u.s. Department of Justice
Federal Bureau of Prisons
North Central Regional Office

Tower II, 8th Floor
400 State Street
Kansas City, KS 66101-2421

January 11, 2001
MEMORANDUM FOR CHRISTOPHER ERLEWINE
ASSISTANT DIRECTOR/GENERAL COUNSEL
GENERAL COUNSEL AND REVIEW DIVISION

(

FROM:

DARYL KOSIAK, Regional Counsel

SUBJECT:

Monthly Report (December 2000)

LITIGATION, CLAIMS. AND ADMINISTRATIVE REMEDY STATISTICS
LITIGATION:

INST
NCR

NUM

HC

FTC

BIV

OTH

ANS

PEN

CLD

HIT

SET

AWD

46

25

12

7

2

33

436

38

3

0

$9,273

PEN

CLD

HIT

SET

45

7

Total cases for Calendar Year - 295
NUM HC FTC SIV OTH ANS PEN -

CLD HIT SET -

AWD -

Number of total lawsuits filed in the month
Number of habeas corpus actions flIed in the reporting period
Number of FTCA actions filed
Number of Bivens actions flIed
Number of other actions flIed, e.g., mental health, mandamus
Number of litigation reports completed
Number of cases pending
Number of cases closed
Number of hearings or trials (include in narrative)
Number of settlements (include in narrative)
Number of Awards (include in narrative)

Appeals

NUM

HC

FTC

BIV

OTH

NCR

5

2

0

2

0

4031

ANS

AWD

North Central Region
Regional Counsel Monthly Report
December 2000
Page 2
Petitions filed

Hearings

18 USC§4245

5

1

18 USC§4246

3

0

Mental Health cases -

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ADMINISTRATIVE CLAIMS

JAN

FEB

MAR

APR
254

MAY
207

JUN
238

JUL
233

AUG
219

SEP
207

OCT
220

NOV
225

DEC
233

55

65

55

47

48

59

52

82

54

81

74

70

#Answered

45

55

71

66

37

38

45

65

4.6

#Over 6
month
#Pending

4

7

7

10

13

12

23

10

9*

207

238

233

219

207

220

225

233

280

#Pending
#Received

Total for Calendar Year - 742

*Three of the institutions, which are responsible for :l of the late responses, have recently undergone
attorney transition.

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ADMINISTRATIVE REMEDIES

#Received

JAN
175

FEB
164

MAR
192

APR
171

MAY
249

JUN
234

JUL
195

AUG
226

SEP
182

OCT
215

NOV
203

DEC
228

#Answered

168

178

178

186

164

264

207

214

215

214

210

183

'I!- Rejected

65

83

97

87

119

112

82

59

78

110

97

123

Total for Calendar Year - 2206

FREEDOM OF INFORMATION ACT/PRIVACY ACT REQUESTS

JAN

FEB

#Pending

47

33

48

#Received

68

94

#Processed

39

#Backlog

16

FOIAIPA

MAR APR

MAY

JUN

68

71

92

69

74

106

4

1

JUL

AUG

SEP

OCT NOV DEC

70

73

57

64

109

128

138

77

75

61

80

47

101

98

69

41

97

63

62

85

47

54

77

70

1

3

3

0

3

0

9

11

10*

i

4032

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North Central Region
Regional Counsel Monthly Report
December 2000
Page 3

(,

Total for Calendar Year - 931
*~

Requests awaiting the retrieval of records from the archives.

ADVERSE DECISIONS

SETTLEMENTS OR JUDGMENTS
Schmidt v. Kruger, FMC Rochester
This was a worker's compensation case. While Schmidt was an inmate at FMC, he
received surgery for a hernia. Apparently, Schmidt was injured, while working for
Kruger Construction, prior to his incarceration. Under the Medical Care Recovery Act,
FMC intervened in the Worker's Compensation action, and was able to recoup
$9,273.99 for the costs incurred for Schmidt's treatment.

