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Fbop Ncr Monthly Reports 1998sep-dec

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u.s. DEPARTMENT OF JUSTICE
Federal Bureau of Prisons
North Central Region
Office of Regional Counsel

Kansas City, KS 66101
October 8, 1998
MEMORANDUM FOR WALLACE H. CHENEY, ASSISTANT DIRECTOR
GENERAL COUNSEL & REVIEW
FROM:

JOHN R. SHAW, Regional Counsel

SUBJECT:

~PORT (September, 1998).

LITIGATION. CLAIMS; AND ADMINISTRATIVE REMEDY STATISTICS

LITIGATION:

(

inst

nurn

he

ftc

biv

oth

ans

pen

eld

hIt

set

a.wd

NCR

45

21

2

5

5

18

444

10

0

1

0

HUM - Number of total lawsuits filed in the month (1)
HC - Number of habeas corpus actions filed in the reporting period
FTC - Number of FlCA actions filed
BIV - Number of Bivens actions filed
OTH - Number of other actions filed, e.g. t mental health, mandamus
ANS - Number of litigation reports completed
PEN· Number of cases pending
CLD - Number of cases closed
Hrr - Number of hearings or trials (Include In narrative)
SET - Number of settlements (include in narrative)
AWD - Number of Awards (include In narrative)

*Number of open eases on LMS.

ADMINISTRATIVE CLAIMS:
JAN

FEB

MAR

APR

MAY

JUN

JUL

AUG

SEP

61

50

66

81

56

74

98

95

73

Total for Calendar Year 654
Pending 272

2639

OCT

N()\'

DEC

North Central Region
Regional Counsel Monthly Report
September, 1998
Page 2
ADMINISTRATIVE REMEDIES

JAN

FEB

MAR

APR

MAY JUN

JUL

AUG

SEP

184

170

210

198

249

241

241

223

202

OCT

NOV

DEC

. Total for Calendar Year 1918

FREEDOM OF INFORMATION ACTIPRIVACY ACT REQUESTS

FOIA
ACTUAL ON-HAND

°26

10

ACTUAL RECEIVE D

67

25

ACTUAL PROCESSED

56

18

ACTUAL BACKLOG

(

PRIVACY ACT

1*

0

Backlog represents those requests which have not been responded to within the twenty work days
target set by DOJ.
* Awaiting records from archives.
ADVERSE DECISIONS
Washington v. Hedrick, 97-941-JPG, USP Marion
A motion for summary judgment was denied and the petitioner's request for writ of habeas corpus
was granted. The Court ordered that the BOP recalculate the petitioner's sentence by a\\·arding credit
for time served between July 23, 1995 and March 27, 1996. A motion to reconsider has been filed
by the government. The petitioner was released from BOP custody on August 19. 1998 to law
enforcement officials acting on behalf of the State of Couth Carolina to serve the remainder of his
parole violator term.

SETTLEMENTS OR JUDGMENTS

(

Sartin v, United States, 97-2780-G BRE, FPC Marion
This FTCA case originated from a chair that collapsed during Ms. Sartin's visit with her son at FPC
Marion. Though claiming to be alright the time of the accident, she subsequently sought $50.000
in damages for injuries, pain & suffering, mental anguish, loss of earnings and medical expenses.
This case was settled for $12,000.00.
2640

North Central Region
Regional Counsel Monthly Report
September, 1998
Page 3

DECISIONS OF INTEREST
SeiDen v. Scott and Hanson. 9S-318S-RDR, USP Leavenworth
On September 23, 1998, the court granted defendant's motion for summary judgment in part and
denied it in part. All official capacity claims against Warden Scott and Lt. Hanson have been
dismissed. Summary Judgment was granted in favor of Warden Scott on all individual capacity
claims. The only claim remaining ~n this case involves an allegation of excessive force against Lt.
Hanson. Lt. Hanson is represented by a private attorney. Retention of private counsel was authorized
in accordance with the provisions of 28 C.F .R. sections 50.15, 50.16, and Civil Division Directive
2120A in 1995.
Johnson v. Warden J.T. O'Brien, 98-C-0528-S, FCI Oxford
Inmate alleged that his three witnesses were not called to his DHO hearing. The DHO report stated
that the witnesses did appear at the hearing and testified. Subsequent investigations revealed that
the witnesses were not called to the hearing. The inmate will be granted a new DHO hearing with
a new DHO officer.

(

Malik v. Mack. et ai, 95-3213-RDR, USP Leavenworth
Defendant's Motion for Summary Judgment is granted. Plaintiff alleged that defendant correctional
officers'vi<?lated his First, Fourth, Fifth and Eighth Amendments by using excessive force dwing a
cell move.

PENDING CASES OF INTEREST
YousefCRamzi Ahmed) v. Reno. Hawk and Hurley, 98- -2008, FCI Florence
Local papers ran a story about a civil suit filed by inmate Yousef challenging his 501.3 conditions
of confinement. Inmate challenges his various special restrictions, including the English only rules.
In re Jody Dunn, USP Florence
An emergency ex parte application was filed to allow forced feeding, rehydration and testing of
inmate Dunn, who was refusing to eat or cooperate in necessary testing'. Mr. Dunn's condition was
becoming serious. Judge Miller ordered an immediate hearing on the matter. Although ~1r. Dunn
had ag..eed to eat and drink during the time between the filing and the hearing, the hearing continued.
The court ordered inmate Dunn to cooperate with efforts to feed and test him medically. ~1atter is
to remain open until mid November when a status report will be filed.

(

Shinpaugh v. T. Carlson, 98-WM-706, FeI Florence
Civil rights case which claims that plaintiff's mail was improperly read and censored by defendants
in violation of his 151 Amendments rights. Plaintiff also claims that the UDC found him guilty of
insolence based on the letter and thereby denied him due process in violation of the 5th Amendment.

2641

North Central Region
Regional Counsel Monthly Report
September, 1998
Page 4

(

Plaintiff filed notice of intent to challenge PLRA as violating Article III, equal protection and as a
bill of attainder under Article III.
Blanche ».yer y. U.S.A., 4-92-CV-70077, MCC Chicago
An inmate who was at MCC Chicago for two weeks in 1989 filed a tort claim with the U.S.M.
regarding her medical treatment as a .pre-trial inmate. The Iowa court granted summary judgement
for the government, and the CTA reversed, remanding to N.D. Illinois. Case now focuses on
treatment she received from Bureau of Prisons.
Victor A. Age y. Warden J. T. O'Brien, 98-C-686-S, FCI Oxford
Petitioner alleges in this habeas that he is illegally confined at FCI Oxford due to CIMS violatiohs.
He alleges that he is to be separated from Mexican Mafia inmates, but Mexican Mafia inmates are
present at FCI Oxford.
Hampton y. Keohane, et ai, 98-3390-CV-S-RGC-H, USMCFP Springfield
Petitioner contends that the BOP should activate a heart transplant procedure necessary to preserve
his life or grant him an immediate release from custoqy to arrange for a heart transplant.

