Transcript What Not to Do When Suing the Federal Bureau of Prisons

What Not to Do When Suing
the Federal Bureau of Prisons
November 7, 2013
Kevin Traskos
Chief, Civil Division, U.S. Attorney’s Office
Chris Synsvoll
Supervisory Attorney, Colorado Consolidated Legal
Center, Federal Bureau of Prisons
Overview
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Practical focus, not legal.
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General ideas, not hard and fast rules.
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Topics – from beginning of a case to the
end.
HYPOTHETICALS?
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Your client is an inmate. You meet with another
inmate witness. That inmate gives you a letter
he tried to send to your client, but it did not get
through . Your client hears about the letter and
asks if you will give it to him . Should you?

You interview an inmate witness, who asks you
to tell your client that he sends his “love and
respect” and also that his wife “had a boy.”
Should you?
Don’t forget
safety and security

Set and maintain professional boundaries.
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Watch out for manipulation.

Monitor your communication and behavior.

Learn how to say “No.”
PRE-FILING
Don’t assume exhaustion
goes faster if you’re involved.

Having an attorney file the forms may add
steps and lead to delay.

Better practice: advise client on the rules.
SERVICE OF PROCESS
Don’t assume BOP will
handle service for you.

BOP will check if individuals want to
waive, but it won’t act as the server. It is
not designated to accept process for
individuals.

BOP has a MOU with the district court to
check to see if individual defendants will
waive service, and file any waivers.
Don’t forget to leave time for
the representation process.

Individuals are not automatically
represented.
An officer applies to BOP for representation.
 The BOP makes a request to the DOJ in DC.
 DOJ decides whether to approve.
 All before an AUSA can represent the officer.
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This takes time!
CONTACTS WITH YOUR
CLIENT
For visits and calls, don’t
forget to start with the
counselor.

Unit team:
Unit manager: oversees the unit.
 Case manager: release issues, victimwitness, detainers, halfway houses.
 Counselor: access issues, phone calls,
copies.

Don’t forget to leave your
counselor enough time.

Your counselor is busy.
ADX – 128 inmates per counselor.
 USP-High: 300 per counselor.
 FCI: 400-500 per counselor.

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Often many phone calls a day.
Be nice and understanding!

If a problem, contact Legal to talk.
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Don’t forget a signed,
original request.

Useful to call the counselor first.

But the counselor also needs a signed
original for the file, sent through the mail.
Don’t forget special rules for
non-attorneys.

For attorneys: good standing. (For SAMs,
a background check.)

For paralegals and assistants: need a
sponsorship packet.
Sample available.
 Attorney needs to take responsibility for
assistant.

Don’t forget
there are visiting days.

They vary! Currently, they are:
FCI-Englewood, FCI-Florence, USP: Friday
evening, Saturday, Sunday, federal holidays.
 ADX-Florence: Thursday, Friday, Saturday,
Sunday and federal holidays.
 SAMs: Mondays, Tuesday, Wednesdays, but
not federal holidays.

Don’t forget some
visiting times are harder.

Often multiple requests for calls or
visitation, by both criminal and civil
attorneys.
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Inmate count at 4 pm.

In some institutions, shakedowns and
lockdowns.
Don’t forget to follow the
rules for legal mail.

Consult the BOP Program Statements on
Mail Management (PS 5800.16) and
Telephone Rules (PS 5264.08).
Presumption: will opened unless marked as
required.
 Mark it exactly as required! Be careful.
 Attorney as return address: not enough.
 Consider colored envelopes.

Don’t use legal mail
the wrong way

Don’t:

Use the legal mail system to send non-legal
mail (newspapers and magazines).

Don’t let your inmate use you as a conduit for
non-legal mail.
Don’t forget inmates face
special restrictions.

Special rules:
Inmate generally cannot overnight
documents.
 Don’t expect advance notice of transfers.

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Don’t assume something can be done;
check with the counselor.

If you need to show an inmate a video, check
with the counselor and attorneys for options.
GETTING RECORDS
Don’t forget to check
the BOP website.

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General information.
Program Statements.
Medical protocols.
Inmate locator.
BOP reports and research.
Don’t forget that other
policy documents exist
Operations memoranda.
 Technical reference manuals.
 Document retention policy.
 Memoranda regarding inmate placement and
transfer.

Don’t fail to learn the
BOP’s rules about records.

Regulations.

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28 CFR 500-572.
Program Statements.
Policies, generally corresponding to CFR sections.
 E.g.: PS 5800.11, “Inmate Central File.”
 On the BOP website!
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Institution/Complex Supplements.
Local policy, corresponding to a Program
Statement.
 Named using institution 3-letter code. E.g.: FCC
5800.11A, Inmate Central File.

Don’t forget to learn the
types of inmate files.
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SENTRY:

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
Central File.
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Quarters, sentence, discipline, administrative
remedies, work, education, IFRP.
1980s system: limited searchability.
Sentence, custody classification, progress reports,
visiting list, property, intake screening, discipline,
SHU, education, release info, correspondence.
Travels with inmate.
FOI Central File / Privacy Folder.