DECISIONS OF INTEREST

(

Sesi v. BOP! et al., 6th Circuit Court of Appeals, FCI Milan
The Sixth Circuit Court of Appeals issued an Order on December 29,2000, addressing
Sesi's appeal of the District Court's Dismissal of his 2241 petition appealing his
expulsion from the RDAP Program. The Sixth Circuit upheld the District Court's
dismissal on the grounds of failure to exhaust administrative remedies, as well as the
dismissal on the grounds that Sesi's claim failed to articulate a protected liberty interest.
The Sixth Circuit held that there is no liberty interest in a reduced sentence, and
3621 (e )(2)(B) does not afford such an interest.

PENDING CASES OF INTEREST
Cess pooch v. BOP! et al., Case No. 00·ES-1973, USP Florence
This is a Bivens action arising from the USP, naming several staff. Plaintiff alleges he
was assaulted by the defendants while housed in the Special Housing Unit and was
denied medical care.
Eusi v. Pugh, Case No. 00-S-1736, ADXlUSP Florence
This is a habeas petition challenging disciplinary action taken against the petitioner as a
result of his assault of staff at USP Florence. Petitioner claims he was denied due
process by staff's failure to provide him with evidence used against him and failure to
investigate his claims that staff fabricated evidence against him.

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North Central Region
Regional Counsel Monthly Report
December 2000
Page 4

Kowaalski v. Pugh, Case No. 00-M-2136, ADX Florence
This is a Bivens action in which plaintiff alleges he is unable to meet with his attorney in
a confidential setting and that the defendant is censoring his legal mail. Plaintiff
complains that the actions of defendant violate his constitutionally protected rights
under the 4th , 5th , 6th , and 8th Amendments. Plaintiff seeks declaratory, injunctive,
and monetary relief. Specifically, plaintiff, a Control Unit inmate at the ADX, seeks an
Order requiring the ADX to provide him with a contact, unrestrained, unmonitored legal
visit. Plaintiff and another Control Unit inmate are being prosecuted by the United
States Attorney's Office in the Middle District of Pennsylvania for the killing of another
inmate at USP Lewisburg. That matter is in the pre-indictment stage and the AUSA
handling the matter is seeking input from plaintiff for the death penalty review. Plaintiff
and his legal ,counsel argue that it is too difficult to converse through the" sp,eak-easy"
in the booth without shouting, and that the conversation could be overheard easily. The
judge ordered the parties to mediate the matter, making it clear that a balance must be
struck between plaintiff's need to effectively communicate with his attorney and
legitimate security concerns of the ADX. Plaintiff's counsel offered to sign a waiver,
removing any liability the BOP would have should plaintiff attack him or take him
hostage. Modifications to one of the legal visitation booths are being made to address
the issues raised by both counsel and the judge, concerning the ability to communicate
and be overheard outside the booth.
Turner v. Schultz. et al., Case No. 99-WM-2232, USP Florence
On December 13, 2000, plaintiff filed a Second Amended Complaint. Among other
things, plaintiff now alleges that staff had knowledge of allegations of inmate abuse
which were ignored and/or responded to with retaliation. Plaintiff is relying on
information provided to him by former union officials at USP Florence. It is alleged that
these officials routinely complained to management at LMR meetings about the abuse
to inmates being done by a group of staff called the "cowboys." It is alleged that
management refused to take action and investigate the allegations, and instead
rewarded those involved in the illegal activity. It is alleged that management began a
pattern of illegal activity to force the officials out of their positions with the union. This
matter has received significant media attention. Staff are either not represented,
represented by constituti,onal torts, or represented by DOJ-paid counsel.
In re Richard & Pamela Galloway, Case No. 00-31194 & Larkin v. Galloway,
Adversary Action 00-3192, FCI Greenville
The Custodian of Records was served with a subpoena for records in an Adversary
Action in a bankruptcy case. [HISTORY: Inmate had filed a Bivens action against a
staff member. While this case was pending, the staff member filed for bankruptcy. The
Bivens action was subsequently dismissed for failure to exhaust. The Bivens action is
currently pending appeal in the 7th Circuit. The inmate brought an adversary action in
the bankruptcy proceeding, seeking to have the court find that any potential future
judgement in the Bivens action is not dischargeable in bankruptcy. The bankruptcy
judge would not stay the proceedings until the 7th Circuit ruled on the appeal in the
Bivens case. A hearing was set to determine if any potential future judgement for the
inmate in the Bivens case would be dischargeable.] The records sought included the
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North Central Region
Regional Counsel Monthly Report
December 2000
Page 5

