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Fbop Ncr Monthly Reports 2001oct-dec

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; Joyce Z~ldak - October.2001 .frm

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Page 1
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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

November 8. 2001

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

FROM:

DARYL KOSIAK , Regional Counsel

SUBJECT:

Monthly Report (October 2001)

LITIGATION, CLAIMS, AND ADMINISTRATIVE REMEDY STATISTICS
LITIGATION:

INST

NUM

HC

FTC

BI V

OTH

ANS

PEN

CLD

Hrr

SET

AWD

NCR

29

10

4

14

1

25

430

22

20

0

0.00

Total cases for Calendar Year · 263*
• Due to an error in running the monthly litigation numbers in Lawpack , twenty-three (23) cases were inadverten'y
unreported for the months of June through September. The total cases for the calendar year has bee n adjusted to
reflect the addition of these twenty-three cases .

NUMHC-

FTC BIV OTH ANS PEN CLD HIT -

SETAWO-

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

42 16

'

i.~~~~.~Ofdak-OctOber.20ni~\.i~.~.:~;:.:... -,-.-.-.. -.. - .. -._-..-..,-..-.-.. -.__ -.___
-_-_-_-.-.._-._-_...-.. -.--.-.-.-...-__-.. - - - - - - - . ---'Page'2':

(

North Central Region
Regional Counsel Monthly Report
October 2001
Page 2
Appeals

NUM

HC

FTC

BIV

OTH

ANS

PEN

CLD

HIT

SET

AWD

NCR

5

1

4

0

0

0

33

4

0

0

0.00

Petitions filed

C§4245

7

Hearings
10

18 USC § 4246

o

1

Mental Health

ADMINISTRATIVE CLAIMS

(

' ......

#Pending

JAN
280

FEB
259

MAR
295

APR
276

MAY
296

JUN
271

JUL
244

AUG
245

SEP
223

OCT
228

#Received

59

56

80

65

69

62

52

86

65

70

#Answered

76

59

82

52

91

112

56

68

96

65

8

9

9

10

9*

15

13

8

10

3*

259

295

276

296

271

244

245

223

228

216

SEP

OCT

192

218

#Over 6
month
#Pending

NOV

DEC

NOV

DEC

Total for Calendar Year- 664

•.1 Claim being investigated by OIA.
ADMINISTRA TIVE REMEDIES

#Received

JAN
196

FEB
223

MAR
270

APR
155

MAY
206

JUN
245

208

AUG
166

#Answered

250

223

237

210

253

204

270

211

230

251

# Rejected

97

95

162

72

145

85

107

124

86

107

Total for Calendar Year. 2079

4217

JUL

Page 3:

I Joyce Zoldak - October.2001. frm
.. _

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(

North Central Region
Regional Counsel Monthly Report
October 2001
Page 3

FREEDOM OF INFORMATION ACTIPRIVACY ACT REQUESTS

MAR APR MAY JUN
99 107 98
95

JUL AUG SEP OCT
104 128 115 71

FEB

#Pending

JAN
99

#Received

98

70

78

83

96

74

90

98

73

60

#Processed

92
13

102
10

65
10

67

100
7

75
7

79
8

77
15

95
7*

91

FOIAIPA

#8acklog

105

9

NOV

DEC

7

Total for Calendar Year· 820

*.l. Requests awaiting the retrieval of records from the archives.

ADVERSE DECISIONS
Nothing to report.
SETTLEMENTS OR JUDGMENTS
Nothing to report.
DECISIONS OF INTEREST
Hili v. Booker, Case No. OO·304G-RDR, USP Leavenworth
In this habeas action, the petitioner sought early release consideration under the Residential
Drug Abuse Treatment Program, arguing his conviction for felon in possession of a firearm did
not constitute an offense that should preclude him from early release consideration. The court
denied the petition, citing the BOP's discretionary authority to make such determinations.
PENDING CASES OF INTEREST
Disch v. Friar, et al., Case No. 01-C-06808, MCC Chicago
In this Bivens action, plaintiff alleges that while being moved from the recreation cage to his cell,

---------------------.------------------------------------------------------------~

4218

;.~~~c:e. ~~Id~k ~. Octo~r.2o.~~ .~. __ ._. __.._..__.. _. _.__~_____________ ._____""__.__________ . _...... _._ '..
(

