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

February 5, 1999

MEMORANDUM TO CHRISTOPHER ERLEWINE
ASSISTANT DIRECTOR/GENERAL COUNSEL

FROM:

SUBJECT:

Harlan W. Penn, Regional Counsel
Monthly Report for January, 1999

LITIGATION
NINTH CIRCUIT MATTERS:

Ballou v. Perrill, (SET) 9·~· Circuit Respondent/Appellee's Brief
filed January 25, 1999.
DAP appeal involving ineligibility based
on a prior bank robbery conviction.
Petitioner claims staff
verbally informed him of his eligibility prio~ to entering the
program and BOP subsequently applied § 550.58, revoking his
eligibility.
Blue v. Bailey, (SAF)
Habeas petition seeking presentence
credit. On December 8, 1998, case was dismissed, but appealed by
the inmate to the 9::-· Circui t Court of Appeals.

u.s.

v. Gibson, (WRO)
~
Circuit Court of Appeals unpublished
opinion upholds BOP.
Inmate filed Mandamus challenging BOP
decision to rescind 3621(e) early release due to prior robbery
conviction.
NEW 3621(e) CASES:
Darmiento v. Crabtree,
enhancement.

(SHE) Habeas DAP petition - two level

DeChambeau v. Crabtree,
enhancement.

(

Foley-Clark v. Reese,
enhancement.

(SHE) Habeas DAP petition - two level

(DUB)

Habeas DAP petition - two level

3349

Gray v. Crabtree,
of a firearm.

(SHE)

Grierv. Crabtree,
enhancement.

Habeas OAP petition -felon in possession

(SHE) Habeas OAP petition - two level

Gwyn v. Crabtree, (SHE) Habeas OAP petition - two level
enhancement and program failure.
Johnson v. Crabtree, (SHE) Habeas OAP petition - two level
enhancement.
Katz v. Crabtree, (SHE) Habeas OAP petition - two level
enhancement and §922g.
Lightbourne v. Crabtree,
enhancement.
Martin v. Campbell,
robbery.

(TAF)

Marshall v. Crabtree,
enhancement.
Ramos v. Crabtree,
enhancement.

Habeas OAP petition - unarmed bank

(SHE)

Habeas DAP petition - two level

(SHE) Habeas OAP petition - two level

Samaniego v. Crabtree,
enhancement.
Shibuya v. Reese,
enhancement.

(SHE) Habeas DAP petition - two level

(SHE) Habeas DAP petition - two level

(DUB) Habeas DAP petition - two level

Subia v. Crabtree, (SHE) Habeas OAP petition - two level
enhancement and §922g.
Warden v. Crabtree,
enhancement.

(SHE)

Williams v. Crabtree,
enhancement.

Habeas DAP petition - two level

(SHE) 1998 Habeas DAP petition - two level

Williams v. Crabtree, (SHE) 1999 Habeas DAP petition - two level
enhancement and §922g conviction.
Wills v. Crabtree,
enhancement.

(SHE)

Habeas DAP petition - two level

Young v. Crabtree,
enhancement.

(SHE)

Habeas DAP petition - two level

3350

(

NEW CASES/OTHER:

'"

Bowen v. Crabtree,
computation.

(SHE) Habeas petition challenging sentence

Davidson v. Bailey, (SAF) Habeas petition in which inmate is
challenging his criminal conviction via a Section 2241 claim.
Jones v. Hood, (TCN) Habeas petition challenging the USPC's
to rescind parole and upwardly depart from the
guidelines for drug use in prison (FCI Lompoc) and a pre-existing
history of heroin abuse, spanning almost 25 years.
Issues raised
are purely u.s. Parole Commission.
de~ision

Lund v. u.S. (SET)
FTCA action alleging injuries suffered from
an alleged slip and fall in the SHU shower.
Moore v. Crabtree, (SHE)
Habeas petition challenging sentence
computation and USPC action.
Reed v. I.R.S.,
{SHE}
Bivens action alleging various
constitutional violations including false imprisonment.
Resnick v. Adams, (LOM)
Bivens action alleging violation of
First Amendment rights.
Specifically, the inmate alleges that he
is not being provided a Kosher diet.
Resnick v. Adams, (LOM)
Bivens action alleging inadequate
medical treatment for a leg condition
Rutkowski v. Crabtree, (SHE) ,Habeas petition challenging
computation of sentence and USPC action.
Wharton v. Crabtree, {SHE} Habeas petition alleging staff
blocking access to the Courts.
SIGNIFICANT DEVELOPMENTS:
Allen v. Crabtree, (SHE) Court held that DAP staff determination
that inmate did not qualify for RDAP participation because there
was no corroboration of self-reported alcohol abuse violated Cort
v. Crabtree, 113 F3d 1089 (CA9 1997).
District Court ruled that
once inmate receives a provisional 3621 (e) release eligibility
determination BOP can not apply new program eligibility rules.
Betz v. Crabtree, (SHE)
On December 8, 1998, relying on Downey,
judge granted habeas petition by stating BOP may not use
sentencing enhancements of subsequent conviction to revoke
previous grant of DAP eligibility. The BOP had denied eligible

3351

status due to conviction of attempted escape and the offense
characteristics which included violence.
(Petitioner fled from
military police at high speed, threatened use of force against
police, rammed police vehicle and collided with civilian vehicle.
This provided five point sentence enhancement.)
Staff determined
this offense disqualified petitioner from CCC placement and was
rationale for denying eligibility. Respondent's Motion to Vacate
Judgement and Motion for Reconsideration of the Court's Opinion
and Order submitted December 18, 1998. Motion denied by court
January II, 1999.
Copeland v. Hood, (TCN) On December 3,-1998 Judge dismissed, with
prejudice, the habeas petition which sought reversal of
DHO
action and, restoration of forfeited good time, stemming from a
110 Refusing to Provide a Urine Sample.
Inmate claimed he
suffered from .. Shy Bladder", which the Magistrate apparently
adopted in issuing R&R to grant petitioner's relief.
Due to
significant correctional issues involved, FCI Tucson successfully
opposed the R&R.
Davis v. Perrill, (SET) Habeas petition alleging property was
improperly withheld when inmate was transferred from
FDC Sheridan to FDC SeaTac. Response filed on November 6, 1998.
On December 11, 1998, Magistrate Judge issued a Report and
Recommendation, recommending denial of Petitioner's motion for
preliminary injunctive relief, and petition for writ.
Hogan v. U.S., (SOC) FTCA action alleging retaliatory transfer.
Plaintiff agreed to stay the majority of their discovery requests
based upon defendant's intent to file motion to transfer case.
The motion to transfer should be filed by February 5, 1999 and a
heari~g on the motion is set for March 1, 1999.
Kurtz v. U.S., (SHE)
rTCA action alleging the BOP was negligent
in failing to prevent inmate from attempting to commit suicide by
hanging.
Inmate is permanently impaired and received
compassionate release on November 18, 1998. Trial was held
January 26 & 27, 1999. Judge ruled from the bench finding no
negligence on the part of BOP.
Manning v. U.S., (SHE) FTCA action alleging the BOP was negligent
for failing to provide a ladder to climb onto the top bunk.
Plaintiff claims he fell and suffered head and neck injuries and
the BOP failed to provide adequate medical care. Trial was set
for January 25, 1999 but postponed until March 1999.
Mitchell v. USA, (PHX) FTCA action alleging assault and injury by
other inmates due to the BOP's failure to protect.
Judge has
advised the government to raise the discretionary function
exception in this case.
Plaintiff has raised a failure to
protect.

3352

(

Mota v. U.S., (SOC)
FTCA action regarding alleged injury during
escorted trip.
Pre-Trial Conference was held on November 9,
1998. Mandatory settlement conference held on December '2, 1998.
The bench trial originally set for January 26, 1999 gave way to
settlement negotiations. A settlement of $7,500 was reached on
the eve of trial.
Nelson v. Crabtree, (SHE) Court holds that BOP cannot apply
rule/program change after the provisional eligibility for 3621(e)
release is made, to do so violates Cort v. Crabtree. Nelson
received a two point enhancement under USSG 2101.1 and upon
implementation of 5162.04, his provisional eligibility for early
release was overturned.
District court found no likelihood of
success on appeal to warrant stay.
Parmelee v. Benov, (SOC) Bivens action.
Rejection of "How to Win
Prison Disciplinary Cases." Parties ordered to designate their
respective experts in writing by February 19, 1999. Supplemental
or second date for designation of experts March 5, 1999.
Romero v. BOP, (PHX)
FTCA action for wrongful death by hanging.
A trial date of July 27, 1999 has been set.
Smith v. BOP, (PHX)
On January 7, Judge dismissed all
allegations in this action except for a claim involving the
improper opening of legal mail by staff. There are two remaining
BOP defendants.
CRI~NAL

CASE TRACKING

Criminal Cases
JAN

Referred
Accepted
Declined
Pendinq
·Decision

FEB

MAR

APR

MAY

JON

JUL

AUG

SEP

OCT

NOV

29
1
15
13

.

Declined Cases:

(DUB)
Inmate who worked in laundry received check for deposit
into trust fund account from attorney of a second inmate for
payment of the second inmate's "laundry account" that was
supposedly owed to the first inmate who worked in the laundry.

\""

(PHX)

DEC

Inmate assaulted an inmate on the Recreation Yard.

3353

(

(PHX) Female inmate died at a local hospital of unknown reasons.
The SIS referred and declined after the results of autopsy
indicated inmate died of natural causes.
(PHX)
Inmate assaulted another inmate and sustained numerous
contusions to his face.
(SAF)
Inmate intentionally brushed up against a Food Service
Staff Member.
(SAF)
Inmate was intoxicated while on furlough status to a
halfway house.
(SAF)

Two inmates were involved in a slap and push incident.

(SET)
Inmate assaulted another inmate. AUSA declined to
prosecute in favor of administrative disciplinary proceedings.
(SET)
Inmate assault on Staff. AUSA declined to prosecute in
favor of administrative disciplinary proceedings.

(
"

(TeN)
ISO discovered Marijuana on an inmate, who had just been
received from INS on illegal re-entry charges. The matter was
referred for prosecution on but was declined, due to the small
quantity of narcotics involved.
(TCN)
Inmate was found to be in an unauthorized area. As Senior
Officer was attempting to escort the inmate to the Lieutenant's
Office, inmate pushed past the officer striking him on the left
arm with his elbow. Officer received no injuries.
(TCN)
Senior Officer observed an inmate sticking another inmate
in the chest with a homemade syringe. The syringe contained a
liquid substance, which tested positive for amphetamine (crank).
(TeN)
Senior Officer was removing hand restraints from inmate in
SHU when inmate pulled away, causing strained muscles of
Officer's fingers.
(TeN) Inmate was physically assaulted by 4 inmates in the Unit
Dorm while asleep in his bunk. The victim was treated for
multiple abrasions/contusions. Two of the four assailants tested
positive for the use of intoxicants.
(TRM)
Inmate was found in possession of a minute amount of
heroin (minute amount).
Active Prosecutions:

". .

ASSAULT:

3354

(

u.s. v. Dahkoshay, (SHE) Inmate assaulted another inmate with a
weapon containing a razorblade. Victim's arm was severely cut.
Trial set for March 30, 1999.
u.S. v. Simmons, (LOM) Assault of a Correctional Officer that
occurred on December 14, 1997. On December 3, 1998, the
Defendant was found guilty of Assault of a Law Enforcement
Officer. Sentencing scheduled for February 22, 1999.
u.S. v. Wehmhoefer, (LOM) Assault of another inmate that occurred
on March 4, 1997. Trial scheduled for May 19, 1999.
ESCAPE:
u.S. v. Finkle, (LOM) Escape from the FPC in January of 1998.
Trial was scheduled for January 19, 1999. On January 15, 1999,
the U.S. Attorney's Office dismissed charges.
u.S. v. Lewis, (TeN)
Prosecution of inmate Lewis, currently at
FCI PHX, for soliciting drug abuse treatment records from outside
source to falsify, and falsifying records to document history of
substance abuse to support his application to the Bureau's RDAP
program for purpose of § 3621(e) early release eligibility.
Grand Jury Indictment was handed down on January 20, 1999,
charging Lewis with 2 Counts of Attempted Escape (TCN & PHX) , and
1 Count of Fraud.
u.S. v. Nikiasch, (LOM) Escape from the FPC in December of 1995.
Inmate pled guilty to one count of Escape from a Federal
Institution, one count of Possessing and or Passing Counterfeit
$100 Bills, and one count of Possessing over $5,000 in
Counterfeit Currency. Sentencing rescheduled for February 22,
1999.
BO~CIDE:

u.S. v. Green, (LOM)
Inmate indicted April 2, 1998 for murder
of SOS Scott Williams (2 counts) and assaults on four other
officers. On December 2, 1998, the Attorney General authorized
the USAO to seek the death penalty in this case. On December 10,
1998, the USAO filed the Notice of Intent to Seek the Death
Penalty. On December 15, 1998, a status conference was
scheduled, however, inmate Green refused to come out of his cell
to attend.
Defense Attorneys have made mention of possibly
requesting another trial continuance until August of 1999.

u.s.

v. Lindsey, (PHX)
November 1, 1997 murder of inmate
Jackson. Lindsey was indicted on September 8, 1998, made his
first appearance on October 22, 1998, and pled not guilty.
The court has scheduled a new trial date of March 10, 1999. The
defense has submitted a request to interview 14 inmate witnesses.
INTRODUCTION/POSSESSION OF CONTRABAND:
3355

u.s.

v. Reagor, (PHX) Inmate Reagor attempted to secrete a
balloon on the Recreation yard containing brown heroin. On
October 22, 1998 the u.s. Attorney's Office accepted for
prosecution.
PROPERTY: None
SEX OFFENSES:

u.s.

v. Secrease, (DUB) Former Correctional Officer pled guilty

to one count of Knowingly Engaging in a Sexual Act with a Ward
(Inmate) in violation of 18 U.S.C. 2243(b). Sentenced on January
15, 1999, to two months home confinement, 18 months probation and
$500.00 fine.
WEAPONS: None
••

STATXSTXCS

~~

ADMINISTRATIVE REMEDIES
JAN

FEB

MAR

APR

MAY

JUL

JON

AUG

SEP

OCT

NOV

DEC

80

(

FREEDOM OF INFORMATION/PRIVACY ACT:
APR MAY JlJN
FEB MAR
JAN
RECEIVED 27
24
CLOSED
19
PENDING
1
20 DAYS
6 MONTHS
APPEALS

JUL

AUG

SEP

OCT

NOV

DEC

0
0

FOI/PA PENDING MORE THAN 20 DAYS ON JANUARY 31, 1999:
BRN DUB LOF LOM LOS NEL PBX SAF SDC SET SHE
0
0
0
0
0
0
1
0
0
0
0

TAF

TCN

TRM

TOTAL

0

0

0

1

OCT

NOV

DEC

LITIGATION:
JAN

(

OPEN AT
BEGINNING
OF MONTH
NEW CASES
RECEIVED
HC

26

FTCA

1

FEB

MAR

APR

MAY

JON

356

30

3356

JUL

AUG

SEP

(

BIVENS

3

OTHER

0

CLOSED

3

.

PENDING AT
END OF
MONTH
LITIGATION
REPORTS
COMPLETED

383

29

ADMINISTRATIVE TORT CLAIMS
JAN
RECEIVED
CLOSED
RECONSIDER
PENDING
OVER 6
MONTHS

FEB

MAR

APR

MAY

JUL

JUN

AUG

SEP

OCT

NOV

DEC

30
31
1
95
0

(
t Cl a~m
'
Investigations Ove r 60 Days '
BRN DUB LOF LOM LOS NEL PHX SAF SDC
k

0

9

0

0

0

0

0

0

2

SET

SHE

TAF

TCN

I

0

5

0

l!

I

i
I

SCHEDULED LEAVE :

Annual Ref resher Training on 2 / :, 2 / 5 ,
A~n~a~

Refresher Training du=ina

rain i~9

A~~~a:

