Fbop Wxr Monthly Reports 2000jan-dec

Fbop Wxr Monthly Reports 2000jan-dec

• Topics: Court Access, BOP Litigation Reports

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u.s. Department of Justice

Federal Bureau of Prisons

Dublin, California 94568

February 14, 2000
MEMORANDUM FOR CBRJ:STOPBER ERLEWZNE, ASSISTANT DIRECTOR/
GENERAL COUNSEL, GENERAL COUNSEL & REVJ:EW

FROM:

Harlan W. Penn, Regional Counsel

SUBJECT:

Monthly Report for January 2000
LITIGATION

NEW CASES (3621 (e»
I

Adams vs. Pendleton, (TCN) DAP petition complaining of 3621(e)
ineligibility due to instant 922(g) conviction and prior for armed
robbery. On January 5, 2000, judge issued order" denying petition.
Brooks vs. Hood, (SHE) OAP petition complaining of 3621(e)
ineligibility due to 2 point weapon enhancement.
Colfax vs. Hood, (SHE) OAP petition complaining of 3621(e)
ineligibility due to 922(g) conviction and history of aggravated
assault.
Hinton vs. Calcotte, (LaM) OAP petition complaining of 3621(e)
ineligibility due to 922 (g) conviction.
Robinson vs. Hood, (SHE) OAP petition complaining of 3612(e)
ineligibility due to 922(g) conviction and history of robbery.

(

Stephens vs. Hood, (SHE) OAP petition complaining of 3621(e)
ineligibility. Petitioner was determined to be ineligible on the
presumption of a 2 point enhancement. Despite having had a prior 18
u.s.c. 924(c) conviction vacated, the BOP presumes (absent clear
intent of the court to the contrary) the inmate would have received
a 2 point enhancement had he not been convicted of the 924(c).
Petitioner also ineligible based on a history of aggravated assault.

4449

(

NBW CASES (Non 3621(e»

Ames vs. Pontesso, (PHX)
personal property.

Bivens complaint alleging staff lost his

Barroca vs. Federal Detention Center, Dublin, (DUB) Inmate seeking a
temporary restraining order to stop the installation of the Inmate
Telephone System II at the FDC. Inmate claims that he is not a
class member of the Washington vs. Reno.
Cleveland vs. Hood, (SHE) Habeas petition challenging denial of
visiting privileges and calculation of payments under the Inmate
Financial Responsibility Program (IFRP).
Frias vs. Hawk, (SDC) Bivens complaint alleging he was denied
adequate medical care, improper vaccination, and that staff
incorrectly addressed their mistake.
Moreno vs. Hood, (SHE) Habeas petition challenging calculation of
payments under the Inmate Financial Responsibility Program (IFRP).
Rogers vs. BOP, (DUB) Bivens complaint alleging denial of access to
courts by denial of personal property and legal mail.
Rowe vs. Tharpe, (LOM) Habeas petition complaining of discipline
charge for assaulting another arising out of 1995 riot.
(Note:
petitioner currently being prosecuted for participation in 1995
riots. )
Venegas vs. Hood, (SHE) Habeas petition contesting the determination
that surgery was not medically necessary.
SIGNIFICANT DEVELOPMENTS/APPEALS

Alvarado vs. Fitzpatrick, (LOM) Order dated August 26, 1999, denied
habeas petition and terminated case.
Barth vs. Reno, (TCN) Title VII civil rights complaint alleging
gender, age,. and handicap discrimination in employment. Plaintiff,
a retired PHS Nurse Practitioner, alleged a pervasive, hostile work
environment forced her to take early retirement. On January 6,
2000, Judge William D. Browning adopted the Magistrate's Report and
Recommendation and granted Defendant's Partial Motion for Summary
Judgement with respect to the constructive discharge claim.
Ford vs. Pontesso, (PHX) BOP ordered to reconsider petitioner's
3621(e) eligibility. Originally denied eligibility due to 2 point
weapon enhancement.

4450

(

Gerritsen vs. Pontesso, (PHX) R&R issued advising dismissal of case
in which inmate has a conviction for escape from a camp.
Holmes vs. United States (SDC) Plaintiff alleged inadequate medical
care when he slipped while climbing to the upper bunk bed.
Magistrate Judge Burns has set this matter for a conference on
February 24, 2000.
Kennedy vs. United states, (LaM) Order dated August 19, 1999,
dismissed both the tort claim and claims against individual
de,f endan t s .
Miller vs. Reese, (DUB) Inmate was erroneously informed of her
eligibility for a sentence reduction on or about August 10, 1995 several weeks after Program Statement 5162.02 was issued in July
1995. In a non published opinion, the Ninth Circuit Court of
Appeals affirmed the denial of the one year early release pursuant
to 3621(e). The Court found inmate's arguments regarding
retroactivity and due process without merit.
Ordaz-Diaz vs. Perrill, (SET) On January 25, 2000, Magistrate Judge
Weinberg recommended dismissal of the petition based on Petitioner's
failure to exhaust his administrative remedies.
Plata vs. Cobos, (LOS) Chief Judge Hatter, ordered BOP to reevaluate petitioner's eligibility for early release. Petitioner was
originally denied eligibility due to 2 point weapon enhancement.
Richenback vs. Fitzpatrick, (LaM) BOP ordered to
petitioner's 3621(e) eligibility.

reconsid~r

Robinson vs. Hawk, (SDC) Court granted government's motion to
dismiss, without prejudice, complaint alleging improper transfer,
designation, and housing.
Romero vs. United States, (PHX) This inmate suicide case had earlier
been reported as settled. After verbally accepting the settlement
offer, the decedent's life companion and mother of his surviving
minor children rejected the settlement offer. A motion to dismiss
is expected to be filed in the near future.
Teran vs. Morrison, (LaM) Order dated October 7, 1999, dismissed
case without prejudice for lack of prosecution.
Wilson vs. Perrill, (SET) R&R recommended dismissal of petition due
to Petitioner's failure to raise an issue challenging the legality
or duration of his confinement.

4451

CRIMINAL CASE TRACKING

(

Criminal Cases
JAN

Referred

Accepted

Dec1ined

Pending
Decision

FEB

!GR

APR

MAY

JON

JUL

AUG

SEP

OCT

NOV

DEC

NEW INFOmmTION ON ACTIVE PROSEc:trlJ:ONS
ASSAULT

(

United states vs. Amaya-Jaquez, (TCN) Defendant Amaya pled guilty on
October 29, 1999, to 3 misdemeanor assaults, and was sentenced on
January 13, 2QOO, to 6-months C.A.G. consecutive to current federal
term. AUSA admitted that he was unaware of the full extent of
Amaya's offense (assaulted 3 BOP officers and almost caused a larger
scale disruption involving other inmates) when he entered into plea
agreement. Judge Zapata agreed, stating that Amaya was receiving an
extremely lenient sentence, ~a break he does not deserve," and
contemplated exceeding the guidelines, however, he realized it would
undoubtedly be overturned on appeal. We are seeking aggressive
prosecution on 2 pending assault cases, one of which resulted in
serious physical injury to a staff member.
United states vs. Lopiccolo, (LOM) Inmate on inmate assault at FCI
Lompoc February 1997. Trial held on January 4 and on January 5,
Defendant Fleming plead guilty to Conspiracy to Commit Assault. On
January 7, 2000, Defendants Lopiccolo and Davidson plead guilty to
Assault with a Dangerous Weapon with Intent to do Bodily Harm.
Davidson and Lopiccolo are scheduled to be sentenced on February 2,
2000; Fleming is scheduled for sentencing on September 8, 2000.
United States vs. Ponce-Hernandez, (TCN) On January 11, 2000, inmate
Ponce-Hernandez assaulted a Correctional Officer, causing multiple
fractures of the right orbital region and temporal mandibular joint,
which required surgery to repair. Post-surgically, officer was
suffering from blurred, double vision in right eye. AUSA accepted
case for prosecution January 13, 2000.
United States vs. Mendoza-Aguilar, (TCN) AUSA accepted case for
prosecution of inmate on staff assault which resulted in multiple
contusiqns and abrasions to the face and upper torso to staff
4

4452

(

member.
United states vs. Guyton (LOM) Inmate on staff assault in August
1997 at USP Lompoc. Indictment returned on December 28, 1999. No
trial date yet.
United States vs. Joseph Frank Rowe, et al., (LOM) Case involves the
1995 riot. Indictment involving six inmates was returned on
December 21, 1999. Indictment involves four counts of rioting and
thirteen counts of assault.
United States vs. Villegas (LOM) Inmate on inmate assault at USP
Lompoc in December 1996. Indictment returned December 10, 1999.
trial date yet.

United States vs. Wehmhoefer, (LOM) Inmate on inmate assault at USP
Lompoc in March 1997. Trial began on January 25, 2000, and inmate
was found guilty of assault with intent to commit murder, assault
with a dangerous weapon with intent to do bodily harm, and assault
resulting in serious bodily injury. Sentencing set for April 17,
2000.
INTRODT1CT:ION/POSSESS:ION OF CONTRABAND

United States vs. Brooks, (LOM) Indictment against correctional
officer for Bribery of a Public Official and Attempting to Provide
or Possess Contraband in a Prison returned on January 26, 2000. No
trial date yet.
United States vs. Dixon, (SHE) Inmate indicted for possession of a
controlled substance in prison. Trial set for February 8 & 9, 2000.
United States vs. Salazar-Martinez, (PHX) Inmate and visitor
indicted January 25, 2000, for introduction of contraband into
institution.
OTHER

United States vs. Ressam, (SET) On January 20, 2000, a nine(9) count
superseding indictment was filed against Ahmed Ressam and Abdelmajid
Dahoumane. The defendants are charged with An Act of Terrorism
Transcending a National Boundary, Placing an Explosive in Proximity
to a Terminal, False Identification Documents, Use of a Fictitious
Name for Admission, False Statement, Smuggling, Transportation of
Explosives, Possession of an Unregistered Firearm, and Carrying an
Explosive During the Commission of a Felony. The trial date was
postponed until July 2000. The Special Administrative Measures
under 28 C.F.R. § 501.3 remain in place for inmate Ressam.

4453

(

STATISTICS
AD~NIST.RATlVE

MAR

FEB

JAN

APR

MAY

JON

REMEDIES
JtJL

SEP

AUG

OCT

NOV

DEC

102
FREEDOM OF INFORMATION/PRIVACY ACT:
JAN

UCBIVED

CLOSED

PENDZNG

30 DAYS

6 MON'.rBS

APPEALS

FEB

MAR

APR

MAY

JON

JtJL

AUG

SEP

OCT

NOV

DEC

*2 rece1ved with1n 5 days of due date, one after due date.
;'

FOI/PA PENDING MORE THAN 20 DAYS:

Bmt

DOB

LOP

LOM

LOS

NEL

PBX

SAP

SDC

SET

SHE

TAl'

TCN

TBM

TOTAL

SEP

OCT

NOV

ADMINISTRATIVE TORT CLAIMS
JAN
RECB:tVED

CLOSED

DCONsmER

PENDmG

103

OVER 6
MONTHS

FEB

MAR

APR

laY

JON

JtJL

AUG

DEC

Tort Claim Investigations Over
BRN

TOTAL

4454

(

Tort Claim Investigations Over 60 Days:
0

JtJL

AUG

SEP

OCT

HOV

LITIGATION:
JAN

OPEN AT
BEG:mH:IHG
OF KONTH

379

NEW CASES

FEB

MAR

APR

MAY

JON

DEC

RBCE:IVED
He

ftCA

(

B:IVEHS

OTHER

CLOSED

PENDDlG AT
END OF

388

MORTB

LITIGATION
REPORTS

COMPLE~

MISCELLANEOUS

Wilson Moorer (PHX) was selected as Employee of the Month for February,
2000.

4455

u.s. Department of Justice

Federal Bureau of Prisons

Dublin, California 94568

March 8, 2000
MBKORANDtlM FOR CHRISTOPHER ERLEWINE, ASSISTANT DIRECTOR/
GENBRAL COONSBL, GENERAL COONSBL , REVJ:EW

FROM:

Harlan W. Penn, Regional Counsel

SOBJBCT:

Monthly Report for February 2000
LJ:TJ:GATJ:OH

NEW CASBS (3621(e»

(

Fitzwater vs. Hood, (SHE) OAP petition contesting 3621(e)
ineligibility due to 2 point weapon enhancement.
Narte vs. Hood, (SHE) OAP petition contesting 3621(e) ineligibility
due to prior state conviction for Assault II.
Pullins vs. Hood, (SHE) OAP petition contesting 3621(e)
ineligibility due to 922(g) conviction.
Robertson vs. Clark (LOM) OAP petition contesting 3621(e)
ineligibility due to 2 point weapon enhancement.
Shelton vs. Clark (LOM) OAP petition contesting 3621(e)
ineligibility due to 922(g) conviction.
Tezak vs. Pendleton (TCN) OAP petition contesting 3621(e)
ineligibility due to old-law inmate status, detainer, and current
conviction for threatening a witness, 18 U.S.C: 1512(b).
NEW CASES

(NOD

Bryant vs. BOP,
action.
"

3621(8»
(SET) Habeas petition contesting CCC discipline

Cervantes-Munoz vs. Pendleton,
imposed discipline.

(TCN) Habeas petition contesting OHO

3650

(

Glasner vs. United States (SHE) FTCA action arising from assignment
to an upper bunk, inadequate means for accessing the upper bunk, and
inadequate medical care.
Marsh vs. United States (DUB) Combined FTCA/Bivens complaint ar~s~ng
from medical treatment for alleged ruptured breast implant caused by
alleged improperly performed mammogram and rectal bleeding.
Rogers vs. Bureau of Prisons, (PHX) Bivens action alleging staff
willfully withheld legal and pers~nal property.
Swan vs. United States (DUB) Combined FTCA/Bivens suit complaining
of medical treatment provided after inmate on inmate assault.
Weling vs. Bailey, (SAF) Habeas petition contesting DHO action for
theft while in CCC which resulted in return to closer custody and
subsequent failure to complete DAP.
White vs. Pontesso, (PHX) Habeas petition contesting allegedly
illegal custody because all counts on his Judgment and Commitment
Order were dismissed (clerical error).
SIGNIFI~

(

DBVBLOPMBNTS/APPBALS

Aguirre vs. Clark, (TRM) Inmate is a Bowen class inmate. AUSA plans
to file a motion to stay proceeding until Ninth Circuit can rule on
Federal Public Defender's motion to rehear Bowen/Gavis case.
Barroca vs. Federal Detention Center, (DUB) Inmate Barroca f·iled a
Temporary Retraining Order seeking to stop the installation of the
Inmate Telephone System II at the FDC. Barroca claims that he is
not a class member of the Washington v. Reno. The Court has
dismissed Barroca's complaint without prejudice for failure to
exhaust his administrative remedies.
Blue vs. Bailey, (SAF) Ninth Circuit ordered remand with instructions
to dismiss this sentence credit case on February 10, 2000.
Carter vs. United States (TRM) Medical malpractice case. Although we
received a favorable R&R filed January 7, 2000, advocating dismissal
of case without prejudice for failure to timely serve government,
the court has ordered us to respond to fact that inmate did his part
by informing US Marshals to serve government.
Davis vs. Rardin, (LOM) Order dated January 27, 2000, dismissed
complaint and terminated case.
Iniego vs. Clark, (TRM) RDAP staff missed a 2 point SOC and found
inmate eligible for year off. Judge has issued an R&R and amended
R&R that recommends relief for the inmate based on promissory
estoppel theo~ies, and alternatively, on Cort. However, there is no
"affirmative misconduct" as required to apply estoppel against the
government, and Cort does not apply as inmate was first evaluated in
2

3651

March 1998, after the issuance of the Director's Discretion policy.
Government objections filed.
Janis vs. Rardin, (LaM) Order dated February 7, 2000, dismissed
complaint and terminated case.
Motions to dismiss filed in Ford v. Pontesso, McArtor v. Pontesso,
Shaw v. Pontesso, and Wood v. Pontesso (PHX) , based on the recent
opinion in Bowen v. Hood.
Parmelee vs. Perrill, (SET) Bivens complaint dismissed with
prejudice for plaintiff's failure to pay court imposed sanctions
under Rule 11.
Sauseda vs. Bureau of Prisons, (PHX)
11, 1999.