North Central Region
Regional Counsel Monthly Report
October 2001
Page 4
defendants slammed him on a desk face first and he was hit in the back and ribs. Plaintiff later
states he did not see who hit him because he was face down. The allegations contained in this
complaint have been referred to the Warden for further investigation.
Bustillo v. Hawk, et al., Case No. 97-WM-446, ADX Florence
Legal staff is currently reviewing eight deposition transcripts to seal security information. Plaintiff
is attempting to block the taking of his deposition and his appointed counsel is attempting to
withdraw from the case.
Jordan v. Hawk-Sawyer, Case No. 01-8-1332, FCI Florence
In this habeas action, the inmate claims he was denied a lump sum award of Good Time credit
after he notified staff of a safety hazard.
Treiber v. Gallegos, Case No. 01-8-726, FCI Florence
In this habeas action, the inmate is attacking the decision of the DHO regarding an incident
report he received for the possession of a weapon which resulted in the loss of Good Time. The
inmate claims he was denied his right to due process, and claims staff violated policy by failing to
hold his cellmate equally accountable for the weapon. The inmate is requesting the Court to
reinstate his Good Time and remove the incident report from his prison record.
Barnes v. United States of America, Case No. 01-CV-3202, USP Leavenworth
This FTCA action alleges staff negligence in the treating of an alleged infection to the plaintiff's
peniS beginning in 1997. Although plaintiff was attempting to sue several staff in their individual
capacities, the court, noting that plaintiff has only alleged negligence, dismissed all named
defendants and substituted the United States as the sole party defendant.
Gordon v. United States of America, Case No. 01.Q2986-SBA, USP Leavenworth
This is a personal injury action filed under the FTCA, in which the plaintiff alleges she injured her
hand in a grille as it opened on August ~,2000. She was visiting an i"nmate when the alleged
injury occurred. Plaintiff, who is represented by counsel. not only refused treatment for her
alleged injury, but also has failed to provide any documentation verifying that she was injured.
This case has been filed in the Northern District of California, and plaintiff seeks unspecified
damages.
Morrison v. United States, Case No. 01-3092, FMC Rochester
In this FTCA action, plaintiff alleges delay in transferring him to a medical center by USMS for
removal of a stent from urethra to kidney. Plaintiff was a pretrial detainee at the time. He also
appears to allege medical malpractice at FMC.
Penn v. Reese, et al., Case No. 01-708, FMC Rochester
This is a Bivens action wherein Plaintiff alleges staff violated his constitutional rights by making
him clean his preferred housing room, while on medical idle, and that staff retaliated by moving
him to a dormitory room.

4219

· _ ...• _-,_._--_. - - .- ..................:-•. _-_:_---- "._- _ .. _.<.- ....

---~-.--,.,

....

North Central Region
Regional Counsel Monthly Report
October 2001
PageS

PageS;

(

Tracy v. Olson, USP Terre Haute
In this habeas suit, petitioner challenges the determination that he is subject to a DNA test. The
inmate has not exhausted his administrative remedies, is not due to be released until 2014, and
is not subject to a DNA test until 2013.

RELIGIOUS FREEDOM RESTORATION ACT
No new cases.

UPCOMING HEARINGS AND TRIALS
Navarro v. United States, Case No. 01-C-3249, MCC Chicago
A status hearing was held on this FTCA medical malpractice case. The Court directed that an
attorney from a firm be apPointed to represent Navarro since he is currently confined at FTC
Oakdale, LA. Navarro is scheduled to be released to an INS detainer on December 16, 2001.
Discovery has been stayed pending the apPointment of counsel. Another status hearing is
scheduled for January 9, 2001.

('
CRIMINAL MATTERS
United States v. Roubldeax, Case No. 01-Cr-30144, FCI Greenville
On October 18,2001, an indictment was filed against Reno Roubideax for violation of 18 U.S.C.
111(a) and (b), Forcible Assault against a Correctional Officer.
United States v. Barriga, Case No. 01-2010601-KHV, USP Leavenworth
On October 18, 2001, this former staff member was indicted by a grand jury and charged with
unlawfully attempting to provide approximately 296.58 grams of marijuana to an inmate at USP
Leavenworth on or about May 31, 2001. He was also charged with unlawfully, knowingly, and
intentionally attempting to possess with intent to distribute marijuana. Lastly, the defendant was
charged with unlawfully, knowingly, and intentionally using the United States mail in committing,
causing and facilitating the possession with intent to distribute a controlled substance. He faces
up to 5 years imprisonment for the first two counts, and up to 4 years imprisonment for the third
count.
United States v. Utley, Case No. 01-20073-01-CM, USP Leavenworth
On October 17, 2001, a superceding indictment was issued, charging the defendant with four
separate counts of assault on a law enforcement officer, in violation of 18 U.S.C. § 111(a) & (b).
Utley faces up to 10 years imprisonment and up to a $250,000 fine.

4220

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

November 8, 2001

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

FROM:

DARYL KOSIAK, Regional Counsel

SUBJECT:

Monthly Report (October 2001)

LITIGATION. CLAIMS. AND ADMINISTRATIVE REMEDY STATISTICS
LITIGATION:

INST

NUM

HC

FTC

BIV

OTH

ANS

PEN

CLD

HIT

SET

AWD

NCR

29

10

4

14

1

25

430

22

20

0

0.00

Total cases for Calendar Year - 263*

* Due to an error in running the monthly litigation numbers in Lawpack. twenty-three (23) cases were inadvertently
unreported for the months of June through September. The total cases for the calendar year has been adjusted to
reflect the addition of these twenty-three cases.
NUMHCFTCBIVOTHANSPENCLDHIT SETAWD-