(

RELIGIOUS FREEDOM RESTORATION ACT CASES

...

None.
HEARINGS AND TRIALS

None.
UPCOMING HEARINGS OR TRIALS
Timothy Ueland v. United States of America, D.Minn., FCI Sandstone
Oral argument set for October 8, 1998 at 11 :00 a.m.
Lozano v, Reno. 95-S-2661, NeRO
Plaintiff is a former BOP staff member who was terminated for not disclosing certain information
in his backgroWld investigation. The plaintiff claims he was fired because of his national origin and
in retaliation for utilizing the EEO process. The BOP lost at the administrative level and the plaintiff
is seeking nearly $300,000 in backpay and attorney's fees. Assistant Regional Counsel Dan Eckhart
will assist at trial.
U.S. v. Larkin (98-10026), FCI Pekin
Sentencing on Introduction of Contraband Charge set for October 15, 1998.

2642

North Central Region
Regional Counsel Monthly Report
September, 1998
PageS

u.s. v. Payne (98-10028), FeI Pekin
Sentencing on Assault on a Correctional Officer set for October 16, 1998.
u.s v. Miller (98-10046), FCI Pekin

,
JUlY Trial on Introduction and PWID Contraband. lIDs charge makes the irunate a career offender.
He is looking at a guideline range of262+ months. The inmate's attorney has attempted repeatedly
to get the inmate to plead but has been unsuccessful.
U.S. v. Petty (98-10027), FCI Pekin
Sentencing of Introduction of Contraband charge set for October 23, 1998.

CRIMINAL MATTERS
U.S. v. Missra Araiza-Reyes, FCC Florence
Inmate pleaded guilty to Voluntary Manslaughter on August 28, 1998. Sentencing set for November

5.

(

u.s. v. Francis and Haney, USP Florence
Inmates charged with attempted escape from USP and possession of contraband (escape
paraphernalia). Defense counsel concerned about ability of imnates to have telephonic contact with
- court. A fonn order was prepared concerning the contact procedures. Another motions hearing set
to discuss discovery requests for plans and blueprints showing all security devices at USP Florence.
We have objected strenuously, providing an in camera declaration from Warden Holt as to the
dangers of releasing such information.
U.S. v. Mills, USP Florence
This civil rights trial involving former counselor striking an inmate who was in restraints at USP
Florence was held from June 29 through July 2. Jury returned a guilty verdict, finding he violated
18 USC 242. Several BOP stafT~ and former staff, traveled to testify. Sentencing hearing \\'as held
on September 23. Mills was sentenced to 33 months, 3 years supervised re~ease \\'ith a mental
health aftercare provision. When imposing sentence, Judge Daniel was concerned about a possible
placement. Court is "strongly recommending" placement in a state facility. This case reccivcd press
coverage.
,

u.s. v. Riddle and Black~ USP Florence
Plea negotiations ongoing regarding the charge of an inmate murder at USP.

(

U.S. v. McElhiney, USP Lea\'enworth
On September 9, 1998 .. inmate Michael McElhiney, Reg. No. 04198-09 was indicted in the: District
of Kansas for possession \-\'ith intent to distribute and distribute heroin, in violation of lith: ~ I
U.S.C.§ 846 and § 841 (b)( 1)(C) and Title 18 U,S.C. §- 2 in connection with an offense: un llf about

2643

North Central Region
Regional Counsel Monthly Report
September, 1998
Page 6

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the 1st day of January 1995, to on or about the 30th day of December 1995. McElhiney is c~ently
being temporarily housed at USP Leavenworth and he has decided to represent himself in this matter.

PERSONNEL ISSUES
8TAFF IRAVEL AN!> LEAVE

( ....
""-

'

John

October 13 - 14

Daryl

None scheduled

Dan

October 20-22
October 26-29

Gwen

None scheduled

LeeAnn

None scheduled

Janet

None scheduled

Tracy

September 28-0ctober 9
October 17-November 7

IF (USP Leavenworth)
Glynco" Georgia

Lisa E.

September 28-0ctober 9

IF (USP Leavenworth)

LisaM.

None scheduled

Beth

None scheduled

. Annual Leave

Trial preparation @ Denver (Lozano)
Trial @ Denver (Lozano)

.~

Tort dBASE Files sent via e-mail to Delores Johnson, OGC, on 10/11/98.

(
2644 .

u.s. DEPARTMENT OF JUSTICE
F,:deral Bureau of Prisons
North Central Region
Office of Regional Counsel
Kansas City . KS 66101
Novenlber 9. 1998
MEMORANDUM FOR WALLACE H. CIIENEY. ASSISTANT DIRECTOR
GENERAL COUNSEL & REVIEW
FROM:

JOHN R. SHAW. Regional Counsel

SUBJECT:

MONTHLY REPORT (October. )998)

LITIGATION, CLAIMS, AND ADMINISTRATIVE REMEDY STATISTICS
LITIGATION:

inst
NCR

nurn
39

hc
18

ftc
5

biv
12

ans
13

oth
10

pen

cld
26

456

hIt

10

set
5

awd
0

OCT
70

NOV

NUM - Number of total lawsuits filed in the month (1)
HC - Number of habeas corpus actions filed in the reporting period
FTC - Number of FTCA actions filed
BIY - Number of Bivens actions filed
OTH - Number of other actions flied, e.g., mental health, mandamus
ANS - Number of litigation reports completed
PEN - Number of cases pending
CLD - Number of cases closed
HIT - Number of hearings or trials (include in narrative)
SET - Number of settlements (include in narrative)
AWD - Number of Awards (include in narrative)

*Number of open eases on LMS.
ADMINISTRATIVE CLAIMS:
JAN
61

FEB
50

MAR
66

APR
81

MAY
56

.It IN

74

.lUI..
98

Total for Calendar Year 724
Pending 286

3230

AUG

SEP

95

73

DEC

(.

North Central Region
Regional Counsel Monthly Report
October. 1998
Page 2
ADMINISTRATIVE REMEDIES
JAN
184

FEB
170

MAR
210

APR
198

MAY
249

JUN
202

JlJL
241

AUG

241

SEP
223

OCT
248

NOV

DEC

Total for Calendar Year 2166

FREEDOM OF INFORMATION ACT/PRIVACY ACT REQUESTS

ACTUAL
ACTUAL
ACTUAL
ACTUAL

(

ON-HAND
RECEIVED
PROCESSED
BACKLOG

FOIA
34
55
60
I

PRIVACY ACT
18

19
9

1

Backlog represents those requests which have not hcen responded to within the twenty work days
target set by DO.f.
.
* Awaiting records from archives.

