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 11, 2000
MEMORANDUM FOR CHRISTOPHER ERLEWINE
ASSISTANT DIRECTOR/GENERAL COUNSEL
GENERAL COUNSEL AND REVIEW DIVISION

C'

FROM:

DARYL KOSIAK, Regional Counsel

SUBJECT:

Monthly Report (July 2000)

LITIGATION, CLAIMS, AND ADMINISTRATIVE REMEDY STATISTICS
LITIGATION:

INST
NCR

NUM

HC

FTC

BIV

OTH

ANS

PEN

CLD

HIT

SET

23

6

5

10

2

17

437

36

1

0

PEN

CLD

HIT

SET

59

11

AWD

Total cases for Calendar Year -155
NUM HC FTC SIV OTH ANS PEN CLD HIT SET AWD -

(....

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)

Appeals

NUM

HC

NCR

3

3

FTC

BIV

OTH

ANS

3472

AWD

North Central Region
Regional Counsel Monthly Report
July 2000

Page 2

(
Petitions filed

Hearings

18 USC §4245

6

0

18 USC §4246

2

0

Mental Health cases

ADMINISTRATIVE CLAIMS

JAN

FEB

MAR

#Pending
#Received

55

65

55

#Answered
#Over 6
month'
#Pending

APR

MAY

JUN . JUL

254

207

238

233

47

48

59

52

45

55

71

66

4

7

7

10

207

238

233

219

AUG

SEP

OCT

NOV DEC

Total for Calendar Year - 381

(
ADMINISTRATIVE REMEDIES

#Received

JAN
175

FEB
164

MAR
192

APR MAY JUN
171 249 234

JUL
195

#Answered

168

178

178

186

207

164

264

AUG SEP OCT

NOV

DEC

Total for Calendar Year -1380

FREEDOM OF INFORMATION ACT/PRIVACY ACT REQUESTS

JAN

FEB

MAR

#Pending

47

33

48

APR MAY JUN JUL
68
71
70 73

#Received

68

94

92

69

77

75

61

#Processed

39

74

106

41

97

63

62

#Backlog

16

4

1

1

3*

3*

0

FOIAIPA

!

\.

Total for Calendar Year - 536

3473

AUG SEP OCT NOV DEC

North Central Region
Regional Counsel Monthly Report
July 2000
Page 3

•_ Requests awaiting the retrieval of records from the archives.

ADVERSE DECISIONS

c

Love v. United States, at al., Case No. 98-K-2712, ADX Florence
On July 28, 2000, the Court entered an order granting in part and denying .in part
defendants' Motion to Dismiss. Specifically, the Court dismissed plaintiff's Bivens
claims insofar as they are alleged against the United States or the named individual
defen~ants in their official capacities. The plaintiff's FTCA claims were also dismissed
insofar as they are alleged against the named individual defendants. In addition, the
Court dismissed plaintiffs Bivens claims for injunctive relief for failure to exhaust
available administrative remedies. Defendants' Motion to Dismiss the Bivens and
FTCA claims were denied on statute of limitations grounds, concluding that the doctrine
of equitable tolling applied. Furthermore, the Court denied defendants' Motion to
Dismiss plaintiffs Bivens claims on exhaustion grounds, noting that Congress has not
provided any administrative remedies to date that must be exhausted when a inmate
seeks damages against individual defendants in their individual capacities (after
dismissing out the injunctive claims). Finally, the Court denied defendants' Motion to
Dismiss the Bivens claims on qualified immunity grounds, finding plaintiff had pleaded
his allegations of constitutional misconduct with the required specificity. Adverse
decision memorandum has been prepared recommending appeal.
SETTLEMENTS OR JUDGMENTS

