U.S. Department of Justice

Federal Bureau of Prisons
North Central Region
Kansas City, KS 66101-2492

January 10, 1997
MEMORANDUM FOR WALLACE H. CHENEY, ASSISTANT DIRECTOR
GENERAL COUNSEL & REVIEW
FROM:

JOHN R. SHAW, Regional Counsel

SUBJECT:

MONTHLY/QUARTERLY REPORT (December 1996)

LITIGATION, CLAIMS, AND ADMINISTRATIVE REMEDY STATISTICS
LITIGATION:

JAN

FEB

MAR

APR

MAY JUN

JUL

AUG

SEP

OCT

NOV DEC

37

31

40

37

35

26

25

30

27

17

JUL

AUG SEP

OCT

NOV DEC

65

55

71

61

JUL

AUG SEP

OCT

187

228

NOV DEC
206
171

25

15

Total for Calendar Year 345

342

Pending

ADMINISTRATIVE CLAIMS:

JAN

118

FEB

MAR

APR

MAY JUN

119

115

106

74

45

89

67

Total for Calendar Year 985
351

Pending

ADMINISTRATIVE REMEDIES

JAN

262

FEB

MAR

219

188

APR
252

MAY JUN
232

Total for Calendar Year 2,562

228

198

193

3
One relating to retaliation.
The court of appeals reversed
dismissal of counts ONE (A.D. placement only), SIX, SEVEN, TEN,
ELEVEN, TWELVE AND THIRTEEN (use of force only) .
SETTLEMENTS OR JUDGMENTS
Coy Phelps v. Carlson. et al, D. Minn. Case No. 4-95-735, FMC
Rochester
This case was initiated against several BOP employees, two mayo
clinic affiliated hospitals and several John Doe Defendants.
In
November, 1992, the district court granted summary judgment to
some of the defendants and dismissed the complaint for failure to
state a claim as to all others. The plaintiff appealed, and the
Eighth Circuit affirmed in part, reversed in part and remanded.
See Phelps v. u.S. Government, 15 F.3d 735 (8th Cir. 1994). The
three issues remanded back to the district court were (1)
allegations of violations of the 5th Amendment right against
self-incrimination; (2) violation of the 1st Amendment religious
exercise (Mr. Phelps professed to be a white supremacist); and
(3) violation of 5th Amendment due process.
Following the
remand, the government resubmitted a motion for summary judgment.
The government received an adverse report and recommendation.
After discussion with institution staff, it was agreed that this
claim would be settled for $350.00 under the FTCA. Mr. Phelps
had filed an FTCA claim alleging loss or mishandling of his mail.
DECISIONS OF INTEREST
United States v. S.A., D. Minn, Civil No. 4-96-184, FMC Rochester
S.A. was adjudicated delinquent and committed to the custody of
the Attorney General. As he approached his 21st birthday, he was
referred to FMC Rochester for evaluation as to whether his
release would create a substantial risk of bodily injury to
another or serious damage to the property of another.
Following
the evaluation, BOP staff initiated a petition for commitment
under 18 USC 4246.
the Federal Public Defender's Office argued
that the district court lacked jurisdiction, because S.A. had
never been charged with or convicted of a crime.
Instead S.A.
had been adjudicated delinquent, a civil procedure.
A U.S.
Magistrate Judge took testimony on the issue of S.A. 's mental
condition and need for treatment. The Magistrate recommended
that the court lacked jurisdiction because 18 U.S.C. 4246 did not
apply to juvenile offenders, but if it did apply, S.A. was
mentally ill, and his release would create a substantial risk of
bodily injury to others and/or serious damage to the property of
another.

4
The government submitted timely objections.
Judge Doty sustained
the government's objections and concluded 18 U.S.C. 4246 was
applicable to juvenile offenders.
S.A. has been conditionally
released.
The Federal Public Defender is contemplating appeal.
PENDING CASES OF INTEREST
AYler v. Vereforth, et aI, S.D. III Case No. 96-046-JPG & Okai v.
Verefurth, et aI, S.D. Ill. Case No. 96-047-JPG, FCI Greenville
These two similar cases contain allegations against staff
alleging excessive use of force in the aftermath of the October,
1995 disturbance.
We have spent an extensive amount of time
reviewing OIA reports and other documents to ascertain the
involvement of the defendants.
The matter is complicated
because the agency took administrative disciplinary action
against some of the defendants for conduct involving other
inmates. We have been working closely with DOJ staff regarding
representation issues.
In Okai v. Verfurth. et al., three defendants were approved for
representation while three were not.
Former U.S. Attorney
Frederick Hess is representing one of the employees denied
representation.
Two new defendants were recently interlineated
as John Does.
Representation for these individuals is pending
with DOJ.
In Tyler v. Verfurth. et al., four of the defendants are being
represented Jesselyn Brown, Constitutional Torts. Branch, Civil
Division; one employee was approved outside counsel by DOJ and
is represented by Michael Nester; and three employees were denied
representation by DOJ and have been represented to date by
Frederick Hess although conflicts may arise
Terrence Smith v. Marvin King. et. al., Case No. 96-507-JPG.
This case follows on the heels of Okai v. Verfurth. et ale and
Tyler v. Verfurth. et ale alleging similar claims of excessive
force in the aftermath of the October 1995 disturbance.
As in
those cases,· we have spent extensive time reviewing OIA reports
and other documents to ascertain· the involvement of the
defendants.
Also as in those cases, the agency took
administrative disciplinary action against some of the de:endants
for conduct arising out of the time period referenced in the
complaint.
In the present case, however, at least one of the
defendant's disciplinary actions resulted from violations
involving the plaintiff.
We continue to. work closely with DOJ
staff regarding representation issues.

5
RELIGIOUS FREEDOM RESTORATION ACT CASES

No new RFRA cases.
CRIMINAL HATTERS

Trial preparations continue in the USP Leavenworth case of United
States v. Storey (District of Kansas).
Inmate Storey is charged
with capital murder for killing another inmate in a SHU exercise
cage. Trial is scheduled to begin in April, 1996.
Four Florence inmates are scheduled to be sentenced in January
for their part in the October, 1995 disturbance at FCI Florence.
All four pleaded guilty or were fo~nd guilty of riot.
ADMINISTRATIVE CLAIMS AND OTHER MATTERS OF INTEREST

To implement the provisions of the new quality assurance program
statement, FTCA administrative claims alleging inadequate medical
care are routed through the regional health service administrator
to facilitate identification and review of potentially difficult
cases.
STAFF TRAVEL AND LEAVE

John

Glynco & Atlanta

Daryl

Glynco & Atlanta
January 6,7,8
Madison, Wisconsin
January 20-23
Farmer v. Brennan trial

Dan

None Scheduled

Tom

None Scheduled

Gwen

None Scheduled

Janet

Annual Leave

Gary

None Scheduled

January 6,7,8

January 2,3

Claims database WAN to Mary Rose Hagan on January 2, 1997.