on

?=e - sen~encing

l ea ve o n : / 1 -

Issues

(h~

h" '

~~~

~.

3 and Annua:

(
Annual

Refresher

3357

Training

2/16 - : - .

TRM I TOTAL
! '

I

C"

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

March 1, 1999
MEMORANDUM TO CHRISTOPHER ERLEWINE
ASSXSTANT DIRECTOR/GENERAL COUNSEL

FROM:

SUBJECT:

Harlan W. Penn, Regional Counsel
Monthly Report for February, 1999
LITIGATION

NEW 3621 (e) CASES:

Castillo v. Crabtree,
Gonzalez v. Adams,
assault.

(SHE) DAP petition, INS detainer.

(LOM) DAP petition, prior conviction for

Gray v. Crabtree, (SHE) DAP' petition, 922(g) conviction and prior
conviction for aggravated assault.
Gregg v. Crabtree, (SHE) DAP petition, 922(g) conviction and two
point sentencing erihancement.
Knaeble v. Crabtree, (SHE) DAP petition, 922{g} conviction and
two point sentencing enhancement.
NEW CASES/OTHER:

Alfrey v. Crabtree, (SHE) Bivens action alleging staff failed to
protect inmate from an attack by another inmate which resulted in
inmate death.
Huss v. Crabtree, (SHE) Habeas petition challenging termination
of visi tation by inmate's wife.

(

Mixon v. Clark, (TRM) Habeas petition in which inmate wants jail
credit, but cannot receive it due to 18 USC 3585(b}.
Specifically, inmate alleges that state erred by not transferring
primary custody to the federal government, such that the state

3704

(
....,

sentence would have been concurrent to the federal sentence.
Instead, inmate first had to complete service of his state
sentenced before starting his federal sentence.
Vallier v. Clark, (TRM) Habeas petition in which inmate wants jail
credit applied to his old law sentence.
Inmate is at USP
Leavenworth, but filed his petition in the COCA before
transferring. AUSA is inclined to respond on the merits.
SXGNXFXCANT DEVELOPMENTS:

(

Betz v. Crabtree, (SHE) OAP petition, two-point enhancement. On
December 8, 1998, relying on Downey, judge granted habeas
petition by stating BOP may not use sentencing enhancements of
subsequent conviction to revoke previous grant of OAP
eligibility. The BOP had denied eligible status due to
conviction of attempted escape and the offense characteristics
which included violence.
(Petitioner fled from military police
at high speed, threatened use of force against police, rammed
police vehicle and collided with civilian vehicle.
This provided
five point sentence enhancement.)
Staff determined this offense
disqualified petitioner from CCC placement and was rationale for
denying eligibility. Respondent's Motion to Vacate Judgement and
Motion for Reconsideration of the Court's Opinion and Order
submitted December 18, 1998. Motion denied by court January 11,
1999.
Blum v. Hardin-Cassel, (PHX) Bivens action alleging
discrimination, denial of legal calls, and unjust sanctions. On
February 18, 1999, Judge dismissed defendant Hardin-Cassel but
did not dismiss Warden Floyd. Case will likely proceed to trial
on the issue of retaliation for filing previous lawsuits.
Trial
date not set.
Davis v. Perrill, (SET) Habeas petition alleging property was
improperly withheld when inmate was transferred from
FDC Sheridan to FDC SeaTac. On January 29, 1999, Judge adopted
the Magistrate Judge's Report and Recommendation, denying without
prejudice the motion for preliminary injunctive relief and
petition for writ of habeas corpus.
Hogan v. U. S., (SDC) FTCA action, retaliatory transfer. Plaintiff
agreed to stay the majority of discovery requests based upon
defendant's intent to file motion to transfer case. The motion to
transfer should be filed by February 5, 1999 and a hearing on the
motion is set for March 1, 1999.
Lindsey v. U.S., (PHX) Homicide trial. Trial date of May 12,
1999 set.
Lund v. U. S. , (SET) FTCA action, slip and fall in SHU shower.

3705

Answer filed on February 23, 1999.
Manning v. U.S., (SHE) FTCA action alleging the BOP was negligent
for failing to provide a ladder to climb onto the top bunk.
Plaintiff claims he fell and suffered head and neck injuries and
the BOP failed to provide adequate medical care. Trial was set
for January 25, 1999 but postponed until March 1999.
Mawhinney v. U.S., FTCA action, slip and fall from stool while
accessing top bunk.
Los Angeles USAO asked for $250,000
settlement authority; BOP authorized $100,000.
Plaintiff agreed
to accept $125,000 at settlement conference February 25, 1999.
That amount under consideration.
Miller v. Reese,
(DUB) OAP petition, two-point enhancement.
Order denying petition and judgment in favor of respondent
entered on November 16, 1998.
On January 21, 1999, the Warden
received correspondence which appeared to be an appeal.

(
"

Mitchell v. USA, (PHX) FTCA action alleging assault and injury by
other inmates due to the BOP's failure to protect.
Judge has
advised the government to raise the discretionary function
exception in this case.
Plaintiff has raised a failure to
protect.
Nadal v. BOP, (SAF) Bi Vens action alleging violation of First
Amendment Rights by selectively placing Greatest Severity Public
Safety Factor due to religious and political beliefs.
Dismissed
with prejudice on January 28, 1999. Inmate appealed to the Ninth
Circuit on January 29, 1999.
Nelson v. Crabtree, (SHE) OAP peti tion, two-point enhancement.
Court holds that BOP cannot apply rule/program change after the
provisional eligibility for 3621 (e) release is made, to do so
violates Cort v.
Crabtree.
Nelson received a two point
enhancement under USSG 2101.1 and upon implementation of 5162.04,
his provisional eligibili ty for early release was overturned.
District court found no likelihood of success on appeal to
warrant stay.
Nelson v. Lathers,
(SOC) Habeas petition, CCC inmate tested
positive for methamphetamine, returned to closer custody and lost
3621e date.
Judge released inmate on "appeal bond" after
indicating he believed inmate had been disciplined for use of
Vicks inhaler. Response filed by San Diego USAO, who appeared at
hearing on February 26, 1999. Court refused to return inmate to
custody. Awaiting written order.
Parmelee v. Benov, (SOC) Bivens action, rejection of "How to Win
Prison Disciplinary Cases."
Parties ordered to designate their
respective experts in writing by February 19, 1999. Supplemental
or second date for designation of experts March 5, 1999.

3706

Romero v. BOP, (PHX)
FTCA action, wrongful death by hanging.
trial date of July 27, 1999 has been set.

A

Smith v. BOP, (PHX) FTCA action, legal mail. On January 7, Judge
dismissed all allegations in this action except for a claim
involving the improper opening of legal mail by staff.
Two
remaining BOP defendants.
Troutt v. Adams,
(SAF) Bivens action alleging plaintiff was
subj ected
to
unnecessary
and
painful
rectal
examination.
Favorable Report and Recommendation issued by the Magistrate
recommending dismissal of this case on February 26, 1999.
CRIMINAL CASE TRACKING

Criminal Cases
Referred
Accepted
Decl.ined
Pending
Decision
(....

' ..... .

JAN

FEB

29
1
15
13

19

MAR

APR

MAY

.roN

JUL

AUG

SEP

OCT

NOV

DEC

4

16
28

Active Prosecutions:
ASSAULT:

u.s. v. Dahkoshay, (SHE)
Inmate assaulted another inmate with a
weapon containing a razorblade.
Victim's arm was severely cut.
Trial set for March 30, 1999.
u.S. v. Simmons, (LaM)
----------------occurred on December

Assault of a Correctional Officer that
14, 1997.
On December 3, 1998, the
Defendant was found guilty of Assault of a Law Enforcement
Officer. Sentencing rescheduled for March 15, 1999.

u.s. v. Wehmhoefer, (LaM) Assault of another inmate that occurred
on March 4, 1997. Trial scheduled for May 19, 1999.
ESCAPE:

u. s.

v. Lewis, (TCN) Prosecution of inmate for soliciting drug
abuse treatment records from outside source to falsify and
falsifying records to document history of substance abuse to
support his application to the Bureau's RDAP program for purpose
of § 3621 (e) early release eligibility.
Grand Jury Indictment
was handed down on January 20, 1999, charging Lewis with 2 Counts

3707

c,

of Attempted Escape (TCN & PHX), and 1 Count of Fraud.
u.s. v. Nikrasch, (LaM) Escape from the FPC in December of 1995.
Inmate pled guilty to one count of Escape from a Federal
Institution, one count of Possessing and or Passing Counterfeit
$100
Bills,
and one
count of
Possessing
over $5,000
in
Counterfeit Currency. Sentencing rescheduled for February 22,
1999.
BOMl:CIDE:

u.S. v. Green, (LaM) Murder of Scott Williams (2 counts) and
assaults on four other officers. Continuance signed by the
Judge, trial continued to October 19, 1999.
u.s. v. Lindsey, (PHX)
November 1, 1997 murder of inmate
Jackson. Lindsey was indicted on September 8, 1998, made his
. first appearance on October 22, 1998, and pled not guilty.
The court has scheduled a new trial date of May 12, 1999.
INTRODUCTZON/POSSESSION OF CONTRABAND:

u.s. v. Reagor, (PHX) Inmate Reagor attempted to secrete a
balloon on the Recreation yard containing brown heroin. Trial
date pending.
PROPERTY: None
SEX OFFENSES:

u.s. v. Hyson, (DUB)
Twenty-two count indictment returned
against former Correctional Officer at Dublin on February 17,
1999, for knowingly engaging in and attempting to engage in a
sexual act with a ward (inmate) in violation of 18 U.S.C. 2243(b)
(15 misdemeanor counts); knowingly engaging in sexua~ contact
with a ward in violation of 18 U.S.C. 2244 (a) (b) (2 misdemeanor
counts); knowingly and willfully providing false statements and
representations in a matter within the jurisdiction of an agency
of the United States in violation of 18 U.S.C. 1001 (1 felony
count); and willfully and knowingly stating and subscribing to
material matters which he did not believe to be true while under
oath (perjury) in violation of 18 U.S.C. 1621 (4 felony counts) .
Arraignment March 11, 1999.
WEAPONS: None
••

STATISTICS~·

3708

I 80

I 94

FREEDOM OF INFORMATION/PRIVACY ACT:
APR MAY JON
FEB MAR
JAN
38
RECEJ:VED 27
34
24
CLOSED
23
19
PENDJ:NG
3
1
20 DAYS
0
6 MONTHS 0
0
1
APPEALS

JOL

AUG

SEP

OCT

FOI/PA PENDING MORE THAN 20 DAYS ON FEBRUARY 28, 1999:
BRK DUB LOP LOM LOS NEL PBX SAP SDC SET SHE TAP
a
a
0
0
0
0
2
0
a
a
0
0
*Records for 3rd overdue

be~ng

retr~eved

TCN
0

NOV

Tm(

·0

DEC

TOTAL
2*

from another Reg10n

ADMINISTRATIVE TORT CLAIMS
JAN

FEB

MAR

APR

JON

MAY

39
RECEJ:VED
30
43
CLOSED
31
RECONSJ:DER
1
0
(•....
91
95
PENDJ:NG
0
OVER 6
2
MONTHS
Tort Claim Investigations Over 60 Days:
BRN DUB LOP LOM LOS NEL PBX SAF SDC

JUL

AUG

SEP

OCT

NOV

DEC

,'-'"

0

14

0

SET

SHE

TAP

TCN

TBM

TOTAL

0

0

0

0

0

0

0

12

0

0

0

26

JAN

FEB

MAR

APR

MAY

JON

JOL

AUG

SEP

OCT

NOV

DEC

356

383

LITIGATION:

(

OPEN AT
BEGJ:NNJ:NG
OF MONTH
NEW CASES
RECEJ:VED
BC

30

9

26

8

FTCA

1

0

3709

(

IBIVENS

3

1

OTHER

0

0

CLOSED

3

3

PENDING AT

383

389

29

7

END OF

MONTH
LITIGATION
REPORTS
COMPLETED

PERSONNEL:

WXR Legal Staff from DUB, LOS, TCN, PHX, SET, SDC, SHE, and the
Regional Counsel are attending National Legal Training for D~tention
Center Issues on Jekyll Island March 1 - March 5, 1999.

3710

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

April 8, 1999
MEMORANDUM FOR CHRISTOPHER ERLEWINE, ASSISTANT DIRECTOR/
GENERAL COUNSEL, GENERAL COUNSEL , REVIEW

Harlan W. Penn, Regional Counsel
Monthly Report for March, 1999

FROM:
SUBJECT:

LITIGATION
NEW 3621 (e) CASES:

Cervantes

v.

(SHE)

Hood

habeas

peti tion,

two-point

petition,

two-point

sentencing

DAP

enhancement case.
Curley

v.

(SHE)

Crabtree

DAP

enhancement.
•
Davis v. Ho.od (SHE) DAP habeas peti tion Felon in Possession of a

Firearm 18 U.S.C. 922(g) conviction.
Eckert v. Hood (SHE) DAP habeas petition Felon in Possession of a

Firearm 18 U.S.C. 922(g) conviction.
Fucci v.
Ihle (TRM) DAP petition, 18 USC 241 (conspiracy to
violate civil rights, underlying offense was cross-burning).
Gallardo

v.

Cobos

(ERN)

DAP

petition,

two-p~int

sentencing

enhancement.
~tchell

v. Clark (TRM) DAP petition, 922(g) conviction.

Meyers v. Campbell (TAF) DAP petition, prior assault conviction.
Mujahid v. Crabtree (SHE) DAP habeas petition Felon in Possession

of a Firearm 18 U.S.C. 922(g) conviction.
Southwick v.

Crabtree

(SHE)

DAP petition,

enhancement.

3748

two-point sentencing

Wharton v. Crabtree (SHE) DAP habeas petition
application of PSF and custody classification.
White v. Cobos (BRN) DAP petition,
two-point sentencing enhancement.
Yeager v. Hood (SHE)
aggravated assault.

DAP habeas

922(g)

also

including

conviction

petition prior

plus

conviction of

NEW CASES/OTHER:

Bartoli v. USA (SHE) FTCA action alleging staff negligence in
failing to use the proper paint on a curb.
Plaintiff slipped,
fell, and broke her hip.
Belasco v. Adams (SAF) Habeas petition in which inmate
challenging his criminal conviction through a 2241 filing.

is

Chasser v. Fitzpatrick (LOM) Habeas petition in which inmate
alleges he was denied an early release and CCC placement because
he is not eligible for parole as he is serving an old law
sentence.

Crooker v. Adams (LOM) Habeas petition in which inmate alleges
his release date has been illegally prolonged due to disciplinary
sanctions resul ting in loss of good time.
Inmate also alleges
the BOP is not offering him any prerelease opportunities such as
CCC placement.
Crow v. Department of Justice (PHX)
Bivens suit alleging
improper medical treatment of an ankle condition at· PHX and MIL.
Fottler v. Morton (NEL) Bivens complaint alleging exposure to
asbestos and deliberate indifference to serious medical risk.
Holland v. Hawk (SDC) Bivens complaint for replacement of
negligently filled prescription eyeglasses and delay in provision
of same after staff mailed his dark-tinted eyeglasses home.
Holland v. Lathers (SDC) Bivens complaint regarding loss of watch
. and demand for replacement from outside source.
Mainard v. Fi tzpatrick (LOM) Habeas peti tion in which inmate
alleges his due process rights were violated during investigation
of an incident report and that he was not permitted to address
his grievance through the Administrative Remedy Program.
(
"

Most v. Stratman (SDC) Bivens complaint alleging deliberate
indifference to medical needs (inmate alleged he developed carpal

3749

tunnel syndrome) when law library chairs were replaced.
Inmate
also complains about improper transfer out of Western Region and
subsequent inadequate medical care to include denial of leg
braces.
v. Warden Hayes (DUB) Inmate appeals District Court's
dismissal of Bivens case complaining of placement in Special
Housing Unit due to discipline charge which was subsequently
expunged.

Resnick

v. Hawk (SDC) Bivens complaint alleging retaliation,
threats, and wanton infliction of pain based on being required to
mail home legal papers, instructed to drop litigation, transfer,
security/custody scoring and housing,
the latter of which
resulted in alleged assault and rape.
Plaintiff also complains
of being ignored and retaliated against when he attempted to
report illegal drug activity at institution.
Robinson

Romanowski v.

Hawk

(TCI)

Habeas petition requesting order for 6

months CCC.
SIGNIFICANT DEVELOPMENTS:

c.

Atadero v. Bureau of Prisons (TRM) DAP habeas petition dismissed
with prejudice.
Inmate completed DAF in 1993 and contested
retroactive policy denying eligibili ty based on prior robbery
conviction.
v. Adams (SAF) Inmate is attempting to add Title VII
allegation regarding his removal from prison job.
Report and
Recommendation for dismissal on 03/22/99.

Belasco

Pontesso (PHX)
Habeas petition challenging DHO ordered
restitution, dismissed on 02/24/99.

Berry v.

Currier v. United States (DUB) First supplemental FTCA/Bivens
complaint
by six
employees
alleging TB
test
negligently
administered during pre- or post-employment screening.
Case
originally dismissed with instructions for claims to be pursued
first through FECA.

(SOC) Discovery on-going in
FTCA action alleging wrongful death and negligent treatment of
multiple health problems.
Estate of Crosser v.

United States

Pontesso (PHX)
On 03/19/99, Judge dismissed majority of
lawsuit except for allegations of denial of job and restriction
of legal materials. Judge seeks further input on issues.
O'Reilly v. Constance Reese (DUB) Adverse DAF decision finding
improper retroactive application of new Categorization of Offense
policy.
Petitioner released but motion for clarification or
Kalka v.

(
"

3750

order
(or appeal)
is anticipated considering court's failure to
consider
transi tional services requirement and dispari ty in
amount of sentence reduction.
other similar cases pending on
same issue.
Parmelee v. Benov (SDC) BIVENS complaint regarding rejection of "
How to Win Prison Discipline Cases",
mandatory settlement
conference postponed until 06/24/99.
Parmelee v. Perrill (SET) Access to court, retaliation complaint
wherein court permitted Bivens plaintiff to file second amended
complaint adding defendants and additional issues concerning
access to courts.

v. Uni ted states (DUB) FTCA re roller skating injury.,
Settlement being discussed due to discovery of additional prior
skating accidents which were brought to the attention of
administrators.
Saelee

United States v. Dahkowshay (SHE)

c.

Inmate assaulted another inmate
with a weapon containing a razor blade.
Trial began March 30,
1999 and lasted three days.
Inmate Dahkowshay was convicted on
two counts: assault with a deadly weapon and assault resulting in
serious bodily injury.
v.
us DOJ (SAF)
Former inmate argues his claim of
inadequate medical care in connection with a job-related injury
is not barred by Demko.
Vander

Zavala

v.

(DUB) DAP habeas petition concerning
Inmate has filed appeal.

Constance Reese

INS detainer dismissed.

CRIMINAL CASE TRACKING
tQ~~I.fi1:~~MI$.~••MM~lWl%ilMMlnt~Wfl~l~ll@~;~;l:l:lJ:l:~fr:l:l~i,~:;:l:~·~'~:j:l:j:j:~El:~:~:~:~:W~t:!:j'}l:\:~{\:tr,l$m:~;l{:~:li~:~~Wlj~t\lmtt:%M~~lMf&f:l~~1~Ml1:immM!@ltjjjfjl:l~iiljl~~iktt%M~rt~W:f~l~l~W.4t@.l@~
JAN
FEB MAR
APR MAY JON JUL AUG SEP OCT NOV
DEC

Referred
Accepted
Declined
Pending
Decision

29

19

22

1
15
13

4
16
28

0
16
32

Active Prosecutions:
(
\

ASSAULT:

United States

v.

assault

serious

with

(SHE) Inmate convicted 04/02/99 of
bodily injury and assault with deadly

Dahkoshay

3751

(

weapon.
Expected sentence range approximately 100
Teresa Cruse and stan Butterfield assisted at trial.
Uni ted States

v.

Sal

Lopiccolo

02/04/97
at
FCI
Lompoc.
continuation possible.

months.

(LOM) Inmate on inmate assault
05/18/99,
Trial scheduled for

united States v. Julian Lee Simmons (LOM) Inmate on staff assault
12/14/97 at USP Lompoc.
Defendant found guilty with sentencing
rescheduled for 05/10/99.
United States v.

(LOM) Inmate on inmate assault
Trial
scheduled
for
05/19/99,

Scott Wehmhoefer

03/04/97
at USP Lompoc.
continuation possible.

ESCAPE:
United States v. Richard Lewis (TCN) Grand jury indictment on
01/20/99, charging inmate with 2 counts of attempted escape and 1
count of fraud for soliciting drug treatment documents to support
history of substance abuse in order to benefi t from 3621 (e)
release.

c. .

United States v. Terrance Nikrasch (LOM) Inmate pled guilty to
one
count
each
of
escape,
possessing/passing
counterfeit
currency, possessing counterfei t currency over $S,OOO in case
ar~s~ng
from escape from FPC Lompoc in 12/95.
Sentencing
scheduled for 04/26/99.

HOMICIDE:
United States v. Roy Green (LOM) Trial continued to 10/19/99.
Defense counsel visited/inspected institution 03/04/99.
United

States

v.

Matt

Lindsey

(PHX)

Trial

rescheduled

for

05/12/99.

INTRODUCTION/POSSESSION OF CONTRABAND:
United States v. Reagor (PHX) Prosecution accepted on
attempting to secrete balloon of brown heroin.

inmate

PROPERTY: None
SEX OFFENSES:
United States v. Jon Hyson (DUB) Twenty-two count indictment
against former correctional officer alleging sex acts with
inmate, attempted sex acts, providing false information, and
perjury issued 02/17/99.
Arraignment postponed to unknown date

3752

in 4/99.

(~.

WEAPONS: None
....

STATISTICS··

'j!jlU.lf..iI1S~Wgmi_j)~lj)j~!i.~$.:::!:::
JAN
I FEB
-, MAR
APR
MAY

I

80

I 94

I.

1108_ L=~--=-J--

r JON

---I

.;: ~,t~.:·j/:r~j:~/t:·f::;-n\'n·~ i;~·;;~mH0 ~:j?~:~f:q:i/i !:r)i }}~~~/ ;X:m:l~j?jt~~:l:~!l;l;iIlHl~t;i~!i!~~~lI~~r:f:/! l}
JUL TAUG

I

SEP

r OCT

.

OPEN AT
BEGINNING
(

OF KOH'l'B
NEW CASES

[RECEIVED

, .....

I DEC

l

I

o

~~~illlli#0~ttNH:i::

NOV

o

15

··::·.::~~:i1i0!1tt~~~~

1~1~[~I~I~I~I~I~f~I~I~I~
356 1383 1389
30

9

19

3753

BC

26

8

16

I'TCA

1

0

1

BIVENS

3

1

2

OTllBR

0

0

0

CLOSED

3

3

10

PBHDING AT
mm 01'
MORTS
LITIGATION
REPORTS
COMPLETED

383

389

391

29

7

7

PERSONNEL:

Honors Attorney Ann Ma entered on duty at WXRO 3/14/99.

3754

(

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

May 11, 1999
MEMORANDUM FOR CHRJ:STOPHER ERLEWINE, ASSJ:STANT DJ:RECTOR/
GENERAL COUNSEL, GENERAL COUNSEL & REVIEW

FROM:
SUBJECT:

Harlan W. Penn, Regional Counsel
Monthly Report for April, 1999
LITIGATION

NEW 3621 (e) CASES:

Babcock v. Reese, (DUB) DAP petition challenging ineligibility of
year off due to two point enhancement for possession of a weapon
during instant offense.
Blair v. Hood, (SHE) DAP petition challenging ineligibility of
year off due to conviction of Felon in Possession of a Firearm,
18 U.S.C. § 922(g).
Broxson v. Hood, (SHE) DAP petition challenging ineligibility of
year off due to two point enhancement for possession of a weapon
during instant offense.
Johnson v. Hood, (SHE) DAP petition challenging ineligibility of
year off due to a two point enhancement for possession of a
weapon during instant offense.
Jones v. Hood, (SHE) DAP petition challenging ineligibility of
year off due to a two point enhancement for possession of a
weapon during instant offense.
Lightbourne v. Reese, (DUB) DAP petition challenging
ineligibility of year off due to a two point enhancement for
possession of a weapon during instant offense.
Lynch v. Hood, (SHE) DAP petition challenging ineligibility of
year off due to a two point enhancement for possession of a

3795

weapon during instant offense.
Taylor v. Reese, (DUB) DAP petition challenging ineligibility of
year off due to a two point enhancement for possession of a
weapon during instant offense.
Whipple v. Reese, (DUB) DAP petition challenging ineligibility of
year off due to a two point enhancement for possession of a
weapon during instant offense.
Yeager v. Hood, (SHE) DAP petition challenging ineligibility of
year off due to a history of aggravated assault.
NEW CASES/OTHER:
Butler v. Wallace, (LOM) Bivens action alleging due process
violations during a disciplinary hearing.
Coral v. Sanchez, (LOS) FTCA/Bivens complaint alleging the
defendants violated his Fifth, Sixth, and Eighth Amendment Rights
during his arrest and deliberate indifference to his medical
needs upon booking.

c.

