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u.s. Department of Justice

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Federal Bureau of Prisons
"North Central Region

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Kansas City, KS 66101-2492

January 12, 1996
MEMORANDUM FOR WALLACE H. CHENEY, ASSISTANT DIRECTOR
GENERAL COUNSEL & REVIEW
FROM:

JOHN R. SHAW, Regional Counsel

SUBJECT:

QUARTERLY(MONTHLY REPORT (December 1995)

LITIGATION AND RELATED ISSUES
STATISTICS: Line 1 = New Cases Filed

Line 2 = Total New Cases in Year

LITIGATION:

JAN
,')Ot1

f4,t(}- 25

FEB
15

qVM~J. 40

MAR
36
76

APR
16
92

Pen Ing

AUG SEP
12
28
183 195

OCT
9
204

MAY JUN
12 12
104 116
849

JUL
39
155

MAY JUN
86 67
323 390
312

JUL
70
460

AUG SEP
96
66
526 622

MAY JUN
152 150
700 850

JUL
136
992

AUG SEP OCT
173 162 180
1166 1328 1508

~EC ~J~
~J

NOV
7
211 215

ADMINISTRATIVE CLAIMS:

JAN
58

FEB
55
113

MAR
57
170

APR
67
237

Pending

OCT
63
685

NOV DEC
105 115
790 905

ADMINISTRATIVE REMEDIES:

JAN
155

FEB
125
280

MAR
143
423

APR
125
548

NOV DEC
175 203
1683 1886

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2
ADVERSE DECISIONS

Knighton v. Hershberger, 95-3315-CV-S-RSC, W.D. Missouri, Habeas, MCFP
Springfield.
Petitioner was convicted of offenses against the United States committed after
October 26, 1986, but prior to November 1, '1987. In addition to a term of
imprisonment, he was ordered to serve a period. of supervised release. Upon
revocation of his supervised release term, he was sentenced to an additional 16
months of imprisonment. Per BOP policy, his supervised release violator term was
computed using Good Conduct Time pursuant to 18 U.S.C. § 3624.
Petitioner prevailed with his argument on December 12, 1995, that he is entitled to
statutory good time under 18 U.S.C. § 4161, et seq. applied against his
supervised release term. The ruling moved up petitioner's release date
approximately 30 days. There will be no late release.
Institution staff and this office are not recommending appeal for the following
reasons: (1) the ruling only applies to petitioner, (2) the opinion is not reported, (3)
it is likely petitioner's sentence as calculated using GCT would expire prior to the
court of appeals ruling on the issue, (4) an adverse ruling at the court of appeals
level could result in a published opinion and necessitate a change to current BOP
policy.

William K. Gardner v. Susan Gerlinski, 95-4290, Habeas Corpus, FPC Yankton
Plaintiff was convicted of bank robbery under 18 U.S.C. § 2113(a). The BOP
classified the offen,se as a crime of violence and made the plaintiff ineligible for a
year off his sentence under 18 U.S.C. § 3621 (e). The District Court for South
Dakota held that BOP policy precluded the § 2113(a) conviction from being
classified as a crime of violence unless there was a finding of violence made by the
sentencing court. In plaintiff's case, there had been no such finding by the
sentencing court, so the BOP's classification was improper. While the Court did
conclude that the plaintiff was eligible for time off his sentence under the DAP
program, it recognized that the BOP retained the discretion to decide whether the
plaintiff's sentence would in fact be reduced.

SETTLEMENTS OR JUDGMENTS

McNally v. Fleming. et aI., 91-836-JPG, SD Illinois, Bivens, USP Marion.
Petitioner alleged excessive use of force in a force cell move at USP Marion in April
of 1984. The matter was tried before a jury on December 12, 1995. On
. December 13', after deliberating two hours, the jury returned a verdict in favor of

the defendants and against the plaintiff. Paul Pepper assisted the AU SA in the
case.

Yu Kikumura v. C.A. Turner, 92-132-WLB, SO Illinois, Bivens, USP Marion.
Plaintiff alleged that defendant, then the Warden at USP ·Marion, violated his
constitutional rights under the Fist Amendment and the Equal Protection Clause by
prohibiting him from receiving mail and publications in Japanese. The Seventh
Circuit affirmed the District Court's initial decision in favor of the defendant
regarding monetary damages but remanded with respect to plaintiff's claims for
injunctive and declaratory relief. Kikumura v. Turner, 28 F.3d 592 (7th Cir. 1994).
During the interim, plaintiff was transferred to ADX Florence and defendant Turner
was replaced as Warden at USP Marion. On remand, the District Court granted the
Defendant's Motion for Summary Judgment on October 5, 1995, because the
remaining claims were moot. The Court also granted Defendant's Motion to
Dismiss for Failure to Prosecute the same day.

