Document Type
Brief
Publication Date
9-30-2024
Publisher
United States Court of Appeals for the Third Circuit
Language
en-US
Abstract
Because the Probation Office “dropped the ball,” JA199, false information remained in Rocky Freeman’s pre-sentence report for years. The Bureau of Prisons knew or should have known that it was relying on an inaccurate PSR. Yet, it failed to take any action to obtain correct information until Freeman discovered that BOP had been treating him as if he were a contract killer who had murdered two victims—effectively punishing him for acquitted conduct contrary to a court order. Instead of designating Freeman to the lowest-security-level facility for which he was qualified within 500 miles of his family, the United States sent him to the “worst and most dangerous Penitentiary,” 1,500 miles from his family where he was prevented contact with visitors and where another inmate used a long razor blade to cut his face. JA96, 133-34.
Later, BOP put Freeman in solitary confinement for about a year longer than agency rules allowed, basing its decision on false information about the circumstances of Freeman’s case. JA458. And in 2015, Freeman was “bound[], shackled and forced to wear a Black Box for hours without the opportunity to” use a bathroom because BOP relied on the falsehood that he was a contract killer who had killed two victims. JA97, 198. The government doesn’t want to face these facts. But considering them, the law provides a path for Freeman to be made whole and for the government to be held accountable for its negligence.
I. To begin with, remand is required because the district court arbitrarily dismissed the probation-officer defendants after failing to take adequate measures to comply with 28 U.S.C. § 1915(d). The government fights this point with smoke and mirrors, citing cases where in forma pauperis plaintiffs did not comply with court orders to provide accurate service addresses when no facts established that the plaintiffs lacked access to these addresses. The story here couldn’t be more different: The district court ordered the government, not Freeman, to provide addresses for the probation officer defendants, and the government failed to comply. Then the district court penalized Freeman. The government argues that Freeman’s claims against the probation officers won’t succeed under Bivens, but it cannot explain why it would be appropriate for this Court to address the cognizability of these claims now when that affirmative defense has yet to be raised in the district court. This court should apply Section 1915(d) faithfully and allow the case against the probation officers to proceed on remand.
II. The government’s effort to defend the district court’s errors in dismissing Freeman’s Federal Tort Claim Act claim also fails. On the presentment issue, it asks this Court to ignore the FTCA’s text, Supreme Court precedent, the government’s blatant forfeiture, and the relevant implementing regulation. If this Court is unwilling to do all that, it urges the Court to either misapply the summary-judgment standard by drawing inferences in its favor and against Freeman or by penalizing Freeman for having too little evidence even though he hasn’t been given the opportunity to create an adequate record. The government’s years-long efforts to thwart Freeman’s FTCA claim should be rejected.
Recommended Citation
Madeline H. Meth,
Reply Brief for Plaintiff-Appellant Rocky Freeman
(2024).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/3930