Curtis v. Bailey, (TCN) Habeas petition in which inmate is
attempting to appeal his criminal conviction via a 2241 petition.
Leiphardt v. Clark, (TRM) Habeas petition alleging retaliatory
rewrite of an in'cident report in which the charges were upgraded.
Ordaz-Diaz v. Perrill, (SET) Habeas petition in which petitioner
claims he is entitled to prior custody from the date INS lodged a
detainer against him, even though he was in state custody at the
time.
The State eventually gave him credit for all time spent in
State custody.
Taylor v. Adams, (LOM) Habeas petition alleging improper
classification.
SIGNIFICANT DEVELOPMENTS:
Bilodeaux v. Fitzpatrick, (LOM) On March 30, 1999, the Court
dismissed the case stating that the BOP did not abuse its
discretion by its determination of ineligibility for early
release.
The petitioner filed a Notice of Appeal on AprilS,
1999, with the Ninth Circuit.

(,

Dawson v. Fitzpatrick, (LOM) The Court issued an order granting
the petitioner's habeas relief based upon the Downey and Gavis
decisions, ordering that the petitioner be deemed eligible for
sentence reduction under 18 U.S.C. §3261 upon his successful
completion of DAP. The BOP is in the process of requesting

3796

appeal of the decision.
Fischer v. Reno, (PHX) Former employee filed a case alleging
employment discrimination pursuant to the Rehabilitation Act.
Referred to LMR West.
Foley-Clark v. Reese, (DUB) Adverse action in companion case to
O'Reilly ordering one year sentence credit to inmate for improper
retroactive application of new Program Statement on
Categorization of Offenses.
Inmate's sentence was recomputed and
released from custody.
Hidalgo v. Perrill, (SET) Bivens action in which the Court
adopted the Magistrate's Report and Recommendation, granting
Defendant's motion for summary judgment.
LaBostrie v. Seifert, (LOS) Bivens complaint alleging the
defendants violated his Fifth and Fourteenth Amendment Rights
when he was denied access to the Visiting Room.
Judge granted
the government's motion for summary judgment and dismissed the
plaintiff's action with prejudice. Defendants Carlson, Seifert,
Vaughn, and Bryant were dismissed from the action for improper
service of process; defendant Morrison granted qualified
immunity.
Montano-Figueroa v. Crabtree, (SHE) Federal Public Defender's
Office petitioned u.S. Supreme Court for a writ of certiorari,
Supreme Court No. 98-8258. This case deals with the Inmate
Financial Responsibility Program.
O'Reilly v. Reese, (DUB) Adverse DAP decision finding improper
retroactive application of new Categorization of Offense policy.
Petitioner released. Other similar cases pending on same issue.
Parmelee v. Benov, (SOC) Bivens complaint regarding rejection of
How to Win Prison Discipline Cases". Mandatory settlement
conference postponed until June 24, 1999.
Parmelee v. Perrill, (SET) Access to court, retaliation complaint
wherein court permitted Bivens plaintiff to file second amended
complaint adding defendants and additional issues concerning
access to courts.
Rizyi v. Crabtree, (SHE) Habeas petition challenging Warden's
ability to impose restrictions on inmate-inmate correspondence.
Judge entered an adverse order that Petitioner should either be
allowed to correspond with his son (another inmate) or be given a
due process hearing challenging the reasons for the denial. The
Court allowed the BOP to file a responsive pleading addressing

3797

a

(

the Due Process issue.
Romero v. BOP, (PHX) A trial date of July 27, 1999, has been set
in this wrongful death FTCA case.
Saelee v. U.S., (DUB) FTCA action regarding roller skating injury.
Settlement being discussed due to discovery of additional prior
skating accidents.
Savocchio v. Crabtree, (SHE) Habeas petition in which inmate is
seeking protective custody status. Judge issued an Order
converting the habeas petition to a Bivens action. BOP has
requested the AUSA to file a Motion for Reconsideration.
Shibuya v. Reese, (DUB)
Previously reported DAP petition
challenging ineligibility of year off due to a two point
enhancement imposed at the time of sentencing for possession of a
weapon. Companion case to O'Reilly. Court noted that legal
issues were resolved in the O'Reilly case and ordered response to
present petition to establish a factual record about the inmate's
drug abuse program participation.

('"

Vander v. u.s. DOJ, (SAF) Former inmate argues his claim of
inadequate medical care in connection with a job-related injury
is not barred by Demko.
Villa-Curiel v. Floyd, (PHX) This case involving a request for DAP
credit for an inmate with a detainer was dismissed as moot on
April 26, 1999.
Vosburgh v. BOP, (SHE) Inmate seeking TRO preventing the BOP from
administering incorrect dosages of insulin.
Zavala v. Reese, (DUB) OAP habeas petition concerning INS
detainer dismissed. Inmate has filed appeal.
CRIMcrNAL CASE TRACKING
Criminal Cases
Referred
Accepted
Declined
Pending
Decision

(

~

RB

MAR

~R

29
1
15
13

19
4
16
28

22

18
1
11
35

0

16
32

~y

JON

Active Prosecutions:

3798

JUL

AUG

SEP

OCT

N~

DEC

(

ASSAULT:

u.s. v. Dahkowshay, (SHE) Inmate assaulted another inmate with a
weapon containing a razor blade. Trial began March 30, 1999 and
lasted three days. Inmate was convicted on two counts: assault
with a deadly weapon and assault resulting in serious bodily
injury.
u.s v. Hillard, (LOM) Case involves the assault of two
Correctional Officers on October 22, 1995, during the October
1995 disturbance. On March 15, 1999, inmate plead guilty to one
count of violating 18 U.S.C. §111 (a) (1), Assault on a
Correctional Officer. Sentencing is scheduled for June 7, 1999.
u.s. v. Lopiccolo, (LOM) Case involves the assault of another
inmate that occurred on February 4, 1997, at FCI Lompoc.
Although trial scheduled for May 18, 1999, expect a continuance.
u.s. v. Wehmhoefer, (LOM) Case involves the assault of another
inmate that occurred on March 4, 1997. Trial scheduled for
September 7, 1999.

c. .

u.s. v. Simmons, (LOM) Case involves the assault of a
Correctional Officer that occurred on December 14, 1997. On
December 3, 1998, the Defendant was found Guilty of Assault on a
Law Enforcement Officer. Sentencing scheduled for May 10, 1999.
ESCAPE:

u.s. v. Lewis (TCN) Grand jury indictment on January 20, 1999,
charging inmate with 2 counts of attempted escape and 1 count of
fraud for soliciting drug treatment documents to support history
of substance abuse'in order to benefit from 3621(e) release.
u.S. v. Nikrasch, (LOM) Case involves an escape from the FPC in
December of 1995. Inmate pled guilty to one cou~t of Escape from
a Federal Institution, one count of Possessing and/or Passing
Counterfeit $100 Bills, and one count of Possessing over $5,000
in Counterfeit Currency. Sentencing rescheduled for July 19,
1999.
BOMJ:C:IDE:

u.S. v. Green, (LOM) Continuance signed by the Judge trial
continued to October 19, 1999.

(

u.S. v. Lindsey, (PHX) Prosecution of inmate Lindsey, for
November 1, 1997 murder of inmate Bernard Jackson, (41722-008).
The court has scheduled a new trial date of June 29, 1999.

3799

(

rNTRODUCTION/POSSESSION OF CONTRABAND:

u.s. v. Reagor, (PHX) Prosecution accepted on inmate attempting
to secrete balloon of brown heroin.
PROPERTY: None
SEX OFFENSES:

u.s. v. Hawthorne, (DUB) Former Correctional Officer at Dublin
pleaded guilty to Knowingly Engaging in a Sexual Act with a Ward
(inmate) in violation of 18 U.S.C. 2243{b) (5 misdemeanors
counts) and Knowingly and Willfully Providing False Statements
and Representations in a Matter within the Jurisdiction of an
Agency of the United States in violation of 18 U.S.C. 1001 (1
felony count). Sentencing set for July 12, 1999.

(
~...

u.S. v. Hyson, (DUB) Twenty-two count indictment returned against
former Correctional Officer at Dublin on February 17, 1999, for
Knowingly Engaging in and Attempting to Engage in a Sexual Act
with a Ward (inmate) in violation of 18 U.S.C. 2243(b) (15
misdemeanor counts); Knowingly Engaging in Sexual Contact with a
Ward (inmate) in violation of 18 U.S.C. 2244(a) (b) (2 misdemeanor
counts); Knowingly and Willfully Providing False Statements and
Representations in a Matter within the Jurisdiction of an Agency
of the United States in violation of 18 U.S.C. 1001 (1 felony
count); and Willfully and Knowingly Stating and Subscribing to
Material Matters which he did not believe to be true while under
oath (perjury) in violation of 18 U.S.C. 1621 (4 felony counts).
Arraignment held on March 29, 1999. Trial setting hearing held
on April 26, 1999. Pretrial conference set for October 25, 1999.
Trial set for November 1, 1999.
WEAPONS: None

••

STATISTICS

~~

ADMINISTRATIVE REMEDIES
DR
FEB
~
~
94
108
91
80

I FREEDOM
RECEIVED

~Y

JUL

JON

AUG

SEP

OCT

N~

DEC

OF INFORMATION/PRIVACY ACT:
J.AN

FEB

MAR

~R

27

38

29

37

~y

JON

3800

JUL

AUG

SEP

OCT

~V

DEC

CLOSED
PENDING
20 DAYS
16 MONTHS
APPEALS

34
23
3
0
1

24
19
1
0
0

41

36

11

12

1
0

1

0
""l

1

~

FOI/PA PENDING MORE THAN 20 DAYS ON April 30, 1999:
SET SHE
BRN DUB LOF LOM I LOS NEL PHX 1SAF SDC
0
0
0
0
0
0
T0
0
1
0
10

TAF
0

TCN
0

TBM

0

TOTAL
1

OCT

NOV

DEC

ADMINISTRATIVE TORT CLAIMS
JAN

30
31
1
95
0

RECEIVED
CLOSED
RECONSIDER
PENDING
OVER 6
MONTHS

C
v

FEB
39
43
0
91
2

MAR

45
40
0
96
0

APR
38
38
1
97
3

MAY

JON

JUL

AUG

SEP

rt Claim Investigations Over 60 Days:
t

DUB
17

LOF
0

LOM
0

LOS
1

NEL
0

PBX
0

SAF

JAN

MAR

356

FEB
383

389

APR
391

SET
0

SHE

TAF

TCN

TRY

0

SDC
0

0

0

0

0

TOTAL
18

MAY

JON

JOL

AUG

SEP

OCT

NOV

DEC

LITIGATION:

OPEN AT
BEGINNING
OF MONTH
NEW CASES
RECEIVED
HC

30

9

19

16

26

8

16

14

FTCA

1

0

1

0

BIVENS

3

1

2

~

OTHER

0

0

0

0

CLOSED

3

3

10

10

PENDING AT
END OF
MONTH

383

389

391

397

'")

I

3801

C'

3802

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

June 9, 1999
MEMORANDUM FOR CHRISTOPHER ERLEWINE, ASSISTANT DIRECTOR/
GENERAL COUNSEL, GENERAL COUNSEL , REVIEW

Harlan W. Penn, Regional Counsel
Monthly Report for May, 1999

FROM:
StJB~CT:

LITIGATION
I.

(,..

CI~L

1.

LITIGATION
3621 (e) CASES

A.

NEW CASES

Ford v. Pontesso, (PHX) DAP petition in which inmate' was
determined to be ineligible for early release based on a twopoint Special Offense characteristic for possession of a weapon
during a drug offense.
Marguez-Navarette v. Perrill, (SET) OAP petition where inmate is
challenging the BOP's decision to deny him participation in the
Residential Drug Program. A response is due on or before June
14, 1999.
Harbaugh v. Hood, (SHE) DAP petition in which inmate was
determined to be ineligible for early release based on Director's
discretion for possession of a weapon during his instant offense.

3816

Moore v. Hood, (SHE) OAP petition in which inmate was determined
to be ineligible for early release based on his conviction for
being a Felon in Possession of a Firearm.
Sloan v. Hood, (SHE) OAP petition in which inmate was determined
to be ineligible for early release based on Director's discretion
for possession of a weapon during his instant offense.
B.

SIGNIFICANT DEVELOPMENTS/APPEALS

Babcock v. Reese, (DUB) Adverse action in companion case to
O'Reilly, dated April 29, 1999, ordering one year sentence credit
to inmate for improper retroactive application of new Program
Statement on categorization of offenses. Inmate's· sentence was
recomputed and she was immediately released from custody.
Muhammad, Jr. v. Adams, (LOM) 3621{e) case, two-point
enhancement. On March 25, 1999, the Magistrate issued an "adverse
Report and Recommendation (R&R) recommending that the habeas
petition be granted within 90 days of completion of DAP. On May
18, 1999, the Judge granted the R&R and ordered that within 90
days from the date of the Judgement, the BOP must determine
whether the petitioner should receive a sentence reduction,
subject to completion of the Drug Abuse Treatment Program.
(

Bilodeaux v. Fitzpatrick, (LOM) Petitioner filed a habeas action
seeking a one year reduction of his sentence pursuant to 18
u.s.c. § 3621(e) (2) (B). He has a conviction under 18 U.S.C.
§ 924(c) for use of a firearm during a drug trafficking offense.
On March 30, 1999, the Court dismissed the case stating that the
BOP did not abuse its discretion by its determination of
ineligibility for early release. The petitioner filed a Notice
of Appeal on AprilS, 1999, with the Ninth Circuit.
Dawson v. Fitzpatrick, (LOM) 3621(e) case based upon the Downey
and Gavis decisions. Magistrate ordered Petitioner should be
deemed eligible for sentence reduction upon successful completion
of DAP. The BOP is in the process of requesting appeal of the
decision.

,"
\

Allen v. Crabtree, (SHE) Inmate whose case is currently on
appeal in the United States Court of Appeals for the Ninth
Circuit, is no longer eligible to complete the Drug Abuse Program
(DAP). On May 19, 1999, "Mr. Allen received two disciplinary
reports; one for possessing unauthorized money, and the other for
possessing an unauthorized item. He was recommended for
disciplinary transfer on the basis of possessing an unauthorized
item. He is currently being housed in the Special Housing Unit
(SHU). Based on his conduct, inmate Allen has been designated as
DAP FAIL" and is currently ineligible to complete DAP.

3817

U

(

Bowen v. Crabtree, (SHE) Inmate whose case is currently on
appeal in the Ninth Circuit, is no longer eligible to complete
the Drug Abuse Program (DAP). The Del Norte County Sheriff's
Office lodged a detainer against inmate charging him with
burglary. Inmates with detainers lodged against them are
ineligible for placement in a community corrections center, and
are therefore unable to complete the Drug Abuse Program.
McLean v. Crabtree, (SHE) Federal Public Defender's Office filed
a Motion for Rehearing En Bane. (This motion includes the
following cases: Cruanas v. Crabtree, Court of Appeals No.
98-35689; Mendoza v. Crabtree, Court of Appeals No. 98-35762;
Saefong v. Crabtree, Court of Appeals No. 98-35766).
Appeal Memorandums have been filed and approved in the following
cases: Gregg v. Crabtree, CV-99-137-HA; Curley v. Crabtree,
99-226-HA; Gray v. Crabtree, CV-99-109-HA; Southwick v. Crabtree,
CV-99-227; Knaeble v. Crabtree, CV-99-138-HA.
Appeal Memorandums have been submitted, but not yet approved in
,the following cases: Gwynn v. Crabtree, CV-98-1622-HA and Mujahid
v. Crabtree, CV-99-199-HA.

( .....

2.

NON-3621(e) CASES

\,

A. New cases

Walker v. United States, (LOM) FTCA/Bivens action in which inmate
alleges that three magazines were lost due to BOP negligence.
Tort claim was denied on May 29, 1998.
Weaver v. Hood, (SHE) Bivens action claiming BOP staff
incorrectly concluded plaintiff was subject to "notification"
requirements for a conviction of a crime of violence pursuant to
18 U.S.C. § 4042.
Pauly v. Hood, (SHE) Habeas petition alleging violation of due
process when staff failed to respond to his administrative
remedies in a timely manner, resulting in Petitioner being unable
to appeal DHO hearing.
Evans v. Hood, (SHE) Habeas petition alleging PSI contained
inaccurate information (past conviction for assault with a
dangerous weapon), which adversely affected his custody
classification score.
B.

Significant Developments/Appeals

Fottler v. Morton,

(NEL) In 1994 several former inmates at FPC

3818

Nellis filed a hybrid FTCA/Bivens action seeking damages for
alleged exposure to asbestos. The plaintiffs appealed the
District Court's 1996 dismissal of the suit to the Ninth Circuit.
The Ninth Circuit remanded and the District Court allowed the
inmate-plaintiffs to file a Second Amended Complaint. Defendants
filed their renewed Motion to Dismiss/Summary Judgment on
May 24, 1999.
Parmelee v. Benov, (SOC) Plaintiff filed this Bivens action
seeking damages for an incident which occurred in 1995. Parmelee
is the author of a book entitled, "How to Win Disciplinary
Hearings". He sent a copy of his book and a magazine, uPrison
Legal News" to an inmate at MCC San Diego. BOP staff rejected the
publications, the result of which is this suit. A Mandatory
Settlement Conference has been scheduled for June 24, 1999.
Defendant's Opposition to Plaintiff's Motion for Summary Judgment
was filed May 7, 1999.

(
• \0,. . . . .

Hogan v. United States, (SOC) FTCA action in which plaintiff is
claiming that the BOP negligently transferred him to a high level
security institution. A Motion for Partial Summary Judgment will
be filed by the United States seeking dismissal of all claims
involving negligent transfer and the infliction of emotional
distress. If the government's motion is granted, remaining issues
will invoive failure to protect and inadequate medical care.
Depositions will begin in July/August .

3819

Savocchio v. Crabtree, (SHE) Habeas petition in which inmate is
seeking protective custody status. On April 20, 1999, Judge
Stewart issued an Order converting the habeas petition to a
Bivens action. Motion for reconsideration has been filed.
Rizvi v. Crabtree, (SHE) Habeas petition challenging Warden's
ability to impose restrictions on inmate-inmate correspondence.
On March 24, 1999, Judge Jones entered an adverse order in which
he decided Petitioner should either be allowed to correspond with
his son (another inmate) or be given a due process hearing
challenging the reasons for the denial. Warden Hood decided to
allow inmate Rizvi to correspond with his son at FCI Sandstone.
The paperwork has been sent to FCI Sandstone for their approval.
Vosburgh v. BOP, (SHE) Inmate seeking TRO preventing the BOP
from administering incorrect dosages of insulin. Inmate has
recently filed Requests for Admissions and an Order to Show
Cause.

c. .