Dismissed by court on August

Ninth Circuit upheld the Director's discretion contained in Program
Statement 5162.04 in Bowen v. Hood, 2000 WL 126588 (9th Cir. (OR»
(SHE). The opinion refers to two groups of inmates: the Gavis Group
and the Bowen Group. With regard to the Gavis inmates, the Court
upheld the Director's decision to use the discretion vested in her
by Congress to categorically deny otherwise statutorily eligible
inmates early release. With regard to the Bowen inmates, the Court
held the BOP may not retroactively apply Program Statement 5162.04
to inmates who had previously received a favorable eligibility
determination even though they had not yet entered the DAP.
Vaccaro vs. Dobre (NEL) 1991 $lOm Bivens case for deliberate
indifference of serious medical need - low back condition. BOP
Defendants' Motion to Dismiss was granted in part. Three defendants
and related causes of action have been dismissed from the case. Two
defendants remain with specific issue identified by Court - whether
staff issued order to inmate to lift furniture, and if so was order
in violation of known medical restrictions. Pretrial Order is due
March 6. Case to be set for trial as to remaining defendants.
Williams vs. Bailey, (SAF) DHO-based habeas petition dismissed by
court on February 3, 2000.
Wilson vs. Perrill, (SET) On January 27, 2000, Judge Zilly adopted
the magistrate's Report and Recommendation and dismissed habeas
corpus petition due to his failure to raise an issue challenging the
legality or duration of his confinement.

CRIMINAL CASE TRACKING

Criminal Ca.e.
JAN

FEB

Referred

Accepted

Declined

Panding
Decision

M1Ul

APR

JON

MAY

JUL

AUG

SBP

OCT

NOV

DBC

NEW INI'OIGaTION ON ACTZVE PROSBCUTIONS
ASSAULT

united States vs. Guthrie, (PHX) AUSA tentatively accepted for
prosecution inmate on staff assault which resulted in staff member
requiring sutures and outside medical attention.
United States vs. Ung, (SET) AUSA accepted for prosecution (but no
formal charges yet) inmate on staff assault.
United States vs. Mendoza-Aguilar, (TCN) AUSA accepted for
prosecution inmate on staff assault resulting in multiple contusions
and abrasions to staff's face and upper torso.
United States vs. Milton, (LOM) Indictment for May 8, 1999, inmate
on staff assault returned on February 2, 2000. No trial date yet.
United States vs. Ponce-Hernandez (TCN) AUSA accepted for
prosecution inmate on staff assault which resulted in staff
receiving multiple fractures to right orbital region and jaw which
required surgical repair.
BSCAPB

United States vs. Nikrasch, (LOM) FPC Lompoc escape and counterfeit
case sentencing has been continued until May 2000.
HOMICIDE

United States vs. Green, (LOM) Trial has been continued until June
20, 2000. Staff met with Williams family and staff victim in
preparation of victim impact statement.

(_....

IN'l'RODUCTION/POSSESSION OF CONTRABAND

United States vs. Brooks, (LOM) Case involves correctional officer
that has been charged with Bribery of a Public Official, 18 U.S.C.
§201(b) (2) (c) and Attempt to Provide or Possess Contraband in a
Prison, 18 U.S.C. §1791. Indictment returned on January 26, 2000.
Case is scheduled for trial on March 14, 2000.
United States vs. Dixon, (SHE) Inmate Dixon pled guilty to
possession of controlled substance in prison on February 8, 2000.
STATISTICS

ADHIHISTRATIVB ItZMBDIBS
JAN

FEB

102

MAR

APR

MAY

SEP

AUG

JOL

JtJN

OCT

NOV

DEC

FRBBDON 01' IRI'OItMATIOH/PlUVACY AC~:

JAN

I'BB

RBCBIVBD

CLOSED

PENDING

47 .

30 DAYS

6 MOH'rBS

APPEALS

rece~ved w~th~n

MAR

APR

K.\.y

JON

JUL

AUG

5 days of due date, 1 records

SBP

pend~ng

OC~

NOV

DBC

from Archives

FOI/PA PBHDDfG HOD TIIAH 20 DAYS:
BRH

DUB

LOi'

LOM

LOS

HBL

PBX

SAl'

SDe

SET

SBE

TAl'

TCN

TBM

(
5

3654

·'

ADMINISTRATIVE TORT CLADIS
JAN

FEB

DCBIVED

CLOSED

DCONSIDER

PENDING

103

0VBlt 6

lGR

APR

lG.Y

JON

JUL

AUG

SEP

OCT

HOV

DEC

KOHTBS
Tort
I

Cl~

Investigations Over 60 Days:

BRB

DUB

LOI'

LOX

LOS

NEL

PBX

SAl'

SDC

SET

SBE

TAl'

TCN

TBN

TOTAL'

JUL

AUG

SBP

OCT

HOV

LITIGATION:

OPBR H
BBGINHIHG

JAB

J'BB

379

388

lGR

APR

MAY

JON

01' MOIft'B
HBW CASBS

DCBIVBD

ftCA

BIVZHS

OTBBR

CLOSED

PBHDIHG AT
BND OF

388

393

MONTB

LITIGATION
~ REPORTS
COMPLETED

3655

DBC

•

•
~SCELLANBOUS

(

The FeI Terminal Island Legal Department offices will be closed from
March 23 to April 3, 2000, due to asbestos ab~tement.
FC! Phoenix Warden Pontesso and Attorney Matt Carney are scheduled to
meet with Jose Rivera, United States Attorney on March 6 to discuss the
handling of civil cases involving FCI, Phoenix.

l
7

3656

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

April 4, 2000
MEMORANDUM FOR CHRISTOPHER ERLEWINE,. ASSISTANT DIRECTOR/
GENERAL COUNSEL, GENERAL COUNSEL & REVIEW

FROM:
SUBJECT:

Harlan W. Penn, Regional Counsel
Monthly Report for March 2000
LITIGATION

.(.
'I,..

NEW CASES (3621(e»
Armenta-Baeza vs. Barron, (LOM) DAP petition contesting 3621 (e)
ineligibility due to 2 point weapon enhancement.
Loyd vs. Adams, (LOM) DAP petition contesting 3621(e) ineligibility
due to 922(g) conviction.
Torres vs. Hood, (SHE) DAP petition contesting 3621(e) ineligibility
due to prior conviction for assault.
NEW CASES (Non 3621(e»
Arriaga vs. Hawk, (PHX)
Habeas petition seeking federal credit for
time already credited to state sentence.
Ciglar vs. Andrews, (TCI) Habeas petition contesting DHO action
which resulted in transfer and subsequent inability to complete
RDAP.
Crooker vs. Adams, (LOM) Habeas petition regarding manuscript
concerning explosives.
Cruz-Pagan vs. Holder, (LOM) Bivens complaint alleging failure to
protect at USP and subsequent inadequate medical care at USMCFP.
Davis vs. Hood,
calculation.

(SHE) Habeas petition challenging his sentence

3677

Duvall vs. Hood, (SHE) Habeas petition requesting protective custody
status because of his mental condition.
Flowers vs. United States, (LOM) Represented FTCA suit complaining
of assault by staff and failure to train.
Gossai vs. Federal Bureau of Prisons,
restrictions on visitation.

(LOM) Bivens action contesting

Harper vs. Banderant, (LOM) Bivens action in which multiple
plaintiffs allege staff failed to release them from SHU after
investigation concerning incident between rival gangs.
Lucas vs. LeBlanc, (SDC) Habeas petition claiming district court had
no jurisdiction to execute extradition certification and that
petition is improperly held. Order to Show Cause hearing held March
27, 2000; court ordered U.S. Marshals Service to stay extradition
until April 25, 2000.
Merriweather vs. Hood, (SHE) Habeas petition challenging DHO action
and seeking restoration of good time credits.
Reyes vs. MCC, (SDC) Represented Bivens complaint alleging denial of
medical care resulting in infection, surgery and subsequent hand
deformity.

(

Sandez vs. Hood,
treatment.

(SHE) Habeas petition challenging medical

Shorter vs. Rardin, (LOM) Habeas petition challenging DHO hearing
which was held in response to court ordered rehearing in previous
habeas petition.
Valdez-Pacheco vs. Franco, (LOM) FTCA/Bivens complaint alleging
failure to place relatives on plaintiff's visiting list.
Williams vs. Feathers,
process.

(LOS) Bivens complaint regarding discipline

SIGNIFICANT DEVELOPMENTS/APPEALS

Betz vs. Crabtree, (SHE)
The Ninth Circuit issued a favorable
ruling holding the BOP had discretion to deny early release because
of his history of attempted escape. Further, the Court wrote "even
though the BOP had announced that it had exercised its discretion in
Betz's favor (with knowledge of the underlying facts of the
conviction that it now claims makes Betz ineligible), it has the
power to change its mind." The opinion has been submitted for
publication.
i

Harbaugh, Register No. 09431-023 and Earls, Register No. 60706-065
(SET) emergency motions were heard in USDC in Portland. The Federal
Public Defender's Office (FPD) sought to have Judge Haggerty issue

3678

(

an order to enforce his previous orders granting the petitioner's
writs, despite the contrary ruling by the Ninth Circuit in Bowen vs.
Hood. Judge Haggerty denied the FPD's request. The FPO then sought
an-emergency order from the Ninth Circuit enforcing the District
Court's previous order. The Ninth Circui t denied the FPD's request.
Janis vs. Rardin, (LOM) Notice of Appeal Filed by inmate on March 9,
2000.
(Case reported dismissed in February 2000 report.)
LaFrance vs. Wand, (LOS) USDC ordered Bureau to reconsider 3621(e)
eligibility regarding prior violent conviction. Agency request for
appeal currently pending.
Lund vs. United States, (SET) On March 16, 2000, both parties
participated in court-mandated mediation.
Settlement attempts were
unsuccessful.
Merritt vs. Morek, (LOS) Majority of Bivens complaint gutted by
Magistrate's R&R.
If adopted, only retaliation claim against 3
defendants will proceed.

Parmelee vs. Benov, (SOC) Plaintiff's appeal to 9th Circuit
dismissed for failure to pay filing fee.
(Complaint originated with
various instituti6ns rejecting manual "Hbw to Win Prison Discipline
Hearings" . )
Pettis vs. u.s. Navy, (SDC) Plaintiff, a former halfway house
resident, claims sexual harassment at the hands of a top Navy
official who supervised her cadre unit on the North Island Naval
Base. Judge Brewster signed an order February 10, 2000, dismissing
all BOP defendants with regard to Plaintiff's FTCA and Bivens
claims. Plaintiff was granted leave to amend; however, if she fails
to do so, this case will proceed as a Title VII action against the
Secretary of the Navy and defendant Jackson (Naval official).
Rogers vs. Lathers (SOC) Petitioner has filed an appeal with the
Ninth Circuit seeking review of the district court's findings.
Petitioner originally sought immediate release from federal custody.
He was charged with Escape (from a halfway house) and has been
returned to closer custody.
CRIMINAL CASE TRACKING

Criminal Cases
FEB
JAN
13
Referred 22
Accepted 3
5
8
Declined 27
28
32
Pending
Decision

MAR

APR

MAY

JON

22
3
5

3679

JUL

AUG

SEP

OCT

NOV

DEC

NEW INFORMATION ON ACTIVE PROSECUTIONS

(

ASSAULT
United States vs. Guma, (SET) USAO accepted for prosecution an
inmate on staff assault occurring March 17, 2000.
United States vs. Guyton, (LOM) Defendant pled guilty to one count
in inmate on staff assault which occurred in August 1997.
Sentencing set for April 24, 2000.
United States vs. Lillie,
for April 25, 2000.

(LOM) Trial involving 1995 riot scheduled

United States vs. Lopiccolo, (LOM) Inmate on inmate assault on
February 4, 1997, at FCI Lompoc. Sentencing of Davidson and
Lopiccolo took place March 29, 2000~ After pleas of guilty to
Assault with Dangerous Weapon with Intent to do Bodily Harm,
Davidson was sentenced to 92 months consecutive to his current
sentence, with 3 years supervised release and $100 special
assessment.
Lopiccolo sentenced to 63 months, with 3 years
supervised release and $100 special assessment.

United States vs. Rowe,
for May 2, 2000.
...

(LOM) Trial arising from 1995 riot is set

united States vs. Villegas (LOM) Trial arising from inmate on inmate
assault in December 1996 set for May 2, 2000.
INTRODUCTION/POSSESSION OF CONTRABAND
United States vs. Brooks, (LOM) Case involves correctional officer
charged with Bribery of a Public Official and Attempt to Provide or
Possess Contraband in a Prison. On February 25, 2000, Brooks pled
guilty to one count of Bribery of a Public Official. Contraband
charge dismissed as part of the plea agreement. AUSA indicated
Bribery charge carries the more severe penalty.
Sentencing
scheduled for May 23, 2000.
SEX OFFENSES
(SDC)
Two male staff members are under grand jury investigation for
sexual abuse of a ward. AUSA Amalia Meza has been assigned to this
matter.
STATISTICS

ADMINISTRATIVE REMEDIES
JAN
102

FEB
81

I FREEDOM

MAR

APR

MAY

JUN

OF INFORMATION/PRIVACY ACT:

3680

JUL

AUG

SEP

OCT

NOV

DEC

(

APR MAY
JAN
FEB MAR
42
52
RECEIVED 28
1929
72
CLOSED
24
47
27
PENDING
30 DAYS
3*
2*
5*
0
0
6 MONTHS 0
6
1
1
APPEAL.S
*Waiting for records from Archives
FOI/PA PENDING
BRN DUB LOF
0
0
0
*Wa~t~ng for

JON

MORE THAN 20 DAYS:
LOM LOS NEL I PHX SAF
0
0
0
0
/0
records from Archives

SDC
0

JUL

SET
0

AUG

SHE
4*

SEP

TAP
0

OCT

NOV

DEC

TCN I TRM
0
/1*

TOTAL
0

OCT

DEC

ADMINISTRATIVE TORT CLAIMS

JAN
RECEIVED
CLOSED
RECONSIDER
PENDING
OVER 6
MONTHS.

