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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

June 12, 2000
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MEMORANDUM FOR CHRISTOPHER ERLEWINE
ASSISTANT DIRECTOR/GENERAL COUNSEL
GENERAL COUNSEL AND REVIEW DIVISION

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FROM:

DARYL KOSIAK, Regional Counsel

SUBJECT:

Monthly Report (May 2000)

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LITIGAnON, CLAIMS, AND ADMINISTRATIVE REMEDY STATlSnCS
LITIGATION:

INST NUM

HC

FT

BIV

OTH AN

NCR

4

C
4

6

0

14

PEN

CLD

HIT

SET AWD

450

20

10

0

S

23

Total cases for Calendar Year -124
NUM -

He FTC BIV 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 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)

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North Central Region
Regional Counsel Monthly Report
May 2000
Page 2
Mental Health cases
18 USC§4245

2

Hearings
5

18 USC §4246

2

2

Petitions filed

ADMINISTRATIVE CLAIMS

JAN

FEB

MAR

55

65

55

APR MAY JUN
254 207
47
48
55
45
4
7

#Pending
#Received
#Answered
#Over6
month
#Pending

207

JUL

AUG SEP

OCT NOV DEC

238

Total for Calendar Year - 270

ADMINISTRATIVE REMEDIES

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#Received
#Answered

JAN
175
168

FEB
164
178

MAR
192
178

APR MAY JUN
171 249
186 164

JUL

AUG SEP

OCT

NOV

DEC

Total for Calendar Year - 951

FREEDOM OF INFORMATION ACT/PRIVACY ACT REQUESTS
FOIAIPA
#Pending
#Received
#Processed
#Backlog

JAN
47
68

FEB
33
94

MAR
48
92

APR MAY JUN
68
71
69
77

39
16

74
4

106
1

41
1

JUL

97
3*

Total for Calendar Year • 400

*1.... Requests awaiting the retrieval of records from the archives.
ADVERSE DECISIONS

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AUG SEP

OCT NOV DEC

North Central Region
Regional Counsel Monthly Report
May 2000
Page 3

None.
SETTLEMENTS OR JUDGMENTS
None.
DECISIONS OF INTEREST
Tuite v. Page True, et al., Case No. 93-CV-3248, MCC Chicago
Local attorney sued for violation of civil rights, alleging Attomey-Client rooms were
being audiotaped by MCC officials. At discovery stage, OIG indicated their report of the
allegations would not be releasable, despite several attempts by plaintiff to subpoena
the records. After exhausting several appeals concerning the matter, the plaintiff
agreed to have the case dismissed with prejudice.

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Evans v. J. W. Booker, Case No. 00-3024-RDR, USP Leavenworth
On May 10, 2000, the court denied this petition for writ of habeas corpus wherein the
petitioner sought relief from allegedly unlawful detainers lodged against him by the
states of New Jersey and Florida. The determination was made that petitioner may not
seek relief in federal court on the Florida warrant. where that warrant has not been
lodged as a detainer against him. Furthermore, since the New Jersey warrant is in
effed, the petitioner must challenge the validity of the detainer pursuant to 28 U.S.C. §
2254 after first exhausting state court remedies. Finally. the court determined that
petitioner is required to exhaust his administrative remedies with the BOP prior to
seeking relief under § 2241.
Price v. United States of America, Case No. 98-3358-GTV, USP Leavenworth
On May 26, 2000. the court granted the government's motion to dismiss where the
plaintiff alleged negligence on the part of staff when personal property was lost after he
was placed in the Special Housing Unit. The court determined this matter was
time-barred because this matter was commenced more than six months after the
rejection of his request for reconsideration by a letter dated February 9, 1998.
Bustillos v. Henman, et al., Civil No. 90-CV-3040, USP Marion
Plaintiff alleged that he was subjected to an elaborate campaign and conspiracy of
harassment, intimidation and retaliation against him for his actions as a '1ailhouse"
lawyer. Only an excessive use of force claim against one defendant remained in the
case after pre-trial motions. After jury trial conducted on August 31, 1999, judgment
was entered for defendant. A Motion for new trial was denied on March 17, 2000.
Duarte v. M. Cooksey, et ai, Case No. 95-69-JPG, USP Marion
Plaintiff named twenty-five defendants whom he alleged retaliated against him for his
legal activities by preparing false incident reports.
He requested $100,000 in
compensatory damages and $50,000 in punitive damages against each defendant. All