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

Appeals

NUM

HC

FTC

BrV

OTH

ANS

PEN

CLD

HIT

SET

AWD

NCR

5

1

4

0

0

0

33

4

0

0

0.00

4241

North Central Region
Regional Counsel Monthly Report
October 2001
Page 2

('

Mental Health
18 USC § 4245

Petitions filed
7

Hearings
10

18 USC §4246

0

1
ADMINISTRATIVE CLAIMS

FEB
259

MAR
295

APR
276

MAY
296

JUN
271

JUL
244

AUG
245

SEP
223

OCT

#Pending

JAN
280

#Received

59

56

80

65

69

62

52

86

65

70

#Answered

76

59

82

52

91

112

56

68

96

65

8

9

9

10

9*

15

13

8

10

3*

259

295

276

296

271

244

245

223

228

216

#Over6
month
#Pending

NOV

DEC

228

\.

Total for Calendar Year • 664

*.1 Claim being investigated by OIA.
ADMINISTRATIVE REMEDIES

JAN

FEB

MAR

APR

MAY

JUN

JUL

AUG

SEP

OCT

#Received

196

223

270

155

206

245

208

166

192

218

#Answered

250

223

237

210

253

204

270

211

230

251

# Rejected

97

95

162

72

145

85

107

124

86

107

Total for Calendar Year - 2079

4242

NOV

DEC

('

North Central Region
Regional Counsel Monthly Report
October 2001
Page 3

FREEDOM OF INFORMATION ACT/PRIVACY ACT REQUESTS

JAN

FEB

#Pending

99

105

99

107

98

#Received

98

70

78

83

#Processed

92

102

65

#Backlog
10
13
10
Total for Calendar Year - 820

FOIAIPA

.~

MAR APR MAY JUN

JUL

AUG

SEP

OCT NOV DEC

95

104

128

115

71

96

74

90

98

73

60

67

100

75

79

77

95

91

9

7

7

8

15

7*

7

Requests awaiting the retrieval of records from the archives.

ADVERSE DECISIONS

(
'-

..

Nothing to report.

...

SETTLEMENTS OR JUDGMENTS
Nothing to report.
DECISIONS OF INTEREST
Hill v. Booker, Case No. 00-3040-RDR, USP Leavenworth
In this habeas action, the petitioner sought early release consideration under the Residential Drug
Abuse Treatment Program, arguing his conviction for felon in possession of a firearm did not
constitute an offense that should preclude him from early release consideration. The court denied
the petition, citing the BOP's discretionary authority to make such determinations.
PENDING CASES OF INTEREST
Disch v. Friar. et aI., Case No. 01-C-06808, MCC Chicago
In this Bivens action, plaintiff alleges that while being moved from the recreation cage to his cell,
defendants slammed him on a desk face first and he was hit in the back and ribs. Plaintiff later
states he did not see who hit him because he was face down. The allegations contained in this
complaint have been referred to the Warden for further investigation.
.
Bustillo v. HaWk. et al., Case No. 97 -WM-445, ADX Florence
Legal staff is currently reviewing eight deposition transcripts to seal security information. Plaintiff is
attempting to block the taking of his deposition and his appointed counsel is attempting to withdraw
from the case.

4243

North Central Region
Regional Counsel Monthly Report
October 2001
Page 4

(

Jordan v. Hawk-Sawyer, Case No. 01-B-1332, FCI Florence
In this habeas action, the inmate claims he was denied a lump sum award of Good Time credit after
he notified staff of a safety hazard.
Treiber v. Gallegos, Case No. 01-8-726, FCI Florence
In this habeas action, the inmate is attacking the decision of the DHO regarding an incident report
he received for the possession of a weapon which resulted in the loss of Good Time. The inmate
claims he was denied his right to due process, and claims staff violated policy by failing to hold his
cellmate equally accountable for the weapon. The inmate is requesting the Court to reinstate his
Good Time and remove the incident report 'from his prison record.
Barnes v. United States of America, Case No. 01-CV-3202, USP Leavenworth
This FTCA action alleges staff negligence in the treating of an alleged infection to the plaintitrs penis
beginning in 1997. Although plaintiff was attempting to sue several staff in their individual capacities,
the court, noting that plaintiff has only alleged negligence, dismissed all named defendants and
substituted the United States as the sole party defendant.
Gordon v. United States of America, Case No. 01-02986-SBA, USP Leavenworth
This is a personal injury action filed under the FTCA, in which the plaintiff alleges she injured he,.hand in a grille as it opened on August 5, 2000. She was visiting an inmate when the alleged injul\.
occurred. Plaintiff, who is represented by counsel, not only refused treatment for her alleged injury,'~"
but also has failed to provide any documentation verifying that she was injured. This case has been
filed in the Northern District of California, and plaintiff see~s unspecified damages.
Morrison v. United States, Case No. 01-3092, FMC Rochester
In this FTCA action, plaintiff alleges delay in transferring him to a medical center by USMS for
removal of a stent from urethra to kidney. Plaintiff was a pretrial detainee at the time. He also
appears to allege medical malpractice at FMC.
Penn v. Reese. et al., Case No. 01-708, FMC Rochester
This is a Bivens action wherein Plaintiff alleges staff violated his constitutional rights by making him
clean his preferred housing room, while on medical idle, and that staff retaliated by moving him to
a dormitory room.
Tracy v. Olson, USP Terre Haute
In this habeas suit, petitioner challenges the determination that he is subject to a DNA test. The
inmate has not exhausted his administrative remedies, is not due to be released until 2014. and is
not subject to a DNA test until 2013.