29
34

FEB
38
44

103
2

97
3

MAR

APR

MAY

JON

JUL

AUG

SEP

NOV

33
52
1
79
2

Tort Claim Investigations Over 60 Days:
BRN DUB LOF LOM LOS NEL PHX SAF SDC
0
0
,0
0
0
0
0
0
1*

SET
0

SHE
2

TAF

TeN
0

TRM
0

TOTAL

JUL

AUG

SEP

OCT

NOV

DEC

* Matter has pending litigation
LITIGATION:

JAN
OPEN AT
BEGINNING
OF MONTH
NEW CASES
RECEIVED
HC

MAR

379

FEB
388

FTCA

APR

MAY

JON

393

BIVENS

OTHER

3681

(_
"

...

CLOSED

PENDING AT
END OF
MONTH
LITIGATION
REPORTS
COMPLETED

388

393

411

MISCELLANEOOS

The Terminal Island legal department is temporarily relocated through
the month of April 2000.
On March 27, 2000, the former FeI Phoenix Employee Development Manager
was sentenced to life without the possibility of parole for the murder
of 2 individuals in Phoenix. Defendant was not employed by Bureau at
time of murders.

3682

u.s. Department of Justice

(

Federa1 Bureau of Prisons

Dublin, California 94568

May 2, 2000
MEMORANDUM FOR CBRXSTOPBER ERLEWD1E, ASSISTANT DIRECTOR/
GENERAL COUNSEL, G:&:N:&:RAL COUNSEL & REVJ:EW

FROM:

Harlan W. Penn, Regional Counsel

SUBJECT:

Monthly Report for April 2000
LITIGATION

NEW CASES (3621(e»

Cheung vs. Clark, (TRM) Habeas petition contesting 3621(e)
ineligibility due to current conviction for 18 U.S.C. § 892, 894,
Extending Credit Through Extortionate Means, which falls under
Director's Discretion policy.
Torres vs. Hood, (SHE) Habeas petition contesting 3621(e}
ineligibility due to prior assault conviction.
NEW CASES (Non 3621(e»

Chilcothe vs. Hawk, (SHE) Bivens action challenging FDC Sheridan's
housing three inmates per cell with limited time out of the cell
each day.
Clark vs. Arizona Department of Corrections (PHX) Habeas petition
by Arizona state inmate with a 120-month concurrent Federal
sentence, in which he requested a Federal sentence computation.
Cozine vs. United States (SHE) Bivens/FTCA action seeking damages
for improperly denying inmate the ability to serve state and federal
sentences concurrently. Previous opinion by Judge in District of
Oregon Habeas petition found the inmate had been "wrongly confined"
for approximately 19 months.
Folawiyo vs. Schultz (DUB) Habeas petition regarding computation of
supervised release violator term and State sentence.
1

4443

Grant vs. Reno, (LOS) The plaintiff, a former contract employee,
alleges breach of contract, wrongful termination, and
discrimination.

(

Molina vs. Hood, (SHE) Habeas petition challenging disciplinary
action.
Larson vs. Bureau of Prisons, Third Party Defendant, (NEL) Third
party plaintiff sues Bureau seeking contribution/indemnification as
a result of Parkin vs. Larson, originally venued in District Court,
Clark County, Nevada, now removed to District of Nevada. Former
employee Parkin complains of contract psychologist Larson's release
of information which resulted in Parkin's termination.
Renner vs. Hood, (SHE) Habeas petition challenging adequacy of
dental care provided by institution.
Rodriguez-Chevannes vs. Adams, (LaM) Bivens action complaining of
assault by staff, unsanitary condition, and denial of medical
attention.
Stewart vs. Adams, (LOM) Bivens action alleging deliberate
indifference in the provision of medical services, and failure to
notify next of kin of illness.
SIGNIFICANT DEVELOPMENTS/APPEALS

Cooney and Moore vs. Meese (DUB) - Bivens/injunctive action filed in
1987 by inmates to maintain individual room locks and inmate keys.
AUSA preparing declarations prior to giving 10 day notice to
Plaintiffs' counsel that inmate keys will be confiscated . .
Davis vs. Rardin, (LOS) Plaintiff filed Notice of Appeal in this
Bivens complaint concerning the conditions of confinement in the
Special Housing Unit.
Gerritsen vs. Pontesso, (PHX) On April 3, 2000, District Court
dismissed this DAP petition in which inmate had escaped from a Camp.
Lund vs. United States (SET) Case involves alleged slip and fall
exiting SHU shower. AUSA seeking settlement authority for up to
$50,000.
Richenback vs. Fitzpatrick, (LaM) The District Court for
District of California stayed the judgment in the habeas
action now on appeal in the Ninth Circuit. As a result,
petitioner's sentence was recalculated and his community
will be considered only as part of his Good Conduct Time

the Central
corpus
the
placement
sentence.

Rowe vs. Tharpe, (LaM) On March 31, 2000, Judge ordered case
transferred to the District of Colorado.

4444

(

The Federal Public Defender filed Applications to Vacate the
District Court's Orders Staying its Judgements Pending Appeal to the
U.S. Court of Appeals for the Ninth Circuit with the U.S. Supreme
Court in the following FCI Sheridan cases: Katz vs. Crabtree, Earls
vs. Hood, Harbaugh vs. Hood, and William's vs. Crabtree.
United states vs. Ressam, (SET) On April 21, 2000, the FBI renewed
the special administrative measures against inmate Ressam. Trial is
scheduled for July 10, 2000 in Los Angeles.
CRDaNAL CASE TRACKZNG

Criminal Cases
JAN

FEB

MAR

APR

Referred

Accepted

Declined

Pending
Decision

MAY

JON

JOL

AUG

SEP

OCT

NOV

DEC

NEW INFO:RMATION ON ACTIVE PROSECOTIONS
ASSAULT

United states vs. Guma: (SET) On April 20, 2000, the U.S. Attorney's
Office filed assault charges against INS detainee, Aga Guma, Reg.
No. 00607-461. Inmate Guma assaulted officer from behind, punching
and kicking him until responding staff were able to restrain him.
United states vs. Guyton (LOM) Case involves assault on staff that
occurred on August 14, 1997 at USP Lompoc. Sentencing date
continued until after June 12, 2000.
United States vs. Lillie, (LOM) Case involves the 1995 riot.
originally set for April 25 continued to July 25, 2000.

Trial

United States vs. Milton, (LOM) Case involves assault on staff that
occurred on May 8, 1998 at USP Lompoc. Trial is tentatively
scheduled for July 18, 2000.
United States vs. Rowe, (LaM) Case involves the 1995 riot.
originally set for May 2, 2000, has been continued.

Trial

United States vs. Villegas (LOM) Case involves the assault of
another inmate that occurred on December 14, 1996, at USP Lompoc.
The defendant pleaded guilty to Assault with a Dangerous Weapon with
3

4445

(

Intent to Do Bodily Harm on April 25, 2000.
scheduled for July 10, 2000.

Sentencing is

United States vs. Wehmhoefer, (LOM) Case involves the assault of
another inmate that occurred on March 4, 1997. Inmate found guilty
of Assault with Intent to Commit Murder, Assault with a Dangerous
Weapon with Intent to do Bodily Harm, and Assault Resulting in
Serious Bodily Injury. On April 17, 2000, inmate was sentenced to
life imprisonment.
United states vs. Williams, (LOM) Case involves the 1995 riot.
Trial originally set for May 9, 2000. AUSA has indicated trial will
likely be continued.
ESCAPE
United States vs. Terrance Nikrasch, (LOM) Case involves an escape
from the FPC in December 1995. Sentencing continued until May of
2000
BOMJ:CIDE
United States vs. Roy Green, (LOM) Trial has been continued until
June 20, 2000. Defense .counsel made a request for a continuance.
The BOP has not stipulated to the request. All of the Williams
family and the victims have been notified of the possible
continuance.
INTRODOCTION/POSSESSION OF

coNTRABAND

United States vs. Brooks, (LOM) Case involves correctional officer
that has been charged with Bribery of a Public Official and Attempt
to Provide or Possess Contraband in a Prison. Brooks pled guilty to
one count of Bribery of a Public Official. Contraband charge was
dismissed as part of the plea agreement. AUSA indicated that
Bribery charge carries the more severe penalty. Sentencing
scheduled for May 23, 2000.
STATISTICS

ADMINISTRATIVE REMEDIES
JAN

FEB

MAR

APR

102

MAY

.roN

(

4446

JtJL

AUG

SEP

OCT

NOV

DEC

(

FREEDOM OF INFORMATION/PRIVACY ACT:
JAN

FEB

1GB.

APR

RECErvED

CLOSED

PENDING

30 DAYS

6 MON'.rBS

APPEALS

MJ\.Y

JON

JtJL

AUG

SEP

OCT

NOV

DEC

*Wait1ng for records from Arch1ves.
MORE THAN 20 DAYS:

FOI/PA PENDING
BRR

DUB

LOF

LOM

LOS

NEL

PBX

SAP

SDC

SET

SHE

TAP

TCN

TItM

TOTAL

SEP

OCT

NOV

*Wa1t1ng for records from Arch1ves

ADMINISTRATIVE TORT CLAIMS
JAN

FEB

MAR

APR

RECEIVED

CLOSED

RBCONSmER

PEND:ING

103

OVER 6
MONTHS

MJ\.Y

JON

JtJL

AUG

DEC

Tort Claim Investigations OVer 60 Days:
BBN

DOB

LOF

LON

LOS

BEL

PBX

SAP

SDC

SET

SHE

TAF

TCN

TRM

TOTAL

* Matter has pend1ng I1t1gat1on

4447

LITIGATION:
JAN

FEB

!mR

APR

379

388

393

411

OPEN AT

MAY

BEGDmING

OF MONTB
NEW CASES
BBCE:IVED

BC
F'l'CA

BZVENS

OTHER

CLOSED

PENDING AT
END OF

388

393

411

422

MONTH

LITIGATION
REPORTS
COMPLETED

MISCELLANEOUS

4448

JUN

JtJL

AUG

SEP

OCT

NOV

DEC

(

-...
(1)
.

U.S. Department of Justice

•

Federal Bureau of Prisons

Dublin, California 94568

June 5 , 2000
MEMORANDUM FOR CHRISTOPHER ERLEWINE, ASSISTANT DIRECTOR/
GENERAL COUNSEL, GENERAL COUNSEL & REVIEW

FROM:

Harlan W. Penn , Regional Counsel

SUBJECT:

Monthly Report for May 2000
LITIGATION

NEW CASES

(

(3621(e»

Barrero-Bueno VS. Clark (TRM) DAP petition contesting 362 1(e )
ineligibility due to INS detainer .
NEW CASES

Salgado

(Non 3621(e»

VS.

Hood (SHE) Habeas petition challenging DHO action .

Shirely VS. Adams (LOM) Habeas petition regarding sentence
computation issues.
Smith VS. Hood (SHE ) Habeas petition challenging disciplinary
action .
Toney VS. Hood (SHE) Hab eas petition seeking to overturn 18 U. S.C . §
924(c) conviction pursuant to Bailey vs . U. S .
SIGNIFICANT DEVELOPMENTS/APPEALS

The denial to rehear Bowen will affect at least two cases in which
we asked for a reasonable stay pending its
- Biddles VS.
Clark (TRM) and Aguirre vs. Clark
TRM
in the
class .

4438

Harwood vs. Andrews (TCN) Taft DAP case in which inmate was released
at FPC Yankton due to an unrelated case on March 1. District Judge
then ordered inmate released based on DAP case on March 31.

(

Hunt VS. Bailey (SAF) DAP petition contesting 3621(e) ineligibility
due to prior robbery conviction dismissed by court.
Iniego vs. Clark (TRM) We received an amended adverse R&R. The
first R&R recommended relief based on a promissory estoppel theory.
The amended R&R erroneously relies on Cort and Bowen. In Iniego,
staff made the mistake of not flagging the 2 point SOC, which
produced an eligibility notice. As a result, we have been trying to
distinguish erroneousl issued notices versus the notices in
and

Lund vs. United States (SET) Case involves alleged slip and fall
exiting SHU shower. Mediation'resulted in· a, settlement of' '$40,O():l).
Matlock vs. United States (LaM) AUSA indicated she would be
forwarding a settlement letter requesting settlement authority in
the amount of no more than $25,000 in an FTCA case regarding dental
care. On May 25, 2000, AUSA provided the letter and raised her
requested authority to $50,000. The settlement conference is
presently scheduled for June 2, 2000.
United States v. Ressam (SET) Special Administrative Measures (SAM)
defendant's attorneys have requested a postponement of the scheduled
July 10, 2000, trial in Los Angeles.
CRIMINAL CASE TRACKDlG

Criminal Cases
JAN

FEB

taR

APR

MAY

Referred

Accepted

Dec1ined

Pending
Decision

JON

JOL

AUG

SEP

OCT

NOV

NEW ZNFORMATION ON ACTZVE PROSECUTIONS
ASSAULT

United States vs. Rowe (LOM) Case involves the 1995 riot.
date is set for September 5, 2000.
2

4439

Trial

DEC

(

United States vs. Williams (LaM) Case involves the 1995 riot.
continued until August 1, 2000.

Trial

ESCAPE

United States vs. Nikrasch (LaM) Case involves an escape from the
FPC and counterfeiting charges in December 1995. Sentencing
continued to July 24, 2000.
HOMICIDE

united States vs. Green (LaM)
January 9, 2001.
INTRODUCTION/POSSBSSION OF

Trial has been continued until

CO~

United States vs. Brooks (LaM) Former correctional officer sentenced
on bribery charge to 6 months incarceration and 3 years supervised
release. Surrender date is June 30, 2000. Charge of attempt to
provide or possess contraband in prison dismissed.
STATISTICS
I

ADMINISTRATIVE REMEDIES
JAN

FEB

1mB.

APR

MAY

102

JON

JtJL

AUG

SEP

OCT

NOV

DEC

FREEDOM OF INFORMATION/PRIVACY ACT:
JAN

FEB

MAR

APR

MAY

RECEIVED

CLOSED

PENDING

30 DAYS

6~BS

APPEALS

*Wa1t1ng for records from Arch1ves.