ADVERSE DECISIONS
Bellis v. Herrera & BOP, CIV98-4099, FPC Yankton
Inmate tiled habeas petition alleging inlproper classification by BOP as ineligible tor early
release under 18 U.S.C. § 3621(e)(2)(B). and requested an order from the court directing the
BOP to reconsider his classification in accordance with the 8th Circuit decision in Martin. On
October 23.. 1998. the Court granted the petition and ordered the BOP to reconsider Bellis's
eligibility tor early release in accordance with their opinion. A motion to Alter or Amend
Judgment was filed by the government.
Shields v. Herrera, CIV98-4123, FPC Yankton
Identical issue to Bellis. COllrt ordered that the BOP prOlllptiy reconsider the eligibility of
petitioner in accordance with their opinion in Bellis.
Pierson v. Herrera, CIV98-4113, FPC Yankton
Identical issue to Bellis. Court ordered that the BOP promptly reconsider the eligibility of
petitioner in accordance with their opinion in Bellis.
(

ll.S. v. Brandon, 1998 WL 735839 (6 th Cir.), FMC Rochester

An adverse decision in this case of a pretrial detainee committed to the custody of the Attorney

3231

(

North Central Region
Regional Counsel Monthly Report
October.. 1998
Page J
General for restoration ofconlpetence to stand trial pursuant to 18 U.S.C. § 4241(d). The issue
before the Sixth Circuit was whether a pretrial detainee is entitled to a judicial hearing prior to
the involuntary administration of antipsychotic medication to restore competence. The Court
held that due process requires that a non-dangerous pre-trial detainee be provided a judicial
evidentiary hearing prior to being involuntarily medicated tor the purpose of rendering hiln/her
competent to stand trial. The Court then held that thc governnlcnt's request to f()rcibly medicate
a nOll-dangerous pre-trail detaince nlust survive the strict scrutiny standard .. and that the
government must prove its case for involuntary medication by clear and convincing evidence.
SETTLEMENTS OR .JUDGMENTS

Barnes v. United States, 96-3280-CV -S-4, MCFP Springfield
Plaintiff tiled an FTCA against go\'ernment otlicials alleging negligence when officials allowe.d
him to retain a razor blade and his eye glasses thus facilitating his suicide attenlpt. He also
alleged nledical negligence by the physician in failing to properly diagnose and treat his heart
attack. A settlenlent agreement was reached in the amount of $20 . 000.00f.:
Boyd v. United States, 98-S-1026, ADX Florence
Plaintiff was offered $25 to settle this FTCA case 011 October 15. 1998. The innlate agreed to
settle for this amount .. but was concerned about how nluch of his settlenlent would go toward his
tiling fee of $150. The inmate was informed that twenty percent of all deposits would be applied
to the tiling fee because he remained liable for this accrued cost. The judge closed the case on
October 20.. 1998.

Cuoco v. United States. 97-CIV-1268. FCC Florence
NERO case. On October I .. 1998. an Oller of Judgnlent for $10.000 iii tavor of the Plaintiff in
this case was received from the AliSA f(lr the Southern District of New York. The inmate
agreed to the oller on Monday. Octoher 5. The AUSA arranged to have judgment entered
against the United States. The judge closed the case in the nlatter. ADX stafT continue to work
with thc NERO and the u.s. Attorney's Office regarding the receipt of the seUlclllent al110unt due
to the fact that the innlate owes the ADX $946.02 in DHO restitution. copies . postage. and a
court tiling fee.
Cuoco v. United States. 93-CIV-2806, FCC Florence
NERO case. On Octo her 1J . 1998. an Oner of .Judgment for $3.500 in tavor of the Plaintiff in
this case was received the AUSA f(lr the Southern District of New York. Again . the inmate
accepted the offer ofjudglllent and the judge closed the case in the nlatter. As stated in the above
reterenced case . ADX staff continue to work with the NERO and the U.S. Attorney's Office
regarding the receipt of the settlcnlent amount due to the fact that the inmate owes the ADX
$946.02 in DHO restitution. copies. postage. and a court filing tee.
Hernandez v. BOP, et al., 98-S-731. FCI Englewood
Plaintitr alleged defendants improperly refused to allow her to visit her husband while he was

3232

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North Central Region
Regional Counsel Monthly Report
October.. 1998
Page 4
confined at FCI Englewood. Case was settled when imnate was accepted for halfway house
placement.

DECISIONS ()F INTEREST

( ..

,

Lozano v. Reno, 95-WM-2261, FCI Englewood
After a three-day trial.. U.S. District Court Judge Walker Miller found for the United States and
ruled that a former employee was not discriminated or retaliated against when he was removed
from his position for falsification of preemployment documents. The case was very close
because while the judge ultilnately fbund for the United States.. he found that there were several
problelns with the way the BOP cunducted the precmploynlent screening process and did not
think the plaintiff was treated fairly. The judge gave considerable weight to the testimony of
former FCI Englewood Warden Anthony Bclaski and his employees who felt that Bclaski was
fair and supportive of minority enlployees. Since this case was filed before the enactment of the
1991 Civil Rights Act the pl,aintiff was linlitcd to seeking eight years of backpay and attorneys'
fees. Based on the amount of tinle opposing counsel has invested in the case.. it is expected they
will appeal the decision to the Tenth Circuit. The case was handled by legal staff at the NeRO.
Brown v. Helman, 98-1232, FCI Pekin
Habeas petition in which petitioner was alleging that she was wrongfully removed from her job.
She requested back wages. Casc tenninatcd on October 20. 1998 for two reasons: imnates have
no constitutional right to a job and tnonetary damages are not an appropriate remedy under §
2241.
Freeman v. True, et al., 97-2378-KHV, llSI' Leavenworth
In this case.. plaintiff alleged that certain onicers were negligent and deliberately indifferent to
his safety in allowing him to be attackcd by a fellow prisoner in the Special Housing Unit
recreation pen while he was in restraints. The plaintifrs negligence claim was disnlissed in
November 1997 for failure to cOlllply with the Federal Tort Claims Act. In granting the
defendant's motion for summary judgnlent. the court concluded that the plaintiffs 292's do not
support an inference that the detendants' conduct exceeded mere negligence.. at worst. To the
extent that the Form 292's reflect a rctl!rence of "SEP ALL" status the day he was attacked .. there
is no indication that the defendants actually drew an inference from these forms that plaintiff was
in danger. The evidence established that the defendants' normal procedure was to determine an
inmate's separation status using the SHU Roster.

['

Rollins v. Tom Wooten, Warden et al., 94-CV-1585. USP Leavenworth
On May 25. 1995 judgment was entered in favor of the defendants and against plaintiff

3233

North Central Region
Regional Counsel Monthly Report
October.. 1998
Page 5
dismissing action and complaint. Plaintiff had alleged in this Bivens -styled action that the
defendants failed to protect him and as a result his was assaulted by 4-5 other inmates.

Nguyen v. J.W. Booker, Jr., 97-3382-RDR, 10th Cir. Case No. 97-3338, USP Leavenworth
On September 3~ 1998 the 10th Circuit Court of Appeals affirmed the decision of the District
Court and ruled that it was correct for the District Court to dismiss this 2241 petition for writ of
habeas corpus for failure to exhaust. However. the District Court should not have based the
dismissal on the Prison Litigation Reform Act (PLRA). According to the 10th Circuit Court of
Appeals~ this petition did not fall within the PLRA's language barring suits challenging prison
conditions before administrative remedies have been exhausted.