OIA report and portions of a FBI report in the possession of the BOP.
Blandin v. Acosta, et al., Case No. 98-3282-MLB, USP Leavenworth
In this case, petitioner claims staff assaulted him. An attorney at USP Lompoc recently
notified USP Leavenworth attorneys that the inmate is willing not to pursue his claims if
he were to receive protective custody and a transfer. Currently, the attorneys are
working to obtain a voluntary dismissal from Blandin.
Swanson v. US, Case No. 00-3189, FMC Rochester
Prior to his good conduct release, Swanson filed a personal injury tort claim regarding
treatment he received at FMC Rochester for his condition. Swanson's tort claim was
denied, and he filed an action in Alabama which was then transferred to Minnesota.
Swanson filed as a combination FTCA and Bivens case, and has added additional
medical issues, including anal warts and his heart condition.
Canty v. US, Case No. 00-1333, FMC Rochester
Prior to Canty's release,. he filed a personal injury tort claim regarding treatment he
received after being burned by hot water he heated in a housing unit microwave.
Canty's tort claim was denied. Canty filed a combination FTCA and Bivens case, but
names only unknown staff members.
(

Stocker v. BOP, Case No. 00-2016, FCI Sandstone
Stocker has filed a Civil Rights action against staff at FCI Sandstone claiming "cruel
and unusual punishment. JI He contends the overcrowding conditions at the institution
caused him to attempt suicide.
Young v. FCI Waseca, Case No. 00-2582, FCI Waseca
Young has filed a Bivens action against the staff at FCI Waseca claiming they did not
provide him with all information during a team meeting.

RELIGIOUS FREEDOM RESTORATION ACT
Patel v. Wooten, 10th Cir., FCI Florence
This is a RFRA matter challenging lack of special religious diet for Muslims at FCI. The
matter was initially dismissed by Judge Matsch, heard by 10th Circuit, who found that
RFRA didn't apply, but who returned the matter for a determination as to whether
qualified immunity should apply. The District Court granted Summary JUdgement, and
the plaintiff appealed. On appeal, plaintiff argues that common fare is insufficient to
meet the needs of Muslim inmates, as it is mainly a "kosherrt substitute, thus resulting in
an equal protection violation. The matter has been briefed and the Circuit intends to
rule without argument.
Tolley et al. v. Pugh. et al., Case No. 97 -N-0793, Fel Florence
This is a RFRA case challenging denial of separate outdoor worship area for Odinists at

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North Central Region
Regional Counsel Monthly Report
December 2000
PageS