DECISIONS OF INTEREST

United States v. Thomas, 68 F.3d 392 (10th Cir. 1995)
Defendant was convicted of DUI at Fort Leavenworth, Kansas using the
Assimilated Crime Act and Kansas law. As a condition of probation the defendant
was ordered to undergo inpatient rehabilitation for chemical dependency. When
his probation was revoked, the issue was whether federal or state law was to be
followed in determining the appropriate sentence. The Court of Appeals held that
the guidelines did not apply to Class Band C misdemeano.rs or infractions, and
hence the federal court was to apply state law in determining the appropriate
sentence. The last paragraph of the opinion continued dicta indicating that prior
custody credit should be calculated using state law.
The BOP initially declined to grant 28 days jail credit for the time the defendant
spent in inpatient treatment. The defendant filed a writ of habeas corpus alleging
illegal detention. Upon review of all proceedings, it was determined that the
district court has initially believed that under Kansas law, the defendant would be
entitled to the credit. The attorneys for the government, without input from the
BOP, acquiesced. In light of the government's position becoming the law of the
case" and because the government's position was the position viewed by the 10th
Circuit, credit was given and the individual was released on January 12, 1996.
The U. S. Attorney's Office and the Chief USPO for the district have been advised
of the BOP's position if this issue arises again.

4

PENDING CASES OF INTEREST

lozano v. Reno, 95-5-2661, FCI Englewood, District of Colorado
The plaintiff alleges that he was forced to work in a racially hostile environment,
retaliated against for opposing such conduct, and eventually unlawfully discharged
as a result. He is represented by counsel and appears to have exhausted his
administrative remedies through EEO. He seeks an undetermined amount of
damages which includes back pay, reinstatement, post-judgment interest,
attorney's fees and costs.

Pedersen v. Reno, 5-95-304, FPC Duluth, District of Minnesota
This cause of action is based upon Title VII, the Fair Standards Act, and the Equal
Pay Act. The plaintiff, represented and a current BOP employee, claims she was
denied a salary and grade level comparable to males performing the same functions
at the FPC. She is represented by counsel and seeks $300,000 in compensation
for emotional distress, back pay, interest, attorney's fees, and injunctive relief.

Kalka v. United States, 91-Z-753, FCI Englewood, District of Colorado
This action seeks equitable relief concerning conditions of confinement at Fel
Englewood. The court concluded that issues related to ventilation and lighting
could not be resolved on summary judgment and ordered that the government pay
for expert assessment of conditions at the FCI. The plaintiff's expert has
recommended several changes to FCI operations including installation of lavatory
fans and installation of a ventilation systen:t in the housing units. The
recommendation is premised on air flow measurements which do not meet industry
standards. Because the government's own expert made similar findings and
recommendations, institution facilities are calculating the cost of making the
recommended modifications.
Former inmate Darrell Prows was originally a plaintiff in this case, but has been
dismissed due to his release from prison.

Howard v. United States. 92-N-1515, FCr Englewood, District of Colorado
This case deals with plaintiff's desire to conduct Satanic rituals at Fer Englewood.
Following a grant of a preliminary injunction, the government sought
reconsideration and filed a protective order of appeal. The motion for
reconsideration has been pending since October, 1994. The Clerk of the Tenth

5
Circuit Court of Appeals recently advised Judge Nottingham that no action can be
taken by the court of appeals until until the motion for reconsideration is ruled on.

RELIGIOUS FREEDOM RESTORATION ACT CASES

Keith v. Wooten, 94-N-2844, FCI Florence, District of Colorado
The plaintiff in this case claims to be a member of the "Christian Identity
Movement" (elM) and is suing the former Warden of FCI Florence for injunctive
relief. He and other CIM inmates were prohibited from meeting after the Central
Office's Religious Issues Committee decided that such meetings could negatively
impact the security of. FCI Florence. Initially, NCRO legal proceeded with an eye
towards litigation and recruited an expert witness with experience testifying in
cases involving hate groups such as the Ku Klux Klan, the Order, the Posse
Comitatus, and the Skinheads. The expert provided the Court a report
summarizing that CIM taught it's members that violence against Blacks, Jew,
Catholics, and Homosexuals had Biblical justification. Additionally, during
plaintiff's deposition, he did not express whether "non-Aryan" inmates would be
allowed to attend CIM services.
Unfortunately, NCRO legal discovered that the current Warden of FCI Florence
does not see elM meetings as a threat. Furthermore, the member of the Religious
Issues· Committee have either changed their position on the issue or are reluctant
to testify. FBI headquarters was contacted and that agency does not take the
position that the CIM is a terrorist and/or threat group. In light of these
developments and the demanding standards imposed under RFRA, I will be
contacting Assistant Director Carlson to determine if we should continue to litigate
this matter or explore settlement.

CRIMINAL MATTERS

None reported.
ADMINISTRATIVE CLAIMS OF INTEREST

None reported.
STAFF TRAVEL AND LEAVE

John

None Scheduled (OGC Meeting cancelled)

Daryl

None Scheduled

Dan

None Scheduled

Gwen

None Scheduled

6
Gary

None Scheduled

Janet

Annual Leave 1-12-96

Rick

None Scheduled

FTCA backup disk mailed to Mary Rose Hagan on January 5, 1996.