Unger v. Gaines, (SAF) Inmate is alleging that he did not receive
proper dental care while in BOP custody. The attorney
representing Plaintiff claimed she did not receive a copy of the
motion to dismiss Defendant Saundra Gaines. Therefore, the court
is allowing Unger permission to file a pleading arguing why
defendant Gaines should not be dismissed from the lawsuit.
Vander v. DOJ, (SAF) Court granted the government's motion for
summary judgment and dismissed this case on the grounds that
Plaintiff's injury occurred at work and he could not file an FTCA
action outside the scope of. the Inmate Accident Compensation Act.
Belasco v. Adams, (SAF) This is a case in which Plaintiff
claimed the drug notification law violated ex post facto rules.
It was dismissed by the court on May 6, 1999.
Romero v. BOP, (PHX) A trial date of July 27, 1999 has been set
in this wrongful death FTCA case.
Shorter v.Rardin, (LOM) Inmate filed a habeas petition alleging
that a disciplinary ruling he received during a disturbance at
Terminal Island was inaccurate. On August 5, 1998, the Court
dismissed the case for failure to state a claim. In October of
1998, the inmate appealed the denial stating that the District
Court erred in not reviewing videotaped evidence. On May 18,
1999, the Ninth Circuit issued an order directing the BOP to
either expunge the disciplinary ruling and restore the inmate's
good time credits or to hold a new disciplinary hearing at which
the videotape evidence is considered.
Mawhinney v. U.S.,

(LOS) An FTCA personal injury claim, in which

3820

the plaintiff alleges that BOP staff were negligent in placing a
stool in his cell knowing that it would be used as a step stool
to assist him in ascending to his upper bunk. On May 4, 1999,
the parties stipulated to settle the case for $125,000, including
attorneys' fees and costs.
Montano-Figueroa v. Crabtree, (SHE) This case deals with the
Inmate Financial Responsibility Program. The Federal Public
Defender's Office petitioned the u.S. Supreme Court for a writ of
certiorari, Supreme Court No. 98-8258.
Nigro v. Wilson, (TRM) Order of Dismissal with prejudice entered
on April 21, 1999. Inmate alleged that he received a retaliatory
transfer to a high security facility.
Parmelee v. Perrill, (SET) Defendant's Motion for Summary Judgment
filed on May 20, 1999. Plaintiff alleges denial of his right to
access the courts in this Bivens action.
Romero v. BOP, (PHX) A trial date of July 27, 1999, has been set
in this wrongful death FTCA case.

(

Saelee v. U.S., (DUB) FTCA action regarding roller skating injury.
Settlement being discussed due to discovery of additional prior
skating accidents.
....

II .

CRDaNAL CASE TRACKING

Criminal Cases
Referred
Accepted
Dec1ined
Peneling
Decision

JAN

FEB

MAR

APR

MAY

29
1
15

19

22
0
16
32

18
1
11
35

21

13

4

16
28

JON

JUL

AUG

SEP

OCT

NOV

DEC

4

19
31

Active Prosecutions:
ASSAULT:

u.S. v. Dahkowshay, (SHE) Inmate assaulted another inmate with a
weapon containing a razor blade. Trial began March 30, 1999, and
lasted three days. Inrn~te was convicted on two counts: assault
with a deadly weapon and assault resulting in serious bodily
injury. Sentencing scheduled for June 4, 1999.
u.S v. Hillard, (LOM) Case involves the assault of two
Correctional Officers on October 22, 1995, during the October
1995 disturbance. On March 15, 1999, inmate plead guilty to one

3821

count of violating 18 U.S.C. §lll(a) (1), Assault on a
Correctional Officer. Sentencing is scheduled for June 7, 1999.
u.s. v. Lopiccolo, (LOM) Case involves the assault of another
inmate that occurred on February 4, 1997, at FCI Lompoc. Trial
scheduled for July 13, 1999.
u.S. v. Wehmhoefer, (LOM) Case involves the assault of another
inmate that occurred on March 4, 1997. Trial scheduled for
September 7, 1999.
u.S. v. Simmons, (LOM) Case involves the assault of a
Correctional Officer that occurred on December 14, 1997. On
December 3, 1998, the Defendant was found Guilty of Assault on a
Inmate was sentenced on May 13, 1999,
Law Enforcement Officer.
to 84 months, with 3 years of supervised release to follow.
u.S. v. Sandoval-Parra, (SAF) Inmate struck an officer with a
closed fist on May 30, 1999. Case has been assigned, but trial
has not been scheduled yet.

(

3822

ESCAPE:

(

u.s.

v. Lewis (TCN) Grand jury indictment on January 20, 1999,
charging inmate with 2 counts of attempted escape and 1 count of
fraud for soliciting drug treatment documents to support history
of substance abuse in order to benefit from 3621(e) release.

u.s.

v. Nikrasch, (LaM) Case involves an escape from the FPC in
December of 1995.
Inmate pled guilty to one count of Escape from
a Federal Institution, one count of Possessing and/or Passing
Counterfeit $100 Bills, and one count of Possessing over $5,000
in Counterfeit Currency.
Sentencing rescheduled for July 19,
1999.

BO~CIDE:

u.s.

v. Green, (LaM) Continuance signed by the Judge.
continued to October 19, 1999.

Trial

u.s. v. Lindsey, (PHX) Prosecution of inmate Lindsey, for
November 1, 1997 murder of inmate Bernard Jackson, (41722-008).
The court has scheduled a new trial date of June 29, 1999.
INTRODUCTION/POSSESSION OF CONTRABAND:

u.s. v. Reagor, (PHX) Prosecution accepted on inmate attempting
to secrete balloon of brown heroin.
u.s.

v. Berry, (PHX) Inmate received a visit on February 13,
1999. Based upon observations made at that time, inmate Berry
was placed in dry cell status. He passed a total of 13 balloons
containing marijuana. Case has been referred and accepted for
prosecution.

u.s. v. Salazar~Martinez (PHX) Inmate was observed acting
suspiciously in the visiting room on May 2, 1999. Based upon
review of the security tapes, inmate Salazar-Martinez was placed
in a dry cell. He passed 8 balloons; 5 contained marijuana and 3
contained methamphetamine. Case has been referred and accepted
for prosecution.
PROPERTY: None

3823

SEX OFFENSES:

u.s.

v. Hawthorne, (DUB) Former Correctional Officer at Dublin
pleaded guilty to Knowingly Engaging in a Sexual Act with a Ward
(inmate) in violation of 18 U.S.C. 2243(b) (5 misdemeanor counts)
and Knowingly and Willfully Providing False Statements and
Representations in a Matter within the Jurisdiction of an Agency
of the United States in violation of 18 U.S.C. 1001 (1 felony
count). Sentencing set for July 12, 1999.
u.S. v. Hyson, (DUB) Twenty-two count indictment returned against
former Correctional Officer at Dublin on February 17, 1999, for
Knowingly Engaging in and Attempting to Engage in a Sexual Act
with a Ward (inmate) in violation of 18 U.S.C. 2243(b) (15
misdemeanor counts); Knowingly Engaging in Sexual Contact with a
Ward (inmate) in violation of 18 U.S.C. 2244(a) (b) (2 misdemeanor
counts); Knowingly and Willfully Providing False Statements and
Representations in a Matter within the Jurisdiction of an Agency
of ~he United States in violation of 18 U.S.C. 1001 (1 felony
count); and Willfully and Knowingly Stating and Subscribing to
Material Matters which he did not believe to be true while under
oath (perjury) in violation of 18 U.S.C. 1621 (4 felony counts).
Arraignment held on March 29, 1999. Trial setting hearing held
on April 26, 1999. Pretrial conference set for October 25, 1999.
Trial scheduled for November 1, 1999.
U.s. v. Blansett, (PHX) Officer searching property of inmate
Blansett found photographs of nude children. Referred and
accepted for prosecution.
WEAPONS: None
~~

STATISTICS··

ADMINISTRATIVE REMEDIES
JAN

FEB

MAR

APR

MAY

80

94

108

91

31

AUG

JUL

JON

SEP

OCT

NOV

DEC

FREEDOM OF INFORMATION/PRIVACY ACT:
RECEIVED

CLOSED
PENDING
20 DAYS
6 MONTHS
APPEALS

(

JAN

FEB

MAR

APR

MAY

27
24
19
1

38
34
23
3

29
41
11
1

37
36
12

26
24
14
1*

1

a

a

0

a

0

1

1

2

JON

JUL

AUG

0

0

0

a

0

0

OCT

NOV

DEC

0
2

FOI/PA PENDING MORE THAN 20 DAYS ON May 31, 1999:
BBN DUB LOF LOM LOS NEL PBX SAF SDC SET SHE
0

SSP

0

3824

0

0

a

TAl'
0

TCN

1*

TBM
0

TOTAL

1*

*WAITING FOR RECORDS FROM ARCHIVES
(~

..

"

'ADMINISTRATIVE TORT CLAIMS
RECB:tVED

CLOSED
m£CONSIDER
PENDING
OVER 6
MONTHS

JAN

FEB

MAR

30
31
1
95
0

39
43
0
91

45
40
0
96
0

2

APR
38
38
1
97
3

MAY

JON

JUL

AUG

SEP

OCT

NOV

DEC

36
38
1
96
1

"Tort Claim Investigations Over 60 Days:
BRN DOB LOF LOM LOS NEL PBX SAF SDC
0
0
0
11
0
0
1
0
0

(

3825

SET
0

SHE
1

TAF
0

TCN
0

~

0

TOTAL
13

LITIGATION:
JAN

FEB

MAR

356

383

30

He

389

APR
391

MAY
372

9

19

16

14

26

8

16

14

9

!'TCA

1

0

1

0

0

BIVENS

3

1

2

2

5

OTHER

0

0

0

0

0

CLOSED

3

3

10

10

8

PENDING AT

383

389

391

397

378

29

7

7

16

13

OPEN AT
BEGINNING
OF MONTH
NEW CASES
BECEXVED

END 01'

MONTH
LITIGATION
BEPORTS
COMPLETED

(

3826

JON

JUL

AUG

SEP

OCT

NOV

DEC

(

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

July 13, 1999
MENORANDtJH FOR CBIUSTOPBER ERLEWINE, ASSISTANT DIRECTOR/
GENERAL COUNSEL, GENERAL COtJNSEL & REVIEW

Harlan W. Penn, Regional Counsel
Monthly Report for June, 1999

FROM:

SUBJECT:

LITIGATION

I.

c. .

CIVIL LITIGATION

1.

3621(e) CASES
A.

NEW CASES

Gardner v. Cobos, (BRN) OAP petition seeking release under
3621(e). Inmate has a two-point enhancement for possession of a
weapon.
Hunt v. Bailey, (SAF) OAP petition in which inmate is seeking
3621(e) sentence credit for completion of OAP. Petitioner has a
prior conviction for Robbery and is therefore not eligible for
the credit.
Woods v. Rivera, (SAF) OAP petition in which inmate is
challenging a guilty finding of use of alcohol at a halfway
house, return to closer custody, and loss of 3621(e) early
release. Inmate has not yet received his "in person" hearing at
FCl, Safford, so a motion to dismiss for ripeness was filed.

(

3839

Breen v. Hood, (SHE) DAP petition challenging determination of
ineligibility for early release pursuant to 18 U.S.C. § 3621(e).
Petitioner was determined to be ineligible for early release
based on his conviction for Bank Robbery, 18 U.S.C. § 2113(a),
and prior state convictions for Armed Robbery and Robbery with a
Firearm.
Furnas v. Hood, (SHE) DAP petition challenging determination of
ineligibility for early release pursuant to 18 U.S.C. § 3621(e).
Petitioner was determined to be ineligible for early release
based on Director's Discretion for possession of a weapon during
his instant offense.
Gauna v. Hood, (SHE) DAP petition challenging determination of
ineligibility for early release pursuant to 18 U.S.C. § 3621(e).
Petitioner was determined to be ineligible for early release
based on Director's Discretion for possession of a weapon during
his instant offense.
Johnson v. Hood, (SHE) DAP petition challenging determination of
ineligibility for early release pursuant to 18 U.S.C. § 3621(e).
Petitioner was determined to be ineligibl~ for early release
based on Director's Discretion for possession of a weapon during
his instant offense.

(

Martin v. Hood, (SHE) DAP petition challenging determination of
ineligibility for early release pursuant to 18 U.S.C.
§ 3621(e).
Petitioner was determined to be ineligible for early
release based on his conviction for being a Felon in Possession
of a Firearm, 18 U.S.C. § 922(g).
Nealy v. Clark, (TRM) Inmate alleges that his instant offense of
bank robbery is not a violent offense and that he should be
eligible for 18 U.S.C. § 3621(e) release.
B.

SIGNIFICANT DEVELOPMENTS/APPEALS

Jacks v. Crabtree, 114 F.3d 983, Supreme Court denied cert. Cite
as 118 S.Ct. 1196. This case upheld Director's discretion in use
of prior convictions as a basis for denying 3621(e) early
release. Also held there was no liberty interest in 3621(e)
release.
O'Reilly v. Reese, (DUB) Adverse action dated March 22, 1999,
ordering one year sentence credit to inmate for improper
retroactive application of new program statement on
categorization of offenses. Four companion cases to Q~Reilly and
this case are being closed since no appeal is planned.
(

Muhammad, Jr. v. Adams,

(LaM) 3621(e) case, two-point

3840

enhancement. On March 25, 1999, the Magistrate issued an adverse
Report and Recommendation (R&R) recommending that the habeas
petition be granted within 90 days of completion of DAP. On
May 18, 1999, the Judge granted the R&R and ordered that within
90 days from the date of the Judgement, the BOP must determine
whether the petitioner should receive a sentence reduction,
subject to completion of the Drug Abuse Treatment Program. On
June 11, 1999, recommendation for appeal sent to OGC.
Marquez-Navarette v. Perrill, (SET) Petitioner filed a habeas
petition claiming that he was not receiving necessary drug
treatment at Taft Correctional Institution. Magistrate Judge
recommended dismissal of the petition without prejudice, based on
Petitioner's request to voluntarily withdraw the petition.
District of Oregon DAP litigation - adverse decisions were
received in the following cases: Blair v. Hood, CV-99-484-HA;
Broxson v. Hood, 99-517-HA; Cervantes v. Hood, CV-99-404-HA;
Davis v. Hood, CV-99-405-HA; Eckert v. Hood, CV-99-403-HA;
Johnson v. Hood, CV-99-516-HA; Jones v. Hood, 99-518-HA; Lynch v.
Hood, CV-99-483-HA. Appeal Recommendations on all cases have
been submitted to OGC.
Williams v. Clark, (TRM) Received adverse Opinion and Order
concerning two-point weapons enhancement via Director's
Discretion. Appellate memo submitted to OGC.
Salsberry v. Clark, (TRM) Received adverse report and
recommendation concerning two-point weapons enhancement via
Director's Discretion. Appellate memo submitted to OGC.
Cuevas v. Clark, (TRM) Government received request from court to
respond to adverse opinion in Williams v. Clark matter,
referenced above.

(
3Ml

,,' ....

(,

NON-3621(e) CASES
A. New cases

Manning v. January, (LOM) Habeas corpus petition involving a
challenge to a DHO decision. Inmate made inappropriate comments
and handed a greeting card to a staff member, for which he
received an Incident Report.
Carson v. Hood, et al., (SHE) Habeas petition/Motion for
Injunctive Relief challenging the Bureau's determination of
ineligibility for placement in ICC due to conviction of Felon in
Possession of a Firearm, 18 U.S.C. § 922(g)using P.S. 5162.04, as
basis for programming decisions. Motion to Stay Surrender Date
(6/30/99) granted, pending outcome of habeas/motion for
injunctive relief.

(~

Bradley Holmes v. U.S.A., B.O.P., (SDC) FTCA case where inmate
claims to have undergone laminectomy surgeries of his lumbar
spine prior to incarceration. The inmate alleges defendants
failed to provide proper medical attention, rehabilitation and
restriction of activities such as physical therapy, examination,
medication, and proper accommodations (i.e. assignment to lower
bunk). A total of $250,000 in general damages is sought for
alleged severe and permanent injuries to the inmate's body,
nervous system and person.
Spindler and Nevell v. Mitchell, etal., (SHE) Pretrial detainees
filed a Bivens action challenging conditions of confinement at
the Detention Center, specifically, inmates being housed in
three-man cells for twenty hours per day.
Mason v. Horan, et aI, (TCN) Bivens action by pretrial detainee
alleging 8th Amendment and Due Process violations, stemming from
alleged inadequate medical care received at Fcr Tucson following
his arrest by a drug task force comprised of DEA Agents and
Cochise County Sheriff Deputies in which he received a gunshot
wound while trying to flee the scene. In addition to naming the
United States, DOJ, FBOP, Cochise County, and FCI Tucson, Mason's
attorney named FCI Tucson's Warden and Clinical Director, in their
official and individual capacities. Plaintiff's Amended Complaint
was received June 4, 1999.
Garofalo v. United States, (SAF/Nevada) Re-filing of FTCA suit
dismissed without prejudice by Order of District of Nevada in
April 1999, for failure to prosecute. Former inmate (by counsel)
alleges inadequate medical care for shoulder injury suffered
during BOP custody. Complaint seeks $300,000 in damages and
attorney fees.

3842

B.

Significant Developments/Appeals

July Trial Dates:
Manning v. United States, (SHE) FTCA action alleging negligence
on the part of the BOP for failing to provide him with a ladder
to climb onto the top bunk. Plaintiff claims he fell and
received head and neck injuries. Plaintiff also claims the BOP
failed to provide adequate medical care following his injury.
Trial is set for July 20, 1999.
Romero v. BOP, (PHX) A trial date of July 27, 1999, has been set
in this wrongful death FTCA case. Family of inmate who died at
Fcr Phoenix on October 2, 1995, is suing for failure to protect,
seeking $500,000 in damages. Inmate had been transferred to Fcr
Phoenix from Fcr Safford after notifying staff of his fear of
danger from other inmates. Romero repeated his concerns to staff
at PHX who provided single-cell and other appropriate
accommodations. Romero's death was ruled a suicide.
Other developments:
Erlin v. U.S. Parole Commission (WRO) Case involved the u.S.
Parole Commission aggregating a previous sentence for which the
petitioner was on parole with his current ten~year sentence.
Case closed via stipulated dismissal without prejudice on
May 20, 1999.
Dunn v. Saenz, et al., (DUB) Bivens action in which pretrial
inmate alleged that he had been placed in administrative
detention at the jail because he refused to sign a work waiver
form. Defendants' mot"ion for sununary judgment was granted via
order dated April 20, 1999. Being closed since no evidence to
date of appeal having been filed.

(
"'"

3843

(

Shorter v.Rardin, (LOM) Inmate filed a -habeas petition alleging
that a disciplinary ruling he received during a disturbance at
Terminal Island was inaccurate. On August 5, 1998, the Court
dismissed the case for failure to state a claim.
In October of
1998, the inmate appealed the denial, stating that the District
Court erred in not reviewing videotaped evidence. On
May 18, 1999, the Ninth Circuit issued an order directing the BOP
to either expunge the disciplinary ruling and restore the inmate's
good time credits or to hold a new disciplinary hearing at which
the videotape evidence is considered. The DHO held a
rehearing on June 17, 1999, at which the videotape was
considered.
The DHO determined that the videotape did not
provide any information that would exculpate inmate Shorter and
upheld the original finding of guilt and sanctions imposed.
Notah v. Bailey, (SAF) Habeas action where inmate is seeking
expungemerit of an Incident Report and six months placement in a
CCC.
Case dismissed on June 23, 1999.
Crosser, et al. v. United States, (SDC)
FTCA wrongful death case
alleges SDC medical staff provided inadequate medical care for
pre-trial detainee Wayne Crosser who died of heart failure on
September 30, 1996. Crosser had extensive history and recent
fo
art disease at time of commitment at MCC San Diego.

Most v.Stratman, et al., (SDC) This case involves allegations
that the inmate developed carpal tunnel syndrome, and received
inadequate medical care, etc. at MCC San Diego and FCI El Reno.
The U.S. Attorney's Office received (via regular mail) an Amended
Complaint on June 28, 1999.
Parmelee v. Benov, et a1. (SDC) Inmate Parmelee filed this Bivens
action, seeking damages and injunctive relief as a result of
rejection of his publication "How to Win Disciplinary Hearings",
sent to federal inmates in several institutions, including SDC.
The Court recently granted Defendant's Motion to Withdraw
Admissions Deemed AdIDitted and rescheduled the trial date and
certain pre-trial dates. Defendant's Confidential Settlement Brief
was received in chambers June 18, 1999, in which the government
sets forth the position that the d~fendant~ cannot
agree to a nationwide screening and delivery process for this
publication. A pre-trial conference is scheduled for
October 29, 1999, and the actual trial date has yet to be
announced.