None.
DECISIONS OF INTEREST

Gayle Clancy v. United States, Case No. 98-CV·910, MCC Chicago
On August 4,2000, a bench trial was held in the slip and fall case concerning a visitor
entering MCC Chicago. The visitor alleged she slipped and fell on a metal electrical
outlet which has become slightly raised (highest point 5/8 inch lowest point 1/4 inch)
due to weather. The plaintiff was the sale non-govemment witness presented by the
plaintiff's attorneys. Two staff members testified she slipped and fell as she was
walking up the stairs towards the institution. Our Lieutenant testified she was sitting on
the stairs further north of the outlet when he arrived. Our former safety manager also
testified the outlet was never considered to be a safety hazzard due to the minor
elevation and its location (not in the normal walking path to the ingress and egress of
the building). Finally, our electrical foreman testified to the dimensions of the outlet As

3474

North Central Region
Regional Counsel Monthly Report
Ju~y 2000
Page 4

the trial was bifurcated, no testimony concerning damages was presented. The judge
found in the Government's favor (which he indicated he rarely finds for the government
after trial), specifically noting the staff had no bias to alter their testimony, and the
conclusions/assumptions they made about her tripping on the stairs were due to their
observations of where she landed and how she approached the building. Judgement
was entered for the government.
Johnson v United States of America, Case No. 98-3092-KHV, USP Leavenworth
The defendant's Motion to Dismiss or, Alternatively, Motion for SummaryJudgement
was sustained and the case was dismissed for lack of subject matter jurisdiction. In this
case, the plaintiff was placed in SHU for investigation concerning allegations that he
was pressuring another inmate for sex. His personal property was inventoried and
stored. He signed the forms without indicating any property was damaged or missing.
Defendants asserted the law enforcement exception to the FTCA, and the Court found
that BOP officials are "law enforcement officers" under § 2680(c).
Moore v. Winn, Case No. 99-1322, FCI Pekin
Habeas petition challenging DHO decision. Inmate received an incident report which
ultimately resulted in a housing unit reassignment. The court found the reassignment,
as well as the inclusion of the incident report in the petitioner's file, did not create a
liberty interest. Therefore, the court found it did not have jurisdiction to hear the case.
Massey and Steagall v. Helman, et ai, Case No. 99-2663, 7th Cir. 98-1348, FCI Pekin
Inmate and attorney alleged violations of their first amendment rights due to alleged
reading of legal mail and denial of unmonitored phone calls. The court found the
inmate plaintiff failed to exhaust his administrative remedies as required, thereby
barring his claim. The attorney's claim was dismissed for lack of standing.
Godines v. Oliver, et al., Case No. OO-Z-0098, 10th Cir. 00-1093, USP Florence
Plaintiff was directed by the district court to cure deficiencies (did not file certified copy
of trust fund account statement for previous 6 month period). He failed to do so, and
the matter was dismissed sua sponte. Petitioner filed an appeal, rather than correcting
deficiency. As Circuit noted, "[t]his Court is frankly mystified by Godines' insistence on
filing a frivolous appeal rather than filing his civil rights complaint with an appropriately
supported § 1915 motion."

(.

Merritt v. Pugh, Case No. OO-Z-0455, 10th eire 00-1129, ADX Florence
Appeals dismissed of § 2241 petition filed challenging various prison disciplinary actions
and conditions of confinement. District Court advised petitioner that his conditions of

