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Fbop Ncr Monthly Reports 1999jan-sep

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

Towe,. II.

Floor

81h

.j{)() Slule SI,.(!(!I
1\"17SUS Ci(l',

KS

66101-2421

February 12. 1999

MEMORANDUM FOR

CHRISTOPHER ERLEWINE
ASSISTANT DIRECTOR/GENERAL COUNSEL
GENERAL COUNSEL AND REVIEW DIVISION

FROM:

JOHN R. SHAW. Regional Counsel

SUBJECT:

Monthly Report (January, 1999)

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LITIGATION, CLAIMS, AND ADMINISTRATIVE REMEDY STATISTICS
LITIGATION:

inst
NCR

nurn

50

hc
27

ftc
4

biv

oth

ans

pen

14

5

21

492

NUM - Number of total lawsuits filed in the month
Number of habeas corpus actions filed in the reporting period
FTC - Number of FTCA actions filed
BIV - Number of Bivens actions filed
OTH - Number of other actions filed, e.g" mental health. mandamus
ANS • Number of litigation reports completed
PEN· Number of cases pending

He -

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3311

cld
29

hit

set

3

1

awd

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I

North Central Region
Regional Counsel Monthly Report
January, 1999
Page 2
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)

ADMINISTRATIVE CLAIMS:
JAN
67

FEB

MAR

APR

MAY

JUN

JUL

AUG

SEP

OCT

NOV

DEC

JUN

JUL

AUG

SEP

OCT

NOV

DEC

ADMINISTRATIVE REMEDIES
JAN
188

FEB

MAR

APR

MAY

Total for Calendar Year 188

FREEDOM OF INFORMATION ACT/PRIV ACY ACT REQUESTS

ACTUAL ON-HAND
ACTUAL RECEIVED
ACTUAL PROCESSED
ACTUAL BACKLOG

PRIVACY
ACT
35

FOIA
13
14
12
0

66
67
I

Backlog represents those requests which ha\'e not been responded to \vithin the twenty work days
target set by DOJ.
* Awaiting records fronl archives.

ADVERSE DECISIONS
Appleby-e. v. USA, Case No. 97-N-0671, ADX Florence
Plaintiff alleged he slipped and fell because the cell floor was wet after he showered. The R&R

3312

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North Central Region
Regional Counsel Monthly Report
January .. 1999
Page 3
recommends denial of government's motion to disnliss and for summary judgement. The R&R
was received after the 10 day period in which to tile o~jections. Settlement with plaintiff is
being discussed.
Knowles v. BOP, et al., Case No. 97-Z-2645, FCI Florence
Petitioner sentence deemed non-parolable while he was at FeI Greenville. due to representations
made by AUSA. When complaint was tiled. we asked the court \vhether the sentence was to be
parolable. We were advised that it was to be parolable. and so advised the inmate. A parole
hearing was held and petitioner was released on parole. He filed a motion tor costs. as he was a
prevailing party. We were unfortunately unahle to find any precedent supporting the assertion
that he should not receive costs. On January 21. )999. pursuant to a stipulation tor dismissal and
costs .. the court entered an order directing the USA to pay $346.18 in costs to petitioner in this
mandamus action.

SETTLEMENTS OR .JUDGMENTS

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Barnes v. United States, 96-3280-CV-S-4, MCFP Springfield
Plaintiff filed an FTCA against go\'ernment officials alleging negligence vv-hen officials allowed
him to retain a razor blade and his eye glasses thus facilitating his suicide attempt. He also
alleged medical negligence by the physician in failing to properly diagnose and treat his heart
attack. This case was settled tor $20.000 on December 30. 1998.
DECISIONS OF INTEREST

Snow v. USA, 98-CV-0161-PER, FCI Green\'ille
While incarcerated at Fe} Greendlle. plaintiff tiled suit under the FTCA claiming that during an
open movement. he was struck on the head and \\'as rendered unconscious by unknown persons
who "inflicted mutilation upon his sexual organs destroying his genitalia." Plaintiff alleged that
.the BOP was negligent in that enlployees failed to pre\'ent the unknown persons from obtaining a
weapon and tailed to prevent the assault and mutilation.
The discretionary function exception to the FTC A was argued in a motion to dismiss. The court
found that the protection of inmates falls within the discretion of prison officials and that prison
officials could not have breached their duty under 18 U.S.C. 4042 (providing that the BOP
provide safekeeping and protection tor innlates). Judge Riley dismissed the case for lack of
subject matter jurisdiction holding that the discretionary function exception is a jurisdictional
prerequisite to the suit. The court did howe\'t!r. indicate that Sno\v may be able to state a Bivens.
Eighth Amendment claim in this matter.

3313

North Central Region
Regional Counsel Monthly Report
January, 1999
Page 4
Villarreal v. Knowles and Harrison, Case No. 97-S-1798, USP Florence
Court granted defendants' motion to dismiss. holding plaintiff has stated no claim for a due
process or equal protection claim or a claim under the 81h Anlendment (plaintiff alleged his rights
were violated by being identified as a gang menlber and placed in SHU tor 2 years).
Jolivet v. USA, Case No. 98-B-0937, ADX Florence
In this case .. the R&R recommended dismissal of FTC A claim alleging inadequate dental care.
Dismissed for failure to file complaint within the statute of limitations.
Stevenson v. Keohane, et al., Case No. 98-3312-CV-S-RGC-H, MCFP Springfield
Case dismissed wherein petitioner alleged that he is being denied an organ transplant.

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Barnes v. Hawk, et al., Case No. 98-CV-3165 10th Cir. 98-3188, USP Leavenworth
On January 13 .. 1999.. the Tenth Circuit Court of Appeals affirmed the decision on the District
Court in this case where the plaintiff alleged violations of his rights under the Eighth and First
Amendment because medical personnel were deliberately indifferent to his medical needs. This
case had been dismissed by the District Court pursuant to 42 U.S. C. Section 1997e (c). On
appeal.. the plaintiff alleged that the district court erroneously failed to conduct a sufficient
investigation of the allegations set forth in his complaint. failed to liberally construe his
complaint in accordance with his pro se status. and failed to allow him to amend his complaint to
correct any shortcomings. This court has not previously set torth the appropriate standard of
review for dismissals under 42 U.S.C. section 1997e(c). In this decision. the court concluded
that the appropriate standard of review for dismissal pursuant to 42 U.S.C. section 1997e (c) for
failure to state a claim is de novo.
Dodds v. Del Muro, Case No. 95-3011-RDR, USP Leavenworth
On January 15. 1999. the Tenth Circuit Court of Appeals affirmed the decision of the district
court. In this case. the plaintiff sought danlages because of alleged denial of medical care when
staff failed to examine his January 1993 TB test results and also because he was not informed of
the test results. Approximately a year later medical staff discovered plaintiff had active TB. and
that plaintiff's January 1993 test result had been positive. It was undisputed in this case that
plaintiff had to be tested at least three times. and that plaintiff went without medical treatment for
TB for thirteen months after the positive test result was noted in his medical records. However.
the tacts do not entitle plaintiff to relief if no deliberate indifference to a serious medical need of
plaintiff was demonstrated.

Kenneth M. Brack v. United States, Case No. 97-3350-MLB, USP Leavenworth
On November 3. 1998. the court granted the government's motion for summary judgment in this

3314

North Central Region
Regional Counsel Monthly Report
January. 1999
Page 5
civil action wherein the plaintitT alleged negligence based upon the medical treatment that he
received when he was found in his cell in a completely unresponsive state at USP Leavenworth.
The plaintiff alleged that medical personnel caused him four different types of injuries. The four
injuries were: diabetic ketoacidosis: nunlbness of his left foot: painful nodules and infection of
his throat because statT were allegedly negligent when they attempted to intubate him: and. his
penis was injured when a urinary bladder catheter \\ias inse11ed. The court determined there was
no evidence that medical staff breached a duty or caused plaintiffs ketoacidosis by administering
dextrose on December 27. 1995. Furthermore. there \vas no evidence that staff independently
caused plaintiffs penis. throat or left foot injuries during their emergency care of the plaintiff
after finding him unconscious.

Massey and Otten v. Helman et ai, Case No. 97-1401, Fel Pekin
This case was initially tiled as a class action alleging that the BOP Health Services policy was
unconstitutional. The complaint was joined by Dr. Otten who alleged that he was renloved from
his position as Clinical Director after assisting the plaintiff in this litigation. The class claims
were disallowed in June of 1998. On February 4. 1999. the court ruled that plaintiff Massey
could not proceed on his claims based upon his failure to exhaust his administrative remedies.
The court relied heavily upon the Alexander v. Hawk opinion in reaching its decision. The court
dismissed Dr. Otten's claims on jurisdictional grounds. This is the third Bivens action for
monetary damages that has been disillissed in the Central District for failure to exhaust.

Angarita-Garzon v. Helman, Case No. 98-1259, FCI Pekin
Inmate challenged disciplinary action \vhich found him guilty of committing a sex act in the
visiting room. In the course of the proceedings. the court ordered the institution to produce the
videotape of the alleged act. Untortunately. the tape had been recycled in accordance with
normal procedures. At the time of the recycling there was no indication that the petitioner would
proceed beyond the administrative remedy procedure. The court found that the recycling was not
done in bad faith and ruled the discipline appropriate.
PENDING ·CASES OF INTEREST
Patricia Good Voice Flute v. Pine Medical Center, et al., #98-1735, NCRO/FPC DuluthlFCI
Sandstone
Dr. Homeister. from FPC Duluth is a defendant as well as the Pine Medical Center. St. Mary's
Duluth Clinic Health System and the Sandstone Medical Group. Plaintiff contends that BOP
doctors and contract medical facility were responsible for the wrongful death of her inmate
husband who suffered from a tatal heart attack while at FCI Sandstone. NCRO Legal staff have
primary responsibility tor this case.

3315

North Central Region
Regional Counsel Monthly Report
January, 1999
Page 6

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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 \\t'rongful death of a quadriplegic
inmate who died at the medical center. An answer was tiled by the AU SA in the District of
Nevada. This will be a difficult case and settlement is being explored.
Rodriguez v. Officer Acosta. et al., Case No. 98-3352-GTV, USP Leavenworth
In this civil action. the plaintiff sues the United States and two correctional officers requesting
($400.000) four hundred dollars to conlpensate hinl t()r his talse teeth that were confiscated vvhile
he was confined at USP Leavenworth.
Christopher Green v. Kathleen Hawk, et al., Case No. 98-CV02761, USP Leavenworth
In this Bivens-styled action the plaintiff alleges violations of his constitutional rights by the
defendants because he was forced to pay his ($:!50.00) two hundred fifty dollar court ordered
fine.

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Walker. et al v. Greenfield, et al., Case No. 96-3237-GTV, USP Leavenworth
The inmates allege they were assaulted \vith a nightstick and were referred to by staff who used
racial slurs.
Burke v. Wise, 99-77-PAM-FLN, FMC Rochester
Inmate Burke filed a Petition for Writ of Habeas Corpus alleging that staff at FMC Rochester
have inaccurately computed his sentence. Specifically.. petitioner alleges that the BOP
erroneously failed to aggregate his SRA sentence with his PLRA sentence contrary to the plain
language of 18 U.S.C. § 3585(c).
McNeal v. Keohane. et al., Case No. 98-3506-CV-S-RGC-H, MCFP Springfield
Petitioner contended that the respondents should halt the practices for Christmas and all future
Christmas'.
Williams v. Keohane, Case No. 98-3182-CV-S-RGC-H, MCFP Springfield
Petitioner contended that the respondent should activate a liver transplant procedure and/or
provide him with an immediate release so that he can arrange for a liver transplant on his own.
Massey v. Wheeler et ai, Case No. 98-1348. FCI Pekin
Plaintiff alleged failure to allow weekly unnlonitored calls to his attorney is a violation of his
constitutional rights. The inmate filed an amended complaint in January alleging that three staff
members violated his constitutional rights by opening and reading his legal mail in his presence.
The inmate is requesting monetary damages and injunctive relief. A motion to dismiss has been
drafted based upon the inmates continued failure to use the administrative remedy procedures.

3316

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North Central Region
Regional Counsel Monthly Report
January .. 1999
Page 7

RELIGIOUS FREEDOM RESTORATION ACT CASES
None.
HEARINGS AND TRIALS
Jake v. Hershberger, Case No. 96-2780, USP Marion
Arguments were held before the 7th Circuit in January of 1999. Petitioner alleged that he should
receive credit toward his federal sentence ~'hile he was in state custody serving time for state
offense and while awaiting sentencing in state oftense. The District Court properly denied his
application for writ of habeas corpus holding that unless a federal court specifically recommends
concurrent time .. inmates who receive separate state and federal sentences are ordinarily not
granted federal sentence credit for tinle under state custody. Petitioner's counsel attempted to
bind the Bureau of Prisons to California state law where under California state law allows for a
petitioner to be transferred to the BOP based upon the Bureau policy. However. one of the
circuit Judges questioned why California law was relevant and he also pointed out that the policy
affords the BOP with discretion when it states that the BOP may transfer an inmate. The policy
does not state that the BOP shall transfer an inmate.
UPCOMING HEARINGS OR TRIALS
Dunn v. Black, 96-928-JPG, FCI Greenville
This is a case arising from the October 1995 disturbance at FCI Greenville. Plaintiff alleges that
correctional officer Black and other unidentified staff. dressed in riot uniforms. used excessive
force while transporting him to R&D. Trial is set for April 19 . 1999.
Rodriguez v. Wise, Case No. 99-128-MJD-RLE, FMC Rochester
Inmate Rodriguez filed a Petition for Writ of Habeas Corpus alleging that staff at FMC
Rochester have been deliberately inditferent to his serious nledical need. Petitioner alleges that
medical staff have failed to provide him with appropriate treatment tor his cancer because the
short amount of time remaining on his sentence. A telephonic hearing is scheduled for February
3. 1999.

u.s. v. Zepeda, Case No. 98-10073. Fel Pekin
Final pretrial hearing was held on November 6. 1998. Defendant pled guilty to Count 1 and
\vaived right of appeal. Sentencing set tor February 26. 1999.

3317

North Central Region
Regional Counsel Monthly Report
January_ 1999
Page 8

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 1992.
Court set status hearing for Apri I 13. 1999.

Martinez v. Counts, et al., Case No. 90-3224-CV-S-4, MCFP Springfield
The trial for the constitutional tort case. scheduled to begin on January 19th. has been postponed.
This lawsuit is an old one that \vent up on appeal. 977 F.2d 421( 8th Cir. 1992) and resulted in a
reversal of the judge's order disnlissing the conlplaint. After the case \vas remanded. we again
attempted to dismiss the case but our etlorts were unsuccessful. We continue to believe the three
remaining in the case will prevail. _Court granted plaintitl's motion tor continuance of the trial
due to the fact that he could not locate some of the records necessary to prove his case. The
implied Bivens constitutional tort jury trial will be rescheduled some time in the future.

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 February 18. 1999.

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. Defendant tiled motion to dismiss the indictment due to
prosecutorial vindictiveness. ClaiIned the nlatter \vas charged as a felony instead of remaining a
misdemeanor because defendant tiled civil litigation against BOP staff. Hearing was held
December 10. 1998. Court declined to dismiss indictment and set the matter tor trial on
February 22 & 23. 1999.

Bernal v. Black, FCI Pekin
The court has delayed the trial in Bernal. Trial set to begin on February 2 & 3. 1999.

CRIMINAL MATTERS

u.S. v. Francis and Hanev, USP Florence
See above (Hearings and Trials).

u.s. v. Riddle and

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Blac~

USP Florence

Plea negotiations ongoing regarding the charge of an inmate murder 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 tiled motion for relief from

3318

North Central Region
Regional Counsel Monthl\' Report
January, 1999
Page 9

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protective order. Hearing held hy Judge Sparr on December 16, 1998 , At ttfut"t 'llllc . Judge
wanted testimony from BOP on \\'hat documents had heen provided for Riddle to re\'ie\\' in
accordance with the co un orders , 1301' testilied that all documents had heen pro\'ided on sc\'cral
occasions for Riddle's review, The Judge hdd that the BOP had complied with the order anJ
that no relief was necessary, On January 16. RiJdk changed his plea to guilty of \'oluntar~
Manslaughter and -I counts of assault 1lI1 stair. Sentencing set lor sometime in April.

u.s. v. Simmonds. ADX Florence
See above (Hearings and Trials).

U.S. v. Zepeda, Case No. 9H- lOU73, FCI Pekin
See above (Hearings and Trialsl ,

U.S. v. Battle, USP Leavenworth
Battle was sentenced on January 27. IlJ9') Illr I',;ssession of a Knife by an Inmate in \ inlati,)n nf
18 U.S.c. section 1791 (a 1121, Hc
recei\'eJ a 2-1 month sentence tor this otlensc ,

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U.S. v. Alvarado, LISP Lea\,enwnrth
Inmate indicted for \'iolation of IX I ', S , C. Section 1"191(a)(2) possession of a \\C"I'"n nn IIr
about November 16. 199R in the District of Kansas ,
U.S. v. Duckett; lI.S. \', Wills; LS. \'. Wmlrell, l'SP Lea\,enworth
The above inmates "'ere each reccntly inJiCied li)r possession of a weapon in ,i,.l.llh'll IIf IS
U.S.c. 1791(a) (2) \\'hich occurred~'il m ahnut Ikcemher -1'.' 1998 at USP Lea\'cn,;'" rtl l. K"n,,, ,

PF:HSOY\F:L ISSl :F:S

STAFF TK·' \ ' F:L A:\D LEAVE

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Februar~ 19

ART

February I R

ART

3319

(,

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

Tower II. Hill Floor
-100 Stale Street
Kansas Ci~v. KS 66101-2421

March 11, 1999

(

MEMORANDUM FOR CHRISTOPHER ERLEWINE
ASSISTANT DIRECTOR/GENERAL COUNSEL
GENERAL COUNSEL AND REVIEW DIVISION

FROM:

JOHN R. SHAW. Regional Counsel

SUBJECT:

Monthly Report (February, 1999)

LITIGATION, CLAIMS, AND ADMINISTRATIVE REMEDY STATISTICS
LITIGATION:

inst

nurn

hc

ftc

biv

oth

ans

pen

cld

hit

set

NCR

46

32

2

8

4

22

506

17

5

1

NUM - Number of total lawsuits flied in the month
HC - Number of habeas corpus actions flied in the reporting period
FTC - Number of FTCA actions filed
BIV • Number of Bivens actions filed
OTH - Number of other actions filed, e.g., mental health, mandamus
ANS - Number of litigation reports completed
PEN - Number of cases pending

3716

awd

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North Central Region
Regional Counsel Monthly Report
February, 1999
Page 2
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)

ADMINISTRATIVE CLAIMS:
JAN
67

FEB
70

MAR

APR

MAY

JUN

JUL

AUG

SEP

OCT

NOV

DEC

JUN

JUL

AUG

SEP

OCT

NOV

DEC

ADMINISTRATIVE REMEDIES

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JAN

FEB

188

208

MAR

APR

MAY

Total for Calendar Year 396

'.

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

ON-HAND
RECEIVED
PROCESSED
BACKLOG

FOIA

38

12
14
13
1

49

50
1

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

Christopher Lopez v. Randy Davis, Case No. 98-4158, FPC Yankton
Roderick Walter v. Al Herrera, Case No. 98-4192, FPC Yankton

3717

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North Central Region
Regional Counsel Monthly Report
February. 1999
Page 3
Duane Larison v. AI Herrera, Case No. 98-·H42, FPC Yankton
Peter Ben v. AI Herrera, Case No. 98-4174, FPC Yankton
In each of these cases the Court found that the BOP acted beyond its statutory authority when it
used firearms enhancements as a basis for denying inmates early release eligibility under 18
U.S.C. 362 I (e)(2)(B). A notice of appeal has ot!en filed in Lopez and we anticipate doing the
same in the other cases. There are currently nine cases which have been consol idated into one
appeal before the Eighth Circuit (Bellis v. Davis). The appeal brief in Bellis is due by March 12.
1999, and oral argument has been slated for the second week of May 1999.
Scroger v. J. W. Booker, Jr., Case No. 98-3260-RDR, USP Leavenworth
In this case, Scroger received a 2 level enhancement because loaded accessible tirearms as well
as drugs were discovered. Here. the court determined that the BOP does not have authority to
create an additional eligibility requirement which contlicts with the plain language of the statute.
This court's holding was limited to invalidating tht! improper eligibility requirement. The COLIrt
further stated that the BOP's interpretation of 3621 (e )(2)(B) abrogating the statutory term
convicted"was not within its di scretion and was entitled to no deference by the court.
Ward v. J . W. Booker, Jr., Case No. 98-3274-RDR, USP Leavenworth
Ward was convicted of a violation of 21 U.S.c. 841(a)(I) Possession with intent to distribute
heroin. His offense level was increased by 2 points because firearms were possessed in
connection with the offense. The ll1erits lVere not addressed in this case. instead ripeness and
failure to exhaust available administrative remedies were asserted.
Guido v. Booker, Case No. 98-3266-RDR, USP Leavenworth
In this case, the BOP was ordered to consider Guido's early release eligibility notwithstanding
his two-level enhancement for weapons possession. The court relied heavily on the Fristoe
v.Thompson case as binding authority . We have until March 8th to inform the court of the status
of Guido's re-evaluation.

