
inmate assault scheduled to start trial February 5, 2002.
Moreland v. Rothstein, et ale (SET) Inmate voluntarily dismissed
Bivens complaint against Judge, AUSA, and Warden alleging denial
of access to courts.
v. Hood (SHE) Ninth Circuit affirmed denial of RDAP
Petition for Writ of Habeas Corpus which sought early release
notwithstanding prior escape rendering inmate ineligible for CCC
placement.
Mu~hy

(

4413

(

Sherrod v. Rardin (LOM) District Court granted Petition for Writ
of Habeas Corpus complaining of DHO matter after inmate appealed
original dismissal to Ninth Circuit.
Stewart v. Adams (LaM) Bivens/FTCA complaint alleging deliberate
indifference and medical negligence. Settlement reached as to
FTCA case during settlement conference. Bivens action to be
dismissed when F-TCA settlement is filed.
Wharton v. Hood (SHE) Ninth Circuit affirmed lower court's
dismissal of Petition for Writ of Habeas Corpus arising from DHO
action revoking 13 days of good conduct time. Appeal determined
moot as inmate had been released.
CRIMINAL CASE TRACKING

Criminal Cases
JAN

Referred

10

Accepted

1

Dec1ined

12

Pending
Decision

139

FEB

MAR

APR

MAY

JON

JtJL

AUG

SEP

OCT

NOV

DEC

NEW ntFORHATJ:ON ON ACTIVE PROSECOTJ:ONS

u.S. v. Figueroa (LOS) Trial for three inmate defendants charge with
murder, assault with the intent to murder, and assault with intent
to do bodily harm scheduled for August 13, 2002.
(Inmate victim
subsequently died from injuries sustained in assault.)
ASSAULT

u.S. v. Guyton (LOM) Sentencing hearing continued to February 11,
2002.
u.s. v. Rios-Escobar (VIM) Inmate on staff assault accepted for
prosecution. Inmate stuck lieutenant in face and while being
escorted and in restraints, inmate kicked an escorting officer in
chest.

4414

ESCAPE

(

u.s. v. Eaton (SHE) Escapee from FPC Sheridan pled guilty to charge
January 31, 2002.
u.s. v. Fischer (SHE) Inmate escape during transfer to CCC recently
apprehended and in custody in Arkansas. Prosecution.to be effected
in Eastern District, Arkansas.
u.s.

v. Little (SET) Seattle cce escapee pled guilty to escape and
sentenced to 12 month consecutive term of incarceration.

u.s. v. Mayhorn (PHX) CCC escape indictment dismissed for failure to
prosecute. USAO may refile case.
Hand made clothing. and mask designed for use in escape were
discovered in two man cell at FCI Phoenix. USAO declined
prosecution of inmate accepting responsibility for items due to
length of his current sentence.
CONTRABAND

u.s. v. Davis (LOS) Inmate sentenced to 18 months with three years
supervised release for possession of amphetamines and marijuana.
u.s.

v. Exum (TRM) Trial for inmate possessing heroin continued.

u.s.

v. Parrado-Herrera (PHX) Trial· previously set for January 8 has
been postponed.
SEX OITERSES

State of California v. Gaines Former FCI Phoenix inmate received 20
year sentence for sexual contact with minor. Facts of the offense
were discovered through ITS at FCI Phoenix. Inmate completed
federal sentence at USP Lompoc December 26, 2001.

u.s. v. Mosequeda-Gonzalez (PHX) USMCFP report indicates inmate is
capable of standing trial for sexually assaulting female officer.
Inmate forcefully attempted to kiss staff while straddling and
simulating sex act with officer. Inmate made admission that he was
attempting to rape the officer.
u.s. Attorneys Office has agreed to reconsider possible prosecution
involving sexual contact with inmate by two former Fcr Phoenix staff
members.

4415

STATl:STJ:CS

(

ADMINISTRATIVE·REMEDIES
APR

!mIt

FEB

JAN

laY

SEP

AUG

JtJL

JON

NOV

OCT

DEC

103

FREEDOM OF INFORMATION/PRIVACY ACT:
JAN

RECEIVED

45

CLOSED

34

PENDmG

31

30 DAYS

6*

6 MON'J!HS

0

APPEALS

2

FEB

MAR

APR

laY

JON

JUL

AUG

SEP

OCT

NOV

DBC

*Wa1t1ng for records from Arch1ves, not cons1dered overdue.
~

NUMBER OF FOI/PA PENDING:

\.