4440

JON

JtJL

AUG

SEP

OCT

NOV

DEC

(

FOI/PA PENDING MORE THAN 20 DAYS:
Blm

DUB

LOP

*Wa~t~ng

LOM

LOS

BEL

0
0
0
0
for records from

PBX

SAl'

SDC

SBT

SHE

TAF

TOT

'.raM

TOTAL

SEP

OCT

NOV

Arch~ves

ADMINISTRATIVE TORT CLAIMS
JAN

FEB

MAR

APR

MAY

RBCEZVED

CLOSED

RBCOHSZDn

PENDING

103

OVER 6

JON

.roL

AUG

DEC

MONTHS

Tort Claim Investigations OVer 60 Days:

(

BaR

DOB

LOF

LOH

LOS

NEL

PBX

SAl'

SDC

SET

SHE

TAF

TOT

TRM

TOTAL

JtJL

AUG

SEP

OCT

NOV

LITIGATION:
JAR

FEB

MAR

APR

MAY

OPEN AT
BEGINNING
OF MONTB

379

388

393

411

422

NEW CASES

RBCE:IVED

Be
F'l'CA

BZVEHS

4441

JON

DEC

LITIGATION:

(
O':rBER

CLOSED

PENDING AT
. END OF

388·

393

411

422

426

KON'lB
LJ:~J:GA~J:ON

REPORTS
COHPLE'lED

4442

(..

u.s. Department of Justice

Federal Bureau of Prisons
DUblin. California 94568

July 6, 2000
MEMORANDUM FOR CHRISTOPHER ERLEWINE, ASSISTANT DIRECTOR/
GENERAL COUNSEL,-GENERAL COUNSEL & REVIEW

FROM:
SUBJECT:

Harlan W. Penn, Regional Counsel
Monthly Report for June 2000
LITIGATION

NEW CASES (3621 (e))

Badillo vs. Slade, (VIM) Habeas petition contesting DAP
ineligibility due to two-point enhancement.
Bendickson vs. Slade, (VIM) Habeas petition contesting DAP
ineligibility due to two-point enhancement.
NEW CASES (Non 3621(e))

Christoferson vs. Hood (SHE) Complaint seeking declaratory relief in
response to institution's denial of former camp inmate's request to
visit his son who is currently incarcerated at the FeI.
Hernandez vs.
Wiley, (LOS)
Bivens action alleging that staff
conspired to ruin his reputation with his gang associates. The
plaintiff further alleges that as a direct resul t of the ruined
reputation, he was assaul ted by his gang associates while in the
custody of the u.S. Marshals Service.
Hunter vs. Hood,
Parker vs.
property.

(SHE) Habeas petition contesting DHO sanction.

Uni ted States,

Pocsai vs. Hood,

(LOM)

FTCA action for alleged loss of

(SHE) Bivens complaint alleging failure to protect.

Salgado vs. Hood, (TRM) Habeas petition contesting DHO action.
Smith vs. Barron, (LaM) Habeas petition contesting denial of CCC and

3439

home confinement.
SIGNIFICANT DEVELOPMENTS/APPEALS

Ames vs. Pontesso, (PHX)
District Court
defendants in this loss of property case.
solely as an FTCA suit.

dismissed both named
The case wi 11 proceed

Cervantes-Munoz vs. Pendleton (TCN) On May 30, 2000, the District
Court dismissed for failure to exhaust administrative remedies.
This case involved a pretrial inmate's refusal to provide a urine
sample for drug testing.
Bryant· vs. Perrill, (SET) On June 5, 2000, the Magistrate Judge
recommended dismissal of the petition because Petitioner failed to
exhaust his administrative remedies.
Manning vs. January, (PHX) Habeas petition contesting
action dismissed by district court on June 1, 2000.

discipline

Rogers vs. BOP, (PHX)
On 06/06/2000, the 9 111 Circuit affirmed the
dismissal of this case in favor of the BOP defendants.

(

United States vs. Newman, (TRM) The case was previously reported; it
involv~s the Ninth Circuit reversing the district court's decision.
The district court erroneously determined Reno v. Koray could not be
applied retroactively.
The district court recently issued orders
acknowledging reversal of its decision.
As a result, preparations
are underway to return the inmate back to custody as he was
wrongfully awarded approximately one year in jail credit.
However,
Newman's defense attorney has announced his intention to file cert.
Consequently, we will wait for the Supreme Court's decision before
taking further action.
CRIMINAL CASE TRACKING

Criminal Cases
Referred
Accepted
Declined
Pending
Decision

JAN

FEB

MAR

APR

MAY

JUN

22
3
27
28

22
3

13
3
15
42

17
1
12
44

5
8

9
40

JUL

AUG

SEP

OCT

NOV

DEC

NEW INFORMATION ON ACTIVE PROSECUTIONS
ASSAULT

(SAF) On June 8, 2000, inmate Ruben Fuentes-Lopez (11915-097)
stabbed inmate Carlos Camarena-Perales (82714-098) 3 times in the
back wi th a 7 112 inch sharpened metal instrument.
This case has

3440

been accepted by the FBI for prosecution.

(

(PHX) On June 28, 2000, inmate Dustin Guthrie (41176-008) was
indicted for assault, stemming from an assault on staff (he struck a
lieutenant in the fact with a closed fist December 8, 1999).
Uni ted states vs. Guyton (LOM) Status conference set for July 17,
2000.
AUSA will argue that sentencing should go forward, and
Defendant's information concerning 6 alleged "high profile" cases can
be evaluated after sentencing.
AUSA anticipates that sentencing
will take place by the end of July, 2000.
united States vs. Jeffrey Thomas Milton, (LOM) Case involves assault
on staff that occurred on May 8, 1998 at USP:Lompoc.
Judge Manella
has ordered a severance and continued the trial.
The trial for
Milton is scheduled for September 19, 2000 at 8:00 a.m.
The trial
for Krause is scheduled for September 26, 2000 at 8:00 a.m.
ESCAPE
United states vs. Patricia Young, (PHX) Defendant pled guilty to
escape from FPC, Phoenix. Sentencing scheduled for August 4, 2000.

(

United states vs. Nikrasch, (LOM) Escape and counterfeiting charge
arising from FPC. Sentencing continued to July 24, 2000.
INTRODUCTION/POSSESSION OF CONTRABAND
(PHX) Inmate Salazar-Martinez and his visitor Alice Mejia introduced
marlJuana and methamphetamine in the Visiting Room.
Inmate
Salazar-Martinez has admitted that he committed the crime, but his
visitor denies the charge. Trial is set for July 12, 2000.
STATISTICS

ADMINISTRATIVE REMEDIES
JAN
102

I FEB

1 81

I MAR I APR I MAY I JUN I JUL I AUG I SEP I OCT r NOV I DEC
I
1 95_ 1 59 165 1 75 I
I
I
r
I

FREEDOM OF INFORMATION/PRIVACY ACT:

(
".

APR MAY
JAN
FEB MAR
34
40
52
42
RECEIVED 28
39
33
19
72
29
CLOSED
20
27
47
27
24
PENDING
5*
3*
2*
2*
5*
30 DAYS
0
0
0
0
6 MONTHS 0
6
1
3
3
1
APPEALS
Waiting for records from Archlves.

JON

JUL

50
38
39
0
0
1 --_._-

[ FOr/PA PENDING MORE THAN 20 DAYS:

3441

AUG

SEP

OCT

NOV

DEC
I

DUB

17".

LOF
0

LOM

LOS
0

NEL
0

PHX
0

SAF I SDC
0
10

SET
0

SHE
0

TAF

TCN

TRM

I VIM

TOTAL
0

kWa1t1ng for records from Arch1ves

ADMINISTRATIVE TORT CLAIMS
JAN
29
34
0
103
2

RECEIVED
CLOSED
RECONSIDER
PENDING
OVER 6
MONTHS

FEB
38
44
0
97
3

MAR

APR

MAY

JUN

33
52
1
79
2

34
51

57
42

62
2

79
4

55
20
1
115
1

Tort Claim Investigations Over 60 Days:
DUB LOF LOM LOS NEL PHX SAF SDC SET
0
0
0
0
0
1*
0
0
0

*Baker cla1m.

JUL

AUG

SEP

SHE

TAF

TCN

JUL

AUG

OCT

NOV

DEC

TRM
0

VIM
0

TOTAL
1

SEP

OCT

NOV

DEC

Pend1ng SIA 1nvestlgatlon.

LITIGATION:
OPEN AT
BEGINNING
OF MONTH
NEW CASES
RECEIVED
HC

JAN
379

FEB
388

MAR

APR

MAY

.ruN

393

411

422

426

FTCA
BIVENS

£.

OTHER

CLOSED

£.

PENDING AT
END OF
MONTH
LITIGATION
REPORTS
COMPLETED

388

393

411

422

426

433

"'I

3442

(

u.s. Department of Justice

\Z'f

Federal Bureau of Prisons

Dublin, California 94568

August 3 , 2000
MEMORANDUM FOR CHRISTOPHER ERLEWINE, ASSISTANT DIRECTOR/
GENERAL COUNSEL, GENERAL COUNSEL & REVIEW
FROM:

Harlan W. Penn , Regional Counsel

SUBJECT:

Monthly Report for July 2000
LITIGATION

NEW CASES (3621(e»

Badillo vs . Slade, (VIM) Habeas corpus petition contesting 3621 (e)
ineligibility due to two point weapon enhancement.
Bendickson vs. Slade , (VIM) Habeas corpus petition contesting 3621(e)
ineligibility due to two point weapon enhancement.
Del Torto vs. Trammel , (NEL) Habeas corpus petition contesting 362 1(e)
ineligibility due to 922(g) conviction .
Ravenstein vs . Clark, (TRM) Habeas corpus petition contesting 3621(e)
ineligibility due to 924(c) conviction .
Solorio vs . Cl ark , (TRM) Habea s corpus petition contesting 362 1 (e)
inel igibi lit y due to INS detainer as well as alleged impropriety of
detainer and removal from UNICOR employment.
NEW CASES (Non 3621(e»

Amezquita-Perez vs . Andrews, (TCI) Habeas corpus petition contesting
ineligibility for CCC placement due to INS detainer .

(

Burridge vs . Krupp , et al. , (FPC NEL) Bivens!FTCA case by released
inmate allegating interference with/denial of religious practice ;
deliberate exposure to hazardous asbestos; interference with legal
mail and legal matt ers ; and failure to place in appropriate District
for Supervised Release supervision.
Complaint names BOP and USPO
employees and seeks $20 million in damages .
Motion to Dismiss filed
in lieu of Answer.
If Court does not dismiss , it will be transferred
to the Multi-District Panel in Pennsylvania because of asbestos issues
1

4432

and will be handled by DOJ Civil
Section, rather than USAO Nevada.

Division,

Environmental

Torts

Crooker vs. United States, (LOM) FTCA action alleging former inmate was
illegally confined in "boxcar cells", subjected to dental and medical
malpractice, and denied drug treatment.
Halsey vs.
Adams, (LOM)
Bivens complaint alleging deliberate
indifference to medical needs and subsequent retaliation by staff for
seeking treatment and relief.
Hardney vs. Barron, (LOM) Habeas corpus petition alleging violation'of
the Interstate Agreement on Detainer Act.
Jones-Heim vs. Reese, (DUB) Bivens action contesting DHO action for
dirty UA allegedly caused by staff prescribed medication.
Lillard vs. Andrews,
(TCI)
discipline imposed at SeaTac.

Habeas

corpus

petition

contesting

Perry vs. Barron, (LOM) Habeas corpus petition seeking presentence
credit and state/federal sentence concurrency.
Schaefer vs. Pontesso, (PHX) Bivens action challenging decision not to
operate on inguinal hernia.

Woodworth vs. United States, (LOM) FTCA action alleging exposure to
harmful chemicals in UNICOR, resulting in lung damage and job transfer
to a lower-paying job.
Toscano vs. United states, (TRM) Habeas
state/federal sentence concurrency.

corpus petition seeking

S:IGN:IFJ:CA!ft' DEVELOPMENTS/APPEALS

Arriga vs. Hawks, (SAF) Habeas corpus petition regarding sentence
credit dismissed June 19, 2000.
Cooney and Moore vs. Meese, (DUB) Bivens/injunctive action filed in
1987 seeking to maintain individual room locks and inmate keys. AUSA
filed responsive pleading July 24, 2000.
Iniego vs. Clark,
(TRM) District court approved Magistrate's
recommendations to give 3621(e) eligibility relief .to inmate
previously granted, then denied, eligibility. Court relied upon Bowen
and Cort to give persuasive weight to provisional notice via "settled
expectations." U. S. Attorney's Office reluctant to appeal. BOP legal
continuing to persuade them of our interests/necessity to appeal.
Matlock vs. United States, (LOM)
FTCA action
malpractice settled for $25,000 on July 10, 2000.

4433

alleging

dental

(

Muhammad vs. Adams, (LaM) stay issued in habeas corpus
contesting 3621(e) ineligibility pursuant to Bowen.

petition

Resnick vs. Adams, (LaM) Defendants filed Objections to Report and
Recommendation denying Defendants Adams' and Szafir's Motion for
Summary Judgment on the basis of Qualified Immunity.
scott vs. Pasao, (LaM) Parties entered into Stipulation dismissing
Bivens delayed medical care case with prejudice. Judge signed Order
granting same on July 21, 2000.
CRIMINAL CASE TRACKXNG

Criminal Cases
JAN

FEB

MJU\

APR

MAY

JON

JOL

Referred

Accepted

Dec1ined

Pending
Decision

AUG

SSP

OCT

NOV

DEC

t'
'j

NEW INFOIOATZON ON ACTXVE PROSEClJT:IONS
ASSAULT

United States vs. Guma, (SET) Trial charging inmate in staff assault
was rescheduled to October 2, 2000.
United states vs. Lillie, (LaM) Case involves the 1995 riot.
continued to October 3, 2000.

Trial

United ,states vs. Rowe, (LOM) Case involves the 1995 riot.
Trial
continued to November 28, 2000. Continuing to respond to extensive
discovery request involving SIS Files, Central and Medical Files and
Inmate Rosters.
United states vs. Ung, (SET) Trial charging inmate in staff assault
was rescheduled to September 25, 2000.
United States vs. Villegas, (LaM) Inmate sentenced in case involving
inmate on inmate assault to 77 months (10 months concurrent and 67
months consecutive).
United States vs. Williams, (LaM) Case involves the 1995 riot.
continued to October, 2000.

4434

Trial

ESCAPE
United States vs. Nikrasch, (LOM) Case involves FPC escape and
counterfeiting charge. On July 24, 2000, defendant sentenced to 70
months consecutive to his current term. (60 months for escape and 10
months for counterfeiting).
INnODUCTJ:ON/POSSBSSJ:ON OF CONTRABAND
United states vs. Jose Salazar-Martinez, (PHX) Visiting room marijuana
and methamphetamine introduction trial postponed to September 6, 2000,
due to illness of the Public Defender.
United States vs. Sevillia-Espinoza, (TRM)
on inmate guilty plea for August 7, 2000.
sentence of 18 - 36 months.

Sentencing is scheduled
The AUSA estimates a

STATISTJ:CS
ADMINISTRATIVE REMEDIES
JAN

FEB

!mR

APR

tQ.y

JON

JUL

102

AUG

SSP

OCT

NOV

DEC

FREEDOM OF INFORMATION/PRIVACY ACT:
JAN

FEB

1mB.

APR

lG.Y

JON

JUL

BECEJ:VBD

CLOSED

pmmmG

30 DAYS

6 MONTHS

3
3
for records from Contract

APPEALS
*Wa~t~ng

AUG

SEP

OCT

NOV

DBC

fac~l~ty.

FOI/PA PENDING MORE THAN 20 DAYS:
DUB

LOF

LOK

LOS

NEL

PBX

SAF

SDC

SET

SHE

TAP

TCN

TBM

VDJ

TOTAL

4435

ADMINISTRATIVE TORT CLAIMS
JAN

FEB

MMt

APR

tG.Y

JON

JUL

RECEIVED

CLOSED

DECONSIDER

PENDING

103

115

139

(

OVER 6
MONTBS .

AUG

SEP

OCT

NOV

DEC

Tort Claim Investigations Over 60 Days:
DUB

LOF

LOK

LOS

BEL

PBX

SAP

SDC

SET

SBE

'I'M

TCN

TRM

VIM

TOTAL

AUG

SEP

OCT

NOV

* Pendlng

SIS lnvestlgatl0n.

