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October 20, 2022

Lots of coverage of ugly BOP mistreatment of cancer victim called out in court opinion

I finally got the chance to read in full this federal district court order from earlier this month authored by US District Judge Roy Dalton Jr., assailing the Bureau of Prisons' treatment of Frederick Mervin Bardell, who died of colon cancer not long after it seems BOP denied he had colon cancer.  The full opinion is worth a full read, and it begins and wraps up this way:

Judges carry the heavy burden of depriving individuals of their liberty. But the Bureau of Prisons shoulders the constitutional burden of protecting the remaining rights of the incarcerated while in custody.  The possibility that the Bureau of Prisons would be so indifferent to the human dignity of an inmate in its care as the facts here demonstrate, increases the burden on the sentencing judge exponentially.  This, of course, pales in comparison to the suffering of the inmate and his family....

Though this contempt proceeding focused primarily on the circumstances surrounding Mr. Bardell’s release, the Court is also troubled by his care and treatment while confined, especially during the latter stages of his incarceration.  The Court has serious reservations about the adequacy of his treatment and diagnosis.  In light of these concerns, the Court recommends that the Attorney General (or Inspector General for the Department of Justice) undertake an investigation into the circumstances of Mr. Bardell’s confinement and treatment, the failure of the BOP to respond to his medical needs, and the BOP’s misrepresentations in connection with the compassionate release briefing regarding the seriousness of his condition.

I believe Reason was the first outlet to highlight this ruling in this article headlined, "Judge Holds Federal Bureau of Prisons in Contempt for Allowing Man To Waste Away From Untreated Cancer."  Since then, I have been intrigued to see this case garnering lots more media attention:

From the New York Times, "Judge Holds Prison Officials in Contempt for Treatment of Terminally Ill Inmate"

From Reason, "Justice Department Inspector General Launches Investigation Into Inmate Death Following Judge's Contempt Order"

From Salon, "A federal prisoner's gruesome and shameful mistreatment — and why it was all too typical"

From the Washington Post, "Judge blasts Bureau of Prisons’ treatment of dying prisoner"

October 20, 2022 at 09:36 AM | Permalink


I saw an even worse situation at a BOP medium security inmate who had been diagnosed with testicular cancer. There is a high success rate if the cancerous testicle is surgically removed early, before the cancer spreads to other parts of the body. In this inmate's case, he was due to be released from prison in about 4 months, so the BOP did not want to spend the money to have his testicle removed before release. Before inmates can file lawsuits about such medical mistreatment in custody, they must first exhaust Administrative Remedies, which takes about 6 months. The BOP decided to fight this inmate's request to have his cancerous testicle removed on paper, thru the Administrative Remedies process, knowing that he would be released before he could ever complete the remedies process. Following his release, he would have to seek Medicaid coverage and then try to get his cancerous testicle surgically removed; but by then, the cancer may well have spread to other parts of his body, due to the delay in treatment. This intentional delay, until release from prison, seems to satisfy the "deliberate indifference" standard found in the U.S. Supreme Court's holding in Farmer v. Brennan, but the BOP did it anyway. Those of us who watch it happen found it truly disturbing, but there was nothing we could do to help the inmate. I do not know what happened to him following his release from prison.

Posted by: Jim Gormley | Oct 20, 2022 9:55:53 AM

It is important to note that Judge Dalton is explicitly retaining jurisdiction, so that he and the Special Master can continue their investigation and pursue additional sanctions. It seems clear to me that this case isn't over yet. I expect that we will eventually see criminal charges for criminal contempt of court and false statements and/ or perjury against BOP officials (including Warden Zook) and others, perhaps even including an attorney or 2. Also, the crime-fraud exception to the Attorney-Client Privilege ma be found to apply here, so the lawyers can be made to divulge what their clients said to them about this man's diagnosis and care. The BOP will receive a lot of press and public pressure to full investigate this case, hold individual employees accountable, and make institutional changes so that situations like this never happen again. See, the U.S. Supreme Court's holding in "Farmer v. Brennan" and the "deliberate indifference" standard. I also foresee the estate of the deceased inmate filing a civil rights lawsuit against the BOP and its employees. Many attorneys will volunteer to represent his parents, as Administrators of their deceased son's estate.

Posted by: Jim Gormley | Oct 20, 2022 10:27:40 AM

This is far from an isolated case. Neglect and refusal to act are commonplace. I cannot disclose my client's particular situation, but permanent blindness may occur because no one in BOP will take responsibility to act to get them treatment.

Posted by: defendergirl | Oct 20, 2022 10:57:33 AM

In 2001, I helped an inmate at FCI - Petersburg, Virginia deal with the fact that upon entry into the BOP, the prison physician discontinued his steroid pills to treat his Crohn's Disease. Almost immediately, his Crohn's symptoms returned, vomiting, diarrhea, bleeding; and within 6 weeks he lost 60 pounds of body weight. Rather than pursue Administrative Remedies on this issue, we wrote a letter about the problem to his Sentencing Judge, who had seen him only 4 months earlier. She was alarmed, and send a fax of her concerns and his letter to the Director of the Bureau of Prisons! Within a few days of the District Judge's letter being faxed to D.C., the prison doctor put him back on his steroids and the symptoms disappeared. This proved to be much quicker and more effective than pursuing Administrative Remedies.

Posted by: Jim Gormley | Oct 20, 2022 11:27:43 AM

Truly horrific treatment by the BOP. As the Judge noted, "No individual who is incarcerated by order of the Court should be stripped of his right to simple human dignity. ...The treatment Mr. Bardell received in the last days of his life is inconsistent with the moral values of a civilized society and unworthy of the Department of Justice of the United States of America."

The government lawyer who represented the BOP in the compassionate release litigation should be disbarred.

Posted by: Michael Levine | Oct 21, 2022 2:53:54 PM

Michael Levine: Before we consider disbarring the attorney who represented the BOP in the Compassionate Release litigation, we need to further investigate what the BOP personnel actually communicated to that attorney about the underlying facts and the opinions of BOP physicians. If the BOP personnel lied to or misled the attorney, then we should prosecute them, instead of seeking to disbar an attorney. I have learned thru hard experience that even good attorneys can be lied to and deceived by their own clients, to their detriment.

Posted by: Jim Gormley | Oct 21, 2022 3:51:58 PM

@Jim: Worth noting that the BOP officials arent the attorney's clients -- the BOP itself is. So BOP itself could also waive privilege and the officials couldn't do anything about it.

Posted by: Jason | Oct 21, 2022 10:32:26 PM

Jason: Also, the Judge might eventually determine that the "Crime- Fraud Exception" to the attorney-client privilege applies, vitiating the privilege.

Posted by: Jim Gormley | Oct 23, 2022 7:36:48 AM

Jim Gormley, of course you are correct. If anyone should know that, it's me!!

Posted by: Michael Levine | Oct 24, 2022 7:32:36 PM

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