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North Central Region
Regional Counsel Monthly Report
May 2000
Page 4

causes of action were dismissed except for a retaliation claim against Counselor Ellet
and former Warden Cooksey. After jury trial conducted on May 9-10,2000, judgment
was entered for defendants.

PENDING CASES OF INTEREST

Gil v. Medical Director of MCC, et al., Case No. 95-CV-5217, MCC Chicago
Inmate alleges deliberate indifference to gastric obstruction. and conditions caused by
surgery. Final settlement papers sent to counsel for plaintiff. Awaiting final resolution
from plaintiff. Anticipated final settlement in early June 2000.
Palay v. Warden Gilkey, at. at Case No. 99-CV-8169. MCC Chicago
Inmate sues individuals in official capacity and under FTCA. alleging failure to protect
from injuries allegedly sustained during institutional disturbance. A Motion to set date
for answer has been filed. as improper service under FTCA. We requested time from
date of motion to substitute United States as party.

c. .,.

Laury v. Greenfield, et al., Case No. 98-3024-JWL, USP Leavenworth
In this case, summary judgment was granted on claims regarding excessive force
involving two of the defendants; taking an address book; verbal abuse by two
defendants, and failure to bring a hot meal by one defendant. The court however
denied judgment on claims regarding excessive force by three defendants, failure to
protect plaintiff from excessive force by four defendants, and failure to adequately
supervise by a Lieutenant. A private attorney has been appointed to represent the
plaintiff who is currently confined at USP Allenwood. The private staff attorneys have
requested that Laury be moved to CCA in Leavenworth for purposes of taking his
deposition. They have been advised that the BOP would comply with a writ issued by
the Judge. In addition, the private attorney has made an attempt to subpoena records
from the BOP pursuant to 28 C.F.R. § 16. 22. however he has failed to obtain a
subpoena. This request is for numerous privileged documents which includes requests
for grand jury records in connection with the recent indictment of three Leavenworth
staff members. As a result of a conflict of interest with the U.S. Attomey's office in the
District of Kansas, the request for ., subpoenaed" documents has been referred to the
Civil Supervisor for WID Missouri. A trial date was initially set for September 18, 2000.
This date has now been changed to November 27,2000.
White v. Helman, et al,Case No. 00-1037, FCI Pekin
Combined Bivens and FTCA action alleging inappropriate use of force by the institution
SORT team. Complaint includes allegations against three "John Does".

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Cuoco v. Hurley, Hershberger, Roal. Hawk, Case No. 98-0-2438, ADX Florence
On April 4, 2000, the Magistrate Judge entered a report recommending dismissal of all

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North Central Region
Regional Counsel Monthly Report
May 2000

PageS
of plaintiff's claims with the exception of his claim for injunctive relief based on his
allegation that the ADX regulation which prohibits him from receiving newspapers more
than 14 days old and magazines more than 60 days old, is a violation of his First
Amendment rights. ADX staff determined that date restriction was unnecessary, so
long as number restriction was in place and submitted a Change Notice to modify the
institutional supplement accordingly. On May 5,2000, AUSA filed objections with staff
declaration pertaining to modification of institution supplement.