SETTLEMENTS OR JUDGMENTS
Joseph L. Davis v. Page True, et al. D. Kan .. Case No. 96-33 I 6-GTV, USP Leavenworth
S. D. of Ill.. Case No. 97-809-JPG. FCI Greenville

3718

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North Central Region
Regional Counsel Monthly Report
February4 1999
Page 4
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for' ($2.200.00) Two Thousand 'and T\\'o Hundred Dollars.

Bailey v. United States, Case No. 96-680-JPG, USP Marion
This was originally filed as a mixed FTCA/Bivens action. We originally offered $33 in
settlement of the administrative claim. The Bivens claim was dismissed and a ton claim seeking
$209.55 for property loss remains. In response to our nlotion for summary judgement. claims tor
loss of property totaling $102 was dismissed . leaving a total claim for $107.

DECISIONS OF INTEREST

c,.
Taylorv. U.S. BOP, et al., 10th Cir. 1999, Case No. 98-3176, USP Leavenworth
In this unpublished decision . the Tenth Circuit Court of. Appeals affirmed the decision of the
district court's denial of the petitioner's writ of habeas of corpus. In this case~ the petitioner'
challenged the denial of his early release. The petitioner is serving a sentence for violations of
21 U.S.C. 841 (a)( I) and possession of a firearm by a convicted felon in violation of 922 (g)( 1).
In reaching this decision. the Court concluded that even if the BOP had exceeded its discretion in
tinding that a section 922 (g) violation is a crinle of violence. Taylor \vould not have been
eligible for early release because he had a prior conviction tor aggravated assault.
Perez-Diago v. Page True, Case No. 9S-3S12-RDR, USP Leavenworth
Petitioner. a Cuban detainee alleged his detention was illegal and he challenged the
constitutionality of the conditions of confinement at USP Leavenworth. In an order dated January
'27 . 1999. the court determined that petitioner was not entitled to relief on his claim of illegal
continement as civil immigratio~ detention is not punishment. In addition. the court also
determined that the petitioner'S clainl concerning. conditions of continenlent was moot because he
is currently confined at USP Lewisburg. PA.

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Rhodes v. Page True, Case No. 96-3490-RDR, USP Leavenworth
In this petition tor writ of habeas corpus (OHO appeal). inmate Rhodes raised numerous issues
relating to the decision of the Discipline Hearing Officer at FeI Englewood that he committed
the prohibited acts of Planning a Killing and Escape, The court. in denying the petition . f{Jund the

3719

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North Central Region
Regional Counsel Monthly Report
February'l 1999
PageS

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inmate had no right to obtain a copy of the FBI Investigation conducted in relation to the acts
giving rise to the OHO report . nor did he have the right to obtain the testimony of various inmate
and staff witnesses.
Arrasmith v. United States, 10th Cir.1999, Case No. 98-3214,USP Leavenworth
In this favorable OAP decision. the 10th Circuit Court of Appeals vacated the decision of the
district judge which held Arrasmith's conviction for felon in possession of a fireann in violation
of 18 U.S.C. section 922 (g)(l) was not a ucrime of violence" tor purposes of the OAP program.
In the response to the appeal . the government chose not to file a brief. but instead filed a letter to
the Clerk of the Court indicating that inmate Arrasmith had litigated and lost the issue in the 5th
Circuit (Venegas v. Bureau of Prisons. 126 F.3d 760 (5th Cir. 1997). After granting the
petitioner's motion for expedited disposition. the Court held that petitioner's motion was
successive as a matter of law and relnained the case to the district court \vith instructions to
dismiss the petition.

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Zamarippa v. Kathleen Hawk, et al., Case No. 99-C-079-S, FCI Oxford
Plaintiff alleged that FCI Oxford had a duty to transfer him to an institution near his family
pursuant to 18 U.S.C. § 4042. Judge Shabaz held that the statute does not require that inmates be
housed in an institution of their choice and dismissed the complaint for failure to state a claim
pursuant to 28 U.S.C. § 1915A(b)( 1).
Russell-e. v. USA, et. al., Case. No. 9~-D-941, US~ F.orence
Court dismisses this case. with prejudice. for failure to file within the 2 year state statute of
limitations controlling for Bivens actions in the District of Colorado. Court indicated that there
was no basis for Altolling" the statute of limitations in this case. They also dismissed the United
States as defendant for failure to file \vithin the time prescribed under the FTCA.

PENDING CASES OF INTEREST

Kiperts v. Keohane, et al., Case No. 99-3043-CV-S-RGC-H, MCFP Springfield
Petitioner requested that respondents provide any and all treatments. surgical procedures, or
medication. including a heart transplant needed to preserve his life and/or. immediate release
from prison so he could obtain the necessary procedures.

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Rahman v. Keohane, et al., Case No. 97-3270-CV-S-RGC, MCFP Springfield
We received an R&R. wherein the Magistrate recommends that the case be dismissed without
prejudice. If the Judge agrees. it \vould mean that the official capacity aspects of the case
(conditions. medical care. etc.) could be filed anew in Minnesota. However. the Magistrate also

3720

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North Central Region
Regional Counsel Monthly Report
February, 1999
Page 6
recommends that the Bivens defendants he granted qualified immunity. If the Court agrees with
immunity. it is our opinion that these defendants could not be sued again in Minnesota since the
decision addresses the various constitutional claims against the defendants (1st. 5th. and 8th
Amendment allegations) and finds that defendants are entitled to qualified immunity.

Garcia v. U.S.A., Case No. 98-3089-CV-S-RGC, MCFP Springfield
Plaintiff alleged that doctor improperly performed surgery. removed an ulnar bone and "crippled"
his left arm.

Paulsen v. Alleman, et a!., Case No. 9R-I.t03, FCI Sandstone/NCRO

('

Plaintiff alleges violation of his fitih. Sixth. and Eighth Amendment rights. The issues stem
from 1996 to present involving medical compluints. denial of a portion of medical records,
destruction of personal property (to include legal material). lalsification of Incident Reports and
investigations. opening oflegal mail. defacing incoming mail. placement on FRP refuse. alleging
breach of FRP contract by increasing the amount of payment. failure to provide unmonitored
legal calls. deleting telephone numners from his phone list without notice. alleged denial of a
visitor. impartial DHO hearings. und nasic allegations of harassment and retaliation. The North
Central Region is providing the litigation on this case due to the contlict of interest wherein the
Paralegal at FCI Sandstone is one of the defendants.

Ueland v. US, Case No. 99-3032, FCI Pekin
FTCA claim stemming from a bus accident in May of 1996. The case was transferred from the '
District of Minnesota to the Central District of Illinois on February 25. 1999.

Bernal v. Black and Lewis. Case No. 96-1209, FCI Pekin
Plaintiff has filed a motion for n<!w trial based upon his alleged inability to access his legal
materials in the days immediately preceding the civil trial. (See below under Hearings or Trials
as to the underlying trial decided in fa\'OT of the gO\'ernment defendants.).

Anderson v. Tenenbaum et al., Case No. 98-CV-8, FMC Rochester
An Order and Report and Recommendation was issued in this case. wherein it was ordered that
the Bureau of Prisons are required to shO\\' calise \\'hy Summary Judgment should not be granted
in Plaintitfs lavor. which \\'ould dec lare thut the BOP has not provided PlaintilT with the
post-medication hearing required by
Clause and would compel the BOP to
schedule an administrative hearing.

(

3721

h

,,/

5

(

North Central Region
Regional Counsel Monthly Report
February" 1999
Page 7
Rouse v. United States of America, Case No. CR 94-40015/CIV 98-4213, USP Leavenworth
In this 2255 appeal. inmate Rouse alleges that due to institution lockdowns in the fall of 1998. he
was unable to timely file his 2255 appeal. Petitioner further alleges he sent legal correspondence
via certified mail which was not received by the Clerk of the Court for a month. The legal
services department is assisting the AUSA working on the case in responding to the petitioner's
contentions.
Williams v. USA, Case No. 97-222, FCI Greenville
In this FTCA action where inmate alleged that BOP staff were negligent in the loss of his
property during the disturbance in October 1995. In a motion to dismiss. it was argued that the
court lacked subject matter jurisdiction because 28 U.S.C. § 2680(c) provides that the general
waiver of sovereign immunity in the FTCA does not apply to claims arising from "the detention
of any goods or merchandise by any officer of customs or excise or any other law enforcement
officer." It was argued that BOP employees fall within this exception as law enforcement
officers.

(
.....
\

The Magistrate Judge issued an R&R denying our motion to dismiss. He found that the §2680(c)
exception does not apply to all law enforcement officers and that there was no showing that the
BOP employees were in their "law enforcement mode" during the events giving rise to this
action. He further stated that there is no indication that the officers were engaged in an activity
that is related to BOP employees' power of arrest as provided in 18 U.S.C. §3050. The
Magistrate found that the seizure was not a law enforcement function" but rather a penological
function. We are considering whether to submit objections to this Report & Recommendation or
to take other action.

RELIGIOUS FREEDOM RESTORATION ACT CASES
None.

HEARINGS AND TRIALS
Bernal v. Black and Lewis, Case No. 96-1209, FC) Pekin
Plaintiff alleged that he was retaliated against after he threatened to file a fonnal grievance

3722

(

North Central Region
Regional Counsel Monthly Report
February.. 1999
Page 8
concerning the working conditions in the comnlissary. This First Amendnlent claim went to a
jury trial February 3d and 4th. The jury returned a verdict in favor of the detendants. Janice
Bonneville assisted at trial.

u.s.

v. Francis and Haney, USP Florence
Inmates charged with attempted escape from USP and possession of contraband (escape
paraphernalia). The in camera hearing to rule on the security issue of request for plans and
blueprints was held on February 18. 1999. The Court directed that certain statements be made to
the defense and advised that no further statements or information would be required at this time.
This was viewed as a fairly favorable decision. Final pretrial hearing was set for May 18, 1999.
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. innlate indicted on felony counts. Jury acquitted the
inmate of assaulting t\VO officers at the ADX.

(

UPCOMING HEARINGS OR TRIALS
Dunn v. Black, 96-928-JPG, FCI Greenville
This is a case arising from the October 1995 disturbance at FCI Greenville. Plaintiff alleges that
correctional officer Black and other unidentified staff. dressed in riot uniforms. used excessive
force while transporting him to R&D. Trial is set for April 19. 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 1992.
Court set status hearing for April 13. 1999.

CRIMINAL MATTERS

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 murder at USP. Discovery and
protective order issues continue with respect to inmate Riddle. Inmate Black pleaded guilty to
aggravated assault. Sentencing is set for March of 1999. Riddle tiled motion for relief from
protective order. Hearing held by Judge Sparr on December 16. 1998. At that time. Judge

3723

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North Central Region
Regional Counsel Monthly Report
February. 1999
Page 9
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 . On January 16. Riddle changed his plea to guilty of Voluntary
Manslaughter and 4 counts of assault on staff. Sentencing set for sometime in April.

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

STAFF TRA VEL AND LEAVE

(

Tort dBASE Files sent via e-mail to Monica Potter. OGC. on 2/2/99.

(

3724

('

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

Tower II. 81h Floor
-/()() Siale Streel
Kansas City. KS

66101-2421

April 12. 1999

(

MEMORANDUM FOR CHRISTOPHER ERLEWINE. ASSISTANT DIRECTOR/GENERAL
COUNSEL
GENERAL COUNSEL AND REVIEW DIVISION

FROM:

JOHN R. SHAW. Rt:gional Counsel

SUBJECT:

Monthly Report (March, 1999)

LITIGATION, CLAIMS, AND ADMINISTRATIVE REMEDY STATISTICS
LITIGATION:

inst

nurn

hc

ftc

biv

oth

ans

pen

cld

hit

set

NCR

85

52

9

15

9

19

503

29

4

1

Total cases for Calendar Year 181

(

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
SIV - Number of Bivens actions flied
OTH - Number of other actions flied, e.g., mental health, mandamus
ANS - Number of litigation reports completed

3725

awd

(

North Central Region
Regional Counsel Monthly Report
March.. 1999
Page 2
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)

ADMINISTRATIVE CLAIMS:

MAR APR MAY
99
67
70
ADMINISTRATIVE REMEDIES

(

JAN

FEB

JAN

FEB

MAR

188

208

228

APR

MAY

JUN

JUL

AUG

SEP

OCT

NOV

DEC

JUN

JUL

AUG

SEP

OCT

NOV

DEC

Total for Calendar Year 624

FREEDOM OF INFORMATION ACT/PRIVACY ACT REQUESTS

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

FOIA

29

8

61

15
10.
1

69
3*

Total for Calendar Year 219
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

(

Collins v. Bureau of Prisons, et al., 97-WM-1533, USP Florence
The Court dismissed the United States on sovereign immunity. however. it recommended the
case go forward as plaintiff described in sufficient detail circumstances of his alleged assault by 4

3726

(
\

North Central Region
Regional Counsel Monthly Report
March" 1999
Page 3
correctional officers in the SHU on January 1996 at the USP. The Court ruled that~ if true. the
allegations would violate the 81h Amendment. This is a he said. we said" matter that will
probably go to trial.,
&I

SETTLEMENTS OR JUDGMENTS
Teich v. U.S.A. et al., Case No. CV... S·9~..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. A settlement agreement was made for $88.000.00. The
Magistrate was pressing for a $] 00.000 settlement and the AUSA stated that cases in her district
were usual worth more that the estimated value of

DECISIONS OF INTEREST

(

Clark v. Keohane. et al., Case No. 98-348S..CV-S-RGC -H, MCFP Springfield
Petitioner. requested an immediate release from custody so that he could obtain an autologous
bone marrow transplant. which the respondents have denied. On March 19. ] 999. the case was
dismissed.
Rahman v. Keohane. et aI., w.o. MO. Civil No. 97..3279-CV-S-RGC, MCFP Springfield
Inmate Rahman is serving a life sentence for crimes associated with the bombing of the World
Trade Center in New York City. This lawsuit alleged some 41 violations of plaintiffs
constitutional rights .. as well as violations of the RFRA of 1993.. On March 30.. 1999. the
Western District of Missouri dismissed the case.
Castor v. USPC and Helman. Case No. 98-1306, Fe) Pekin
Petitioner alleged violations by the Parole Commission and that his case manager altered his PSI.
The allegations against the Parole Commission were dismissed on February 12. 1999. However. an
issue of material fact remained with respect to the alleged alteration of his PSI. A telephone
conference was held on March 5. 1999. in which the court was advised that the petitioner had not
raised this matter through the administrative remedy procedure. Petition dismissed on March 23.
1999 tor tai lure to exhaust.

(

Flanoa v. Helman, et ai, Case No. 98-1115. FC) Pekin
Roberson v. Helman, et ai, Case No. 98-1162, FCI Pekin
Plaintiffs alleged that the implementation of the health services policy resulted in a violation of their
constitutional rights. This case copied the original Massey case (97·1403). As with that case. these
complaints were dismissed for failure to exhaust administrative remedies.

3727

'y)f::J

North Central Region
Regional Counsel Monthly Report
March.. 1999
Page 4

Akbar v. Hawk and Pugb, Case No. 98-WM-0968, FCI Florence
The Magistrate Judge recommended dismissal of this petition and on March 11. 1999. the Judge
adopted the recommendation and dismissed the petition. This was an allegation a la Workmen
that the BOP could 'not set the amount and schedule of payments for a court ordered fine. Court
held that the fine was due immediately in full and the BOP is merely used to facilitate collection
of the payments. No judicial function has been delegated.
Cleveland v. FPI, et al., Case No. 96-N-0133, USP Florence
This was a challenge to the inmate's removal frolll a UNICOR work assignment for medical
reasons and to his classification and placement at an United States Penitentiary. On March 5.
1999.. the Court granted the government's nlotion to dismiss.

c',·
' .. f.···

Russell-el v. USA, eta al., Case No. 98-D-941, USP Florence
Court dismisses this case.. with prejudice. for failure of defendant to file within the 2 year state
statute of limitations controlling for Bivens actions in the District of Colorado . indicating that
there was no basis for tolling" the statute of limitations in this case. In addition .. the Court
dismissed the United States for failure to file within the time prescribed under the FTCA.
II

Villarreal v. Harrison, et al., Case No. 97-N-1352, USP Florence
Plaintiff alleged his placement in SHU and classification as a gang member violated the
constitution. Court found it did not and the matter has been dismissed with prejudice. On March
20.. 1999.. the Court accepted the R&R that recommended granting government's motion for
summary judgement.
Anderson v. Tenenbaum et al., Case No. 98-CV-8, FMC Rochester
On February 18 . 1999. an administrative due process hearing was provided to Alex Anderson. It
was determined that Anderson continues to suffer from a mental disorder and that he continues to
require psychotropic medication because he is dangerous to himself and/or others and he is
gravely disabled. Accordingly. on March I .. 1999. the BOP filed a response to the show cause
order noting that it agreed that plaintiff should be (and in fact was) provided a hearing. and
respectfully requested that the court refrain from addressing the constitutionality of the 30 day
review provision. On March 9. 1999. the Magistrate issued an R&R holding that an adversary
hearing is constitutionally mandated every 180 days to challenge the program of ongoing
psychotropic medication. The Magistrate further recommended that the Court retain continuing
jurisdiction over this matter. On March 23. 1999. the Judge issued an Order declining
Anderson's objections to the R&R.

(

PENDING CASES OF INTEREST

'.

3728

North Central Region
Regional Counsel Monthly Report
March.. 1999
Page 5
Warden, et al. v. Perrill, Case No. 95-S-13, FCI Englewood
This case involves allegations that innlates on a prison work assignment were exposed to
asbestos. There are seventeen inmate plaintifTs represented by counsel. The U.S. Attorney's
Office filed a motion to dismiss on behalf of all represented defendants .. alleging .. inter alia that
the Bivens claim was precluded by Demko and the Inmate Accident Compensation Act. The
motion to dismiss was pending tor three years. The Magistrate Judge assigned to the case
recently issued a report denying the nlotion to dismiss on the Demko grounds.
Free v. U.S.A., et al., Case No. CIV 98-1284 W, MCFP Springfield
Plaintiff alleges that a Lieutenant assaulted him in various ways during the course of his transfer
from the Federal Transportation Center in Oklahoma City. OK. to the U.S. Medical Center for
Federal Prisoners .. Springfield .. MO.
Shockey v. T.C. Peterson, Case No. #99-247, FCI Sandstone
Habeas action where petitioner alleges he was eligible for 3621 e release in March 1996.
however, a Change Notice to the Crime of Violence Program Statement. added his offense to a
crime of violence. Petitioner alleges his sentence \vas re-computed to reflect the one year off,
however.. almost a year later. was re-computed to reflect the loss of 3621 e. which petitioner
alleges the BOP cannot do as it is retroactive and violates ex post facto. Petitioner requests the
restoration of 3621 e release.
Cook v. Melusnic, et al., Case No. 98-D-2537, FC) Florence
hlmate claims BOP staff erred in failing to correct Central File records which caused
discrimination toward him in placement.. custody. and programming. He is seeking monetary
damages and transfer back to the Western Region. Inmate filed pursuant to 28 U.S.C. 2241, and
claims violations of the Privacy Act. and the Speedy Trial Act of 1974.
Verdecia v. R.E. Holt, et ai, Case No. 98-8-2535, USP Florence
Inmate alleges statT placed him in a cell with other inmates who assaulted him.. despite his
warnings of the danger. Seems to be arguing that "Latin King" gang members are inherently
dangerous and infers that no other inmate should ever be housed with them.
Appleby-el v. USA, Case No. 97-N-0671, ADX Florence
In this FTCA case. inmate alleges he fell while getting out of the shower. The inmate claims he
was not provided a shower mat and that he suffered injury. Judge accepted the R&R and denied
the government's motion for summary judgment. He recommitted the matter to the Magistrate
tor pretrial proceedings.. with direction to schedule matters so that he can make a
recommendation as to disposition no later than August 31 .. 1999. AUSA interested in attempting
settlement negotiations with inmate.