LITIGATION:
JAN

FEB

MAR

APR

tG.Y

JON

JtJL

OPEN AT
BEGINNING
OF MONTH

379

388

393

411

422

426

433

NEW CASES

RECEIVED

BC
F'l'CA

BIVENS

OTHER

CLOSED

PENDING AT
END OF
KONTB

388

393

411

422

426

433

443

4436

DEC

LITIGATION:

(

LITZGATl:ON
REPORTS

18.

COMPLE'l'ED

4437

· Department of Justice

leral Bureau of Prisons

Dubin. CsIfomls 94568

September 5, 2000
MEMORANDUM FOR CHRISTOPHER ERLEWlNE, ASSISTANT DIRECTOR/
GENERAL COUNSEL, GENERAL COUNSEL' REVIEW

FROM:

SUBJECT:

tH~~e
Monthly R

Regional Counsel
rt for August 2000
LITIGATION

NEW CASES (3621 (e) )

Flockhart vs. Barron, (LOM) Habeas corpus petition alleging BOP failed
to comply with residential requirement of DAP program in his case,
thus denying petitioner the full benefit of early release.
Gottschalk vs. Andrews, (TCI) Habeas corpus petition contesting
3621(e) ineligibility due to prior conviction for aggravated assault.
Lynch vs. Hood, (SHE) Habeas corpus petition contesting 3621 (e)
ineligibility due to 2 point weapori enhancement.
Murphy vs. Hood, (SHE) Habeas corpus petition contesting 3621 (e)
ineligibility due to current escape conviction precluding CCC
placement.
Nagib vs. Andrews, (TCI) Habeas corpus petition contesting 3621(e)
ineligibi~ity due
to alleged retroactive application of Program
Statement 5162.04.
Solario vs. Clark, (TRM) Habeas corpus peti tion contesting 3621 (e)
ineligibility due to detainer preclusion to CCC placement.
NEW CASES

(Non

3621(e»

Ainge vs • Lynch (Hood), (SHE) Habeas corpus petition contesting
imposition of 10, not 5 year supervised release term.
1

Akintobi vs. United states,
personal property.

(
'.

(LOS) FTCA complaint regarding loss of

Bagha vs. U.S. Parole Commission,
contesting probation violation.

(TCI)

Habeas

corpus

petition

Joseph vs. Andrews, (TCI) Habeas corpus petition contesting parole
related issue as well as alleged improper transfer.
LaFradez v. Andrews, (TCI) Habeas corpus petition demanding pretrial
credit while on writ and serving state time.
Harrell vs. Federal Bureau of Prisons,
personal injury due to staff negligence.

(SET)

FTCA

complaint alleging

Northrop vs. United States, (LaM) Complaint alleging plaintiff is
being confined by the Bureau of Prisons because of a tax lien against
his body.
Perry vs. Barron,
credit.

(LOF) Habeas corpus petition seeking state custody

(

Russell vs. Bureau of Prisons,
(TCl) Habeas corpus petition
complaining of less than full 6 month CCC placement/referral.
Tratar vs. Hood,
credit.

(SHE) Habeas corpus petition demanding 38 days jail

SIGNIFICANT DEVELOPMENTS/APPEALS

Davis vs. Rardin, (LOM) Ninth Circuit dismissed appeal based on
failure to pay filing fees.
McArtor vs. Pontesso, (PHX) Habeas corpus petition contesting 3621(e)
ineligibility due to 2 point weapon enhancement dismissed.
Mikolacik vs. Unknown Agents,
based on failure to prosecute.
Moore vs. Meese, (DUB)
to maintain individual
11, 2000 hearing, Judge
preliminary injunction
arrangements.
\.

(LOM) Ninth Circuit dismissed appeal

Injunctive action filed in 1987 by DUB inmates
room locks and inmate keys. Following August
Breyer continued TRO, ordered counsel to draft
language, and encouraged alternative security

Most vs. Stratman, (SDC) Bi vens/FTCA complaint alleging deliberate
indifference to carpal tunnel syndrome and retaliatory transfer as a
2

350R

(

result of complaints remanded by 9th Circuit to address only
retaliatory transfer issue. Dismissal of other issues upheld by 9th
Circui t.
In a footnote, the 9th Circui t notes the district court
properly dismissed plaintiff's challenge to the 1915(g) IFP denial
since plaintiff had three or more appeals dismissed as frivolous.
Schaefer vs. Pontesso, (PHX) Tentative settlement was reached in this
case in which inmate will be provided surgical repair of his inguinal
hernia.
Smith vs. Pontesso, (PHX) R&R recommends dismissal of habeas corpus
petition contesting 3621(e) ineligibility due to 23 year old prior
aggravated assault conviction.
Wood vs. Pontesso, (PHX) R&R recommends dismissal of habeas corpus
petition contesting 3621 (e) inelig:ibility due to 2 point weapon
enhancement.
CRIMINAL CASE TRACKING
.:: :::: .....
I::

(

;; . . ;;

·Criminal cases

.....

JAN

FEB

MAR

APR

MAY

JON

JUL

AUG

Referred

Accepted

Declined

Pending
Decision

SEP

OCT

NOV

DEC

NEW INFORMATION ON ACTIVE PROSECUTIONS
ASSAULT

United States vs. Lillie~
(LOM) Case involves the 1995 riot.
Indictment on this inmate was returned on December 21, 1999.
Trial
continued to October 3, 2000. New information: AUSA recommended
dismissal of action based on conflicting wi tness reports.
Warden
Adams concurred wi th reconunendation, and AUSA notified of BOP's
position. Awaiting dismissal papers.

United states vs. Milton, (LOM) Inmate on staff assault May 1998.
Trial for Milton continued to October 10, 2000. Trial for Krause set
for September 26, 2000.

3509

(
\.

ESCAPE

...

United States vs. Young, (PHX) Defendant sentenced for escape from
FPC Phoenix to supervised release in Las Vegas after approximately
3.5 months in pretrial status.
STATISTICS
: : ~ . ~ . ; .. : : : : : : : : : : :

:.:

AD~NISTRATIVE

JAN

FEB

MAR

APR

MAY

JUN

JUL

AUG

102

.. ..

SEP

OCT

NOV

DEC

.....
....

(

REMEDIES

JAN

FEB

MAR

APR

MAY

JON

JUL

AUG

RECEIVED

CLOSED

PENDING

30 DAYS

6 MONTHS

o
o

APPEALS

o
o
o

*Wa~t~ng

SEP

OCT

NOV

DEC

for records from Arch1ves.

DUB

LOF

LOM

LOS

NEL

PBX

SAP

SDC

SET

SHE

TAP

TCN

TRM

VIM

TOTAL

ADMINISTRATIVE TORT CLAIMS'

JAN

FEB

MAR

APR

MAY

JON

JUL

AUG

RECEIVED

CLOSED

RECONSIDER

PENDING

103

115

139

104

OVER 6

MONTHS
4

3510

. . . . . . . . ..

.....

SEP

,::::::':::::::::;;::: .: -: : : : :..
~

OCT

NOV

DEC

(

,--

..
:::;

,.'

DUB

LOF

LOM

LOS

NEL

PBX

SAF

SDC

SET

SHE

TAF

TCN

TRM

VIM

TOTAL

SEP

OCT

NOV

* Pending SIA
.:

~nvest1gat10n .

.- . .

:;,:::

':::,:

,LITIGATION :

...

.. ,. ..

JAN

FEB

MAR

APR

MAY

JUN

JUL

AUG

OPEN AT
BEGINNING
OF 'MONTH

379

388

393

411

422

426

433

443

NEW CASES
RECEIVED

FTCA

(

,",ort .C~aim:tnvestigation8, .OVer , 60. ;D.Y$,;::

BIVENS

OTHER

CLOSED

388 ' 393

411

422

426

433

443

457

PENDING AT
END OF

DEC

MONTH

LITIGATION
REPORTS
COMPLETED

MISCELLANEOUS:
On September 12, 2000, the National Sentencing Policy Institute will
tour FeI/FPC Phoenix. Approximately 100 Federal judges and 100 support
staff are expected for this tour.

3511

u.s. Department of Justice
Federal Bureau of Prisons

Dublin, Californio 94568

September 5, 2000
MEMORANDUM FOR CHRISTOPHER ERLEWINE, ASSISTANT DIRECTOR/
GENERAL COUNSEL, GENERAL COUNSEL & RBVJ:EW

FROM:
SUBJECT:

Harlan W. Penn, Regional Counsel
Monthly Report for August 2000

LITIGATION

NEW CASES (3621(e»

(

Flockhart vs. Barron,
(LOM) Habeas corpus petition allegir.g BOP
failed to comply with residential requirement of DAP program in his
case, thus denying petitioner the full benefit of early release.
Gottschalk vs. Andrews,
(TCI) Habeas
3621(e)
ineligibility due to prior
assault.

corpus petition
conviction for

Lynch vs. Hood,
(SHE) Habeas corpus petition
ineligibility due to 2 point weapon enhancement~
Murphy vs. Hood, ( SHE) Habeas
ineligibility due to current
placement.

contesting
aggravated

contesting

3621 (e)

corpus petition contesting 3621 (e)
escape conviction precluding CCC

Nagib vs. Andrews, (TCI) Habeas corpus petition contesting 3621(e)
ineligibility due to alleged retroactive application of Program
Statement 5162.04.
Solario vs. Clark, (TRM) Habeas corpus petition contesting 3621 (e)
ineligibility due to detainer preclusion to CCC placement.
NEW CASES (Non 3621(a»
Ainge vs. Lynch (Hood),
(SHE) Habeas corpus petition
imposition of 10, not 5 year supervised release term.

3495

contesting

Akintobi vs. United States,
personal property.

(

(LOS)

FTCA complaint regarding loss of

Bagha vs. u.S. Parole Commission,
contesting probation violation.

(TCI)

Habeas

corpus

petition

.......

B~rron,

(SET)

FTCA complaint alleging

Complaint alleging plaintiff is
Prisons because of a tax lien

(LOF) Habeas corpus petition seeking state custody

Rodriguez vs.
Warden at Eloy Detention Center,
(PHX)
Bivens
complaint complaining of discipline imposed at Eloy Detention
Center.
Regional Director named as defendant, otherwise, case is
solely against contract staff.
Russell vs.
Bureau of Prisons,
(TCI)
Habeas corpus petition
complaining of less than full 6 month CCC placement/referral.
Tratar vs. Hood,
credit.

(SHE) Habeas corpus petition demanding 38 days jail

SIGNIFICANT DEVELOPMENTS/APPEALS

Davis vs. Rardin, (LOM) Ninth
failure to pay filing fees.

Circui t

dismissed

appeal

based on

McArtor vs.
Pontesso,
(PHX)
Habeas corpus petition contesting
3621(e) ineligibility due to 2 point weapon enhancement dismissed.
Mikolacik vs. Unknown Agents,
based on failure to prosecute.

(LOM)

Ninth Circuit dismissed appeal

Moore vs. Meese,
(DUB) Injunctive action filed in 1987 by DUB
inmates to maintain individual room locks and inmate keys. Following
August 11, 2000 hearing, Judge Breyer continued TRO, ordered counsel
to draft preliminary injunction language, and encouraged alternative
security arrangements.
Most vs. Stratman, (SOC) Bi vens/FTCA complaint alleging deliberate
indifference to carpal tunnel syndrome and retaliatory transfer as a
result of complaints remanded by 9th Circuit to address only
3496

retaliatory transfer issue.
Dismissal of other issues upheld by 9th
Circuit.
In a footnote, the 9th Circuit notes the district courtproperly dismissed plaintiff's challenge to the 1915 (g) IFP denial
since plaintiff had three or more appeals dismissed as frivolous.
Schaefer vs. Pontesso, (PHX) Tentative settlement was reached in this
case in which inmate will be provided surgical repair of his
inguinal hernia.
Smith vs. Pontesso, (PHX) R&R recommends dismissal of habeas corpus
petition contesting 3621(e) ineligibility due to 23 year old prior
aggravated assault conviction.
Wood vs. Pontesso, (PHX) R&R recommends dismissal of habeas corpus
petition contesting 3621 (e) ineligibility due to 2 point weapon
enhancement.
CRIMINAL CASE TRACKING

Criminal Cases
JAN

Referred
Accepted
Declined
Pending
Decision

22
3
27
28

FEB
13
5
8
32

MAR

APR

22
3
5
47

13
3
15
42

MAY
9
2
9
40

JON

JtJL

17
1
12
44

6
0
13
37

AUG
8
3
7
35

SEP

OCi'

NOV

DEC

NEW INFORMATION ON ACi'rvE PROSECUTIONS
ASSAULT

United States vs. Lillie,
(LOM) Case involves the 1995 riot.
Indictment on this inmate was returned on December 21, 1999.
Trial
continued to October 3, 2000. New information: AUSA recommended
dismissal of action based on conflicting wi tness reports.
Warden
Adams concurred with recommendation, and AUSA notified of BOP's
position. Awaiting dismissal papers.
United States vs. Milton, (LOM) Inmate on staff assault May 1998.
Trial for Milton continued to October 10, 2000.
Trial for Krause
set for September 26, 2000.

ESCAPE

(

United States vs. Young, (PHX) Defendant sentenced for escape from
FPC Phoenix to supervised release in Las Vegas after approximately
3.5 months in pretrial status.

STATISTICS

(

ADMINISTRATIVE REMEDIES
JAN

102

FEB

!mit

APR

HAY
65

JON

JtJL

FREEDOM OF INFORMATION/PRIVACY ACT:
APR HAY
FEB MAR
JAN
52
34
40
42
28
RECEIVED
72
33
39
19
29
CLOSED
27
27
47
20
24
PENDING
5*
2*
2*
5*
3*
30 DAYS
0
0
0
0
6 MONTHS 0
3
3
1
1
6
APPEALS
*Waiting for records from Arch1ves.
FOI/PA PENDING MORE THAN 20 DAYS:
LOI' LOM LOS NEL PBX SAF
0
0
0
0
0
0
0

DUB

AUG
75

JON

JUL

50
38
39
0

33
42
30
1*

0
1

OCT

SBP

AUG
41
32
39
0

SEP

OCT

NOV

DBC

DEC

0
0

SDC

SET

SHE

TAl'

TCN
0

TRY
0

VIM
0

TOTAL
0

OCT

NOV

DEC

ADMINISTRATIVE TORT CLAIMS

RECEIVED

CLOSED
RECONSIDER
PENDING
OVER 6
MONTHS

JAN

FEB

MAR

APR

MAY

JUN

Jt1L

29
34
0
103
2

38
44
0
97
3

33
52
1
79
2

34
51
0
62
2

57
42
2
79
4

55
20
1
115
1

37
13
0
139
3

Tort Claim Investigations Over 60 Days:
DUB LOF LOM LOS NEL PBX SAl' SDC SET
0
0
1
0
0
4*
4
1
0

AUG
45
80

SEP

104
1

SBE
11

TAl'
0

TCN
0

TN(

VIM
0

TOTAL
21

SEP

OCT

NOV

DEC

* Pend1ng SIA 1nvest1gat10n.
LITIGATION:

OPEN AT
BEGINNING
OF HONTH
NEW CASES
RECEIVED

JAN

FEB

MAR

APR

MAY

JON

JOL

379

388

393

411

422

426

433

AUG
443

349R

F'rCA

BIVENS

OTHER

CLOSED

PENDING AT

388

393

411

422

426

433

443

4'57

END OF

MONTH
LITIGATION
REPORTS
COMPLETED

MISCELLANEOOS:

On September 12, 2000, the National Sentencing Policy Institute will
tour FCI/FPC Phoenix. Approximately 100 Federal judges and 100 support
staff are expected for this tour.