Not disclosable to inmate under FOIA.
Inmate monitoring, victim-witness information.
Don’t expect all records to be
in the inmate’s Central File.
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Administrative Remedies.
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Medical records.
Psychological records.
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Maintained separately from Central File.
Hard copies kept going back 3 years.
Electronic database can generate printout.
May not be able to disclose to inmate.
PSIR.
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Not disclosed to inmate without court order.
Don’t forget about
other documents.
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Multiple-inmate documents.
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Housing lists, meal plans.
Library lists, commissary lists.
Don’t be surprised if some
records are confidential.

Governmental privileges (deliberative
process, law enforcement privilege, etc.),
security concerns, etc.
Use of force investigations.
 Some Institution Supplements are Limited
Official Use Only.

Don’t seek BOP records
from individuals.

Individually-named defendants are not the
custodians of BOP records.

If the BOP is not a party, you have to seek
information from the BOP by letter, under
the DOJ “Touhy” regulations (28 C.F.R. s
16.21 et seq.).
Don’t forget about releases.

BOP counsel may not be able to discuss
medical issues with you until there is a
valid release.
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There is a form on the BOP website.
PROTECTIVE ORDERS
Don’t assume your usual
protective order will work.

Protective orders with BOP: may not be
reciprocal.
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BOP has special concerns: security,
protecting other inmates and staff.
Some materials may be produced only
under protective order (e.g., video of a
unit).
MEDICAL ISSUES
Don’t forget medical care
can be like an HMO.
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Care is not unlimited. BOP has doctors and
other providers, but there are multiple issues:


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Some specialists (orthopedists) only visit.
BOP must start by addressing daily needs (e.g.,
prescriptions) and life-threatening needs (e.g., heart
attacks).
You can find many medical treatment protocols
(such as for hepatitis C) on the BOP website.
Don’t forget medical records
are protected.

You will need a release from the inmate to
get his or her medical records.

The inmate can get a copy of his or her
medical records.

There is a BOP form for the release.
Don’t forget that special rules
apply to experts.

If you have a medical expert who needs to
see your client, contact the attorneys early
to see if and how it can be done.
DEPOSITIONS
Don’t forget about the
inmate’s schedule.
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Meal times.
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Leave time to get in.
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Breakfast 6-6:30, lunch 10:30-noon, inmate
count at 4; evening meal shortly after 4.
Can be delays due to releases, etc.
Upshot:
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Can start depo around 8. Finish around 3.
Don’t forget special planning
for the court reporter.

Coordinate with BOP Legal Department. (4-5
attorneys.)

In general:
 Need name and contact information.
 Reporter needs to arrive early, to allow
equipment screening.
 Videotaping a deposition is sometimes
possible, but requires advance consultation
with BOP Legal Counsel.
Don’t forget the rules for
depositions of inmates.

Federal Rule of Civil Procedure 30(a)(2)(B)
requires a court order before the deposition of
an inmate may be taken.
Don’t fail to confer
before using a 30(b)(6).

30(b)(6) depositions can be cumbersome.

Contact counsel to determine if there is a
person who has the best information.

Some decisions are made outside
Colorado. (E.g., sentencing computations)
SETTLEMENT
Don’t forget individuals
are not the BOP.

When a suit is against individuals, the
BOP does not handle a settlement
discussion on behalf of the individuals.
Individuals face payment from their own
pocket.

If a tort (Federal Tort Claims Act) claim
against the US, it may be different.
Don’t forget that
nuisance value is different.

BOP does not pay DOJ attorneys.
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Any nuisance payment may affect
institutional dynamics.
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Small amounts can make a large
difference.
Don’t forget how you can
help.
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Help recognize the limits of relief:
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Money/damages: Will it be swept for restitution?
Injunctive relief: are there PLRA limits? Will it affect
duties covered by union agreement?
Transfer: Don’t expect to be able to negotiate this.
Other ideas:
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Help your client figure out any problems.
Be creative in working towards what will address
those problems.
HEARINGS AND TRIALS
Don’t assume your client
gets a trip to court.
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Most often, for pretrial matters, inmate
does not attend, or attends on phone.
For evidentiary hearings, inmate may be
by video. Video can work well.
Travel is rare. Very expensive and timeconsuming, as it requires many staff days.
Don’t forget to tell the
counselor about hearings.

You should provide the counselor with the
court order setting the hearing, so the
counselor can arrange the call.
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Let the BOP Legal Department know, too.
(They will need to verify the hearing.)
FINAL THOUGHTS
Don’t forget to focus on how
you can help your client.

If your client needs medical care, or other
relief that isn’t clear, make that clear.
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If your client gets what he or she wants,
consider whether continuing to sue is
necessary.
Don’t forget
to be cooperative!

Don’t assume bad faith (e.g., that delays
and omissions are intentional).
Contact Legal before you get too frustrated.
 BOP is focused on following the law.
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BOP counsel and AUSAs have good relations
with many counsel and want to work with you!
The end
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Chris Synsvoll: [email protected]
Kevin Traskos: [email protected]