ATW

DUB

LON

HON

NEL

PBX

SAF

SDC

SET

SHE

TCl:

TCH

TRM

VIM

OTHER

0

5

2

0

1

3

5

3

1

3

2

0

2

1

3

SEP

OCT

NOV

ADMINISTRATIVE TORT "CLAIMS
JAN

RECB:IVBD

26

CLOSED

34

RECONSl:DER

0

PENDmG

109

OVER 6
MONTHS

5

FEB

MAR

APR

MAY

JON

JOL

AUG

DBC

Tort Claim Investigations OVer 60 Days:
DUB

LOF

LOH

LOS

NEL

PBX

SAF

SDC

SET

SHE

TCl:

TCH

TRY

VIM

TOTAL

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

4416

LITIGATION :

(

JAN

OPEN AT
BEGINNING
OF MONTH

413

NEW CASES
RECEIVED

9

HC

6

FTCA

1

BIVENS

0

FTCAI

1

FEB

MAR

APR

MAY

JUN

JUL

AUG

SEP

OCT

NOV

BIVENS

"

OTHER

l'

CLOSED

9

PENDING AT
END OF
MONTH

413

LITIGATION
REPORTS
COMPLETED

4

.

MISCELLANEOUS:

Phoenix area newspaper article reports waste dump for city to be
located at a site other than land adjacent to Fcr Phoenix.
Land
adjacent to Fcr was one of previously proposed sites.

Fifty RDAP petitions previously reported as dismissed
have been consolidated and appealed to Ninth Ci r cuit under
Boehner v. Hood, 02 - 35025 .

4417

DEC

Assistant Regional Counsel Valerie stewart met with u.s. Fish and
Wildlife Branch Chief to discuss matters regarding the Endangered
Species Habitat and environmental rehabilitation of land encompassing
USP Atwater.

C.:.:.'

("

4418

Joyce Zoldak - 01-2002.wpd

Page 1

(
u.s. Department of Justice
Federal Bureau of Prisons
Dublin, Califomia 94568

February 5. 2002

MEMORANDUM FOR CHRISTOPHER ERLEWINE, ASSISTANT DIRECTOR/
GENERAL COUNSEL, GENERAL COUNSEL & REVIEW
FROM:
SUBJECT:

Harlan W. Penn. Regional Counsel
Monthly Report for January 2002
LITIGATION

NEW CASES
!
j

Collier v. LeBlanc (SOC) Petition for Writ of Habeas Corpus claiming unlawful.detention
on account of allegedly improperly executed arrest warrant by U.S. Parole Commission.
Also seeks order preventing transfer out of district during pendency of petition.
Foster v. Hood (SHE) Petition for Writ of Habeas Corpus contesting discipline
sanctions.
Hunter v. Herrera (LOM) Petition for Writ of Habeas Corpus contesting DHO matter.
Jiminez v. United States (LOM) FTCAlBivens cor:nplaint alleging dental malpractice.
McDavid v. Hood (SHE) Petition for Writ of Habeas Corpus contesting computation of
good conduct time.
.
Rhonemus v. Warden (LOM) Petition for Writ of Habeas Corpus contesting Inmate
Financial Responsibility Program.
Smith v. Jusino (SET) Petition for Writ of Habeas Corpus seeking credit for time spent
during court order drug rehabilitation and CCC.
Woods v. United States (LOM) FTCA complaint alleging medical malpractice resulting
in loss of eyesight.
SIGNIFICANT DEVELOPMENTS/APPEALS