Stotts v. Keohane, 98-31 72-CV-S-R(;C-H, MCFP Springfield
Petitioner contends a constitutional violation in bdng denied a specific treatment tor liver disease
or given a liver transplant. The Court noted that while the petitioner believes he is a suitable
candidate for a liver transplant there was nothing in the file to support his claim. The Court
agreed with the Magistrate that petitioner's contentions regarding a deliberate indifterence to his
serious was without merit. The Court dismissed petition without pr~iudice. (Petitioner also filed
a nlotion seeking to join with several other innlates in a class action on the issue of the BOP's
policy on organ transplants. Because a habeas corpus petition is not the appropriate lueans by
which to pursue a class action the nlotion was denied).
PENDING CASES OF INTEREST
Teich v. U.S.A., et al., CV-S-98-01231-HCM, MCFP Springfield
Defendants negligent medical care led to the plaintiffs descendant's (Patrick Friel .. Reg. No.
26914-048) death. BivenslNegligence claim regarding the death ofa quadriplegic patient.
Gilliam v. Bureau of. Prisons, et al., 98-3424-CV-S-RGC-H, MCFP Springfield
Petitioner contended that he is in custody unlawfully because he was hypnotized with LSD by
the U.S. Army to commit his crime.
Massey v. Wheeler and Helman, 98-1348, FCI Pekin
Bivens clainl alleging the defendants have denied the plaintiff uIl1110nitored attorney calls in
violation of his tifth anlendment rights. This is the same plaintiff/attorney teanl who lodged the
class action" medical suit against the institution last October.
Coriano v. Sieter, et al., 98- 2240, FCI Florence/Fel Greenville
Inmate claims he i's being discriminated against because of his race. that he is being improperly
designated as a gang nlember due to his race. and that he is being improperly subjected to urine
surveillance because of his race. PlaintifT sues defendants at both Greenville and Florence.
PlaintitTseeks $14 million. as ""ell as a variety of declaratory and injunctive relief.

3234

II

(

North Central Region
Regional Counsel Monthly Report
October.. 1998
Page 6

Couco v. Lopez, 98-D-1182, lJSP Florence
Plaintiff seeks $25 ..000 from defendant for an alleged assault upon him when he arrived at ADX
July 9 .. 1997. Court disnlisscd the FTCA c1ainl as frivolous (missing the assault and battery
proviso) but allowed the Bivens and 1985( 3 ) claims to proceed.

Palozie, In re Jonathan, USP Florence
Inmate with severe hypertension refused to take his required nledication for over nine days.
Clinical director was concerned that the imnate would sutler a stroke. as he has in the past.. and
asked for a forced medication order. Court ordered a hearing that was set for October 23. The
hearing was held via video conference. with the inmate being appointed counsel. At the close of
the hearing .. "the inmate agreed to take the Illedications as prescribed and to allow our medical
staff to take blood pressure and EKG's. Govcrnnlent nloved to dismiss as moot.. without
pr~judice.

Akbar v. Hawk and Pugh, 98-WM-0968, FCI Florence
Habeas challenge to the Bureau's IFRP and the court's delegation of determining a payment
schedule to the BOP .. ala Mortinler and Worknlan in the Third Circuit.

Bignotte v. Ontivero, et al., 97-3506-GTV, IISP Leavenw3rth
In this Bivens styled 3:ction. plaintiff alleges the three named defendants violated his civil rights
on or about July 12 .. 1996 while he was confined at USP Leavenworth. Specifically. plaintiff
alleges that defendants were Illade aware that plaintiff was in fear of his safety and failed to move
him from the unit where he was housed. As a result .. plainti ff alleges that he was attacked by
another inmate with a razor which caused serious permanent injuries. Plaintiff seeks monetary
damages trOlll defendants in their otlicial and individual capacities.

Char Thomasson, Trustee in wrongful death v. U.S., et al., 98-CV-2167, USP Leavenworth
Plaintitls alleges defendants negligently caused the death of Stanley Thomasson . in violation of
his Eighth Anlendment rights .. the Federal Tort Claims Act .. and the Violence Against Women
Act. Thonlassoll died on Septenlber 26. 1996 as a result of blunt traulna to the head. An
adnlinistrative clainl was never tiled on this case.

Garraway v. Kathleen Hawk, et al., 97-3023, liSP Leavenworth
In this case which was transterred fronl the Central District of California. plaintiff asserts a claim
of cruel and unusual punishnlent against three of the defendants for an alleged assault in the
Special Housing Unit at USP Leavenworth in June 1995. In his second claim .. plaintiff asserts
four other defendants refused his request over a 72 hour period to release him from restraints. He
argues their actions violated his rights under the First Anlendment and Religious Freedom
Restoration Action by preventing him from washing and praying as required by his religious
beliefs. In his final claim. he contends that he was denied due process when defendant Kenny

3235

North Central Region
Regional Counsel Monthly Report
October.. 1998
Page 7

(

intentionally filed a false incident report regarding the physical confrontation that resulted in
plaintiff being placed in restraints. The court has dismissed defendant True and Director Hawk.
Plaintiff is allowed to proceed against the remaining defendants.

Alvarez v. United States, 98-C-3676, MCC Chicago
Plaintiff in this FTCA action alleges that Inedical statl' negligently provided or tailed to provide
him with Inedical care for his ankle and broken leg. atter he had injured himself during' a
basketball game.
RELIGIOUS FREED()M RESTORATION ACT CASES
Kikumura v. Hurley, et al .. 98-8-1442, USP Florence
Inmate challenges the denial of pastoral visits. As the inmate expressly raise!
his complaint outside representation was sought on the case. The AlJSA has ,
tor extension of time given that outside cuunsel is being considered in this case.

tI

('
\.

......

~

in
on

Garraway v. 'Kathleen Hawk. et al., Case No. 97-3023, USP Leavenworth
In this case which was transferred from the Central District of California. plaintitl asserts a claim
of cruel and unusual punishment and he argues the detendants actions violated his rights under
the First Amendment and Religious Freedom Restoration Action by preventing him from
washing and praying as required by his religious beliefs.

HEARINGS AND TRIALS
None.