(

3499

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

November 7, 2000
MEMORANDUM FOR CHRISTOPHER ERLEWJ:NE, ASSISTANT DIRECTOR/
GENERAL COUNSEL, GENERAL COUNSEL & REVIEW

FROM:

SUBJECT:

Harlan W. Penn, Regional Counsel
Monthly Report for October 2000
LITIGATION

NEW CASES (3621(e»

(DUB) Habeas corpus petition contesting 3621(e)
ineligibility due to 2 point weapon enhancement.
Longo vs. Schultz -

NEW CASES (Non 3621(e»

(LOF) Bivens action complaining of improper or
insufficient dental care.

Bates vs. Clark -

(SHE) Habeas corpus petition requesting
record be amended.

Cleveland vs. Hood discipl~ne

Crespo-Perez vs. Reno -

(LOS) FTCA/Bivens action complaining of lack

of medical care.
Maier vs. Hood -

(SHE) Habeas corpus petition seeking transfer to

camp facility.
Montgomery vs. Hood -

(SHE) Habeas corpus petition seeking

additional GeT.
(VIM) Habeas corpus petition complaining
of failure to abide by sentencing agreement to grant state credit.
Haddix vs. United States -

Ramos vs. United States - (LOM)
Inmate filed a request for"
clarification" and "verification" concerning how his federal sentence
is to run in relation to his state time. u.s. Attorney's Office is

3997

treating the matter as a § 2241 Petition for Writ of Habeas Corpus.

Smith vs. Hood - (SHE) Habeas petition contesting DHO finding of
guilt on charge of testing positive for morphine upon inmate's
return to CCC after 48 hour pass.

SIGNIFICANT DEVELOPMENTS/APPEALS
Blair VS. Reno - (PHX) Habeas petition seeking additional
pre-sentence credit dismissed.
Petition also complained that TCI
staff give non-African-American inmates longer CCC an~ home
confinement placement.
Crooker vs. United States - (LOM) FTCA action dismissed with
prejudice, on October 18, 2000, but an appeal is anticipated.
Decker vs. Fitzpatrick -

(LOF) The District Court ·for the Central
District of California stayed the judgment in the habeas corpus
petition regarding 3621(e) eligibility now on appeal in the Ninth
Circuit. As a result, the petitioner's sentence was recalculated and
he will not be going to his CCC Placement.

Larson vs. United States - (SHE) FTCA action alleging medical
malpractice. Settlement conference held October 25 with plaintiff
proposing $52,500. Case dismissed pending outcome of settlement
negotiations.
Parker

VB.

United

State~

- (LOM) . FTCA action involving lost

property. Settlement reached but the inmate now refuses to
cooperate.
Per~ VB.

Barron

- (LOF) Habeas Corpus Petition involving sentence
Report & Recommendation adopted - petition dismissed

computation.
with prejudice but an appeal is anticipated.

U.S. VS. Lazarenko - (DUB) Defendant, formerly the Prime Minister
of the Ukraine, now an inmate at FDC Dublin, filed a motion to be
released from protective custody into general population.
FBI had
provided information concerning unspecified threats against the
inmate.
Judge granted the motion ex parte before reviewing
Government's opposition.
Inmate placed in general population
October 4, 2000.
Sara Jane Moore vs. Meese - (DUB) Injunctive action filed in 1987
by inmates to maintain individual room locks and inmate keys.
Hearing September 22, 2000 on Govt.'s motion to reconsider.
No
preliminary injunction issued, pending negotiations between parties
re Government's proposal for "alternative security measures."
Proposal for surveillance cameras in housing units under Regional
review.
Vaccaro vs. Dobre, et al - (NEL) Trial held October 4-5, 2000,
before Judge D.W. Hagen, District of Nevada, in Bivens case against
correctional officers for deliberate indifference of a serious

3998

medical need. After trial and oral argument the Court rendered
judgement for the defendants. Asst. Regional Counsel Valerie
Stewart participated at trial with AUSA Ruth Cohen.
The Court held
that the plaintiff had failed to prove his allegations that staff
were advised of his.medical restrictions, and ordered him to work in
violation of the restrictions.
The Judgement ends over eight years
of litigation.

White vs. Pontesso - (PHX) Habeas petition contesting allegedly
illegal confinement based on clerical error on J&C was transferred
to Eastern District of California and is being handled as 2255
petition.
CRIMINAL CASE TRACKING
Criminal Cases
JAN

Referred
Accepted
Dec1ined
Pending
Decision

22
3
27
28

FEB
13
5
8
32

APR
13

5
47

15
42

MAR

MAY
9
2
9
40

JON

17
1
12
44

AUG
8

13
37

7
35

JUL

SEP
7
2
5
35

OCT
11
1
4
41

NOV

DEC

NEW INFORMATION ON ACTIVE PROSECUTIONS
ASSAULT

United States vs. Guyton - (LOM) Inmate on staff assault occurred
August 1997. Defendant pled guilty March 2090.
Case continued to
January 23, 2001.
United States vs. Mendoza-Aguilar - (TCN) Trial date for inmate on
staff assault continued to December 12, 2000.
United States vs. Milton, et al - (LOM) Inmate on staff assault
occurred May 1998. Cases were severed but both were continued to
January 9, 2001.
ESCAPE

United States vs. Hungerford - (TCN) Escape prosecution arlslng from
inmate's failure to report to CCC December 27, 1999.
Inmate pled
guilty just prior to trial.
Sentencing scheduled for December 2000.

CONTRABAND

United States vs. Kumar -

(LOM) Trial set for November 21, 2000.

3999

United States vs. Mejia - (PHX) (companion to Salazar-Martinez)
Visitor found guilty October 5 of introduction of contraband.
Sentencing scheduled for December 18, 2000.
United States vs. Parrado-Herrera (PHX) USAO accepted prosecution of
inmate for receiving marijuana and heroin in visiting room.
Inmate
has been released from custody.
United States vs. Salazar-Martinez - (PHX) Inmate pled guilty and
sentenced August 38 to a 28 month consecutive sentence with 3 years
of supervised release.
OTHER

United States vs. Fairman - (SET) Pre-trial detainee pending trial
on November 13 for bank robbery has been referred and accepted for
prosecution on witness tampering charges arising from telephone
calls made from institution. Trial on latter charges to be held in
conjunction with robbery trial.
STAT:tSTICS

ADMINISTRATIVE REMEDIES
JAN
I FEB I MAR I APR
102 I 81
159
J 95

-)
MAY
65

I JON

I JUL

175

189

FREEDOM OF INFORMATION/PRIVACY ACT:
FEB MAR
APR MAY
JAN
42
52
34
40
RECEIVED 28
72
39
29
19
33
CLOSED
47
27
20
27
24
PENDING
2*
5*
3*
2*
5*
30 DAYS
0
0
0
0
6 MONTBS 0
1
1
3
6
3
APPEALS
*Wa~t~ng for records from Arch~ves.

AUG
75

JUN

JtJL

50
38
39
0
0
1

33
42
30
1*
0
5

FOI/PA PENDING MORE THAN 20 DAYS:
DUB , LOF I LOM I LOS I NEL I PBX I SAP , SDC r SET r SBE
0
1 0 10 10 10 10 10 10 10 10

SEP
95

AUG
41
32
39
0
0
0

OCT
85

SEP
34
39
34
1*
0
2

TAF f TCN
0
10

. NOV

OCT
38
42
30
2*
0
6

DEC

NOV

DEC

1TRY I V:tM I TOTAL
J0

ADMINISTRATIVE TORT CLAIMS
RECEIVED
CLOSED
RECONS:tDER
PENDING

JAN

FEB

MAR

APR

29
34
0
103

38
44
0
97

33
52

34
51
0
62

MAY
57
42
2
79

4000

JON

JUL

55
37
20
13
1
0
115 '139

AUG
45
80
0
104

SEP
35
23
0
116

OCT
33
54
1
96

NOV

DEC

lOVER
6
MONTHS
Tort Claim Investigations Over 60 Days:
DUB

LOF

LOM

LOS

NEL

PHX

SA!'

SOC

SET

SHE

TAl'

TCN

TRM

VIM
0

TOTAL
0

JAN

FEB

MAR

APR

MAY

JON

JUL

AUG

SEP

OCT

NOV

DEC

379

388

393

411

422

426

433

443

457

468

LITIGATION:
OPEN AT
BEGINNING
OF MONTH
NEW CASES
RECEIVED
HC
FTCA

BIVENS

OTHER

CLOSED

PENDING AT
END OF
MONTH
LITIGATION
REPORTS
COMPLETED

388

393

411

422

426

433

443

457

468

471

4001

(..

u.s. Department of Justice

Federal Bureau of Prisons
Dublin, California 94568

October 4, 2000
MBNORANDlDI FOR CHRISTOPHER ERLEWINE, ASSISTANT DIRECTOR/
GENERAL COUNSEL, GENERAL COUNSEL ,

FROM:

SUBJECT:

RZV%EW

Harlan W. Penn, Regional Counsel
Monthly Report for September 2000
LITIGATION

(

NEW CASES (3621(e»
NEW CASES

(NOD

3621(e»

Akintobi vs. United States, (LOS) Inmate brings negligence action
for loss of personal clothing while incarcerated at MDCLA. (LOS)
Askew vs. United States (SAF) Second Bivens action alleging failure
to protect and inadequate medical treatmept following inmate
assault.
United States,
(SOC)
FTCA claim alleging
Baker vs.
malpractice for prescribing inappropriate medication.

medical

Berry vs. Schultz, (DUB) Motion seeking order to prevent destruction
of contaminated personal and legal materials left at CCC upon his
return to custody.
Crompton vs. D~partment of Justice,
(LaM) FOIA action
release of materials from multiple agencies, BOP included.

seeking

Dugan vs. Clark (LOS) Habeas petition seeking jail credit.
Fellows vs. Bureau of Prisons, (PHX) Bivens
denial of dental treatment while housed in SHU.
Smith vs. Hood,

complaint

alleging

(SHE) Habeas peti tion contesting discipline action

3517

for positive urinalysis which resulted in return to custody.
Strother vs. Hood, (VIM) Motion seeking transfer back to SHE and
complaining of lack of legal materials/references at VIM.
United States vs. Lazarenko, (DUB) Motion by defendant's counsel
seeking release of defendant into general population-from SHU where
he is being held based on information from FBI.

Washington vs.
classification,
robbery.

Adams,
(LOM) Habeas petition contesting custody
and alleged improperly scored prior unarmed bank

White vs. Andrews,

(TC!) Habeas petition seeking work furlough.

Wolff vs. Hood, (SHE) Habeas petition contesting discipline action
for refusing to enter general population.
Petitioner claims
harassment and disregard of his safety on account of child
molestation conviction.
SIGNIFICANT DEVELOPMENTS/APPEALS

Burzynski vs. Bailey,
(SAF)
Previously denied habeas petition
seeking camp placement consistent wi th plea agreement appealed to
9th Circuit by petitioner.

Erlin vs. United States (WXR) , FTCA complaint alleging plaintiff was
wrongly incarcerated when the Parole Commission issued a violator
warrant without jurisdiction was dismissed due to statute of
limitations.
Previously, Erlin's habeas petition was granted by the
di"strict court causing his immediate release and the decision
contained language indicating a Bivens complaint may be called for
in this matter.
Moore vs. Meese,
(DUB) Injunctive action filed in 1987 by DUB
inmates to maintain individual room locks and inmate keys.
Hearing
held September 22, 2000 on Government's motion to reconsider.
No
preliminary injunction issued, pending negotiations between parties
on Government's proposal for "al ternati ve securi ty measures."
Parkin vs. Larson (WXR) Following a hearing on September 18 Judge
Pro issued an Order granting the government's motion to dismiss and
remanding this matter back to state court.
Defendant, a former BOP
employee, who terminated employment following a MSPB settlement, has
filed a damages action against a local psychologist who was hired by
Management at FPC Nellis to perform a "fitness for duty" exam, as a
condition of Parkin's employment.
Parkin has sued Dr. Larson for
release of medical information to the Warden at FPC Nellis.
BOP
staff are now subject to being called as witnesses in the state
action.

(,-

Schaefer vs. Pontesso, (PHX) Hernia surgery has been scheduled for
this inmate with Bivens action pending.
Following the surgery, this
case should be dismissed via stipulation of the parties.
Unger vs.

Gaines,

(SAF)

The

issue of qualified

3518

immunity for

HSA

Gaines will "be argued before the 9 th Circuit in the next several
weeks.
This inmate filed a Bivens action regarding the amount of
time it took him to receive dentures.
Vaccaro vs. Oobre (NEL) This $15 million Bivens case is s~t for
trial before Judge Hagen on October 3.
Originally filed with 17
defendants, five causes of action, the Court has dismissed all but
one allegation and two defendants.
The inmate/plaintiff alleges
that correctional staff issued an order to lift heavy furniture,
when he had medical/weight restrictions which resul ted in a back
injury.
AUSA Ruth Cohen and Assistant Regional Counsel Valerie
Stewart will present the defense for the two remaining defendants.
On September 20, the Court and counsel conferred regarding the issue
of transporting plaintiff to Las Vegas for trial purposes.
The
Court was advised the u.s. Marshal will require reimbursement from
plaintiff in the approximate amount of $3,000 for costs of
transportation to Las Vegas.
CRIMINAL CASE TRACKING
Criminal Cases
JAN

(

FEB
13

1GR

APR

MAY
9

JON

17
22
13
Referred 22
3
3
5
2
1
Accepted 3
5
8
15
12
9
Declined 27
32
47
28
42
40
44
Pending
Decision
NEW INFORMATION ON ACTIVE PROSECUTIONS

JUL

0
13
37

AUG
8
3
7
35

SEP
7
2

OCT

HOV

DBC

ASSAOLT

United States vs. Lillie,
(LOM) Case involves the 1995 riot.
Indictment on this inmate was returned on December 21, 1999. AUSA
recommended dismissal of action based on conflicting witness
reports.
Warden Adams concurred with recommendation, and AUSA
notified of BOP's position.
On September 6, 2000, indictment
ordered dismissed without prejudice.
United States vs. Lopiccolo, (LOM) Case involves the assault of
another inmate that occurred on February 4, 1997, at FeI Lompoc. On
September 8,
2000, defendant Fleming, on plea of guilty of
conspiracy to commit assault, was sentenced to 30 months, with 3
years supervised release, and a special assessment of $100.
United States vs. Mendoza-Aguilar, (TeN) Trial tentatively scheduled
for October 31 in Tucson in inmate-on-staff assault.
United States vs. Ung (SET) An Information (Misdemeanor) was filed
against the defendant for charges of assault against a correctional
counselor and the assault did inflict bodily injury.