3729

(

North Central Region
Regional Counsel Monthly Report
March.. 1999
Page 6
Bustillo v. Hawk, Case No. 9S-WM-2242, ADX Florence
On November 24, 1998. a hearing (video) was held on plaintiffs motion for a preliminary
injunction. In an Order filed March 17. 1999. the Court denied the motion. In citing SCFC fLC.
Inc. v. Visa USA. Inc., 936 F.2d 1096. 1098 (lOlh Cir. 1991), the Court noted that plaintiff had
failed to show any evidence of retaliation for exercise of his First Amendment rights to seek
judicial redress; that plaintiff failed to show evidence of an Eighth Amendment violation or that
he will suffer irreparable il1jury if the injunction is not issued: that plaintitf failed to show
competent evidence [actually showed none1that he was denied due process in taking of property
and in disciplinary hearings; defendants submitted competent evidence showing that plaintiff has
visited the law library and has regular access to legal materials for use in his cell and that
defendants showed competent evidence why he was not allowed to use an ink pen and that
plaintiff failed to show any actual injury.
Cuoco v. Lopez, Case No. 98-D-l t82, ADX Florence
District Court rescinded it's prior dismissal of the FTCA claims as they relate to assault and
battery allegations. Court correctly noted that the defendant is a law enforcement officer. which
subjects the USA to potential FTCA liability for such actions. Reinstated the claim and provided
government with 20 days in which to respond on the FTCA allegations.
Garrett v. Hawk, et al., Case No. 96-Z-1379, ADX Florence
This Bivens action (which was up on appeal of the administrative exhaustion initial dismissal) is
back in District Court for further proceedings. The Court ordered plaintiff to show cause why
the matter should not be dismissed tor failure to prosecute. Plaintiffs counsel filed an inaccurate
declaration to the court asserting that legal staff at Florence were not properly responding to his
inquiries and stating that they had offered to provide him assistance in identifying proper
defendants. Legal staff provided the USAO with a letter and declaration explaining that they did
not and would not offer up BO P staff for personal liabi Ii ty as defendants but that they were
willing to provide addresses for staff members if plaintiffs counsel would provide the names.
Plaintiff's counsel has not been forthcoming with identifiable staff names.
USA v. McElhaney, O.Kansas, USP Leavenworth
Coordinated effort between USP Leaven\vorth. ADX Florence. and USP Marion in response to
the attempts to visit various inmates at these institutions by court-appointed investigators and the
circumvention of our correspondence regulations by the stand-by counsel in this matter.

RELIGIOUS FREEDOM RESTORATION ACT CASES

3730

North Central Region
Regional Counsel Monthly Report
March. 1999
Page 7

See' Rahman v. Keohane, et al.,
Springfield

w.o.

MO. Civil No. 97-3279-C

HEARINGS AND TRIALS

Waclaw v. Gilkey, et al., Case No. 99-CV-0526, MCC Chicago
Inmate alleges he should remain at MCC Chicago. and not be transferred to FDC Oakdale
pursuant to an INS detainer. Petitioner \\'as transferred to FDC Oakdale. He subsequently filed
motion to hold the respondents in contempt of court for the transfer while the habeas petition was
pending. The Court ordered the plaintiff to file a brief in support of motion to show cause and
Respondents to file a motion to disnliss. Status hearing held on March 18. 1999. The judge
dismissed the case without prejudice for want of prosecution on April 1. 1999. Counsel for the
plaintiff failed to appear at the last two status hearings.. and failed to file any further
motions/responses.

(~

Merritt v. Hawk, et al., Case No. 95-Z-2653, ADX Florence
A hearing was held regarding plaintitrs attempt to reactivate a TRO request he filed in late 1995.
Specifically . plaintiff was concerned that his placenlent in an ADX general population unit put
his life in jeopardy. At the hearing. plaintiff asserted that he only wanted to be guaranteed no
physical contact with other inmates and single recreation. He is already receiving those things
and the BOP does not intend to do othel"\vise with him. The hearing turned into a settlement
conference with no final outcome. Clearly. the TRO will not be issued . as the court does not
believe a threat to his immediate safety exists. Oral argument on the outstanding motions in the
underlying case set for April 22. 1999.
Martinez v. Counts, et al., Case No. 90-3224-CV-S-I, MCFP Springfield
The issue was whether a decision to have inmate Martinez work while he was on pre-trial status
resulted in punishment prohibited by the Fifth Anlendment. On March 30, 1999, a verdict was
given in favor of the defendants. (nnlate Martinez has advised the legal staff that he will pursue
another appeal. The jury deliberated for about one hour and the Judge's evidentiary rulings were
quite favorable to inmate Martinez.

(

UPCOMING HEARINGS OR TRIALS

u.s.

v. Francis and Haney, USP Florence

3731

North Central Region
Regional Counsel Monthly Report
March ot 1999
Page 8
Inmates charged with attempted escape from USP and possession of contraband (escape
paraphernalia). Final pretrial hearing set for May 18.
Dunn v. Black, 96-928-JPG, FCI Greenville
This is a case arising from the October 1995 disturbance at FeI Greenville. Plaintiff alleges that
correctional officer Black and other unidentified staff. dressed in riot unifonns. used excessive
force while transporting him to R&D. Trial is set for April 19.. 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 1992.
Court set status hearing for April 13. 1999.

CRIMINAL MATTERS
u.S. v. Riddle and Black. USP Florence
Inmate Black pleaded guilty to aggravated assault and was sentenced to 73 months consecutive.
Inmate Riddle changed plea to guilty of Voluntary Manslaughter and 4 counts of assault on staff
and is set for sentencing May 11.

u.s. v. Miller, Case No. 98-10046, FCI Pekin
The defendant was found guilty in November of 1998 of Possession of Contraband Inside a Penal
Institution and Possession with Intent to Distribute Heroin. This finding placed the inmate in"
Career Offender" status. On March 5. 1999. he was sentenced to a consecutive term of
imprisonment of 210 months.

PERSONNEL ISSUES
Lisa EckL Honors Attorney. has been selected as Attorney at FCI Fort Dix. NJ.

STAFF TRAVEL AND LEAVE

3732

(

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

Tower II. 8th Floor
-100 Stute Street
K.a/7sas City. K.S 66101-2421

May 12 .. 1999

(F'
'.....

MEMORANDUM FOR CHRISTOPHER ERLEWINE.
ASSISTANT DIRECTOR/GENERAL COUNSEL
GENERAL COUNSEL AND RJ:'~· V DIVISION

FROM:

JOHN R..

SUBJECT:

Monthly Rt

. ~ REMEDY STATISTICS

LITIGATION, CLAIMS, AND ADl
LITIGATION:

inst
NCR

nurn
54

hc
30

ftc
3

biv
15

oth
6

ans

pen

cld

hit

31

503

41

6

Total cases for Calendar Year 235
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 filed
OTH • Number of other actions filed. e.g., mental health, mandamus
ANS • Number of litigation reports completed

3767

set

awd

North Central Region
Regional Counsel Monthly Report
April. 1999
Page 2
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)

ADMINISTRATIVE CLAIMS:
JAN

FEB

MAR
99

APR

MAY

JUN

JUL

AUG

SEP

OCT

NOV

DEC

JUN

JUL

AUG

SEP

OCT

NOV

DEC

88
70
67
ADMINISTRATIVE REMEDIES
JAN

FEB

MAR

APR

188

208

228

215

MAY

Total for Calendar Year 839

(
FREEDOM OF INFORMATION ACT/PRIVACY ACT REQUESTS
PRIVACY
ACT
ACTUAL ON-HAND
ACTUAL RECEIVED
ACTUAL PROCESSED
ACTUAL BACKLOG

FOIA

."

15
26
19
I

.)-

60
56
2

Total for Calendar Year 305
Backlog represents those requests \vhich have not been responded to within the twenty work days
target set by DOJ.
* Awaiting records from archives.

ADVERSE DECISIONS
The following RDAP cases are being currently appealed:
South Dakota

3768

North Central Region
Regional Counsel Monthly Report
April" 1999
Page 3
1. Bellis v. Davis (enhancement. 922(g)
2. Pierson v. Davis (enhancement)
3. Shields v. Davis (enhancement)
4. Miller v. Davis (enhancement)
5. Cook v. Davis (enhancement)
6. Clark v. Davis (enhancement)
7. Winston v. Davis (enhancement)
8. Walker v. Davis (enhancement)
9. Lopez v. Davis (enhancement)
10. Martin v. Davis (enhancement)
I I. Betz v. Davis (enhancement)
12. Walter v. Davis (enhancement)
13. Larison v. Davis (enhancement)
1-10 have been consolidated and oral argument wi II be made for these case on May 12, 1999,
before the 8th Circuit in St. Louis.
We also have adverse opinions in five other cases that must be filed by June 1. 1999.

c. . .

Minnesota
1. Zacher v. Tippy (prior conviction)(brief filed)
Colorado
I. Hicks v. Brooks (enhancement)
Kansas
1. Guido v. Booker. 98-3266-RDR (enhancement)
2. Scroger v. Booker, 98-3260-RDR (enhancement)
3. Ward v. Booker, 98-3274-RDR (enhancement)
In these 3 cases. the District Court found that the Director of the Federal Bureau of Prisons
exceeded' her authority in denying relief to petitioner's under 18 U.S.C. section 3621 (e )(2)(B)
based on a sentence enhancement for possession of a fireann. Dan Eckhart has generously
volunteered to provide AU SA \vith litigation assistance in appealing these 3 cases to the 10th
Circuit Court of Appeals.
Okai v. Federal Bureau of Prisons, Case No. 97-549-DRH, FCI OxfordlFCI Greenville
The plaintiff in this case used the Freedom of Infonnation Act to request documents related to
the October 1995 disturbance at FCI Greenville. The BOP released some documents and
withheld others by asserting various exemptions under the FOIA. The Magistrate issued an R&R
that denied the BOP the use of the "law enforcement records" exemption found at 5 USC §

3769

('

North Central Region
Regional Counsel Monthly Report
ApriL 1999
Page 4
S22(b)(7)(C) for 19 documents. Subsequently. a Memorandum and Order issued by the Judge in
this case. mistakenly denied the BOP exemptions under § 522(b)(7)(c). As a result. we have
requested that the order be appealed and that the DOJ Office of Information Privacy handle the
appeal.

SETTLEMENTS OR JUDGMENTS
None.

DECISIONS OF INTEREST
Hinton v. Willie Scott, et al., Case No. 95-3120-RDR, USP Leavenworth
A copy of the district court's Judgment and Order granting the defendants summary judgment
and Order from the 10th Circuit dismissing the appeal was recently received in this case. In this_
Bivens, styled action. the plaintiff had alleged he was unconstitutionally subjected to excess
force during a forcible removal from his cell. he claimed he was denied necessary medical care
for his resulting injuries and he claimed he was denied due process in the resulting disciplinary
action that was taken against him. The plaintiff had participai.ed in a work stoppage and as a
result received disciplinary infractions for encouraging others to refuse to work or participate in
the strike. assault.. and refusing to obey an order.
The court recognized the security risk presented by all inmates participating in the work
stoppage, the use of force to restrain plaintiff was understandable and hardly unexpected given
plaintiffs refusal to cuff up for transport as ordered. and the altercation that ensued when the first
guard entered plaintiffs cell. The court also detennined that the plaintiff received adequate
and timely medical attention for his injuries \\<'hich were relatively minor. Finally.. the court
determined that the record demonstrated the due process standards under Wolff were fully
satisfied. and that sufficient evidence supported the disciplinary findings of guilt.

Griffin v. United States Parole Commission, Case No. 96-0342-(JR), USP Leavenworth
This which was before the court on remand from the Court of Appeals was brought pursuant to
the Privacy Act wherein the plaintiff sought damages for defendant's allegedly wilful use of
erroneous information to justifY setting his parole rehearing date beyond the guideline range.
The court granted the defendant's motion for sunlmary judgment on the grounds that the action
was barred by the statute of limitations and that the infonnation relied upon was accurate. The
defendant's motion for summary judgment was granted on March 31. 1999.
~,

Donna Buford, as legal guardian for Kendon Leger, a minor v. United States of America,

3770

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North Central Region
Regional Counsel Monthly Report
April~ 1999
Page 5
Case No. 97-2263-JWL, USP Leavenworth
In this FTCA wrongful death action. plaintitl"s decedent was killed in the USP. Leavenworth
Special Housing Unit ,(SHU) by a fellow innlate during recreation. Plaintiff was represented by
private counsel. After discovery. including depositions of numerous staff and inmate witnesses.
the United States filed a motion for sununary judgment citing the discretionary function
exception to the FTCA as well as failure to state a claim under Kansas negligence law. The
plaintiffs case after discovery alleged staff negligence in four security related areas: 1) Failure to
conduct cell searches every ten days: 2) Failure to search the recreation pen; 3) Failure to utilize
a transfrisker on inmates; 4) Failure to pat search inmates going to recreation. The court ruled in
favor of the United States under the discretionary function exemption on all above issues with
the exception of the failure to pat search. Because Plaintiff submitted affidavits from both the
murderer as well as an inmate w·itness which indicated they were not pat searched . the
discretionary function exemption was not applied. However the court ruled in favor of the
United States under pure negligence analysis regarding the pat search issue. The court held that
before liability could be imputed under Kansas law. plaintiff must offer evidence indicating that
prison employees knew. or should have kno\vn. of the risk posed by the aggressor to the victim.
and then failed to take sufficient actions to prevent a subsequent attack. Because the evidence
failed to establish during discovery that staff kne\v or should have known of an impending attack.
the court dismissed this claim as \vell.
ot

Nowicki v. J. T. O'Brien,98-C-875-C. FC) Oxford
Petitioner alleges that we have violated 18 V.S.C §3658 by refusing to credit presentence time he
spent in state custody against his current federal sentence. Respondents maintained that the time
the petitioner is requesting was hased solely on state charges before a federal detainer was
lodged. The Court agreed and held that respondent properly refused to grant such credit because
the time petitioner spent in state custody was not connected with offense for which the federal
sentence was imposed. However. the Court noted that nothing in the record or in petitioner's
allegations suggested that his custody was affected by the mere issuance of the probation
warrant as opposed to the lodging of the detainer. In Doyle v. Elsea 658 F.2d 512 (7th Cir.
1981). the petitioner adduced evidence that he was unable to post bail as a direct result of the
issuance of the federal warrant. Hence. the court in Doyle held that as a "practical matter" he was
in pretrial custody "in connection with" his federal charges. As a result. the Doyle court found he
was entitled to credit for time spent in pretrial custody prior to the detainer. Consistent with
Doyle the Court hints that the petitioner may be entitled to the time he seeks if he can make a
similar showing and exhausts his remedies. The Court is in essence encouraging the petitioner to
pursue a new angle.
ot

ot

ot

\0

Hampton v. Keohane, et al., Case No. 98-3390-CV-S-RGC-H, MCFP Springfield
Petitioner contended that the BOP should activate a heart transplant procedure necessary to

3771

(~
\

North Central Region
Regional Counsel Monthly Report
Aprit 1999
Page 6
preserve his life or grant him an immediate release from custody to arrange for a heart transplant.
Court dismissed the case on April 27. 1999.
Davis v. Seiter, et al., Case No. 97-809-DRH, FCI Greenville
On April 13. 1999. the Magistrate Judge. sua sponte . issued a Report and Recommendation that
the case be dismissed with prejudice. The Magistrate noted that since the companion case in the
District of Kansas has been settled. and because a provision of that settlement was to dismiss this
action. that there is no reason this case should not be dismissed. Plaintiff was given 10 days to
object.

PENDING CASES OF INTEREST
Stewart v. Seiter, et al., Case No. 96-983-GPM. FCI Greenville
On April 11.. 1999.. the Court issued an order setting aside the default judgment against
defendants Seiter and Allen previously entered by the Magistrate. The District Judge construed
the previous orders as Reports & Recommendations and construed defendant's appeal as
objections to the R & R. The Judge relied upon 42 U.S.C.§1997e(g). a section of the PLRA
which provides that" [a]ny defendant may waive the right to reply to any action brought by a
prisoner under section 1983 of this title or any other Federal law. " and that "such waiver shall not
constitute an admission of the allegations contained in the complaint. h 42 U.S.C. § 1997e(g)( 1}.
This section also provides that "[n]o reliefshall be granted to the plaintiff unless a reply has been
filed." Id
Kilgore v. (FNU) Booker, et al.,
In this Bivens-styled action. the
danger and tailed to transfer him
a murder attempt was made on
prolonged damages. n

Case No. 98-~264-GTV, USP Leavenworth
plaintiff alleges defendants knew that his life was in serious
out of USP Leavenworth. As a result . the plaintiff alleges that
his life in January 1998 which caused serious injuries with

Young-Bey v. Rolland Swanson, et al., Case No. 98-3126-GTV, USP Leavenworth
This Bivens-styled action alleges several staff members prevented Young-Bey from profiting
from alleged infonnation he provided to the FBI. He also alleges he was promised his sentence
would be significantly reduced. Plaintiff cites such statutes as RICO as a jurisdictional basis for
his complaint.
Wartman v. United States, Case No. 98-395-WDS, USP Marion
Plaintiff alleges that he was assaulted by a known white racist inmate when released from his
cell for breakfast on February 28. 1997. He states he received five stab wounds which caused

3772

II

North Central Region
Regional Counsel Monthly Report
April.. 1999
Page 7
loss of hearing in his right ear. loss of range of motion in his neck and a pronounced limp.
Plaintiff asserts that staff knew of a race war between the" D. C. Blacks and white racist
prisoners" but he was not warned or otfered protection. Plaintiff claims prison staff should have
known that he was in danger and should not have released from his cell.
Soliz v. Keohane, et al., Case No. 99-3133-CV-S-RGC-H, MCFP Springfield
Petitioner contended that he should have received a compassionate release due to renal failure
and denial of a kidney transplant.
Ballato v. Romine, et al., Case No. 99-552, FCI Sandstone
Plaintiff alleges that he slipped on ice buildup and fell by J Unit causing severe injury to his
back and head. Plaintiff alleges staff inaction to maintain the sidewalk caused the slip and faIt
and that he received inadequate medical treatment.

c

Banks v. Federal Bureau of Prisons, et aI., Case No. 99-400, FCI Sandstone
Plaintiff alleges false information in his PSI. that statf failed to correct false information in his
PSI.. thus adversely impacting his custody classification. housing. CCC. transfer. etc.
Hudson v. Holt, Case No. 99-X-OOI4, USP Florence
Inmate seeks to have BOP preserve tape recording of a telephone conversation he had on ITS
with attorney. The Court ordered the BOP to preserve the recording and directed plaintiff to file
an amended pleading· within 30 days curing deficiencies. The court noted it will dismiss action
and rescind order to preserve tape if no amended pleading is filed.
Shinpaugb v. Carlson, et al., Case No. 98-WM-0706, FCI Florence
Received adverse R&R denying qualified immunity in this 1SI Amendment case. Institution
disciplined an inmate for making insolent comments about staff in outgoing mail. Objections to
the R&R have been filed.

RELIGIOUS FREEDOM RESTORATION ACT CASES
Kikumura v. Hurley, et al., 98-8-1442, ADX Florence
Inmate challenges the denial of pastoral visits. The inmate expressly raised a RFRA issue in his
complaint and outside counsel was authorized. Motion to dismissed was filed and a status
conference has been set for May 5. 1999.

HEARINGS AND TRIALS

3773

(

North Central Region
Regional Counsel Monthly Report
April, 1999
Page 8
Merritt v. Hawk, et al., Case No. 95-Z-2653~ ADX Florence
A hearing was held regarding plaintiffs attempt to reactivate a TRO request he filed in late 1995.
Specifically, plaintiff was concerned that his placement in an ADX general population unit put
his life in jeopardy. At the hearing . plaintiff asserted that he only wanted to be guaranteed no
physical contact with other inmates and single recreation. He is already receiving those things
and the BOP does not intend to do otherwise with him. The hearing turned into a settlement
conference with no final outcome. Clearly~ the TRO will not be issued. as the court does not
believe a threat to his immediate safety exists. Oral argument on the outstanding motions heard
on April 22 . 1999. New hearing on TRO set for May 26 at 2:00 p.m.
Dunn v. Blac~ Case No. 95-928, FCI Greenville
A bench trial was held in this case on April.. 19 . 1999. After Dunn, proceeding pro se" presented
his case., the AUSA made a Rule 52 nlotion for a judgment as a matter of law. The Magistrate
Judge granted this motion and found for the defendant.