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Fel Florence. The original plaintiff transferred in 1999. However, other plaintiffs were
allowed to join. The R&R recommended dismissal of all plaintiffs, except Tolley for
failure to exhaust. It also recommended denial of claims with respect to Tolley on
mootness, and denial of official capacity claims, finding the APA constituted a waiver of
sovereign immunity.
UPCOMING HEARINGS AND TRIALS
Johnson v. USA, 7th Circuit, MCC Chicago
Oral argument is set for Tuesday, January 23, 2001, at 10:00 a.m. The administrator of
the estate of an inmate, who committed suicide in June 1993, alleges the inmate's
death was the result of staff negligence. The district court awarded the plaintiff $1.8
million in damages, plus costs. The United States appealed.
Boyce v. Reno. et ai, Case No. ADX Florence
Oral argument on the petitioner's (Boyce) appeal set for Monday, January 22,2001, at
9:00 a.m. Judge Daniel had dismissed Boyce's habeas petition on the basis of lack of
jurisdiction. Boyce wanted the court to order the BOP to transfer him from the ADX to
FCI Sheridan.
Bryant v. Cassaro. et al., Case No. 97 -S-0891, USP Florence
Matter currently set for three day trial beginning March 5, 2001. R&R dated, December
28,2 000, recommends denial of Cassaro's motion for summary jUdgment, finding an
issue of fact exists as to his presence at the relevant time.
Garrett v. Stratman, 10th Cir. # 00-1028, ADX Florence
Oral argument on appeal of denial of qualified immunity by former clinical director.
Inmate injured his shoulder, and doctor provided care, to include evaluation by
specialist. Specialist recommended surgery, and 204 was immediately prepared.
Medical designator approved' transfer to MCFP, but placed a delay, pending
authorization to move. Authorization was not received for 11 months. After arrival at
MCFP, it was determined that because of the delay, surgery was no 'longer an option.
District Judge denied qualified immunity, holding that clinical director "could have done
more" to ensure a timely transfer. Oral arguments set before the 10th Circuit on January
24, 2001 in Kansas City.
Laury v. Carl Greenfield. et al., Case No. 98-3024-JWL, USP Leavenworth
This case is currently scheduled for trial in the District of Kansas on January 17, 2001.
This case involves allegations of three specific acts of excessive use of force. All
defendants are represented by private counsel at DOJ expense.

4036

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North Central Region
Regional Counsel Monthly Report
December 2000
Page 7

Yu Kikumura v. United States, No. 97 -CV-52-JPG, USP Marion
The above case is set for trial on Friday, January 12, 2001, at the USP Marion
courtroom.
CRIMINAL MATTERS
USA v. Walter Walsh, Case No. OO·CR-p133, FCI Florence
Walsh, a former cook supervisor, is charged with bribery and conspiracy. Specifically,
he was implicated in a scheme to introduce drugs into the Fel for profit. Trial continued
from 5/30100, as defendant filed 14 separate motions. Motions hearing held 7/21, and
matter continued until 10/23/00 for suppression hearing. On 11/1100. Judge Miller
granted motion to suppress statements. James hearing set for 1118/01.
USA v. Rodney B. White, Case No. OO-CR-0358
Inmate indicted for possession and trafficking in contraband in violation of 18 U.S.C. §
1791. Various discovery motions filed. Trial date vacated, to be reset. Motions hearing
was set for 12/14/00 at 3:00 p.m. Notice of change of plea, and hearing set for 1/5/01.
United States v. David Michael Sahakian, Richard Scott Mcintosh and Carl Edgar
Knorr, Case No. 99-40044-JPG, USP Marion.
Inmate Sahakian is charged with possession of a prohibited object in violation of 18
U.S.C. § 1791 (a)(2). All inmates are charged with murder in the first degree and
conspiracy to commit murder in the first degree in violation of 18 U .S.C. § 18: 1111. 7(3)
& 2. An arraignment was held on November 15.
U.S. v. Schofler & Johnson, USP Leavenworth
On December 11, 2000. inmates Scott Schofler and Damion Johnson were both
sentenced in the District of Kansas for the murder of inmate Joseph Glenn Smothers.
The court accepted their plea to second degree murder in violation of 18 U.S.C. § 111.
Each inmate received a 121 month sentence, 5 years supervised release and a
$100.00 special assessment. Both inmates also waived their right to appeal.

PERSONNEL ISSUES

STAFF TRAVEL AND LEAVE
January 22

January 23

4037

1Qth Circuit Court of Appeals
Yousef v. Reno
Boyce v. Reno, et al
Circuit Court of Appeals
Estate of Johnson v. USA

7th