UPCOMING HEARINGS OR TRIALS
Gonzales-Melebe v. Pugh, 97-WM-2470, FCI Florence
Petitioner is a Mariel Cuban housed at FCI Florence. He tiled a petition seeking immediate
release on parole. The petition was denied with one exception. The exception is that petitioner
has apparently not been reviewed f(lr possible parole on a regular basis and the court intends to
evaluate the last parole denial. The Court ordered that an evidentiary hearing will be held via
video conference to determine whether petitioner was denied parole appropriately. Hearing set
tor Novenlber 18. 1998.
Bustillos v. Hawk, et al., 95-WM-2242, USP Florence
Plaintiff filed motions to compel BOP to provide him a pen. Pens restricted due to pJaintiff's
aggressive actions using them to assault staff. Hearing for plaintifrs Motion for TRO set for
i

3236

North Central Region
Regional Counsel Monthly Report
October.. 1998
Page 8
November 24. 1998 in Denver. Court orders that plaintiff will attend via video-conference from
USP Florence. Witnesses can be at either locatiol1-

u.s. v. Zepeda, 98-10073, FCI Pekin
At the final pretrial

October 21. 1998. the dclendant Illade a nlotion to dismiss based upon
lack of su~iect nlatter jurisdiction. The nlotioll argued that the United States had never accepted
jurisdiction of the FCI Pekin site in accordance with Title 40 U .S.C. § 255. The case was
continued until October 30. 1998. The AUSA was provided with the necessary jurisdiction
documents and filed a response containing such. The court denied the jurisdiction motion. A
final pretrial hearing is scheduled tor November 6. 1998.
011

Bolivar v. BOP, et al.,98-C-204-S, FCI Oxford
Plaintiff was given an extension to respond to detendant's Illotion It)r sumnlary judgement until
November 5 .. 1998. Judge Shabaz has set a trial date lor No\elnber 23. 1998.

CRIMINAL MATTERS

u.s.
/'

\

v. Missra Araiza-Reyes. FCC Florence

Inmate pleaded guilty to Voluntary Manslaughter on August 28.. 1998.
December 16.. 1998.

Sentencing set for

'.

u.s.

v. Francis and Haney, USP Florence

Inmates charged with attempted escape from USP and possession of contraband (escape
paraphernalia). Motions hearing set It)r November 5. 1998.

u.s.

v. Riddle and Black. USP Florence

Plea negotiations ongoing regarding the charge of an inmate murder at USP. Plea set for
November 6 .. 1998.

lISA v. Simmonds. ADX Florence
Arraigned on two counts of assault on staff at ADX. Matter initially charged as Inisdemeanors
but due to history of assaultive behavior.. inmate indicted on telony counts. Trial postponed to
Dcccillber 7. 1998.

USA v. Van Meter, ADX Florence
Inmate plead guilty to count one and was sentenced to six months on October 6. 1998 for
possession of a weapon at the ADX.

1l.S. v. Larkin, 98-10026, Fel Pekin
Inmate sentenced to 18 months on an 18-24 month guideline for Possession of Marijuana. The
court specifically found that the inmate tailed to show acceptance of responsibility for his
actions.

3237

(
. ~
, . -rJ" ,

North Central Region
Rcgional Counsel Monthl y Report
OctoheL 199X

f.~~~;," _ :~:=:'-- :_ ,

..

~

U.S.

Y.

--~

.~

.;

.

" '~

. \ :-:. .

' .

.....

:• r

,. : ; :

.... -

Miller, 98-100-'6, Fel Pekin

Jury tri,al in which the dekndant was accused of Possession of Heroin with Il1lent to Distrihute
and Possession ofCol1lrahand in a Federal Penal Institution . five fel Pekin sWITtestilicd in the
course of the proceeding , The dekndalll conceded the second eount hut argued that he intt:ndcd
the 4.4 grams of heroin Illr personal usc , The jury returned a verdict of guilty on hoth cnunts ,
Sentencing is set for Fehruary 2X . I ()l)X,IThis was thc lirst trial of any tyre at Pckin , They werc
successful in having a Lieutenant certilied as an expert with regard tn the introduction.
traflicking and use of narcotics in a kderal pri snn I,

u.s. \'.

(

Payne, 98-10028, FCI I)ekin

Inmate was invoh'ed in an ~lltercation I\'hich stall which resulted in tllO ,-\ ss~ lult nn a
Correctional Oflicer charges, Onc count lI'as dropped with the defendant's agrecmL'I1I to plead
guilty and to wail'c his right to aPreal. The inm~lIe lI'as senteneeu tn X nH1I1Ihs (In ~I ..I-Ill 1', ,nnth
guideline ,

u.s. \'. Petty, 98-111027,

FCI Pekin

;\1 the sClltencing Jl)J" Possessioll of \bri.illal1~1. the inmUic was gl\"CI1 an nrrllrlllllil: 1\1 sho\\
acceptance of respnnsihility li'r hi s action hI inli1l'llling the court of hm\ hL' llhuincJ the'
halloons, lie told thc cnurt he lillind thc hall(H1IlS in' the ch~lIll!e
... return on
.- the \' endin~- machin,'
anu then placed thcm in hi s chiI' hag , Thc :\1 ' S .. \ PUI the illlestig~lInr on the' stanJ alld ,,,hmilled
the video as evidence in the mailer. I'he ,iudgL' clL-arly sail that the hallonns 1IL"r,' 1'1;1(,'.1 in Ih,'
chip hag hy the inmates , I'isitor, The inmate lI'a s charged with Ohstruetion of Ju slic,' 111 adJition
to his possession charges, lit: lia s sentenced t<l 21 Illnnths onllhat lias initial" ;11\ S·I-l mlllllh
guideline,

PERSOi\':--;[L ISSI I[S

STAFF TRAVEL ANI) LEAVE

3238

North Central Region
Regional Counsel Monthly Report
November. 1998
Page 1

u.s. DEPARTMENT OF JUSTICE
Federal Bureau of Prisons
North Central Region
Office of Regional Counsel
Kansas City. KS 66101
Decelllhcr 14. 1998
MEMORANDUM FOR WALLACE H. CHENEY. ASSISTANT DIRECTOR
GENERAL COUNSEL & REVIE\V
FROM:

JOHN R. SHAW. Regional Counsel

SUBJECT:

MONTHL Y REPORT (No\'enlher. J 9(8)

inst

nurn

hc

ftc

biv

oth

ans

pen

cld

NCR

47

26

4

12

5

6

472

21

hIt
2

set

awd

0

0

OCT
70

NOV
77

NUM - Number of total lawsuits filed in the month
HC - Number of habeas corpus actions filed in the reporting period
FTC - Number of FTCA actions filed
BIV - Number of Bivens actions flied
OTH - Number of other actions flied, e.g., mental health, mandamus
ANS - Number of litigation reports completed
PEN - Number of cases pending
CLD - Number of cases closed
HIT - Number of hearings or trials (include in narrative)
SET - Number of settlements (include in narrative)
AWD - Number of Awards (include in narrative)

*Number of open cases on LMS.
ADMINISTRATIVE CLAIMS:

JAN
61

FEB
50

MAR
66

APR
81

MAY
56

JUN
74

JUL

98

Total for Calendar Year 801
Pending 251
{

ADMINISTRATIVE REMEDIES

\

3275

AUG
95

SEP
73

DEC

North Central Region
Regional Counsel Monthly Report
November. 1998
Page 2
JAN
184

FEB

170

MAR

210

APR

MAY

.fUN

JUL

AUG

198

249

202

241

~41

SEP

..,..,.,
__ :J

OCT

NOV

248

211

DEC

Total for Calendar Year 2377

FREEDOM OF INFORMATION ACT/PRIV ACY ACT REQUESTS
PRIVACY
ACT
ACTUAL
ACTUAL
ACTUAL
ACTUAL

ON-HAND
RECEIVED
PROCESSED
BACKLOG

FOIA

.,.,

10
I~

45
63

15
0

0

Backlog represents those requests \vhich have not been responded to within the twenty work days
target set by DOJ.
* Awaiting records fronl archi\'es.