(

Scott Williams v. Victor Aponte, et al., Civil No. 95-678-JPG, USP Marion
On April 15, 1999, an evidentiary hearing \vas held. After the plaintiff presented his evidence,
the Court dismissed the case and the governnlent never had to present evidence.

u.s. v. Thomas, FPC Florence
Inmate was found gUilty of escape from the FPC. This defendant claimed he was not the person
who escaped from the camp. The jury deliberated tor a little over an hour before returning the
guilty verdict. Sentencing set for July 2. 1999.

u.s. v. Amaya-Martinez, Case No. 99-10022, FCI Pekin
Inmate charged with Trafficking in Contraband. The inmate hid a weapon in the sole of his
tennis shoe. The initial arraignment was held on April 29" 1999 at which time the inmate pled
not guilty and was appointed counsel. The final pretrial hearing is scheduled for June 16. 1999.

u.s. v. Zepeda, Case No. 98-10073, FCI Pekin
Inmate charged with Assault with Intent to Commit a Felony following an incident on July 4.
1998. The inmate was sentenced to a consecutive tenn of 77 months on April 15.
1999. The government agreed to drop a second count of Possession of a Weapon
Inside a Penal Institution in exchange for a waiver of appeal.

(

UPCOMING HEARINGS OR TRIALS

3774

('

North Central Region
Regional Counsel Monthly Report
April .. 1999
Page 9
See Adverse Decision. a number of cases have been consolidated and oral argument will be made
for these case on May 12 . 1999. before the 8th Circuit in St. Louis.

John Glen Keelin" v. Willard Ford, et ai, USP Leavenworth
Plaintiff alleges use of excessive force by defendants. A significant amount of time is being
devoted to this civil action wherein the plaintiff is represented by the Washburn Law Clinic in
Topeka.
Trial is scheduled for June 14.. 1999.

CRIMINAL MATTERS
u.S. v. Riddle and

Blac~

USP Florence
Inmate Black pleaded guilty to aggravated assault and was sentenced to 73 months consecutive.
Inmate Riddle changed plea to guilty of Voluntary Manslaughter and 4 counts of~ssault on staff
and is set for sentencing May 11.

(.

u.S. v. McElhiney, USP Leavenworth
The trial date has now been changed to June 21, 1999 in order to allow additional time to
interview prospective witnesses. The Regional Counsel .. SIS., USP Leavenworth Attorney, Judge
Rogers and his law Clerk all met in an etfort to resolve issues concerning security concerns and
interview of prospective witnesses USP Marion and FLF . ADMAX ..

u.S. v. Thomas, FPC Florence
See Hearings and Trials.

u.s. v. Reyes-Lopes, Case No. 99-106, FeI Waseca
An indictment cam down on the assault case from Fel Waseca. This stemmed from a middle of
the night assault on another inmate by striking him in the face with an iron.

u.S. v. Amaya-Martinez, Case No. 99-10022, Fel Pekin
See Hearings and Trials.

u.S. v. Zepeda, Case No. 98-10073, FCI Pekin
See Hearings and Trials.

PERSONNEL ISSUES

3775

('

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

Tower II, 8th Floor
-IO() Stale Street
Kunsas City. KS

66101-2421

June 9, 1999

(
~~ ...

MEMORANDUM FOR CHRISTOPHER ERLEWINE.
ASSISTANT DIRECTOR/GENERAL COUNSEL
GENERAL COUNSEL AND REVIEW DIVISION

FROM:

JOHN R. SHAW. Regional CouRseI

SUBJECT:

Monthly Report (May. 1999)

LITIGATION, CLAIMS, AND ADMINISTRATIVE REMEDY STATISTICS
LITIGATION:

inst
NCR

nurn
34

hc

ftc

biv

25

3

4

oth
2

ans
29

Total cases for Calendar Year 269

.,

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 filed
OTH - Number of other actions filed, e.g., mental health, mandamus
ANS • Number of litigation reports completed

3807

pen

cld

hIt

504

33

4

set

awd

North Central Region
Regional Counsel Monthly Report
May, 1999

Page 2
PEN • Number of cases pending
CLD· Number of ca•• closed
HIT· Number of'hearlnp or trials (Include In narrative)
SET • Number of settlements (Include In narrative)
AWD • Numt.r of Awardl '(Include In narrative)

ADMINISTRATIVE CLAIMS:
JAN

FEB

MAR

APR

67

70

99

88

ADMINISTRATIVE

(
"

JAN

188

FEB
208

MAY JUN
77

JUL

AUG

SEP

OCT

NOV

DEC

JUL

AUG

SEP

OCT

NOV

DEC

~MEDIES

MAR

APR

228

215

MAY JUN
207

Total for Calendar Year 1046

FREEDOM OF INFORMATION ACTIPRIVACY ACT REQUESTS

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

FOIA

28
7]

5
13
30

2

0

43

Total for Calendar Year 361

Backlog represents those requests which have not been responded to within the twenty work days
target set by DOJ.
• Awaiting' records ,from archiyes. "
\

.

ADVERSE DECISIONS

3808

"

(

North Central Region .
Regional Counsel Monthly Report
May, 1999
Page 3

None.
SETTLEMENTS OR JUDGMENTS
None.
DECISIONS OF INTEREST
Ballato v. Romine, et al., Case No. 99-552, FC) Sandstone
Plaintiff alleges that he slipped on ice buildup and fell by J Unit causing severe injury to his
back and head. Plaintiff alleges staff inaction to maint~in the sidewalk caused the slip and fall"
and that he received inadequate medical treatment. Order issued on May 3, 1999 dismissing
case.
Moore v. Keohane, et al., Case No. 98-3487-CV-S-RGC-H, MCFP Springfield
Petitioner requested an immediate kidney transplant or a compassionate release so that he could
arrange for a kidney transplant. Case dismissed on May 11. 1999, with a partial grant, whereas
the Court directed that the petitioner be seen by the MCFP contract Transplant Specialist for
evaluation.
Massey v. Wheeler et ai, Case No. 98-1348, FC( Pekin
Bivens action alleging that staff hampered the inmate's use of unmonitored telephone lines and
opened and read his legal mail. The inmate's attorney joined as a plaintiff" alleging that the
actions of staff violated his constitutional rights as well. Case dismissed due to the inmate's
failure to exhaust administrative renledies.
Gerald M. Kelly v. Mr. Scott, et al., Case No. 95-3101 (10th Cir. No•• 99-3132)
USP Leavenworth
The court granted defendant's Motion for Summary Judgment in this case on February 23, 1998
wherein the plaintiff a1leged a violation of his constitutional rights when a piece of glass which
was broken by a staff member went into his eye. He further alleged that he was subsequently
denied medical treatment and as a result he sustained a permanent eye injury. The plaintiff filed
a motion for reconsideration and recusal. These motions were denied on March 24'1 1999. The
plaintiff filed his notice of appeal on May 3. 1999.

(

Duarte v. BOP, Case No. 95-69-GPM (S.D. IIlinois)(USP Marion)
Plaintiff was appointed counsel to assist in this civil matter that has been set for trial. Counsel
made arrangements to visit at ADX Florence with the plaintiff and several witnesses. He became

3809

North Central Region
Regional Counsel Monthly Report
May, 1999
Page 4
verbally abusive to visiting room staff and then he tenninated the remainder of his visits. He
sought to withdraw from the case. ADX Florence staff provided information to the AUSA to
facilitate his response to these allegations. The Warden at the ADX wrote a lengthy letter to
Judge explaining what occurred. On March 31st.. the Court granted the attorney's request to
withdraw.
Embrey v. Parole Commission, et al., Case No. MC3-97-18, NCRO
Plaintiff had been erroneously released. When he was taken back into custody, he sought and
received bail. After the Supreme Court refused to review the en banc opinion of the 8th Circuit
which in essence re-instated his two consecutive 20 year sentences, his bond was revoked. The
order was moot as plaintiff and his half-brother had been arrested on unrelated charges in
Missouri (including felon in possession of a firearm) and plaintiff was back in federal custody.

PENDING CASES OF INTEREST
Aldape v. Sosa, et aI., Case No. 98-WM-2791, ADX Florence
Plaintiff claims he was coerced into assaulting another inmate and various other constitutional
violations by individual defendants. Seeks $500.. 000 from each defendant as well as $1 ..000,000
in punitive damages . jointly and severally.
Moore v. Cooksey, et al., Case No. 98-WM-2321, ADX Florence
Plaintiff claims violations of his 141h Amendment rights of due process. He claims that he was
illegally placed in the ADX Control Unit.. and that falsified documents were used to justify the
placemen~. He also alleges that he falls under the Americans With Disabilities Act (ADA)
because of his medical condition and that as a result he was not to be placed in the Control Unit
as inmates with "major physical disabilities" cannot be placed in the Control Unit.

\

Sandefur v. Pugh, Case Nos. 98-1377 and 98-1400 (lOth Circuit), ADX Florence
In this habeas action.. District Court dismissed Application for petitioner's request for prior
custody credit under 18 USC § 3585(b). Petitioner requested credit for time spent on a federal
writ of habeas corpus ad prosequendum [13 months] from the State of Nevada. Petitioner was
serving a state sentence at the time . received a concurrent federal sentence. and returned to the
state. State sentence continued to operate while petitioner was on writ. District Court dismissed
based upon the plain language of § 3585(b) which precludes credit if it has already been credited
against another sentence. Petitioner appealed. Tenth Circuit appointed Federal Public
Defender's Office to represent inmate and requested parties address whether § 3585 operates to
bar the grant of credit against a prisoner's federal sentence for time spent in custody when the
petitioner already received credit for this time against his state concurrent sentence.

3810

North Central Region
Regional Counsel Monthly Report
May, ]999
PageS

(

Wilson v. Herrera, Case No. 99-K-765, FCI Florence
In this habeas action, the inmate claims he is being denied pretrial jail credit on his new law
sentence. He claims that his old law sentence in being computed in a manner to eliminate his jail
credit on the new law sentence.
Merritt v. PUlh, Case No. 97-Z-2118, ADX Florence
Habeas petition wherein inmate seeks to challenge very old disciplinary actions. Court allowed
him to amend petition after response already filed by government. Petitioner now seeks to
challenge 62 separate disciplinary actions between 1988 and 1991. We renewed our objections
to the amendment and argued prejudicial delay and failure to exhaust.

(

Williams v. Pitt & Bowens, Case No. 96-597-JPG, FCI Greenville
Magistrate Judge issued a Proposed Findings of Fact and Conclusions of Law in this case which
arose out of the 1995 Disturbance at FCI Greenville. The Magistrate recommended that
judgment be entered against plaintiff because of insufficient proof that the defendants caused the
alleged constitutional violation.

"

RELIGIOUS FREEDOM RESTORATION ACT CASES
None.

HEARINGS AND TRIALS

(

Merritt v. Hawk.. et al., Case No. 95-Z-2653, ADX Florence
Continuation of TRO hearing initially set for April. Inmate, who is represented by appointed
counsel, appeared via video conference. Plaintiff attempted to call four inmate witnesses, all of
whom refused to exit their cells to participate in the hearing. Plaintiff called two staff as
witnesses and presented the plaintiff himself. Three hours had elapsed and the court continued
the matter until July 16" when it will address the issue of the inmates who refuse to comply with
the subpoenas and the defendants will present their case. Plaintiff claims his life is in danger in
general population at ADX. He was forcefully moved from SHU to General Population in
February 1999.
Tumer v. USA, Case No. 97-S-1340, ADX Florence
The Magistrate Judge ordered a hearing into plaintiffs motion for TRO (without allowing
government to respond in writing). Plaintiff claimed his life was in danger because he was being
poisoned by ADX staff. Several witnesses were presented to rebut plaintiffs contentions at the
May 24, 1999 hearing. After a 3.5 hour hearing" the Magistrate took the matter under

3811

(

North Central Region
Regional Counsel Monthly Report
May. 1999
Page 6 .
advisement. A recommendation favorable to the government was issued on May 25. 1999.
USA v. Francis and Haney, attempted escape from USP Florence
Motions hearing held May 18. 1999. Coun reversed itself on several discovery issues from prior
ruling. Ordered that BOP provide tour to defense counsel and allow video taping of various
security areas. pursuant to a protective order. The tape is to remain in BOP custody and the BOP
is to draft protective order. Duress defense allowed to proceed.
..
John Glen Keeling v. Willard Ford. et ai, USP Leavenworth
.
Plaintiff alleges use of excessive force by defendants. A settlement conference was conducted.
plaintiff requested restoration of (120) one hundred twenty days of SGT and the expungement of
the incident report which gave rise to the lawsuit. Upon consultation with all relevant parties.
the Warden at USP Allenwood agreed to restoration of (60) sixty days SGT. After providing a
sample settlement agreement to the AUSA. an agreement was drafted to present to Keeling's
attorney. The agreement has been sent to
for the
documents
to be returned.

(
UPCOMING HEARINGS OR TRIALS
U.S.v. Amaya-Martinez, Case No. 99-10022, FCI Pekin
Inmate charged with Trafficking in Contraband. The inmate hid a weapon in the sole of his
tennis shoe. The initial arraignment was held on April 29. 1999 at which time the inmate pled
not guilty and was appointed counsel. The final pretrial hearing is scheduled for June 16. 1999.

CRIMINAL MATTERS
U.S. v. Riddle.
Inmate pleaded
judge declined
assauliing staff.

USP Flore'nce
guilty to voluntary manslaughter ·and 4 counts impeding staff. At sentencing.
to sentence per .the plea agreement and threw out the additional time for
Inmate sentenced to 10 years consecutive to outstanding terms .

.. PERsoNNEL ISSUES

STAFF TRA VEL AND LEA VE

3812

'07--

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

July 9, 1999

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

FROM:

JOHN R. SHAW, Regional Counsel

SUBJECT:

Monthly Report (June, 1999)

LITIGATION, CLAIMS. AND ADMINISTRATIVE REMEDY STATISTICS
LITIGATION:

inst

nurn

he

NCR

48

31

ftc
4

biv

oth

ans

pen

9

4

16

519

Total cases for Calendar Year 317
NUM - Number of total lawsuits filed In the month
Number of habeas corpus actions filed in the reporting period
FTC - Number of FTCA actions filed
SIV • Number of Bivens actions filed
OTH - Number of other actions filed, e.g., mental health, mandamus
ANS - Number of litigation reports completed

He -

i
...

3850

eld
27

hIt

set

1

1

awd

North Central Region
Regional Counsel Monthly Report
June, 1999
Page 2
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)
AWO - Number of Awards (Include in narrative)

ADMINISTRATIVE CLAIMS:
JAN
67

FEB

70

MAR
. 99

APR

MAY JUN

88

77

JUL

AUG

SEP

OCT

NOV

DEC

JUL

AUG

SEP

OCT

NOV

DEC

97

ADMINISTRATIVE REMEDIES
JAN

FEB

MAR

APR

188

208

228

215

MAY, JUN

230

207

Total for Calendar Year 1276

FREEDOM OF INFORMATION ACTIPRIVACY ACT REQUESTS

ACTUAL ON-HAND
ACTUAL RECEIVED
ACTUAL PROCESSED
ACTUAL BACKLOG

PRIVACY
ACT
41
68

FOIA

5
22

53

26
0

1*

Total for Calendar Year 451
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
Shockey v. T.C. Peterson, Case No. 99-247, FCI Sandstone
(

Petitioner alleges he was detennined to be provisionally eligible for 3621 e release in March
1996. A Change Notice to the Crime of Violence Program Statement in May, 1996 added his

\

3851

North Central Region
Regional Counsel Monthly Report
June, 1999
Page 3
offense to a crime of violence. Petitioner was never advised and withdrew from a vocational
program to participate in RDAP. , His sentence was re-computed to reflect the one year off.
Upon transfer, staff reviewed his 3621e eligibility and determined he was not eligible. His
sentence was re-computed to reflect the loss of 3621 e, which petitioner alleged the BOP cannot
do as it is retroactive and violates ex post facto. Petitioner requested the restoration of 3621 e
release. Received an Adverse R&R recommending sentence to be recalculated to show year off.
Petitioner is currently at the MCFP. After consultation with OOC staff it was determined to
restore the Petitioners eligibility, and the Petitioner will deemed eligible.

SETTLEMENTS OR JUDGMENTS

(
"

Strong v. United States, USP Leavenworth
FTCA action for lost/stolen luxury Cartier eyeglasses which were allegedly worth $950.00.
In this case, Strong sought compensation to replace his Cartier prescription eyeglasses that were
stolen from the Health Services Administrator's office in September 1997. Since there were
several concerns about the factual circumstances surrounding the theft of these glasses, (box
containing 13 pairs of inmate glasses were stolen), a decision was made to see whether or not the
inmate would accept the original offer that was given to him in 1997, i.e., replacement glasses
(top of the line) from Duffins Optical. Strong agreed to the offer as long as he would be able to
have his eyes examined in the near future. On June 25, 1999, Strong saw the Duffms
representative to pick his frames and on July 1, 1999, he had his eyes examined. This case was
settled for approximately $221.00 which will be paid out of the U.S. Attorney's Settlement Fund
directly to the optical company .

DECISIONS OF INTEREST
Eoos v. USA, et al., Case No. 99-3002, MCFP Springfield
In this habeas corpus case, petitioner alleged deliberate indifference to his medical needs by not
considering him for a kidney transplant and/or compassionate release. The Court found that
petitioner failed to demonstrate that respondents have been deliberately indifferent to his serious
medical needs because he has failed to demonstrate that he ,is currently eligible for a transplant
through the BOP and is being denied that transplant. The Court also found that while he was
seeking admission into a transplant program, he has not, to date, provided evidence of financial
ability to pay, nor a written letter of acceptance from a transplant program. There is nothing to
preclude petitioner from being accepted into a transplant program, provided that he satisfies the
eligibility requirements. Based on the record at the time, the Court recommended dismissal
without prejudice to his right to pursue these claims in his district of confinement should he find
the need to do so.

3852

(

North Central Region
Regional Counsel Monthly Report
June, 1999
Page 4
Harris v. Hurley, Case No. 98-S-1351, ADX Florence
Inmate filed Habeas challenging the change in his computation (parolable/non/parolable) because
ofD.S. v. Gonzales, 520 U.S. 1. The Magistrate noted petitioner sought conviction reversals and
that 2255 might apply. The Court recommended that the petition be denied on that basis and
noted petitioner's claim of ~ double jeopardy" by having his five year non-parolable sentence
served twice was not valid. Additionally, petitioner's claim that he was denied due process
because he was not given a parole hearing in September 1996 (modified computation chang~d
parole eligibility date from 2001 to 1996) was without merit as the USPC in a hearing in
December 1998, noted new criminal conduct prior to 1996, while in prison and that the
guidelines, as a result thereof, were set at 174-256, months and that possibility that USPC would
exercise its discretion differently in 1996 than it did in 1998 (presumptive parole set at 188
months) was remote. Court also noted the ex post facto argument was without merit, holding
agency may retroactively change its practice to conform to the law without violation of the ex
post facto clause.

(

HudsoD v. Holt, Case No. ,99-X-OOI4, USP Florence
Inmate sought preservation of telephone tape recording of conversation he placed on inmate
telephone system at 'USP. Court provisionally ordered tape be preserved, but advised inmate that
he must file an amended complaint demonstrating that he expects to be a party in a civil action
cognizable by a court of the United States but that he cannot bring the action at this time. In his
response.. plaintiff stated the sole bar to his filing suit for ineffective assistance of counsel was his
incarceration. On June 1, 1999~ the Judge held that was not a sufficient impediment to warrant
an order to preserve evidence under Fed.R.Crim.P. 27. Court directed that BOP must continue to
preserve recording temporarily, however that order will be vacated in sixty days unless inmate
files appeal.
Slaulhter v. J. T. O'BrieD. et al., Case No. 98-C-809-S, FCI Oxford
Petitioner contends that his federal custody is unconstitutional because of deliberate indifference
to his serious medical needs. Specifically, he alleges that he is being denied a proper low fat diet
which is necessary to control his gall bladder problems. Case was originally dismissed without
prejudice on November 27, 1998, for failure to exhaust administrative remedies. Petitioners
appeal was dismissed on January 27, 1999. On April 23, 1999, petitioner moved to reopen as he
had exhausted his administrative remedies. His original complaint was styled as habeas petition
and Bivens complaint. The court reopened the habeas portion of the complaint, but refused to
open the Bivens portion of the complaint. Defendant's response argued for dismissal because
the petitioner's allegations involve condition of confinement issues which are not permitted in a
habeas corpus petition. Petitioner was given an extension of time lintil June 25, 1999, to file his
traverse. The Petition was dismissed on June 29, 1999, because the petition did not challenge the
actual fact or duration of his confinement.