RELIGIOUS FREEDOM RESTORATION ACT

Tolley, et al., v. Pugh, et at, Case No. 97 -N-0793, FCI Florence
This RFRA case challenged denial of separate outdoor worship area ~ ')dinists. On
April 27, 2000, the Scheduling Conference in this case was held vica
·.,ference.
Nineteen inmates from FCI were present in the ADX courtroom.
/J\'\
""ates,
one at FCI Sandstone and one at FOC Seatac, appeared"
L7 ~
'1X
courtroom. The nineteen FCI inmates notified the Court that they .
~
themselves to allow four of them to represent the entire group, howe\t\o.
~ et
to deSignate the four representatives. Plaintiff Tolley is represented by '""
who
intend to file an amended complaint to specifically state an RFRA claim.

.Q

UPCOMING HEARINGS AND TRIALS
. United States v. McAllister, 18 USC § 4246, District of Minnesota, FMC Rochester
This §4246 case was appealed to the Eighth Circuit Court of Appeals and set for oral
argument on June 12, 2000. The issue before the Court is whether a district court must
conduct a hearing when the clinicians submit a conditional release plan and before
granting conditional release. Another issue at hand is whether a conditionally released
person, who is placed on outpatient status by local authorities, must have a hearing
before returning the person to in-patient status.

CRIMINAL MATTERS

United States v. Francis and Haney, 98-CR-224-D, USP Florence
Two inmates charged with possession of prohibited objects (escape paraphernalia) and
attempted escape from USP. The trial began on April 17, 2000. The case went to the
jury on the afternoon of April 27th. A split verdict (guilty on possession of objects, not
guilty on attempt) was retumed at 5:30 p.m. on Friday, April 28th. FCC Florence legal

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North Central Region
Regional Counsel Monthly Report
May 2000

Page 6

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staff are assisting the U.S. Attomey's Office to prepare a motion to seal portions of the
evidence and transcripts that dealt with specific security measures at the USP to
prevent publication of this information throughout the prison population. On May 31,
2000, a lengthy article conceming this trial appeared in Westword.

United States v. Walsh, Fel Florence
On April 30,2000, the Grand Jury returned a two-count superceding indictment in this
case, charging a former cook supervisor with bribery and conspiracy. Specifically, this
individual was implicated in a scheme to introduce drugs into the FCI for profit. Trial
continued from May 30,2000, as defendant filed 14 separate motions.

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...

United States v. William Sablan and Rudy Sablan, USP Florence
William Sablan and Rudy Sablan were housed in a SHU Cell with Joey Estrella on
October 10, 1999 at the USP Florence. Staff found Estrella laying on the cell floor with
a gaping wound to his abdomen and with two cuts to his neck. It was later determined
that inmate Estrella died from massive blood loss from the neck wounds. William
Sablan admitted to the FBI that he killed inmate Estrella, however, there is evidence
that Rudy Sablan was also involved in the killing. On May 25, 2000, Florence legal staff
assisted AUSA's AI LaCabe and Brenda Taylor in preparation for death penalty
consideration and initial trial preparation in this case. Florence legal staff facilitated and
partiCipated in interviews with various witnesses, toured the crime scene and answered
questions.
United States v. Johnson and Schofler, USP Leavenworth
A new trial date has been set for July 11, 2000, in the prosecution of inmates Johnson
and Schofler for the murder of inmate Smothers. This triar is expected to take 2 weeks
and will take place in Kansas City, Kansas. Rick Winter has been assigned oversight
responsibility for this case. The AUSA and FBI Special Agent are in the process of
interviewing staff witnesses in order to prepare for this trial.

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United States Y. Rodney Allen Dent, No. 99-40046-JPG; United States v. Mitchell
E. Kolb, No. 99-40047..JPG; United States v. Scott Lee Martin, 99-40048-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 Dere. Usher, No.
99-40049-JPG, 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, aU defendants underwent
evaluations pursuant to 18 ~.S.C. §§ 4141 & 4142. A competency hearing was
conducted on May 18, 2000, and defendants' (except Tokash) request to represent
themselves was granted. Trials are now set for August 14th for inmates Kolb, Martin
and Tokash and September 18th for inmates Sahakian, Dent and Usher.

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