RELIGIOUS FREEDOM RESTORATION ACT

I

I

No new cases.

\.

4244

(

North Central Region
Regional Counsel Monthly Report
October 2001
Page 5

UPCOMING HEARINGS AND TRIALS
Navarro v. United States, Case No. 01-C-3249, MCC Chicago
A status hearing was held on this FTCA medical malpractice case. The Court directed that an
attorney from a firm be appointed to represent Navarro since he is currently confined at FTC
Oakdale, LA. Navarro is scheduled to be released to an INS detainer on December 16, 2001.
Discovery has been stayed pending the appointment of counsel. Another status hearing is
scheduled for January 9, 2001.

CRIMINAL MATTERS
United States v. Roubideax, Case No. 01-Cr-30144, FCI Greenville
On October 18, 2001, an indictment was filed against Reno Roubideax for violation of 18 U.S.C.
111 (a) and (b), Forcible Assault against a Correctional Officer.

(

United States v. Barriga, Case No. 01-201 0601-KHV, USP Leavenworth
On October 18, 2001, this former staff member was indicted by a grand jury and charged with
unlawfully attempting to provide approximately 296.58 grams of marijuana to an inmate at USP
Leavenworth on or about May 31, 2001. He was also charged with unlawfully, knowingly, and
intentionally attempting to possess with intent to distribute marijuana. Lastly, the defendant was
charged with unlawfully, knowingly, and intentionally using the United States mail in committing,
causing and facilitating the possession with intent to distribute a controlled substance. He faces up
to 5 years imprisonment for the first two counts, and up to 4 years imprisonment for the third count.
United States v. Utley, Case No. 01-20073-01-CM, USP Leavenworth
On October 17, 2001, a superceding indictment was issued, charging the defendant with four
separate counts of assault on a law enforcement officer, in violation of 18 U.S.C. § 111(a) & (b).
Utley faces up to 10 years imprisonment and up to a $250,000 fine .

PERSONNEL ISSUES

STAFF TRAVEL AND LEAVE
November 1
November 2
November 8-13
November 19-20

4245

Chicago,lL
Springfield, IL
Annual Leave
St. Louis & Milan

Joyce Zoldak - nov_01.rpt.wpd

----_...

-

_........

Page 1

. . __ .... _.... ---- ......

_-_ ...- . ---------_._._----_ .. _---_._ .. _....... __ ._--_..... -_._... - ._-

- . ..
'

(

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

December 4. 2001

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

FROM:

DARYL KOSIAK, Regional Counsel

SUBJECT:

Monthly Report (November 2001)

( ...
~ '~

-I
LITIGATION. CLAIMS. AND ADMINISTRATIVE REMEDY STATISTICS
LITIGATION:

INST
NCR

NUM

HC

FTC

BIV

OTH

ANS

PEN

CLD

HIT

SET

AWD

21

11

4

5

1

17

435

24

18

a

0.00

I

Total cases for Calendar Year· 284

NUM •
HC·
FTC •
BIV·
OTH •
ANS •
PEN·
eLC HIT •
SET·
Awe·

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

Appeals

NUM

He

FTC

BIV

OTH

ANS

4262

PEN

CLD

HIT

seT

I AWD I

I

..

..

,

Joyce Zoldak - nov_01.rpt.wpd

('

Page 2

North Central Region
Regional Counsel Monthly Report
November 2001
Page 2
NCR

o

o

o

o

o

o

o

17

Mental Health
18 USC § 4245

Petitions filed
4

Hearings
9

18 USC § 4246

1

2

o

o

o

ADMINISTRATIVE CLAIMS
!

JAN
280

FEB
259

MAR
295

APR
276

MAY
296

JUN
271

JUL
244

AUG
245

SEP
223

OCT
228

NOV
216

#Received

59

56

80

65

69

62

52

86

65

70

53

#Answered

76

59

82

52

91

112

56

68

96

65

8

9

9

10

9*

15

13

8

10

3

84
9·

259

295

276

296

271

244

245

223

228

216

187

#Pending

(

'..,

.

.

#OverS
month
#Pending

DEC

i

I·
!