3853

North Central Region
Regional Counsel Monthly Report
June, 1999
PageS

PENDING CASES OF INTEREST
Cuoco v. United States and Lt. Rick Marques, Case No. 99-ES-0533, ADX Florence
In this FTCA action, inmate claims staff negligently knocked two books off the bars to his cell,
causfug one to strike the inmate in the arm. He claims to have suffered a physical injury from
this incident and seeks $5000.00 in damages. By order dated June 10'1 Judge Weinshienk sua
sponte dismissed the claim against staff as legally frivolous. Only FTCA against USA will
continue.
Bustillos v. Hawk. et al., Case No. 97-WM-445, ADX Florence
Plaintiff filed a motion for TRO indicating that he has been fed only one meal per day since
February 23, 1999 [date on which he was placed in 4-point restraints for assaulting a staff
member with a "correctional cocktail" in the Control Unit]; that he was assaulted between that
date and February 26, 1999; that he had only the clothes on his back and had been unable to get
them washed; and, that staff were not allowing him access to the Administrative Remedy
Program.
Collins v. LaVallee, Case No. 97-WM-1533, USP Florence
Defendants' motion to dismiss/summary judgment denied due to difference of material fact.
Defendants directed to answer by July 15, 1999. Plaintiff ordered to provide counsel with copy
of his requested discovery by July 1 to allow us to respond or object. Court directed clerk to
attempt to locate counsel for inmate due to fact that much of requested discovery seeks personal
information about the defendants that the inmate should not possess himself. USAO filed
motion for extension of time in which to answer due to possibility that DOJ will take over case.
Fluker v. USA, Case No. 99-M-268, ADX Florence
Bivens action in which inmate claims commissary staff are poisoning the food he purchases in
retaliation for his complaints against other staff. We have received numerous motions from
plaintiff. include "Motion for Injunction to Kathleen Hawk Sawyer to assign One Honest
Kitchen Staff to prepare Plaintiff's Food". several requests for emergency court orders to have
U.S.M.S. obtain samples of plaintiff's drinking water, send blood and urine samples to various
testing laboratories. keep from isolating him on a range, Motion for Injunction directing BOP to
conduct specific medical tests, and several motions for discovery.

~,

Turner v. USA, Case No. 97-S-1340, ADX FlorencelUSP Florence
The Court held a TRO hearing on plaintiff's claim that his life was in danger because he was
being poisoned by ADX staff. A recommendation favorable to the government was issued and

3854

North Central Region
Regional Counsel Monthly Report
June, 1999
Page 6
adopted by the Court. Additionally, Judge denied the government's Motion for Summary
Judgement in underlying case. A favorable R&R which recommended dismissal was adopted in
part and rejected in part. The Court dismissed the medical claims; punitive damage claims;
request for a jury trial; and request for an advisory jury. Court declined to dismiss the
negligence claim, finding that there is a genuine issue of material fact with respect to whether the
defendant's employees had reason to know that placing inmate in the cell with plaintiff would
lead to the altercation which ensued. Court notes that there are additional questions regarding the
causation of plaintiff's injuries (due to his admission that he, not the other inmate, started the
fight) which cannot be resolved on summary judgement.

(

..

Leonard Peltier v. J. W. Booker, Warden, Case No. 99-CV-3194, USP Leavenworth
Petition for writ of habeas corpus wherein Peltier's attorney alleges (1) that the USPC's decision
to delay Peltier's parole is arbitrary, capricious" erroneous, unsupported by the evidence, and
complete inconsistent with the position the United States has taken in judicial proceedings
concerning Peltier's conviction; (2) the Commission failed to give adequate weight in
considering Peltier's parole to dangerous, chronic and deteriorating physical condition he suffers
that cannot be adequately be treated medically while he is incarcerated; and (3) the failure of the
U.S. to release him on parole is based on animus and cites erroneous information.
Walls v. Reno, et al., Case No. 98-658-WLB, FCI Greenville
Inmate alleges a violation of the Administrative Procedures Act in that BOP staff improperly
interpreted the provisions of Program Statement 5100.06. Specifically, he alleges that he is
entitled to be reclassified after the expiration of one sentence via mandatory release even though
he was not physically released from custody. Walls alleges that a 100 level incident report
during service of the prior sentence should not be used against him for purposes of classification
during service of the current sentence. Walls is seeking to be reclassified with an intent to be
sent to a FPC from the FCI.
Shepeck v. J.T. O'Brien, Case No. 99-164, FCI Oxford
Petitioner alleges that the BOP erroneously designated his state and federal sentences as
consecutive, rather than concurrent" and requests 260 days credit toward his federal sentence.
The Court issued the Order based upon its belief that when a sentencing court does not indicate
whether a federal sentence should be served consecutively to or concurrently with a
yet-to-be-imposed state sentence. the BOP has the discretion to designate the state correctional
facility as the place of confinement for the federal sentence, thus allowing the state and federal
sentences to run concurrently. In essence, the court is asking the BOP to make a nunc pro tunc
designation in accordance with Barden.

\,.

3855

(

North Central Region
Regional Counsel Monthly Report
June. 1999
Page 7
Henson v. Schomig, Case No. 99-1094, FCI Pekin
Petitioner requests placement in a federal facility to complete service of his state and federal
sentences. The inmate is currently housed in the Illinois Department of Corrections. Due to the
nature of the request and the potential affect on the BOP, a motion to intervene on behalf of the
govenunent was filed and granted.
Paulsen v. Debra Alleman. et al., Case No. 98-1403, NCRO/FCI Sandstone
Plaintiff alleges violations of his Fifth, Sixth, and Eighth Amendment rights for a multitude of
. issues (medical, failure to release medical records, FRP, inappropriate job assignment, lack of
time to prepare legal work, staff failing to provide him unmonitored legal calls. falsified incident
reports, falsified investigations, lack of impartiality by DHO, among other issues).
Representation involves 40+ staff members at various locations throughout the BOP.

(

Good Voice Flute v. United States of America, Case No. 99-874, FPC DuluthlFCI
Sandstone FTCA action alleging that the medical treatment of a heart attack provided to irunate
and oth,ers
Harold Good Voice Flute
Sandstone in 1996.

RELIGIOUS FREEDOM RESTORATION ACT CASES
Patel v. Wooten, Case No. 96-M-0286, FCI Florence
RFRA case challenging religious diet at FCI Florence. The four individual defendants have
received outside counsel and the plaintiff was appointed counsel. This case was originally
dismissed by the District Court under RFRA, the IO'h Circuit Court of Appeals reversed and
remanded, with statement that RFRA was unconstitutional. Plaintiffs response was extended,
pending attempts to settle (inmate wanted guarantee he would be allowed to purchase protein
powder and bean pies from commissary at any BOP facility).
Settlement cannot be
accomplished because it is against national policy on protein powder.

HEARINGS AND TRIALS

(

Oxendine v. Pennington, Case No. 98-M-1352, FCI Florence
lrunate claimed expe'rimental surgery being done on his finger and sought to prevent transfer to
another facility. A hearing on a motion for TRO was held via video-conference wherein the
inmate appeared to drop claims of medical experimentation. BOP offered testimony of two

3856

~
, OJ

(

North Central Region
Regional Counsel Monthly Report
June, 1999
Page 8
witnesses, one stating that no plans existed to transfer plaintiff (and that plaintiff has asked to be
considered for transfer in September team meeting), and one to explain the medical issues
(plaintiff amputated a portion of his right index finger. staff reattached, minor problem with
small portion of skin on graft area becoming necrotic, removed at local hospital without
incident). The Judge adopted R&R and denied plaintiff's motion for TRO.

UPCOMING HEARINGS OR TRIALS
Okai v. Verfurth, et al., Case No. 96-47, FCI Greenville (1995 Disturbance case)
This Bivens action alleging 'excessive use of force during the aftermath of the 1995 disturbance
was set for a jury trial to begin on Wednesday, July 28, 1999. Paul Brown and Jesselyn Brown
from Main Justice will be litigating the case.

(

McCoy v. Nelson, et al., Case No. 96-790, FCI Greenville (1995 Disturbance case)
A hearing has been set for July 16, 1999 at 8:30 AM to resolve the pending Plaintiff's Motion to
Compel the Production of Documents. FCI Greenville was served with a subpoena for
documents in this excessive use of force action. Some documents were provided, while others
were withheld.
Rodriguez. v Wise, Case No. 99-128 (MJDIRLE), FMC Rochester
Inmate with INS detainer was diagnosed with cancer. Because treatment period would exceed
period of incarceration, treatment was postponed. Inmate filed a habeas action alleging
deliberate indifference. U.S. District Court ordered BOP not to remove irunate from FMC and
ordered the INS to pay for treatment while the irunate remained in INS custody at FMC. Hearing
will be held on July 15, 1999 to allow BOP to transfer to inmate's custody to INS.
U.S. v. Fong Vang, FCI Oxford
Inmate is charged with possession of a weapon. The trial is scheduled for July 12, 1999.

V.S. v. McElhiney, USP Leavenworth
. issues arise in connection with the prosecution of irunate
trial date is July 19, 1999, unless postponed again. Several Sealed
orders have been sent to the warden's office and Legal Office '
for delivlerv
Each
has been
delivered by legal staff.

\,

3857

(

North Central Region
Regional Counsel Monthly Report
June, 1999
Page 9

u.s. v. Reyes-Lopes, Case No. 99-106, FCI Waseca
An indictment came down on the assault case from FCI Waseca This stemmed from a middle of
the night assault on another inmate by striking him in the face with an iron. Trial set for July 26,
1999.

CRIMINAL MATTERS
u.S. v. Amaya-Martine~ Case No. 99-10022, FeI Pekin
Inmate charged with Trafficking in Contraband. The inmate hid a weapon in the sole of his
tennis shoe. The initial arraignment was held on April 29, 1999 at which time the inmate pled
not guilty and was appointed counsel. The final pretrial hearing was held on June 24, 1999.
Inmate pled guilty to these charges and sentencing is scheduled for October 15, 1999.

u.s. v. Fong Vang, FCI Oxford
See above.

u.s. v. McElhiney, USP Leavenworth
See above.

u.S. v. Alvarado, USP Leavenworth
Inmate Alvarado pled guilty on April 4, 1999 to possession of a weapon in violation of 18 U .S.C.
Section 1791(a)(2) was sentenced on June 21, 1999 to a (30) thirty month consecutive sentence,
a $100.00 Special Assessment and 3 years supervised released.

u.s. v. Reyes-Lopes, Case No. 99-106, FCI Waseca
See above.

PERSONNEL ISSUES
Chris Synnsvoll joined the FCC Florence staff as an attorney.
NeRO Honor Attorney Lisa Eckl resigned from the BOP.
Honor Attorney Tiffany Spann comes on board July 18, 1999.

(

STAFF TRAVEL AND LEAVE

3858

(

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

Tower 1/, 8th Floor
400 State Street
Kansas City. KS 66101-2421

August 9, 1999

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

FROM:

JOHN R. SHAW. Regional Counsel

SUBJECT:

Monthly Report (July, 1999)

LITIGATION, CLAIMS, AND ADMINISTRATIVE REMEDY STATISTICS
LITIGATION:

inst

nurn

NCR

32

hc
17

ftc
3

biv

oth

ans

pen

6

6

19

524

Total cases for Calendar Year 319
NUM - Number of total lawsuits flied In the month
Number of habeas corpus actions filed In the reporting period
FTC - Number of FTCA actions flied
SlY - Number of Bivens actions flied
OTH - Number of other actions flied. e.g.• mental health. mandamus
ANS - Number of litigation reports completed

He -

3929

cld
27

hit

set

awd

10

0

0.00

(

North Central Region
Regional Counsel Monthly Report
June, 1999
Page 2
PEN - Number of cases pending
CLO - Number of cases closed
HfT - Number of hearings or trials (Include In narrative)
SET - Number of settlements (include In narrative)
AWD - Number of Awards (include in narrative)

ADMINISTRATIVE CLAIMS:
JAN
67

FEB
70

MAR
99

APR
88

MAY

77

JUN
97

JUL
68

AUG

SEP

OCT

NOV

DEC

JUN
230

JUL
192

AUG

SEP

OCT

NOV

DEC

ADMINISTRATIVE REMEDIES
JAN
188

FEB
208

MAR
228

APR
215

MAY
207

Total for Calendar Year 1468

(

FREEDOM OF INFORMATION ACTIPRIVACY ACT REQUESTS

ACTUAL
ACTUAL
ACTUAL
ACTUAL

ON-HAND
RECEIVED
PROCESSED
BACKLOG

PRIVACY
ACT
34
35
49
9

FOIA
4
3
10
0

Total for Calendar Year 486
Backlog represents those requests which have not been responded to within the twenty work days
target set by DOJ.

ADVERSE DECISIONS
Robinson v. J.W.Booker, Atchison. v. J. W. Booker, Broderick v. J. W. Booker, Gentle v.
Booker. and Thompson v. Booker, USP Leavenworth, District of Kansas
U.S. District Court Judge, Richard D. Rogers recently decided that the BOP cannot use
court-imposed sentence enhancements to deny inmates early release eligibility under 18 U.S.c. §
3621 (e)(2)(B). The court ordered the BOP to reconsider the inmates for early release. This case

3930

(

North Central Region
Regional Counsel Monthly Report
June, 1999
Page 3
is in line with previous decisions being appealed to the Tenth Circuit in Scroger, Ward, and
Guido. An appeal brief was filed for these cases this month.
Grove v. Bureau of Prisons, FPC Duluth, District of Minnesota
U.S. District Court Judge James Rosenbaum held that the BOP was required to apply the old
Crimes of Violence program statement to an inmate who had not even entered the residential
drug treatment program at the time of filing. The judge held that the inmate had expressed
sufficient intent to enter the program and should thus benefit from the rules in place at the time
he filed his lawsuit. NCRO Legal is requesting appeal authorization through OGC.
Anderson v. Tenenbaum, RCH Rochester, District of Minnesota
u.s. District Court Judge Ann Montgomery held that the provisions of28 C.F.R. § 549.43 were
constitutionally inadequate because they did not satisfy due process. She found that FMC
Rochester staff must now allow for an administrative hearing before an impartial medical
decision maker when a person committed to the custody of the Attorney General has been
administered psychotropic medication for a period exceeding twelve months. These hearing will
take place in addition to the monthly monitoring program that exists in current BOP policy.
NCRO Legal is not seeking an appeal of this ruling.
SETTLEMENTS OR JUDGMENTS
Stapleton v. O'Brien, FCI Oxford, Seventh Circuit
Stapleton was denied early release pursuant to § 3621(e)(2)(B) because a prior state conviction
for Reckless Endangerment was found to be an "aggravated assault." While the BOP prevailed at
the district court level, upon further review it was discovered that at the time of the inmate's
conviction the state had an "aggravated battery" statute in place. Under the latest protocol for
reviewing prior convictions from OGC, if a state has an aggravated battery or assault statute and
the inmate was convicted of some other crime, he should not be found to have a prior aggravated
assault. As a result of these circumstances the inmate was made eligi~le for early release.

DECISIONS OF INTEREST

(

Blanche Dyer v. U.S.A., MCC Chicago, N.D.I1linois
An inmate who was at MCC Chicago for two weeks in 1989 filed a tort claim with the U.S.
Marshals Service regarding her medical treatment as a pre-trial inmate. U.S. District Court in
Iowa granted summary judgment for the government, but the Eighth Circuit reversed and
remanded to the U.S. District Coun for the N.D. Illinois. District Court Judge dismissed case

3931

North Central Region
Regional Counsel Monthly Report
June, 1999
Page 4
for lack of prosecution.

PENDING CASES OF INTEREST
Collins v. LaVallee, USP Florence, District of Colorado
Defendants' motion to dismiss/summary judgment denied due to difference of material fact.
USAO filed motion for extension of time in which to answer due to possibility that DOJ will
take over case. The Government has withdrawn representation authority for three of the four
named defendants. DOJ also withdrew on the fourth defendant, however" procured private
counsel at government expense for that defendant. This case involves alleged improper use of
force against the plaintiff. Investigation continues.
Chong-Won Tai v. U.S., et ai, FCI Pekin, N.D. Illinois
FTCA action filed in the Northern District of Illinois steIl1It:ling from a bus accident in May of
1996. Representation requests are being completed for the individual defendants so that a
motion to remove them from the case can be filed.
Massey and Otten v. Helman, et ai, FCI Pekin, C.D. Illinois
Appeal of class action medical case. Case has been set for oral argument before the Seventh
Circuit on Wednesday, September 8. 1999 at 9:30 a.m ..
Clark v. Keohane, et al., USMCFP Springfield" W.O. Missouri
Plaintiff alleged that he suffered from chronic myelogenous leukemia and that he required an
autologous bone marrow transplant in order to survive.
David Crocker, et ale v. T. Durkin, et aI., USP Leavenworth, District of Kansas
In this Bivens-styled action, the four plaintiffs allege that defendants actions were unjust and
arbitrary in connection with decisions made concerning religious issues involving the Nation of
Islam.

Turner v. USA, USP Florence, District of Colorado
Failure to protect case arising from inmate assault at USP. Government's Motion to dismiss
denied last month. Draft answer provided to USAO. We have encountered unusual difficulties in
the defense of this matter. One of the involved staff has recently pleaded guilty to violation of
civil rights.
Sousa v. U.S.A., et al., USMCFP Springfield, W.O. Missouri
Plaintiff alleged that medical professionals mistakenly diagnosed his medical condition and

3932

North Central Region
Regional Counsel Monthly Report
June, 1999
Page 5
removed his right lung pursuant to an unnecessary medical procedure.
Boyce v. Cooksey, ADX Florence and NCRO, District of Kansas
Christopher Boyce, convicted spy, prison escapee, and bank robber, has sued Mr. Hershberger
and Mr. Cooksey after being designated to ADX Florence. He was placed in the ADX for both
safety and security reasons. The BOP has filed a motion for summary judgment and opposing
counsel continues to find reasons to file additional or supplemental responses. The latest
supplement seeks ·to move Boyce because a management variable was not approved for Boyce in
a timely manner.
Barnett v. Knowles, USP Florence, District of Colorado
Bivens action alleging a defendant spoke to an inmate improperly and that staff member was
subsequently disciplined. Plaintiff asserts he was retaliated against by the other defendants and
that this retaliation took the form of assault. Plaintiff filed a response to the defendants' motion
to dismiss. Previously granted representation for certain of the defendants is being reconsidered
by DOJ.

co

Bracciodieta v. Holt, USP Florence, District of Colorado
TRO hearing held on July 22, via video-conferencing. Plaintiff requested to not be celled with
two other inmates, be given protective custody status and be transferred. Adverse R and R
issued on August 3, 1999, in which the Magistrate Judge found that the plaintiff had met the
burden of proof for the issuance of injunctive order. Magistrate recommended that the plaintiff
be housed alone until his transfer. Objections to the recommendation to be filed.
RELIGIOUS FREEDOM RESTORATION ACT CASES
Kikumura v. Hurley, FCI Florence" District of Colorado
RFRA case involving denial of pastoral visit at ADX. DOJ paying for outside counsel. Outside
counsel filed motion to. dismiss claims and status conference was held. Court allowed plaintiff
until July 1 to file response to Motion to Dismiss. DOJ appeared on behalf of the defendants in
their official capacities" arguing that even under the RFRA standard, the actions of the defendants
were appropriate.
HEARINGS AND TRIALS

(.

USA v. Reyes-Lope~ FeI Waseca, District of Minnesota
Inmate on inmate assault prosecution. While there was clear evidence that the defendant stuck
the victim with an iron, the jury returned a not guilty verdict after only two hours. Interviews of
jurors revealed that they believed the defendant acted in self-defense even though the victim was
sleeping at the time of the attack. Matt Tveite provided assistance at trial.