4314

C
i

Joyce Zoldak - 01-2002.wpd

Page 2

(
Boehner v. Hood' RDAP cases reported dismissed in December 2001 report have been
appealed to the Ninth Circuit. Motion to consolidate has been granted and case is
captioned Boehner v. Hood, 02-35025, (lead case). Court imposed expedited briefing
schedule with oral argument slated for April 8, 2002, in San Francisco.
Carter v. United States (TRM) FTCA complaint alleging medical malpractice at FCI
Terminal Island and MCC Chicago dismissed with prejudice for failure to file
administrative claim within two years of alleged event. Plaintiff has filed notice of
appeal.
Castillo v. United States (SDC) Settlement conference held in medical malpractice
case. Plaintiff insisted on sentence reduction as part of agreement. Court clearly
stated that was not an option.
Felix-Perez v. Acosta, et al. (SDC) Court dismissed former Warden Lathers with
prejudice as part of her immunity motion. As a result, plaintiff's counsel decided against
pursing any claim against current warden in Bivens case alleging sexual assault and
battery.
Flowers v. United States and Flowers v. Finnerty, et al. (LOM) FTCA and Bivens
complaints alleging assault, battery and constitutional violations. Settlement reached
and filed. Dismissals of both actions filed January 23,2002.

c.

Friedman v. U.S. Bureau of Prisons (PHX) District Court approved'S500settlement of'
Privacy Act lawsuit; ,
Jones-Heim v. Reese (DUB) District judge found in favor of defendants in Bivens
complaint regarding DHO matter and summary judgement was issued in their favor.
Lopez v. United States (LOS) FTCA complaint involving inmate on inmate assault
scheduled to start trial February 5,2002.
Moreland v. Rothstein, et al. (SET) Inmate voluntarily dismissed Bivens complaint
against Judge. AUSA, and Warden alleging denial of access to courts.
Murphy v. Hood (SHE) Ninth Circuit affirmed denial of RDAP petition for Writ of Habeas
Corpus which sought early release notwithstanding prior escape rendering inmate
ineligible for CCC placement.

Sherrod v. Rardin (LOM) District Court granted Petition for Writ of Habeas Corpus
complaining of DHO matter after inmate appealed original dismissal to Ninth Circuit.
Stewart v. Adams (LOM) BivenslFTCA complaint alleging deliberate indifference and
medical negligence. Settlement reached as to FTCA case during settlement
conference. Bivens action to be dismissed when FTCA settlement is filed.

4315

Joyce Zoldak -

~1-2002.wpd

Page 3

Wharton v. Hood (SHE) Ninth Circuit affirmed lower court's dismissal of Petition for Writ
of Habeas Corpus arising from DHO action revoking 13 days of good conduct time.
Appeal determined moot as inmate had been released.

CRIMINAL CASE TRACKING
Criminal Cases
JAN

Referred
Accepted
Declined
Pending
Decision

FEB

MAR

AP

MA

R

Y

JUN

JUL

AU

SE

OC

G

P

T

NOV

DEC

10
1

12
139

NEW INFORMATION ON ACTIVE PROSECUTIONS
MURDER

u.s. v. Figueroa (LOS) Trial for three inmate defendants charge with murder, assault with
the intent to murder, and assault with intent to do bodily harm scheduled for August 13,
2002. (Inmate victim subsequently died from injuries sustained in assault.)
ASSAULT

u.s. v.

Guyton (LaM) Sentencing hearing continued to February 11, 2002.

U.S. v. Rios-Escobar (VIM) Inmate on staff assault accepted for prosecution. Inmate stuck
lieutenant in face and while being escorted and in restraints, inmate kicked an escorting
officer in chest.

I.

(
(.

I

i

I

I
I

ESCAPE
U.S.

v. Eaton (SHE) Escapee from FPC Sheridan pled guilty to charge January 31, 2002.

U. S. v. Fischer (SHE) Inmate escape during transfer to CCC recently apprehended and in
custody in Arkansas. Prosecution to be effected in Eastem District, Arkansas.
U.S. v. Little (SET) Seattle CCC escapee pled guilty to escape and sentenced to 12 month
consecutive term of incarceration.
U.S. v. Mayhorn (PHX) CCC escape indictment dismissed for failure to prosecute. USAO
may refile case.

4316

I,

Joyce Zoldak - 01-2002.wpd

----_..

Page 4

__. _ - - - - - - - - - - - - - - - - - - - - -

(
Hand made clothing and mask designed for use in escape were discovered in two man cell
at FCI Phoenix. USAO declined prosecution of inmate accepting responsibility for items
due to length of his current sentence.