(

Hogan v. United States, (SDC) In this FTCA case former inmate
Hogan seeks damages for alleged negligent transfer, housing,

3844

inadequate protection, improper medical treatment, etc. during
his federal incarceration. Discovery is ongoing in this matter,
50 witnesses have been identified and it is anticipated that many
of them will be deposed by the end of the year.
Holland v. Hawk, et al., (SDC) This case involved inmate Holland's
allegations of staff malice and spite when he was prohibited from
possessing a pair of sunglasses which were not medically
authorized. The inmate signed a voluntary dismissal of the case
on June 17, 1999. Staff will store the sunglasses in the inmate's
property and mail them to the inmate's designated facility.
Holland v. Lathers, et al., (SDC) Inmate Holland filed this suit
alleging staff negligence regarding the decision to disallow his
receipt of a watch from an outside source. The inmate signed a
voluntary dismissal of this action on June 17, 1999. Staff will
store the watch in the inmate's property and mail it to the
inmate's designated facility.

(

...

Rieke v. Hood, (TCN) Habeas petition seeking jail credit for time
spent in exclusive service of unrelated state sentence, as well
as for time on loan from state on federal Writ of Habeas Corpus
Ad Prosequendum. A Report and Recommendation (R&R) was written
on April 21, 1999, adopting our motion to dismiss. The District
Judge adopted the R&R and dismissed the petition with prejudice
on June 2, 1999.
Fazzini v. Hawk, et al., (LOM) On June 2, 1999, the Court of
Appeals affirmed the district court ruling affirming the denial
of habeas relief concerning conditions of confinement and a
prison disciplinary sanctions.
Hafner v. Hawk, et al., (LOM) On June 7, 1999, inmate Hafner
stipulated to the dismissal of the case with prejudice, each
party to bear its own fees and costs. The stipulation was lodged
with the Court on June 8, 1999, and filed on June 21, 1999.
Fottler v. Morton, (NEL) In 1994 several inmates filed a hybrid
FTCA/Bivens action seeking damages for alleged exposure to
asbestos at FPC Nellis. The plaintiffs appealed the District
Court's 1996 dismissal of the suit to the Ninth Circuit. The
Ninth Circuit remanded and the District Court allowed the
inmate-plaintiffs to file a Second Amended Complaint. Defendants
filed their renewed Motion to Dismiss/Summary Judgment on May 24,
1999, which included a demand for each plaintiff to notify the
Court of his current address (all have been released from
custody) and his intention to prosecute the 'lawsuit.
II.

\.

ClUMl:NAL CASE TBACKING

Criminal
DEC

3845

Referred
Accepted
Declined
Pending
I Decision

29
1
15
13

19
4

16
28

22
0
16
32

18
1
11
35

21
4

24
4

19
31

8
38

Active Prosecutions:
ASSAULT:

u.s. v. Sandoval-Parra, (LOM) Inmate struck an officer with a
closed fist on May 30, 1999. Case has been accepted for
prosecution, but no trial date has been scheduled yet.
u.S. v. Dahkowshay, (SHE) Inmate assaulted another inmate with a
weapon containing a razor blade. Inmate was convicted of Assault
with a Deadly Weapon and Assault Resulting in Serious Bodily
Injury. Sentence imposed: 84 consecutive months.
u.S v. Hillard, (LOM) Case involved the assault of two
Correctional Officers on October 22, 1995, during the October 1995
disturbance. On March 15, 1999, inmate plead guilty to one count
of violating 18 U.S.C. §111(a) (1), Assault on a Correctional
Officer. Hillard received a consecutive four month sentence on
June 4, 1999.
u.S. v. Lopiccolo, (LOM) Case involves the assault of another
inmate that occurred on February 4, 1997, at FeI Lompoc. Trial
scheduled for July 13, 1999.
u.S. v. Wehmhoefer, (LOM) Case involves· the assault of another
inmate that occurred on March 4, 1997. Trial scheduled for
September 7, 1999.
u.S. v. Sandoval-Parra, (SAF) Inmate struck an officer with a
closed fist on May 30, 1999. Case has been assigned, but trial
has not been scheduled yet.
u.S. v. Amaya-Jaquez, (TCN) Inmate assaulted three staff members
on May 6, 1999. The case has been accepted for prosecution, but
no trial date has been set.

3846

·

..
("

..APE:

U.S. v. Lewis (TCN) Grand jury indictment on January 20 1999
charging inmate wi th 2 counts of attempted escape and l' count' of
fraud for soliciting drug treatment documents to support history
of substance abuse in order to benefit from 3621(e) release.
U.S. v. Nikrasch, (LaM) Case involves an escape from the FPC in
December of 1995. Inmate pled guilty to one count of Escape from
a Federal Institution, one count of Possessing and/or Passing
Counterfeit $100 Bills, and one count of Possessing over $5,000 in
Counterfeit Currency. Sentencing rescheduled for July 19, 1999.
HOMICIDE:

U.S. v. Green, (LaM) Continuance signed by the Judge.
continued to October 19, 1999.

Trial

U.S. v. Lindsey, (PHX) Prosecution of inmate Lindsey for
November 1, 1997, murder of inmate Bernard Jackson. Trial
scheduled for June 29, 1999. Acquitted on July 9, 1999.
~ODOCTION/POSSESSION

(~

.

...."

OF CONTRABAND:

U.S. v. Reagor, (PHX) Prosecution accepted on inmate attempting to
secrete balloon of brown heroin.
u.S. v. Berry, (PHX) Inmate received a visit on February 13, 1999.
Based upon observations made at that time, inmate Berry was placed
in dry cell status. He passed a total of 13 balloons 'containing
marijuana. Case has been referred and accepted for prosecution.
u.S. v. Salazar-Martinez, (PHX) Inmate was observed acting
suspiciously in the visiting room on May 2, 1999. Based upon
review of the security tapes, inmate Salazar-Martinez was placed
in a dry cell. He passed 8 balloons; 5 contained marijuana and 3
contained methamphetamine. Case has been referred and accepted
for prosecution.
PROPERTY: None
SEX OFFENSES:

(,

U.s. v. Hawthorne, (DUB) Former Correctional Officer at Dublin
pleaded guilty to Knowingly Engaging in a Sexual Act with a Ward
(inmate) in violation of 18 U.S.C. 2243(b) (5 misdemeanor counts)
and Knowingly and Willfully Providing False Statements and
Representations in a Matter within the Jurisdiction of an Agency
of the United States in violation of 18 U.S.C. 1001 (1 felony
count). Sentencing set for July 12, 1999.

3847

u.s.

v. Hyson, (DUB) Twenty-two count indictment returned against
former Correctional Officer at Dublin on February 17, 1999, for
Knowingly Engaging in and Attempting to Engage in a Sexual Act
with a Ward (inmate) in violation of 18 U.S.C. 2243(b) (15
misdemeanor counts); ,Knowingly Engaging in Sexual Contact with a
Ward (inmate) in violation of 18 U.S.C. 2244(a) (b) (2 misdemeanor
counts); Knowingly and Willfully Providing False Statements and
Representations in a Matter within the Jurisdiction of an Agency
of the United States in violation of 18 U.S.C. 1001 (1 felony
count); and Willfully and Knowingly Stating and Subscribing to
Material Matters which he did not believe to be true while under
oath (perjury) in violation of 18 U.S.C. 1621 (4 felony counts).
Arraignment held on March 29, 1999. Trial setting hearing held on
April 26, 1999. Pretrial conference set for October 25, 1999.
Trial scheduled for November 1, 1999.
U.s. v. Blansett, (PHX) Officer searching property of inmate
Blansett found photographs of nude children. Referred and
accepted for prosecution.
WEAPONS: None
••

STATISTICS

~~

fADMINISTRATIVE REMEDIES

(.

I JAN

80

FEB

!mil

APR

laY

JON

94

108

91

31

129

AUG

JtJL

SEP

OCT

NOV

DEC

FREEDOM OF INFORMATION/PRIVACY'ACT:
RECEIVED

CLOSED
PENDING
20 DAYS
6 MONTHS
APPEALS

JAN

FEB

!mil

APR

!mY

JON

27
24
19
1

38
34
23
3

37
36
12
1

0
0

0

29
41
11
1
0
1

26
24
14
1*
0
2

32
31
15
0
0
3

1

0

2

JlJL

AUG

SEP

OCT

NOV

DEC

FOI/PA PENDING MORE THAN 20 DAYS ON June 30, 1999:
BItH

0

DUB

LOI'

LOM

LOS

NEL

PBX

SAF

0
0
0
0
0
0
*WAITING FOR RECORDS FROM ARCHIVES
0

SDC

SET

SHE

TAl'

TCN

TRY

TOTAL

0

0

0

0

0

0

0

AUG

SEP

OCT

NOV

DEC

(ADMINISTRATIVE TORT CLAIMS
(
\"

RECEIVED

CLOSED
RECONSIDER

JAN

FEB

MAR

APR

MAY

JlJN

30
31
1

39
43
0

45
40
0

38
38

36
38

1

1

35
48
2

3848

JlJL

I

PENDING

Tort Claim Investigations Over 60 Days:
BRN

0

DUB
2

LOF

LOM

LOS

0

0

0

JAN

SET

0

SDC
0

APR

MAY

JON

389

391

372

378

NEL
0

PBX

SAF

0

MAR

'rBN

TOTAL

0

TCN
0

0

4

SEP

OCT

NOV

DEC

TAF

2

SSE
0

JUL

AUG

LITIGATION:
OPEN AT

356

FEB
383

BEGINNING
01' MONTH
NEW CASES
RECEIVED
BC

30

9

19

16

14

15

26

8

16

14

9

11

!'TCA

1

0

1

0

0

2

BIVENS

3

1

2

2

5

2

OTHER

0

0

0

0

0

0

CLOSED

3

3

10

10

8

19

PBND:rNG AT
END 01'
KON'tB

383

389

391

397

378

374

LITIGATION

29

7

7

16

13

14

REPORTS

COMPLETED

(

3849

u.s. Department of Justice
Federa1 Bureau of Prisons
Dublin, California 94568

August 6, 1999
MBKORANDUM FOR CHRISTOPHER ERLEWINB, ASSISTANT DIRECTOR/
GENERAL COUNSEL, GENERAL COUNSEL & REVXEW

FROM:

SUBJECT:

Harlan W. Penn, Regional Counsel
Monthly Report for July 1999
LITIGATION

c.

1.

NEW CASES

(3621(e»

Earls v. Hood (SHE) DAP petition complaining of 3621(e)
ineligibility due to 2 point weapon enhancement.
James v. Hood (SHE) DAP petition complaining of 3621(e)
"ineligibility due to 2 point weapon enhancement.
Johnson v. Hood (SHE) DAP petition complaining of 3621(e)
ineligibility due to 2 point weapon enhancement.
Lohrey v. Hood (SHE) DAP petition complaining of 3621(e)
ineligibility due to 2 point weapon enhancement.
Maeby v. Clark (TRM) DAP petition complaining of 3621(e)
ineligibi~ity due to 2 point weapon enhancement.
Mankertz v. Hood (SHE) DAP petition complaining of 3621(e)
ineligibility due to 2 point weapon enhancement.
McGilvery v. Hood (SHE) DAP petition complaining of 3621(e)
ineligibility due to 2 point weapon enhancement.
Miller v. Fitzpatrick (LOM) DAP petition complaining of 3621(e)
ineligibility due to 2 point weapon enhancement.

3892

Richnback v. Fitzpatrick (LOM) DAP petition complaining of
3621(e} i~eligibility due to 2 point weapon enhancement.
Robinson v. Fitzpatrick (LOM) DAP petition complaining of 3621(e}
ineligibility due to 2 point weapon enhancement.
Ward v. Hood (SHE) DAP petition complaining of 3621(e)
ineligibility due to 2 point weapon enhancement.
Wilson v. Hood (SHE) DAP petition complaining of 3621(e}
ineligibility due to 2 point weapon enhancement.
2.

NEW CASES (OTHER)

Baker v. Clark (TRM) Inmate appealing to 9th Circuit the district
court's dismissal of habeas petition which complained of
inadequate medical treatment and which sought order barring
transfer to another institution.
Carter v. Department of Justice (SAF) Inmate seek's declaratory
relief alleging OOJ improperly classified him as Mexican, rather
than u.S. citizen.

C"........

Grant v. Ray (SAF) Inmate seeks mandamus relief for presentence
credit for time spent in state custody .
Gutierrez v. United States Bureau of Prisons (LOM) Bivens action
in which ~mate alleges inadequate medical treatment for a penile
wart.
Jackson v. United States (SET) Bivens/FTCA complaint alleging
denial of medication and specialists resulted in seizure.
Mason v. Horan (TeN) Bivens complaint by pre-trial detainee
alleging inadequate medical care.
Muhannad v. Adams (LOM) Bivens action in which inmate alleges
excessive use of force during a forced cell move.
Ralston v. Hood (SHE) Habeas petition challenging sanctions
(visiting restrictions) imposed by the OHO.
Rogers v. Lathers (SOC) Habeas petition seeking immediate release
from custody by contesting DHO finding of escape from half-way
house.
Wehmhoefer v. Seifert (LOS) Habeas petition seeking credit for
time spent in federal custody that allegedly is not being
credited now.

3893

t

3.

SIGNIFICANT DEVELOPMENTS/APPEALS

Alvarez v. David Rardin (LaM) Court dismissed the petition,
terminating case.
Bilodeaux v. Fitzpatrick (LaM) Court denied the petition.
Blum v. Floyd (PHX) A settlement conference has been scheduled
for 09/01/99. However, we do not have anything to offer to
settle this Bivens case.
Brown v. Fitzpatrick (LOM) Court denied the petition, terminating
case.
Carrington v. United States (LaM) Court dismissed the complaint
against one named defendant and summary judgment was granted in
favor of another and USA, terminating case.
,',p.-

Cooper v. Rardin (LOM) Court dismissed the petition, terminating
case.
Crawford El v Rardin (LOM) Appellate court dismissed inmate's
appeal of habeas petition dismissal.
Cuthair V,. Rardin (LOM) Court dismissed the petition for failure
to exhaust, terminating case.
Eduardo v. United States Probation (LOM) Court granted the BOP's
Motion for Summary Judgement and terminated case.
Enzor v. 'Janet Reno (SDC) Bivens action by former executive staff
member at FCI Tallahassee against several agency staff alleging
retaliation, racism, unfair labor practice, etc. MCC staff
member to be deposed August 19, 1999.
Estate of Wayne Crosser v. United States (SDC) US Attorney
cautiously entertaining settlement with opposing counsel in FTCA
actio,n and agency recorrunendation has been requested by USAO.
Ford v. Rardin (LOM) Court dismissed the petition, terminating
case.
Forgac v. Perrill, et ale (SET) Report and Recommendation filed
recommending grant of 'Defendants' Motion for Summary Judgment.
Garner v .•Adarns (LOM) Appeal of dismissed habeas petition seeking
entry into DAP is dismissed.

(

Gust Janis v. USA (LOM) Appellate Court affirmed the decision of
the District Court dismissing FTCA action.

3894

Iida v. Adams (LOM) Court dismissed the petition, terminating
case.
Janis v. United States Attorney (LOM) Inmate's appeal of decision
to deny return of confiscated materials was dismissed.
Lippert v. Halacha (LOM) Court dismissed the complaint,
terminating case.
Lippert V. Rardin (LOM) Court granted Bureau's Motion for Summary
Judgement except for FTCA claim which too was dismissed for
failure to exhaust. Case terminated.
Mitchell v. United States (PHX) Court dismissed action.
McConville v. United States (PHX) Dismissed for failure to
prosecute.
Most v. United States (SOC) Hearing in FrCA action set for August
9, 1999. Presently, Plaintiff has failed to perfect service
within the statutory time frame.
Nigro, Jr. v. Wilson (TRM) Court dismissed action.
Reddic v. USA, et al (LOM) Court denied the motion to vacate, set
aside or reduce sentence, terminating case.
Romero v. United States (PHX) Trial previously scheduled for
trial July 27 has been postponed indefinitely due to filing of
amended complaint.
Savocchio v. Crabtree (SHE) Court granted habeas petition
restoring good time taken in DHO Hearing.
(t

Stephens v. Adams (LOM) Court dismissed the petition, terminating
case.
Tavares v. Bureau of Prisons (LOM) Court terminated the case
without prejudice.
Tavares v. Rardin (LOM) Court dismissed the petition, terminating
case.
Ulep v. Rardin (LOM) Court dismissed the petition, terminating
case.
Walker v. Rardin (LOM) Appellate Court affirmed the decision of
the District Court.

3895

CRIMINAL CASE TRACKING
Criminal Cases

Referred
Accepted
Declined
Pending
Decision

JAN

FEB

MAR

APR

MAY

JON

JUL

29
1
15
13

19
4
16
28

22
0
16
32

18
1
11
35

21
4
19
31

22
4
11
38

16
4
9
41

AUG

SEP

OCT

NOV

DEC

Active Prosecutions:
ASSAULT:

United States v. Lopiccolo (LOM)
rescheduled for October 12, 1999.

(:~..

Inmate on inmate assault trial

United States v. Pedro Amaya-Jaguez (TCN) May 6, 1999, inmate on
three stst,f member assault accepted for prosecution.
Inj uries
were contusions and abrasions and one staff transported to
hospital due to shortness of breath after being kicked in ribs.
Although no weapon was involved, SIS Lieutenant was able to
convince the AUSA/FBI of the prosecutorial merit and importance
of this case to our agency for the deterrent effect to hopefully
limit future staff assaults.
ESCAPE:
United States v. Terrance Nikrasch (LOM) Sentencing for December
1995 FPC escape postponed until further notice.

BOlaC:IDE:
United States v. Roy Green (LOM) Pretrial hearing to
1999.
pending motions scheduled for September 13,
continued until February 15 or 22, 2000.
United States v. Matt Lindsey (PHX)
was returned on July 9, 1999.

discuss
Trial

Jury verdict of "not guilty"

INTRODUCTION/POSSESSION OF CONTRABAND: None
. PROPERTY: None
SEX OFFENSES:

(

Uni ted St.9tes

v.

Jon

Hyson

(DUB)

3896

Twenty-two

count

indictment

against former correctional officer at Dublin for sex offenses
and false statements.
Pretrial conference set for October 25,
1999. Trial set for November 1, 1999.

(

United States v. Donnell Hawthorne (DUB) After guilty plea to sex
offenses and
false
statements,
former
correctional
officer
sentenced to five month confinement with 3 years supervised
release, $225 special assessment and 400 hours community service.
WEAPONS: None
• .a~

STATISTICS

ADMINISTRATIVE REMEDIES
JAN

FEB

MAR

80

94

108

APR
91

MAY
31

JON

JUL

129

96

AUG

SEP

OCT

NOV

DEC

FREEDOM OF INFORMATION/PRIVACY ACT:
I
DCEIVED

CLOSED
PENDING
20 DAYS
6 MONTHS
APPEALS

JAN

FEB

MAR

27
24
19
1
0
0

38
34
23
3
0
1

29
41
11
1
0
1

APR
37
36
12
1
0

2

MAY
26
24
14
1*
0
2

JON

JUL

32
31
15
0
0
3

31
25
21
0
0
3

AUG

SEP

OCT

NOV

DEC

FOI/PA PENDING MORE THAN 20 DAYS ON June 30, 1999:
DUB LOI' LOM LOS NEL PBX SAl' I SDC
0
0
0
0
0
0
0
10
*WAITING FOR RECORDS FROM ARCHIVES

BRN
0

SET
0

SHE
0

TAl'
0

TCN
0

TRM

0

TOTAL
0

AUG

SEP

OCT

NOV

DEC

ADMINISTRATIVE TORT CLAIMS

RECE:IVED

\.