3933

North Central Region
Regional Counsel Monthly Report
June, 1999
Page 6
USA v. McElhiney, USP Leavenworth, District of Kansas
Drug conspiracy prosecution of Aryan Brotherhood inmates. Jury deadlocked at 10-2 with only
two jurors finding the inmate not gUilty. Mary Ellen Doucette and Rick Winter provided
substantial assistance to the U.S. Attorney's Office in this matter. Additionally, Paul Pepper and
Jenifer Grundy spent plenty of time coordinating witness interviews. A new trial will take place
in September 1999.
UPCOMING HEARINGS OR TRIALS
Okai v. Verfurth, et aI., FeI Greenville, S.D. Illinois
This Bivens action alleging excessive use of force during the aftermath of the 1995 disturbance is
set for jury trial on Thursday, August 26'1 1999. District Court Judge Murphy has ordered eleven
inmates from several BOP institutions to be transferred to the Southern District of Illinois to
testify on OkaPs behalf.

c

United States v. David Michael Sahakian, United States v. Joseph L. Tokash, United Sates v.
Rodney Allen Dent~ United Sates v. Scott Lee Martin, United Sates v. Mitchell E. Kolb, United
Sates v. John Derel Usher,USP Marion, Southern District of Illinois.
An initial appearance and arraignment was held in the above cases on July 7, 1999. The above
named inmates are charged with possession of a prohibited object in violation of 18 U.S.C. §
1791(a)(2). Jury trial is set for 9:00 AM, September 13, 1999 before Chief U.S. District Judge J.
Phil Gilbert in Benton, IL.

CRIMINAL MATTERS
USA v. Washington, FCI Pekin, C.D. Illinois
Inmate indicted under Title 18 U.S.C. § 1791(a)(2). Initial arraignment set for August 19, 1999.

United States v. David Armstrong . USP Florence, District of Colorado
On July 13, 1999, a former correctional officer pleaded guilty to a one count information
charging him with conspiracy to violate the civil rights of inmates in violation of 18 USC § 241.
Sentencing range between 51 and 63 months. Sentencing set for mid-September, however, we
anticipate it will be continued. This case has received some media coverage and impacted the
defense of several on-going civil cases.

(

3934

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

Tower II. 8th F/oor
State Street
Kansas City. KS 66101-2421

-I()()

August 9. 1999

(

MEMORANDUM FOR CHRISTOPHER ERLEWINE.
ASSISTANT DIRECTOR/GENERAL COUNSEL
GENERAL COUNSEL AND REVIEW DIVISION

FROM:

JOHN R. SHAW. Regional Counsel

SUBJECT:

Monthly Report (July, 1999)

LITIGATION, CLAIMS, AND ADMINISTRATIVE REMEDY STATISTICS
LITIGATION:

inst
NCR

num

hc

ftc

biv

oth

ans

pen

cld

hit

set

awd

32

17

3

6

6

19

524

27

10

0

0.00

Total cases for Calendar Year 319

(
",

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 flied
SIV • Number of Bivens actions flied
OTH - Number of other actions flied. e.g •• mental health. mandamus
ANS - Number of litigation reports completed

3899

North Central Region
Regional Counsel Monthly Report
June. 1999
Page 2
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)

ADMINISTRATIVE CLAIMS:
JAN
67

FEB
70

MAR
99

APR
88

MAY
77

JUN
97

JUL
68

AUG

SEP

OCT

NOV

DEC

JUN
230

JUL
192

AUG

SEP

OCT

NOV

DEC

ADMINISTRATIVE REMEDIES
JAN
188

FEB
208

MAR
228

APR
215

MAY
207

Total for Calendar Year 1468

c:. .

FREEDOM OF INFORMATION ACT/PRIVACY ACT REQUESTS

ACTUAL
ACTUAL
ACTUAL
ACTUAL

ON-HAND
RECEIVED
PROCESSED
BACKLOG

PRIVACY
ACT
34
35
49
9

FOIA
4
3
10
0

Total for Calendar Year 486
Backlog represents those requests ",,"hich have not been responded to within the twenty work days
target set by DOJ.

ADVERSE DECISIONS

(

Robinson v. J. W.Booker. Atchison. v. 1. W. Booker, Broderick v. J. W. Booker. Gentle v.
Booker, and Thompson v. Booker. USP Leavenworth. District of Kansas
U.S. District Court Judge. Richard D. Rogers recently decided that the BOP cannot use
court-imposed sentence enhancements to deny inmates early release eligibility under 18 U.S.C. §
3621 (e)(2)(B). The court ordered the BOP to reconsider the inmates for early release. This case

3900

(

North Central Region
Regional Counsel Monthly Report
June~ 1999
Page 3
is in line with previous decisions being appealed to the Tenth Circuit in Scroger. Ward, and
Guido. An appeal briefwas filed tor these cases this month.
Grove v. Bureau of Prisons. FPC Duluth. District of Minnesota
U.S. District Court Judge James Rosenbaum held that the BOP was required to apply the old
Crimes of Violence program statenlent to an inmate who had not even entered the residential
drug treatment program at the time of filing. The judge held that the inmate had expressed
sufficient intent to enter the program and should thus benefit from the rules in place at the time
he filed his lawsuit. NCRO Legal is requesting appeal authorization through OGC.

(

Anderson v. Tenenbaum, RCH Rochester. District of Minnesota
U.S. District Court Judge Ann Montgomery held that the provisions of 28 C.F.R. § 549.43 were
constitutionally inadequate because they did not satisfy due process. She found that FMC
Rochester staff must now allow for an adnlinistrative hearing before an impartial medical
decision maker when a person cOlnmitted to the custody of the Attorney General has been
administered psychotropic medication for a period exceeding twelve months. These hearing will
take place in addition to the monthly monitoring program that exists in current BOP policy.
NeRO Legal is not seeking an appeal of this ruling.
SETTLEMENTS OR t'UDGMENTS
Stapleton v. O'Brein .. FCI Oxford. Seventh Circuit
Stapleton was denied early release pursuant to § 3621(e)(2)(B) because a prior state conviction
for Reckless Endangennent was found to be an "aggravated assault. n While the BOP prevailed at
the district court level~ upon further review it was discovered that at the time of the inmate's
conviction the state had an U aggravated battery" statute in place. Under the latest protocol for
reviewing prior convictions from OGC. if a state has an aggravated battery or assault statute and
the inmate was convicted of some other crime. he should not be found to have a prior aggravated
assault. As a result of these circunlstances the inmate was made eligible for early release.

DECISIONS OF INTEREST

(

Blanche Dyer v. U.S.A., MCC Chicago, N.D.lllinois
An inmate who was at MCC Chicago for two weeks in 1989 filed a tort claim with the U.S.
Marshals Service regarding her medical treatment as a pre-trial inmate. U.S. District Court in
Iowa granted summary judgment for the government, but the Eighth Circuit reversed and
remanded to the U.S. District Coun for the N.D. Illinois. District Court Judge dismissed case

3901

('.

North Central Region
Regional Counsel Monthly Report
June, 1999
Page 4
for lack of prosecution.

PENDING CASES OF INTEREST
Chong-Won Tai v. U.S., et ai, FCI Pekin, N.D. Illinois
FTCA action filed in the Northern District of Illinois stemming from a bus accident in May of
1996. Representation requests are being completed for the individual defendants so that a
motion to remove them from the case can be fi led.
Massey and Otten v. Helman, et al. FCI Pekin, C.D. Illinois
Appeal of class action medical case. Case has been set for oral argument before the Seventh
Circuit on Wednesday. September 8.. 1999 at 9:30 a.m ..
Clark v. Keohane, et ai., USMCFP Springfield, W.O. Missouri
Plaintiff alleged that he suffered from chronic myelogenous leukemia and that he required an
autologous bone marrow transplant in order to survive.
David Crocker, et al. v. T. Durkin. et al.. USP Leavenworth'l District of Kansas
In this Bivens-styled action, the four plaintiffs allege that defendants actions were unjust and
arbitrary in connection with decisions made concerning religious issues .involving the Nation of
Islam.
Sousa v. U.S.A., et aI., USMCFP Springfield.. W.O. Missouri
Plaintiff alleged that medical professionals mistakenly diagnosed his medical condition and
removed his right lung pursuant to an unnecessary medical procedure.
Boyce v. Cooksey, ADX Florence and NCRO, District of Kansas
Christopher Boyce, convicted spy, prison escapee, and bank robber, has sued Mr. Hershberger
and Mr. Cooksey after being designated to ADX Florence. He was placed in the ADX for both
safety and security reasons. The BOP has filed a motion for summary judgment and opposing
counsel continues to find reasons to file additional or supplemental responses. The latest
supplement seeks to move Boyce because a management variable was not approved for Boyce in
a timely manner.

(

Bracciodieta v. Holt, USP Florence, District of Colorado
TRO hearing held on July 22. via video-conferencing. Plaintiff requested to not be celled with
two other inmates.. be given protective custody status and be transferred. Adverse Rand R
issued on August 3. 1999. in which the Magistrate Judge found that the plaintiff had met the
burden of proof for the issuance of injunctive order. Magistrate recommended that the plaintiff

3902

North Central Region
Regional Counsel Monthly Report
June" 1999
Page 5
be housed alone until his transfer. Objections to the recommendation to be filed.
RELIGIOUS FREEDOM RESTORATION ACT CASES
Kikumura v. Hurley .. FCI Florence . District of Colorado
RFRA case involving denial of pastoral visit at ADX. DOJ paying for outside counsel. Outside
counsel filed motion to dismiss claims and status conference was held. Court allowed plaintiff
until July 1 to file response to Motion to Dismiss. DOJ appeared on behalf of the defendants in
their official capacities. arguing that even under the RFRA standard .. the actions of the defendants
were appropriate.
HEARINGS AND TRIALS

(

..

USA v. Reyes-Lopez., FCI Waseca. District of Minnesota
Inmate on inmate assault prosecution. While there was clear evidence that the defendant stuck
the victim with an iron" the jury returned a not guilty verdict after only two hours. Interviews of
. jurors revealed that they believed the defendant acted in self-defense even though the victim was
sleeping at the time of the attack. Matt Tveite provided assistance at trial.
USA v. McElhiney. USP Leavenworth. District of Kansas
Drug conspiracy prosecution of Aryan Brotherhood inmates. Jury deadlocked at 10-2 with only
two jurors finding the inmate not guilty.
Mary Ellen Doucette and Rick Winter provided
substantial assistance to the U.S. Attorney's Office in this matter. Additionally. Paul Pepper and
Jenifer Grundy spent plenty of time coordinating witness interviews. A new trial will take place
in September 1999.
UPCOMING HEARINGS OR TRIALS
Okai v. Verfurth. et al.. FCI Greenville. S.D. Illinois
This Bivens action alleging excessive use of force during the aftermath of the 1995 disturbance is
set for jury trial on Thursday . August 26. 1999. District Court Judge Murphy has ordered eleven
inmates from several BOP institutions to be transferred to the Southern District of Illinois to
testify on Okai's behalf.
United States v. David Michael Sahakian. United States v. Joseph L. Tokash, United Sates v.
Rodney Allen Dent. United Sates v. Scott Lee Martin . United Sates v. Mitchell E. Kolb, United
Sates v. John Derel Usher.USP Marion .. Southern District of Illinois.
An initial appearance and arraignment was held in the above cases on July 7. 1999. The above
named inmates are charged with possession of a prohibited object in violation of 18 U.S.C. §
1791(a)(2). Jury trial is set for 9:00 AM .. September 13 . 1999 before Chief U.S. District Judge 1.

3903

North Central Region
Regional Counsel Monthly Report
June.. 1999
Page 6
Phil Gilbert in Benton.. IL.

CRIMINAL MATTERS

.,

USA v. Washington. FeI Pekin. C.D. Illinois
·Infllate indicted under Title 18 U.S.C. § 1791(a)(2). Initial arraignment set for August 19. 1999.
United States VI David Armstrong. USP Florence~ District of Colorado
On July 13, 1999. a former correctional officer pleaded guilty to a one count information
charging him with conspiracy to violate the civil rights of inmates in violation of 18 USC § 241.
Sentencing range between 51 and 63 months. Sentencing set for mid.September. however. we
anticipate it will be continued. This case has received some media coverage.
STAFF TRAVEL AND LEAVE

None scheduled
August 18 - 19

-

Meeting with judiciary in North
Dakota

None scheduled
None scheduled
July 31-August 15

Military Leave

None 'scheduled

...

.o,t-

.'

, None scheduled
None scheduled

(

3904

U.S. Department of Justice
Federal Bureau of Prisons
North Central Regional Office

Tower II. 81h Floor

-100 State Street
Kansas City. KS

66101-2421

September 22. 1999

MEMORANDUM FOR CHRISTOPHER ERLEWINE
ASSISTANT DIRECTOR/GENERAL COUNSEL
GENERAL COUNSEL AND REVIEW DIVISION

FROM:

JOHN R. SHAW, Regional Counsel

SUBJECT:

Monthly Report (August 1999)

LITIGATION, CLAIMS. AND ADMINISTRATIVE REMEDY STATISTICS

LITIGATION:

INST NUM He
38
NCR 58

FTC

BIV

OTH

ANS

PEN

CLD

HIT

3

13

4

34

471

24

2

SET

AWD

Total cases for Calendar Year 407
NUMHCFTC-

BIVOTHANSPENClD-

Number of total lawsuits filed in the month
Number of habeas corpus actions filed in the reporting period
Number of FTCA actions filed
Number of Bivens actions filed
Number of other actions filed. e.g., mental health, mandamus
Number of litigation reports completed
Number of cases pending
Number of cases closed

4364

(

North Central Region
Regional Counsel Monthly Report
August 1999
Page 2

(

HIT •
SET·
AWD •

Number of hearings or trials (include in narrative)
Number of settlements (include in narrative)
Number of Awards (include in narrative)

ADMINISTRATIVE CLAIMS
JAN

FEB

MAR

APR

MAY

JUN

JUL

67

70

99

88

77

97

107

AUG

SEP

OCT

NOV

DEC

AUG

SEP

OCT

NOV

DEC

ADMINISTRATIVE REMEDIES
JAN

FEB

MAR

APR

MAY

JUN

JUL

188

208

228

215

207

230

187

Total for Calendar Year 1655

(

",

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

FOIA

9
23
10
2*

21
54
76
0

ON-HAND
RECEIVED
PROCESSED
BACKLOG

* Awaiting records from archives

Total for Calendar Year 563
Backlog represents those requests which have not been responded to within the twenty
work days target set by DOJ.

ADVERSE DECISIONS
None.
SETTLEMENTS OR JUDGMENTS

4365

North Central Region
Regional Counsel Monthly Report
August 1999
Page 3

None.

DECISIONS OF INTEREST
Bastian v. Mack & Williams, Case No. 95-3535-MLB,.USP Leavenworth
In this Bivens-styled action, the plaintiff alleged that defendants assaulted, robbed and
attempted to murder him on July 7, 1995, while he was confined at USP Leavenworth.
He further alleged that he was denied food or water for six and one half hours and that
on July 12, 1995, the "officers" refused to let him see an "outside" doctor. In granting
the defendants motion for summary judgment, the Court determined that the plaintiff
made no showing of excusable neglect in failing to file a timely response to the
government's motion. Further, the Court determined that the plaintiff failed to overcome
the defense of qualified immunity. For purposes of the current motion, the Court
assumed plaintiff met the initial two-part burden to show defendants violated his
constitutional rights and that the rights were clearly established. However, the
defendants have shown there are no material disputes of material facts that would
defeat their assertion of qualified immunity.
Char Thomasson v. United States. et al., Case 99-3165-JTM, USP Leavenworth
On August 24, 1999. the District Court granted the government's motion to dismiss in
this case where claims were raised under the FTCA, 42 U.S.C. section 1983, and the
Violence Against Women Act, (VAWA) 42 U .S.C. section 13931. Here, the surviving
relatives of inmate Stanley Thomasson alleged defendants negligently allowed other
inmates to consume alcohol and the defendants acted with deliberate indifference to
Thomasson's safety and that his death was directly caused by the negligence of the
employees at USP Leavenworth. The FTCA claims were dismissed because the
administrative claim was not filed until July 9, 1999, which was well after the present
action was filed.
The plaintiff's claim under the VAWA was dismissed on three alternative grounds.
VAWA provides a civil remedy for acts of violence "motivated by gender." The plaintiff's
alleged the decedent's fellow inmates were motivated solely by "his gender orientation."
In reaching this determination, the court stated "had Congress wished to extend
protections accorded in the VAWA to persons who suffered violence based on gender
or sexual orientation, it could have, but did not do so. Second, the plaintiffs made no
showing that the United States has waived sovereign immunity to actions under the
VAWA. Third, the plaintiffs did not show any act of violence by the defendants. The
various constitutional claims against the government were dismissed because the
government has not waived sovereign immunity and the claims against the individual
defendants were dismissed because plaintiffs failed to even attempt to obtain personal

4366

(,

(

(

North Central Region
Regional Counsel Monthly Report
August 1999
Page 4

service within ten months after the filing of the complaint.
Hunter v. Romine, Case No. #98-1542, FCI Sandstone
In this Bivens/FOIA action, the plaintiff alleges Eighth Amendment rights violations.
Plaintiff alleges staff utilized false/inaccurate information in his central file and failed to
remove the information which caused his removal from the RDAP. By order dated
August 18, 1999, defendants granted motion for summary judgement.
Hagerman v. J. T. O'Brien, Case No. 99-C-219-C, FCI Oxford
Petitioner alleged that the respondent erroneously calculated the amount of
presentence credit to which he is entitled for time spent in Canadian custody. The BOP
did not give credit because the time requested was for unrelated Canadian escape and
assault charges. Defendant's response was filed on June 1, 1999, and argued that the
petitioner and the Judge's Order improperly relied on §3585, and that his requested
time in Canadian custody was not in connection with the offense for which the federal
sentence was imposed. Moreover, §3568 explicitly limits the term "offense" to
violations of federal law triable in the federal courts, and no detainer was failed nor is
there evidence that the Canadian offenses were bailable. On August 6, 1999, the
Judge issued an Order dismissing the petition because the time petitioner spent in
custody in Canada was not time spent in connection with the federal charges that
resulted in his federal sentence. Petitioner moved for reconsideration of the order, but
the motion was denied on August 20, 1999.

PENDING CASES OF INTEREST
Winters v. Hawk Sawyer and Pugh, Case No. 99-S-1356, ADX Florence
Plaintiff attempted to bring a class action against the BOP, claiming disregard for the
life and safety of inmates. He claimed that in November 1997, at the ADX, an inmate
seriously assaulted another inmate with a weapon that he made from the light fixture in
his cell. Plaintiff asserted these li.ght fixtures should be removed from all prisons to
prevent similar assaults. He also claimed staff damaged his personal property and
placed foreign objects in his and other inmates' food in retaliation for his claims of
unsafe conditions.
Celestin v. USA, Case No. 98-0-1488, USP Florence
Defendant filed Motion for Clarification and Extension of Time, requesting clarification
regarding the need to submit a brief on the Alien Tort Claims Act (ATCA) or further
briefing on the Federal Tort Claims Act and the Torture Victim Protection Act (lVPA).
Plaintiff was directed to show cause on or before September 7, 1999, why his FTCA

4367

North Central Region
Regional Counsel Monthly Report
August 1999
Page 5

(

medical malpractice claim should not be dismissed for his failure to file a certificate of
review as required by Colorado law. Court had previously ordered the Bureau of
Prisons to allow a physician of the inmate's choosing and expense to conduct
necessary medical file review for purposes of preparing the certificate of review.
Owens v. Hurley, Case No. 98-5-1854, ADX Florence
The Magistrate recommended judgement for the defendants on all claims and a finding
that the matter is frivolous . Inmate filed a rambling complaint appearing to allege that
the defendants were trying to kill him by changing his medication , resulting in him
fainting and cutting his lip. The Magistrate found that the plaintiff fa iled to exhaust his
FTCA claims, and that he failed to file a certificate of review . The Magistrate further
found that the plaintiff failed to state a claim on the remaining allegations , as he merely
made conclusory allegations that are not supported by any evidence.
McElhiney v. Conway, et al. ,Case No. 99-02011, USP Leavenworth
In this case, McElhiney alleged the 15 defendants have conspired to insure a criminal
conviction in the case of USA v. McElhiney , Case No. 98-40083-01 , which is
scheduled for a re-trial on September 27 , 1999, in the District of Kansas .
Gonzalez v. J. T. O'Brien, Case No. 99-C-147-C, FC) Oxford
Plaintiff alleged that the respondent had violated his right to procedural due process by
refusing to allow his wife to visit without first conducting a hearing into the matter. The
Judge has interpreted the denial as an outright ban on family visitation and therefore
.. The
also believes that the
represents a significant and atypical ha
petitioner has received no due process .