ADVERSE DECISIONS
Capote v. Page True, Case No. 97-31S6-RDR, IISP Lea\'en\\'orth
On September 18. 1998. the court granted this petition for \vrit of habeas corpus and vacated the
petitioner's conviction and sentences on counts 3 and 4 under 18 U.S.C. section 924 (c)(l) .
Hicks v. Brooks, Case No 97-1>-785, FCI En~lcwood
Judge Daniel invalidated the BOP's use of sentence enhanccnlents to deny an inmate early
release eligibility under § 3621 (e). In conling to his conclusion. the judge relied on the Fristoe
opinion and found that the BOP ~'as wrong tl)r considering factors other than the offense an
inmate was convicted of when nlaking early release determinations. The case involved
application of the BOP's Categorization of Offenses progranl statenlent.
SETTLEMENTS ()R .JlJD(;MENTS
None.

DECISIONS OF INTEREST
Victor v. Romine, Case No. 97-2030, FCI Sandstone
Habeas corpus action \\,'herein petitioner alleged his J 8 -USC § 922(g) charge. was not violent in
District Court
the 9th Circuit. therefore. he should be eligible for one year off for RDAP.

3276

North Central Region
Regional Counsel Monthly Report
November.. 1998
Page 3
dismissed petition without prejudice.

PENDING CASES OF INTEREST

Kelly (a/kla Harun Abdul-Walli Ghaffar). Case No. 97-3254-(;TV, USP Lea\'enworth
In this case.. petitioner seeks a court ordered for change: in his Ilanle in \vhich he \vas convicted
and sentenced. He has filed a Request for Issuanc~ of a N~\\ .ludglnent & Conllnitnlent Order. or
an Order of Compliance to Recognize Defendant's Chang~ of~anle.

Lewis v. United States, Case No. 98-64-JP. liSP l\larion
Plaintiff alleges that staff were negligent in placing him in a housing unit with an inmate who
posed a threat. resulting in an serious assault. lie seeks $50.000 in compensatory damages for
pain suffered. periodic headaches and physical ddllrmity at the injury site.

Valdez v. INS and John T. O'Brien. Case No. 98-C-687-S, Fel Oxford

;'

\.

The petitioner is a refugee from Mariel. Cuba. Pctitioner alleges that the INS did not execute a
valid contract in 1981 which contained a provision for petitioner to become a citizen. He further
alleges that the INS did not folio",," the APA. and that thc INS did not grant him meaningful
review when they denied his parole. Initially this was an action involving only the INS.
however. the Court subsequently ordered that thc petitioncr rctilc his §2241 action and name the
proper respondent as the Warden.

Celestin v. John Doe, et al., Case No. 98-D-14HH, llSI) Florence
Plaintiff alleges he was assaulted and denied medical carc atter he arrived at USP Florence from
FeI Florence after the October disturbance at th~ Fel.

Gometz v. Warden, Case No. 98-0-1356, AJ)X Florence
Plaintiff seeks $600. inclusive of costs. for allegcd dcstruction of pornographic magazines at
ADX. Combination FTCA and Bivens casco Ilowc\'cr. plaintiff Inakes no allegations against an
individual defendant.

Henderson v. Smith, et aI., Case No. 98-WM-1385, Fel Florcnce/USP Florence
Plaintiff alleges he was assaulted when transterred between the two institutions after the October
1995 riot at the FCI. He seeks $2.5 nlillion from thc defendants.

Jolivet , .. USA, Case No. 98-B-0937. ADX Florence
Plaintiff sues under FTCA for alleged inlpropcr dental carc. He alleges that BOP officials are
not providing appropriate dental prosthesis ftlr his nceds. I Ic seeks $60.000.00. an examination
and prosthesis provided by a specialist outside thc BOP at BOP expense. restoration of his dental
health. and costs.

3277

North Central Region
Regional Counsel Monthly Report
November. 1998
Page 4

(

Parrott v. USA, et al., Case No. 98-B-0987, USP Florence
Plaintiff alleges he was placed in SHU for no reason. that he was assigned an assaultive cellnlate.
that he was disciplined for protecting himself from this cellmate. and that he was denied
necessary medical care for the injury he received in this assault. He seeks $500.000 ($250.000
from the USA and $250.000 from the individual defendants. jointly and severally).
Stanlev v. Lt. Lima, et al., Case No. 98-D-0760, lJSP Florence
Plaintiff claims he was assaulted several times at the USP by other inmates and that staff allowed
that to happen by refusing to give him single cell status. He alleges he was denied nledical care
and was coerced into signing an inaccurate affidavit. He seeks a variety of declaratory and
injunctive relief. as well as unspecified money damages.

RELIGIOUS FREEDOM RESTORATION ACT CASES
None.

HEARINGS AND TRIALS

Bustillos v. Hawk, et al., Case No. 95-WM-2242, USP Florence
Plaintiff filed nlotions to conlpel BOP to provide hinl a pen. Pens restricted due to plaintiffs
aggressive actions using thenl to assault stan: Hearing for plaintitl's Motion for TRO was held
on November 24. 1998 \'ia "ideo conferencing. A decision is still pending.
u.S. v. Zepeda, Case No. 98-10073, FCI Pekin
Final pretrial hearing was held on November 6. 1998. Defendant pled guilty to Count 1 and
waived right of appeal. Sentencing set for February 26. 1998.

UPCOMING HEARINGS ()R TRIALS

u.s.

(
\

v. Francis and Hanev, USP Florence
Inmates charged with attempted escape from USP and possession of contraband (escape
paraphernalia). Motions hearing held on November 5. 1998. The discovery requests for plans
and blueprints showing all security devices at lJSP Florence \\.'as discussed. However. the Court
did not rule on the security issue. instead the Court set an in canlera hearing on the nlatter for
December 30. 1998,

3278

(-

North Central Region
Regional Counsel Monthly Report
Novenlber. 1998
Page 5

USA v. Simmonds. ADX Florence
Arraigned on two counts of assault on staff at ADX. Matter initially charged as misdemeanors
but due to history of assaultive behavior.. inmate indicted on felony counts. Trial postponed
indefinitely due to AUSA illness. However. motions hearing set for December 10. 1998.
Bernal v. Black, FCI Pekin
The court has delayed the trial in Bernal. It v,as set to begin on Monday. Decenlber 14. 1998.
The trial has now been postponed (for the fourth time) until February 3. 1999.