3519

united States vs. Williams, (LOM) Case involves the 1995 riot.
Indictment on this inmate was returned on December 21, 1999.
A
review of PACER on September 26, 2000, revealed that the AUSA moved
to dismiss the case without prejudice.
The court ordered the
dismissal on July 31, 2000.
The dismissal was taken without
notifying the agency or the victim.

(

HOMICZDE
united States vs. Anderson and
Miranda, (LOM) Case involves a
homicide at USP Lompoc from 1993.
In 1997, both defendants were
convicted of voluntary manslaughter. On January 25, 2000, the Ninth
Circuit reversed the convictions based on a failure to give a jury
instruction for involuntary manslaughter. The case is set for a new
trial on October 10, 2000.
Defendants entered into a plea
agreement.
Defendant Anderson was sentenced to 37 months.
Defendant Miranda was sentenced to 18 months.

CON'.rRABAND
united States vs. Jose Salazar-Martinez, (PHX) Inmate and visitor
visiting room contraband case set for trial on October 3.

STATISTICS

('
ADMINISTRATIVE REMEDIES
JAN

FEB

!mR

APR

102

MAY
65

JON

JUL

FREEDOM OF INFORMATION/PRIVACY ACT:
MAY
FEB !GR
JAR
~R
40
34
52
42
RECEIVED 28
33 .
39
19
72
29
CLOSED
27
20
27
47
24
PENDING
5*
2*
3*
2*
5*
30 DAYS
0
0
0
0
6 MOHi'BS 0
6
1
1
APPEALS
*Waiting for records from

JUL
33

50
38
39
0
0
1

42
30

1*
0

SEP
95

AUG
41
32
39
0
0
0

OCi'

SEP

HOV

DBC
I

OCT

NOV

DEC

34
39
·34
1*
0
2

SDC

SET

SHE

APR
34
51

MAY
57
42

TAl'
0

TCN

TRM

I VIM I TOTAL

ADMINISTRATIVE TORT CLAIMS

(--

RECEIVED

CLOSED
RECONSZDER

JAN

FEB

lGR

29
34
0

38
44
0

33
52
1

3520
.........

Arch~ves.

For/PA PENDING MORE THAN 20 DAYS:
DUB LOF LOM laOS NEL PBX 8M
0

JON

AUG
75

JON

JOL

55
20
1

37
13
0

AUG
45
80
0

SEP
35
23
0

OCi'

HOV

DEC

PENDING
OVER 6
MONTHS

103
2

97
3

79
2

62
2

79
4

115
1

Tort Claim Investigations Over 60 Days:
LOF LOM LOS NEL PBX SAF SDC SET
0
0
0
0
0
0
0
4*
0

DUB

139
3

104
1

116
1

SBE

TAF

TCN

'rRM

TOTAL

VIM
0

OCT

NOV

DEC

* Pending SIA investigation.
LITIGATION:

OPEN AT
BEGINNING
OF KON'l'H
NEW CASES
RECEIVED
HC

JAN

FEB

w.R

APR

MAY

JON

JUL

AUG

SEP

379

388

393

411

422

426

433

443

457

FTCA

(

BIVENS

OTHER

CLOSED

PENDING AT

388

393

411 . 422

426

433

443

457

468

END QI'

MONTH
LJ:TJ:GATJ:ON
REPORTS

COMPLETED

3521

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

November 7, 2000
MEMORANDUM FOR CHRISTOPHER ERLEwINE, ASSISTANT DIRECTOR/
GENERAL COUNSEL, GENERAL COUNSEL , REVIEW

FROM:
SUBJECT:

Harlan W. Penn, Regional Counsel
Monthly Report for October 2000
LITIGATION

NEW CASES (3621(e»

Longo vs. Schultz - (DUB) Habeas corpus petition contesting 3621(e)
ineligibility due to 2 point weapon enhancement.
NEW CASES (Non 3621(e»

Bates vs. Clark - (LOF) Bivens action complaining of improper or
insufficient dental care.
Cleveland vs. Hood - (SHE) Habeas corpus petition requesting
discipline record be amended.
Crespo-Perez vs. Reno - (LOS) FTCA/Bivens action complaining of lack
of medical care.
Maier vs. Hood - (SHE) Habeas corpus petition seeking transfer to
camp facility.
Montgomery vs. Hood - (SHE) Habeas corpus petition seeking
additional GeT.
Haddix vs. United States - (VIM) Habeas corpus petition complaining
of failure to abide by sentencing agreement to grant state credit.
Ramos vs. United States -(LOM) Inmate filed a request for"
clarification" and "verification" concerning how his federal sentence
is to run in relation to his state time. u.S. Attorney's Office is

3992

treating the matter as a § 2241 Petition for Writ of Habeas Corpus.
Smith vs. Hood - (SHE) Habeas petition contesting DHO finding of
guilt on charge of testing positive for morphine upon inmate's
return to CCC after 48 hour pass.

SIGNIFICANT DEVELOPMENTS/APPEALS
Blair vs. Reno - (PHX) Habeas petition seeking additional
pre-sentence credit dismissed. Petition also complained that TCl
staff give non-African-American inmates longer CCC and home
confinement placement.
Crooker vs. United States - (LOM) FrCA action dismissed with
prejudice, on October 18, 2000, but an appeal is anticipated.
Decker vs. Fitzpatrick - (LOF) The District Court for the Central
District of California stayed the judgment in the habeas corpus
petition regarding 362l(e) eligibility now on appeal in the Ninth
Circuit. As a result, the petitioner's sentence was recalculated and
he will not be going to his CCC Placement.
Larson vs. United States - (SHE) FTCA action alleging medical
malpractice.
Settlement conference held October 25 with plaintiff
proposing $52,500. Case dismissed pending outcome of settlement
negotiations.
~
\

Parker VB. United StateB - (LOM) FTCA action involving lost
property. Settlement reached but the inmate now refuses to
cooperate.
Per~ VB. Barron
- (LOF) Habeas Corpus Petition involving sentence
computation. Report & Recommendation adopted - petition dismissed
with prejudice but an appeal is anticipated.

U.S. vs. Lazarenko - (DUB)
Defendant, formerly the Prime Minister
of the Ukraine, now an inmate at FDC Dublin, filed a motion to be
released from protective custody into general population.
FBI had
provided information concerning unspecified threats against the
inmate.
Judge granted the motion ex parte before reviewing
Government's opposition.
Inmate placed in general population
October 4, 2000.
Sara Jane Moore vs. Meese - (DUB)
Injunctive action filed in 1987
by inmates to maintain individual room locks and inmate keys.
Hearing September 22, 2000 on Govt.'s motion to reconsider.
No
preliminary injunction issued, pending negotiations between parties
re Government's proposal for "alternative security measures."
Proposal for surveillance cameras in housing units under Regional
review.
Vaccaro vs. Dobre, et al - (NEL) Trial held October 4-5, 2000,
before Judge D.W. Hagen, District of Nevada, in Bivens case against
correctional officers for deliberate indifference of a serious

3993

medical need. After trial and oral argument the Court rendered
judgement for the defendants. Asst. Regional Counsel Valerie
-~
Stewart participated at trial with AUSA Ruth Cohen. The Court held
that the plaintiff had failed to prove his allegations that staff
were advised of his medical restrictions, and ordered him to work in
violation of the restrictions. The Judgement ends over eight years
of litigation.
White vs. Pontesso - (PHX) Habeas petition contesting allegedly
illegal confinement based on clerical error on J&C was transferred
to Eastern District of California and is being handled as 2255
petition.
CRIMINAL CASE TRACKING
Criminal Cases
JAN
Referred 22
Accepted 3
Declined ·27
28
Pending
Decision

FEB
13
5
8
32

MAR

22
3
5
47

APR
13
3
15
42

MAY
9

2
9

JUN

JUL

AUG

17
1
12
44

0
13
37

3
7
35

SEP
7
2
5
35

OCT
11
1
4
41

NOV

DEC

·NEW INFORMATION ON ACTIVE PROSECUTIONS
ASSAULT

United States vs. Guyton - (LOM) Inmate on staff assault occurred
August 1997. Defendant pled guilty March 2000. Case continued to
January 23, 2001.
United States vs. Mendoza-Aguilar - (TCN) Trial date for inmate on
staff assault continued to December 12, 2000.
United States vs. Milton, et al - (LOM) Inmate on staff assault
occurred May 1998. Cases were severed but both were continued to
January 9, 2001.
ESCAPE
United States vs. Hungerford - (TCN) Escape prosecution arising from
inmate's failure to report to CCC December 27, 1999. Inmate pled
guilty just prior to trial. Sentencing scheduled for December 2000.
CONTRABAND
United States vs. Kumar - (LOM) Trial set for November 21, 2000.

3994

ADMINISTRATIVE REMEDIES
APR
JAN
FEB
MAR
59
102
81
95

MAY
65

JON

JUL

FREEDOM OF INFORMATION/PRIVACY ACT:
FEB MAR
APR MAY JON
JAN
50
52
34
40
42
RECEIVED 28
38
72
39
33
19
29
CLOSED
27
20
27
39
47
24
PENDING
5*
5*
2*
0
2*
3*
30 DAYS
0
0
0
0
0
6 MONTHS 0
3
3
1
1
1
6
APPEALS
*Waiting for records from Archlves.
FOI/PA PENDING MORE THAN 20 DAYS:
DUB LOF LOM LOS NEL PBX SM
0
0
0
0
0
0
0

SDC
0

SET
0

AUG
75

JUL

33
42
30
1*
0
5

SHE
0

SEP
95

AUG
41
32
39
0
0
0

SEP
34
39
34
1*
0
2

TAF
0

TCN
0

OCT
85

OCT
38
42
30
2*
0
6

TRY

NOV

DEC

VIM
0

TOTAL
0

NOV

DEC

ADMINISTRATIVE TORT CLAIMS

RECEIVED
CLOSED
RECONSIDER
PENDING

JAN

FEB

MAR

29
34
0
103

38
44
0
97

33
52
1
79

APR
34
51
0

MAY

JON

57
42
2
79

37
55
.
13
20
1
0
115 139

3995

JUL

AUG
45
80
0
104

SEP
35
23
0
116

OCT
33
54
1
96

~R6

L..M_O-.:NT
__H_S_ _......&.._ _. L . . - - _ . . . . L - . _......._ _ _ _---'-_ _~_.__._ _ _ _ _ _.a...__

__L..._

_ _ ' __ _

Tort Claim Investigations Over 60 Days:
DUB
0

LOF
0

LOM
0

LOS
0

NEL
0

PBX
0

SAF
0

SDC
0

SET
0

SHE
0

TAP
0

TCN

TRM

JAN

MAR

MAY
422

JUL

393

APR
411

JUN

379

FEB
388

426

433

AUG
443

SEP
457

OCT
468

VIM
0

TOTAL
0

NOV

DEC

LITIGATION:
OPEN AT
BEGINNING
OF MONTH
NEW CASES
RECEIVED

Be
!'TCA

BIVENS

OTHER

CLOSED

PENDJ:NG AT
END OF
MONTH
LITJ:GATION
REPORTS
COMPLETED

388

393

411

422

426

433

443

457

468

471

3996

u.s. Department of Justice

(

Federa1 Bureau of Prisons

Dublin, California 94568

December 11, 2000
MEMORANDOH FOR CHRISTOPHER EBLEWINE, ASSISTANT DJ:RECTOR/
GENERAL COUNSEL, GENERAL COUNSEL & REVJ:EW

FROM:

Harlan W. Penn, Regional Counsel

SUBJECT:

Monthly Report for November 2000
LITIGATION

NEW CASES (3621(e»

Bonderov vs. Clark
(LOS) Petition for Writ of Habeas Corpus
contesting 3621(e) ineligibility.
Myers vs. Pontesso - (PHX) Petition for Writ of Habeas Corpus
contesting 3621(e) ineligibility.
Vu vs. Hood - (SHE) Petition for Writ of Habeas Corpus contesting
3621(e) ineligibility.
NEW CASES (Non 3621(e»

Altman v. Andrews - (TAF) Petition for Writ of Habeas Corpus
seeking credit for state custody.
Choi v. Andrews - (TAF) Petition for Writ of Habeas Corpus
seeking good conduct time for 366 day sentence.
Davis vs. Reno, et al (LaM) Bivens complaint alleging improper
single cell assignment.
Martin vs. Hood (SHE) Petition for Writ of Habeas Corpus
contesting, among other non-BOP issues, the fact that staff are
relying on uncounseled convictions reported in PSI to elevate
security classification.

4426

(

Rivero-Proenza vs. Reno - (LOM) Petition for Writ of Habeas
Corpus by INS detainee alleging he is improperly being held in
high security institution designed to house convicted criminals.
Miller vs. Jusino - (SET) Petition for Writ of Habeas Corpus
contesting DHO sanctions.
Thomas vs. Hood - (SHE) Petition for Writ of Habeas Corpus
contesting sentence computation.
SiGNiFiCANT DEVELOP.MBNTS/APPEALS

Alfrey vs. Crabtree & Alfrey vs. United States -(SHE)
Government's motion for summary judgement granted in consolidated
FTCA and Bivens suits alleging failure to protect resulting in
inmate's death. Discretionary function exemption applied.
Notice of Appeal filed by plaintiff's counsel September 20, 2000.
vs. Keohane - (LOM) Bivens complaint alleging due
process and 8th Amendment violations arising from placement in M
Unit and two-hour watch status and subsequent transfer to ADX
Florence dismissed.
~pleby-EI

Arriaga vs. Hawk - (SAF) Inmate's appeal of denied habeas
petition dismissed by 9th Circuit. Petitioner originally sought
federal credit for time already credited to state sentence.
Cruz-Pagan vs. Holder - (LOM) Bivens complaint alleging failure
to protect at USP and subsequent inadequate medical care at
USMCFP was dismissed without prejudice for plaintiff's failure to
timely file opposition to government's motion to dismiss.
curtis VB. Bailey - (SAF) Inmate appealed to 9th Circuit the
dismissal of his petition contesting criminal conviction on
account of alleged inadequate assistance of counsel and
prosecutorial misconduct. 9th Circuit dismissed appeal.
EI-Williams VS. Hawk-Sa~er - (SOC) Civil rights complaint
alleged discriminatory practices in hiring only Christian
spiritual leaders. Government granted summary judgement on issue
and case terminated.
Erlin vs. United States - (WXR) Previously represented plaintiff,
now pro se, appealed to 9th Circuit the dismissal of his FTCA
complaint due to statute of limitations. Complaint alleged
plaintiff was wrongly incarcerated when the Parole Commission
issued a violator warrant without jurisdiction. Previously,
Erlin's habeas petition was granted by the district court causing
his immediate release and the decision contained language
indicating a Bivens complaint may be called for in this matter.
2

4427

(

Freeman vs. United States - (LOS) U.S. District Court dismissed
with prejudice plaintiff's second amended Bivens complaint
complaining of Inmate Telephone System.
Jackson vs. Bailey - (SAF) Due to appellant's failure to perfect
appeal (failed to file an opening brief), the 9th Circuit
dismissed case in which inmate appealed dismissal of habeas
petition concerning parole issues.
Livingston vs. Bailey - (SAF) Inmate petitioned to have 924(c)
conviction set aside on account of Bailey. Court agreed and set
aside this conviction. Court also transferred petition to
Central District of California for re-determination of
petitioner's sentence on remaining offenses.
Sara Jane Moore v. Meese - (WXR) Injunctive action filed in 1987
by DUB inmates to maintain individual room locks and inmat'e keys.
Ongoing negotiations between parties regarding Government's
proposals for "alternative security measures." Proposal for
surveillance cameras to inmate counsel November 28, 2000.