. I

Total for Calendar Year· 717

*.1 Claim being investigated by OIA.
ADMINISTRATIVE REMEDIES

f

I

JAN

FEB

MAR

APR

MAY

JUN

JUL

AUG

SEP

OCT

NOV

#Received

196

223

270

155

206

245

208

166

192

218

214

#Answered

250

223

237

210

253

204

270

211

230

251

158

# Rejected

97

95

162

72

145

85

107

124

86

107

130

Total for Calendar Year· 2293

4263

DEC

I·

Page 3

Joyce Zoldak - nov_01.rpt.wpd
.

__ ._.

-_._----_.- -- ..._.-_. __ ._-_._--------- - - - - _ ... - - -----

.-

(

North Central Region
Regional Counsel Monthly Report
November 2001
Page 3

"

FREEDOM OF INFORMATION ACT/PRIVACY ACT REQUESTS

JAN

FEB

MAR

APR

MAY

JUN

JUL

AUG

SEP

OCT

NOV

#Pending

99

105

99

107

98

95

104

128

115

71

57

#Received

98

70

78

83

96

74

90

98

73

60

60*

#Processed

92

102

65

67

13

10

10

9

75
7

79
8

77

#Backlog

100
7

95
7*

91
7

60
6**

FOIAIPA

15

DEC

Total for Calendar Year - 880

* Only requests received by NeRO. no requests from CO received for this month.

*.

~

Requests awaiting the retrieval of records from the archives.

ADVERSE DECISIONS
Nothing to report.

r
I!

SETTLEMENTS OR JUDGMENTS

I!

I

Nothing to report.

I

DECISIONS OF INTEREST

I

Stocker v. US, FCr Sandstone
This was an FTCA action wherein the inmate alleged the overcrowded and impersonal conditions
. at SST led to his attempted suicide. On November 26, 2001, legal staff received an Order
granting the United States' Motion to Dismiss.

PENDING CASES OF INTEREST

Hakeem Ali Abdul·Shaheed v. United States, Case No. 00-752.JPG, USP Marion
The plaintiff complains that he was referred to a community physician regarding a concern about
one of his tonsils. However, the plaintiff alleges the physician removed the other tonsil that was
"perfectly normaL" He seeks unspecified compensatory and punitive damages.
,.

(

!"
I

4264

Page 4

Joyce Zoldak - nov_01.rpt.wpd

-------------------------------------- ._-_.-

(

...

North Central Region
Regional Counsel Monthly Report
November 2001
Page 4
Karamo B. Kaba v. Warden Stepp. et aI., Case No. 01·150·GPM, USP Marion
The plaintiff claims that defendant Laird conspired with and bribed inmates to assault him in
retaliation for filing administrative remedies. Other defendants were allegedly aware of this
situation, but took no action to protect the plaintiff and he was assaulted on February 23, 2001.
He seeks $500,000 in damages from all other defendants.
Van Someren v. United States, FMC Rochester
On November 5, 2001, depositions were taken from persons on the Compassionate Release
Committee regarding medical care provided to an inmate with a brain tumor. The inmate had
consistently refused treatment to have surgical intervention at Mayo Clinic, then sought
compassionate release and furloughs for surgery by a surgeon of his choice in California. A
Motion for Summary Judgment and/or a Motion to Dismiss will be filed shortly.
Dunn v. Hedrick. et aI., Case No. 01·3459-CV-S-SOW·p, USMCFP Springfield
Plaintiff alleges that defendants have opened, delayed, and returned his VA benefit checks, and
deprived him of all correspondence that came with the checks. Plaintiff also alleges that he
never received any notification that his mail was being opened, delayed, or returned to the VA in
accordance with BOP policy. Finally, plaintiff alleges that his personal mail is being lost or
destroyed before he receives it.

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Arctic v. Mundt, Case No. 01·1998, FCI Waseca
This is a habeas petition that seeks to invalidate Program Statements 5162.02 and 5162.04, for
failing to comply with Notice and Comment requirements of the Administrative Procedures Act
(APA). The inmate had previously filed a habeas petition with respect to 5162.02, has reentered
and completed the DAP program, and now falls under 5162.04.
Kluver v. J. E. Gunia. et aI., 01·CV·1604, ADX Florence
Bivens action wherein the inmate claims he became a verified protective custody case upon his
cooperation with the government during an investigation. He states he has been the victim of
two assaults due to his protective custody issues. He further claims the Bureau of Prisons
violated his Eighth Amendment rights by being deliberately indifferent to his safety needs by
placing him in harms way and for not taking reasonable measures to ensure his safety. The
inmate is seeking both declaratory and injunctive relief from the Court in the following manner;
compel the defendants to immediately transfer·him to an appropriately secure facility that will not
jeopardize his safety, bar the defendants from confining him in any U. S. Penitentiary in the
future, and compel the defendants not to house him with any inmates who have been housed
within the Special Housing Unit of USP Florence.
Moore v. Perdue. et aI., 01·M-1335, USP Florence
Bivens action wherein plaintiff alleges defendants violated his defendants in this case violated his
Fifth and Eighth Amendment rights by using excessive force on him and then conspired to "cover
up" the use of force by issuing him an incident report for Refusing an Order, Insolence, and
Assault. Specifically, plaintiff alleges he was subjected to an unprovoked attack and sustained
injuries and permanent scars to his wrist and suffers with his back since the incident. Plaintiff is
seeking injunctive relief for the court to order the defendants to resign from their positions, award

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North Central Region
Regional Counsel Monthly Report
November 2001
Page 5

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court costs and attorney fees.
Plaintiff also seeks to be awarded $100,000.00 jointly and
severally from each defendant for phYSical and emotional injuries.