Paolone v. United States of America , Case No. 99-C-0022-C, FCI Oxford
Plaintiff alleged medical malpractice with respect to an eye injury sustained on July 31,
1993. Specifically, he alleged that FCI Oxford medical staff delayed necessary medical
treatment, and the delay made it more difficult to subsequently correct his vision
problems . The plaintiff filed a tort claim with the BOP on May 1, 1999. However, it is
alleged that he never received a response to the claim , and it appears as though this
allegation is true. Documentation seems to demonstrate that the NCRO forwarded the
claim to the Central Office back in 1995 for review because there was a possible delay
in care which may have warranted a settlement offer, but the Central Office never
responded . A pre-trial scheduling conference is scheduled for September 10, 1999.

RELIGIOUS FREEDOM RESTORATION ACT CASES
None.

4368

(

,North Central Region
Regional Counsel Monthly Report
August 1999
Page 6

HEARINGS AND TRIALS
Bustillos v. Hilliard, Case No. 90-CV-3040-WDS, ADX Florence
ADX Florence received an order directing that the plaintiff will prosecute this civil matter
at trial via video conferencing. Plaintiff is currently housed at ADX Florence, although
the matters giving rise to this trial occurred at USP Marion. The pre-trial conference
was held via video on August 4,1999. The inmate requested removal of restraints
during the trial. A compromise was reached wherein the inmate's right hand was freed
during the proceedings to facilitate note-taking. The trial commenced on August 31,
1999. Two inmates, George Scalf and David Cota. appeared via video conferencing
from the ADX Control Unit. Several former USP Marion staff members testified. The
matter continued to September 1, 1999, for remaining witnesses and closing
arguments.

(

Merritt v. Hawk Sawyer, et al .. Case No. 95-Z-2653, ADX Florence
A video conference was held on August 6,1999, regarding TRO. Several ADX inmates
were ordered to testify. [Court issued order directing Bureau of Prisons to use
reasonable force if necessary to obtain the inmates appearance.] The inmates
appeared via video from the Control Unit. Two inmate witnesses then refused to
specifically testify. claiming they feared for their lives, alleging Bureau staff would harm
them. The plaintiffs attorney requested Court to compel their testimony and issue an
order to the Bureau to ensure their protection. The Magistrate determined that the
inmates did not have to testify if they feared for their safety and dismissed plaintiff's
motion to compel testimony. Plaintiff subpoenaed Warden Pugh and court compelled
his testimony over counsel's objections. Motion for TRO had originally been limited to a
question whether Merritt had sufficient protection from other inmates while being
housed in the ADX general population unit. The plaintiff's attorney. however, continued
to venture into unrelated issues concerning conditions of confinement, over repeated
objections and requests for clarification by government counsel. The Hearing was
continued to October 14, 1999. A Court Order was filed August 17, 1999, requiring
defendants to turn over to plaintiff's counsel a videotape of an August 28, 1996,
incident where immediate use of force was necessary and where video recording began
after inmate was placed under control. Defendants were also ordered to provide copy of
video concerning calculated use of force on May 22, 1998 (no force was necessary, as
confrontation avoidance was successful).

UPCOMING HEARINGS OR TRIALS
United States v. David Michael Sahakian, United States v. Joseph L. Tokash,
United Sates v. Rodney Allen Dent, United Sates v. Scott Lee Martin, United
Sates v. Mitchell E. Kolb, United Sates v. John Derel Usher,USP Marion, Southern

4369

North Central Region
Regional Counsel Monthly Report
August 1999
Page 7

District of Illinois. The above named inmates are charged with possession of a
prohibited object in violation of 18 U.S.C. § 1791 (a)(2). Jury trial is set for September
13, 1999, before Chief U.S. District Judge J. Phil Gilbert in Benton, Il..
U.S. v. Fulton, Case No. 99-10055, FCI Pekin
The inmate was indicted under Title 18 U.S.C. § 1791 for possession of marijuana. The
final pre-trial hearing is scheduled for September 8, 1999, with a jury trial tentatively
scheduled to begin on September 27, 1999
U.S. v. Boyd, Case No. 99·10057, FCI Pekin
The inmate was indicted under Title 18 U.S.C. § 1791 for possession of marijuana. The
final pre-trial hearing is scheduled for September 8, 1999, with a jury trial tentatively
schedul~d to begin on September 27, 1999.
US v. McElhiney, Case No. 98-40083-01, USP Leavenworth
The trial of Michael McElhiney began on July 19, 1999, and concluded with oral
arguments on Thursday, July 29, 1999. On Monday, August 2, 1999, the jury advised
the court it was deadlocked. Ten of the jurors voted to convict and two voted to acquit.
The retrial is scheduled for September 27, 1999, and is expected to last two weeks. A
hearing is scheduled for September 20, 1999, in reference to subpoenas for production
of documents.

(

Holly v. True, et al .. Case No. 3-97-0756, MCC Chicago
This Bivens action, with the exception of the allegation with regard to physical
alteration, has had all other counts of the complaint dismissed. The Court has set trial
on the one remaining count for November 29.1999.

CRIMINAL MATTERS

U.S. v. Fulton, Case No. 99-10055, FCI Pekin
The inmate was indicted under Title 18 U.S.C. § 1791 for possession of marijuana. The
initial arraignment was held on August 3, 1999, at which time the defendant pled not
guilty. The final pre-trial hearing is scheduled for September 8, 1999, with a jury trial
tentatively scheduled to begin on September 27,1999.
U.s. v. Boyd, Case No. 99-10057, Fel Pekin
The inmate was indicted under Title 18 U.S.C. § 1791 for possession of marijuana. The
initial arraignment was held on August 3, 1999, at which time the defendant pled not
guilty. The final pre-trial hearing is scheduled for September 8, 1999, with a jury trial
tentatively scheduled to begin on September 27, 1999.
U.s. v. Wills; U.S v. Waddell; and U.S. v. Ducket, USP Leavenworth
The following inmates, who pled guilty in May, were sentenced in the District of Kansas
on July 19, 1999 to the following for a violation of 18 U.S.C.1791 (a)(2) possession of a

4370

(

(

North Central Region
Regional Counsel Monthly Report
August 1999
Page 8

weapon on or about December 4, 1998, at USP Leavenworth: Michael Wills, sentence
- 24 months; Reginald Waddell, sentence - 10 months; Warren Ducket, sentence- 18
months. Each inmate also received 3 years supervised release in connection with the
above sentences.
USA v. Edward Bosley, 99-1426M (FLP)
The inmate was charged with violation of 18 U.S.C. §1791 and 21 U.S.C. §844,
possession of contraband and a controlled substance, respectively. The inmate was
found with 5 bindles of white substance, later found to be heroin, on February 1, 1999.
USA v. Cosby, Case No. 99-1422M, USP Florence
The inmate was charged with violation of 18 U.S.C. § 111 (a) and (b), for his assault of a
female correctional officer at USP Florence on September 29, 1998.
USA v. Hawkins, Case No. 99-1424M, USP Florence
The inmate was charged with violation of 18 U.S.C. § 111(a) and (b), for his assault of a
female lieutenant and a male correctional officer at USP Florence on July 12, 1999.
USA v. McGinley, Case No. 99-CR-30D, ADX Florence
The inmate was charged with violation of 18 U.S.C. § 1791 (a)(2) & (d)(1 )(8), for
possessing a homemade weapon at ADX Florence on January 30, 1998.
USA v. Carol Palmer, Case No. 99-1423M, USP Florence
A female visitor was charged with violation of 18 U.S.C. §§844 & 846, and 21 U.S.C. §
1791. Specifically, she was found attempting to introduce 12 balloons of marijuana into
USP Florence through the visiting room on February 20, 1998.
USA v. Walter Williams, Case No. 99-1425M, USP Florence
.The inmate was charged with violation of 18 U.S.C. §§844 & 846, and 21 U.S.C. §
1791. Specifically, he asked a female visitor (see previous case) to introduce 12
balloons of marijuana into USP Florence through the visiting room on February 20,
1998.

PERSONNEL ISSUES
STAFF TRAVEL AND LEAVE

l'.

None scheduled
None scheduled
Sept. 13 - 14
None scheduled
None scheduled
None scheduled

4371

MCFP Springfield

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

Tower I/, 8th Floor
400 State Street
Kansas City. KS 66101-2421

September 22, 1999

MEMORANDUM FOR CHRISTOPHER ERLEWINE
ASSISTANT DIRECTOR/GENERAL COUNSEL
GENERAL COUNSEL AND REVIEW DIVISION

(
"-

FROM:

JOHN R. SHAW, Regional Counsel

SUBJECT:

Monthly Report (August 1999)

LITIGATION. CLAIMS, AND ADMINISTRATIVE REMEDY STATISTICS

LITIGATION:

INST NUM
NCR 58

HC

FTC

BIV

OTH

ANS

PEN

CLD

HIT

38

3

13

4

34

471

24

2

Total cases for Calendar Year 407
NUM-

He·
FTC·

SW·
(-,

OTHANSPENCLD-

Number of total lawsuits filed in the month
Number of habeas corpus actions filed in the reporting period
Number of FTCA actions filed
Number of Bivens actions filed
Number of other actions flied, e.g., mental health, mandamus
Number of litigation reports completed
Number of cases pending
Number of cases closed

3953

SET

AWD

(

North Central Region
Regional Counsel Monthly Report
August t999
Page 2
HIT •
SET •
AWD •

Number of hearings or trials (Include in narrative)
Number of settlements (Include in narrative)
Number of Awards (include in narrative)

ADMINISTRATIVE CLAIMS
JAN

FEB

MAR

APR

MAY

JUN

JUL

67

70

99

88

77

97

107

AUG

SEP

OCT

NOV

DEC

AUG

SEP

OCT

NOV

DEC

ADMINISTRATIVE REMEDIES
JAN

FEB

MAR

APR

MAY

JUN

JUL

188

208

228

215

207

230

187

Total for Calendar Year 1655

c. .

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

FOIA

21
54
76
0

ON-HAND
RECEIVED
PROCESSED
BACKLOG

9
23
10
2*

* Awaiting records from archives

Total for Calendar Year 563
Backlog represents those requests which have not been responded to within the twenty
work days target set by DOJ.

ADVERSE DECISIONS
None.

t'.

SETTLEMENTS OR JUDGMENTS

3954

North Central Region
Regional Counsel Monthly Report
August 1999
Page 3
None.

DECISIONS OF INTEREST
Bastian v. Mack & Williams, Case No. 95-3535-MLB, USP Leavenworth
In this Bivens-styled action, the plaintiff alleged that defendants assaulted, robbed and
attempted to murder him on July 7, 1995, while he was confined at USP Leavenworth.
He further alleged that he was denied food or water for six and one half hours and that
on July 12, 1995, the "officers" refused to let him see an "outside" doct~r. In granting
the defendants motion for summary jUdgment, the Court determined that the plaintiff
made no showing of excusable neglect in failing to file a timely response to the
government's motion. Further, the Court determined that the plaintiff failed to overcome
the defense of qualified immunity. For purposes of the current motion,. the Court
assumed plaintiff met the initial two-part burden to show defendants violated his
constitutional rights and that the rights were clearly established. However, the
defendants have shown there are no material disputes of material facts that would
defeat their assertion of qualified immunity.

(

(

Char Thomasson v. United States. et al., Case 99-3165-JTM, USP Leavenworth
On August 24, 1999, the District Court granted the government's motion to dismiss in
this case where claims were raised under the FTCA, 42 U.S.C. section 1983, and the
Violence Against Women Act, (VAWA) 42 U .S.C. section 13931. Here, the surviving
relatives of inmate Stanley Thomasson alleged defendants negligently allowed other
inmates to consume alcohol and the defendants acted with deliberate indifference to
Thomasson's safety and that his death was directly caused by the negligence of the
employees at USP Leavenworth. The FTCA claims were dismissed because the
administrative claim was not filed until July 9, 1999, which was well after the present
action was filed.
The plaintiff's claim under the VAWA was dismissed on three alternative grounds.
VAWA provides a civil remedy for acts of violence "motivated by gender. II The plaintiff's
alleged the decedent's fellow inmates were motivated solely by "his gender orientation. "
In reaching this determination, the court stated "had Congress wished to extend
protections accorded in the VAWA to persons who suffered violence based on gender
or sexual orientation, it could have, but did not do so. Second, the plaintiffs made no
showing that the United States has waived sovereign immunity to actions under the
VAWA. Third, the plaintiffs did not show any act of violence by the defendants. The
various constitutional claims against the government were dismissed because the
government has not waived sovereign immunity and the claims against the individual
defendants were dismissed because plaintiffs failed to even attempt to obtain personal

3955

North Central Region
Regional Counsel Monthly Report
August 1999
Page 4
service within ten months after the filing of the complaint.
Hunter v. Romine, Case No. #98-1542, FCI Sandstone
In this Bivens/FOIA action, the plaintiff alleges Eighth Amendment rights violations.
Plaintiff alleges staff utilized false/inaccurate information in his central file and failed to
remove the information which caused his removal from the RDAP. By order dated
August 18, 1999, defendants granted motion for summary judgement.
Hagerman v. J. T. O'Brien, Case No. 99-C-219-C, FCI Oxford
Petitioner alleged that the respondent erroneously calculated the amount of
presentence credit to which he is entitled for time spent in Canadian custody. The BOP
did not give credit because the time requested was fo"r unrelated Canadian escape and
assault charges. Defendant·s response was filed on June 1, 1999, and argued that the
petitioner and the Judge's Order improperly relied on §3585, and that his requested
time in Canadian custody was not in connection with the offense for which the federal
sentence was imposed. Moreover, §3568 explicitly limits the term "offense" to
violations of federal law triable in the federal courts, and no detainer was failed nor is
there evidence that the Canadian offenses were bailable. On August 6, 1999, the
Judge issued an Order dismissing the petition because the time petitioner spent in
custody in Canada was not time spent in connection with the federal charges that
resulted in his federal sentence. Petitioner moved for reconsideration of the order, but
the motion was denied on August 20,1999.

PENDING CASES OF INTEREST
Winters v. Hawk Sawyer and Pugh. Case No. 99-5-1356, ADX Florence
Plaintiff attempted to bring a class action against the BOP, claiming disregard for the
life and safety of inmates. He claimed that in November 1997, at the ADX, an inmate
seriously assaulted another inmate with a weapon that he made from the light fixture in
his cell. Plaintiff asserted these light fixtures should be removed from all prisons to
prevent similar assaults. He also claimed staff damaged his personal property and
placed foreign objects in his and other inmates· food in retaliation for his claims of
uns~fe conditions.

(

Celestin v. USA, Case No. 98-0-1488, USP Florence
Defendant filed Motion for Clarification and Extension of Time, requesting clarification
regarding the need to submit a brief on the Alien Tort Claims Act (ATCA) or further
briefing on the Federal Tort Claims Act and the Torture Victim Protection Act (TVPA).
Plaintiff was directed to show cause on or before September 7,1999, why his FTCA

3956

North Central Region
Regional Counsel Monthly Report
August 1999
PageS
medical malpractice claim should not be dismissed for his failure to file a certificate of
review as required by Colorado law. Court had previously ordered the Bureau of
Prisons to allow a physician of the inmate's choosing and expense to conduct
necessary medical file review for purposes of preparing the certificate of review.
Owens v. Hurley, Case No. 98-S-1854, ADX Florence
The Magistrate recommended judgement for the defendants on all claims and a finding
that the matter is frivolous. Inmate filed a rambling complaint appearing to allege that
the defendants were trying to kill him by changing his medication, resulting in him
fainting and cutting his lip. The Magistrate found that the plaintiff failed to exhaust his
FTCA claims, and that he failed to file a certificate of review. The Magistrate further
found that the plaintiff failed to state a claim on the remaining allegations, as he merely
made conclusory allegations that are not supported by any evidence.
McElhiney v. Conway, et al.,Case No. 99-02011, USP Leavenworth
In this case, McElhiney alleged the 15 defendants have conspired to insure a criminal
conviction in the case of USA v. McElhiney, Case No. 98-40083-01, which is
scheduled for a re-trial on September 27, 1999, in the District of Kansas.
Gonzalez v. J. T. O'Brien, Case No. 99-C-147-C, FCI Oxford
Plaintiff alleged that the respondent had violated his right to procedural due process by
refusing to allow his wife to visit without first conducting a hearing into the matter. The
Judge has interpreted the denial as an outright ban on family visitation and therefore
represents a significant and atypical hardship. The Judge also believes that the
petitioner has received no due process. We are taking the position that the denial does
not represent a significant and atypical hardship, and that the Warden reasonably
believed that the petitioner's wife posed a threat to the security of the institution and
that the administrative remedy process provided sufficient due process.
Paolone v. United States of America, Case No. 99-C-0022-C, FCI Oxford
Plaintiff alleged medical malpractice with respect to an eye injury sustained on July 31,
1993. Specifically, he alleged that FCI Oxford medical staff delayed necessary medical
treatment, and the delay made it more difficult to subsequently correct his vision
problems. The plaintiff filed a tort claim with the BOP on May 1, 1999. However, it is
alleged that he never received a response to the claim, and it appears as though this
allegation is true. Documentation seems to demonstrate that the NCRO forwarded the
claim to the Central Office back in 1995 for review because there was a possible delay
in care which may have warranted a settlement offer, but the Central Office never
responded. A pre-trial scheduling conference is scheduled for September 10, 1999.

RELIGIOUS FREEDOM RESTORATION ACT CASES
None.

3957

North Central Region
Regional Counsel Monthly Report
August 1999

Page 6

HEARINGS AND TRIALS
Bustillos v. Hilliard, Case No. 90-CV -3040-WDS, ADX Florence
ADX Florence received an order directing that the plaintiff will prosecute this civil matter
at trial via video conferencing. Plaintiff is currently housed at ADX Florence, although
the matters giving rise to this trial occurred at USP Marion. The pre-trial conference
was held via video on August 4,1999. The inmate requested removal of restraints
during the trial. A compromise was reached wherein the inmate's right hand was freed
during the proceedings to facilitate note-taking. The trial commenced on August 31,
k11 C,
1999. Two inmates, George Scalf and David Cota, appeared via video conferencing
from the ADX Control Unit. Several former USP Marion staff members testified. The
matter continued to September 1, 1999, for remaining witnesses and closing
arguments.
Merritt v. Hawk Sawyer, et al .. Case No. 95-Z-2653, ADX Florence
A video conference was held on August 6,1999, regarding TRO. Several ADX inmates
were ordered to testify. [Court issued order directing Bureau of Prisons to use
reasonable force if necessary to obtain the inmates appearance.] The inmates
appeared via video from the Control Unit. Two inmate witnesses then refused to
specifically testify, claiming they feared for their lives, alleging Bureau staff would harm
them. The plaintiff's attorney requested Court to compel their testimony and issue an
order to the Bureau to ensure their protection. The Magistrate determined that the
inmates did not have to testify if ttiey feared for their safety and dismissed plaintiff's
motion to compel testimony. Plaintiff subpoenaed Warden Pugh and court compelled
his testimony over counsel's objections. Motion for TRO had originally been limited to a
question whether Merritt had sufficient protection from other inmates while being
housed in the ADX general population unit. The plaintiff's attorney, however, continued
to venture into unrelated issues concerning conditions of confinement, over repeated
objections and requests for clarification by government counsel. The Hearing was
continued to October 14, 1999. A Court Order was filed August 17, 1999, requiring
defendants to turn over to plaintiff's counsel a videotape of an August 28, 19~6,
incident where immediate use of force was necessary and wh,.ere video recording began
after inmate was placed under control. Defendants were also ordered to provide copy of
video concerning calculated use of force on May 22, 1998 (no force was necessary, as
confrontation avoidance was successful).

UPCOMING HEARINGS OR TRIALS
United States v. David Michael Sahakian, United States v. Joseph L. Tokash,
United Sates v. Rodney Allen Dent United Sates v. Scott Lee Martin, United
Sates v. Mitchell E. Kolb, United Sates v. John Darel Usher,USP Marion, Southern
3958

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North Central Region
Regional Counsel Monthly Report
August 1999
Page 7

District of Illinois. The above named inmates are charged with possession of a
prohibited object in violation of 18 U.S.C. § 1791 (a)(2). Jury trial is set for September
13, 1999, before Chief U.S. District Judge J. Phil Gilbert in Benton, IL.
U.S. v. Fulton, Case No. 99-10055, FCI Pekin
The inmate was indicted under Title 18 U.S.C. § 1791 for possession of marijuana. The
final pre-trial hearing is scheduled for September 8, 1999, with a jury trial tentatively
scheduled to begin on September 27, 1999
U.S. v. Boyd, Case No. 99-10057, FCI Pekin
The inmate was indicted under Title 18 U.S.C. § 1791 for possession of marijuana. The
final pre-trial hearing is scheduled for September 8, 1999, with a jury trial tentatively
scheduled to begin on September 27,1999.

t'

~.