CLOSED
RECONSIDER

JAN

FEB

MAR

30
31
1

39
43
0

45
40
0

APR
38
38
1

MAY
36
38
1

JON

JUL

35
48

33
25
0

2

3897

LITIGATION:
JAN

FEB

!mR

APR

MAY

JON

JUL

356

383

389

391

372

378

381

30

9

19

16

14

13

23

HC

26

8

16

14

9

9

15

F'l'CA

1

0

1

0

0

2

1

BIVENS

3

1

2

2

5

2

4

~,

0

0

0

0

0

3

CLOSED

3

3

10

10

8

10

86 1

PENDING AT

383

389

391

397

378

381

318

29

7

7

16

13'

14

14

OPEN AT
BEGINNING
OF MONTH
NEW CASES

AUG

SEP

OCT

NOV

RECEIVED

OTHER

END 01'

MONTH

LITIGATION
REPORTS
COMPLETED

(,
1
Comprehensive audit was conducted July 6-9, 1999, resulting
in an adjustment to number of cases pending. Cases pending at end
of July 1999 is 318.
3898

DEC

u.s. Department of Justice
Federa1 Bureau of Prisons
Dublin, California 94568

August 6, 1999
MBMOItANDON FOR CHRISTOPHER ERLEWlNE, ASSISTANT DIRECTOR/

GENERAL COUNSEL, GENERAL COUNSEL , REVIEW
FROH:

SUBJECT:

Harlan W. Penn, Regional Counsel
Monthly Report for July 1999
LITIGATION

1.

NEW

CASES (3621(e»

Earls v. Hood (SHE) OAP petition complaining of 3621(e)
ineligibility due to 2 point weapon enhancement.
James v. Hood (SHE) OAP petition complaining of 3621(e}
ineligibility due to 2 point weapon enhancement.
Johnson v. Hood (SHE) OAP petition complaining of 3621(e)
ineligibility due to 2 point weapon enhancement.
Lohrey v. Hood (SHE) OAP petition complaining of 3621(e)
ineligibility due to 2 point weapon enhancement.
Maeby v. Clark (TRM) OAP petition complaining of 3621(e)
ineligibility due to 2 point weapon enhancement.
Mankertz v. Hood (SHE) OAP petition complaining of 3621(e}
ineligibility due to 2 point weapon enhancement.
McGilvery v. Hood (SHE) DAP petition complaining of 3621(e)
ineligibility due to 2 point weapon enhancement.

(

Miller v. Fitzpatrick (LOM) OAP petition complaining of 3621(e)
ineligibility due to 2 point weapon enhancement.

3873

(~

..

Richnback v. Fitzpatrick (LOM) DAP petition complaining of
3621(e) ineligibility due to 2 point weapon enhancement.
Robinson v. Fitzpatrick (LOM) DAP petition complaining of 3621(e)
ineligibility due to 2 point weapon enhancement.
Ward v. Hood (SHE) DAP petition complaining of 3621(e)
ineligibility due to 2 point weapon enhancement.
Wilson v. Hood (SHE) DAP petition complaining of 3621(e)
ineligibility due to 2 point weapon enhancement.
2.

NEW CASES (OTHER)

Baker v. Clark (TRM) Inmate appealing to 9th Circuit the district
court's dismissal of habeas petition which complained of
inadequate medical treatment and which sought order barring
transfer to another institution.
Carter v. Department of Justice (SAF) Inmate seeks declaratory
relief alleging DOJ improperly classified him as Mexican, rather
than u.s. citizen.
Grant v. Ray (SAF) Inmate seeks mandamus relief for presentence
credit for time spent in state custody.
Gutierrez v. United States Bureau of Prisons . (LOM) Bivens action
in which inmate alleges inadequate medical treatment for a penile
wart.
Jackson v. United States (SET) Bivens/FTCA complaint alleging
denial of medication and specialists resulted in seizure.
Mason v. Horan (TCN) Bivens complaint by pre-trial detainee
alleging inadequate medical care.
Muhannad v. Adams (LOM) Bivens action in which inmate alleges
excessive use of force during a forced cell move.
Ralston v. Hood (SHE) Habeas petition challenging sanctions
(visiting restrictions) imposed by the DHO.
Rogers v. Lathers (SOC) Habeas petition seeking immediate release
from custody by contesting DHO finding of escape from half-way
house.

(

Wehmhoefer v. Seifert (LOS) Habeas petition seeking credit for
time spent in federal custody that allegedly is not being
credited now.

3874

3.

SIGNIFICANT DEVELOPMENTS/APPEALS

Alvarez v. David Rardin (LOM) Court dismissed the petition,
terminating case.
Bilodeaux v. Fitzpatrick (LOM) Court denied the petition.
Blum v. Floyd (PHX) A settlement conference has been scheduled
for 09/01/99. However, we do not have anything to offer to
settle this Bivens case.
Brown v. Fitzpatrick (LOM) Court denied the petition, terminating
case.
Carrington v. United States (LOM) Court dismissed the complaint
against one named defendant and summary judgment was granted in
favor of another and USA, terminating case.
Cooper v. Rardin (LOM) Court dismissed the petition, terminating
case.
Crawford El v Rardin (LOM) Appellate court dismissed inmate's
appeal of habeas petition dismissal.
Cuthair v. Rardin (LOM) Court dismissed the petition for failure
to exhaust, terminating case.
Eduardo v. United States Probation (LOM) Court granted the BOP's
Motion for Summary Judgement and terminated case.
Enzor v. Janet Reno (SOC) Bivens action by former executive staff
member at FC! Tallahassee against several agency staff alleging
retaliation, racism, unfair labor practice, etc. MCC staff
member to be deposed August 19, 1999.
Estate of Wayne Crosser v. United States (SOC) US Attorney
cautiously entertaining settlement with opposing counsel in FTCA
action and agency recommendation has been requested by USAO.
Ford v. Rardin (LOM) Court dismissed the petition, terminating
case.
Forgac v. Perrill, et ale (SET) Report and, Recommendation filed
recommending grant of Defendants' Motion for Summary Judgment.
Garner v. Adams (LOM) Appeal of dismissed habeas petition seeking
entry into DAP is dismissed.
Gust Janis v. USA (LOM) Appellate Court affirmed the decision of
the District Court dismissing FTCA action.

3875

(

Iida v. Adams (LOM) Court dismissed the petition, terminating
case.
Janis v. United States Attorney (LOM) Inmate's appeal of decision
to deny return of confiscated materials was dismissed.
Lippert v. Halacha (LOM) Court dismissed the complaint,
terminating case.
Lippert V. Rardin (LOM) Court granted Bureau's Motion for Summary
Judgement except for FTCA claim which too was dismissed for
failure to exhaust. Case terminated.
Mitchell v. United States (PHX) Court dismissed action.
McConville v. United States (PHX) Dismissed for failure to
prosecute.
Most v. United States (SDC) Hearing in FTCA action set for August
9, 1999. Presently, Plaintiff has failed to perfect service
within the statutory time frame.
Nigro, Jr. v. Wilson (TRM) Court dismissed action.

(
'"

Reddic v. USA, et al (LOM) Court denied the motion to vacate, set
aside or reduce sentence, terminating case.
Romero v. United States (PHX) Trial previously scheduled for
trial July 27 has been postponed indefinitely due to filing of
amended complaint.
Savocchio v. Crabtree (SHE) Court granted habeas petition
restoring good time taken in DHO Hearing.
Stephens v. Adams (LOM) Court dismissed the petition, terminating
case.
Tavares v. Bureau of Prisons (LOM) Court terminated the case
without prejudice.
Tavares v. Rardin (LOM) Court dismissed the petition, terminating
case.
Ulep v. Rardin (LOM) Court dismissed the petition, terminating
case.

Walker v. Rardin (LOM) Appellate Court affirmed the decision of
the District Court.

(

3876

CRIMINAL CASE TRACKING

Criminal Cases
JAN

Referred
Accepted
Declined
Pending
Decision

29
1
15
13

FEB
19
4
16
28

MAR

APR

22

18
1
11
35

0

16
32

MAY
21
4
19
31

JUN

JOL

22
4
11
38

16
4
9
41

AUG

SEP

OCT

NOV

DEC

Active Prosecutions:
ASSAULT:

United States v. Lopiccolo (LOM)
rescheduled for October 12, 1999.

Inmate on inmate assault trial

United States v. Pedro Amaya-Jaguez (TeN) May 6, 1999, inmate on
three staff member assault accepted for prosecution.
Injuries
were contusions and abrasions and one staff transported to
hospital due to shortness of breath after being kicked in ribs.
Although no weapon was involved, SIS Lieutenant was able to
convince the AUSA/FBI of the prosecutorial merit and importance
of this case to our agency for the deterrent effect to hopefully
limit future staff assaults.
ESCAPE:
United States v. Terrance Nikrasch (LOM) Sentencing for December
1995 FPC escape postponed until further notice.
BOMl:CIDE:
United States v. Roy Green (LOM) Pretrial hearing to
1999.
pending motions scheduled for September 13,
continued until February 15 or 22, 2000.

discuss
Trial

United States v. Matt Lindsey (PHX) Jury verdict of "not guilty"
was returned on July 9, 1999.
INTRODUCTION/POSSESSION OF CONTRABAND: None
PROPERTY: None

SEX OFFENSES:
Uni ted States v.

Jon Hyson

(DUB)

3877

Twenty-two count

indictment

against former correctional officer at Dublin for sex offenses
and false statements.
Pretrial conference set for October 25,
1999. Trial set for November 1, 1999.
United States v. Donnell Hawthorne (DUB) After guilty plea to sex
offenses and false
statements,
former
correctional
officer
sentenced to five month confinement with 3 years supervised
release, $225 special assessment and 400 hours community service.
WEAPONS: None
STATISTICS
ADMINISTRATIVE REMEDIES
JAN

FEB

MAR

APR

MAY

JON

JUL

80

94

108

91

31

129

96

AUG

SEP

OCT

NOV

DEC

FREEDOM OF INFORMATION/PRIVACY ACT:
RECEIVED

CLOSED
PENDING
20 DAYS
6 MONTHS
APPEALS

JAN

FEB

MaR

APR

MAY

JON

JUL

27
24
19
1
0
0

38
34
23
3

29
41
11
1

37
36
12
1

26
24
14
1*

32
31
15

31
25
21

a

a

a

a

a
a

a

1

1

2

2

3

FOI/PA PENDING
BRN DOB LOF
0
0
0
*WAITING FOR

AUG

SEP

OCT

NOV

DEC

0
3

MORE THAN 20 DAYS ON June 30, 1999:
LOH LOS NEL PBX SAF SDC SET SBE
0
0
0
0
a
0
0
0
RECORDS FROM ARCHIVES

TAF
0

TCN
0

TRY

0

TOTAL
0

SEP

OCT

NOV

DEC

ADMINISTRATIVE TORT CLAIMS
RECEIVED
CLOSED
RECONSIDER

JAN

FEB

MAR

APR

lG.Y

JON

JtJL

30
31
1

39
43
0

45
40

38
38
1

36
38
1

35
48
2

33
25

0

3878

a

AUG

PENDING
OVER 6
MONTHS

95
0

91
2

96
0

97
3

96

85

93

I'

0

0

Tort Claim Investigations Over 60 Days:
BRN
0

DUB
2

LOF

LOH

LOS

NEL

PBX

SAl'

SOC

SET

SHE

TAF

TCN

TRM

0

0

0

0

0

0

0

0

0

0

0

0

(

3879

TOTAL
2

LITIGATION:
MAR

APR

MAY

JON

356

FEB
383

389

391

372

378'

JUL
381

JAN
OPEN AT
BEGINNING
OF MONTH
NEW CASES
RECEIVED
HC

30

9

19

16

14

13

23

26

8

16

14

9

9

15

FTCA

1

0

1

'0

0

2

1

B:rvENS

3

1

2

2

5

2

4

OTBBR

0

0

0

0

0

0

3

CLOSED

3

3

10

10

8

10

86 1

PENDING AT
END OF

383

389

391

397

378

381

318

29

7

7

16

13

14

14

AUG

SEP

OCT

NOV

MONTH

LITIGATION
REPORTS
COMPLETED

(
Comprehensive audit was conducted July 6-9, 1999, resulting
Cases pending at end
of July 1999 is 318.
1

in an adjustment to number of cases pending.

3880

DEC

a\lSI

u.s. Department of Justice

(

Federal Bureau of Prisons
Dublin, California 94568

September 2, 1999
. MEMORANDUM FOR CHRISTOPHER ERLEWINE, ASSISTANT DIRECTOR/
GENERAL COUNSEL, GENERAL COUNSEL & REVIEW

FROM:
SUBJECT:

Harlan W. Penn, Regional Counsel
Monthly Report for August 1999
LITIGATION

1.

NEW CASES (3621(e»

Frisby v Fitzpatrick (LOM) DAP petition complaining of 3621(e)
ineligibility due to 2 point weapon enhancement.
Gerritsen v Pontesso (PHX) DAP petition complaining of 3621(e)
ineligibility due to escape conviction.
Grassi v Hood (SHE) DAP petition complaining of 3621(e)
ineligibility due to 2 point weapon enhancement.
Mendiola v Hood (SHE) DAP petition complaining of 3621(e)
ineligibility due to 2 point weapon enhancement.
Rice v Hood (SHE) DAP petition complaining of 3621(e)
ineligibility due to 2 point weapon enhancement.
Shaw v Pontesso (PHX) DAP petition complaining of 3621(e)
ineligibility due to 2 point weapon enhancement.
Thornton v Fitzpatrick (LOM) DAP petition complaining of 3621(e)
ineligibility due to 2 point weapon enhancement.

(
2.

NEW CASES (OTHER)

4354

(

Alfrey v United States (SHE) FTCA action alleging BOP negligence
for wrongful death and failure to protect.
Arias v Pendleton (TCN) Habeas petition seeking expedited
extradition hearing for outstanding murder charge in Mexico.
John Doe Inmate v US DOJ (TRM) FTCA action alleging failure to
enforce alleged sentence reduction agreement which was proffered
in exchange for information to government.
Bracken v Clark (TRM) FTCA action alleging loss of five money
orders.
Bagliere Jr. v Andrew (TRM) Habeas petition alleging BOP
incorrectly scored prior offense which resulted in improper
scoring of "low" custody level versus "minimum".
Combs v Clark (TRM) Habeas petition complaining sentence has been
satisfied.
Gomez v Fitzpatrick (LaM) Habeas petition seeking state custody
credit.
Gonzales v United States (TCN) Habeas petition seeking state
prison time credit.
Gonzales v Pendleton (TCN) Habeas petition seeking state custody
credit.
Heath v Pendleton (TCN) Habeas petition seeking restoration of
DHO revoked good conduct time.
Lillard v Hood (SHE) Habeas petition seeking restoration of DHO
revoked good conduct time.
Spindler v Mitchell (SHE) Bivens action claiming retaliation for
filing a lawsuit against staff.
United States v Cereno (SOC) Habeas petition seeking sentence
reduction to six month jail time and probation or in the
alternative, a stay of surrender date to process his request for
ICC designation.

3.

SIGNIFICANT DEVELOP:MENTS/APPEALS

Ballou v Perrill (SET) In an unpublished opinion, the 9th Circuit

4355

upheld the district court's denial of an inmate's DAP habeas
petition seeking early release consideration notwithstanding his
prior bank robbery conviction. Inmate alleged he was verbally
apprized of his eligibility and was subsequently made ineligible
under § 550.58.

(

Estate of Wayne Crosser v. United States (SOC) FTCA action filed
by family of deceased inmate scheduled for settlement conference.
If negotiations are unsuccessful, depositions will be tentatively
scheduled for September 27-29, 1999.

CRIMINAL CASE TRACKING

Criminal Cases
Referred
Accepted
Declined
Pending
Decision

JAN

FEB

MAR

APR

29
1
15
13

19
4
16
28

22
0
16
32

18
1
11
35

IG.Y
21
4
19
31

.roN

JOL

AUG

22
4
11
38

16
4
9
41

12
0
12
25

SEP

OCT

NOV

DEC

(

NEW INFORMATXON ON ACTIVE PROSECUTIONS
ASSAULT

United States v Wehmhoefer (LOM) Case involves the assault of
another inmate that occurred on March 4, 1997.
Trial originally
scheduled for September 7 has been rescheduled to November 6,
1999.
United States v Sandoval-Parra (SAF) Case of inmate striking
staff with closed fist.
On August 24, 1999, inmate pled guilty
to Assault on a Federal Officer.
Sentencing scheduled for
December 12, 1999.
ESCAPE

United States v. Terrance Nikrasch (LOM) Case involves an escape
from the FPC in December 1995.
Sentencing rescheduled for
September 9, 1999.
STATISTXCS

ADMINISTRATIVE REMEDIES
JAN

FEB

MAR

APR

MAY

JON

JUL

AUG

80

94

108

91

31

129

96

70

4356

SEP

OCT

NOV

DEC

FREEDOM OF INFORMATION/PRIVACY ACT:
I

RECEIVED
CLOSED
PEND:ING
20 DAYS
6 NONTBS
APPEALS

JAN

FEB

MAR

APR

MAY

JON

JUL

AUG

27
24
19
1
0

38
34
23
3
0
1

29
41
11
1
0
1

37
36
12
1
0
2

26
24
14
1*
0
2

32
31
15
0
0
3

31
25
21
0
0
3

40
46
15
0
0
2

0

SEP

OCT

NOV

DEC

FOI/PA PENDING MORE THAN 20 DAYS ·ON June 30, 1999:
BRN
0

DUB

LOI'

LOM

LOS

NEL

0

0

0

0

0

PBX
0

SAF
0

SDC
0

SET

0

SHE
0

TAl'

TCN

TBM

0

0

0

TOTAL
0

OCT

NOV

DEC

*WAITING FOR RECORDS FROM ARCHIVES
ADMINISTRATIVE TORT CLAIMS
RECE:IVED

CLOSED
RECONS:IDER
PENDmG
OVER 6
MON'l'BS

('

JAN

FEB

MAR

APR

MAY

JON

JUL

AUG

30
31
1
95
0

39
43
0
91
2

45
40
0
96

38
38
1
97
3

36
38
1
96
1

35
48
2
85
0

33
25
93
0

51
34
2
112
4

SAF

SDC

SET

SHE

TAl'

TCN

0

0

0

0

0

1

0

0

SEP

." ~ . -

Tort Claim Investigations Over 60 Days:
UN

DUB

LOI'

LOM

LOS

NEL

0

2

0

1*

1

0

PBX
0

TRM
0

TOTAL
5

*Claimant has multiple claims that have been combined into one case.
Currently at the Office of the Inspector General.
Issues before the
Grand Jury meeting mid-September, 1999.
LITIGATION:
OPEN AT
BEGINN:ING
OF MON'rB
NEW CASES
RECE:IVED
BC

JAN

FEB

MAR

APR

MAY

JON

JOL

AUG

356

383

389

391

372

378

381

318

30

9

19

16

14

13

23

20

26

8

16

14

9

9

15

16

(

4357

SEP

OCT

NOV

DEC

II'TCA

1

0

1

0

0

2

1

3

BIVENS

3

1

2"

2

5

2

4

1

O':rBER

0

0

0

0

0

0

3

0

CLOSED

3

3

10

10

8

10

86:

0

PENDING A':r

383

389

391

397

378

381

318

338

29

7

7

16

13

14

14

14

(

END 01'

MONTH

LITIGA':rION
REPORTS
COMPLE':rED

(

1. Comprehensive audit was conducted July 6-9, 1999, resulting in
an adjustment to number of pending cases. Case pending at end of
July is 318.

4358

(

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

September 2, 1999
MEMORANDUM FOR CBRIS'rOPBER ERLEWINE, ASSIS'rAN'r DIRECTOR/
GENERAL COUNSEL, GENERAL COUNSEL & REVIEW

"FROM:
SOBJEC'r :

Harlan W. Penn, Regional Counsel
Monthly Report for August 1999
LI'rlGATION

1.