RELIGIOUS FREEDOM RESTORATION ACT
No new cases.

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UPCOMING HEARINGS AND TRIALS

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United States v. Danny Cobb, Case No. 01-CR-40015-GPM, USP Marion
Inmate Cobb, who is charged with escape from the custody of FPC Marion, was arraigned on
March 12,2001. Trial was stayed pending examination to determine competency. The
defendant was found mentally competent and trial set for October 2, 2001. On September 17.
2001, defendant changed his plea to guilty. Sentencing is set for December 10,2001 at 10:30
a.m.
CRIMINAL MATTERS
,

u.s. v. Moore, 01-CR-30176, FPC Greenville
U.S. v. Terry, 01-CR·30176, FPC Greenville
U.S. v. Johnson, 01-CR·30176, FPC Greenville
On November 28,2001, Rico Moore (#26076-044), Derrick Terry (#26007-044), and James
Johnson (#26078-044) were indicted for Escape from FPC Greenville.
United States of America v. Ricky Lynn Tuck and Patricia A. Tuck. 01-CR-20149-ALL, USP
Leavenworth
On November 14, inmate Ricky Tuck and his wife were indicted in an eight count indictment,
charging them with Possession with Intent to Distribute a Controlled Substance, in violation of 21
U.S.C. § 846; Use of a Communication Facility (telephone) to facilitate the above offense, in
violation of 21 U.S.C. § 843 (5 counts): and Attempting to Possess with Intent to Distribute
Methamphetamine, in violation of 21 U.S.C. § 841 (a)(1) and § 2. The indictment charges that the
inmate and his wife committed the above infractions beginning on February 6, 2000 and ending
November 14, 2001

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USA v. Walter Walsh, OO·CR·0133, Ft:1 Florence
On 8/3/01 defendant appeared in Court for a change in plea. Guilty plea entered and accepted
by the court. Sentencing hearing set for 10-19-01. On 10/18/01, the Court continued the
sentencing hearing. A status hearing with respect to the sentencing is scheduled for 11/21/01.
Discussions with the AUSA reveal that Walsh is considering attempting to withdrawal his guilty
and go to trial. Walsh now believes that he can prevail and be found not guilty at a trial. Close
monitoring of t,his matter continues.

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Joyce Zoldak - december_01.rpt.wpd

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

January 8, 2002

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

DARYL KOSIAK, Regional Counsel

FROM:

!
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Monthly Report (December 2001)

SUBJECT:

rI

LITIGATION. CLAIMS. AND ADMINISTRATIVE REMEDY STATISTICS
LITIGATION:

INST

NUM

HC

FTC

BIV

OTH

ANS

PEN

CLD

HIT

SET

AWD

NCR

33

23

7

3

a

34

372

27

3

1

0.00

I,
I
r

Total cases for Calendar Year - 317

NUM HC FTC BIV OTH ANS PEN CLD HIT SET AWD •

Number of total lawsuits flied 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
Number of hearing.s or trials (include in narrative)
Number of settlements (include in narrative)
Number of Awards (include in narrative)

Appeals

NUM

HC

FTC

BIV

OTH

ANS

PEN

CLD

HIT

SET

I AWD I

i

I

(
1'-

i
4298

Page 2

Joyce Zoldak - december_01.rpt.wpd

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North Central Region
Regional Counsel Monthly Report
December 2001
Page 2
NCR

o

o

o

o

a

o

o

28

Mental Health
18 USC § 4245

Petitions filed
1

Hearings
0

18 USC § 4246

2

1

o

0.00

ADMINISTRATIVE CLAIMS

#Pending

JAN
280

FEB
259

MAR
295

APR
276

MAY
296

JUN
271

JUL
244

AUG
245

SEP
223

OCT
228

NOV
216

DEC
187

#Received

59

56

80

65

69

62

52

86

65

70

53

70

#Answered

76

59

82

52

91

112

56

68

96

65

84

53

8

9
295

9

10

9*

15

13

8

10

3

9*

0

276

296

271

244

245

223

228

216

187

212

#Over6
month
#Pending

259

Total for Calendar Year -787
*J. Claim being investigated by OIA.