CONTRABAND

u.s. v. Davis (LOS) Inmate sentenced to 18 months with three years supervised release for
possession of amphetamines and marijuana.
u.s.

v. Exum (TRM) Trial for inmate possessing heroin continued.

U.S. v. Parrado-Herrera (PHX) Trial previously set for January 8 has been postponed.

SEX OFFENSES
State of California v. Gaines Former FCI Phoenix inmate received 20 year sentence for
sexual contact with minor. Facts of the offense were discovered through ITS at FCI
Phoenix. Inmate completed federal sentence at USP Lompoc December 26, 2001.
U.S. v. Mosequeda-Gonza/ez (PHX) USMCFP report indicates inmate is capable of
standing trial for sexually assaulting female officer. Inmate forcefully attempted to kiss staff
while straddling and simulating sex act with officer. Inmate made admission that he was
attempting to rape the officer.

(

U.S. Attorneys Office has agreed to reconsider possible prosecution involving sexual
contact with inmate by two former FCI Phoenix staff members.

STATISTICS
.,

ADMINISTRATIVE REMEDIES
JAN
FEB
MAR
APR
103

,

MAY

JUN

JUL

FREEDOM OF INFORMATION/PRIVACY ACT:
JAN FEB MAR AP
MA JUN
R
Y
45
RECEIVE
D
34
CLOSED
PENDING 31
6·
30 DAYS
0
6
MONTHS

(

4317

AUG

JUL

AU
G

SEP

SE
P

OCT

OC

T

NOV

NOV

DEC

DEC

Page 5

Joyce Zoldak - 01-2002.wpd

APPEALS

I~

2

*Waiting for records from Archives, not considered overdue.

NUMBER OF FOIIPAPENDING:

AT
W
0

SAF SO
C

SET SH
E

TCI

X
3

5

1

2

DU
B

HO
N

NEL PH

M

5

2

0

1

LO

3

3

TCN

TR

VIM OTHER

M

0

2

1

3

OC
T

NO
V

DEC

ADMINISTRATIVE TORT CLAIMS

JAN FEB MA
R

APR

JUN JUL AU
G

MA
Y

SE
P

26
RECEIVED
34
CLOSED
RECONSIDE 0
R
109
PENDING
OVER &
5
MONTHS
Tort Claim Investigations Over 60 Days:

DU
B

LOF LO

0

0

M
0

SAF SO
C

SET SH
E

TCI

TC
N

TR
M

VIM TOTAL

X
0

0

0

0

0

0

0

0

0

AP
R

MA

JUN JUL AU
G

SE
P

OC
T

NO
V

DEC

LO
S

NEL PH

0

0

0

('

....

LITIGATION:

JAN FEB MA
R

413
OPEN AT
BEGINNING
OF MONTH
NEW CASES 9
RECEIVED
HC
6

FTCA

1

BIVENS

0

FTCAI
BIVENS

1

Y

1
Fifty RDAP petitions previously reported as dismissed have been
consolidated and appealed to Ninth Circuit under Boehner v. Hood,

02-35025.

4318

'
i(

Joyce Zoldak - 01-2002.wpd

Page 6

- - _ ..... - ---

(
OTHER

11

CLOSED

9

PENDING
AT END OF
MONTH
LITIGATION
REPORTS
COMPLETE
D

413

"----."

4

MISCELLANEOUS:
Phoenix area newspaper article reports waste dump for city to be located at a site other than
land adjacent to FCI Phoenix. Land adjacent to Fcr was one of previously proposed sites.
Attorney Advisor Matt Carney met with Deputy Criminal Chief. USAO. Phoenix. to. discuss
prosecution of CCC escapes and drug introduction cases.
USP Atwater received their initial group of designated. high security inmates. This institution is
handled by the WXR CLC.
Assistant Regional Counsel Valerie Stewart met with U.S. Fish and Wildlife Branch Chief to
discuss matters regarding the Endangered Species Habitat and environmental rehabilitation of
land encompassing USP Atwater.

I.

,

I,

(

Fifty RDAP petitions previously reported as dismissed have been
consolidated and appealed to Ninth Circuit under Boehner v. Hood,
02-35025.

4319