NEW CASES (3621(e»

Frisby v Fitzpatrick (LOM) DAP petition complaining of 3621(e)
ineligibility due to 2 point weapon enhancement.
Gerritsen v Pontesso (PHX) DAP petition complaining of 3621(e)
ineligibility due to escape conviction.
Grassi v Hood (SHE) OAP petition complaining of 3621(e)
ineligibility due to 2 point weapon enhancement.
Mendiola v Hood (SHE) DAP petition complaining of 3621(e)
ineligibility due to 2 point weapon enhancement.
Rice v Hood (SHE) DAP petition complaining of 3621(e)
ineligibility due to 2 point weapon enhancement.
Shaw v Pontesso (PHX) DAP petition complaining of 3621(e}
ineligibility due to 2 point weapon enhancement.
Thornton v Fitzpatrick (LOM) DAP petition complaining of 3621(e)
ineligibility due to 2 point weapon enhancement.

2.

NEW CASES (O'rBER)

3948

(

Alfrey v United States (SHE) FTCA action alleging BOP negligence
for wrongful death and failure to protect.
Arias v Pendleton (TCN) Habeas petition seeking expedited
extradition hearing for outstanding murder charge in Mexico.
John Doe Inmate v US OOJ (TRM) FTCA action alleging failure to
enforce alleged sentence reduction agreement which was proffered
in exchange for information to government.
Bracken v Clark (TRM) FTCA action alleging loss of five money
orders.
Bagliere Jr. v Andrew (TRM) Habeas petition alleging BOP
incorrectly scored prior offense which resulted in improper
scoring of."low" custody level versus "minimum".
Combs v Clark (TRM) Habeas petition complaining sentence has been
satisfied.
Gomez v Fitzpatrick (LOM) Habeas petition seeking state custody
credit.

(~

Gonzales v United States (TCN) Habeas petition seeking state
prison time credit.
Gonzales v Pendleton (TCN). Habeas petition seeking state custody
credit.
Heath v Pendleton (TCN) Habeas petition seeking restoration of
DHO revoked good conduct time.
Lillard v Hood (SHE) Habeas petition seeking restoration of DHO
revoked good conduct time.
Spindler v Mitchell (SHE) Bivens action claiming retaliation for
filing a lawsuit against staff.
United States v Cereno (SOC) Habeas petition seeking sentence
reduction to six month jail time and probation or in the
alternative, a stay of surrender date to process his request for
ICC designation.

3.

SIGNIFICANT DEVELOPMENTS/APPEALS

Ballou v Perrill (SET) In an unpublished opinion, the 9th Circuit

3949

(

upheld the district court's denial of an inmate's DAP habeas
petition seeking early release consideration notwithstanding his
prior bank robbery conviction.
Inmate alleged he was verbally
apprized of his eligibility and was subsequently made ineligible
under § 550.58.

..

Estate of Wayne Crosser v. United States (SDC) FTCA action filed
by family of deceased inmate scheduled for settlement conference.
If negotiations are unsuccessful, depositions will be tentatively
scheduled for Septernbe~ 27-29, 1999.

CRIMINAL CASE TRACKING

Criminal Cases
Referred
Accepted
Declined
Pending
Decision

C:.__

JAN

FEB

MAIl

APR

29
1
15
13

19

22
0
16
32

18
1
11
35

4

16
28

MAY
21
4
19
31

JON

JtJL

22
4
11

16
4
9
41

38

AUG
12
0
12
25

SEP

OCT

NOV

DEC

NEW INFORtG.TION ON ACTIVE PROSECUTIONS
ASSAULT

United States v Wehmhoefer (LOM) Case involves the assault of
another inmate that occurred on March 4, 1997.
Trial originally
scheduled for September 7 has been rescheduled to November 6,
1999.
United States v Sandoval-Parra (SAF) Case of inmate striking
staff with closed fist.
On August 24, '1999, inmate pled guilty
to Assault on a Federal Officer.
Sentencing scheduled for
December 12, 1999.
ESCAPE

United States v. Terrance Nikrasch (LOM) Case involves an escape
from the FPC in December 1995.
Sentencing rescheduled for
September 9, 1999.
STATISTICS

ADMINISTRATIVE REMEDIES
, JAN

(

80

FEB

MAR

94

108

APR
91

MAY
31

.:roN

JUL

129

96

3950

AUG
70

SEP

OCT

NOV

DEC

INFORMATION/PRIVACY ACT:
,FREEDOM OFJAN
MAY
MAR
APR

FEB

RECEIVED
CLOSED
PENDING
20 DAYS
6 MONTHS
APPEALS

38
34
23
3
0
1

27
24
19
1
0
0

FOI/PA PENDING
BRN DUB LOF
0
0
0
*WAITING FOR

29
41
11
1
0
1

37
36
12
1
0
2

26
24
14
1*
0
2

JON

JUL

32
31
15
0
0
3

31
25
21
0
0
3

AUG
40
46
15
0
0
2

MORE THAN 20 DAYS ON June 30, 1999:
LOM LOS NEL PBX SAl' SDC SET SBE
,0
0
0
0
0
0
0
0
RECORDS FROM ARCHIVES

SEP

TAl'
0

OCT

NOV

DEC

TCN
0

TRY
0

TOTAL
0

OCT

NOV

DEC

ADMINISTRATIVE TORT CLAIMS

RECEIVED
CLOSED
RECONSl:DER
PEND'mG
OVER 6

(

JAN

FEB

MAR

APR

MAY

JON

JOL

30
31
1
95
0

39
43
0
91
2

45
40
0
96
0

38
38
1
97
3

36
38
1
96
1

35
48
2
85

33
25
0
93

0

0

AUG
51
34
2
112
4

SEP

MONTHS

Tort Claim Investigations Over 60 Days:
DUB LOF LOH LOS NEL PBX SAF SDC
0
0
1*
2
1
0
0
0

BRN
0

SET
0

SHE
0

TAl'
0

TCN
1

'rBM
0

TOTAL
5

*Claimant has multiple claims that have been combined into one case.
Currently at the Office of the Inspector General.
Issues before the
Grand Jury meeting mid-September, 1999.
LITIGATION:
OPEN AT
BEGINNl:NG

JAN

FEB

MAR

APR

MAY

JON

JOL

356

383

389

391

372

378

381

AUG
318

30

9

19

16

14

13

23

20

26

8

16

14

9

9

15

16

OF MONTH

NEW CASES
RECEIVED

BC

(

3951

SEP

OCT

NOV

DEC

(

FTCA

1

0

1

0

0

2

1

3

BIVENS

3

1

2

2

5

2

4

1

OTHER

0

0

0

0

0

0

3

0

CLOSED

3

3

10

10

8

10

86 1

0

PENDXNG AT

383

389

391

397

378

381

318

338

29

7

7

16

13

14

14

14

END 01'
MONTH

LXTXGATION
REPORTS
COMPLETED

(
\. ....

1. Comprehensive audit was conducted July 6-9, 1999, resulting in
In adjustment to number of pending cases. Case pending at end of
July is 318.

3952

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

October 4, 1999
MEMORANDUM FOR ~BRISTOPBER ERLEWINE, ASSISTANT DIRECTORI
GENERAL COUNSEL, GENERAL COUNSEL , REVIEW

FROM:
SUBJECT:

Harlan W. Penn, Regional Counsel
Monthly Report for September 1999
LITIGATION

1.

NEW CASES (3621(e»

BiddIes v. Clark, (TRM) OAP petition complaining of 3621(e)
ineligibility due to 2 point weapon enhancement.

(

Bohner v. Hood, (SHE) OAP petition complaining of 3621{e)
i~eligibility due to 2 point weapon enhancement .
. Davis v. Hood, (SHE) DAP petition complaining of 3621(e)
ineligibility due to 2 point weapon enhancement.
Gunderson v. Hood, (SHE) OAP petition complaining of 3621(e)
ineligibility due to 2 point weapon enhancement."
Hall v. Hood, (SHE) DAP petition complaining of 3621(e) ineligibility
due to § 922(g) conviction and prior robbery conviction.
Holguin v. Clark, (TRM) OAP petition complaining of 3621(e)
ineligibility due to 2 point weapon enhancement.
Hooper v. Hood, (SHE) OAP petition complaining of 3621(e)
ineligibility due to 2 point weapon enhancement.
Morris v. Hood, (SHE) OAP petition challenging his priority position
on the OAP WAIT list.
Sorenson v. Hood, (SHE) DAP petition complaining of 3621(e)
ineligibility due to 2 point weapon enhancement.

4400

(

2.

(

NEW CASES

Burzynski v. Bailey, (SAF) Habeas petition complaining the Bureau
of Prisons violated the terms of his plea agreement when he was not
placed at a camp facility.
Flowers v. Finnerly, (LOM) Bivens action complaining of inadequate
medical treatment and alleged assault.
Freeman v. United States,
challenges ITS system.

(LOM) Mandamus petition in which inmate

Pelland v. Clark, (TRM) Habeas petition claiming inmate was held 25
days past sentence expiration.
Pocsai v. Hood, (SHE) Habeas petition challenging placement in
Administrative Detention.
Salameh v. Carlson,
force.

(LOM)

Bivens action alleging excessive use of

Teran v. Morrison, (LOM) Bivens action in which inmate alleges his
life is in jeopardy as a result of staff actions.
Villegas v. Adams, (LOM) Habeas petition complaining of placement in
Administrative Detention, separation status from Mexicanemi, and
limited access to the law library.
Wharton v. Hood, (SHE) Habeas petition seeking restoration of DHO
forfeited good time credits.
Wilson v. Perrill, (SET) Habeas petition complaining of due process
and policy violation when he was returned to secure institution from
halfway house.
3.

SIGNIFICANT DEVELOPMENTS/APPEALS

Applegate v. United States, (DUB) Former inmate's FTCA suit alleging
sexual battery, harassment and forced oral copulation by staff in
1995 dismissed upon settlement of $90,000 on
September 2, 1999.
Baker v. Barrera, (SOC) Bivens action against contract psychiatrist
for alleged negligent diagnosis, treatment, proscription of drug
being considered for DOJ representation.
Estate of Wayne Crosser v. United States, (SOC) Parties agreed to
settle rTCA action for $152,000. Pending signature by plaintiff's
counsel.
(
"

Dozier v. Fitzpatrick, (LOM) Court ordered BOP to reconsider DAP
petitioner's eligibility without relying on PSI information
concerning 1971 manslaughter conviction.
Parmelee v. Perrill, (SET) Defendants' motion for summary judgement

4401

granted, dismissing case with prejudice.
plaintiff1s third strike under PLRA.

AUSA believes this is

Romero v. United States, (PHX) Case originally slated for trial in
July indefinitely postponed pending amended complaint.

('"

Salsberry v. Clark, (TRM) Notice of appeal filed on adverse opinion
regarding DAP 2 point weapon enhancement petition.
Sattes v. Cobos, (BRN)
3621(e) eligibility.

Adverse decision granting petition for
CRIMINAL CASE TRACKING

Criminal Cases
Referred
Accepted
Dec1ined
Pending
Decision

4.

JAN

FEB

MAR

APR

MAY

JON

JtJL

AUG

SEP

29
1
15
13

19
4
16
28

22
0
16
32

18
1
11
35

21
4
19
31

22
4
11
38

16
4
9
41

12
0
12
25

13
1
6
24

OCT

NOV

DEC

NEW INFORMATION ON ACTIVE PROSECUTIONS

ASSAULT

United States v. Lopiccolo, (LOM) Inmate assault on another that
occurred February 4, 1997, at FCI Lompoc . . Trial originally
scheduled for October 12, 1999. Prosecution1s motion for
c9ntinuance to be ruled upon October 4, 1999.
United States v. Sandoval-Parra, (SAF) Inmate pled guilty on August
24, 1999, to Assaulting Federal Officer (struck officer with closed
fist). Sentencing, scheduled for December 12, 1999.
ESCAPE

United States v. Nikrasch, (LOM) Counterfeit currency and escape
case from FPC in December 1995. New counsel appointed for inmate.
Sentencing rescheduled for November 1999.
FRAUD/FORGERY

United States v. Lewis, (TeN) Inmate pled guilty to fraud in
exchange for dropping 2 attempted escape charges (fabricated drug
abuse treatment records to benefit from 3621(e) program).
Sentencing set for October 21, 1999.
STATISTICS

ADMINISTRATIVE REMEDIES

l JAN
l 80

FEB

MAR

APR

MAY

JON

JtJL

AUG

SEP

94

108

91

31

129

96

70

75

4402

OCT

NOV

DEC

('".....
.~

,

FREEDOM OF INFORMATION/PRIVACY
FEB MAR
JAN
APR
37
27
38
29
RECEIVED
34
36
24
41
CLOSED
23
19
11
12
PENDING
3
1
1
1
20 DAYS
0
0
0
6 MONTHS 0
2
0
1
1
APPEALS

(

FOI/PA PENDING
BRN DUB LOF
0
0
0
*WAITING FOR

ACT:
MAY

JON

JUL

26
24
14
1*
0
2

32
31
15
0

31
25
21
0
0
3

0

3

AUG
40
46
15
0
0
2

MORE THAN 20 DAYS ON June 30, 1999:
LOll LOS BEL PBX SM SDC SET SHE
0
0
0
0
0
0
0
0
RECORDS FROM ARCHIVES

SEP
35
34
16
0
0
3

TAF
0

OCT

TCN

NOV

DEC

'l'RN
0

TOTAL

0

OCT

NOV

DEC

0

ADMINISTRATIVE TORT CLAIMS

"', o·

~t

--'"
O.

AUG
51
34
2
112
4

SEP
38
50
1
101
4

JON

JUL

36
38
1
96
1

35
48
85
0

33
25
0
93
0

Claim Investigations Over 60 Days:
DUB LOF LOM LOS BEL PBX SAF SDC
0
0
0
0
0
0
0
3

SET
0

SBE

TAF

TCN

TRM

0

0

0

0

TOTAL
3

OCT

NOV

DEC

CLOSED
RECONSIDER
PENDING
OVER 6
MONTHS

(

APR
38
38
1
97
3

MAY

RECEIVED

JAN

FEB

MAR

30
31
1
95
0

39
43
0
91
2

45
40
0
96
0

2

LITIGATION:
MAY

JON

JUL

372

378

381

AUG
318

SEP
338

356

383

389

APR
391

30

9

19

16

14

13

23

20

19

BC

26

8

16

14

9

9

15

16

15

!'TCA

1

0

1

0

0

2

1

3

0

BIVENS

3

1

2

2

5

2

4

1

3

JAN

OPEN AT
BEGINNING
OF MONTH
NEW CASES

FEB

MAR

RECEIVED

1. Comprehensive audit was conducted July 6-9, 1999, resulting in an
adjustment to number of pending cases. Case pending at end of July is
318.

OTHER

0

0

0

0

0

0

3

0

1

CLOSED

3

3

10

10

8

10

86 1

0

5

PENDING AT
END 01'
MONTH
LITIGATION

383

389

391

397

378

381

318

338

352

29

7

7

16

13

14

14

14

25

REPORTS

COMPLETED

(

U.8. Department of Justice

Federal Bureau of Prisons

Dublin, CaDfomis 94568

November 4, 1999
MEMORANDUM FOR CHRISTOPHER ERLEWINE, ASSISTANT DIRECTOR/
GE~~ COtJNS~ GENERAL COUNSEL & REVIEW

"7 ~iJ,~

FROM:

rlan

SUBJECT:

w.

Penn, Regional Counsel

Monthly Report for October 1999
LITIGATION

1.

NEW CASES (3621(e»

Decker vs. Fitzpatrick, (LOM) DAP petition complaining of 3621(e}
ineligibility due to 2 point weapon enhancement.
Foster vs. Hood, (SHE) DAP petition complaining of 3621(e)
ineligibility due to 2 point weapon enhancement.
Guerrero vs. Hood, (SHE) DAP petition complaining of 3621(e)
ineligibility due to 2 point weapon enhancement.
Iniego vs. Clark, (TRM) DAP petition complaining of 3621(e)
ineligibility due to 2 point weapon enhancement.
McArtor vs. Pontesso, (PHX) DAP petition complaining of 3621(e)
ineligibility due to 2 point weapon enhancement.
Mitchell vs. Andrews, (TRM) DAP petition complaining of 3621(e)
ineligibility due to lack of documented drug abuse problem.
O'Donnell vs. Fitzpatrick, (LOM) DAP petition complaining of 3621(e)
ineligibility due to 2 point weapon enhancement.
Searcy vs. Hood, (SHE) DAP petition complaining of 3621(e)
ineligibility due to § 922(g) conviction.
Smith vs. Pontesso, (PHX) DAP petition complaining of 3621(e)
ineligibility due to prior conviction for battery with great bodily
injury.
1

3542

( ~ Declined
I

II

Criminal Cases

2ending
Decision

4.

i

I

i

i

i

i

i

i

I

I

I

15

16

16

11

19

11

9

12

6

12

13

28

~ ~

~~

35

31

38

41

25

24

30

NEW INFORMATION ON ACTIVE PROSECUTIONS

ASSAULT
United States vs. Sandov al - Parra (SAF ) Inmate on staff assault on
May 30, 1999. Sentencing scheduled f o r December 12, 1999 .
United States vs . Lopicc o l o , (LOM ) Inmate on inmate assault on
February 14, 1997, at FCI Lomp o c. Trial scheduled for November 16 ,
1999.
United States vs. Ama ya-Jaqu e z , (TCN) Defendant charged with
assaulting 3 staff May 6, 1999. While being transported to court
recently, defendan t r e c ognize d an d th re atened to kill .DUSM . With
additional charges being con t emplated, AUSA negotiating with
defendant ' s attorney a plea agreement.

c.

united States vs. Wehmhoefer, (LOM ) Inmate on inmate assault on
March 4, 1997. Trial has b e e n rescheduled for January 2 5, 2000.
ESCAPE
United States vs. Nikrasch, (LOM) FPC Lompoc December 1995 escape
along with 2 counterfeit charges. New counsel appointed for inmate.
Sentencing rescheduled for November.
FRAUD/FORGERY
united States vs . Lewis, (TCN) Inmate accepted plea agreement and
was sentenced October 21, 1999, to 3 month consecutive term for
falsifying drug treatment documents in effort to access RDAP .
Judge
considered 8- 9 month period defendant spent in SHU in relation to
charge as mitigating factor.
MISCELLANEOUS
criminal trial f o r
Former FCI Phoenix staff member
murder has been postponed to January 11, 2000 , in Phoenix.
Defendant was not employed with BOP at time of killing .

3543

STATISTICS
., .

..

J

I

...

ADMINISTRATIVE REMEDIES

JAN

FEB

MAR

APR

MAY

JUN

JUL

AUG

SEP

OCT

80

94

108

91

31

129

96

70

75

63

..

..

:

.

FREEDOM OF INFORMATION/PRIVACY·.ACT:

...

.....

NOV

..

,,::':1

DEC

~

.

. .

. ....
..:

JAN

FEB

MAR

APR

MAY

JON

JUL

AUG

SEP

OCT

RECEIVED

27

38

29

37

26

32

31

40

35

24

CLOSED

24

34

41

36

24

31

25

46

34

26

PENDING

19

23

11

12

14

15

21

15

16

14

30 DAYS

1

3

1

1

1*

0

0

0

0

1*

6 MONTHS

0

0

0

0

0

0

0

0

0

0

APPEALS

0

1

1

2

2

3

3

2

3

0

NOV

.

DEC

* WAITING FOR RECORDS FROM CONTRACT FACILITY

t : : .: : ··::~;::;;:~;~::i<;l;:n;ii~~;:~~llP.A.:;;~P.titNG .MORE
11(,...

r

II

THAN 20

DUB

LOF

LOM

LOS

NEL

PHX

SAF

SDC

SET

SHE

TAF

TCN

TRM

TOTAL

o

o

o

o

o

o

o

o

o

o

o

o

a

a

NOV

... ....

.

. ...

.

~;~~;~;~!i;~~1~~:~j;i1i~li;TT;:i~:;;;C~:~:!;;:~;;u::H:i;::;)!~~~;:;:··:AnMIN·ISi'RATIVE
.. ,

.,

.........