(

Ober.meyers vs. U.S. Dep't. of Justice, et ale - (WXR) Defendant's
Motion for Summary Judgement granted in FTCA/§ 1983 complaint
which alleged inmate was improperly housed at penitentiary (DUB)
contrary to 18 U.S.C. § 4083. Both theories were time barred.

Schaeffer vs. Pontesso - (PHX) Inmate seeking hernia repair
through litigation has received medical care based on "agreement
of parties. Court dismissed case without prejudice November 21,
2000.
Unger vs. Gaines - (SAF) 9th Circuit rejected interlocutory
appeal of qualified immunity for Health Services Administrator.
Discovery will now commence in district court.
CRDaNAL CASE TRACKDtG

Criminal Cases
JAN

FEB

MAR

APR

MAY

JUN

JOL

AUG

SEP

OCT

NOV

Referred

Accepted

Decl.ined

Pending
Decision

4.1

4428

DEC

NEW :INFORMATION ON ACTIVE PROSECUTIONS

(

CONTRABAND

United States vs. Kumar - (LOM) Trial set for December 30, 2000.

BOMIcmE
United States vs. Green - (LOM) May 29, 2001, is the new trial date.
SEX OFFENSES

United States vs. McKnight - (PHX) Retired Asst. Food Service
Administrator scheduled to appear before Magistrate on November 29,
2000. Defendant is accused of engaging in sexual relations with
inmate.
STATISTICS
REMEDIES

AD~NIST.RATIVE

JAN

FEB

MAR

APR

MAY

JON

JOL

AUG

SEP

OCT

NOV

·102

( ...

DEC

'''

. FREEDOM OF INFORMATION/PR.IVACY ACT:
JAN

FEB

MAR

APR

MAY

JON

JUL

AUG

SEP

OCT

NOV

RECEZVED

4'0

CLOSED

PENDING

30 DAYS

6 KOlfIrBS

3
6
1
3
1
APPEALS
*Wa1t1ng for records from Arch1ves.

DEC

FOI/PA PENDING MORE THAN 20 DAYS:
DOB

LOF

LOM

LOS

BEL

PBX

SAl'

SDC

SET

SHE

TAF

TCN

TRM

VIM

TOTAL

(
4

4429

ADMINISTRATIVE TORT CLAIMS

(

JAN

FEB

1GR

APR

MAY

JON

JOL

AUG

SEP

OCT

NOV

RECEIVED

CLOSED

RECONSIDER

PENDING

103

115

139

104

116

DEC

OVER 6
MONTHS

Tort Claim Investigations OVer 60 Days:
DUB

LOF

LOM

LOS

BEL

PBX

SAF

SDC

SET

SHE

TAF

TCN

'.rBM

VDI

TOTAL

LITIGATION:

(

JAN

FEB

1GR

APR

MAY

JON

JUL

AUG

SEP

OCT

NOV

OPEN AT
BEGINNING
OF KONTH

379

388

393

411

422

426

433

443

457

468

471

NEW CASES

17'

RECEIVED

HC
FTCA

BIVENS

OTHER

CLOSED

PENDING AT
END OF

388

393

411

422

426

433

443

457

468

471

MONTH

(

4430

DEC

LITIGATION:
LITIGATION
REPORTS

COMPLETED

4431

u.s. Department of Justice

(

Federal Bureau of Prisons

Dublin, California 94568

January 5, 2001
MEMORANDtJM FOR CBlUSTOPBER ERLEWDm, ASSISTANT DIRECTOR/
GENERAL COUNSEL, GENERAL COUNS~L & REVl:EW

FROM:

Harlan W. Penn, Regional Counsel

StJBJECT:

Monthly Report for December 2000
LITIGATION

NEW CASES (3621(e»

McIntosh vs. Clark - (LOS) Petition for Writ of Habeas Corpus
contesting 3621(e) ineligibility due to prior assault conviction.
NEW CASES (Non 3621(e»

Adams vs. Boston - (SHE) Bivens complaint alleging First
Amendment violation for discipline imposed based on telephone
conversation as well as staff's alleged failure to protect.
Inmate has been released and portions of complaint may be moot.
Cook vs. Murphy, et ale - (SHE) Petition for Writ of Habeas
Corpus challenging decision not to grant petitioner protective
custody status. Inmate expected to be released January 27, 2001.
Foley vs. USA, et al. - (DUB) FTCA/Bivens action filed by inmate
who voluntarily participated in sting operation in Which staff
was arrested and successfully prosecuted for inmate sexual abuse.
Inmate claims defendants failed to protect her from the staff
member, released information concerning her role in the
investigation, failed to train the staff, permitted her ass·ault
and battery, falsely imprisoned her, and subjected her to
emotional distress.
Felix-Perez vs. Acosta and Lathers - (SOC) Counsel-represented
inmate filed Bivens complaint alleging staff member attempted to
1

4419

(

forcibly remove clitoris ring from pre-trial detainee as well as
improper digital search. Complaint also alleges failure to
supervise, ignoring staff's alleged propensity for sexual assault
of females. This case was subject of a December 16, 2000,
article in San Diego Union Tribune.
Garza vs. Hawk-Sawyer - (LaM) Bivens complaint alleging Ensign
Amendment is unconstitutional.
Hagins vs. Bureau of Prisons - (SHE) FOlA complaint alleging
staff used incorrect information in files and that it adversely
affected his classification.
Hayes vs. Hawk-Sa~er, et al. - (SDC) Bivens complaint alleging
assault by staff at MCC San Diego and subsequent lack of medical
treatment at FCr Lompoc.
Howland vs. Bureau of Prisons - (SHE) Petition for Writ of Habeas
Corpus in which inmate serving concurrent state/federal sentences
is seeking jail time credit applied toward federal sentence
(Kayfez) •
Hunt vs. Jessip, et al. - (PHX) Bivens complaint alleging
conspiracy between CCC staff and CCM to cause inmate to be
returned to closer custody as a result of a positive urinalysis
for drugs.
Moore vs. Hedges - (LOS) Petition for Writ of Habeas Corpus
contesting sentence computation based on CCC escape and alleged
failure to place him in CCC where he would be protected from
assault.
Reed vs. United States, et ale - (WXR) Hearing on Emergency
Petition for Writ of Habeas Corpus concerning whether or not
there was liberty interest when inmate is released to halfway
house, such that due process required before transfer back to
closer supervision (county jail). Government argued there was
none whatsoever per Sandin as inmate was still in BOP custody,
and that placement from CCC to jail was analogous to transfer
between institutions. Judge found in favor of Bureau based on
fact that inmate spent nights at CCC, and thus, had no liberty
interest yet.
Shells vs. Andrews - (TCl) Petition for Writ of Habeas Corpus
seeking credit for federal sentence for time spent in custody on
state proceedings.
Smith vs. Sa~er - (PHX) Bivens action by WlTSEC inmate
complaining he is not eligible for education programs which are
offered to inmates in general population.
Tringali vs. Adams, et al. - (LaM) FTCA/Bivens complaint alleging
improper medical care.
2

4420

United States vs. Franklin - (SHE) Petition for Writ of Habeas
Corpus seeking re-sentencing to comply with purported agreement
to honor pre-sentence custody credit already credited to state
sentence.
United States vs. Santiago - (WXR) "Motion Requesting Prior Jail
Time Credit" to be handled as Petition for Writ of Habeas Corpus.
Inmate seeks 151 days credit for federal sentence that was to run
concurrent to undischarged state sentence. Petitioner claims
Bureau returned him to state custody instead of designating him
to federal institution.
SIGNIFI~ DEVELOPMENTS/APPEALS

Arriaga vs. Hawk - (SAF) Petitioner's appeal to Ninth Circuit of
lower court's dismissal of habeas petition was dismissed.
Petitioner originally sought federal credit for time already
credited to state sentence.
Baker vs. United States - (SOC) FTCA case complaining of medical
care has a mandatory settlement conference scheduled for May 16,
2001.

Burridge vs. Krupp, et al. - (NEL) Court granted Defendant's
Motion to Dismiss in this Bivens/FTCA case by released inmate
alleging interference with/denial of religious practice;
deliberate exposure to hazardous asbestos; interference with
legal mail and legal matters; and failure to place in appropriate
District for Supervised Release ~upervision.
Folawiyo vs. Schultz - (DUB) Habeas petition regarding
computation of supervised release violator term and state
sentence denied with prejudice.
Gerritsen vs. Pontesso - (PHX) Ninth Circuit upheld dismissal of
previously denied DAP petition on grounds that Bureau did not
impermissibly retroactively change eligibility criteria.
Petitioner also contested Bureau's refusal to allow him to
complete DAP based on escape conviction. Ninth Circuit held
escapees are not a protected class and denial of continued
participation in DAP was based on legitimate penological
interest.
Larson vs. Uni ted Sta tes - (SHE) FTC~·;· action·· ·al1egin~rfuedfcct·f.
malpractice has been settled for $42,829.3'2.
Maier vs. Hood - (SHE) Petition for Writ of Habeas Corpus seeking
transfer to camp facility dismissed as moot.

4421

(

McGowan vs. GreenhilL - (SHE) Dismissed Bivens complaint that was
appealed to Ninth Circuit was dismissed for Appellant's failure
to comply with court rules regarding appeal. Original case
complained of excessive force of staff in response to plaintiff
pulling away from restraint as well as conditions of confinement
in SHU allegations.
Most vs. Stratman, et ale - (SOC) Hearing on government's Motion
for Summary Judgement in Bivens complaint alleging retaliation
for legal pursuits has been calendared for January 8, 2001.
Neville vs. Hawk - (SHE) Bivens case complaining of triple
bunking (see also Wainwright vs. Hawk & Granger vs. Hawk)
dismissed due to plaintiff's escape.
Pettis vs. Navy, et ale - (SOC) Bureau of Prisons, Pacific
Furlough, and Department of Justice have been terminated from
this Title VII complaint by former inmate.
Resnick vs. Adams - (LOS) Settlement negotiations commenced in
Bivens complaint concerning medical care. Settlement concurred
with by Medical Director.
United States vs. Miller - (PHX) December 8, 2000, Judge ordered
inmate released to supervised release effective December 15.
Inmate had been mistakenly placed on parole for a non-parolable
offense and then brought back into BOP custody.
Vu vs. Hood - (SHE) Petition for Writ of Habeas Corpus contesting
ineligibility for 3621(e) release is expected to be voluntarily
dismissed on account of INS agreeing to lift detainer which
originally caused inmate not to be eligible. Inmate expected to
be released in January 2001.
Wainwright vs. Hawk & Granger vs. Hawk - (SHE) Two Bivens cases
complaining of triple bunking have been held to heightened
pleading by judge ordering dismissal of Director Hawk and former
Regional Director Carlson. Plaintiffs ordered to amend complaint
to detail number of days in alleged triple bunk status and any
medical or psychological harm.
Woods vs. Bailey - (SAF) Premature Petition for Writ of Habeas
Corpus contesting pending DHO action dismissed by court.

4422

(

Criminal Cases
JAN

FEB

MAR

APR

MAY

JON

JtJL

AUG

SEP

OCT

NOV

DEC

Referred

Accepted

Decl.ined

Pending
Decision

ASSAULT

United States vs. Guma - (SET) Inmate sentenced to 71 months for
assault on staff member.
United states vs. Fuentes-Lopez - (SAF) Previously accepted inmate
on inmate assault with sharpened instrument has been declined.
United States vs. Mendoza-Aguilar - (TCN) Inmate on staff assault.
Originally scheduled for trial December 12 has been postponed.
l,

United States vs. Milton, et al. - (LOM) Case involving May 1999
inmate on staff assault case involving two defendants has been
bifurcated. Trial for inmate Milton scheduled for January 9 and
trial for inmate Krause scheduled for January 20, 2001.
united States vs. Ponce-Hernandez - (TCN) Inmate on staff assault
trial date set for January 13, 2001.
CO~

United States vs. Hankey - (LaM) Inmate pled guilty to possession
with intent to distribute. Sentencing hearing set for February 26,
2001.
United States vs. Kumar - (LaM) status hearing set for January 22,
2001, with new attorney being appointed to represent defendant.
United States vs. Mejia - (PHX) Inmate visitor sentenced on
introduction of contraband charge to 16 months incarceration.
ESCAPE

united States vs. Hungerford - (TCN) Inmate sentenced on December
11, 2000, to time served (approximately 8 months). Of note is that
this inmate has significant health problems including several
strains of hepatitis and liver disease.
5

4423

United States vs. Ibarra - (SAF) Inmate failed to report to CCC
after furlough transfer from FCI Safford October 10, 2000.

HOMICIDE

United States vs. Green - (LOM) May 29, 2001, is the new trial date.
STATISTICS
ADMINISTRATIVE REMEDIES
JAN

FEB

MAR

APR

MAY

JUN

JUL

AUG

SEP

OCT

NOV

DEC

102

FREEDOM OF INFORMATION/PRIVACY ACT:·
JAN

FEB

MAR

APR

MAY

JON

JUL

AUG

SEP

OCT

NOV

DEC

RECEIVED

42"

CLOSED

PENDING

30 DAYS

6 MONTHS

APPEALS
*Wa~tlng

6
1
1
for records from

Arch~ves·.

FOI/PA PENDING MORE THAN 20 DAYS:
DOB

LOF

LOM

LOS

BEL

PBX

SAP

SDC

SET

SHE

TAF

TCN

TRY

VIM

TOTAL

ADMINISTRATIVE TORT CLAIMS
JAN

FEB

MAR

APR

MAY

JON

JtJL

AUG

SEP

OCT

NOV

DEC

RECEIVED

CLOSED

RECONSIDER

PENDING

103

115

139

104

116

103

OVER 6

MONTHS

4424

Tort

(

Cla~

Investigations Over 60 Days:

DUB

LOP

LOX

LOS

NEL

PBX

SAF

SDC

SBT

SHE

TAl'

TeN

TBM

VXM

TOTAL

LITIGATION:
JAN

FEB

MAR

APR

lG.Y

JON

JOL

AUG

SEP

OCT

NOV

DEC

OPEN AT
BEGnmmG
OF MONTH

379

388

393

411

422

426

433

443

457

468

471

469

NEW CASES

ftCA

BZVENS

OTHER

CLOSED

PENDING AT
END OF

388

393

411

422

426

433

443

457

468

471

469

476

BBCEIVED

KONTB

LJ:TlGAT:ION
:REPORTS
..cOMPLETED

BISCEI,T,umous
The Bureau of Land Management recently extended the special use permit
of the land occupied by FCr/FPC Phoenix for an additional 20 years.
The current permit was scheduled to expire in 2003.

4425

The Habeas Citebook: Prosecutorial Misconduct Side