US v. McElhiney, Case No. 98-40083-01, USP Leavenworth
The trial of Michael McElhiney began on July 19,1999, and concluded with oral
arguments on Thursday, July 29, 1999. On Monday, August 2, 1999, the jury advised
the court it was deadlocked. Ten of the jurors voted to convict and two voted to acquit.
The retrial is scheduled for September 27,1999, and is expected to last two weeks. A
hearing is scheduled for September 20, 1999, in reference to subpoenas for production
of documents.
Holly v. True. et al .. Case No. 3-97-0756, MCC Chicago
This Bivens action, with the exception of the allegation with regard to physical
alteration, has had all other counts of the complaint dismissed. The Court has set trial
on the one remaining count for November 29,1999.

CRIMINAL MATTERS

u.s. v. Fulton, Case No. 99-10055, FCI Pekin
The inmate was indicted under Title 18 U.S.C. § 1791 for possession of marijuana. The
initial arraignment was held on August 3, 1999, at which time the defendant pled not
guilty. The final pre-trial hearing is scheduled for September 8, 1999, with a jury trial
tentatively scheduled to begin on September 27, 1999.
u.S. v. Boyd, Case No. 99-10057, FCI Pekin
The inmate was indicted under Title 18 U.S.C. § 1791 for possession of marijuana. The
initial arraignment was held on August 3, 1999, at which time the defendant pled not
guilty. The final pre-trial hearing is scheduled for September 8, 1999, with a jury trial
tentatively scheduled to begin on September 27, 1999.

(

u.s. v. Wills; U.S v. Waddell; and U.S. v. Ducket, USP Leavenworth
The following inmates, who pled guilty in May, were sentenced in the District of Kansas
on July 19, 1999 to the following for a violation of 18 U.S.C.1791(a)(2) possession of a
3959

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North Central Region
Regional Counsel Monthly Report
August 1999
Page 8
weapon on or about December 4, 1998, at USP Leavenworth: Michael Wills, sentence
- 24 months; Reginald Waddell, sentence - 10 months; Warren Ducket, sentence- 18
months. Each inmate also received 3 years supervised release in connection with the
above sentences.
USA v. Edward Boslev, 99-1426M (FLP)
The inmate was charged with violation of 18 U.S.C. §1791 and 21 U.S.C. §844,
possession of contraband and a controlled substance, respectively. The inmate was
found with 5 bindles of white substance, later found to be heroin, on February 1, 1999.
-USA v. Cosby, Case No. 99-1422M, USP Florence
The inmate was charged with violation of 18 U.S.C. § 111 (a) and (b), for his assault of a
female correctional officer at USP Florence on September 29, 1998.
USA v. Hawkins, Case No. 99-1424M, USP Florence
The inmate was charged with violation of 18 U.S.C. § 111(a) and (b), for his assault of a
female lieutenant and a male correctional officer at USP Florence on July 12, 1999.

c.

USA v. McGinley, Case No. 99-CR-300, ADX Florence
The inmate was charged with violation of 18 U.S.C. § 1791(a)(2) & (d)(1)(B), for
possessing a homemade weapon at ADX Florence on January 30, 1998.
USA v. Carol Palmer, Case No. 99-1423M, USP Florence .
A female visitor was charged with violation of 18 U.S.C. §§844 & 846, and 21 U.S.C. §
1791 . SpeCifically, she was found attempting to introduce 12 balloons of marijuana into
USP Florence through the visiting room on February 20, 1998.
USA v. Walter Williams, Case No. 99-1425M, USP Florence
The inmate was charged with violation of 18 U.S.C. §§844 & 846, and 21 U.S.C. §
1791. Specifically, he asked a female visitor (see previous case) to introduce 12
balloons of marijuana into USP Florence through the visiting room on February 20,
1998.

. PERSONNEL ISSUES
STAFF TRAVEL AND LEAVE

(

. None scheduled
None scheduled
Sept 13 - 14
None scheduled
None scheduled ·
None scheduled

3960

MCFP Springfield

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

October 8, 1999

MEMORANDUM FOR CHRISTOPHER ERLEWINE
ASSISTANT DIRECTOR/GENERAL COUNSEL
GENERAL COUNSEL AND REVIEW DIVISION
FROM:

JOHN R. SHAW, Regional Counsel

SUBJECT:

Monthly Report (September 1999)

(

"..... _..

LITIGATION. CLAIMS. AND ADMINISTRATIVE REMEDY STATISTICS

LITIGATION:

INST

NUM

He

FTC

BIV

OTH

ANS

PEN

CLD

Hfr

NCR

44

2S

4

10

S

31

479

SS

2

SET

AWD

Total cases for Calendar Year - 451
Number of total lawsuits filed in the month
Number of habeas corpus actions filed in the reporting period
Number of FrCA actions filed
Number of Bivens actions filed
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)
NUMHCFrCBIVOTH-

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; North Central Region
Regional Counsel Monthly Report
September 1999
Page 2

ADMINISTRATIVE CLAIMS
JAN

FEB

MAR

APR

MAY

JUN

JUL

AUG

SEP

67

70

99

88

77

97

68

107

62

OCT

NOV

DEC

OCT

NOV

DEC

Total for Calendar Year - 735
Pending 301
Tort dBASE Files sent via e-mail to Monica Potter, OGC, on 10/1/99

ADMINISTRATIVE REMEDIES

C...

JAN

FEB

MAR

APR

MAY

JUN

JUL

AUG

SEP

188

208

228

215

207

230

192

187

167

Total for Calendar Year - 1822
FREEDOM OF INFORMATION ACTIPRIVACY ACT REQUESTS
PRIVACY
ACT

FOIA

ACTUAL ON-HAND

25

17

ACTUAL RECEIVED

58

11

ACTUAL PROCESSED

45

15

ACTUAL BACKLOG

0

0

Total for Calendar Year - 632

ADVERSE DECISIONS

None.
SETILEMENTS OR JUDGMENTS

{

"

None.

4391

· North Central Region
Regional Counsel Monthly Report
September 1999
Page 3

DECISIONS OF INTEREST
Williams v. Pitt. Bowen, Case No. 96-597, FCI Greenville

plaintiff alleged excessive use of force during the aftennath of the 1995 disturbance. The Court
dismissed with prejudice after an evidentiary hearing and finding in favor of the defendants.
Smith v. KinK. et al., Case No. 96-507, FCI Greenville

In this Bivens action alleging excessive use of force during the aftennath of the 1995 disturbance,
plaintiff's complaint was dismissed for failure to exhaust his administrative remedies on the
issue. This ruling was based upon the Seventh Circuit's holding in Perez v. Wisconsin Dept. of
Corr.
.
Huffman v. Nickerson, Case No. 96-629, FCI Greenville

This Bivens action alleged excessive use of force during the aftennath of the disturbance in
October 1995. The case was dismissed upon plaintiff's request.
Nelson v. J. W. Booker, Case. No. 98-32S0-RDR, USP Leavenworth

In this petition for writ of habeas corpus, petitioner alleged he was improperly confined in
protective custody and that he was denied due process of an incident report. In denying this
petition, the Court detennined the decision to place Nelson in administrative detention was
reasonable, and petitioner failed to advance any viable argument that his constitutional rights
were violated by his placement in protective, administrative confinement following his attack on
another inmate associated with a disruptive group. Petitioner also sought a transfer to either a
lower-security facility or state placement. This request was also denied. Finally, the Court
detennined the petitioner's due process rights were not violated because he received adequate
notice of the disciplinary charge, he had an opportunity to make a statement, and he received a
written statement of the decision against him.

(~ .'

Davis v. Richard P. Seiter. et al., Case No. 96-3316-KBV, USP Leavenworth

In this Greenville Bus case, which was settled by the parties, the court denied the plaintiff's
Motion to Reinstate Civil Action on September 3, 1999. In denying this motion, the Court
stated, "on June 30, 1998, after various motions by plaintiff, the Court appointed counsel in this
case. In that order, the Court ordered that plaintiff refrain from filing any further motions and
direct all future correspondence to appointed counsel." Because this motion was filed by
plaintiff, directly in violation of the Court's order, the Court found that it should be stricken
without prejudice. The court further stated that if plaintiff wished to refile his motion to
reinstate, he must either act through appointed counselor seek to proceed pro see
Sandefur v. PUSh, Case No. 98-1377, CANI0 98-1400, Fe) Florence

Court of Appeals for the 10lb Circuit, in an unpublished decision (1999 WL 679685) directed
remand back to the district court with instructions to dismiss the habeas petition. This was in
connection with petitioner's appeal from district court's denial of his petition under 28 USC §

4392

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· North Centra) Region
Regional Counsel Monthly Repon
September 1999
Page 4

2241 for refusal on the part of the Bureau of Prisons to apply prior custody credits for time spent
serving a state sentence. The lOth Circuit agreed with respondent-appellee's argument that the
Court lacked jurisdiction over the merits given appellant's failure to exhaust administrative
remedies.

Gavers v. Homeister. et al •• Case No. 98-2500 (JRT/JMM), FPC Duluth
State irunate in federal custody claimed he received inferior medical care while in BOP custody.
Specifically, the inmate claimed that because the state was financially obligated to pay for
"
extraordinary or special medical services, it would not give its approval for a surgical
consultation on plaintiff. District Court found that the plaintiff was examined by numerous BOP
medical staff and private physicians and denied the plaintiff's claim.
.
Hartle v. BOP, Case No. 97-691 (JRT/JMM), FPC Duluth
Magistrate Judge found that the BOP should be bound by its detennination that an inmate was
eligible for early release because the inmate had a "settled expectation" in a sentence reduction.
The District Court Judge found that the Magistrate Judge wrongly applied the reasoning of ~
v. Crabtree, 113 F.3d 1081 (1997), and held that the BOP retains the discretion to deny early
release regardless of its initial determination of an irunate' s eligibility.

(...

PENDING CASES OF INTEREST
McCullum v. Hedrick, Case No. 99-33S2-CV-S-RGC-H, MCFP Springfield
Petitioner contends he requires a kidney transplant and the BOP policy concerning .
transplantation is unconstitutional.
Palozie v. Hawk. et al., Case No. 99-3337-CV-S-RGC, MCFP Springfield
Plaintiff alleges he was repeatedly forced to take medication against his will and that he was
physically and sexually assaulted, and chained to his bed for eight consecutive days.
Martinez v. Pale True. et al., Case No. 99-9108-GTV, USP Leavenworth
In this Bivens-styled action, plaintiffnames (10) defend&tts and alleges he was transferred to
USP Marion for: I) retaliation for filing a civil action against the fonner Warden and SIS staff;
2) not cooperating with the SIS and SIA during investigations in to drug trafficking by USP
Leavenworth staff; 3) BOP officials filing false allegations about the plaintiff; and 4) conspiracy
to prevent plaintiff from exposing the illegal conduct by BOP staff.

(

Lebaron v. USA, Case No. 99-X-0041, USP Florence
Inmate filed motion to preserve master reel of telephone conversation he had on April 30, 1999.
The Court noted several deficiencies with the pleading and directed petitioner to cure various
deficiencies within 30 days. Additionally, the Court directed the BOP to preserve tape until
further notice.

4393

. North Central Region
Regional Counsel Monthly Report
September 1999
PageS

Loparo v. USA. et al., Case No. 99-X-0036, USP Florence
Inmate seeks to have court order the BOP to maintain videotape of incident which occurred
August 30, 1999, as he intends to file a tort action alleging physical abuse. The Court directed
inmate to file an amended petition and to cure deficiencies by October 9, 1999. Additionally, the
Court directed BOP to maintain the videotape indefinitely.
Oxedine v. Kaplan and Ne&ron, Case No. 99-M-1224, FCI Florence
Inmate filed this Bivens action alleging staff provided improper medical care in reattaching his
self-amputated finger. The Court dismissed all defendants except the above two defendants.
This matter was the subject of a TRO hearing in connection with Oxendine v. Pennington. et al.,
98-M-13S2. The TRO was denied.
Gil v. Alston. et al., Case No. 95-CV-52~7, MCC Chicago
Inmate alleged deliberate indifference to gastric obstruction, and conditions caused by surgery.
Deposition of defendant taken in Atlanta revealed that the doctor reviewed the charts, but never
actually examined the inmate, and therefore may be problematic to his own liability and to other
defendants.
Jones v. Simek. et al., Case No. 94-CV-I097, 98-2243 (7"- Cir.), MCC Chicago
Inmate alleged excessive use of force by staff members, and deliberate indifference to resulting
injuries. District Court had granted summary judgment on medical claims, and held a trial on
excessive use of force issues. Court found in favor of BOP defendants. The inmate appealed to
the -ph Circuit Court of Appeals. The Appellate Court affinned the claims disposed of at trial,
but reversed summary judgment granted to the doctor, stating there was material issue as to
whether he was deliberately indifferent to the inmate's ann condition known as Reflex
Sympathetic Dystrophy.

c

RELIGIOUS FREEDOM RESTORATION ACT CASES
.Tolley. Tisor. Johnston and Post v. Booker, Case No. 97-N-0793, FCI Florence
RFRA case that was stayed pending appointment of counsel for inmate plaintiffs. Counsel was
appointed late this month, but no scheduling order has been issued yet. Inmates are seeking
separate outdoor worship area for Odinists.

UPCOMING HEARINGS OR TRIALS

None.
HEARINGS AND TRIALS

In the matter of John A. Cuoco, ADX Florence
On September 14, 1999, an Emergency Ex Parte Application for Order to permit the forcefeeding, rehydration, and laboratory analysis of inmate Cuoco was filed. Inmate Cuoco was
4394

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• North Central Region
Regional Counsel Monthly Report
September 1999
Page 6

engaged in a hunger strike and had not eaten since 9/10. Health Services staff advised that if
inmate Cuoco continued his hunger strike without medical intervention, which includes forcefeeding, rehydration and laboratory analysis, the dehydration process could result in seizure,
unconsciousness, organ failure and death. A telephonic hearing was held before the Magistrate
Judge and an Order obtained on September 14, 1999. On September 15, 1999, inmate Cuoco
ended his hunger strike and began eating and drinking fluids. A report regarding inmate Cuoco's
status and condition was submitted to the Court on September 17, 1999.

United States v. David Michael Sabakian, No. 99-40044-JPG; United States v. Joseph L.
Tokasb, No. 99-4004S-JPG; United Sates v. Rodney Allen DeDt~ No. 99-40046-JPG; United
Sates v. Scott Lee Martin, 99-40048-JPG; United Sates v. Mitchell E. Kolb, No. 99-40047JPG; United Sates v. John Derel Usher, No. 99-40049-JPG., USP Marion
A pre-trial conference was held in the above cases on September 3, 1999. The above named
inmates are charged with possession ofa prohibited object in violation of 18 U.S.C. § 1791(a)(2).
Thejury trial, set for September 13, 1999, before Chief U.S. District Judge J. Phil Gilbert, was
continued indefinitely.

c.

Bustillos y. Hilliard. Case No. 90-CV-3040-WDS, ADX Florence
This matter was continued to September 1, 1999, for remaining witnesses and closing arguments.
Trial was conducted by video conferencing, with plaintiff representing himself. Two inmates,
appeared via video conferencing from ADX Control Unit and several fonner USP Marion staff
testified. Thejury returned a verdict in favor of individual defendant on September 1, 1999.
Plaintiff filed a motion for a new trial. He claimed it is necessitated due to "technical
difficulties" caused by ADX Florence to intentionally interfere with his presentation of his case.

US v. McElhiney, Case No. 98-40083-01, USP Leavenworth
This trial is the second of Michael McElhiney, the first ended in a hung jury. The second hearing
began on September 20, 1999, and is expected to last three weeks.
US v. ShoBer, USP Leavenworth
This pre-trial inmate was indicted for the murder of inmate Smothers at USP Leavenworth. He
has requested medication and also has second thoughts in reference to representing himself.
Therefore, in compliance with the program statement on pre-trial inmates, a telephone conference
with the Judge, CMC, MD, and AUSA has been scheduled.

US v. Moman, FPC Leavenworth
On September 27, 1999, inmate Billy Morgan, Reg. No. 28554-004 was sentenced by Judge
Lungstrum to a total tenn of (15) fifteen months to run concurrent with the sentence imposed in
the U.S. District Court for the Middle District of Florida. This sentence was imposed as a result
of Morgan walking away from FPC Leavenworth on April 19, 1998.

4395

• Nonh Central Region
Regional Counsel Monthly Report
September 1999
Page 7

CRIMINAL MATTERS
USA v. Fulton, Case No. 99-10055, FeI Pekin

The inmate was indicted under Title 18 U.S.C. § 1791 for possession of marijuana. The initial
arraignment was held on August 3, 1999, at which time the defendant pled not gUilty. The final
pre-trial hearing was held on September 8, 1999, with a jury trial tentatively scheduled to begin
on September 27, 1999. However, the inmate changed his plea to guilty on September 8, 1999.
He is scheduled for sentencing on December 10, 1999 at 4:00 p.m.
USA v. Boyd, Case No. 99-10057, FCI Pekin

The inmate was indicted under Title 18 U.S.C. § 1791 for possession of marijuana. The initial
arraignment was held on August 3, 1999, at which time the defendant pled not guilty. The fmal
pre-trial hearing was held on September 8, 1999, with ajury trial tentatively scheduled to begin
on September 27, 1999. However, the inmate changed his plea to guilty on September 8, 1999.
He is scheduled for sentencing on December 10, 1999 at 1:00 p.m.
USA v. Wasbinaon, Case No. 99-10056, FCI Pekin

Inmate indicted under Title 18 U.S.C. § 1791(a)(2). He is scheduled for sentencing on December
10, 1999 at 10:00 a.m.
USA v. Edward Bosley, 99-1426M, USP Florence

The inmate was charged with violation of 18 U.S.C. §1791 and 21 U.S.C. §844, possession of
contraband and a controlled substance, respectively. The inmate was found with 5 bindles of a
white substance, later found to be heroin, on February 1, 1999.
USA v. Cosby, Case No. 99-1422M, USP Florence
The inmate was charged with violation of 18 U.S.C. § 111(a) and (b), for his assault ofa female

correctional officer at USP Florence on September 29, 1998.
USA v. Hawkins. Case No. 99-1424M, USP Florence

The inmate was charged with violation of 18 U.S.C. § 111(a) and (b), for his assault ofa female
lieutenant and a male correctional officer at USP Florence on July 12, 1999.
.
.
USA v. McGinley, Case No. 99-CR-30D, ADX Florence

The inmate was charged with violation of 18 U.S.C. § 1791(a)(2) & (d)(I)(B), for possessing a
homemade weapon at ADX Florence on January 30, 1998.
USA v. Carol Palmer, Case No. 99-1423M, USP Florence

A female visitor was charged with violation of 18 U.S.C. §§844 & 846, and 21 U.S.C. § 1791.
Specifically, she was found attempting to introduce 12 balloons of marijuana into USP Florence
through the visiting room on February 20, 1998.

4396

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- North Central Region
Regional Counsel Monthly Report
September 1999
Page 8

USA v. Walter Williams, Case No. 99-1425M, USP Florence
The inmate was charged with violation of 18 U.S.C. §§844 & 846, and 21 U.S.C. § 1791.
Specifically, he asked a female visitor (see previous case) to introduce 12 balloons of marijuana
into USP Florence through the visiting room on February 20, 1998.
USA v. Gonzales; USA v. Viarrial; and USA v. Zacarias, Case No. 99-CR-II0-M,
Fe) Englewood
The inmates are charged with introduction of contraband and conspiracy to introduce contraband.
USA v. Bogan; USA v. Calhoun; and USA v. McGhee, FCI Oxford
The inmates have been charged with assault on an officer. The U.S. Attorney's Office has
accepted the above for prosecution.

PERSONNEL ISSUES

(
""

STAFF TRAVEL AND LEAVE
Oct. 18-22
Oct. 25-29
Oct. 19-21
Oct. 8
Oct. 19
Oct. 21
None scheduled
Oct. 12 -22
Oct. 15
None scheduled
Oct. 12-15
Oct. 21-22
Sept. 13 - Oct. 7
Oct. 8

(

4397

Washington, D.C.

AIL
Washington, D.C.

AIL
Park College Lecture
Hearing in Mpls., MN

SIL
AIL
House Hunting, Big Springs, TX

AIL
FLETC, Glynco, Georgia

AIL

 

 

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