CRIMINAL MATTERS

U.s. v. Missra Araiza-Reyes. FCC Florence
Inmate pleaded guilty to Voluntary Manslaughter on August 18. 1998.
December 16.. 1998.

(

Sentencing set for

u.S. v. Francis and Hane,', USP Florence
See above (Hearings and Trials).
U.S. v. Riddle and Black. USP Florence
Plea negotiations ongoing regarding the charge of an innlate murder at USP. Plea set for
November 6. 1998.
u.s. v. Simmonds. ADX Florence
See above (Hearings and Trials).
u.S. v. Jorge Lozano-Guerro, FCI Oxford
Inmate received the nlaximunl 18-months for possession of a \\'capon.
u.S. v. Reichenbach, FMC Rochester
Inmate plead guilty to Assault on a Federal Officer. On Novelnber 18 .. 1998. inmate received a
two year sentence.

u.s. v. Zepeda, Case No. 98-10073, FCI Pekin
See above (Hearings and Trials).

c·

PERSONNEL ISSUES

3279

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

Tom.!r II. 8th Floor
-IOf} Stute Street

"·onow."

(·i~r.

I\S

66101-2421

January 12. 1999

(

MEMORANDUM FOR CAROLYN A. SABOL. ACTING GENERAL COUNSEL
FROM:

JOHN R. SHAW. Regional Counsel

SUBJECT:

Monthly Report (December, 1998)

LITIGATION, CLAIMS, AND ADMINISTRATIVE REMEDY STATISTICS
LITIGATION:
inst
NCR

nurn

hc

ftc

biv

oth

ans

pen

cld

hit

set

awd

41

21

8

8

4

19

483

22

4

0

0.00

. NUM - Number of total lawsuits filed in the month
HC - Number of habeas corpus actions filed in the reporting period
FTC - Number of FTCA actions filed
BIV - Number of Bivens actions flied
OTH - Number of other actions filed, e.g., mental health, mandamus
ANS - Number of litigation reports completed
PEN - Number of cases pending
CLD - Number of cases closed
HIT - Number of hearings or trials (include in narrative)
SET - Number of settlements (include in narrative)
AWD - Number of Awards (include in narrative)

3303

North Central Region
Regional Counsel Monthly Report
December. 1998
Page 2

ADMINISTRATIVE CLAIMS:

JAN

FEB

MAR

APR

MAY JUN

JUL

AUG

SEP

OCT

NOV

DEC

61

50

66

81

56

98

95

73

70

77

81

74

ADMINISTRATIVE REMEDIES

JAN

FEB

MAR

APR

MAY JUN

JUL

AUG

SEP

OCT

NOV

DEC

184

170

210

198

249

241

~41

223

248

211

209

202

Total for Calendar Year 2635

(

FREEDOM OF INFORMATION ACT/PRIV ACY ACT REQUESTS

"

PRIVACY
ACT
ACTUAL ON-HAND
ACTUAL RECEIVED
ACTUAL PROCESSED
ACTUAL BACKLOG

FOIA
17
17
11
1

27
54
48

,,*

Backlog represents those requests which have not been responded to within the twenty work days
target set by DOJ.
* Awaiting records from archives.

ADVERSE DECISIONS
None.
SETTLEMENTS OR .JUDGMENTS
None.

3304

c

North Central Region
Regional Counsel Monthly Report
December~ 1998
Page 3

DECISIONS OF INTEREST
Michael R. Hyde v. Kathy Hawk, Case No. 98-3107-GTV, USP Leavenworth
In this case~ plaintiff sought the return of funds \vithheld under the Inmate Financial
Responsibility Program (IFRP). He challenged the authority of the BOP to set up a restitution
payment mechanism. The plaintiff admitted that he signed up for the IFRP program~ but stated he
did so only to keep privileges that would have been impacted if he failed to participate in IFRP.
The court found any relief on plaintiffs claim was defeated by the doctrine of invited error. See
Brown v. Presbvterian Health care Services. 101 F.3d 1314. 1332 (10th Cir. 1996) (subsequent
review precluded where litigant complains of errors he has himself induced or invited).
Duarte v. Hurley, Case No. 98-N-0377, ADX Florence
In this action. the Magistrate Judge recommended that the petition be dismissed. Plaintiff had
not met his requirement to prove that but for his testimony in the civil case against the BOP that
he would not have received incident reports.

(
"

PENDING CASES OF INTEREST
Teich v. U.S.A, et al., Case No. CV-S-98-01213-HDM, MCFP Springfield
Plaintiffs filed a Bivens/FTCA action wherein they allege wrongful death of a quadriplegic
inmate who died at the medical center. An ans\ver \\'as filed by the AUSA in the District of
Nevada. This will be a difficult case and settlenlent is being explored.
Clark v. Keohane, et al., Case No. 98-3485-CV-S-RGC-H, MCFP Springfield
Petitioner requests an immediate release from custody so that he can obtain an autologous bone
marrow transplant. which the respondents have denied.
Moore v. Keohane, et al., Case No. 98-3487-CV-S-RGC-H, MCFP Springfield
Petitioner requested an immediate kidney transplant or grant him a compassionate release so that
he can arrange for a kidney transplant.
Reedus, et al. \'. Keohane, et al., Case No. 98-3500-CV-S-RGC-H, MCFP Springfield
Petitioners <members of the Moorish Science Temple of Anlerica) alleged that they were denied
to partake in the general celebration of Ramadan with other Islamic groups.
Bungard v. U.S.A., et al., Case No. 98-3463-CV-S-RGC-H, MCFP Springfield
Plaintiff alleged that the Medical Center is contanlinated with asbestos. lead-based paint
surfaces. lead solder in portable water lines. and radon enlissions. He also complained that the

3305

North Central Region
Regional Counsel Monthly Report
December. 1998
Page 4
Medical Center presents a risk of contaminated \\'aste \\·ater. the risk of an outbreak of
Legionnaire's disease. a dangerous electrical system. and an inadequate lighting system. Plaintiff
further requested release from incarceration and nlonetary danlages against various defendants.
Scott v. Helman, Case No. 98-1399, FCI Pekin
Habeas petition challenging DHO decision finding inmat~ guilty of minor assault of a statf
member. Inmate alleges that the staff menlber assaulted hinl, An investigation into the statf
members actions was conducted. The inmate requests that the report be expunged or that the be
permitted a rehearing with the investigation as e\'idence of statr wrongdoing.

Parmelee v. True. et ale Case No. 93-C-7362, 1\1CC Chicago
Former inmate alleges that U.S. Marshals and BOP enlployees used excessive force when the
inmate refused to appear in court. Case prohlcillatic hecause a defendant was disciplined by
MCC for using excessive force during the incident.