,

..

JAN

FEB

MAR

APR

MAY

JUN

JUL

AUG

SEP

OCT

RECEIVED

30

39

45

38

36

35

33

51

38

42

CLOSED

31

43

40

38

38

48

25

34

50

32

RECONSIDER

1

0

o

1

1

2

o

2

1

0

PENDING

95

91

96

97

96

85

93

112

101

111

OVER 6
MONTHS

0

2

o

3

1

o

044

2*

DEC

2

'l'ort·C.laim Investigations ·OVer. 60 Days:: ... ·

BRN . DUB

(

,,,

TOrtt:dCIAIMS::::;: .

........

..

0

DAl:$:~':ON: June· .30·,:::;1:9·9~~:. :;:;:;·/;:;;~::E>;;i~;;<~~ii;;i~i~i;J

...

.::

:::::

:;

LOF

LOM

LOS

NEL

PHX

SAF

SDC

SET

SHE

TAF

TCN

TRM

TOTAL

0

0

0

0

0

0

0

0

0

0

0

0

2

* Cla1ms currently be1ng cons1dered for settlement.

5

3544

.

(

.

•

. .. .....
..

.

.

...

........
,

...

LITIGATION:

..

.

JAN

FEB

MAR

APR

MAY

JUN

JUL

AUG

SEP

OCT

OPEN AT
BEGINNING
OF MONTH

356

383

389

391

372

378

381

318

338

352

NEW CASES
RECEIVED

30

9

19

16

14

13

23

20

19

16

HC

26

8

16

14

9

9

15

16

15

14

FTCA

1

0

1

0

0

2

1

3

0

0

BIVENS

3

1

2

2

5

2

4

1

3

2

OTHER

0

0

0

0

0

0

3

0

1

0

CLOSED

3

3

10

10

8

10

86 1

0

5

7

PENDING AT
END OF
MONTH

383

389

391

397

378

381

318

338

352

361

LITIGATION
REPORTS
COMPLETED

29

7

7

16

13

14

14

14

25

15

...

NOV

. .

DEC

Note: Report from MCC San Diego unavailable due to scheduled leave of
legal staff.

(

1. Comprehensive audit was conducted July 6-9, 1999, resulting in an
adjustment to number of pending cases. Cases pending at end of July is 318.

6

3545

u.s. Department of Justice

(

Federal Bureau of Prisons

Dublin, California 94568

December 2 , 1999
MEMORANDUM FOR CHRISTOPHER ERLEWINE, ASSISTANT DIRECTOR/
GENERAL COUNSEL, GENERAL COUNSEL & REVIEW

FROM:

Harlan W. Penn, Regional Counsel

SUBJECT:

Monthly Report for November 1999
LITIGATION

(

1.

NEW CASES (3621(e»

Fugate vs . Hood , (S HE ) DAP petition complaining of 3621(e)
ineligibility due to 2 point sentencing enhancement .
Jefferson vs . Hood , (SHE) DAP petition complaining of 3621(e)
ineligibility due to 2 point sentencing enhancement .
Plata vs . Wands, (BRN) DAP petition complaining of 3621(e)
ineligibility due to 2 point weapon enhancement.
Stirgus vs . Hood, (SHE) DAP petition comp l aining of 3621( e)
ineligibility due to 2 point sentencing enhancement and 922(g )
conviction .
2.

NEW CASES (Non 3621(e»

Almanza vs . Perrill, (SET) Habeas petition seeking good conduct time
for one year and one day sentence .
Ames vs . Pontesso , (PHX) Bivens action alleg ing confiscation of
legal material , failure to accept administrative remedies and
planting of drugs on inmate by staff members .
El - Williams vs . MCC Dental Director, (SDC) Bivens complaint alleging
staff ignored medical and dental needs and inhibited exercise of
religio us beliefs .
1

4461

(

English vs. Reno, (SAF) Bivens complaint seeking emergency shoulder
surgery. surgery scheduled prior to transfer to TCI but now inmate
refuses operation by contract orthopedic surgeon affiliated with
Tel.
Gill vs. Fitzpatrick, (LaM) Habeas petition in which inmate contests
his award of jail credit.
Hatter vs. United States, (LOS) FTCA complaint alleging loss of
personal property at MDC LA.
Holmes vs. United States, (SDC) FTCA complaint alleging slip and
fall and improper medical care.
Pettis vs. United states Navy, (SDC) Title VII action filed by a
former inmate. No BOP involvement although named as defendant.
Wharton vs. Hood, (SHE) Habeas petition contesting disciplinary
action for writing to daughter in light of Warden imposed
restriction.
Wharton vs. Hood, (SHE) Habeas petition contesting placement in
Special Housing Unit.
3.

SIGNIFICANT DEVELOP.NBNTS/APPEALS

Forgac vs. Perrill, (SET) Plaintiff appeals grant of defendants'
motion for summary.judgement.
Hogan vs. United States, (SDC) Depositions of staff anticipated for
January 2000 in classification/transfer/failure to protect FTCA
action.
Lott vs. Perrill, (SET) Stipulation of Dismissal filed on November
10, 1999, after petitioner received the requested prior custody
credit.
Parmelee vs. Benov, (SDC) A final order granting defendants' motion
for summary judgement received in Bivens case centering on rejection
of publication.
Rogers vs. Lathers, (SDC) Habeas petition contesting DHO decision
denied.
Romero vs. United States, (PHX) FTCA wrongful death action settled
by AUSA without BOP settlement authority.

(

Trentadue vs. United States, (SDC) Denial of qualified immunity on
appeal to 10th Circuit in case involving death of inmate allegedly
caused by staff.

2

\.

On November 4, 1999, oral arguments were held before the Ninth
Circuit Court of Appeals on the retroactivity of new DAP program
statement (Bowen, et al), director's discretion disqualifications
(Gavis, et al)
Oregon vs. DeBolt, (SHE) Trial held in state criminal action against
staff member charged with assault IV, harassment, and reckless
driving which occurred on institution property. Eight prosecution
witnesses testified after state complied with 28 C.F.R. § 16.22.
Defense initially refused to comply with regulation and prosecutor
was able to get 14 staff subpoenas quashed. Defense subsequently
complied and three staff witnesses were approved. Trial concluded
November 30 with conviction for harassment and acquittal on assault
and reckless driving.
CRIMINAL CASE TRACKING

Crimina.l Cases

(

JAN

FEB

MAR

APR

MAY

JON

JUL

AUG

SEP

OCT

NOV

Referred

29

19

22

18

21

22

16

12

13

22

31

Accepted

1

4

0

1

4

4

4

0

1

4

0

Dec1ined

15

16

16

11

19

11

9

12

6

12

17

Pending'
Decision

13

28

32

35

31

38

41

25

24

30

49

4.

DEC

NEW INFORMATION ON ACTIVE PROSECUTIONS

ASSAULT

United states vs. Amaya-Jaquez, (TCN) Inmate pled guilty to 3 counts
of misdemeanor assault on staff. Sentencing anticipated for
January, 2000.
United states vs. Lopiccolo, (LOM) Inmate on inmate assault on
February 14, 1997, at FCI Lompoc. Status conference November 8,
1999. Trial continued until January 4, 2000.
ESCAPE
United States vs. Terrance Nikrasch, (LOM) FPC Lompoc 1995 escape
along with 2 counterfeit charges. Sentencing continued until
January 2000.
(

3

4463

STATJ:STJ:CS
ADMINISTRATIVE ~MEDIES
JAN

FEB

MAR

APR

MAY

JON

JDL

AUG

SEP

OCT

NOV

80

94

108

91

31

129

96

70

75

63

92

DEC

FREEDOM ·OF INFORMATION/PRIVACY ACT:

JAN

FEB

!mR

APR

Im.Y

JON

JUL

AUG

SEP

OCT

NOV

RBCEXVED

27

38

29

37

26

32

31

40

35

24

13

CLOSED

24

34

41

36

24

31

25

46

34

26

20

PENDDtG

19

23

11

12

14

15

21

15

16

14

7

30 DAYS

1

3

1

1

1*

0

0

0

0

1*

0

6 MON'rBS

0

0

0

0

0

0

0

0

0

0

0

APPEALS

0

1

1

2

2

3

3

2

3

0

1

DEC

* WAITING FOR RECORDS FROM CONTRACT FACILITY

FOI/PA PENDING MORE THAN 20 DAYS ON June 30, 1999·:

('

BBN

DUB

LOP

LOM

LOS

NEL

PBX

SAl'

SDC

S,ET

SHE

TAl'

TCN

TBM

TOTAL

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

ADMINISTRATIVE TORT CLAIMS

JAN

FEB

MJ\R

APR

NAY

JON

JUL

AUG

SEP

OCT

NOV

BECE:tVED

30

39

45

38

36

35

33

51

38

42

44

CLOSED

31

43

40

38

38

48

25

34

50

32

57

:RECONSIDER

1

0

0

1

1

2

0

2

1

0

0

PENDING

95

91

96

97

96

85

93

112

101

111

98

OVER 6

0

2

0

3

1

0

0

4

4

2

5

DEC

MONTHS
Tort Claim Investigations OVer 60 Days:
BBN

DUB

LOP

LOM

LOS

NEL

PBX

SAF

SDC

SET

SHE

TAl'

TCN

TBM

TOTAL

0

4

0

1*

1

0

0

0

0

2

0

0

0

0

8

*Pendl.ng OIG
.I
4

4464

LITIGATION:
\,

JAN

FEB

MJU\

APR

MAY

JON

JUL

AUG

SEP

OCT

NOV

OPEN AT
BBGDmING
OF MONTB

356

383

389

391

372

378

381

318

338

352

361

NEW CASES

30

9

19

16

14

13

23

20

19

16

13

BC

26

8

16

14

9

9

15

16

15

14

8

I'TCA

1

0

1

0

0

2

1

3

0

0

2

B:IVENS

3

1

2

2

5

2

4

1

3

2

3

OTHER

0

0

0

0

0

0

3

0

1

0

0

CLOSED

3

3

10

10

8

10

86 1

0

5

7

4

PEND:tNG AT
END OF

383

389

391

397

378

381

318

338

352

361

370

29

7

7

16

13

14

14

14

25

15

16

RECEIVED

KORTH

LJ:TJ:GATJ:ON
REPORTS
COMPLETED

/'

1. Comprehensive audit was conducted July 6-9, 1999, resulting in an
adjustment to number of pending cases. Cases pending at end of July is 318.

5

4465

DEC

u.s. Department of Justice

(

Federal Bureau of Prisons

Dublin, Califo rnia 94568

Janua r y 5 , 2000
MEMORANDUM FOR CHRISTOPHER ERLEWINE, ASSISTANT DIRECTOR/
GENERAL COUNSEL, GENERAL COUNSEL & REVIEW

FROM:

Har la n W. Pe nn , Reg i o na l Counse l

SUBJECT:

Monthly Report for December 1999
LITIGATION

1.

NEW CASES (3621(e»

Eller vs .
Wands ,
(LOS)
DAP petit i on complain i ng
i n eligibi lit y due to 2 point weapon enhancement . .

of

3621 (e)

Freeman vs . Clark ,
(TRM)
DA P petition compla i ning o f
362 1 (e )
inel i gibi li ty d ue to no documented drug abuse p r oblem dur i ng
eval u at i on per i od .
Gas t o n vs.
Cl ark ,
(TRM)
DAP petition
i nel i gibi li ty due to 922(g) convi ction .

comp l ai ni ng

of

362 1 (e)

Harwood vs . An d r e ws ,
(TCN) DAP petition comp l a ining of 362 1 (e)
inel i gibility notwithstanding failure to complete entire residential
progr am.
Johnson vs . Clark ,
(LOM)
DAP pe t ition compla i ning
ineligibility due to 2 point weapon enhancement.

of

3621(e)

Lee vs . Hood , (SHE) DAP petition complaining of 362 1 (e) ineligibili t y
due to 922 (g) conviction .
Paulsen vs .
Hood ,
(SHE)
DAP petition compl ain i ng
i neligibility due to 2 point weapon enhancement .

of

3621 (e)

Phillips vs . Hood ,
(SHE)
DAP petition comp l aining of 3621(e)
inelig i bility due to 2 point weapon enhancement a n d 922(g) conviction.
1

4456

NEK CASES (Non 3621(e»

(

Askew vs. Ferriol, (SAF) Bivens action complaining of staff's failure
to protect and provide proper medical after serious assault.
Buker vs. United States,
(LOM) Bivens action alleging numerous
constitutional violations in response to his reporting of perceived
improprieties.
Kalka vs. Hawk, (PHX) Bivens action alleging exposure to environmental
tobacco smoke recently transferred from District of Columbia. Status
report filed in court 12/15/99.
Krause vs. Perrill,
computation.
Leiva vs.
action.

Adams,

(LOM)

(SET)

Habeas

petition

challenging

sentence

Habeas petition challenging a disciplinary

McElyea vs. Arpaio, (PHX) Habeas petition seeking sentence credit.
Petition denied by magistrate.
SIGNIFICANT DEVELOPMENTS/APPEALS

Curtis vs. Bailey, (SAF) Habeas petition challenging ineffective
assistance of counsel, prosecutorial misconduct dismissed 12/09/99.
(

Davidson vs.
Bailey,
(SAF)
Previously denied habeas petition
contesting ineffective assistance of counsel and sentencing issues on
appeal to 9th Circuit.
Decker vs.
Fitzpatrick,
(LOM)
DAP habeas petition contesting
ineligibili ty due to 2 point weapon enhancement granted in that
petitioner is to be determined eligible upon successful completion of
treatment program.
Dozier vs. Fitzpatrick,
(LOM) Court ordered BOP to review 1971
manslaughter
conviction
in
DAP
habeas
petition
contesting
ineligibility due to same. Review indicated manslaughter conviction
was negligent and no other disqualifying factor exists.
Kalka vs. Pontesso, (PHX) Bivens complaint dismissed for plaintiff's
failure to demonstrate 3 cubic foot limitation on legal matter was
retaliatory or that he was denied legal idles or job changes.
Maeby vs. Clark, (TRM) Adverse R&R submitted in DAP habeas petition
denying eligibility based on 2 point weapon enhancement. Objections
to R&R filed.
Parmelee vs. Benov, (SOC) Bivens complaint contesting rejection of
publication, previously granted summary judgement on behalf of
defendants, appealed to 9th Circuit by inmate.

2

4457

('

State of Oregon vs. DeBolt, (SHE) Staff member sentenced to 2 years
probation, anger management, 80 hours community service, no contact
with victim, and $619 fine in conviction for harassment. Same trial
resulted in acquittal on charges of assault and reckless driving.
United states vs. Hyson, (DUB) Self surrender date of 2/4/2000 set for
former employee sentenced to 5 months custody, 3 years supervised
release on charges of sex with ward and false statements.
United States vs. Ressam, (SET) Special administrative measures in
accordance with 28 C.F.R. § 501.3 imposed on detainee arrested for
attempting to smuggle explosives and timing devices into United
States.
Vaccaro vs. Dobre (NEL) Defendant's filed their Reply to the
Opposition to the Motion to Dismiss in this $10m Bivens case for
deliberate indifference of serious medical need - low back condition.
The case dates back to 1991 and with its convoluted history the US
Attorneys Office is hopeful the Motion will be granted and the case
brought to a satisfactory end.
White vs. Cobos, (LOS) DAP habeas petition contesting ineligibility
due to 922 (g)
conviction granted;
BOP ordered to reconsider
eligibility.

(

CRDfINAL CASE TRACKmG

Criminal Cases
JAN

FEB

MAR

APR

MAY

JON

.:nJL

AUG

SEP

OCT

ROV

DEC

Referred

29

19

22

18

21

22

16

12

13

22

31

14

Accepted

1

4

0

1

4

4

4

0

1

4

0

0

Dec1ined

15

16

16

11

19

11

9

12

6

12

17

18

Pending'
Decision

13

28

32

35

31

38

41

25

24

30

49

45

HEW INFOmaT:tON ON ACTIVE PROSEctr.r:tONS

ASSAULT

United States vs. Sandoval-Parra, (SAF) Inmate sentenced to 7 month
term for assault on correctional officer.
United States vs. Mendoza-Aguilar, (TCN) Prosecution accepted for
11/24/99 inmate assault on correctional officer with fists which
resulted in contusions, abrasions.

3

4458

United states vs. Carlos Villegas, (LOM) Inmate on inmate assault
that occurred on 12/14/96, at USP Lompoc.
Indictment returned on
12/10/99.

(

United states vs. Rowe, (LOM) 1995 riot case.
Indictment involving
six inmates returned 12/21/99. Indictment involves 4 counts of
rioting and 13 counts of Assault.
United states vs. Kevin Guyton, (LOM) Inmate on staff assault on
08/14/97.
Indictment returned 12/28/99.

STATISTiCS
AD~NISTRATIVE

JAN

FEB

MAIl

APR

MAY

JUN

JOL

AUG

SEP

OCT

NOV

DEC

80

94

108

91

31

129

96

70

75

63

92

73

FREEDOM

(

REMEDIES

OF INFORMATION/PRIVACY ACT:

JAN

FEB

MAR

APR

MAY

.roN

JUL

AUG

SEP

OCT

NOV

DEC

RECEIVED

27

38

29

37

26

32

31

40

35

24

13

39

CLOSED

24

34

41

36

24

31

25

46

34

26

20

21

PENDING

19

23

11

12

14

15

21

15

16

14

7

25

30 DAYS

1

3

1

1

1*

0

0

0

0

1*

0

2**

6 MONTBS

0

0

0

0

0

0

a

0

0

0

0

0

3
3
3
1
2
2
2
0
a
1
1
APPEALS
* WAITING FOR RECORDS FROM CONTRACT FACILITY
**Requests received from Central Office within 5 days of due date.

0

FOI/PA PENDING MORE THAN 20 DAYS:
B:aN

DUB

LOF

LOM

LOS

BEL

PBX

SAP

SDC

SET

SHE

TAF

TCN

TRM

TOTAL

0

a

0

0

0

a

0

0

0

0

0

0

0

0

0

ADMINISTRATIVE TORT CIAIMS
JAN

FEB

MAR

APR

MAY

JON

JUL

AUG

RECEIVED

30

39

45

38

36

35

33

51

38

CLOSED

31

43

40

38

38

48

25

34

RECONSiDER

1

a

a

1

1

2

0

2

4

4459

SEp· OCT

NOV

DEC

42

44

41

50

32

57

32

1

a

a

1

"'

ADMINISTRATIVE TORT CLAIMS
\.,

PENDING

95

91

96

97

96

85

93

112

101

111

98

108

OVER 6

0

2

0

3

1

0

0

4

4

2

5

2

HON'l'BS

Tort Claim Investigations Over 60 Days:
BRN

DUB

LOF

LOM

LOS

BEL

PBX

SAF

SDC

SET

SHE

TAF

TCN

TRM

TOTAL

0

5

0

1*

5

0

0

0

0

0

1

0

0

0

12

*PendJ.ng OIG
LITIGATION:
JAN

FEB

!mR

APR

laY

JON

JtJL

AUG

SEP

OCT

NOV

DEC

356

383

389

391

372

378

381

318

338

352

361

370

NEW CASES
BBCEIVED

30

9

19

16

14

13

23

20

19

16

13

14

BC

26

8

16

14

9

9

15

16

15

14

8

11

!".rCA

1

0

1

0

0

2

1

3

0

0

2

0

BIVENS

3

1

2

2

5

2

4

1

3

2

3

3

OTHER'

0

0

0

0

0

0

3

0

1

0

0

0

CLOSED

3

3

10

10

8

10

86 1

0

5

7

4

5

PENDmG AT

383

389

391

397

378

381

318

338

352

361

370

379

29

7

7

16

13

14

14

14

25

15

16

12

OPEN AT
BEGDm:rNG
01' MONTH

END OF
HO~H

LJ:TJ:GATJ:ON
BBPORTS
COMPLETED

1. Comprehensive audit was conducted July 6-9, 1999, resulting in an
adjustment to number of pending cases. Cases pending at end of July is 318.
5

4460