ADMINISTRATIVE REMEDIES

JAN

FEB

MAR

APR

MAY

JUN

JUL

AUG

SEP

OCT

NOV

DEC

#Received

196

223

270

155

206

245

208

166

192

218

214

245

#Answered

250

223

237

210

253

204

270

211

230

251

158

217

# Rejected

97

95

162

72

145

85

107

124

86

107

130

103

.,
I

Total for Calendar Year· 2538

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- - - - _ ._ _ _ _ _ _ •• _ _ ••

4299

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Joyce Zoldak - december_01.rpt.wpd

Page 3

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North Central Region
Regional Counsel Monthly Report
December 2001
Page 3

FREEDOM OF INFORMATION ACT/PRIVACY ACT REQUESTS

MAR APR MAY JUN

JUL

AUG

SEP

OCT

NOV

DEC

95

104

128

115

71

57

69

96

74

90

98

73

60

60*

77

67

100

75

79

77

95

91

60

77

9

7

7

. 8

15

7*

7

6**

0

JAN

FEB.

#Pending

99

105

99

107

98

#Received

98

70

78

83

#Processed

92

102

65

#Backlog

13

10

10

FOIAIPA

Total for Calendar Year - 957

* Only requests received by NCRO. no requests from CO received for this month.
**2 Requests awaiting the retrieval of records from the archives.
ADVERSE DECISIONS
Nothing to report.
SETTLEMENTS OR JUDGMENTS

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Appleby-EI v. United States, Case No. 97-N-671, ADX Florence
On December 17. 2001. plaintiff agreed to withdraw his Motion to Vacate Judgment and the
settlement funds were posted to his inmate account. Plaintiff signed both a Motion to Withdraw,
Motion to Vacate Judgment. and the Receipt and Satisfaction of Settlement.

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DECISIONS OF INTEREST
Farmer v. Perrill. et aI., Case No. 93-0-1253, FCI Englewood
On December 26. 2001. the Tenth Circuit reversed a decision of the district court and granted
judgment for two staff members. Farmer 'had sued the United States Attorney under the FTCA,
and sued the Englewood staff under Bivens, alleging the denial of transsexualism. The FTCA
action was dismissed with prejudice for failure to prosecute.
Defendants moved for
reconsideration of the order denying their motion for summary judgment in this action, invoking
section 2676. The district court denied the motion on the premise that the Bivens claim against
defendants in their individual capacities were not foreclosed by the dismissal of the related FTCA
action because the FTCA barred claims against defendants only in their official capacities. In the
interlocutory appeal. however. the Tenth Circuit reversed and held the dismissal of the FTCA
action as a bar to further litigation arising out of the same transaction and occurrence.

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Page 4

North Central Region
Regional Counsel Monthly Report
December 2001
Page 4
Draine v. Gilkey, Case No. 99-620, FCI Greenville
This case was voluntarily dismissed after the BOP received clarification from the sentencing
judge regarding his intention to reduce petitioner's sentence under U.S.S.G. § 5G1.3. After
receiving clarification. FCI Oxford recalculated petitioner's sentence and dismissal was sought by
agency counsel.
Benites-Broches v. Hedrick. et al., Case No. 01-l022-CV-S-1-H, USMCFP Springfield
In this case, petitioner contended that he should be released from confinement and/or deported
back to Cuba via INS. The case was dismissed on December 5,2001.

PENDING CASES OF INTEREST
Baker (Milton) v. L. J. Smith, Case No. 01-CV-2357, USP Florence
This is a Bivens action wherein the inmate is challenging the findings of the DHO. Specifically,
the inmate claims that the hearing did not afford him the required due process. Plaintiff seeks
expulsion of the inCident report and return of his good conduct time. An order directing service of
this has not yet been entered. A request for representation is being prepared.

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David Merritt Litigation, ADX Florence
Currently, David Merritt has four cases pending: a 1995 Bivens hybrid; a 1997 Habeas; a 1999
Bivens hybrid; and a 2000 Bivens hybrid. Legal staff is attempting to reach a global settlement
that would encompass these cases. The inmate has set forth roughly 40 claims in each of the
three Bivens cases. As of this time, there are 18 remaining defendants in the 1995 case, 22
remaining defendants in the 1999 case, and 25 remaining defendants in the 2000 case.
Furthermore. a Motion to Dismiss is pending in the 1999 case, and the deadline for a Motion for
Summary Judgment in the 1995 case is in January.
r.

Michael S. Stevens v. Warden Booker, Case No~ 00-3258-GTV, USP Leavenworth
In this action filed pursuant to the Federal Tort Claims Act, plaintiff alleges staff were negligent in
placing him in the same cell with inmate Scott Shofler in SHU at USP Leavenworth on July 13,
1998. Plaintiff was assaulted by inmate Shotler early in the morning of July 14, 1998. Because
Shofler had killed an inmate at USP Leavenworth a few months prior to his placement in SHU,
Stevens claims his placement with Shotler was negligent. Plaintiff claims he suffers acute pain
and permanent damage to his spine. He seeks two million dollars in compensatory damages.
Mitchell v. United States, Case No. 01-0742, USP Leavenworth
Plaintiff alleges medical staff at USP Leavenworth were negligent when they failed to surgically
repair his broken left wrist. During the investigation of the administrative claim, it was determined
the surgery should have been completed and recommended settlement of the claim. However,
due to the failure of the plaintiff's attorney to provide medical documents necessary to determine
the value of the claim, the claim was denied.
The case is now pending in the Western District of Missouri. A settlement conference was held
on Friday, January 4, 2002. Settlement authority up to $25,000 was granted by the Central