('

Hall v. USA. et al., Case No. 98-2405 RCL, USP Florence
Inmate sues a variety of BOP staff at various institutions (including USP Florence) for perceived
violations of his constitutional rights over the years. He seeks $29.. 625 . 000.00 from the
defendants in their official and individual capacities.
Rollins v. Barron, et al., Case No. 98-M02304, USP Florence
Inmate sues former case manager and tour correctional officers for various declaratory.
injunctive and nlonetary relief. He alleges the case nlanager did not properly classify him~
resulting in the officers placing a cellmate \vith hinl \vhu assaulted him because he was an
infonnant. Plaintiff alleges he tried to advise staff of the problem and the threats to him from the
specific cellmate. but that he was left in the cell to be assaulted.
Merritt v. Hurley, Case No. 97-Z-2118, ADX Florence
Petitioner was appointed counsel who seeks to tile additional pleadings. Attorney filed motion to
have petitioner moved to FCI Englewood pending outconle of this petition. A declaration from
the Captain was sent to AUSA setting out security reasons counseling against ordering inmate
moved in this habeas matter.
Hall v. USA, et al., Case No. 98-2405-RCL, USP Leavenworth
In this Bivens-styled action plaintiff raises nunlerous aJlegations against various defendants
beginning from the time of his arrest through various incidents at three separate institutions.
First. plaintiff alleges he was assaulted hy three correctional officers at USP Leavenworth while
he was confined in D-Cellhouse. He also alleges he received inadequate medical treatment at
USP Leavenworth as a result of the alleged assault. In addition to naming Director Hawk

3306

(

North Central Region
Regional Counsel Monthly Report
December.. 1998
Page 5
Sawyer and Mr. Hershberger as defendants. plaintiff has nal11ed in excess of 30 defendants from
USP Leavenworth. approximately 20 defendants fronl IISP Florence. and several defendants
from FTC Oklahoma and USP Atlanta.

Alan Strong v. United States, Case No. 98-3297-GTV. IISP Lea\'enworth
In this civil action.. plaintiff alleges his luxury Cartier eyeglasses valued at $950.00 were lost by
Health Services staff at USP Leavenworth "·hen he turned thenl over to staff for repairs. As
relief, he seeks the replacement value of his glasses and the nloney he paid for the repair of his
glasses.

RELIGIOUS FREEDOM

('

RESTOR~ TION

ACT CASES

Kikumura v. Hurley, et al., Case No. 98-B-l ...... 2, ADX Florence
Inmate challenges the denial of pastoral visits. As the it1l11ate expressly raises a RFRA issue in
his complaint.. NeRO was contacted in order to reconlnlend outside representation on the case.
Representation materials were sent via Fed Ex to the Dcpartnlcnt of Justice. The AUSA has
drafted a motion for extension of time given that outside counsel is being considered in this case.

HEARINGS AND TRIALS
None.

UPCOMING HEARINGS ()R TRIALS
u.S. v. Zepeda, Case No. 98-10073, FCI Pekin
Final pretrial hearing was held on November 6. 1998. Defendant pled gUilty to Count I and
waived right of appeal. Sentencing set for February 26. 1999.
Tuite v. True, et al., Case No. 93-CV-3248. MCC Chicago
Attorney alleges that conversations with his client were recorded by MCC Chicago in ] 992.
Court set status hearing tor April 13. 1999.
Martinez \'. Counts, et al., Case No. 90-322..a-CV-S-..a, MCFP Springfield
The trial for the constitutional tort case will begin on January 19. 1999. This lawsuit is an old
one that went up on appeal. 977 F.2d 421 (8th ('ir. 1992) and resulted in a reversal of the judge's
order dismissing the conlplaint. After the case was remanded. we again attempted to dismiss the
case but our efforts were unsuccessful. We continue to believe the three remaining in the case

3307

North Central Region
Regional Counsel Monthly Report
December. 1998
Page 6
will prevail.

u.s.

v. Francis and Haney, USP Florence

Inmates charged with attempted escape fronl USP and possession of contraband (escape
paraphernalia). The in camera hearing to rule on the security issue of request for plans and
blueprints has been moved to January of 1999.

USA v. Simmonds. ADX Florence
Arraigned on two counts of assault on staff at ADX. Matter initially charged as nlisdemeanors
but due to history of assaultive behavior. inmate indicted on felony counts. Trial postponed
indefinitely due to AUSA illness. Defendant filed nlotion to dismiss the indictment due to
prosecutorial vindictiveness. Claimed the matter was charged as a felony instead of remaining a
misdemeanor because defendant filed civil litigation against BOP staff. Hearing was held
December 10. ] 998. Court declined to dismiss indictment and set the matter for trial in 1999.
Bernal v. Black, FCI Pekin

(,

The court has delayed the trial in Bernal. Trial set to begin on February 3. 1999.

CRIMINAL MATTERS
u.s. v. Missra Araiza-Reyes. FCC Florence
Inmate pleaded guilty to Voluntary Manslaughter on August 28. 1998. Sentenced December 16.
1998. Inmate received 105 months incarceration. consecutive to current terms.. 4 years
supervised release.
u.s. v. Francis and Haney, USP Florence
See above (Hearings and Trials).
u.S. v. Riddle and Black. USP Florence
Plea negotiations ongoing regarding the charge of an inmate nlurder at USP. Discovery and
protective order issues continue with respect to inmate Riddle. Inmate Black pleaded guilty to
aggravated assault. Sentencing in set for March of 1999. Riddle filed motion for relief from
protective order. Hearing held by Judge Sparr on December 16. ] 998. At that time. Judge
wanted testimony from BOP on what documents had been provided for Riddle to review in
accordance with the court orders. BOP testified that all documents had been provided on several
occasions for Riddle's review. The Judge held that the BOP had complied with the order and
that no relief was necessary.

u.s. v. Simmonds. ADX Florence

3308

North Central Region
Regional Counsel Monthly Report

.....•..

December. 1998
Plge 7
,.
.~. ~.-'

See above (Hearings and Trials).

.

"

u.s. ". Zepeda, Case No. 98-10073. FeI Pekin
See above (Hearings and Trials).

PERSONNEL ISSUES

Dave Recker. Attorney - Adyisor at FCC Florenc~. announced his resignation fronl th~ B()I> tn
accept an attorney position wi!h the Conlnlerct: Departnu~nt. Da\'e \vill be nlissed hy his t"'i~nds
and co-workers in the BOP. Daye's departure will he at the end of this nl0nth.

STAFF TRAVEL AND LEAVE

(

'.

-

None scheduled
January 18 - :!1

Legal Sen'ices

January 7 - 8

Annual Lea\'e

Re\·i~\\.

!'\one scheduled
.1anllar~

-

R~Crllitlll~nt

15

1-"1.

Ril~y.

Kansas

!'\nne scheduled

.1anllar~ ~5

Tny

- ~9

Fel Grccn\'illc
~llne sch~dul~d

None scheduled
!\ionc schedlll~d

3309

SER()

(-".

North Central Region
Regional Counsel Monthly Report
December.. 1998
Page 8
Tort dBASE Files sent via e-mail to Monica Potter_ OGe .. on 114/99.

(
\."'---

3310

 

 

The Habeas Citebook: Prosecutorial Misconduct Side
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