3475

North Central Region
Regional Counsel Monthly Report
July 2000
Page 5

(

confinement claims were not appropriate under § 2241 and must be filed under Bivens.
Advised petitioner to submit new IFP motion and amend petition, or face dismissal.
Petitioner appealed, rather than correct deficiencies. He was denied IFP on appeal,
because the appeal was not taken in good faith. Tenth Circuit affirmed, finding appeal
not taken in good faith.
Mills, Mills-Mohler and Mills v. Lee et al., Case No. 99-Z-2147, 10th Cir. 00-1055
USP Florence
Inmate, his sister and their disabled father, filed an appeal alleging father was
mistreated when he attempted to visit USP Florence in January 1999. The petitioners
claim the father was denied access to visiting room in his personal wheelchair; the
prison didn't provide a chair for over two hours: and he was forced to pull himself along
a handrail to walk to the visiting room. The Court dismissed the inmate and sister for
lack of standing. The matter was dismissed sua sponte by district court, because
remaining claim did not state a constitutional claim. On appeal, the only issue raised
was whether district court erred in not requiring an answer from defendants prior to
dismissal. The Circuit held it was proper to dismiss prior to answer by defendants when
it is clear. from the face of the complaint that there are no legally cognizable claims.
Robinson v. Smith, Case No. 99-WM-0306, FCI Florence
Petitioner alleged that he was not released when he should have been. The R&R
ciated May 19, 2000, recommended dismissal as moot, due to petitioner's subsequent
release from prison. Petitioner failed to keep court advised of his current address. No
objections were filed. On July 10, 2000, the Court dismissed petition.

PENDING CASES OF INTEREST
Yu Kikumura v. United States, No. 97-CV-52-JPG, USP Marion
Plaintiff an filed FTCA action wherein he sought $1200.00 for lost or destroyed
property. Staff at USP Marion inspected the· cell where plaintiff was housed and
confiscated as excess property sixty-one(61) books and one pair of tennis shoes. A
Confiscation and Disposition of Contraband form was completed. However, plaintiff
refused to sign the confiscation form. Plaintiff was informed that "Your refusal to sign
the form, provide evidence of ownership and a destination of your choice to mail this
property will result in its disposal after 120 days. II In the pre-trial order, he states that
the value of the books "is $931.00 dollar." He then seeks $300.00 for stamps, photocopies and other miscellaneous items. It should be noted that he did not buy these
books himself but they were sent to him. Trial is set for August 28,2000.

(
"

James Lucus v. U.S.A., Case No. 00-3073-GTV, USP Leavenworth
In this case, plaintiff alleges negligence on the part of staff for their failure to install the
proper machine cutter blade protection as well as their failure to maintain and/or
encourage maintenance of an environment free of the wood chips, saw dust and

3476

North Central Region
Regional Counsel Monthly Report
July 2000
Page 6

machine oil which caused his injury. Plaintiff's right index finger was partially
amputated as a result of an injury he received while working in Unicor at USP
Leavenworth.

Fields v. Lacy, Case No. 98-WM-1SS4, ADX Florence/USP Leavenworth
Bivens action by inmate regarding his being found guilty by DHO in LVN of killing
another inmate. On July 14, 2000, the Court dismissed defendants Hurley and
Hershberger with prejudice and transferred remaining claims to District of Kansas.
Barnes v. Holt, et al., Case No. 00-B-797, USP Florence
Habeas action alleging petitioner has threats against his life and BOP failed to protect
him. Petitioner claims he has been denied a transfer to a safer institution, he received
incident reports for refusing general population, he has been placed in segregation for
extended periods of time for not giving up other inmate's names and failing to
cooperate in his protection investigation.
Sheptin v. Hedrick, et al., Case No. 00-3308-CV-S-1-H, MCFP Springfield
Petitioner alleges that respondents have stopped his chemotherapy through
negligence. Further, petitioner contends that discontinuance of chemotherapy will
cause him irreparable harm.

Ricks v. Paterson, at al., Case No. 00-1363, FCI Sandstone
Bivens action alleging violations of 8th Amendment rights (inadequate facilities,
overcrowding vs. rated capacity, asbestos exposure, staffing issues, increase of
violence and disease due to overcrowding and unsafe drinking water) and 1st
Amendment rights (opening of incoming and outgoing legal mail).
RELIGIOUS FREEDOM RESTORATION ACT
Kikumura v. Hurley and Galiegos,Case No. 98-B-1442,10th eire 99-1284, ADX
Florence
Outside individual sought to visit with inmate for religious reasons. Visit denied
because not requested by inmate and because not a member of same faith group.
Private counsel for the named defendants, due to RFRA issues. Plaintiff filed motion
for TRO, which was denied. He appealed the TRO denial. On appeal, Court appointed
counsel for petitioner and directed briefing. Private counsel urged that RFRA should
not apply. DOJ intervened, to argue that RFRA was constitutional and should apply.
Matter set for oral argument on September 29,2000.