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North Central Region
Regional Counsel Monthly Report
December 2001
Page 5

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Office. The mediation ended without a resolution. The plaintiff came from $150.000 down to
$85.000. The government plans to access some additional medical data. The Mediator believes
that if the case goes to trial. the judge will award in excess of $30.000. This case is being
handled by Janice Bonneville. Assistant Regional Counsel.
Diego Gil v. James Reed. et al., Case No. 00-C-724-C, FCI Oxford
Plaintiff alleges that the defendants provided him with inadequate medical care in violation of the
8th Amendment, and that the United States is liable under the FTCA for the negligent or reckless
provision of medical care to him. A motion for summary judgment was filed on September 26.
2001. Plaintiff was granted an extension to file a response to this motion. and the Court's
decision is pending.
Felton v. Reese, Case No. 01-2278, FMC Rochester
This is a combination Bivens/FTCA action filed in the District of Columbia against the warden and
an officer. The inmate claims his constitutional rights were violated when an officer grabbed his
toe while conducting a count. Warden Reese has been served, but the officer has not been
·served. Felton's tort claim is still pending resolution. Information was provided to Paul Schneider
in Central Office to assist with response. and representation requests have been initiated.
Huerta-Macias v. US, Case No. 01-1812, FCI Sandstone
This is a combination Bivens/FTCA action in which the plaintiff claims staff at Fel Greenville and
FCI Sandstone improperly continued him in the Financial Responsibility Program after a court
had ordered him to be free of restitution obligations. All defendants are "John Does," and have
not been served. Staff had been working with the United States Attorney's Office to obtain back
restitution for payments entered after the order and prior to staff becoming aware of the court's
amended restitution order. Representation requests have begun on potential defendants, and
the litigation report is being prepared.
Booker T. Gary, Jr. v. Keith E. Olson, Case No. 01-270-C-T/F SO-IN, USP Terre Haute
In this Habeas suit, inmate Booker T. Gary alleges he has been denied access to his legal and
personal property in violation of his constitutional rights. It appears the complaint arises out of
Booker's placement in SHU in September of 2001. While in general population, this inmate'
accumulated a voluminous amount of personal property to which, he asserts, staff members
have not given him adequate access. A draft response should be provided to the AUSA by the
end of January 2002.
RELIGIOUS FREEDOM RESTORATION ACT
No new cases.
UPCOMING HEARINGS AND TRIALS
Hannah v. Williams. et at, Case No. 00-WM-848, USP Florence
A hearing is scheduled for January 17. 2002. on plaintiff's motion for a TRO. Plaintiff is claiming
that Fel Sheridan is requiring him to pay for postage and copies made while he was housed at

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Joyce Zoldak - december_01 .rpt.wpd

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North Central Region
Regional Counsel Monthly Report
December 2001
Page 6
USP Florence . Plaintiff alleges that alth ough he agreed to pay for the copies and postage when
he obtained funds on his account. he should not be required to pay now because the Court
permitted hi m to proceed in forma pauperis.
Kikumura v. Hurley and Gallegos, Case No. 98-B -1442, USP Florence
On November 22, 2001, a Motion to Stay the proceed ings was filed by the United States
Attorne y. The USA is seeking a stay until the BOP is able to fully determine how to manage
inmates such as the plaintiff. A hearing on the Motion to Stay is scheduled for January 10, 2002
at 2:00 p.m. in the Federal Courthouse in Den ver.
CRIMINAL MATTERS

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United States of America v. Michael P. McElhiney, D. CI. No. 98-CR-40083-01-RDR, 10th CiL
No. 00-3056, USP Leavenworth
On December 26,2001 , the Tenth Circuit Court of Appeals overturned the conviction received by
former USP Lea ve nworth inmate . Michael McElhiney, for Co nspiracy to Distribute and Possess
Heroin with Intent to Distribute, which is a vio lation of 21 U.S.C. § 846 & 841 (b)(1)(C) . McElhine y
had been convicted of running a drug smuggling ope ra tion in the penitentiary between January
and September of 1995. This conviction was the result of the second of two jury trials . The first
trial resulted in a hung jury. The second trial also initially had a hung jury, however Judge
Richard Rogers provided what are called "Allen cha rges" to the ju ry to assist them in reaching a·
unanimou s ve rdict. These in structions, along with some observations made by the judge,
resulted in the conviction being overturn ed.
PERSONNEL ISSUES

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STAFF TRAVEL AND LEAVE
January 14
January 15-18
January 24-25

Administrator's Retreat
OGC Meeting
Annual Leave

January 14-15

Ad min istrator's Retreat

January 14 (1/2 day)
January 22-Februa ry 7

Annual Leave
Glynco, GA

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