UPCOMING HEARINGS AND TRIALS

3477

North Central Region
Regional Counsel Monthly Report
July 2000
Page 7

(

See above Kikumura.

CRIMINAL MAITERS
United States v. Ayala, USP Leavenworth
Louie Ayala, Reg. No. 80221-011, entered a guilty plea to charges that he unlawfully,
knowingly, and intentionally used a communication facility, that is, a telephone, to
commit, cause, and to facilitate the attempted possession with intent to distribute a
controlled substance in violation of 21 U.S.C. Section 843(b).
United States v. Johnson and Schofler, USP Leavenworth
On July 31, 2000, Rick Winter, Attorney-Advisor at Leavenworth, attended a hearing in
front of Judge VanBebber in connection with the plea agreements of Schofler and
Johnson for the murder of inmate Smothers. Judge VanBebber ordered an expedited
preparation of the PSis and once completed, he will determine whether the conduct
falls within the guidelines for a 10 year sentence. The responsible AUSA anticipates
that this process will take approximately 30 days.
U.s. v. Cheryl Hicks (a.k.a. Rachel Lewis), FCI Pekin
Former staff member charged with two counts of Abusive Sexual Contact in violation of
Title 18 U.S.C. § 2244 (a)(4). Final Motions/Pretrial hearing scheduled for September
7, 2000 at 1:45. Matter set for jury trial on September 25, 2000 at 9:00 a.m.
U.S. v. Elkins, Fel Pekin
Inmate indicted on July 20, 2000, for Possession of a Prohibited Object in violation of
18 U.S.C. §§ 1791 (a)(2) & (b)(3)(1). Initial arraignment scheduled for August 3,2000 at
3:00 p.m.
United States v. Rodney Allen Dent, No. 99-40046-JPG; United States v. Mitchell
E. Kolb, No. 99-40047-JPG; United States v. David Michael Sahakian, No.
99-40044-JPG; United States. v. Joseph L. Tokash, No. 99-40045-JPG; United
States v. John Derel Usher, No. 99-40049-JPG (AUSA Cutchin). USP Marion
The above named inmates are charged with possession of a prohibited object in
violation of 18 U.S.C. § 1791 (a)(2). After asserting that they were operating under a
mental disease or defect when the crime was committed, all defendants underwent
evaluations pursuant to 18 U.S.C. §§ 4141 & 4142. A competency hearing was
conducted on May 18, 2000, and defendants' (except Tokash) requests to represent
themselves were granted. Trials are now set for August 14 for inmates Kolb and
Tokash and September 18 for inmates Sahakian, Dent and Usher.
United States v. Charlotte Gutierrez, USP Florence
On July 21, 2000, former Senior Officer Charlotte Gutierrez pleaded guilty to an
information charging her with a single misdemeanor violation of 18 U.S.C. § 242.
Sentencing set for September. Ms. Gutierrez resigned on July 20,2000.
3478

North Central Region
Regional Counsel Monthly Report
July 2000
PageS

United States v. Patrick Heaps, USP Florence
Inmate placed dummy in his bed and attempted to escape from USP Florence in May of
2000. Accepted for prosecution by United States Attorney's Office.

o.

PERSONNEL ISSUES

otto
STAFF TRAVEL AND LEAVE

(
"-

August 10-11
August 16-18

AIL
Butner, NC

August 18-25

House hunting

August 10-18

AIL

August 7-9

Washington, D.C.

August 7-9
August 21-25

Washington, D.C.
AIL

August 18

AIL

(
\

3479